SZGQK v Minister for Immigration - [2008] FMCA 982

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGQK v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 982

MIGRATION – RRT decision – Chinese applicant claiming persecution as perceived Taiwan spy – disbelieved by Tribunal – reference by Tribunal to applicant’s activities in Australia – whether a breach of s.91R(3) occurred – no jurisdictional error found – application dismissed.

Migration Act 1958 (Cth), ss.36, 91R(3), 91R(3)(a), 91R(3)(b), 424A

Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59
SZJGV v Minister for Immigration & Citizenship [2008] FCAFC 105

Applicant:

SZGQK

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3522 of 2007

Judgment of:

Smith FM

Hearing date:

2 July 2008

Delivered at:

Sydney

Delivered on:

2 July 2008

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms S Sirtes

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $4,900.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3522 of 2007

SZGQK

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant came to Australia in December 2004, and applied for a protection visa on 24 January 2005. His application was refused by a delegate of the Minister on 23 February 2005, and the applicant appealed to the Refugee Review Tribunal. The Tribunal has made three decisions in response to his application. The first two decisions were set aside by consent orders in the Federal Court and this Court, based on grounds of jurisdictional error which are not relevant to my present judgment.
The application which is before me today asks for judicial review of the third decision of the Tribunal, dated 27 September 2007 and handed down on 18 October 2007. The Tribunal affirmed the decision of the delegate, after conducting a hearing which the applicant attended on 16 August 2007.
The Tribunal took into account, as in my opinion it was entitled to, the whole of the evidence presented by the applicant to the Tribunal in the course of the previous proceedings, including a hearing which he had attended on 5 October 2006, and a number of documents he presented to the Tribunal. These documents included some documents purporting to corroborate his employment by Taiwanese companies with factories in his province of Fujian, and also what was claimed to be a summons from the county Public Security Bureau to attend an “interrogation” in November 2004.
The Tribunal summarised the claims which had been presented by the applicant to the Department of Immigration and to the Tribunal at the commencement of its “Findings and Reasons”. It is sufficient for me to repeat its description. It said:
The applicant arrived in Australia on 19 December 2004 and applied to the Department of Immigration and Multicultural Affairs for a Protection (Class XA) visa on 27 January 2005. The applicant’s core claims are that he has been suspected of being a Taiwanese spy because he worked as a welder for several Taiwanese firms in Fujian; he has established close contact with Taiwanese individuals who held senior positions in these firms and has remained in contact and received gifts from them; he was dismissed from his job in 1999 because of these suspicions and could not get another job with a Chinese firm; and his wife and parents have been threatened by the local authorities because he is suspected of being a Taiwanese spy; and, because he was suspected of being a Taiwanese spy, his child has been denied family registration.
More recently, the applicant claims that a fisherman friend who visited Mazu Island and spoke to some Taiwanese was sentenced to five years in jail and identified him (the applicant) as being a Taiwanese spy; his hometown is very close to Taiwan and many young people living there sell material to the Taiwanese so the Chinese authorities are further suspicious of him because of the proximity of where he lives to Taiwan; and that one of his Taiwanese friends had been in the Taiwanese army which make them even more suspicious of him.
The Tribunal then presented a number of reasons for disbelieving the history upon which the applicant asserted a fear of returning to China. It said:
The Tribunal finds that the claims made by the applicant are very general and lack specifics such as why the PRC authorities would suspect him, as a simple welder, of having any information or indeed knowledge that could be regarded as sensitive or confidential state or indeed other material that would be of any interest to the Taiwanese authorities.
It explained why it doubted that he would be a person of any interest, or a person who would give rise to any suspicions, including by reference to country information which it had previously set out. This suggested that Taiwanese factories were common in Fujian, and that the Chinese authorities had no difficulties with their operations, but actively encouraged them and were generally not worried about security or confidentiality issues. It summarised its conclusion:
In short, the Tribunal accepts the applicant’s claims that he was a welder and was involved in making parts for vehicles. Accordingly, and based on the claims made by the applicant, the Tribunal has not been able to satisfy itself that he was ever in a position where he could be regarded as having special or privileged access to information or material that was not already widely available to the Taiwanese from copious other sources or indeed would have been of interest to the Taiwanese authorities. Given this finding, it follows that the Tribunal is satisfied that the PRC authorities were themselves not concerned that he may act as a spy on behalf of the Taiwanese authorities in order to pass any information to Taiwan.
The Tribunal also addressed the applicant’s claim that he might be perceived to be a Taiwanese spy due to the proximity of his village to the closest point to Taiwan and other reasons. It concluded that it could not find any evidence in independent country information that the Chinese authorities thought that people from his village, or even province, were regarded as being prone to spying on behalf of the Taiwanese.
The Tribunal then referred to a further consideration when disbelieving the applicant, which was that if he had been suspected of being a Taiwanese spy, and had lost his job and had been closely monitored because of a close association with his Taiwanese employers and workmates, “then he would not have been issued with a Chinese passport on 15 September 2003 and then be allowed to legally leave China on 18 December 2004 from Guangzhou Airport using this passport issued to him with his own name, photograph, and other details in it”.
The Tribunal referred to country information about the close monitoring of its border by Chinese authorities in relation to its own citizens. It referred to a number of concerns about this which had been put to the applicant in a s.424A letter, to which the applicant had not responded. It formed a positive conclusion that he would not have been granted a Chinese passport, nor been allowed to leave China, if he was suspected of being a Taiwanese spy.
The Tribunal referred to the purported summons for interrogation in November 2004, and to country information which had been put to the applicant, showing that such documents were easily forged in China. The Tribunal said that it had not been able to satisfy itself that the summons was genuine, nor that he had a well‑founded fear of serious harm for a Convention reason “on this basis”. It said:
On the contrary, the Tribunal is satisfied that the documents he has provided are not genuine but rather were forged in order to support his claims and, accordingly, finds no weight can be given to them.
The Tribunal concluded that it did not accept the applicant’s claimed history of working for Taiwanese firms and of being suspected as a Taiwanese spy as a result, nor of his being summonsed by the PSB. It did not accept his other claims relating to being suspected of being a spy. It said: “it also follows that the Tribunal is satisfied that the applicant has not been truthful and is not a credible witness”.
On the last page of its statement of reasons, the Tribunal considered whether putting aside the parts of his claims which it had rejected based on its disbelief of his history, the applicant could be regarded as making a “wider claim that he fears persecution in China because of his political views and the lack of political and human rights and freedoms in China”. The Tribunal noted that the applicant had not made “any further specific claims in this regard” and “provides no evidence whatsoever to support this claim”. It said:
The Tribunal accepts that the freedom to express political views and the approach to human rights are considerably different in Australia to China as is attested to by a wide variety of independent country information. However, the Applicant does not make any further specific claims in this regard that have not already been dealt with by the Tribunal and, from the Applicant’s limited claims, the Tribunal has not been able to satisfy itself that he has experienced any difficulty in the past because of his political opinion (actual or imputed), or that there is any reason to suspect there is a real chance he would experience any difficulty whatsoever, let alone serious harm amounting to persecution, for a Convention reason on this basis if he were to return to China. Further, the applicant provides no evidence whatsoever to support this claim. Nor does he mention any other activities he has previously been involved in that could be regarded as political activities in China, such as belonging to a political party (legal or illegal), or participation in demonstrations, protests or processions, political campaigns, or activities on behalf of workers rights. Further, the applicant does not claim that he has participated in any anti‑Chinese government demonstration or protests in the nearly three years that he has been in Australia or to have written letters or other material critical of the Chinese government. Accordingly, the Tribunal is satisfied that the applicant does not have a well founded fear of serious harm amounting to persecution for a Convention reason on this basis, and the Tribunal does not accept this claim. Further, and based on his activities in both China and Australia, the Tribunal is satisfied that the applicant would not be involved in actual or imputed political activities if he returned to China, now or in the reasonably foreseeable future, and is satisfied that he does not have a well founded fear of serious harm amounting to persecution on this basis.
The present application to set aside the Tribunal’s decision relies on three grounds:
1.The RRT rejection of my refugee claims is unreasonable. I have experienced persecution and mistreatment from the Chinese Government because the Chinese Government suspected I am a Taiwanese spy. If I return to China, I will be persecuted by the Chinese Government.
2.The RRT failed to take all relevant information into consideration when applying a real chance test in determining whether I will be persecuted by the Chinese government or the local authority in my hometown if I return to China.
3.The RRT’s decision making was affected by error of law.
These have not been amplified or explained in any amended application or written submissions filed by the applicant. I have attempted to consider whether any substance to them can be found in the reasoning of the Tribunal, but am unable to find it.
I do not consider that the reasoning of the Tribunal can be characterised as “unreasonable”, so as to provide jurisdictional error in the manner suggested by the High Court in Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [40]‑[44], [101], [124]‑[127], [145]‑[147], [159], and [183]‑[188], and in Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [9], [36]‑[37], [81], [128], and [137].
It was the Tribunal’s task to consider the extent that it was satisfied by the history claimed by the applicant and his documents, and I consider that the conclusions arrived at by the Tribunal were open to it on that material. Although its reasoning is not concisely set out, I consider that it sufficiently shows a rational and genuine consideration of his claims. Essentially, in my opinion, the first ground asserts the truth of the applicant’s refugee claims, and invites the Court to address this for itself. However, it is not the function of the Court to do this.
The second ground does not identify what “relevant information” was not taken into account, and I am unable to identify any. Nor am I able to identify any misconception by the Tribunal of legal principles which might be characterised as the “real chance test” arising from the effect of the Refugees Convention definition as adopted by s.36 of the Migration Act 1958 (Cth).
The third ground is totally unexplained, and I am unable to give it any meaningful application to the present decision.
The applicant today made two points about the Tribunal’s decision. He submitted that the Tribunal could not have arrived at its decision, because it could “not be assured that if he went back to China he would not face persecution”. However, the Migration Act does not require the Tribunal to reach a state of “assurance” that there is no risk of persecution. As interpreted in the High Court of Australia in the authorities cited by the Tribunal, the Tribunal is obliged to consider whether it is satisfied as to a claimed history of persecution, and to assess, based upon its findings, whether there is a real chance that the applicant would face persecution if he returned. In my opinion, the Tribunal has addressed the issue posed by the Migration Act.
The applicant’s second submission was that the Tribunal did not tell the applicant what documents it would not accept as being genuine, and that it did not provide him with an adequate explanation for rejecting their genuineness. However, in my opinion the Tribunal did explain why it did not accept, in particular, the summons presented by the applicant. The applicant had been warned in its s.424A letter that it might take the view that it had been “forged in order to support your claims”. In my opinion, it was open to the Tribunal to have arrived at that conclusion in the light of the other evidence before it, both from the applicant himself and the general information to which it referred.
A third point about the Tribunal’s decision was raised by me with counsel for the Minister, concerning the paragraph of the Tribunal’s reasons which I have extracted above concerning a possible “wider claim”. I drew attention to the Tribunal’s reference in the last sentence of that paragraph to “his activities in both China and Australia”, and I invited submissions concerning the effect of SZJGV v Minister for Immigration & Citizenship [2008] FCAFC 105.
In that recent decision, the Full Court construed s.91R(3) of the Migration Act as precluding a Tribunal from taking into account an applicant’s conduct in Australia as a reason for finding that he or she did not have a well‑founded fear of persecution, unless the Tribunal had first made a finding that he or she engaged in that conduct “otherwise than for the purpose of strengthening the person’s claim to be a refugee”. This has the consequence, that a Tribunal must ignore some conduct in Australia which would disprove the genuineness of refugee claims.
In effect, the Full Court construed the words in s.91R(3)(a): “in determining whether the person has a well‑founded fear of being persecuted” as meaning “in determining whether or not the person has a well‑founded fear of persecution”. It has not adopted a construction which would give the words “in determining whether” the meaning of “when determining that”, so that the preclusion on taking a person’s conduct into account would apply only in the event that the Tribunal was contemplating a positive finding that the person was a refugee.
The Full Court suggested some qualifications as to the nature of “conduct in Australia” which might be subject to the precondition of a finding in terms of s.91R(3)(b), in [22]‑[26] of their judgment. There are many issues in relation to this which will need to be worked through. Their Honours also appear to have accepted at [31] that a Tribunal’s decision which has taken into account conduct in Australia in contravention of s.91R(3) might survive being set aside for jurisdictional error if it “was independently supportable by reason of other findings”.
In the present case, I am not satisfied either that the Tribunal has improperly taken into account the applicant’s “conduct in Australia” coming within s.91R(3) in its reference to “his activities in … Australia” in the last sentence of the paragraph extracted above.
It is difficult to identify what it was referring to as his “activities” in Australia. It is possible that the Tribunal was only referring to the fact that the applicant had not made specific claims, nor provided any evidence supporting the “wider claim”, which might have survived the Tribunal’s rejection of the applicant’s claimed persecution in China. If so, the absence of other claims and evidence being presented by the applicant when making a protection visa application in Australia would not appear to come within the concept of “conduct in Australia” as discussed in the Full Court.
Moreover, even if the Tribunal in its last sentence in this paragraph was referring to actual activities engaged in by the applicant independently of his presenting his application, and even if s.91R(3) encompasses conduct by way of an omission in activities engaged in in Australia, I consider that the Tribunal’s conclusion in this sentence was itself an alternative finding. This is because the Tribunal’s rejection of the “wider claim” also depended upon a separate finding by it in the preceding sentence. In this, it found that the applicant “does not have a well founded fear of serious harm amounting to persecution for a Convention reason on this basis”. I would read that sentence as indicating a finding that the applicant did not have a subjective fear of such harm occurring independently of the past persecution which he had claimed. The word “further” suggests that the Tribunal’s conclusion in its last sentence was an alternative or additional independent reason. I am therefore not satisfied that the Tribunal’s decision is affected in any jurisdictional manner by a contravention of s.91R(3).
For the above reasons, I am not satisfied that the Tribunal’s decision was affected by jurisdictional error, and I must dismiss the application.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 25 July 2008