SZARIA v Minister for Immigration

[2007] FMCA 117

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZARIA v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 117

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in China – no reviewable error found – application dismissed

Migration Act 1958, ss.424A, 425
Federal Magistrates Court Rules 2001 (Cth)

Minister for Immigration v Lay Lat [2006] FCAFC 61
SZCIJ v Minister for Immigration & Anor [2006] FCAFC 62
SZHUI v Minister for Immigration& Anor [2006] FMCA 1042

Applicant: SZARIA

First Respondent: MINISTER FOR IMMIGRATION AND CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG2423 of 2006

Judgment of: Driver FM

Hearing date: 9 February 2007

Delivered at: Sydney

Delivered on: 9 February 2007

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents: Mr J Potts

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The name of the first respondent be amended to the “Minister for Immigration and Citizenship”.

2. The application is dismissed.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2423 of 2006

SZARIA

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

(As Corrected)

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”).  The decision was handed down on 8 August 2006.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. 

2. I adopt (with minor amendments) as background for the purposes of this judgment paragraphs 1 through to 24 of the Minister’s outline of written submissions filed on 5 February 2007 which deal with the applicant’s protection visa claims and the Tribunal decision on them.

Background

1. The Tribunal signed it decision on 20 July 2006,[1] affirming a decision of a delegate of the Minister made on 9 November 2004,[2] refusing an application for a protection visa.

   [1]     Court Book (“CB”) at 124-136.

   [2]     CB at 35-44.

2. The applicant is a 33 year old citizen of China.[3]  She arrived in Australia on 8 August 2004 travelling on a visitor visa.[4]  The applicant submitted an application for a Protection (Class XA) Visa on 20 August 2004.[5]

   [3]     CB at 10-11.

   [4]     CB at 30.

   [5]     CB at 1-30.

3. In a statutory declaration accompanying her application the applicant claimed that she had been born in a village in the countryside of Fujian Province, but after completing school she had left her home town to seek employment in larger cities.  She said that in March 2000 she went to Shanghai and worked in a very large restaurant.  She claimed that most of the employees were, like her, from other places.  She claimed that they were normally called “non-local labourers”, which she said “was actually a byword for those people like me upon whom everyone could down in the society”.  She claimed that as a group they were subjected to various forms of discrimination and mistreatment, not only by their employers, and customers of the restaurant, but by the whole society at large. 

4. The applicant claimed that from early 2002 she began to exchange her political opinions with friends who were non-local labourers.  She claimed that in April 2002 she and four other non-local labourers had a special meeting and organised themselves into an informal group.  She claimed that they did not have a name for the group but when they drafted, printed and distributed propaganda materials they always used the name “a group of non-local labourers” (“the Group”).  She claimed from that time that the Group organised and distributed thousands of propaganda documents seeking to advance the interests of non-local labourers.  The applicant said that eventually the Group came to the attention of the local Public Security Bureau (PSB), and from January 2003 the PSB endeavoured to investigate the members of the Group.

5. The applicant claimed that in June 2003 the restaurant where she was employed suddenly cut the salaries of employees.  She claimed that she caused the Group to edit and distribute a special statement supporting the employees in her restaurant, and after that she organised the junior staff to go on strike for one week.  The applicant said the restaurant agreed to consider their demands and temporarily stopped the reduction in salary.  She claimed that this had been a trick by the managers of the restaurant, and in fact at the end of June 2003 she was dismissed by the restaurant, and then subjected to investigation by the PSB, being interrogated some 7 or 8 times in July to August 2003.  The applicant said that under interrogation she admitted organising the junior staff to go on strike, but did not tell them anything about the membership of the Group.

6. The applicant said that in mid October 2003 one of the five members of the Group was arrested by the PSB.  She claimed that on news of this she immediately ran away.  The applicant claimed that she had returned to her hometown in Fujian Province, but shortly after her arrival she was informed by a friend in the PSB that someone from Shanghai was going to catch her in Fujian.  She claimed that she immediately fled to Guangdong Province where she went into hiding for 10 months.  She claimed that she was in such fear that she dared not even expose her genuine name, but instead used money to have her name changed, and obtained personal materials including an ID card.  During that period she was informed that all four of the other members of the Group had been arrested, and that she was the only one left.  She claimed that in the meantime police had come to her home many times to look for her, because she had become regarded as a person who had organised an anti-government political organisation.

7. The applicant claimed she was therefore compelled to leave China and that her family sold property in order to collect sufficient money for her to escape.  She claims that she escaped from China on 7 August 2004.

8. As noted above, the delegate of the Minister refused the application for a protection visa on 9 November 2004.[6]

   [6]     CB at 35-44.

9. The applicant sought review by the Tribunal by application filed on 1 December 2004.[7]

   [7]     CB at 45-53.

10. On 7 January 2005 the Tribunal received a letter from the applicant’s migration agent enclosing a certified copy of the applicant’s Chinese ID card.[8]

    [8]     CB at 54-56.

11. The applicant attended a hearing before the Tribunal as originally constituted on 10 February 2005.[9]  At that hearing she claimed that her real name was not that given, but was in fact another name.[10]  At this hearing she also claimed that there were a lot of people working for the Group under the five leaders distributing materials.  The applicant claimed there were in fact several hundred people involved with the Group.[11]

    [9]     CB at 60.6.

    [10]    CB at 63.9.

    [11]    CB at 64.10.

12. The Tribunal as originally constituted made its decision on 14 February 2005, and it was handed down on 3 March 2005, affirming the decision of the delegate.[12]  By an order of this Court made by consent on 16 March 2006 that original decision was quashed.[13] I am told this was on the basis that the first Tribunal had not complied with its obligations under s.424A of the Migration Act. That obligation arose because of the first Tribunal’s reliance upon inconsistencies between evidence given by the applicant to the first Tribunal and what had been set out in support of her protection visa application.

    [12]    CB at 57-70.

    [13]    CB at 71-72.

13. After the matter was remitted to the Tribunal the applicant’s migration agent submitted further material in support of her case on 12 May 2006.[14]  This material related predominantly to the applicant’s husband, who was apparently an Australian citizen that the applicant married on 1 March 2005.

    [14]    CB at 80-111.

14. The applicant, her husband, and her migration agent attended a further hearing before the Tribunal on 17 May 2006.[15]  Further material was provided at the hearing.[16]  On 8 June 2006 the applicant provided a further statutory declaration to the Tribunal.  The statutory declaration dealt with certain matters that had been current at the hearing and claimed that any inconsistencies had been a result of nervousness and confusion.

    [15]    CB at 99.

    [16]    CB at 100-111.

15. The second Tribunal addressed the s.424A issue in two letters sent to the applicant, the first of which was undated and the second of which was dated 9 June 2006. On 9 June 2006 the Tribunal sent the second letter to the applicant, care of her migration agent, pursuant to s.424A of the Migration Act 1958 (Cth) (“the Migration Act”), inviting comment on particular information.[17]  The applicant responded by way of further statutory declaration received on 23 June 2006.[18]  In this statutory declaration the applicant accepted that at the first hearing she had given internally inconsistent evidence and claimed that it was very hard for her to recall the exact situation at that time, and again repeated that she had been very nervous.

    [17]    CB at 117-118.

    [18]    CB at 119-120.

16. The Tribunal’s decision was made on 20 July 2006 and affirmed the delegate’s decision.

The Tribunal’s Decision

1. The Tribunal accepted that the applicant was employed from 2000 to 2003 in a restaurant in Shanghai, and that there was a strike at the restaurant relating to working conditions in which the applicant had participated.  The Tribunal accepted that there was no right to strike in China, but the work protest had occurred in 2003 for reasons including those described by the applicant.  The Tribunal was satisfied that police had detained protest leaders and dispersed demonstrations, usually with minimum force, but sometimes some of the protesters’ demands had been met.  It accepted that some leaders of protest actions had been arrested and sentenced to imprisonment during 2003, but was satisfied that the thousands of ordinary strikers and protesters were not generally subjected to any serious harm.[19]

   [19]    CB at 135.1-135.3.

2. The Tribunal found, given the applicant’s account at the second hearing, that she was not a spokesperson for restaurant staff and played no role in negotiating on their behalf during the strike of 2003.  It was satisfied that she would have been perceived by restaurant management as no more than one of the staff participating in strike.  The Tribunal had considerable doubt that she was one of the organisers of the strike, and that she had been as active as she had claimed.  The Tribunal also considered that the internal inconsistencies in her evidence over time as to whether the strike took place in January or June 2003 cast considerable doubt on the plausibility of her claim to have been involved in organising it, or indeed in playing a leading role.  The Tribunal was satisfied that she had exaggerated her role in strike related activities, and that she was no more than an ordinary participant in a strike involving hundreds of people.[20]

   [20]    CB at 135.4-135.5.

3. The Tribunal accepted that she had been dismissed from her job at the restaurant in mid 2003, but given its earlier findings, was not satisfied that she was dismissed because of a perception that she had been a labour activist or had played an organising role in the strike.[21]

   [21]    CB at 135.6

4. The Tribunal was unable to accept that the applicant had been questioned 7 or 8 times by the local PSB in Shanghai, given that it did not accept that she had played any leading role in protest activities.  However even if she had been questioned by the PSB, the Tribunal was satisfied that she had been released without charge because there was no evidence against her.[22]

   [22]    CB at 135.7.

5. The Tribunal concluded that it was not plausible and did not accept that the police had any politically motivated adverse interest in her after she had left Shanghai.[23]

   [23]    CB at 135.8-136.2.

6. Whilst the Tribunal was satisfied the applicant had left China with passport in a name other than her own, it did not accept she did so because of a fear she would be denied a passport in her own name, or arrested because of a political opinion.[24]

   [24]    CB at 136.3.

7. Whilst the Tribunal accepted that the applicant appeared reluctant for some reason to return home, it was not satisfied that she had a well founded fear of persecution for the reason of her political opinion when she left China in 2004.[25]

   [25]    CB at 136.4.

8. The Tribunal referred to the fact that late in the second hearing the applicant had said that the police had come to her family home asking about her in 2005.  The Tribunal did not consider this plausible given its belated emergence in the evidence, and was satisfied there had been no developments since the departure from China of relevance to her claims to be refugee.[26]

   [26]    CB at 136.6-136.7.

The Present Application

1. These proceedings commenced with a show cause application filed on 30 August 2006. The applicant now relies upon an amended application filed on 3 November 2006. That amended application purportedly sets out five grounds of review. The applicant asserts breaches of ss.424A and 425 of the Migration Act and also asserts procedural unfairness and possibly also bias and bad faith. I gave directions on 12 September 2006. Order 3 made by me on that day gave the applicant the opportunity to file an amended application; an opportunity which she took up. Orders 2 and 4 gave the applicant the opportunity to file and serve affidavit evidence. She did not take up that opportunity; neither did she file any written submissions although she took the opportunity to make oral submissions.

2. The only evidence I have before me is the book of relevant documents (“the Court Book”) filed on behalf of the Minister on 3 October 2006.   In her oral submissions the applicant asserted that the record of what occurred at the second Tribunal hearing set out in the decision record of the second Tribunal was not accurate.  She also asserted that the hearing conducted by the second Tribunal had been conducted in an unfair way and that she and her husband had not been given a proper opportunity to present her case.  When I put to the applicant that there was no evidence before me to support those contentions she invited me to listen to the audio tape of the second Tribunal hearing.   I declined to do so both because there was no facility in court to listen to those tapes and because the applicant had done nothing in the five months following the directions hearing in September 2006 to file and serve any evidence.  The applicant asserted difficulty and lack of understanding in relation to the preparation of evidence but she had not previously drawn any problem to the attention of the Court. 

Reasoning

1. Subject to my reasons which follow I accept the Minister’s submissions in relation to the grounds of review set out in the amended application and adopt (with minor amendments) for the purposes of this judgment paragraphs 27 through to 37 of the Minister’s outline of submissions.  

First Ground of Review

1. The applicant alleges by the first ground of review that the Tribunal failed to consider her claim properly and fairly.

2. Particulars (a) and (b) raise issues about the Tribunal’s findings of fact, and really go to nothing more than the merits of the Tribunal’s decision.

3. Particular (c) complains that the Tribunal “never ever” invited the applicant to comment on the main issues or information that the Tribunal used as the reasons, or part of the reasons, in its decision. This would seem to be an allegation of a breach of s.424A of the Migration Act. The applicant does not, however, state what she asserts were the “main issues or information” that the Tribunal used as the reason or part of the reason for its decision. It is plain, when one examines the findings and reasons section of the Tribunal’s decision, that the information which formed part of the reason for affirming the delegate’s decision was either material given by the applicant to the Tribunal, or where it was not, that information was disclosed in the s.424A letter sent by the Tribunal.[27]

   [27]    CB at 117-118.

4. Particular (d) claims that the applicant has a doubt as to whether or not the presiding member intended to comply with her obligation under s.424A honestly and fairly. The applicant asserts a belief that the presiding member “never ever” intended to give her any chance to comment on those actual issues or information that she had decided to use in her decision. This, in substance, would appear to be an allegation of bad faith or actual bias. Characterised either way, there is absolutely no foundation for it. This is an allegation of personal fault on the part of the decision maker, and one which cannot possibly be sustained on the meagre evidence before the Court.

5. Particular (e) asserts that the Tribunal ignored evidence provided by the applicant’s husband, and completely ignored her “actual education”.  The allegation that the Tribunal ignored the husband’s evidence is plainly wrong.  The Tribunal recited the evidence given by the husband at the hearing.[28]  It is difficult to see what evidence the applicant is referring to when she refers to her “actual education” or what it would have been relevant to.  There is no basis for concluding that the Tribunal committed a jurisdictional error.

   [28]    CB at 133.5-133.7.

6. A separate aspect of particular (e) is the allegation that at the hearing the presiding member stopped the applicant’s husband from giving further evidence by making her and her husband believe that he had already given sufficient evidence.  She claims to have been misled by the presiding member.  This ground fails simply on the basis of a want of any evidence to support the factual allegations implicit within in.  There is no evidence before the Court of what transpired at the hearing other than the reasons for decision of the Tribunal, and absolutely no evidence that the Tribunal member in fact stopped the applicant or the husband giving any evidence.  There is no evidence that the applicant was misled by the presiding member.

7. Particular (f) does not contain anything capable of assisting the Court in finding jurisdictional error in the Tribunal’s decision.

Second Ground of Review

1. This ground of review alleges the Tribunal failed to comply with s.425 of the Migration Act. Particular (b) alleges that the presiding member “never ever” intended to give the applicant any chance to comment on the actual issues or information that she used to make her decision. Particular (c) reiterates the allegations that the Tribunal stopped her husband giving further evidence and made her and her husband believe they had already given sufficient evidence. As stated in relation to the first ground of review, there is absolutely no evidence to make good the factual assertions underpinning this ground of review and it should be rejected.

Third Ground of Review

1. The applicant alleges that the Tribunal failed to comply with s.424A of the Migration Act. The particulars reiterate those given in relation to the first ground of review. There is nothing to suggest that the Tribunal failed to comply with s.424A.

Fourth Ground of Review

1. This ground asserts that the applicant’s new husband would be willing to sponsor her to apply for permanent residency on the grounds of her being his spouse.  The applicant claims the reason why she insists on her protection visa application is because she believes that she is a refugee but the presiding member has completely ignored this important claim.  The Tribunal referred to this very matter when reciting the husband’s evidence in its reasons for decisions.[29]  This ground is without substance and should be rejected.

   [29]    CB at 133.6.

Fifth Ground of Review

1. In this ground the applicant simply reasserts her belief that her review application has not been fairly and carefully assessed.  This ground adds nothing to the earlier grounds.

2. In summary, and as already stated above, there is no evidence before me to support in any way the assertions of bad faith and bias.  The assertion of procedural unfairness, to the extent that it relies upon the general law, does not assist the applicant, even if there was evidence to support it, in view of the Full Federal Court decisions in Minister for Immigration v Lay Lat [2006] FCAFC 61 and SZCIJ v Minister for Immigration & Anor [2006] FCAFC 62 which are binding upon me.

3. There is no substance to the asserted breach of s.425 of the Migration Act. The applicant was invited to a hearing and attended and gave evidence, as did her husband. The second Tribunal decision record exhibits to my mind a more thorough examination of the material than was exhibited on the face of the record of the first Tribunal decision. The hearing opportunity afforded to the applicant by the second Tribunal was clearly far more than an empty gesture.

4. Neither was there any breach of section 424A of the Migration Act. In two attempts the second Tribunal succeeded in dealing with the jurisdictional error identified from the first Tribunal decision. As matters turned out the issue of inconsistency between what the applicant had put in her protection visa claims and what she had told the first Tribunal was of very little significance in the second Tribunal decision. To the extent that those matters played any part in the reasoning of the second Tribunal that reasoning is set out in the second and fourth paragraphs on page 135 of the court book.

5. I note that there is a typographical error in line 7 of the last paragraph on page 135 in that the word “not” needs to be inserted between the words “was” and “about”.  The second paragraph on that page discloses that the Tribunal treated as significant an inconsistency between what the applicant had said to the second Tribunal and what she had said to the first Tribunal.  I accept the Minister’s submission that that was information provided by the applicant to the Tribunal for the purposes of the review. 

6. As I have previously found[30], although there was more than one Tribunal decision there was only ever one review application. The evidence given by the applicant to the first and second Tribunals related to the same review application. It is not clear from the record of the second Tribunal decision where the second Tribunal derived its understanding of the evidence given by the applicant to the first Tribunal. To the extent that that understanding was derived from the decision record of the first Tribunal there is nothing to suggest that the summary of the evidence given to that Tribunal contained in that decision record was anything other than a fair summary. I find that the Tribunal did not breach s.424A of the Migration Act.

   [30] SZHUI v Minister for Immigration & Anor [2006] FMCA 1042

7. No other jurisdictional error is apparent to me.  I find that the decision of the Tribunal is free from jurisdictional error and accordingly the application must be dismissed.    I so order. 

8. Costs should follow the event in this case.  The scale of costs contained in the Federal Magistrates Court Rules 2001 (Cth) provide for an award of costs in the sum of $5,000 following a final hearing. The Minister seeks an order for costs fixed in the sum of $4,500. I accept that costs of that amount have been properly and reasonably incurred on behalf of the Minister when assessed on a party and party basis. I will order that applicant pay the first respondent’s costs and disbursements of and incidental to the application fixed in that amount.

I certify that the preceding forty seven (47) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  19 February 2007

CORRECTIONS

1. Paragraph 13 – first full sentence in line 2 – replace with “At that hearing she claimed that her real name was not that given, but was in fact another name.”