SZDSG v Minister for Immigration - [2005] FMCA 170

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDSG v MINISTER FOR IMMIGRATION

[2005] FMCA 170

MIGRATION – RRT decision – Chinese teacher persecuted for teaching democracy – Tribunal found claims fabricated – no jurisdictional error.

Migration Act 1958, ss.414A, 425, 424A, 459, 483A, Part 8
Judiciary Act 1903 (Cth), s.39B

Minister for Immigration v NAMW (2004) FCAFC 264
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476

Applicant:

SZDSG

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 1635 of 2004

Judgment of:

Smith FM

Hearing date:

16 February 2005

Date of Last Submission:

16 February 2005

Delivered at:

Sydney

Delivered on:

16 February 2005

REPRESENTATION

Counsel for the Applicant:

Applicant in Person

Counsel for the Respondent:

Mr J Smith

Solicitors for the Respondent:

Sparke Helmore

ORDERS

Application dismissed.
Applicant to pay the respondent's costs in the sum of $4500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1635 of 2004

SZDSG

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application under s.483A of the Migration Act 1958 (Cth) challenging a decision of the Refugee Review Tribunal dated 31 March 2004 and handed down on 27 April 2004. The Tribunal affirmed a decision of a delegate of the Minister refusing the applicant a protection visa.
Under s.483A, the Court has "The same jurisdiction as the Federal Court in relation to a matter arising under this Act." That jurisdiction is, in relation to the present matter, its general review jurisdiction under s.39B of the Judiciary Act 1903 (Cth) but subject to restrictions under Part 8 of the Migration Act. As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 and subsequent cases, the restrictions require the Court to be satisfied that the Tribunal's proceedings and reasons are affected by jurisdictional error. The Court has no power to set aside a Tribunal decision and remit the matter merely because it does not like the factual conclusions reached by the Tribunal. It is not a function of the Court to decide whether the applicant is or is not a refugee, whether his claims were or were not true and whether he should or should not be given a visa.
In the present case, the applicant arrived in Australia in January 2003 on a one month temporary business visa, and applied for a protection visa on 11 February 2003. In a statutory declaration attached to his application he claimed to fear being persecuted in China "mainly for the reason I have political dissident opinions, which are not tolerated by the PRC authorities." He claimed that his political opinions and actions had already come to the special attention of the Public Security Bureau.
The circumstances in which he said this happened were that he had been employed as a teacher at a middle school from 1992 and formed strong opinions about the education system, including opinions that students should be taught about a more democratic system which he called "democratic education" or "democratic education system." He formed the belief that the current teaching methods and materials "must be thoroughly changed", and says:
7. In order to promote my special political opinions, I began to teach my students with a total fresh method from September 1997, which has been mentioned above - democratic education. It was highly recommended by my students and their parents, and also produced stronger and stronger influences on other teachers in my school. It was very successful, but old teaching materials restricted its further development. Therefore, I organised some of teachers to edit our own teaching materials from summer school holiday in 1998.
The applicant said that he was then warned by school authorities. In 1999 he participated in protests when "the new teaching materials edited by us were prohibited" and, following further protests conducted with two other teachers, the school "had to stop their classes." He said he was arrested with the other two teachers and held between April and July 1999 in detention where he was mistreated. When he returned home in July 1999, he found he had been dismissed and could not obtain further jobs. One of his colleagues in the protest opened a private school in 2002, where the applicant taught for only two months before the PSB forced him to leave.
His claims were not accepted by the delegate for various reasons, including the absence of evidence substantiating them, and he was refused a visa on 3 April 2003. He appealed to the Tribunal with the assistance of a migration agent. His application attached a further statutory declaration which took issue with the reasoning of the delegate, but did not provide further supportive material.
The Tribunal invited the applicant to a hearing which he attended on 30 March 2004. It also served a request for additional information, asking him to provide documentary evidence supporting his claims, including teaching material and corroboration of his employment and persecution by the PSB. The applicant responded shortly before the hearing by stating: "most of my personal documents in relation to my political activities in the past, even including those official documents regarding my punishment, such as the original copy of the document of my dismissal, original documents of my administrative punishment, and so on, have been taken away by the PSB”, as had materials promoting his cause. He did present documents proving his teacher's qualifications for junior high school.
In its reasons the Tribunal identifies the applicant's claims in a manner which in my opinion was sufficient. I do not think that the Tribunal has misconceived or misunderstood or failed to address any part of the applicant's claims.
The Tribunal set out the terms of its request for additional information and the applicant’s response. It then sets out over several pages what it says was the course of its questions at the hearing, starting with the following:
At the commencement of the hearing the Tribunal asked the applicant to confirm the truth and correctness of his application and the answers to the additional information letter. The applicant agreed that they were correct and truthful. The Tribunal then summarised the applicant’s claim as set out on pages 4 and 5. The applicant concurred with this summary.
The Tribunal then asked the applicant if he wished to add anything. He replied yes but said nothing. The Tribunal then asked the question again in another way and asked ‘whether he wished to add anything to the application as it stands’. He replied words to the effect ‘I hope to give a detailed account’ and then said nothing more.
The Tribunal then asked again the first question on page 5 as his written answers provided no insight into the DE modules and syllabus. He replied that he could only rely on my teaching.
The Tribunal asked if he could provide details when requested, that it had asked many questions to which he had given no answers. The applicant replied he was not given the time to reply. There was a pause and he said no more in relation to this question.
The Tribunal again attempted to ask the applicant about DE teaching modules, that is, how many there were, the substance of the modules, length of modules, level at which they were aimed and an example of the testing of each module. He replied he taught concepts rather than specifics, that it was the development of the consciousness.
The Tribunal asked where the original idea of democracy (‘the demos’) originated. He replied words to the effect ‘I did not specifically talk about that’. The Tribunal asked for the applicant to name any historical figures who were democratic philosophers. He replied Mr Zeng.
The Tribunal then refers to further responses of the applicant in the course of the hearing, and the Tribunal's opinions arising from those responses. The applicant has not put in evidence before me a transcript of what happened at the hearing and I must take the account given by the Tribunal in its reasons as an accurate account. I am unable to identify any matter upon which the Tribunal relied when reaching its final conclusions which it did not put to the applicant and give him an opportunity to respond to.
It is clear that the Tribunal formed the opinion that the applicant had a poor understanding of democracy and doubted whether he had ever taught on that topic, and also doubted his account of having been brought to the attention of the security authorities in China. The Tribunal also drew upon country information in relation to passports and exit procedures from China.
Its reasoning to its final conclusion was:
The Tribunal also notes that the fear of persecution claimed by the applicant which could best be described as tenuous in the sense that it is difficult to believe, on the balance of probabilities and the bases of available ICI, how someone (ie a DE teacher) can maintain continuity of employment in a public school system for so long (1997-1999 prior to dismissal) and place of residence (10 years to the time of the applicant’s departure for Australia) and function freely as a DE proponent without attracting the adverse interest of the authorities in a substantive way. It follows that the Tribunal also does not accept the applicant’s version of events at the hearing that he departed China illegally (by inference) or that he was wanted by the PSB or was monitored by them.
While the Tribunal does accept that the applicant is probably some sort of sports teacher, his total ignorance of anything relating to democracy either where it originated or any of its historical philosophical figures plus his statement that he named an unknown person (Mr Zeng) as representing one of these historical figures has lead the Tribunal to the opinion that the application is a fabrication.
The lack of detail and substance of the information before the Tribunal in supporting the application, the ICI which is directly contrary to that presented by the applicant and the vague and general answers (and assertions) given to the Tribunal has lead it to the conclusion that the application is, therefore, without foundation.
It follows that the Tribunal finds on the totality of the evidence before it that the applicant has no subjective fear of persecution. It follows there is no basis for the applicant’s claims that he has a well-founded fear of persecution if he return to China now or in the foreseeable future.
The Tribunal's first sentence in the above passage has syntactical difficulties, but I take the Tribunal to have intended to say that it had concluded that the applicant's claimed fear of persecution was "tenuous in the sense of that it is difficult to believe", with the remainder of the sentence indicating some of its reasons for reaching that conclusion.
The applicant has not, on the material before me, received any legal assistance in preparing his case in this Court, and has appeared today without assistance except with an interpreter. However, he did attempt in his application to make specific criticisms referable to the Tribunal's proceedings, and today has also sought to focus rational and pertinent criticisms. They deserve careful consideration, although they do understandably reveal his difficulties as somebody from a foreign culture and without knowledge of the Australian legal system. In attempting to understand them I have been assisted by the submissions of counsel for the Minister.
The applicant’s first pleaded ground for review was, "I never ever believed that (the name of the member constituting the Tribunal) has complied with her obligations under s.424A of the Migration Act 1958". Four particulars are then given which, in some respects, perhaps should be addressed by reference to obligations on the Tribunal under s.425 also.
Section 424A(1) obliges the Tribunal to "give to the applicant ..... particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review" and to ensure that the applicant understands its relevance and is given an opportunity to comment on it. However, as a result of s.424A(3), that obligation only concerns information which is not specifically about the applicant (see Minister for Immigration v NAMW (2004) FCAFC 264).
Section 425 requires the Tribunal, in a case such as the present, to "Invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under the review." It has been accepted that this obligation encompasses also providing a real opportunity at such a hearing for the applicant to give evidence and present arguments relating to the issues arising (c.f. NAQF v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 781 at [85-87]; Applicant NAFF of 2002 v Minister [2004] HCA 62 at [27], [43], [70]).
The application gave four particulars in support of the complaint that the Tribunal did not follow these procedures. The first was:
The Tribunal asked me some of questions, such as questions regarding to democratic education. However, the Tribunal member has never ever carefully considered my answers to those questions. Reference is then made to some of the answers he had given in his written submission.
The applicant elaborated this submission orally by complaining that he thought the Tribunal never understood what he had been trying to teach, and had no knowledge of education in China nor the education system in China with which to understand what he was saying.
I accept the submission of the counsel for the Minister that the applicant's criticisms in this respect go no further than a complaint about the Tribunal's factual assessment of his evidence. The Tribunal has, on the evidence before me, been fully aware of what he said in writing and at the hearing, and shows that it was fully aware of what he said in his submission about the democratic education. Whether the Tribunal has evaluated his evidence in a factually correct manner is not an issue for me to decide. I do not consider that its factual evaluation is so irrational or unreasonable as to give rise to jurisdictional error.
The second and third particulars are:
During the hearing, the Tribunal member has never ever given me complete information, such as the information regarding to democratic history or information regarding to education system, that the Tribunal considers would be the reason or a part of the reason, for affirming the decision that is under review.
Particularly, the Tribunal member has never ever made me well understand why the information is relevant to the review.
Doing my best to understand these criticisms, I think they concern the Tribunal's testing of the applicant about "where the original idea of democracy (“the demos”) originated" and "historical figures who were democratic philosophers."
I have doubt whether this was a very useful method of testing the applicant's claims, since he did not claim to have been teaching the philosophy of democracy or the history of democratic practices. For myself, I would not assume that democratic ideals or practices cannot be taught to junior high school children in China without knowledge of ancient Greece. However, as a matter of law I consider it was open to a Tribunal to have tested the applicant in the manner described, and to have acted upon its opinions about his responses. I can find no jurisdictional error by the Tribunal in doing this, and in relying in part upon its assessments arising from it. I do not consider that this process of testing the applicant’s knowledge required any further warning or particulars to be given of the Tribunal's own level of knowledge about democracy, whether under s.424A or s.425.
The fourth particular of this complaint was:
The Tribunal member has never given me full opportunity to comment on the information. As a matter of facts, my answer has many times interrupted by the Tribunal member during the hearing; and particularly, I firmly believed that the Tribunal member has, in fact, tried to control the hearing, restrict my answers, and mislead me to a particular circle which she has designed before the hearing.
The picture of the hearing painted in this complaint suggests what lawyers might classify as complaints of breaches of obligations under procedural fairness or their equivalent under s.425 by failing to afford a real hearing, by adopting preconceived opinions on the merits of the matter, by refusing to allow opportunities to respond to questions or to present facts, and by misleading as to the issues to be decided.
However, on the material before me none of the suggestions I have identified have substance. On the account given by the Tribunal of the hearing, the applicant was given full opportunity to explain his case, and the Tribunal repeatedly paused to give him that opportunity. He may, due to the strangeness of the situation, have felt that he could not properly explain himself, but I am not persuaded that that was due to any conduct on the part of the Tribunal member. I note that the applicant before me did not seek to tender the transcript of the hearing to establish that the hearing was not conducted in the manner described by the Tribunal in its reasons.
Similarly, a complaint made to me orally today by the applicant that he had problems understanding the interpreter provided, does not, on the evidence before me, give rise to a finding that the Tribunal's hearing miscarried for that reason.
I therefore reject all of the particulars put forward in support of the first ground of review.
The second ground of review pleaded in the application was:
I believe that a qualified member like (this member) should have necessary knowledge, experience and understanding of my particular difficulties and needs when she considers my application, because:
·     I am in a particularly vulnerable situation;
·     I am in an alien environment and experience serious difficulties, technical and psychological, in submitting my application to Australian government in a language not my own; and particularly
·     I have to understand huge mental and psychological pressure when I have to face an irresponsible officer like (name of member) constituting the respondent,
Unfortunately I never ever believed that the Tribunal member is a qualified member who has necessary knowledge, experience and understanding of my particular difficulties and needs when she considers my application.
The short answer to this complaint is that, as a matter of law, no special qualifications are legally prescribed as conditions of appointment to the Tribunal, which is made by the Governor General under s.459 of the Migration Act. The qualifications pointed to by the applicant may indeed be desirable, and their desirability might be explained further in the UNHCR handbook to which counsel for the Minister referred me, however, these are not statutory requirements for the valid exercise of power by a Tribunal member.
For this reason, there is no purpose in my conducting an investigation as to this particular Tribunal's satisfaction of the attributes described by the applicant. In any event, on the material before me I am not able to give any substance to the criticisms of the applicant.
The third ground of review claims that “the significant mistake in the refusal decision” was the conclusion of the Tribunal that the applicant had arrived in Australia on "an MFA passport" and not a "PSB passport" such as is "issued to ordinary citizens and private students”. The Tribunal says that "the MFA passport (also known as the official or public affairs passport) is issued to those travelling overseas in an official capacity”.

The Tribunal’s reasons do not explain why it reached its conclusion about the passport, but it was presumably from something appearing from its examination of the passport. It is clear that the Tribunal put its opinion to the applicant in the course of the hearing, and it has recorded that both the applicant and his advisor insisted that he really had a PSB passport. The Tribunal records that "It replied that the face of the document indicated that it was an MFA passport and not a private one."
The Tribunal later refers to this matter as one of many aspects of the applicant’s case upon which it based its final conclusion that the applicant had no subjective fear of persecution.
I accept the submission of counsel for the Minister that if the Tribunal erred in this respect it was an error of fact which did not amount to a jurisdictional error vitiating the Tribunal's ultimate decision. On that analysis, it is not necessary for me to investigate the truth or otherwise of the Tribunal's factual conclusion about the passport.
I have above dealt with all the points raised by the applicant in his application and, I think, at the hearing.
For the reasons given above I consider that I must dismiss the application.
RECORDED : NOT TRANSCRIBED

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 1 March 2005