SZGKD v Minister for Immigration - [2007] FMCA 1499

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGKD v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1499

MIGRATION – RRT decision – Chinese applicant claiming political persecution – disbelieved by Tribunal – no arguable case – application dismissed at show‑cause hearing.

Federal Magistrates Court Rules 2001 (Cth), rr.44.12, 44.12(1)(a)
Migration Act 1958 (Cth), ss.424A, 424A(1), 424A(3)(b), 476

SZBYR v Minister for Immigration & Citizenship [2007] HCA 26

Applicant:

SZGKD

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG1761 of 2007

Judgment of:

Smith FM

Hearing date:

21 August 2007

Delivered at:

Sydney

Delivered on:

21 August 2007

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms E Baggett

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

The application is dismissed under Rule 44.12 on the ground that it does not raise an arguable case for the relief claimed.
The applicant must pay the first respondent’s costs in the sum of $2,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1761 of 2007

SZGKD

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed on 5 June 2007, which seeks orders that the respondents show cause why a remedy should not be granted under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Refugee Review Tribunal dated 27 April 2007 and handed down on 8 May 2007. The Tribunal affirmed a decision of a delegate made on 13 January 2005, refusing to grant a protection visa to the applicant. An earlier decision of the Tribunal handed down on 26 April 2005 was set aside by consent order in this Court on 20 November 2006.
The application was returnable before me at a first court date on 26 June 2007. The applicant attended, and had the assistance of a Mandarin interpreter. The nature of the proceeding was explained to him, and he was given leave to file an amended application and evidence after receiving a bundle of relevant documents and a referral for free legal advice. The applicant was warned that his application might be dismissed today if I were not satisfied that it raised an arguable case for the relief claimed.
The applicant has received advice, but has not filed an amended application or any submission. I shall consider the arguments in his original application below.
The applicant’s application for protection was lodged by an agent, Priscilla Yu, on 19 November 2004. The applicant claimed to be the person shown in a copy of an identification card of the People’s Republic of China concerning a 20‑year‑old young man. He claimed to have entered Australia in October 2004 under a visa contained in a passport in a different name, issued by the Government of Taiwan. That passport revealed travel by a person leaving Taipei on 2 October 2004 and reaching Australia via Malaysia and Singapore, without any indication of an entry or departure from China or Hong Kong in the course of that travel.
In a statutory declaration attached to the application, the applicant claimed that he had worked in China as a salesperson in a supermarket established and developed by his father. In conjunction with a school friend he claimed to have established a “pro‑democracy organization” using the same name as an organisation which had been repressed in the 1990s. He said that a group of 12 young people established the organisation in 2003, and he was elected as the chairman. He was in charge of organising meetings, “organizing financial sources and managing financial operation, planning and organizing pro‑democracy propaganda materials”. He and his friend kept in close touch, and the propaganda material he received and distributed came from the China Democracy Party (CDP). He claimed to have been arrested and interrogated on two occasions, first, in October 2003 and then in April 2004, but he denied everything, “even if I was subjected to physical torture by the policemen”, and was released in the middle of May 2004.
By July 2004 his organisation had “62 members, including 6 small groups”. At that time, a meeting of eight of the leaders at his supermarket was subject to a police raid. He said: “I was the only one who was able to escape because I was quite familiar with the environment of the building”. He then hid at a friend’s place, and “my father therefore had to ask his friend to get a Taiwan passport with different name for me, so I could eventually go to the overseas”.
No supporting evidence for these claims was ever shown to the Department and Tribunal, other than the Taiwan passport and the Chinese identity card. In the course of the proceedings in the Tribunal, the applicant was questioned about his claimed travel arrangements and involvement in the political activities at two hearings. The first hearing was held by the Tribunal as originally constituted on 1 April 2005, and the second by the Tribunal as ultimately constituted on 3 April 2007.
A detailed account of his evidence at both hearings is given in the present statement of reasons. In particular, the second Tribunal very closely questioned the applicant about his claimed travel to Australia. The applicant said that he travelled to Hong Kong on 2 October 2004, was given the Taiwan passport with his substituted photograph in it, and left on the same day to travel to Malaysia. The Tribunal also closely questioned the applicant about his involvement in the claimed political organisation and its claimed connections with the China Democracy Party.
Under the heading “Findings and Reasons”, the Tribunal referred to uncertainty about the applicant’s identity and his nationality. It said:
However the Tribunal is unable to make a finding on his identity or nationality with confidence. Furthermore the evidence before this Tribunal does not satisfy it that the applicant’s verbal account of his journey from China via Hong Kong to Australia is truthful.
However, the Tribunal addressed his claims to be at risk of persecution as a Chinese national if he returned to that country.
It recorded a general finding adverse to his credibility:
The Tribunal found the applicant’s oral evidence internally inconsistent and inconsistent with his oral evidence before the Tribunal as previously constituted. It finds that he is not a truthful or a credible witness and does so for the following reasons.
The Tribunal identified plain inconsistencies in his accounts to both hearings as to his travel. It made a clear finding that it considered his account of his departure from China and his journey to Australia “is not truthful”.
The Tribunal also found reasons to doubt the credibility of the applicant’s evidence about his political activities. It said that this evidence:
… revealed a superficial knowledge of the original Minjiang Saloon group and the China Democracy Party both of which were linked closely in some way and influential in the decision to establish the new group referred to by the applicant as the “New Minjiang Saloon”.
The Tribunal thought that his explanation of his ignorance was implausible, and did not accept that the applicant participated in the political activities he described. It did not accept that he had played a part in establishing a new political organisation nor that he had ever been detained by authorities. It did not accept that it was for those reasons that his father had arranged his exit from China. It said:
The Tribunal is not satisfied that the applicant has ever suffered serious harm for reason of his political opinion in the past in China. It does not accept that he faces a real chance of serious harm amounting to persecution in China in the reasonably foreseeable future for any Convention related reason.
I have considered the Tribunal’s procedures and reasons, and am unable to identify any arguable jurisdictional error affecting its decision.
The applicant’s application to this Court has three grounds. The first ground alleges a failure to comply with s.424A(1) of the Migration Act. The argument which is presented appears to contend that the Tribunal should have invited written comment on its reasoning in relation to the applicant’s inconsistent evidence. However, this misconceives the effect of s.424A. I am unable to identify any information upon which the Tribunal has drawn when arriving at its conclusion which was not given by the applicant to the Tribunal at one or both of the hearings that he attended. That information would therefore be excluded by s.424A(3)(b) from any obligations under s.424A(1).
Moreover, I accept the submission of the Minister’s representative, that the Tribunal’s reasoning in relation to the applicant’s credibility was not based upon information coming within s.424A(1) in the manner suggested as necessary in SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [18]–[19]. I do not consider any arguable ground of review in relation to s.424A(1) has been shown.
Ground 2 of the application claims that “the Tribunal made its finding based on incorrect information”, and alleges that there was a misstatement or misunderstanding by the Tribunal of the applicant’s evidence. However, no particulars are given. I do not think this ground has been shown to have substance, whether as a matter of fact or as an arguable jurisdictional error.
The third ground contends “the Tribunal failed to consider my claims, properly and fairly”.
The supporting argument repeats the applicant’s refugee claims. However, it is not the function of this Court to decide the merits of the matter.
The applicant attended today, and at his request the interpreter read a submission from a document written in Chinese. It repeated the arguments shown in the original application which I have addressed above. The applicant had nothing else to say to me.
For the above reasons, I am not satisfied that the application raises an arguable case for the relief claimed, and I consider it appropriate to dismiss the application under r.44.12(1)(a).

I certify that the preceding twenty‑one (21) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 26 September 2007