SZECH v Minister for Immigration - [2004] FMCA 1001

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZECH v MINISTER FOR IMMIGRATION

[2004] FMCA 1001

MIGRATION – RRT decision – Chinese national detained after labour demonstrations – no material error found in Tribunal reasoning.

Judiciary Act 1903 (Cth), s.39B

Migration Act 1958 (Cth), ss.483A, Part 8

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Minister for Immigration and Multicultural Affairs v Singh (2002) 209 CLR 533

Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264

Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476

Applicant:

SZECH

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG2415 of 2004

Judgment of:

Smith FM

Hearing date:

9 December 2004

Last Submission:

9 December 2004

Delivered at:

Sydney

Delivered on:

9 December 2004

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the Respondent:

Mr J.A.C. Potts

Solicitors for the Respondent:

Clayton Utz

ORDERS

Application dismissed.
Applicant to pay the respondent’s costs in the sum of $4000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2415 of 2004

SZECH

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application invoking the Court’s jurisdiction under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which challenges a decision of the Refugee Review Tribunal (“the Tribunal”) dated 31 May 2004 and handed down on 28 June 2004.
The applicant had arrived in Australia on 24 February 2004 and applied for a protection visa shortly thereafter. His application was refused on 10 March 2004 and the Tribunal affirmed this decision on 28 June 2004. He has brought an application to this Court speedily after that.
The jurisdiction of this Court under s.483A is “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. In matters such as the present the jurisdiction is found in s.39B of the Judiciary Act 1903 (Cth) subject to limitations under Part 8 of the Migration Act. As interpreted by the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476 and subsequent cases, Part 8 does not allow the Court to set aside a Tribunal decision and to order a rehearing unless the Court is satisfied that the Tribunal decision or procedures were affected by jurisdictional error.
The present applicant’s claims were put forward in his visa application and to the Tribunal with the assistance of a migration agent.

A statutory declaration attached to his visa application set out an account of events concerning the applicant in China during 2003 which he claimed gave rise to a fear of persecution on a Convention ground if he returned to China. His claims were sufficiently summarised by the Tribunal in its reasons as follows:
Claims in his protection visa application
The Applicant claims he was born in the People’s Republic of China and he is ethnically Chinese. He also claims that he was unemployed from September 1973 until December 2002 and April 2003 until February 2004, and was in detention in August – September 2003.
The Applicant claims that in the middle of December 2002 he signed a labour contract with the K. Municipal Construction Corporation as one of 200 labourers to build a new highway, and he worked hard in difficult conditions with bad food and insufficient sleep over winter, sometimes in dangerous conditions. He claims by the end of January 2003 he and some other labourers requested a holiday but this was refused, were denied payment until the end of the project, and they were threatened with dismissal “if we continually made troubles”.
The Applicant claims that on 31 March 2003 they were informed their jobs had been completed and a professional construction team was taking over, and they were taken to their homes and promised payment within a month but nothing happened notwithstanding repeated visits to the company’s headquarters as it was claimed the company was suffering financial difficulties. He claims on 1 May 2003 Mr J., Mr W. and 8 or 9 others gathered at his home and decided “to organise public protest for our normal rights”. He claims on 8 May 2003 they took three groups of labourers who had worked on the project (about 100 in all) and surrounded the company’s headquarters “asking to make our payment immediately”. He claims that it was initially a peaceful demonstration with slogans seeking a meeting with senior managers of the company but, at the end of the day as they had not come out to talk to them, so claims “we finally lose control, and rushed into the office of the General Manager and also had big fighting with securities of the company” and this prompted the company to negotiate. The Applicant claims that Mr J., Mr W. were elected representatives and they started negotiations on 12 May 2003 and after 3 days the company agreed to pay their salaries in three payments, the first of which they received and the second was promised for the end of June and July respectively. However, he claims that Mr J. and Mr W. were arrested by the PSB in the middle of July 2003 for organising an illegal gathering and demonstrations, so he contacted a “good friend” in the PSB, Mr G., who a week later advised that “the General Manager of the company had colluded with senior leaders of the PSB to trap Mr J. and Mr W. “ … solely for the purpose to give our labour a threat” and both confessed “unfair allegations under inhumane torture by the police during the interrogation”, and were then sent to a labour farm.
The Applicant claims he had disliked the government for a long time but had never expected to see such an “unfair matter”, so he decided to organise a demonstration and on 1 August 2003 he led more than 100 labourers in the main street of K. and demanded in the front of the PSB building the release of J. and W., issuing pamphlets and gathering a crowd. He claims that Mr G. told him on the telephone that night that the PSB planned to arrest him and advised him to leave but he “never thought that I had made any mistakes” and did not leave but early the next morning he was arrested by the police and was detained by the PSB until 31 September 2003. He claims he refused to make a confession and “insisted I was wrongly treated” and refused to sign any documents “even though I was physically and mentally tortured”. He claims that over this period Mr G. and his wife tried to get him released and he was finally released at the end of September. He claims that he continued to contact the labourers to both try and get their money back but also “trying to sue those corruptive government officials and policemen” which Mr G. and his wife thought was dangerous and he would sooner or later again be subjected to persecution so they secretly arranged his trip overseas. He claims he has been classified as a “person who should be strictly restricted by the government”, the PSB has set a new trap for him, but he “got a chance to leave the country before the PSB intend to arrest me”.
These claims were explored with the applicant, and the Tribunal’s reasons contains a five page description of what occurred at the hearing. The transcript is not before me in evidence and there is no reason for me to doubt the correctness of the Tribunal’s summary.
I consider that a fair reading (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272) of the Tribunal’s reasoning shows that it provided two independently operating reasons for affirming the delegate’s decision.
The Tribunal’s first reason was that the aspects of the applicant’s claims of past persecution which it accepted did not amount to persecution for a reason described in the definition of “refugee” in Article 1A(2) of the 1951 Convention relating to the Status of Refugees.
The Tribunal’s reasoning in this respect was:
The Applicant does not claim that he had experienced any Convention related difficulties of any sort until he started the job as a labourer for the K. Construction Corporation in December 2002. He claims he worked in difficult conditions; was retrenched on 31 March 2003 but was not paid; so on 1 May 2003 a group gathered at his home and decided to have a protest at the factory which was held on 8 May 2003; after a peaceful start, the protest became violent and they forced their way into the general manager’s office and fought with the security guards; as a result, negotiations were held and the company agreed to pay the back-pay in three instalments but in the middle of July 2003 the leaders of the demonstrators (J. and W.) were arrested; and he then organised a demonstration. The Tribunal accepts that the Applicant was involved in these events and, more specifically, was involved in the demonstration and forceful invasion of the K. Construction Corporation office and attack on the security guards. As a result of this violent incident, the Tribunal also accepts that the Applicant was held from on 1 August 2003 until 31 September 2003 for his participation in these events, including the attack on the security guards, but has not been able to satisfy itself that his nearly two month detention was serious harm amounting to persecution for a Convention related reason. In his protection visa application he claims when in detention he refused to make a confession and “insisted I was wrongly treated” and refused to sign any documents “even though I was physically and mentally tortured”. However, the Applicant did not repeat these claims at the hearing despite being given the opportunity to do so and even though he made a point of again claiming that W., who he claims he had worked with a lot since 1973, was tortured in detention and was released from detention at the end of November and died on 8 December 2003 of illnesses he had incurred in detention as he could not afford a doctor. Nor does he provide any evidence to support this claim such as a copy of a detention order or any medical evidence that he was mentally or physically abused while in detention such as a doctor’s certificate or copy of a medical report or even letters from friends or relatives. In his application for review, the Applicant claims in response to the Delegate’s decision that he could not provide any documents as political dissidents are treated differently to criminals as normal legal procedures are not used; they do not have legal assistance; they and their relatives are never given the original copy of the documents and, even if he had such documents, ti would have been “very dangerous” to bring them out (especially passing through customs); “all my personal documents have been taken away by the police”; and, in any event, documentary evidence should not be treated as the criteria for credibility as “it is much easy to get false documentary evidences in the streets of that country”. Notwithstanding these claims, the Tribunal is satisfied that if he had been subjected to serious harm amounting to persecution for a Convention related reason (his actual or imputed political opinion because of his involvement in the demonstrations as opposed for example to being held in detention for involvement in a violent attack of a company office and its security personnel), the Applicant would have been able to either bring out some corroborative documents or even have had them sent to him after his arrival in Australia, but accepts that he has not done so. (emphasis added)
I had concerns about the Tribunal’s reasoning revealed in this paragraph which I explored with counsel for the Minister. In my view, the Tribunal would have misunderstood the effect of the Convention definition if it refused to characterise the applicant’s detention without charge for two months, which it appears to have accepted, as not being capable of amounting to “persecution”, even when this is read with s.91R(1)(b) and (2) of the Migration Act. I do not accept that the fact (in the Tribunal’s opinion) that the detention was not attended by physical and mental torture could take the infringement of rights of liberty out of the character of serious harm as described in subs.(2) of s.91R. If the Tribunal’s reasons are to be read as being based on such a distinction, then it would have made a serious error of law at this part of its reasons.
However, the Tribunal’s reasons are ambiguous. An alternative way of reading the conclusion highlighted in the above passage is that the Tribunal accepted that the applicant suffered detention amounting to “persecution”, but decided that it was not “for a Convention related reason”. Some support for this might appear to be shown by the passage in brackets in the Tribunal’s last sentence, which suggests that it thought the detention was “for involvement in a violent attack of a company office and its security personnel” rather than for a political reason. Although it does not refer to s.91R(1)(a), the Tribunal might have considered that it was required to be satisfied that Convention reasons provided “the essential and significant” reasons for the persecution.
However, there is still difficulty discovering why the Tribunal excluded a political reason as explaining the applicant’s conduct and the response by the Chinese Authorities. If the Tribunal thought that it was enough to characterise the detention as being a detention justified under the general criminal laws of China, without addressing whether there was a political motivation on the part of the applicant for the commission of the crimes or whether on the part of the Chinese authorities their response was politically motivated, then the Tribunal would have erred. The Convention itself recognises that protection might be afforded for someone who has committed non‑serious “political” crimes (see Art.1F(b) and Minister for Immigration & Multicultural Affairs v Singh (2002) 209 CLR 533).
Ultimately, I have decided that I do not need to reach a conclusion on whether the Tribunal made either of the above errors, nor whether its opaque reasoning in the extract above shows other misconceptions when assessing the character of the detention which it accepted to have occurred.
This is because in my view the Tribunal’s reasoning in the subsequent part of its reasons shows that it has proceeded in its alternative reasoning on an assumption that the past events accepted by it did have a political flavour so as to be characterised as being persecution for one or more of the reasons mentioned in Article 1A(2).
In the Tribunal’s second wing of its reasons, it deals with the applicant’s claims which it explored in the course of the hearing, as to what he feared would happen to him if he returned to China. The applicant had expressed the opinion that he would be arrested by the PSB in relation to the past events, and would face prosecution for organising a big demonstration and, due to his political opinions, would suffer other serious harm.
The Tribunal makes findings that it does not accept any of these fears as well‑founded. It says:
Rather, as was put to the Applicant at the hearing, the Tribunal accepts independent country information about exit procedures and Chinese passports and this states that PSB checks of the place of registry would reveal any adverse records held by public security organisations and those whose exit would be harmful to state security in the judgment of the relevant department or council would be denied a passport (CX27863) …
The Tribunal pointed to the ease with which the applicant had left the country with his passport, which had not been seized when his home was searched as claimed, and that he was able to leave China legally on that passport, issued in his name and showing his date of birth, some five months after his release from detention and without claiming he had any difficulty whatsoever. The Tribunal continued:
The Applicant claimed that the PSB did not know he had been granted a visa and his wife helped him, and they (the PSB) did not know exactly where he was going and thought he was going to another part of China but did not expect that he was able to escape overseas. The Tribunal does not accept these claims, and is satisfied that if he was of any interest to the authorities in China (including the police and PSB) because he led a demonstration or for any other reason whatsoever, then they would have cancelled his passport, put him on their alert lists at all airports, and not allowed him to leave China. Further, the Tribunal is satisfied that even if his release from detention was arranged by his friend, and/or he was released early because of corruption and the payment of a bribe, the fact of his being held in detention because of his perceived anti-government activities (organising and participating in demonstrations) would have been known to the authorities and he would have been prevented from leaving China if he had been classified as a “person who should be strictly restricted by the government” and he had come to the “special attention” of the government as he claims. Further, he does not claim that the authorities have visited his wife and family looking for him for any reason (including for the purpose of arresting him). In short, while accepting that the Applicant was involved in a violent demonstration and spent some time in detention because of it, the Tribunal is satisfied that this was not serious harm amounting to persecution for a Convention reason or that the Applicant is of any interest to the authorities in China for a Convention related reason and so is satisfied that he does not have a well-founded fear of serious harm amounting to persecution for a Convention reason if he returns to China.
In my view, the Tribunal in this passage assesses the feared events on return on the assumption that “he was of … interest to the authorities in China (including the police and PSB) because he led a demonstration or for any other reason whatsoever”, that is, that his fears on return are based on a political concern by the authorities in China arising from past events. This assumption is then, in my view, made clear in the last sentence quoted above where the Tribunal refers back to the two wings upon which its conclusion is based, that is, that the applicant’s time in detention “was not serious harm amounting to persecution for a Convention reason” and also that it was not satisfied that the applicant “is of any interest to the authorities in China for a Convention related reason”.
I therefore have not been able to find an error of law which vitiates a material basis the reasoning on which the Tribunal decided to affirm the decision of the delegate. In my view, the Tribunal, in providing its second reason for affirming the decision, has exercised the jurisdiction conferred upon it according to law and without jurisdictional error.
The applicant has, in an amended application, put forward several particulars of two grounds for review:
(1)There was an error of law in the Tribunal’s decision constituting a jurisdictional error; and
(2)There was procedural error in the Tribunal’s decision constituting an absence of natural justice.
The concerns I have addressed above were not raised by the applicant in his particulars, but arose from some difficulties I had in following the Tribunal’s reasoning. Since the applicant was not legally represented, I felt it appropriate to explore them with counsel for the Minister notwithstanding that they had not been identified by the applicant.
The particulars which were provided by the applicant essentially raised three points. The first complained about a failure of the Tribunal to give weight to various factual points. In my opinion, these complaints were complaints about the merits of the Tribunal’s decision and not its legality.

The second point made in his particulars was that there was a failure by the Tribunal to afford procedural fairness and to follow the requirements of s.424A(1) of the Migration Act in relation to country information relied upon by the Tribunal, in particular, concerning exit procedures for Chinese citizens leaving China. The applicant complained that he had not been shown the information and had not been given an opportunity to comment on it before the Tribunal reached its decision. The applicant repeated this concern in oral submissions made to me in the course of the hearing today.
In my view, there is a clear answer to this concern. This is that an applicant cannot rely upon breaches of procedural fairness in relation to an obligation to bring adverse material to the attention of an applicant unless the Tribunal was also under a duty to follow that procedure expressly by reason of s.424A. The exclusion follows from s.422B, which requires that s.424A is “taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters (it) deals with”.
In relation to the country information complained of by the applicant, it is now clear, on the interpretation taken by the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264, that this information was excluded from the Tribunal’s obligation to invite comment by reason of s.424A(3)(a).
The third point raised in the applicant’s amended application, but not developed before me in his oral submissions, complains that the Tribunal decided his case without following policies advised in several paragraphs of the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees. The complaints included that the Tribunal did not “demonstrate its necessary knowledge and experience and such an understanding” of the position of a refugee, that it did not “use all the means at its disposal to produce the necessary evidence in support of the application”, nor “demonstrate that there are good reasons to the contrary” before refusing to give the applicant the benefit of the doubt, and that the Tribunal “failed to demonstrate its sound knowledge of conditions in the applicant’s country of origin”. It is enough for me to say that I have considered all these points raised in the amended application, and am not satisfied that the Tribunal’s reasons reveal any of the failures pleaded.
The applicant’s oral submissions at the hearing today had been written on a piece of paper which was translated directly to the Court by the interpreter. They repeated points I have dealt with above. The only other point made was a complaint that the Tribunal did not arrange nor provide a fair hearing. It was complained that the Tribunal member interrupted, did not give an opportunity to explain, adopted a serious and intimidating attitude and had not read the case carefully enough. I am not satisfied that any of these matters occurred at the hearing, in particular, because there is no evidence before me to support these allegations.
For the above reasons I dismiss the application.
RECORDED : NOT TRANSCRIBED
I order the applicant to pay the respondent’s costs in the sum of $4000.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 24 December 2004