SZGBC v Minister for Immigration - [2006] FMCA 1429

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGBC v MINISTER FOR IMMIGRATION

[2006] FMCA 1429

MIGRATION – Application for Review of Refugee Review Tribunal determination that applicant not entitled to protection visa – applicant alleges persecution on account of her anti-corruption employment activity – no jurisdictional error found.

Migration Act 1958 (Cth), ss.483A, 424A
Judiciary Act 1903 (Cth), s.474

Plaintiff S157 of 2002 v The Commonwealth (2003) 195 ALR 24
Craig v State of South Australia (1995) 184 CLR 163
SAAP v The Minister for Immigration and Multicultural and Indigenous Affairs (2005) 214 ALR 162
SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA FC 2
Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27

Applicant:

SZGBC

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

File Number:

SYG875 of 2005

Judgment of:

Lindsay FM

Hearing date:

15 September 2006

Date of Last Submission:

15 September 2006

Delivered at:

Sydney

Delivered on:

15 September 2006

REPRESENTATION

Applicant:

In person

Counsel for the Respondent:

Mr Smith

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

That the Refugee Review Tribunal be joined as a party to these proceedings.
That the Amended Application filed on 26 July 2005 be dismissed.
That the Applicant pay the First Respondent's costs of and incidental to these proceedings fixed in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG875 of 2005

SZGBC

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Respondent

REASONS FOR JUDGMENT

This morning and this afternoon there has been an application pursuant to s.483A of the Migration Act 1958 (Cth) as it then stood.

The application is an application for judicial review under s.39B of the Judiciary Act 1903 (Cth). Section 474 of the Act requires me to regard the decision of the Refugee Review Tribunal in this case as a privative clause decision, and therefore final and conclusive unless the decision can be shown to have been vitiated or affected by jurisdictional error as that concept has been explained in the context of proceedings pursuant to Part 7 of the Migration Act by the High Court in the case of Plaintiff S157 of 2002 v The Commonwealth (2003) 195 ALR 24 and as that concept has more generally been explicated by the High Court in cases such as Craig v The State of South Australia (1995)184 CLR 163.
The applicant arrived in Australia from the People's Republic of China in October 2004. She lodged her application for a protection visa more or less straight away. In November 2004 her application was refused by the delegate of the Minister. In December 2004 she lodged her application with the Refugee Review Tribunal. In February 2005 the Tribunal affirmed the decision of the delegate of the Minister that the applicant was not entitled to the grant of a protection visa. She lodged her application to this Court in April 2005. Regrettably, because of the volume of like cases dealt with in this Court and in this Registry in particular during that period, the matter has taken some 16 months to come on for hearing.
The Refugee Review Tribunal refused to allow the review of the decision of the Minister's delegate. It found that there was no real chance that the applicant would suffer harm or persecution for a Convention related reason. When I use the expression "Convention" I am referring to the Refugees Convention and the Refugees Protocol. Put another way, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution and that was so whether the Convention reason was regarded as having been promoted as political activity, in which the applicant was involved, or her membership of a social group of persons the subject of possible prosecution on account of reporting their employers to the authorities in respect of allegedly corrupt behaviour.
The applicant worked as a bookkeeper between 1977 and 2004 in NGN Fibre Company Limited in the province of Guangdong. She described her position as being a manager position, although it was clear from such detail as she did provide that her duties were principally in relation to payroll. She says that she was asked to make changes to the books of account to the company by corrupt management of the company in the period 2000 and 2001. She said that she refused to do so and on account of her refusal, she failed to obtain any further promotion within the company and indeed, suffered a salary deduction.
She complained in respect of this behaviour, that is, the request to make the changes and the response by management to her refusal to do so to the Disciplinary Inspectors Commission. She says that they in turn, were also corrupt. Not only were her complaints of corruption in relation to management not acted upon, but the Disciplinary Inspection Commission itself threatened to sue her.
She said on account of their response she feared imprisonment if she remained in or were to return to China and it is for that reason she left China in late 2004. It was not controversial that she had left China as the holder of a passport in her own name. Her fears in relation to the threat to sue, which expression I take to be interchangeable with the expression used throughout the Tribunal's reasons of her facing charges had two alleged bases, that is, that she would be sued or charged as having given false information to the Disciplinary Inspector’s Commission and she would also be sued or charged on account of documents being wrongly or falsely attributed to her by management or by that commission.
As to why the Tribunal was not satisfied with matters which would have enabled the applicant to have been granted a protection visa, they are, as I read the Tribunal's reasons, the following. The Tribunal was concerned about the generalised and non-specific way in which the fact material to the applicant's contentions have been presented. Or in other words, the fact that the aspects of her claims for refugee status were very vague.
This problem of generalised assertions or vague assertions related to a number of topics, for example, as to what precisely her duties were in the NGN Fibre Company, as to precisely which acts of malfeasance or misfeasance in relation to the management she reported to the commission, as to precisely what charges she was at risk of facing. There was also a concern in relation to the dates on which she was asked to make the changes to the books by management, and also in relation to the date in which she allegedly complained to the Commission.
So that was the first kind of factual matter in respect of which the applicant had difficulties in having her claim accepted. Secondly, there was clearly a concern on the part of the Tribunal as to the ease with which she had obtained her passport and the ease with which she had been able to leave China, and this was particularly so in the light of country information which suggested that local management, local company units, or work units would have a significant contribution to make to the decision as to whether or not a passport would be granted to the applicant. Clearly, the Tribunal was concerned by the apparent discrepancy and the ease with which she obtained such a passport and left China and the fact that her allegations related to the very persons would be in the end participate in the decision as to whether or not the passport was granted.
Thirdly, the Tribunal was concerned as to the fact that there had not been for two or three years following the difficulties the applicant says she got into with the management and with the commission of any acts of persecution. The truth is that whilst she had spoken of salary reduction, it was never seriously contended and neither could it be that such could amount to the sort of persecution required to be experienced to ground the state of the satisfaction of the applicant having obtained refugee status.
There was also a finding by the Refugee Review Tribunal that whatever difficulties the applicant might have in her own province there was nothing to prevent her to returning to another province or part of China. Cumulatively, these findings in relation to factual matters led to the critical finding at CB [70], that in short, quoting from about point 2 on the page:
In short, the Tribunal is satisfied that the applicant is of no interest to the commission or other Chinese authorities and there is not a real chance that she will be detained or imprisoned if she returns to China for a Convention related reason on this basis now or in the foreseeable future.
The applicant, I assume, through her inability to engage or obtain appropriate legal or other advice, has not filed a summary of argument and she was not able to take her arguments any further before me today. So I am left only with the grounds as set out in her amended application filed on 26 July 2005, and they are 3 in number.
The first is that there was an error in law in the Tribunal's decision which amounted to a jurisdictional error and in particular, that the Tribunal did not consider the applicant's evidence as credible, because of what were said to be the inconsistencies between the evidence provided to the Department and the evidence submitted to the Tribunal. It is contended the Tribunal did not invite the applicant to comment on the inconsistencies as required by the Migration Act.
That requirement, and that legal error, can only be taken, it seems to me, to be a reference to the Tribunal's obligations pursuant to s.424A of the Migration Act. That section provides:
(1) Subject to sub-section (3) the Tribunal must:
(a) give to the applicant in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason or a part of the reason for affirming the decision that is under review; and
(b) ensure as far as is reasonably practicable that the applicant understands why it is relevant to the review; and
(c) invite the applicant to comment on it.
Sub-section (3) provides that the section does not apply to the information:
(a) that is not specifically about the applicant or another person and is just about a class of persons to which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application; or
(c) that is non-disclosable information.
It is claimed in accordance with the judgment of the High Court in the case of SAAP v The Minister for Immigration and Multicultural and Indigenous Affairs (2005) 214 ALR 162 that a failure to adhere to these statutory requirements would in the ordinary course be regarded as a jurisdictional error.
The Full Court of the Federal Court have pronounced authoritatively in the case of SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 and in the earlier case of Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27, that the application to which subs 3(b) refers is limited to the application before the Tribunal. That Full Court decision also makes it plain that the obligation only arises in relation to information and that information is not to encompass the Tribunal's subjective appraisals thought processes or determinations. That is referred to, in particular, at [207] of the judgment of the Full Court.
Turning to the facts of this matter, I agree with Mr Smith, who appeared on behalf of the Minister, that scrutinising the Tribunal's reasons as carefully as we can, the only possible area of the findings that relates or is dependent upon a finding of inconsistency is that which emerges at the bottom of page 68 top of page 69 of the Tribunal's reasons and this issue as to whether or not the applicant was contending that she was facing criminal charges in China.
The Tribunal notes at the bottom of page 68:
However, the applicant is not claiming persecution because of the treatment she received from the company or even that she may not have a job to go back to, but rather that variously because she has been set up by the false records, having her “chop” stamp on them and she is accused of having acted fraudulently, and that the Disciplinary Inspection Commission having investigated her claims, and having concluded that the company had not acted fraudulently, therefore, intends to sue her for giving the wrong information to the government department, and if she is found guilty she would be sent to prison for five years.
As was put to the applicant at the hearing, the applicant responded to question 6 of part B of her protection visa application, dated 6 October 2004, some three years after she wrote to the commission, that she has not been convicted or charged with any offence that is currently awaiting legal action. While claiming at the hearing that this was a mistake, the Tribunal accepts her claim contained in reply to question 6 of her protection visa application as there was no need to lie about this. Nor has she claimed that it was only after she arrived in Australia that she has been advised of the Commission's threat or intention to sue her.
What is important to bear in mind in relation to the Tribunal's handling of this particular issue is that the Tribunal clearly accepted the applicant's apprehension as being not as to what would happen to her in respect of charges that had already been made, but what would happen to her in respect of charges that would be laid or in respect of an act of suing which would be commenced were she to return to China.
That being understood there is no inconsistency then. Her contention in her protection visa application that she had not been charged was consistent with the argument she was advancing before the Tribunal that she had an apprehension about future charges. Her claim that her response to the relevant question in the application was inconsistent with her subsequent accounts, or that the Tribunal so found, is simply misconceived. That is what the Tribunal, it seems to me, is saying in the passage set out above.
There being no inconsistency, it cannot be said, in my view, that such an inconsistency formed a reason or any part of the reason for the Tribunal's rejection of the applicant's claim to be entitled to refugee status.
Ground 2 says that the Tribunal constructively failed to exercise its jurisdiction; that the Tribunal failed to conduct a real rather than purported exercise of its jurisdiction to determine whether the applicant was persecuted in China as she claimed. No particulars are given.

It seems to be a ground that gestures towards an allegation of lack of bona fides or of bad faith on the part of the Tribunal in that there is a suggestion that the Tribunal was pretending to go about its task in a certain way, whilst its real agenda, as it were, was not communicated to the applicant. If there were any basis for such a contention, certainly it is capable of amounting to a jurisdictional error, but having scrutinised the way in which the Tribunal dealt with the applicant's claim I am unable to discern any basis for such claim whatsoever.
A claim of lack of bona fides or of bad faith must be clearly and distinctly made. It is a serious and significant allegation to raise in relation to the conduct of the Tribunal, and as I have indicated here, there has been no attempt to provide any form of particularity in respect of such contention, and accordingly, any suggestion that such conduct was constituted through jurisdictional error must be rejected.
The same difficulties confront ground 3 which is simply an assertion that the Tribunal improperly precluded itself from considering the material which supported the applicant's claim that she was persecuted in China. It is difficult to discern precisely what is being contended there unless it be some inchoate suggestion of some previous disposition, or some bias on the part of the Tribunal. Were there some indication that the Tribunal approached its determination with its views as to certain critical matters having been already determined, or that it displayed bias or ostensible bias, again that is capable of amounting to a jurisdictional error. But having carefully examined the Tribunal's reasons nor in the response to the case that was actually put to it, and having given consideration to all other ways in which the applicant could be reasonably or fairly taken to have presented her claim, I am unable to discern in the Tribunal's reasons any basis for drawing this conclusion of bias or pre-judgment.
The decision of the Tribunal was clearly one that was grounded on the state of satisfaction not being reached on account of credibility issues and the applicant did not contend in her amended application that this Court should take a different view in relation to those credibility findings. That was a wise decision given that merits review is no part of this Court's obligations in relation to Part 7 of the Migration Act. Findings as to credit are matters that are the province of the Refugee Review Tribunal. The Court, being unable to identify any ground of jurisdictional error, the application must be dismissed.

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

Associate: Ms K Clarke

Date: 5 October 2006.