SZGCM v Minister for Immigration - [2008] FMCA 222

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGCM v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 222

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 424A; 474; pt.8 div.2

Abebe v Commonwealth of Australia (1999) 162 ALR 1
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
SZHPD v Minister for Immigration and Citizenship [2007] FCA 157
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668

Applicant:

SZGCM

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 592 of 2007

Judgment of:

Emmett FM

Hearing date:

21 February 2008

Date of last submission:

21 February 2008

Delivered at:

Sydney

Delivered on:

29 February 2008

REPRESENTATION

Applicant appearing on his own behalf

Counsel for the Respondent:

Mr M. Cleary

Solicitors for the Respondent:

Ms A. Crittenden

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 592 of 2007

SZGCM

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 22 December 2006 and handed down on 18 January 2007.
The Applicant claimed to be from the People’s Republic of China (“China”) and a member of the Democratic Party (“the Applicant”).
The Applicant arrived in Australia on 21 August 2004 having departed legally from Pu Dong on a passport issued in his own name and a subclass 456 visa issued on 20 July 2004.
On 27 September 2004, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.
In his protection visa application, the Applicant stated that he was sentenced to one year’s imprisonment in 1999 and released in October 2000. The Applicant stated that he became the head of his local branch of the “Democratic Party” in China in 1998 and was responsible for the development of that party in his local area. He stated that he met regularly with the two founders of the party who he stated came to be “regarded as political dissidents in the eyes of the Chinese Communist Party.” One of these persons was sentenced to five years imprisonment. The Applicant stated that an investigation team was sent to his local area “to crack down our branch”. The Applicant stated that he was detained in October 1999 and sentenced to one year imprisonment. He stated that his release certificate was being sent from China. He stated that he was imprisoned because of his political opinions and because he was the head of his local branch of the “Democratic Party” in China. Following his release, the Applicant stated that in May 2004 police came to his home to investigate him prior to the release of one of the founders of the party in September 2004. The Applicant stated he decided to come to Australia to seek protection.
On 30 September 2004, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
The Delegate found that the Applicant had provided only “scant details” in support of his application and that his claim of political activity was unsubstantiated by evidence or detail. The Delegate noted that the Applicant claimed to have been imprisoned but did not provide the exact date of his imprisonment, the length of his imprisonment or where he was imprisoned. The Delegate noted that the Applicant was issued a passport shortly after the alleged imprisonment. The Delegate considered it “implausible that a person claiming persecution because of his political profile would be granted a passport and allowed to depart China if he truly was of adverse interest to the authorities.”
The Delegate also noted that the application fitted a pattern of “similarly scant applications” all of which used the same postal address and witness.
The Delegate did not accept the credibility of the Applicant’s claims and therefore was not satisfied that the Applicant’s fear of Convention-based persecution was well-founded.
“On 5 November 2004, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.”
On 22 December 2006, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 12 September 2006, Federal Magistrate Nicholls remitted the matter for determination by the Tribunal according to law.
On 21 February 2007, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.

The Tribunal decision

On 4 January 2005, the Tribunal received from the Applicant a copy of a “certificate of release” dated 14 August 2000 stating the following:
“[the Applicant], male, 36, previously resided at [address], was sentenced to one year imprisonment with deprivation of political rights from 15 October 1999 to 14 October 2000 for subversion of the country b the Qingdao City Intermediate Level People’s Court. The sentence was reduced for two months; he is released as he has served the imprisonment time.”
On 11 December 2006, the Applicant attended a hearing before the Tribunal reconstituted.
The Tribunal explored with the Applicant his various claims and, in particular, raised with the Applicant concerns it had about various aspects of his evidence.
The Tribunal put to the Applicant inconsistent aspects of his evidence and noted the Applicant’s explanations. In particular, the Tribunal put to the Applicant, the inconsistent claims of when the Applicant joined the China democratic party; when he became in charge of the local branch of the party; dates of events that were different from dates given to the earlier constituted Refugee Review Tribunal; the Applicant’s refusal to give to the Tribunal names of other members of the party in China on the explanation they would otherwise be persecuted and that there are many spies in Australia; the number of people he had recruited to the party; the date of the police visit following his arrest; and, his lack of knowledge of Wang Youcai, a founder of the party.
In relation to the certificate of release, the Tribunal put to the Applicant that the Applicant had said in evidence that he was detained on 1 October 1999, but formally arrested on 15 October 1999 and released on 14 August 2000. The Tribunal put to the Applicant that he had given evidence to the earlier constituted Refugee Review Tribunal that he was released on 14 August 1999. The Tribunal noted that it asked the Applicant when he was charged and with what offence. The Tribunal noted the Applicant’s answer that political prisoners could be charged at any time and that he was charged with “over turn government”. The Tribunal noted that the Applicant then said he was not charged but was detained immediately and was told he would be arrested for one year. The Tribunal noted that it then put to the Applicant that the Applicant had said he was charged with “over turn government”.
The Tribunal noted that the certificate of release did not say that the Applicant was detained on 1 October 1999, and that the Applicant said he was not sure “why the Communist Party would write what they did”.
The Tribunal noted that it put to the Applicant that he could be changing his evidence in order to be consistent with what was written in the certificate of release. The Tribunal noted that the Applicant’s denial of such a proposition and his assertion that he did not understand the law or any key terms. The Tribunal noted the Applicant’s explanation of a difference in terminology; that the Applicant did not know the difference between being “charged” and “arrested”; that he did not understand the law; and that he could only tell the Tribunal he was charged with overturning the government.
The Tribunal found the Applicant not to be a credible witness and “particularly evasive”. The Tribunal found the Applicant’s oral evidence “lacked significant details and was somewhat inconsistent”.
The Tribunal stated that whilst it appreciated that in isolation some of its concerns may be perceived as being minor, when considered cumulatively they formed part of the reasons for the Tribunal’s adverse credibility findings. In comprehensively rejecting the Applicant’s claims the Tribunal stated the following:
“In light of those comments and in consideration of the evidence as a whole, the Tribunal does not accept that the applicant has ever been a member or involved in the China Democracy Party in China (or Australia), or that he was ever a Chairperson or involved in the Qing Doa branch of the Party, or that he has ever recruited any members of the Party, or that he helped promote the Party, or that he has ever met Xu Guang, or that the applicant has ever been arrested or detained or questioned or sentenced for one year, or imprisoned in China, or that the police went to his house to investigate him or searched his house, or that he was ever required to attend to Falun Gong practitioners, or that the authorities wanted to kill him, or that they plotted a car accident, or that he had witnessed the persecution of prisoners, or that he was kicked and suffered appendicitis as a result, or that any scar he has on his stomach is as a result of any abuse by the Chinese authorities, or that he was not permitted to have any treatment in prison, or that he was forced to give any names/details of Party members, or that he was under surveillance, or that his phone was taped, or that he was ever a political prisoner, or that he managed to come to Australia with the help of a Taiwanese company and/or boss, or that Mr Liu helped and protected him in China, or that he was ever accused of being a spy for Taiwan, or that he has suffered or would suffer any of the claimed harm. In essence and for the stated reasons, the Tribunal finds that the applicant has not suffered any of the claimed harm and that he has fabricated his claims for the purpose of his application for a protection visa.”
In finding that it could place no weight on the Applicant’s certificate of release, the Tribunal stated the following:
“In reaching its findings, the Tribunal has given regard to the document titled “Certificate of Release” which he provided to the previous Member. The Tribunal notes that the document does not say that the applicant was detained on 1 October of 1999 as he had claimed in evidence. The applicant stated that he was detained on 1 October of 1999 which is a different concept from being arrested. He stated that he was caught on 1 October 1999 but he was formally arrested on 15 October 1999. He said he is not sure why the Communist Party would write what they did. The Tribunal is not persuaded by his explanations. Given the Tribunal’s concerns about the document and the adverse credibility finding, the Tribunal rejects that the document contains truthful and or accurate information and as such the Tribunal does not give it any weight.”
The Tribunal concluded that it was not satisfied that the Applicant had suffered past Convention-related harm or that there was a real chance he would face harm or mistreatment if he returned to China. The Tribunal was not satisfied that the Applicant had a well-founded fear of persecution and, accordingly, affirmed the decision under review.

The proceeding before this Court

The Applicant appeared unrepresented before the Court, although had the assistance of a Mandarin interpreter.
The Applicant confirmed that he relied upon the grounds identified in the amended application filed by him on 8 May 2007, as follows:
“1. The Tribunal had biased against me and made a decision on my application based the officer’s assumption. The officer said at the hearing that only by paying money to police, people can get a copy of the document to prove being arrested. The decision was biased.
2. The Tribunal failed to notify me in writing the reason or part of the reasons for affirming the decision. The Tribunal therefore failed to consider my application for a protection visa in accordance with S424A of the Migration Act 1958. I was not given an opportunity to comment upon the reason.”
Each of the grounds was interpreted for the Applicant’s benefit and he was invited to make submissions in support of the grounds and in support of his application generally.

Ground 1

Ground 1 makes the serious allegation of bias on the part of the Tribunal member. The Applicant made no meaningful submission in support of this ground. The particular provided in support of ground 1 is more in the nature of a disagreement with the factual findings made by the Tribunal. Such a complaint invites merits review which this Court cannot undertake (Abebe v Commonwealth of Australia (1999) 162 ALR 1; NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10).
The allegation of bias is otherwise unsupported by evidence. Such an allegation must be “distinctly made and clearly proven” (SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 at [22]; Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69]).
A fair reading of the Tribunal’s decision does not disclose that the Tribunal approached the task other than with a mind open to persuasion and no lack of good faith or bias is apparent from the Tribunal’s decision (SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 at [56]-[59]; SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]).
A fair reading of the Tribunal’s decision, in particular, its finding that the Applicant had “fabricated his claims” suggests that the Tribunal comprehensively rejected his claims based on his adverse credibility findings arising from the unsatisfactory nature of the Applicants’ explanations for concerns put to him by the Tribunal, together with the lack of detail in support of his claims.
In relation to the certificate of release, a fair reading of the Tribunal’s decision suggests that the Tribunal rejected the generalness of the certificate based on its adverse credibility finding in respect of the Applicant and therefore gave it no weight. In particular, the Tribunal noted the inconsistent information contained in the certificate and the Applicant’s explanations or those inconsistencies which the Tribunal found unpersuasive.
The Tribunal: accurately identified and understood the claims made by the Applicant; considered all evidence given by the Applicant, including to the earlier constituted Refugee Review Tribunal; invited the Applicant to come to a further hearing; raised with the Applicant concern it had about his evidence and noted the Applicant’s responses; made factual findings based on the evidence and material before it and for which it provided reasons, including its adverse credibility findings; applied the correct law to the facts as it found them to be; and, reached conclusions according to law.
Accordingly ground 1 is not made out.

Ground 2

The Applicant confirmed that his complaint in ground 2 was in relation to the failure by the Tribunal to give him the reasons for its decision and invite him to comment upon them. The Court explained to the Applicant that s.424A of the Act placed no such obligation on the Tribunal. The Court explained to the Applicant that s.424A of the Act required the Tribunal to give to the Applicant information not provided by the Applicant to the Tribunal for the purposes of its review and which may be part of the reason for affirming the decision under review.
In the case before this Court, the only information to which the Tribunal had regard in making its adverse findings was information given to it by the Applicant. There was no information to which the Tribunal had regard that otherwise enlivened the obligations of s.424A of the Act.
Accordingly, ground 2 of the application is not made out.

Conclusion

A fair reading of the Tribunal’s decision makes it clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant; had regard to all material provided in support, and, made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for which it provided reasons. A fair reading of the Tribunal’s decision makes clear that the Tribunal applied the correct law to those findings and made conclusions based on the findings made by it on the evidence and material before it.
The Tribunal complied with the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court is dismissed with costs.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate: S. Kwong

Date: 29 February 2008