SZFGA v Minister for Immigration

[2005] FMCA 1839

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFGA v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1839

MIGRATION – RRT – Chinese factory worker – claimed persecution for political activities – Tribunal rejected significant claims – no jurisdictional error found.

Migration Act 1958 (Cth), ss.422B, 424, 424A, 424A(3)(a), 474, 483A, Part 8
Judiciary Act 1903 (Cth), s.39B

Dissananayake v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 976
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12
Win v Minister For Immigration & Multicultural & Indigenous Affairs (2001) 105 FCR 212

Applicant: SZFGA

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3638 of 2004

Judgment of: Smith FM

Hearing date: 28 November 2005

Delivered at: Sydney

Delivered on: 28 November 2005

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Ms A Alex

Solicitors for the Respondents: Phillips Fox

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 $1,980.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3638 of 2004

SZFGA

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) which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal dated 26 October 2004 and handed down on 16 November 2004. The Tribunal affirmed the decision of a delegate which refused to grant a protection visa to the applicant.

2. The Court's jurisdiction under s.483A is the same as the Federal Court's jurisdiction under s.39B of the Judiciary Act 1903 (Cth), but is subject to limitations under Part 8 of the Migration Act. The limitations have the effect that I cannot set aside the Tribunal's decision and send the matter back to the Tribunal unless I am satisfied that the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant's claims to be a refugee should be believed, nor whether he qualifies for a protection visa.

3. The present applicant arrived in Australia in May 2004, and applied for a protection visa on 25 May 2004.  In a typed statutory declaration attached to the application he gave his reasons for fearing persecution if he returned to his country of nationality, the People's Republic of China.  He said that he had been working in a factory employing thousands of employees, which had been reformed so as to reduce the number of employees and to require the continuing employees to become shareholders.  He said that from early 2003 he shared opinions with a group of friends that the shareholders were not being given enough control of the enterprise, and that he helped prepare an open letter to all shareholders which was published at the factory and gained the support of many other employees.  As a result, he and his friends were dismissed, but the employer was forced to withdraw the dismissal under pressure from “hundreds of employees” who demonstrated their support.

4. He said that following this experience he become a political dissident in relation to the communist dictatorship, helped organise small gatherings, and made propaganda materials to distribute.  He said:

   During that period I, together with those key members, have been questioned, threatened and warned many times by the Chinese authorities: but I never gave up, because I never think that I have done anything wrong.  What I want is just our basic human rights.  However, Chinese government finally lost its patience.  In the middle of February 2004, Mr XX, a friend of mine, who worked in the Public Security Bureau (PSB) informed me that the authorities of (his city) had issued an internal official document in which the PSB was required to investigate our protests against the government, and particularly to collect evidences of anti-government activity.  Mr XX suggested to me to prepare my trip to go to the overseas in case I was in troubles.

5. Another friend used his contacts to get the applicant a passport and arrange for him to come to Australia.  He said that after his arrival, he was informed by his wife that four of his friends who were in the original protest group had been arrested by the PSB, and that the PSB had searched his home and taken out all his personal documents.  He said: “I have also been informed by Mr XX that I have been on the black list of the PSB”. He said:

   I am very scared, and particularly when Mr XX has informed me that I must be arrested as long as I return to China.  I do not have any other choice but seeking a protection in Australia, because I believe I must be subjected to persecution on my return.

6. A delegate refused the applicant's application on 7 June 2004.  In his statement of reasons, the delegate said that the applicant had provided no substantive evidence to substantiate his claims.  The delegate said:

   I find that there is an apparent anomaly between the applicant's claimed version of events, the relevant country information, and the ability of the applicant to obtain a PRC passport and leave the PRC legally in spite of his purported difficulties with the PRC authorities.

7. The applicant appealed to the Refugee Review Tribunal, assisted by an agent, Priscilla Yu.  A covering submission repeated his claim to fear arrest and imprisonment due to his political opinions, and argued that the delegate had overlooked that “I was not discovered, actually, by the PRC authorities at the time when I left the country”.

8. However, the applicant did not present to the Tribunal any corroborative material to establish the truth of his claims, and did not present the Tribunal with country information in rebuttal of the information relied upon by the delegate concerning exit and passport procedures. 

9. The Tribunal invited the applicant to a hearing, which he attended on 22 October 2004.  The transcript is not in evidence but in its statement of reasons the Tribunal referred to its questioning of the applicant about his background and plans.  The Tribunal said that it indicated to the applicant some of its concerns, including “that it was having great difficulty in accepting that he would talk to his wife about people being arrested on anyone's telephone”.  It also put to the applicant information concerning passports and exit from China. 

   In its reasons under the heading “Findings and Reasons” the Tribunal noted that no evidence had been provided by the applicant.  However, it said that it was willing to give him the benefit of the doubt, and accepted that he was a signatory of an open letter as described by him, and that he had been questioned by the security staff of his enterprise at the time that his dismissal was cancelled.  However, the Tribunal drew the conclusion that “only some 128 people of the more than 4,000 workers” in his factory had been involved in this incident, and noted that he had remained at the enterprise until April 2004, shortly before leaving China. 

10. The Tribunal accepted that there may have been “escalating industrial problems” continuing at the enterprise after he left China, in which he was not involved.  It said:

    In short, while accepting that he was involved in some of the earlier labour issues, the Tribunal has not been able to satisfy itself that his involvement in the open letter had a "tremendous impact on everybody in the enterprise", nor does it accept that the applicant has been one of the key instigators in this industrial dispute.  Given all the above, the Tribunal is satisfied that the applicant has embellished his claims and his role in the disturbances at (his factory) in order to enhance his claim for a protection visa.

11. The Tribunal then addressed the applicant's claims to have become a political dissident, but noted that he did not claim “to have ever become a member of a political party in China, or to have held public office”.

12. The Tribunal then addressed the claim that he had been told by his wife after arriving in Australia that he and his friends had become a focus of attention by the PSB.  It put considerable weight on its opinion that these matters would not have been discussed on a mobile telephone.  It said:

    The Tribunal does not accept these claims, and does not accept that if, as he claims, his house was searched on 13 May 2004 and all his personal documents confiscated - thus indicating a real likelihood that he and his wife were under some sort of PSE surveillance - he would have put his wife's job at (the factory), and more importantly her safety, at risk by talking about such matters and the arrest of Mr F on an international telephone connection to her mobile telephone, even if it was registered in her sister's name.

13. The Tribunal referred to the absence of corroboration of these claims and said:

    Given all the above, the Tribunal does not accept these claims and in particular that Mr F and three of his six other colleagues were arrested and still being held in detention, and his own house has been searched and documents confiscated after his departure for Australia.

14. The Tribunal then indicated that it accepted independent country information, and preferred it over the claims made by the applicant, that “only the high profile leaders in labour demonstrations have experienced any difficulties”.  It said that it was:

    satisfied that while he has been involved in some workplace demands for reform at (his factory), he is not a leader and has not been subjected to serious harm amounting to persecution because of this in the past.

15. The Tribunal then addressed the applicant's claims about obtaining a passport, and again preferred independent country information.  This satisfied the Tribunal that “if he was known to be a dissident in the enterprise, as he claimed, then he would not have been issued a PRC passport to him on 1 March 2004”, and that “if he was a known leader, he would be under surveillance, and this would have been picked up when he applied for a passport or when he left China”. 

16. The Tribunal finally addressed the general situation of the applicant in China on its previous findings, and said:

    The Tribunal accepts that the freedom to express political views and the approach to human rights are considerably different in Australia to China, as is attested by country information (citation omitted).  However, the applicant does not make any further claims in this regard that had not already been dealt with by the Tribunal, and from the Applicant’s claims, the Tribunal has not been able to satisfy itself that he has experienced any difficulty in the past because of his political opinion, actual or imputed, or there is any reason to suspect that there is a real chance he would experience any such difficulty for a Convention reason on this basis if he were to return to China.  Accordingly, the Tribunal is satisfied that the Applicant does not have a well-founded fear of serious harm amounting to persecution for a Convention related reason on this basis if he was to return to China.

    In short, having considered all the claims made by the Applicant, the Tribunal is satisfied that there is not a real chance that the Applicant will experience serious harm amounting to persecution for a Convention related reason if he returns to China, either now or in the foreseeable future, and finds he is not a refugee.

17. I have considered the Tribunal's reasoning and, although at times they are suggestive of some circularity, I consider that it was open to the Tribunal as a matter of law to reject the applicant's critical claims, and that it made no jurisdictional error when doing so. 

18. Essentially, in the absence of any corroborative material being presented by the applicant, the Tribunal had a difficult task of assessing his claims based on their internal credibility and by reference to such country information as was identified by the Tribunal as being relevant. I consider that it did identify all the claims made by the applicant and did address them in its findings.  Other Tribunals might have arrived at different assessments, but I can find no jurisdictional error made by this particular Tribunal.

19. The applicant filed an application in this Court on 14 December 2004.  Its grounds of review have been repeated and a further ground added in an amended application filed on 4 April 2005.  Essentially, four grounds are argued. 

20. The first ground is that the Tribunal: “has an apparent bias towards actual situation in China” and “towards my claims regarding to my wife's information over the phone”.

21. However, the evidence that is presented for such bias amounts only to the fact that the Tribunal arrived at an assessment of the applicant's claims which did not accept significant parts of them.  It was the duty of the Tribunal to make that assessment, and I do not consider that the outcome of its assessment, nor its description in the Tribunal’s reasons, reveals anything which might give rise to a reasonable apprehension of bias by an onlooker.

22. The second ground which I would extract from the amended application is that the Tribunal did not “take necessary steps for seeking independent country information” relevant to the applicant's claims about political protests and other matters. 

23. However, the Tribunal has conducted some investigations and has assessed all the claims put forward by the applicant.  It was, in my opinion, not obliged as a matter of law to conduct any further investigations nor seek to locate any additional or better information concerning country situation (c.f. Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43], Dissananayake v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 976 at [18]; and Win v Minister For Immigration & Multicultural & Indigenous Affairs (2001) 105 FCR 212 at [15], Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20]).

24. The third ground arising from the amended application is that the Tribunal did not direct its findings “in relation to the actual situation complained in my application, because I was not a "wanted person" before my departure, but my situation has been greatly changed since I arrived in Australia”.

25. However, as I have indicated above, in my opinion the Tribunal's reasons show clearly that it was aware that the applicant's significant claims relied on events occurring after he arrived in Australia, and did address those claims.  The complaint, in effect, is that the Tribunal did not accept the claims as true – but that does not show jurisdictional error.

26. The fourth ground which is developed in the amended application is that the Tribunal was in breach of s.424 and s.424A of the Migration Act by failing to invite the applicant to give additional information and comments concerning general country information relied upon by it. However, in my opinion it is clear that this duty is excluded by ss.424A(3)(a) and 422B.

27. I therefore have not identified any jurisdictional error which has been raised by the amended application and which can succeed. 

28. The applicant attended today's hearing, and developed a focused argument identifying three aspects of the Tribunal's reasons which showed error.

29. His first argument addressed the Tribunal’s significant reliance upon a particular piece of country information suggesting that:

    Generally speaking, individuals who have obtained Chinese passports and exit permits to leave China . . . have been thoroughly vetted by the security authority . . . and we assume they would not be on any wanted list if they would return to China.

30. The Tribunal cites this information as coming from a DFAT cable dated 12 February 1998, but in fact in that cable it is quoted as being sourced in an undated “US State Department” source which necessarily preceded the date of the cable.  The applicant criticised reliance on information obtained more than six years before the Tribunal's decision.

31. However, I am not persuaded that the information relied on by the Tribunal was manifestly of no current relevance. I consider that the Tribunal's identification of relevant country information was a matter for its own factual assessment and judgment, and the weight which it gave to this particular cable was open to it within the exercise of its jurisdiction. The Tribunal also referred to other more recent country information, and I am not persuaded that the Tribunal's conclusions which relied upon this particular source reveal reasoning which is “irrational, illogical and not based on findings or inferences of fact supported by logical grounds” (see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [38]).

32. The second argument made by the applicant also, in my opinion, attacked a matter of factual assessment by the Tribunal which was within its jurisdiction.  This was the Tribunal's reasoning for rejecting the likelihood of the applicant’s claimed telephone conversations with his wife.  The applicant's submissions on this, in essence, amounted to a continuing affirmation of the truth of his claims, but, as I have indicated to him, it is not my task to assess the truth of his claims.

33. The third argument made by the applicant was that he felt that during the Tribunal's hearing it did not tell him sufficiently what parts of his evidence the Tribunal member would not accept, and thereby denied him an opportunity to explain further.  However, on the Tribunal's description of the hearing, it did raise its significant concerns with the applicant, and I am not persuaded that there was any further matter which the Tribunal was obliged to canvass with the applicant before arriving at its conclusions.

34. For the above reasons I have not been able to find jurisdictional error affecting the Tribunal's decision. It is therefore a privative clause decision within s.474(1), and I must dismiss the application.

I certify that the preceding thirty four (34) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Iliya Marovich-Old

Date:  14 December 2005