SZEYB v Minister for Immigration

[2005] FMCA 1402

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEYB v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1402

MIGRATION – RRT decision – Chinese feared prosecution for assisting Falun Gong practitioners – claims disbelieved – whether inconsistencies sufficiently put to applicant – no errors in Tribunal reasoning – application dismissed.

Migration Act 1958 (Cth), ss.422B, 424A, 424A(1), 424B, 441A(4), 441C(4), 474, 474(1), 483A
Migration Regulations 1994 (Cth), reg.4.35(3)

Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12
Murphy v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 135 FCR 550
NADK of 2002 v Minister for Immigration& Multicultural & Indigenous Affairs [2002] FCAFC 184
Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476

Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30

VNAA v Minister for Immigration& Multicultural & Indigenous Affairs (2004) 136 FCR 407
Wu v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 221

Applicant: SZEYB

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2238 of 2004

Judgment of: Smith FM

Hearing date: 8 September 2005

Delivered at: Sydney

Delivered on: 8 September 2005

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Ms S Mason

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The Tribunal be included as second respondent, and note the undertaking by the solicitor for the first respondent to file a submitting appearance by the second respondent. 

2. The application is dismissed. 

3. The applicant must pay the first respondent’s costs in the sum of $3,450. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2238 of 2004

SZEYB

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 1 June 2004 and handed down on 28 June 2004.  The Tribunal affirmed a decision of a delegate who refused to grant a protection visa to the applicant. 

2. The Court’s jurisdiction under s.483A is subject to limitations on its powers under s.474. These have the effect that I cannot set aside the Tribunal decision and send the matter back to the Tribunal unless I am satisfied that the decision was affected by jurisdictional error (see Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476). I do not have power myself to decide whether the applicant should be believed nor whether he qualifies for a refugee visa or any other permission to stay in Australia.

3. The applicant arrived in Australia in January 2004, and on 1 February 2004 he applied for a protection visa assisted by a migration agent, Ms Christina Zeng.  A statement attached to the application contained his claims for protection under the Refugees Convention against being returned to his country of nationality, The People’s Republic of China.  The applicant claimed that he had arrived in Australia on a passport showing a false name with a visa to enter Australia.  He presented that passport and also his true passport to the Department and later to the Tribunal. 

4. The applicant’s statement said that the reason for his coming to Australia on a false passport was “that I was prosecuted by Chinese Communist Party and it was impossible to leave China with my true passport”.  He said that he had conducted a “seafood products business” in China and had come to know some fishermen.  He said: 

   My wife got some health problems a few years ago, so she joined the exercise to improve her health.  That’s how she came to know many Falungong members and became good friends with them. 

   Since the crack down of Falungong in July 1977 by the Chinese government, the organization was forced to go underground. 

   
   

   I was warned by the police not to participate in Falungong.  In fact the Falungong members are all good people and they haven’t committed any wrong doings.  I don’t understand why the Communist Party hates it so much.  Maybe it is because the organization is flourishing all over the world and the government fears that it becomes uncontrollable when all its members are united.  The government certainly was determined to eliminate the organization.  I personally witnessed many Falungong members put in prison and tortured for no reason at all.  Many members asked my help to avoid the prosecution by fleeing out of China to Taiwan or some other areas.  In the past few years, I introduced them to a few of my fishermen friends, and help more than ten Falungong practitioners escaping from the prosecution of Chinese government. 

   Yet in December last year, a Falungong member who tried to flee China was caught by the Chinese police together with one of my fisherman friend.  They were bitterly tortured and were forced to give out my name and list of Falungong members who had fled with my help in the past few years. 

   The police went immediately to my house and tried to arrest me.  It was only by luck that [I] was out of town on a purchase. 

   
   

   A friend who had good relationship with local police passed me a warning to stay away from home.  I understand that if I was arrested, I will be sentenced to jail.  And as China was having a tense relationship with Taiwan, maybe I would be charged with reason and collusion with Taiwan independence activists.  If so the least sentence for me would be eight or ten years, if not the death.  I heard that the above‑mentioned two friends was accused of such charges and were sentenced to 10 and 12 years each. 

   
   

   I hide at the home of a Falungong practitioner in (locality) for nearly a month, before I fled to Hongkong, with some other Falungong members’ help, through waterway in a freezing night.  In Hongkong, with the help of local Falungong people.  I used a Chinese passport named YC to pass the police examination and flew to Australia accompanied by a Falungong member.  That friend left Australia after helping me settled down. 

5. A delegate refused the application on 10 February 2004, and the applicant applied for review by the Tribunal on 1 March 2004.  His application nominated his agent as an “Authorised Recipient” to receive correspondence and gave as his own mailing address a post office box at Auburn and also gave a home address at Auburn.  

6. The applicant attended a hearing on 13 May 2004.  A transcript of what happened is not in evidence before me.  There is a description of evidence given by the applicant in the Tribunal’s reasons, but I consider that it does not purport to be a complete description of all that was said.  I say this, because there are references in the Tribunal’s reasoning which suggest that some inconsistencies which the Tribunal detected between the applicant’s oral evidence to the Tribunal and his previous written statement might have been put to the applicant in the course of the hearing.  However, the Tribunal’s reasons are unclear about this and I am unable to form any conclusion in the absence of the transcript.  It is possible that the inconsistencies were not put to the applicant in the course of the hearing. 

7. However, the Tribunal did write a letter after the hearing dated 14 May 2004 which, the evidence before me suggests, was posted addressed to the applicant at his mailing address with copies to his home address and also to his agent.  The body of the letter said: 

   The Tribunal has information that would, subject to any comments you make, be the reason, or part of the reason, for deciding that you are not entitled to a protection visa. 

   The information is as follows:  At the recent hearing you alleged that you did not know any practitioners of the Falun Gong except for your wife who occasionally practices Falun Gong, and the owner of the restaurant that you used to sell fish to.  But in your statement provided to the Department in support of your application you claimed that you had personally witnessed many Falun Gong members put in prison and tortured for no reason.  When the Tribunal asked you if you have had any dealings with members of the organisation you said you had not, and that you only introduced people wanting to leave the fishermen and you did this as a favour to friends for their Falun Gong relatives.  You also said that when you first arranged for people to leave the country you did not know that they were Falun Gong members.  This is inconsistent with your claims in your written testimony that ‘many [Falun Gong] members’ asked for your help to avoid prosecution by fleeing out of China [to] Taiwan or to some other overseas country. 

   The Tribunal invites you formally to explain in writing the inconsistencies in your claims.  Please note that you have seven days (7) days within which you must provide the information required. 

   This information sought from you is important because the Tribunal’s decision will be based in part on the information you provide. 

   You are invited to comment on this information.  Your comments are to be in writing and in English.  They are to be received at the Tribunal by 8 June 2004. 

   IF YOU DO NOT GIVE COMMENTS BY 8 JUNE 2004 THE TRIBUNAL MAY MAKE A DECISION ON THE REVIEW OF YOUR CASE WITHOUT FURTHER NOTICE. 

8. Although the letter does not refer to any statutory duty on the Tribunal in relation to inviting comments, such a duty if it existed would arise under s.424A(1) of the Migration Act. If there was a duty, then the evidence suggests that the procedures for sending the invitation under s.424B, and the service provisions of the Act and Regulations which that section invokes, were probably complied with (see ss.441A(4), 441C(4) and reg.4.35(3)). I am certainly not persuaded that they were not complied with. The effect of these provisions is that the applicant is deemed to have received the letter. I note that any issues about the sending of this letter had not been foreshadowed prior to the applicant’s oral submissions made to me today, and in the circumstances I would not draw adverse conclusions from any gaps in the evidence presented by the Minister.

9. The applicant today claimed for the first time that he had not received this letter.  However, he has not presented sworn evidence of this despite being directed to file affidavits.  Nor was he able to explain to me why none of the three copies of the letters came to his attention.  He has not led evidence from his agent as to her receipt of the letter nor to explain why on 18 May 2004 she wrote to the Tribunal indicating that she was “withdrawing from representing” the applicant. 

10. However, assuming that the applicant did not in fact receive the letter, I do not consider that this would give rise to jurisdictional error affecting the Tribunal’s decision. In the present matter, s.424A was an exhaustive statement of the requirements of the natural justice hearing rule in relation to the putting of adverse material to an applicant (c.f. s.422B and Wu v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 221 at 227‑228 and Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572 at [132] and [139]). As I have indicated, the conditions attaching to the performance of the statutory duty to invite comments were satisfied by the despatch of the letter, and the effect of the deemed‑receipt provisions is that the applicant cannot complain by reason of actually not receiving it (c.f. VNAA v Minister for Immigration& Multicultural & Indigenous Affairs (2004) 136 FCR 407 at [14‑15], NADK of 2002 v Minister for Immigration& Multicultural & Indigenous Affairs [2002] FCAFC 184, and Murphy v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 135 FCR 550 at 564).

11. The effect of s.422B is that the applicant cannot complain of a failure to follow procedures required by “common law procedural fairness” in relation to the matter if there was compliance with the statutory duty. In any event, I do not consider that the inconsistencies to which the Tribunal referred would have been required to be put to the applicant in any manner under “common law” principles of procedural fairness, since they were points arising from the Tribunal’s assessment of the applicant’s own evidence and there was nothing surprising about that assessment.

12. Turning from a consideration of the procedures followed by the Tribunal, to consider its reasoning concerning the merits of the applicant’s claims, I note that the Tribunal presented both a primary and an alternative reason for affirming the delegate’s decision. 

13. The Tribunal’s principal reason was its finding on the applicant’s credibility, in particular concerning his claimed association with Falun Gong and its practitioners.  The applicant relied upon this association to give a Convention character to the prosecution which he feared if he returned to China.  The Tribunal’s reasoning appears in the following two paragraphs:  

    The Tribunal accepts that in many instances it would be difficult to expect an Applicant’s oral testimony to be identical with his written testimony, however, where an Applicant’s written testimony exhibits a significant level of inconsistencies with his oral testimony, then in the absence of any rational explanation as to these inconsistencies, the credibility of the Applicant’s testimony becomes dubious.  In the present case the Tribunal finds it implausible that the Applicant can, on one hand, suggest that he did not know the destination of the people he was assisting, and the other hand, suggest that he was assisting such people to leave for Taiwan.  The Tribunal also notes that the Applicant on one hand says that he did not know of any Falun Gong practitioners, and had no dealings with any Falun Gong practitioners, but claim[s] in his written testimony that he had witnessed many Falun Gong practitioners being tortured. 

    In view of the several inconsistencies in the Applicant’s claims, the Tribunal does not accept the credibility of the allegations.  On the evidence, [the] Tribunal is not satisfied that the Applicant in fact assisted any Falun Gong practitioners to leave China as he claims.  The Tribunal is accordingly not satisfied that the Applicant is a person who is wanted by the Chinese authorities for the reasons that he alleges.  The Tribunal finds that the Applicant does not have a well‑founded fear of persecution based on a Convention reason. 

14. I can find no error in the Tribunal making that assessment of the applicant’s credibility which could give rise to jurisdictional error.  

    
    

    I consider that was open to the Tribunal on the material that the Tribunal had before it. 

15. The applicant sought to persuade me that the Tribunal’s finding on his credibility was wrong, and that he should in fact be believed.  However, as I have indicated to him, the principles of judicial review make my opinions on the matter irrelevant once I am satisfied that the Tribunal’s reasoning was open to it as a matter of law. 

16. Given that I can find no flaw in the Tribunal’s principal reason for affirming the decision, it is unnecessary for me closely to examine its secondary reasoning.  This was based on an assumption that the applicant should be believed, at least so far as fearing persecution by the authorities for assisting people to depart China illegally.  The Tribunal reasoned that if this was accepted, then his actions would not amount to more than a breach of generally applicable criminal laws in China concerning illegal people smuggling.  The Tribunal said: 

    Assisting or organising to smuggle people [out] of China regardless of their religious affiliations is a conduct that may be in breach of the criminal law of the country.  To flee from the consequences of such a breach does not make the Applicant a refugee for the purposes of the Convention. 

17. The Tribunal then refers to legal authorities, and shows that it was aware that its general proposition needed to be examined in the light of the particular circumstances, since at times a criminal prosecution can take a Convention complexion, in particular, where it involves a discriminatory application of general criminal laws.  However, the Tribunal did not consider that such a complexion could be found in the circumstances which it was prepared to assume when following this secondary line of reason.  If it were relevant for me to examine this reasoning, I am not persuaded it revealed any misconception of law amounting to jurisdictional error. 

18. I have above dealt with the matters which the applicant addressed me upon in his oral submissions.  However, I should also address the remaining grounds for review which were raised in his written applications. 

19. His original application contained only a list of general heads of judicial review, adopted from a precedent without any apparent effort to relate them to the decision of this Tribunal.  In the absence of particulars, and since they appear to be better canvassed in his amended application, I do not think it necessary for me to go through them. 

20. His amended application raised grounds of judicial review in paragraphs 5 to 9:  

    5.The Tribunal by affirming the decision by the Department of Immigration and Multicultural and Indigenous Affairs, has denied the applicant relief in respect of obtaining permanent residence in Australia.  The applicant if deported because of this decision would be at risk of suffering persecution within the meaning of the 1951 Convention relating to the Status of Refugees and the 1967 protocol relating to the Status of Refugees. 

    6.In making the decision, the Tribunal’s findings of a number of jurisdictional facts was not reasonable. 

    Particulars: 

    (a)The Tribunal’s finding that the applicant was not a person of interest for his activities helping Falun Gong and other dissidents escape PR China to escape persecution, was a finding which it could not reasonably have reached, and is a finding critical to the ultimate conclusion of the Tribunal that the jurisdictional fact of it being satisfied that the applicant had a well founded fear of persecution for a Convention reason was not made out. 

    (b)The Tribunal’s finding that the applicant himself had to flee PR China for fear of being persecuted for helping these Chinese dissidents was a finding which it could not reasonably have reached, and this finding was critical to the ultimate conclusion of the Tribunal that the jurisdictional fact of it being satisfied that the applicant had a well founded fear of persecution for a Convention reason was not made out. 

    7.The Tribunal has ignored relevant considerations in making its decision. 

    Particulars: 

    (a)The Tribunal has not taken or adequately taken into consideration the applicant’s claim that he had previously been and was still sought as a person of interest for helping Falun Gong practitioners and other dissidents escape captivity in China. 

    (b)The Tribunal has not taken or adequately taken into consideration the applicant’s claim, that Chinese government police had gone to his home to arrest him for his alleged activities. 

    (c)The Tribunal has not taken or adequately taken into consideration the fact that there may be flawed memory recall in regarding specific details experienced by the people such as the applicant because of trauma or persecution surrounding the events of the past. 

    (d)The Tribunal has not taken or adequately taken into consideration that in his original application and subsequent hearings, those persons involved in the translations may have misinterpreted the translated material both oral and written.  For example; in the Tribunal’s written decision at, ‘Reason for Decision-The Applicant’s Fishing Business’.  The Tribunal does in fact state; “The Tribunal accepts that in many instances it would be difficult to expect an Applicant’s oral testimony to be identical with his written.

    8.There has been a constructive failure by the Tribunal to exercise jurisdiction. 

    Particulars: 

    (a)The applicant repeats particulars 6 (a) to 6 (b).

    (b)The applicant repeats particulars 7 (a) to 7 (d).

    9.The Tribunal in making the decision has denied the applicant natural justice or procedural fairness. 

    Particulars: 

    (a)The Tribunal failed to acknowledge the fact that the delegate of the Department of Immigration when making his decision on a very complex and detailed submission of claims, made a very hasty decision to refuse the application in a matter of mere days, without first testing those claims at interview or asking for further evidence. 

    (b)The Tribunal failed to acknowledge that the applicant used a false passport to arrive in Australia and in its decision used the fact that he had travelled outside China on numerous occasion[s] on his real passport as an issue in which to manufacture the refusal of the said application.  By this action and interpretation by the Tribunal, it has failed to recognize the fact that he had only recently become a target of the Chinese police in the months just before his departure, which then necessitated the use of a false passport in which to escape detection by the authorities. 

    (c)The Tribunal was or appeared to be biased.  The applicant repeats particulars 9(a) to 9(b).  

1. Paragraph 5 appears to be a re‑assertion of the applicant’s Convention claim without identifying a particular error in the Tribunal’s adverse conclusion.  I do not think I can address it further. 

2. Paragraph 6 argues, in effect, that the Tribunal’s adverse credibility finding concerning the applicant’s involvement with Falun Gong and its practitioners was unreasonable, presumably in a sense giving rise to jurisdictional error (see for example Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 at [9], [36‑37], [81], [128] and [137] and also Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at [38]). However, in my opinion, the reasoning of the Tribunal leading to its credibility finding was rational and was reasonable and was open to it on the material before the Tribunal. I reject these grounds.

3. Paragraph 7 particulars (a) and (b) allege jurisdictional error of a similar character.  I think they amount to no more than arguments challenging the merits of the Tribunal’s assessment of the evidence.  The matters referred to were implicitly addressed and rejected by the Tribunal in its credibility finding which I have extracted above. 

4. Ground 7 paragraph (c), in my opinion, does not raise a ground with relevance to the present Tribunal’s reasoning.  The applicant has not pointed to any claim raising issues about his having flawed memory recall, and I do not read the path of the Tribunal’s reasoning as requiring it to reflect on the matter.  Its reasoning compared versions of events given by the applicant, and found them so inconsistent that it could not accept the applicant as a truthful witness generally in relation to his claims relating to assistance to Falun Gong practitioners.  It was open to it to do this. 

5. Ground 7 paragraph (d) is unsustainable in my opinion in the absence of any evidence before me that there were mistranslations of evidence given to the Tribunal. 

6. Ground 8 must fail based on my rejection of the previous grounds.  

7. Ground 9 paragraph (a) alleges that there was a denial of procedural fairness due to failures by the Tribunal to make certain findings in relation to the delegate’s reasoning and processes.  However, it was no function of the Tribunal when conducting its review to make such findings nor to enter into an examination of those issues.  Its failure therefore cannot be a denial of procedural fairness nor any other jurisdictional error. 

8. Ground 9 paragraph (b) appears to contain two separate complaints.  The first is that the Tribunal failed to address the implications favouring the applicant’s refugee claims from the fact that he used a false passport to arrive in Australia.  However, I am not persuaded that the Tribunal did not consider those facts.  It refers to them in the course of its narrative of the evidence.  It does not say that it rejected the claim that this happened.  In my opinion, it was not bound by its duties to review the applicant’s claims to find that his use of a false passport proved the truth of his story as to how he came to use it.  I do not think there was any jurisdictional error in the Tribunal’s treatment of this matter. 

9. The second complaint suggests error by the Tribunal in its use of “the fact that he had travelled outside China on numerous occasions on his real passport”.  The Tribunal refers to evidence of this in its background narrative, but I am unable to identify in its reasoning any point at which it used that information adversely to the applicant.  I do not read its reasons as showing that it failed to recognise that this travel happened before the incidents which the applicant claimed to have caused him to need to use a false passport. 

10. Since I do not consider that any of the complaints raised by grounds (a) and (b) in paragraph 9 are made out, the basis for the claim of bias which appears to be related to those allegations has not been made out either.  The applicant has pointed to no other material before me upon which an allegation of bias could properly be made, and I reject it. 

11. For the above reasons I have not been able to identify either for myself or on an examination of the grounds argued by the applicant any jurisdictional error affecting the Tribunal’s decision. The decision is therefore a “privative clause decision” for which relief is barred by s.474(1) of the Migration Act and I must dismiss the application.

    RECORDED  :  NOT TRANSCRIBED

I certify that the preceding thirty‑one (31) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  30 September 2005