SZEGI v Minister for Immigration - [2005] FMCA 229

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEGI v MINISTER FOR IMMIGRATION

[2005] FMCA 229

MIGRATION – RRT decision – Chinese man detained by police – Tribunal found no Convention reason – no error found.

Migration Act 1958 (Cth), ss.422B 424A(1), 424A(3), 424A(3), 483A, 429A, Part 8
Judiciary Act 1903 (Cth), s.39B

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264

Applicant:

SZEGI

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 2629 of 2004

Judgment of:

Smith FM

Hearing date:

18 February 2005

Date of Last Submission:

18 February 2005

Delivered at:

Sydney

Delivered on:

18 February 2005

REPRESENTATION

Counsel for the Applicant:

Applicant in Person

Counsel for the Respondent:

Mr J Smith

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

SYG 2629 of 2004

SZEGI

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 24 June 2004 and handed down on 20 July 2004. The Tribunal affirmed a decision of the delegate made on 22 November 2002 which refused a protection visa to the applicant. The applicant had arrived in Australia in September 2002 on a one month business visa and had applied for protection while that visa was current.
The Court's jurisdiction under s.483A is “The same jurisdiction as the Federal Court in relation to a matter arising under this Act”. That jurisdiction in relation to matters such as the present is the judicial review jurisdiction conferred by s.39B of the Judiciary Act 1903 (Cth), but subject to limitations under Part 8 of the Migration Act. As construed in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 those limitations require me to be satisfied that the proceedings before the Tribunal are vitiated by jurisdictional error before I have power to set aside its decision and remit the matter for a rehearing.
I do not have power myself to decide whether the applicant is a refugee or whether his account in which he made claims for that protection was true or not true. I cannot remit the matter merely because I might think that the applicant should have a second hearing.
In the present case the applicant's claims were set out in a four page statement attached to an application which was lodged with the assistance of a migration agent. The Tribunal somewhat tersely, but in my view, sufficiently, summarises the applicant's claims as follows after having earlier in its reasons fully set out that statement:
The applicant’s full claims have been given earlier. In summary he claims that his fiancée and fellow employee suicided in May 2000 following sexual favours provided by her to their employment superior, the factory’s president. The factory was dismissing workers and the favours were given to keep his and her jobs. When he found out about this from her suicide note, he assaulted the president. He was arrested but not charged. When he returned to the factory he had been dismissed. There was no compensation. When he was arrested, the police took the suicide note and promised to investigate. When he returned two weeks later, they denied having seen the note and told him not to make trouble. His subsequent efforts over the next six months to take legal action against the president, failed. He believed that the police were bribed by the president to mistreat him; as proof he saw the president at the police station talking to the police. He took no action through the courts on what he believed to be his wrongful dismissal, as there was no justice in China.
In February 2001, the applicant took part in a demonstration of 100 organised by a former workmate to press for employment opportunities, financial assistance for the unemployed and an end to corruption. The applicant was arrested. No other demonstrator was. He was questioned about his former fiancée, in whose death the police thought he was involved. Another demonstration was staged the next day outside the police station to secure his release. He was beaten and tortured and transferred to the city gaol where he was detained over five months and questioned more on the same matter, Ms X’s death. No charges were laid against him and he did not appear before any court or sentencing body.
When he was released, he was told that the demonstration’s organizer has been gaoled for three years. The applicant was unable to obtain employment because he was believed to be a known trouble-maker and political dissident. He was required to write a monthly report on his activities and to attend political classes. He was otherwise not allowed to leave his home. He decided to leave China and with the help of a friend of his brother’s obtained a passport and visa. He left legally from Shanghai on 18 September 2002. He thus missed his monthly report on 24 September. He was sent a notice to attend a political class and when he did not attend or reply, the police told his parents he was on a wanted list, which meant that if he returned to China we would be immediately arrested.
The Tribunal's reasons contain a description of the applicant's evidence given when he attended a hearing before the Tribunal in October 2003. The transcript of that hearing has not been put into evidence by either party in today's case and I have no reason not to accept the Tribunal's description, but I must bear in mind that it does not purport to be a complete description of what happened and what was said.
It appears to me, however, that the Tribunal did sufficiently put to the applicant all the issues that the Tribunal discerned arising from the applicant's claim and the Tribunal's understanding of relevant country information. I am unable to find a failure by the Tribunal to accord to the applicant any procedural right of fairness to which he is entitled under the provisions of Part 7 Division 4, that is s.422B through to s.429A. Those provisions are in this matter required to be regarded as “an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with”.
In particular, it is now well-established that the applicant's entitlement to be given notice of general country information which the Tribunal proposes to take into account is a matter dealt with by s.424A and is expressly excluded under s.424A(3) (see Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264).
The Tribunal's reasons for concluding that the applicant did not have a well-founded fear of persecution should he return to China were essentially as follows.
The Tribunal accepted the applicant's account of being dismissed from his employment following his assault on the president of his employer in circumstances described by him. Somewhat oddly, the Tribunal commented that his dismissal was not an unreasonable action for any employer, but the rationality of this observation is not a matter that would vitiate its conclusion.
The Tribunal thought that the applicant could have had access through labour Courts for redress of his wrongful dismissal complaint. It seems to have accepted that the applicant failed to get redress from the police due to the intervention of the employer president, although its findings in this respect are not entirely consistent. Its conclusion on whether these events showed persecution for a Convention reason was:
The Tribunal finds that the motivation of the President was not, in whole or part, motivated by the political opinion, real or imputed, of the applicant, nor was other Convention based reason raised by the evidence in relation to any of his suicide related claims.
The Tribunal then addressed the real crux of the applicant's claim for protection, which was his claim to have become a person of political interest to the Chinese authorities subsequent to his dismissal from his employment. The Tribunal accepted that he was arrested following a demonstration, and appears to have accepted that he was beaten and tortured and detained for nearly five months. Certainly it does not find that these events did not occur. However, the Tribunal concluded that, because the applicant said at the hearing that during his detention he questioned “over what was claimed to be a suicide”:
the detention (if it occurred) was not for reasons of his political opinion. Rather it was for criminal investigation purposes. If he was being persecuted, the Tribunal finds that the essential and significant reason for that persecution was not Convention based.
I understand the Tribunal's reference to essential and significant reason to be a reference back to s.91R sub-s paragraph (a). I think that finding was open to the Tribunal on the evidence which it appears to have had.
The Tribunal then addressed the applicant's claims that after his release he was required to provide monthly activity reports and attend political classes, and that he had his movements restricted. The Tribunal decided that it “does not accept the applicant's claims about providing monthly activity reports to the authorities, having to attend political classes and having his movements restricted”. It said that such reporting arrangements “are consistent with the independent evidence on China which the Tribunal accepts for persons released after serving sentences imposed by Courts or administrative tribunals”. However, it said that, on the applicant's evidence, he was never charged or appeared before a Court or Tribunal and he did not know why he was released. Therefore, in the Tribunal's opinion: “those post-sentence arrangements would not apply”. In short, the Tribunal considered that in China only persons who have been sentenced are made subject to reporting of the sort claimed by the applicant, and that he should be disbelieved because he did not claim to have been sentenced.
I explored with counsel for the Minister the logic of this reasoning. I accept that an irrationality such as might vitiate the Tribunal’s conclusion, cannot be found if it is possible that there was some evidence before the Tribunal that the described reporting conditions are only imposed on people who have been released after serving sentences and not on people who have not served sentences, been charged or been sentenced. I am unable on the material put before me or the submissions that have been made by the applicant to conclude that it was not open to the Tribunal to have that view as to the relevant circumstances in China. I therefore consider that the Tribunal's reasoning has not been shown to be vitiated by irrationality amounting to jurisdictional error in relation to its critical conclusion.
That critical conclusion then led the Tribunal to conclude that, because the applicant had not been required to report, it should not accept his claim that he had been confined to his home. He therefore was not within the class of persons whose exit from China was controlled, and it was unlikely that he had been a person of adverse interest to the police at the time of his exit. It also followed that he could not have missed attending political classes and therefore could not have been on a wanted list. The Tribunal concluded: “As his being on a wanted list is centred on his non-attendance, the Tribunal does not accept his wanted list claim or his arrest on return claim.”
The Tribunal addressed a broader claim that the applicant was a person of political interest to the Chinese authorities, and rejected it on the basis that there was no evidence of political activity by him and that: “his evidence was that the only police questioning was about the suicide”.
Although I have not found the Tribunal’s over-all reasoning entirely persuasive at a factual level, I cannot find jurisdictional error in its reasoning nor in its procedures.
The application filed in this Court contains four pages of what purport to be particulars of grounds of judicial review, and these appear to have been repeated in a six page amended application filed on the direction of the Court. The applicant today has read from a document making further submissions that repeats the claims made in the amended application. He says that he wrote the document, but I am far from convinced that he did or that he understands what he read. He told me that he had not had the Tribunal's reasons read to him and could not show me where the errors that he had complained about appeared in the Tribunal's reasons.
I have attempted to understand the pleaded grounds as well as I can, but shall not attempt to provide a minute analysis.
The principal complaint made at the start of the amended application and in the applicant's oral submissions was that the Tribunal was in breach of s.424A(1) by failing to provide the applicant with: “complete ICI information at any time during its processing, neither before the hearing nor during the hearing, nor after the hearing before the Tribunal”.
As I have indicated above, on the material before me the Tribunal did endeavour to put to the applicant the gist of what it regarded as relevant information about the relevant situation in China. In any event, as I have also indicated, on the authority of NAMW the Tribunal was under no obligation to do more than it did.
A second complaint made and repeated in the applicant's submission today was a general claim that the hearing was not fair because the Tribunal frequently interrupted, the applicant was not given an opportunity to explain, he was questioned in a harsh manner and there was an inadequate interpreter.
These are allegations frequently made in this Court in these terms. In the absence of evidence presented by the applicant, and of any support for them appearing from the papers before me, I consider that these claims have no foundation.
A third complaint which I extract from the amended application is that “The Tribunal has obviously neglected the facts” in relation to a number of aspects of the applicant's claim which are identified in the pleading. I consider that these take the complaint no further than criticisms of the Tribunal's factual conclusions on the evidence put forward. In my view, the Tribunal has been fully aware and has attempted to deal with all of the elements of the applicant's claims.
A fourth complaint is that “it is obviously my suffering in the past was solely owing to the fact that I have been regarded as a person to stir up large protest against the Chinese Government” and that the Tribunal failed “to accurately fully and carefully consider all of my claims”. As I have indicated I do not accept that this complaint identifies a ground of jurisdictional error which is established on the material before me.
There is then a number of complaints that the Tribunal failed to carefully and fairly consider the applicant's claims based on procedures and criteria found in the UNCR handbook on procedures and criteria for determining refugee status. I consider that these complaints are misconceived since it is well-established that the Handbook is not part of Australian law as a set of rules which a refugee decision maker is obliged to apply. A failure to meet a procedure or policy identified in the Handbook of the type identified by the applicant does not amount to jurisdictional error on the part of the Tribunal. Is it therefore not necessary for me to address the details of the complaints made by reference to the Handbook.
For the above reasons I am obliged to dismiss this application and I do so.
RECORDED : NOT TRANSCRIBED

I certify that the preceding twenty six (26) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 9 March 2005