SZGQE v Minister for Immigration - [2005] FMCA 1656

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGQE v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1656

MIGRATION – RRT decision – Chinese applicant claiming political persecution – disbelieved by Tribunal – no error found.

Migration Act 1958 (Cth), ss.474, 477(1A), 483A, Pt.8
Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), Sch.1 Pt.2 cl.8(2)(b)

SZDLR v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 773

Applicant:

SZGQE

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG1712 of 2005

Judgment of:

Smith FM

Hearing date:

3 November 2005

Delivered at:

Sydney

Delivered on:

3 November 2005

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms K Morgan

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $4,400.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1712 of 2005

SZGQE

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 1 September 1998. The Tribunal affirmed a decision of a delegate taken on 6 June 1997 refusing an application for a protection visa. Although the Tribunal’s decision was made before the establishment of this Court, it has jurisdiction (see SZDLR v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 773).
The applicant has not commenced previous judicial review proceedings in relation to the Tribunal’s decision, so that under the transitional provisions of the amendments which introduced the present Part 8 ‘privative clause’ provisions his application is subject to s.474 and s.477(1A) (see Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), Sch.1 cl.8(2)(b)). The effect of these provisions is that I do not have power to set aside the Tribunal’s decision and send the matter back to the Tribunal, unless I am satisfied the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant qualifies for a protection visa nor any other permission to stay in Australia.
The present applicant arrived in Australia in February 1997 on a one‑month temporary business visa. His application for a protection visa was lodged on 5 March 1997 with the assistance of a migration agent, Priscilla International Co Pty Ltd. It attached a statutory declaration which recounted a history in which the applicant claimed that members of his family had been persecuted since the Communist revolution. His grandfather had been sentenced to death as a Kuomintang officer. His father suffered during the Cultural Revolution. He himself was forced to go to the countryside as a youth. However, he subsequently obtained good employment and worked hard.
He claimed that in 1986 he became interested in organising his fellow employees to discuss political matters. He came under the attention of the security department of the factory, and in 1988 was detained by police and dismissed from his employment. He claimed that he had joined an organisation in his province which organised demonstrations and rallies during the pro‑democracy movement. As a result he was detained in July 1989 and was “physically tortured by those policemen”.
He claimed that in March 1990 he was sent to labour reform, where he was held for three years before being released. He then claimed that he had to report to the local police station regularly and that his reporting requirements continued until he left to come to Australia. He claimed that he left China because:
Unfortunately, our underground pro‑democratic activities had been found out by PRC authorities in the end of 1996 owing to our activities. Some of members had been arrested. Although the authorities did not find that I was a key member in this organisation, I was very frightened at that time. With the help of my good friends, I hid in a small town where was far from (his province). The only way for me was to leave this country as soon as possible.
He claimed that the police had made inquiries about him at his wife’s house before he left, and “I tried every means to leave the country, even changed my name”.
A delegate refused the application on 6 June 1997, and the applicant appealed to the Tribunal on 25 June 1997 assisted by the same agent. The applicant attended a hearing on 17 August 1998 and the Tribunal gave a summary of his evidence in response to its questions about his claims.
The Tribunal asked him questions about the name appearing on his passport, which he claimed showed Chinese characters similar but different to his real name, both characters being Romanised into the same name. An issue concerning his real name had been a key point made by the delegate when refusing the application. It is clear, in my opinion, that the applicant had reasonable opportunities to give his evidence concerning that issue to the Tribunal, and that no breach of procedural fairness occurred in relation to that matter.
Under the heading “Findings and Reasons”, the Tribunal provided an analysis of the applicant’s claims, both in his written statutory declaration and his oral evidence, and an assessment of those claims against country information available to the Tribunal. In my opinion, its reasons provided a careful analysis of the evidence, and I consider it has arrived at conclusions which as a matter of law were open to it. They were not necessarily the only conclusions which might have been arrived at by a Tribunal, but it is not my function to make findings myself as to whether the applicant should have been believed.
The Tribunal said at the start of its reasoning that “the Tribunal has doubts about the credibility of some of the Applicant’s claims”. It then referred to some unsatisfactory aspects of how the applicant gave his evidence at the hearing and some inconsistency with his original written claims. The Tribunal also found inherent implausibility in some aspects of his claim, and inconsistency of key parts with country information concerning the responses of the Chinese authorities to pro‑democratic activities and opinions.
The Tribunal accepted that the applicant’s family “may have suffered after the Communist Party came to power” and that he had been “politically active in his workplace in 1987‑88 and that as a result he was detained, demoted and later dismissed”. It also accepted that he had “some involvement in the 1989 pro‑democracy movement in (his province)”.
However, it made a key conclusion:
The Tribunal does not accept that the Applicant formed a pro‑democracy movement with M and four others as he claimed. The Applicant was unable to explain to the Tribunal’s satisfaction why the group was formed given the proliferation of major and very active groups, including workers’ groups, and his evidence about his activities was inconsistent.
Even if he formed the group as he claimed, the Tribunal does not accept that he was detained in July 1989 for nine months by the PSB and then sent to a labour camp for three years because of his relatively minor pro‑democracy activity with a tiny ineffectual group. The Tribunal also doubts the Applicant’s rather vague and implausible claim that he had to report weekly, and later less frequently, for nearly four years after his release.
The Tribunal referred to country information which it thought was inconsistent with these claims.
In relation to the applicant’s claims of political activities after his release, the Tribunal said that “his oral and written evidence was inconsistent”. It said that country information suggested:
that some dissent such as small scale protests/demonstrations are commonplace and tolerated by the authorities and that political reform is widely and vigorously debated in academic and official circles. … These reports do not suggest to the Tribunal that those involved in past political activities, or who had difficulties with the authorities in the past, are currently of interest to the Chinese authorities.
It also said that, on his own account, the applicant was not of interest to the authorities.
The Tribunal referred to the difficulty of making “a finding about the Applicant’s real Chinese name and therefore whether he used a passport in a false name to leave the country”. It pointed to reasons for not being satisfied that he had, and concluded:
The Tribunal is not satisfied that the Applicant has a well‑founded fear of persecution for reason of his political opinion if he returned to China.
The applicant’s application was filed in this Court on 1 July 2005 while he was in immigration detention in Villawood. He informed me that he had been arrested on 23 June 2005. I have taken into account the difficulty he would have encountered in obtaining representation and assistance, and have carefully considered the matter.
His application makes three complaints:
1.If I go back to my country, I will be risk of suffering persecution. Within the meaning of the 1951 Convention relating to the status of Refugees and the 1967 protect relating to the status Refugees.
2.Member of RRT failed to understand my claim and failed to consider relevant matters. Further particulars to be provided.
3.The respondent refused to grant my protection visa application without any proper grounds and proper investigation.
The first complaint does not raise jurisdictional error, but asserts refugee status. That is not a matter which I can decide.
The second ground is unparticularised, and I have not been able to identify relevant matters which the Tribunal was legally bound to consider and failed to consider.
I am unable to give the third ground (if it relates to the Tribunal’s decision) any substance.
The applicant was referred to a member of the legal panel under the free advisory service, who has given advice to the applicant. I do not know the body of his advice, but the applicant submitted two paragraphs from that advice, and asked me to consider the contentions which they raise.
The first paragraphs is:
Despite my view, it may be open for you to contend that the Tribunal, having accepted that you were victimized in the period up to 1986 because of your political views, ought to have considered the possibility that you may resume your activities on return to the PRC and find yourself again at risk. If that contention is followed you may consider contending that the Tribunal misunderstood the concept of persecution.
In my opinion, no error as suggested occurred. The Tribunal’s reasoning, in my opinion, shows that it addressed the implications of the applicant’s political history insofar as it was accepted by the Tribunal, i.e. disbelieving the significant episode of pro‑democracy activity detention and reporting requirements. In my opinion, it did address how the applicant might be dealt with if he returned to China and continued low‑profile political activities which the Tribunal accepted had occurred in the past. The Tribunal found that such people are not “currently of interest to the Chinese authorities”. It therefore in my opinion sufficiently addressed whether the applicant would be persecuted if he “resumed his activities”. I can find in the Tribunal’s reasoning no misunderstanding by it of “the concept of persecution” nor of the claims made by the applicant to come within the Convention definition.
The second paragraph is:
Further, it may be argued that the Tribunal was under a duty to provide you with an opportunity to comment in writing after the hearing as to the allegation that you used your own passport to leave the PRC. I note that section 424A of the Migration Act, mandate that the Tribunal invites comments in writing in respect of some information adverse to the applicant’s contentions and relied upon in the Tribunal’s decision making process. Arguably, the information concerning data in your passport and in the PV application needed to be put to you to ensure the fairness of the review process. The view is supported by the fact that the Tribunal placed substantial importance on the passport/identity issue.
I have above already dealt with whether a ‘common law’ breach of procedural fairness occurred in relation to the Tribunal’s use of information from the applicant’s passport or in relation to the applicant’s name, and rejected this. In my opinion, the assessments arrived at by the Tribunal on the evidence given by the applicant concerning the name on his passport were not a matter which it was obliged to have specifically foreshadowed and raised with the applicant.
I do not accept the suggestion that the Tribunal was in breach of s.424A of the Migration Act by failing to invite comments in writing. Most clearly, because that section came into operation on 1 June 1999, and did not apply to this Tribunal’s proceedings which gave rise to its decision in September 1998. There was no similar duty on the Tribunal under the legislation applicable to its decision‑making.
For the above reasons I have not been able to find jurisdictional error affecting this decision of the Tribunal. It is therefore a privative clause decision, and I must dismiss the application.
RECORDED : NOT TRANSCRIBED

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

Associate: Iliya Marovich‑Old

Date: 21 November 2005