SZFZE v Minister for Immigration and Citizenship

[2007] FCA 296

FEDERAL COURT OF AUSTRALIA

SZFZE v Minister for Immigration & Citizenship [2007] FCA 296

Migration Act 1958 (Cth), ss 424, 424A, 424A(3)(a)

SZFZE v MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR

NSD2122 OF 2006

EMMETT J
14 FEBRUARY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD2122 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZFZE
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EMMETT J
DATE OF ORDER:	14 FEBRUARY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The name of the first respondent be changed to the Minister for Immigration and Citizenship.

2.The appeal be dismissed.

3.The appellant to pay the first respondent’s costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD2122 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZFZE
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EMMETT J
DATE:	14 FEBRUARY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant is a citizen of China.  He arrived in Australia on 8 August 2004 and lodged an application for a protection (Class XA) visa under the Migration Act 1958 (Cth) on 20 August 2004. On 28 September 2004, a delegate of the first respondent, the Minister for Immigration & Citizenship (the Minister), refused to grant a protection visa. On 27 October 2004, the appellant applied to the second respondent, the Refugee Review Tribunal (the Tribunal), for review of the delegate’s decision. On 16 February 2005, the Tribunal affirmed the decision not to grant a protection visa. The appellant was notified of that decision on 8 March 2005.

2. The appellant then commenced a proceeding in the Federal Magistrates Court seeking judicial review of the Tribunal’s decision.  An amended application was filed on 8 June 2005.  On 12 October 2006, the Federal Magistrates Court ordered that the application be dismissed with costs.  On 30 October 2006, the appellant filed a notice of appeal to the Federal Court from the orders of the Federal Magistrates Court.

3. When the matter was called on for hearing this morning, the appellant appeared in person with the assistance of an interpreter.  He made brief oral submissions to the effect that it would be unfair for him to be returned to China, and that it was unfair for him to have been asked to provide evidence that he could not provide.  He made no submissions concerning possible jurisdictional error on the part of the Tribunal.  It is desirable, therefore, to say something about the decision of the Tribunal and the decision of the Federal Magistrates Court.

4. The proceeding in the Federal Court is brought under the pseudonym allocated to the appellant by the Federal Magistrates Court, namely, SZFZE.  However, a central issue before the Tribunal was the identity of the appellant.  In his application to the Tribunal, the appellant stated what was said to be his full name.  I shall refer to that name as “HHH”.  However, in the part of the application form for “Other Names”, such as “Name Before Marriage”, the appellant inserted a different name.  I shall refer to that different name as “ZZZ”. 

5. In his submission given to the Tribunal in support of his review application, the appellant described himself as “HHH a.k.a ZZZ”.  The Tribunal corresponded with the appellant in the name of ‘HHH’.  In particular, by letter of 30 November 2004, the Tribunal invited the appellant to a hearing to give oral evidence and present arguments in support of his claims.  The letter was addressed to an authorised recipient of the appellant but referred to the appellant only as “HHH”.   The response to the hearing invitation, a form prepared by the Tribunal, which was signed by the appellant, referred to the appellant only as “HHH”.

6. In its reasons, the Tribunal noted that the appellant claimed he is ZZZ rather than HHH and that he claimed that he purchased an identification card and household registration booklet in the name of HHH and used those documents to obtain a genuine passport in China.  The appellant claimed that he had never had contact with the real HHH but assumed that the documents that he purchased were genuine.

7. The appellant claimed that he lost the passport that he used to enter Australia and obtained another passport, in the name of HHH, from the Chinese Consulate in Sydney.  He used the same documents that he had used to obtain his passport in China.  The appellant claimed that he has no documents to verify his real identity.

8. The Tribunal accepted the appellant’s claim that he is a citizen of China, but was not satisfied that he presented a truthful account of his circumstances in China.  In particular, the Tribunal was not satisfied that the appellant’s claim to be ZZZ, rather than HHH, was credible.

9. The Tribunal’s reasons record that the appellant claimed that he was unable to bring to Australia, or obtain, documents with his real name, because he was fearful the authorities in China would discover his true identity.  The Tribunal found, however, that obtaining the necessary documents to verify his identity was not a difficult or dangerous task.  The Tribunal was of the view that it would have been a simple matter for the appellant either to bring documents, such as a driver’s licence, with him or to have such documents sent by someone in China after he arrived in Australia.  The Tribunal observed that, when that matter was discussed with the appellant at the hearing, he stated that sending such documents would attract the adverse interest of the authorities.  The Tribunal rejected that claim.  The Tribunal considered there was no plausible reason as to why someone in China sending such documents through the mail to the appellant would attract the adverse interest of the authorities.  The Tribunal therefore formed the view that the appellant had invented an alternative identity to enhance his protection claim.  The Tribunal was satisfied that the appellant’s name is HHH.

10. The Tribunal considered that the appellant’s central claim relied on the premise that he is ZZZ, a person who fled China with the authorities in pursuit.  The appellant did not make any claim that HHH has a well-founded fear of persecution in China for Convention reasons.  Since the Tribunal rejected the appellant’s claim that he is ZZZ and was satisfied that he is HHH and that HHH is a citizen of China who left China using his true identity and documents, the Tribunal rejected the appellant’s claim that he was a person of interest to the authorities in China at the time he left the country. 

11. Nevertheless, the Tribunal then went on to consider the appellant’s claims on the basis that the appellant should be given the benefit of any doubt and on the basis that it accepted that the appellant is in fact ZZZ.  Even then, the Tribunal was not satisfied that the circumstances claimed by the appellant gave rise to a well-founded fear of persecution. 

12. The appellant claimed that, as ZZZ, he stood as a candidate in local government elections in November 2003 but was notified that he did not qualify as a candidate because he did not pass the Government’s political examinations.  He claimed that he subsequently led a protest against the Government’s candidate and encouraged others in his village to boycott the election.  He claimed that all adults living in his village took his advice and boycotted the election, which was then rescheduled. 

13. The appellant claimed that, as a consequence, he was arrested on 16 November 2003, was mistreated by the authorities and forced to confess his involvement in the boycott and his role in leading the protest against the government.  He claimed that he was temporarily released on 24 January 2004 after his father bribed officials and that he immediately fled to another province, acquired a new identity, obtained a passport and left China.  He claimed that his father and wife were mistreated by the authorities after he left and that they were forced to go into hiding.

14. The Tribunal observed that holding political opinions different from those of the government of a country is not in itself a ground for claiming refugee status and that an applicant must show that he has a fear of persecution for holding such opinions.  Information from external sources summarised by the Tribunal in its reasons, which was discussed with the appellant during the hearing before the Tribunal, persuaded the Tribunal that only citizens who actively express views against the government in China are at risk of harm by the authorities.  The Tribunal was satisfied that, while protests against the government in China had become common since the 1990s, only prominent and persistent activists suffer ongoing adverse interest by the authorities.  The Tribunal concluded that, if the appellant was a person who participated in only one political activity throughout his life, he would not be a person of ongoing interest to the authorities in China in the reasonably foreseeable future.

15. The Tribunal accepted the appellant’s claims that persons participating in protest activities against the government attract the adverse interest of the authorities in China and that persons who lead protests against the government are arrested.  However, the Tribunal was satisfied that, if the appellant’s claims of having been arrested in 2003 were to be accepted, the appellant was no longer a person of interest to the Chinese authorities when he was released from prison. 

16. Information from external sources persuaded the Tribunal that persons who are of particular interest to the authorities in China are detained only for so long as they continue to be persons of interest to the authorities.  The Tribunal did not accept as credible the appellant’s claim that the authorities might release political activists from custody while they continue to be persons of interest to the authorities.  The Tribunal found that the appellant’s claim that he was released for New Year celebrations, on the understanding that he return to prison at the end of the holidays, lacked credibility.  The Tribunal rejected the appellant’s claim that the authorities released him from prison at a time when he was a person of interest to them or while charges against him were pending.

17. The Tribunal considered that the more plausible explanation was that the appellant was released from detention because he ceased to be a person of interest to the authorities.  The Tribunal was satisfied that no further action against the appellant was pending at the time he was released.  It found, therefore, that he fabricated claims that he was a person of ongoing interest to the authorities in his village in order to enhance his protection visa application.  The Tribunal also found that the appellant’s associated claims that members of his family were mistreated by the authorities after his release, were also fabricated by him to enhance his application.

18. The Tribunal concluded, therefore, that the appellant was not a person of interest to the authorities in China at the time he departed China.  It was satisfied that he is no longer a person of interest to the authorities because of any previous involvement in protest activities against the government in China.  The Tribunal was therefore not satisfied that the appellant has a well founded fear of persecution by the Chinese authorities for reasons of political opinion or any other Convention reason.

19. In his amended application to the Federal Magistrates Court, the appellant claimed that there was an error of law in the Tribunal’s decision constituting a jurisdictional error and that there was procedural error in the Tribunal’s decision constituting an absence of natural justice.  The amended application particularised those grounds as follows:

    ·The Tribunal refused the appellant’s claims because it was satisfied that he was HHH and made that decision mainly for the reason that the appellant did not provide any documentary evidences to support his claim to be ZZZ.

    ·During the period from October 2004 to January 2005, although the appellant had informed the Tribunal that his genuine name was ZZZ, the Tribunal did not invite him to provide any documentary evidence to support that claim and it did not tell him that it would give weight to the other documentary evidence regarding his identity.

    ·The Tribunal only raised the issue concerning documentary evidence in relation to the appellant’s identity for the first time during the hearing when it was impossible for him to get evidence.

    ·The Tribunal failed to comply with its obligation under s 424 in failing to invite the appellant to give additional information.

    ·The Tribunal failed to comply with its obligation under s 424A in so far as it failed to give the appellant notice of country information relating to prominent and persistent activists in China.

    ·The Tribunal accepted most of the appellant’s claims but believed that the appellant was a person who participated in only one political activity throughout his life but did not have any evidence to support that view.

20. The primary judge considered that the appellant’s complaint that the Tribunal failed to obtain further information pursuant to s 424 misapprehended the nature of that section. While it was open to the Tribunal to have provided an invitation to the appellant under s 424, that provision only empowers the Tribunal to obtain information or to invite a person to give additional information; it does not mandate such action. The Tribunal’s obligation is simply that if it does obtain such information, it must have regard to it. However, the Tribunal is not obliged to seek such information in the first place and failure to do so is not an error. The reasoning of the primary judge is faultless in that regard.

21. The primary judge also considered that it is clear that the independent country information relied on by the Tribunal, as expressed in its reasons, came within the exception provided in s 424A(3)(a). That is clearly correct.

22. The primary judge then dealt at some length with a possible failure to comply with s 424A, which was not a ground articulated in the amended application. The ground is that, in some way, information relating to the identity of the appellant was part of the reason for affirming the Tribunal’s decision but that information was not the subject of notice pursuant to s 424A.

23. There is a reference in the Tribunal’s reasons to identification documents of the appellant that were part of the Department’s file. Those documents were not given to the Tribunal by the appellant. However, the mere fact that something is referred to in the reasons of the Tribunal that may constitute information within the meaning of s 424A, does not mean that information was part of the reason for affirming the decision. In order to demonstrate a failure to comply with s 424A, it is necessary first to identify information that was part of the reason for affirming the decision.

24. The primary judge considered that the material that had been supplied to it by the appellant, consisting of his application in the name of HHH, a new passport in the name of HHH and an identification document issued in China in the name of HHH, persuaded the Tribunal that the appellant was indeed HHH. In the absence of any evidence whatsoever to suggest that the appellant was really ZZZ other than his mere assertion, the Tribunal concluded that the appellant is indeed HHH. No information that had not been given to the Tribunal by the appellant was part of the reason for reaching that conclusion. There was no error on his Honour’s part in concluding that there was no failure to comply with s 424A in that respect.

25. The primary judge then went on to hold that the Tribunal had two bases for its decision. The first was that it did not accept that appellant’s claim to be ZZZ. The second basis was that, even if the appellant were given the benefit of the doubt and it were accepted that he is ZZZ, the Tribunal was not satisfied that the circumstances presented by the appellant as ZZZ gave rise to a well-founded fear of persecution on his part. That was an independent basis, involving alternate reasoning, for concluding that the appellant, even if he is ZZZ, did not have a well-founded fear of persecution for a Convention reason. That reasoning was supported by independent country information that clearly falls within the exception in s 424A(3)(a) and by what the appellant himself said to the Tribunal. There was no error on the part of the primary judge in his Honour’s reasoning to that conclusion.

26. Finally, the primary judge dealt with the appellant’s complaint that the Tribunal did not have evidence to support its finding that the appellant would not be of ongoing interest to the authorities in China.  His Honour found that the Tribunal did indeed have such evidence to support its finding.  That evidence consisted of country information to which it referred in its reasons and which it discussed with the appellant.  Even accepting that the appellant is ZZZ, the Tribunal could not be satisfied that the appellant had a well-founded fear of persecution for a Convention reason. The primary judge considered that finding was open to the Tribunal on the material before it for the reasons that it gave.

27. The primary judge observed that the Tribunal is not required to disprove a claim made by an applicant.  Rather, its task is to consider whether it can reach the requisite level of satisfaction that an applicant must be granted a visa.  The Tribunal, based on what the appellant himself had put to it and on the independent country information available to it, was not able to reach such a level of satisfaction.  His Honour found that the appellant’s complaint did not succeed.  There is no error in his Honour’s reasoning.

28. The grounds of appeal in the notice of appeal are without substance.  They are as follows:

    ·The Federal Magistrates Court found that there was no evidence of fraud by the Department of Immigration.  There was evidence of fraud by the Department of Immigration.  The Federal Magistrates Court erred in making that finding.

    ·The Federal Magistrates Court discerned no jurisdictional error in the Tribunal’s decision.  The Federal Magistrates Court erred in making that finding.

29. The second of those grounds may be taken to be an unparticularised complaint about the reasoning of the primary judge in concluding that there was no jurisdictional error.  For the reasons I have already given, there was no error on the part of the primary judge.

30. The first ground appears to be misconceived.  The ground contains a reference to a paragraph of the reasons of the primary judge.  However, there is no reference to fraud on the part of the Department of Immigration in that paragraph or anywhere else in the reasons of the primary judge.  The appellant had never made any such allegation.  Accordingly, it is not surprising that the primary judge did not deal with any such allegation.  There was no error by the Federal Magistrates Court in the respect asserted.

31. The appeal must be dismissed with costs.

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:        7 March 2007

The Appellant appeared in person.
Counsel for the Respondent	B O’Donnell
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	14 February 2007
Date of Judgment:	14 February 2007