SZGAM v Minister for Immigration
[2006] FMCA 1281
•1 September 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGAM & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1281 |
| MIGRATION – Protection visa - Refugee Review Tribunal – whether jurisdictional error. |
| Migration Act 1958, ss.424A, 422B, 425 |
| Re Minister for Immigration and Multicultural Affairs Ex parte Durairajasingham (2000) 168 ALR 407 SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) FCAFC 2 SZDPY v Minister for Immigration and Multicultural Affairs (2006) FCA 627 SZCJD v Minister for Immigration and Multicultural and Indigenous Affairs (2006) FCA 609 SZEFM v Minister for Immigration and Multicultural and Indigenous Affairs (2006) FCA 7 SZDMJ v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCA 1034 Antipova v Minister for Immigration and Multicultural and Indigenous Affairs (2006) FCA 584 |
| Applicants: | SZGAM AND SZGAN |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 835 of 2005 |
| Judgment of: | McInnis FM |
| Hearing date: | 16 August 2006 |
| Delivered at: | Melbourne (by video link to Sydney) |
| Delivered on: | 1 September 2006 |
REPRESENTATION
| First Applicant: | In person (assisted by an interpreter) and for and on behalf of the Second Applicant |
| Counsel for the First Respondent: | Mr L Leerdam |
| Solicitors for the First Respondent: | Phillips Fox |
ORDERS
Leave is granted to the Applicants to add as a Second Respondent the Refugee Review Tribunal
The description of the First Respondent be amended by deleting the words "and Indigenous".
The Application be dismissed.
The Applicant shall pay the First Respondent’s costs fixed in the sum of $4,300.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 825 of 2005
| SZGAM and SZGAN |
Applicants
And
| MINISTER FOR IMMIGRATION &MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") dated 17 February 2005. In its decision the Tribunal affirmed a decision of a delegate of the First Respondent to refuse to grant to the Applicants protection visas. The Applicants are wife ("the Applicant") and husband. The husband relies upon family membership. They are both citizens of China who arrived in Australia on 22 August 2004. They applied for protection visas on 5 October 2004.
The claims were set out in a statement accompanying the application for protection visas. The applications were refused by a delegate of the First Respondent on 25 November 2004. The Applicants then applied to the Tribunal for review of the decision and provided a detailed statement as to why the delegate was wrong (Court Book pages 63‑67).
The Applicant gave oral evidence before the Tribunal at a hearing on 15 February 2005. As indicated, the Tribunal, in a decision dated 17 February 2005 affirmed the decision of the delegate refusing to grant to the Applicants protection visas.
The Applicant's claims
In the protection visa application the Applicant claimed that she had what she described as a "black" family background. This was explained in the statutory declaration (Court Book page 30) as arising from the Applicant's father being regarded as a "historical anti‑revolutionary" by the Peoples Republic of China ("PRC") authorities. He was apparently a senior officer in the army of Kuomintang (the National Party of China).
It is not necessary to set out in further detail the material which led the Applicant to claim that she had what was described as a "black" family background. It is sufficient to note that she claims to have been classified as a person who had to accept "re‑education" in the countryside, and, allegedly, she was sent to a small village for that purpose in 1972 when she was then only 18 years of age.
The substantive claim of the Applicant was that she supported a pro‑democracy movement in 1989 and organised a protest at a cotton mill to improve working conditions and was investigated for three months, from March to May 2001. She claimed that both she and her husband had joined the China Freedom Union ("CFU") in May 2002 and provided financial support to the movement.
At the hearing the Applicant and her husband were self‑represented, though appeared with the assistance of an interpreter. It is noteworthy that at the hearing an issue arose concerning the history given by the Applicant as to whether her alleged activities in the CFU had been discovered before or after the Applicant had left China. It is relevant therefore to note that in her statutory declaration (Court Book page 33) the following appears:
"m) My special role in "China Freedom Union" was eventually discovered by the PRC authorities in August 2004, because Mr B was arrested by the PSB on 18th August 2004 while he organized a secret meeting at his home together with three (3) key members of the underground organisation. Miss Q was not at home at that time and thus she could escape from arrest. She immediately informed me the news, and left the country shortly after that." (sic)
The passage referred to above has been altered to delete the names of the persons referred to by the Applicant.
That passage, however, needs to be compared to a further extract from submissions made to the Tribunal by the Applicant in a letter dated 20 December 2004 (Court Book page 63) where the Applicant states the following:
"As a matter of fact, my special role in the Chinese Freedom Union was not discovered by the PRC authorities at the time when I left the country, because "Miss Q" (the only person who knew my special role in the union) was not at home at that time and thus she could escape from arrest. She immediately informed me the news", and I therefore was able to leave China."
It will be noted by a simple comparison to the two extracts that in the first extract from the statutory declaration the Applicant claimed that her special role in the CFU was "eventually discovered" by the PRC authorities in August 2004 whereas in the later submission the Applicant claims that her special role was not discovered by the PRC authorities at the time "when she left the country".
Claims before the Tribunal
The Applicant claimed before the Tribunal that the delegate had failed to consider the Applicant's claims. Reference was made to events which occurred in 1979 and thereafter. It was claimed the delegate failed to consider the fact that even at the end of the cultural revolution the Applicant was employed as a labourer at the hardest workshops in a certain region. Other claims were made that the delegate failed to consider the case of the Applicant's father and specifically it was argued the delegate failed to take consideration of her claims as a whole but intentionally "cut it into small pieces".
The Applicant argued that her actions for justice for her father's case and activities before 1989 and her involvement in the 1989 pro‑democracy movement together with her protest at the cotton mill and her special role in the underground political organisation were not properly considered in support of her claim to have a fear of being persecuted on her return to China. Other reference was made to the failure by the delegate to consider specific claims concerning the Applicant's alleged special role in the CFU.
Before the Tribunal the Applicant clarified her special role with the CFU and specifically referred to her role not being discovered by the PRC authorities at the time she left the country
The Tribunal decision
The Tribunal made significant adverse findings against the Applicant. In fact it rejected her claims about significant matters on the basis that it did not accept her evidence as being truthful. It is relevant to set out the following extracts from the Tribunal decision, which appear at Court Book page 87:
“On the basis of the information before it the Tribunal cannot be satisfied that the applicant was a member of a political organization in China to whom she gave financial support and that she was persecuted and/or feared persecution in her country for her political activities and left China as she claims for that reason. Nor can the Tribunal be satisfied that the applicant cannot or will not return to China because she fears persecution there, now or in the reasonably foreseeable future, due to her political activities in China.
The reason that the Tribunal rejects the applicant’s claims about these matters is that it does not accept her evidence as truthful. The applicant claims that she was arrested in 2001 and detained for 2 weeks, watched for a further 3 months and could not work because of her “black” family background and her involvement in union activities in her factory. Nevertheless she went on to establish a financially successful business in China and continued to live at her address in Henan Province until she left China legally in August 2004 to come to Australia. In the Tribunal’s view these facts are not consistent with her claims about persecution in China. The applicant then claims that she privately gave financial support to an underground union organization in China, the China Freedom Union, but that she only had contact with 2 members of that organization. There is no evidence available that that union ever existed and she says the union has now been destroyed by the PSB. She states that her role in the union was discovered when a union member was arrested on 18th August. She says that she then hurriedly left China on 20th August because she was afraid of being arrested by the PSB. In the Tribunal’s view this evidence is not consistent with the facts that the applicant and her husband obtained visas for the UK in June 2004 and for Australia on 2 August 2004. The applicant’s explanation that they obtained their visas in case there was trouble is not accepted by the Tribunal. In the Tribunal’s view if the applicant was genuinely afraid of persecution in China because of her political opinion/ activities she would have left there in June 2004 or at the latest early in August 2004 when her Australian visa was issued. Also in the Tribunal’s view if the applicant was of interest to the authorities as she claims she would not have been able to exit China legally using a passport in her own name. Although she said the PSB would not have had time to investigate the matter this is inconsistent with her evidence that she was told by a friend who was head of the neighbourhood community group that she was in ‘big trouble’ and that she had seen an internal document talking about the ‘China Freedom Union’.”
Those adverse findings become significant both in terms of the use made by the Tribunal of the evidence before it that the Applicant went on to "establish a financially‑successful business in China and continued to live at her address" in the province referred to and that she left China legally in August 2004 to come to Australia. Further reference was made to the Applicant obtaining a visa for the United Kingdom in June 2004.
These matters became significant for the Applicant in her submissions before this court.
It is evident from the extract of the Tribunal's decision set out above and from other parts of its decision that it made the adverse credibility finding based upon, amongst others, the following accurately set out in the first respondent’s submissions:
·After her claimed problems the Applicant went on to establish a financially successful business and continued to live at her address in the province and that this was not consistent with her claims about persecution;
·There was no evidence available that the CFU ever existed;
·The Applicant's claims that her role was discovered when a member was arrested on 18 August 2004 and that she left China on 20 August 2004 because of her fear is not consistent with the facts that she and her husband obtained visas for the United Kingdom in June 2004 and Australia on 2 August 2004;
·The Tribunal did not accept the Applicant's explanation that they obtained their visas in case there was trouble but found that if she was genuinely afraid she would have left in June 2004 or at the latest early August 2004 when her Australian visa was issued;
·The Tribunal further found that if the Applicant was of interest to the authorities she would not have been able to exit China legally using a passport in her own name.
Applicant's submissions
The Applicant relied upon an amended application filed 13 July 2005. Although the amended application refers to significant particulars in support of a claim of jurisdictional error and/or denial of natural justice. It is clear that those particulars, in my view, essentially seek to re‑agitate claims made by the Applicant in relation to her special role in the CFU and her reasons for leaving China. Specifically, it is noted in the particulars that the Applicant claims that "the Tribunal's assessment is, apparently, utterly baseless without substantial ground".
However, further attack is made upon the Tribunal's failure to put information to the Applicant concerning her obtaining a visa for the United Kingdom in June 2004 and 2 August 2004 and/or failure of the Tribunal to consider the fact that her daughter was studying in the United Kingdom and that their original purpose for going overseas was to visit the daughter. It was claimed the Tribunal should have obtained relevant documents regarding the visitor's visa application overseas. Otherwise, it was argued, the Tribunal failed to seek independent country information or failed to regard her claims as a whole.
A separate issue was raised namely that the Tribunal failed to comply with obligations under s.424A of the Migration Act 1958 ("the Act"). Specifically, it was also claimed that the Tribunal failed to invite the Applicant to provide additional information.
In her submissions to the court the Applicant specifically referred to the claims made and was critical of the Tribunal's reasoning process, and in particular the manner in which it reached its adverse credibility findings, in part dependent upon the assessment made of the Applicant continuing to remain at her address and obtaining the visas for the United Kingdom and Australia and then leaving China on a visa.
The Applicant pursued the claimed breach of s.424A of the Act.
First Respondent's submissions
The First Respondent submitted that the adverse credibility findings could not be challenged as those findings were reasonably open to the Tribunal due to what was described as the Applicant's "unconvincing evidence". This is properly a function of the Tribunal and not susceptible to judicial review (see McHugh J in Re Minister for Immigration and Multicultural Affairs Ex parte Durairajasingham (2000) 168 ALR 407).
In relation to the claimed breach of s.424A of the Act, it was noted that the Applicant did not provide particulars of how the breaches occurred. The First Respondent submitted the ground should fail as the Tribunal found, as a result of the Applicant's evidence at the hearing, that her actions were inconsistent with the claims of persecution.
The Respondent submitted that the Tribunal discussed with the Applicant in detail the Applicant's departure from China and the obtaining of requisite travel documents. Those facts, it was argued, were discussed with the Applicant at the hearing and resulted in information being given by the Applicant for the purpose of her application and therefore fell within the exception in s.424A(3)( b) of the Act.
This was the case, it was argued, even if the information could have been derived from another source, such as the protection visa application (see SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) FCAFC 2; SZDPY v Minister for Immigration and Multicultural Affairs (2006) FCA 627; and SZCJD v Minister for Immigration and Multicultural and Indigenous Affairs (2006) FCA 609).
In the alternative, it was submitted by the First Respondent that in any event the Applicant in her Tribunal review application republished her claims and specifically referred to the delegate's decision. Accordingly, she invited the Tribunal to consider her claims set out in her protection visa application (see SZEFM v Minister for Immigration and Multicultural and Indigenous Affairs (2006) FCA 7).
The First Respondent relied upon the decision of Gyles J in SZDMJ v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCA 1034 where the court concluded that the Applicant had republished his claims made before the delegate because he made a statement containing a critical examination of the delegate's reasons. In the present case it was submitted that the Applicant likewise has made several critical claims of the delegate's consideration of her claim as set out in the original protection visa application.
The First Respondent referred to criticisms made by the Applicant of the hearing itself before the Tribunal and a suggestion that there had been a breach of the obligations under s.425 of the Act. This matter did not seem to be pursued by the Applicant. However, it is appropriate to consider the claim in the context of the respondent’s submissions.
The First Respondent submitted that the Tribunal had afforded procedural fairness to the Applicant consistent with its requirements and having regard to the application of s.422B of the Act, which has the effect that the relevant provisions are an "exhaustive statement" of the natural justice hearing rule. Whilst it was acknowledged that the invitation to attend the hearing has to be "real and meaningful", it was submitted that a breach of s.425 can only be established with sufficient evidence (see Gray J in Antipova v Minister for Immigration and Multicultural and Indigenous Affairs (2006) FCA 584).
Whilst it was noted that a number of criticisms were raised in the amended application by the Applicant, it was further noted that there was no evidence to support those claims in the form of transcript or otherwise, and accordingly it was submitted that on the face of it the Tribunal decision could not be impugned on the basis of any claimed breach of s.425 of the Act.
Likewise, it is submitted that there was no error in the manner in which the Tribunal took into account country information. It was submitted that the weight to be given to country information was part of the fact‑finding function of the Tribunal and that the question of accuracy of country information is not for the court to assess, as to do so would be to engage in merits review.
Reasoning
In my view, the submissions of the First Respondent are correct. None of the grounds relied upon by the Applicants in the amended application demonstrate jurisdictional error.
The Tribunal has properly made an assessment of the Applicant's credit, which is a matter entirely for the Tribunal, which in this instance was able to make an assessment of the claims of the Applicant and moreover seek further details and ask questions of the Applicant in relation to those claims. Clearly the Tribunal was entitled to take into account the fact that the Applicants obtained visas legitimately for the United Kingdom and Australia.
The Tribunal was further entitled to examine the material concerning the Applicant's alleged involvement in the CFU. It specifically asked the Applicant how she managed to leave China legally if she had been wanted by the authorities. In any event, it then, obviously, considered the other factors set out in the extract of its findings and reasons, including the inconsistency between the claim for persecution in China and the fact that not only did the Applicant leave China legally but prior to that had established a financially successful business in China and contained to live at her normal address.
The assessment of the genuineness of the Applicant and the level and extent of her involvement with an organisation claimed to be a pro‑democracy group was entirely a matter for the Tribunal, which, in my view, was dealt with in a manner free of any jurisdictional error. The Tribunal pursued its fact‑finding mission in relation to the claim before it and reached a conclusion reasonably open to it on the facts.
I can see no error in the manner in which the Tribunal dealt with country information.
Further, I accept the submissions by the First Respondent, specifically that in this instance the Tribunal has not breached s.424A of the Act, as I am satisfied information provided by the Applicant to the Tribunal for the purpose of the application falls within the exception of s.424A(3)(b). It is clear, in the correspondence to the Tribunal that the Applicant sought to agitate matters which she considered had been incorrectly dealt with by the delegate and to effectively republish those matters and her claims for the purpose of the hearing before the Tribunal.
Accordingly, I am satisfied there has been no breach of s.424A of the Act and I am otherwise satisfied the information does indeed fall within the exception of s.424A(3)(b).
In the absence of any relevant information, including transcript, I am not able to conclude that there has been any breach of s.425 of the Act. There is insufficient material which would lead this court to conclude that the invitation to attend a hearing was anything was anything other than "real and meaningful".
I am otherwise satisfied in any event the other general allegations made by the Applicant cannot be relied upon as a result of the operation of s.422B of the Act, as submitted by the First Respondent. Otherwise,
I note that there are certainly insufficient particulars given to support any claimed breach of s.425 of the Act.
The Tribunal during the course of the hearing is entitled to question the Applicant, and this may inevitably involve interruptions of a kind which might give rise to concern by Applicants not familiar with the process. That does not however mean that there has been any denial of natural justice of the kind to permit judicial review of the Tribunal decision.
Conclusion
It follows, for the reasons given, that the application should be dismissed, with costs. The court has granted leave to the Applicant to add as a second respondent the Refugee Review Tribunal and to otherwise amend the description of the First Respondent by deleting the words "and Indigenous".
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 1 September 2006
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