SZGQZ v Minister for Immigration

[2007] FMCA 563

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGQZ v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 563

MIGRATION – Findings of fact reasonably open to the Tribunal – not reviewable – applicant must establish case – conclusions and deliberations of the Tribunal are not “information” within s.424A – country information excluded from s.424A(1).

Migration Act 1958 (Cth), ss.424A(1), 424A(1), 424A(3)(b), 425

Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 144 ALR 567
SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62
SZEEU v Minister for Immigration and Multicultural Affairs [2006] 150 FCR 214

Applicant: SZGQZ

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 3508 of 2006

Judgment of: Turner FM

Hearing date: 20 March 2007

Date of last submission: 20 March 2007

Delivered at: Sydney

Delivered on: 20 March 2007

REPRESENTATION

The applicant appeared in person

Solicitor for the Respondents: Ms Karen J O’Flynn of Clayton Utz

ORDERS

1. The application and amended application are dismissed.

2. The name of the first respondent is amended to the Minister for Immigration & Citizenship.

3. The applicant is to pay the costs of the first respondent fixed in the sum of $3,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3508 of 2006

SZGQZ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application filed on 27 November 2006 for an order to show cause why a remedy should not be granted in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 4 October 2006 and handed down on 26 October 2006, which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa. The applicant filed an amended application for an order to show cause on 1 March 2007.

2. The applicant was born on 14 May 1964 and claims to be from China, and of Christian faith (“the Applicant”).

3. The applicant is married with three children.

4. The applicant arrived in Australia on 17 October 2004 on a visitor’s visa, which had been issued in Guangzhou on 5 October 2004.

5. The applicant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 30 November 2004. In this application he claimed that he would be persecuted upon his return to China for breaching the one child policy, and also for his religious beliefs and involvement with an underground Christian church.

6. This application was refused by a delegate of the first respondent on

   
   

   27 January 2005.

7. On 28 February 2005 the applicant filed an application for review of the decision of the Minister’s delegate with the Refugee Review Tribunal. The applicant gave oral evidence before the Tribunal on

   
   

   4 May 2005, at which time he maintained the claims made in his original protection visa application.

8. On 2 June 2005 the Tribunal handed down its decision, dated

   
   

   13 May 2005, affirming the decision of the Minister’s delegate refusing to grant the applicant a protection visa (Court Book “CB” 82).

9. The applicant applied to the Federal Magistrates Court for a review of the decision made by the Tribunal, and on 19 June 2006 orders were made by consent quashing the decision of the Tribunal and directing that the matter be remitted to the Tribunal for consideration according to law (CB 96).

10. In a decision dated 4 October 2006 and handed down on 26 October 2006, the Tribunal affirmed the decision not to grant the applicant a protection visa.

    In considering the applicant’s claims, the Tribunal found (CB 131-4) (emphasis added):

    I am satisfied, and find, that the applicant is a national of the PRC.

    Of China’s so-called “one child policy” and its consequences for the applicant and his family, I consider plausible his claim that he and his wife had three children in China and that the family faced various serious hardships during the late 1980s and the 1990s as a result of breaching that policy. That claim is consistent with evidence from the U.S. State Department (2006, U.S. State Department, Country Reports on Human Rights Practices - 2005, released by the Bureau of Democracy, Human Rights, and Labor, 8 March) that the PRC’s birth planning policies retain harshly coercive elements in law and practice. The laws restrict the rights of families to choose the number of children they have and the period of time between births. The penalties for violating the law are strict, leaving some women little choice but to abort pregnancies. In addition implementation of the policy by local officials has resulted in serious violations of human rights. Reports of forced sterilisations and abortions, in violation of the national law, continue to be documented in rural areas. The law standardises the implementation of the government's birth limitation policies, but enforcement varies significantly from place to place. The law grants married couples the right to have one birth and allows eligible couples to apply for permission to have a second child if they meet conditions stipulated in local and provincial regulations.

    However I am satisfied that by 2000 all the problems arising from the couple’s breach of the “one child policy” had been resolved in practice. The applicant gave unequivocal evidence to that effect. He had paid all the fines, his wife had been sterilised and the matter was resolved so far as the authorities were concerned. The applicant was employed in a position commensurate with his skills and abilities. The general quality of his life was good. His PRC passport was issued without any problems in 2003. He was facing no adverse consequences as a result of breaching the one child policy by the time he left PRC in October 2004. As he said, he was not intending to seek asylum when he arrived in Australia, the reason being that he did not have a fear of being persecuted in China at that time. He has expressed no fear of harm in the future because of having breached the one child policy in the past. For these reasons I find that he has no well-founded fear of Convention-related persecution for any reason arising from his past breach of the one child policy.

    Of his claims to have been a member of an underground church, to have assisted it in the course of his employment, and to now be wanted by the authorities because a fellow member of the church revealed these things to the PSB, I have serious doubts about the veracity of some aspects of his account.

    However I am satisfied, as he appeared to be familiar with the industry, that he was employed by a firm which manufactured paper. 

    As to his claims of having provided large quantities of paper to a Christian group, and to have been identified as being part of an underground church for having done so I have regard to the following.

    The most crucial aspect of his account is his evidence regarding the woman, whom he claims was apprehended by the PSB at some point in the course of passing on paper from the applicant’s firm to the underground church group. This matter is central to his account because he claims that she then gave information to the police about him, as a result of which he now faces arrest. The applicant told the Tribunal that she did not work at his firm, but when pressed was unable to say what role she had played in relation to delivering a consignment of paper while he was unavailable. It remained unclear from his evidence at what point she had become involved in its delivery, or what contribution she could possibly have made to the firm’s normal process of delivering a quantity of paper to a customer. As the applicant claims he normally accompanied the paper to its destination, so would presumably have had to make careful arrangements with this woman if she was to temporarily take over his role, one would expect him to have been readily able to tell the Tribunal about those arrangements. The applicant’s evidence in relation to many other matters was not vague, yet his evidence relating to this woman’s role lacked basic details. I consider his claim that she played the role he claimed, and was arrested as a result, to be implausible.

    Further, he claimed that at least some of the recipients were printing firms, a claim from which I infer that a delivery of paper would attract no official suspicion at all. It remains difficult to understand from his evidence why the applicant might have bothered to accompany these deliveries. His explanation as to why he felt he had to accompany all the deliveries of paper to the various church-related recipients lacked cogency, and added to an impression that he was not being truthful about these activities.

    The applicant has submitted documents purporting to be summonses and a verdict, issued in 2004 and 2005. If the Tribunal could be satisfied that they were genuine, that would go some way to overcoming the considerable doubts I have, referred to above, about the plausibility of his account. However these documents do not refer to any law in the penal code having been broken. Further, there is evidence which I consider reliable, from Australia’s Department of Foreign Affairs and Trade (DFAT) that

    As a general comment on the value of Chinese official documents, this embassy’s experience has shown that any official document can be either bought or forged in China. Irregular or improper issue of documentation is widespread.  Thus, we would suggest that little evidentiary weight can be placed on any official Chinese document, including summonses (DIMIA, 2000, Country Information Report No. 301/00 – Summonses in China (sourced from DFAT), 20 June).

    In addition, he has claimed that his wife sent two further summonses to him this year, and a letter in which she expresses her belief in Christianity, refers to being “scared of” what had happened to the applicant’s “church friends”, and provides details of police harassment of her, while putting the family’s home address as the sender’s address on the envelope. Asked by the Tribunal why she would have risked doing so, given that authorities open and censor domestic and international mail (see U.S. State Department, 2006) the applicant conceded that the local PSB had already visited the address and that it would be disastrous if they realized his wife had sent this material to him. His explanation, that she had to put the home address on the envelope so that it would be returned safely if it could not be delivered, is far from convincing. Clearly she could have used a friend’s or relative’s address, or even the address at which her husband claims she is now living, rather than using the very address which was known by the PSB to be that of the applicant and thus most likely to attract suspicion. Further, the letter asserts that the PSB had threatened his wife for keeping his whereabouts a secret. It is not consistent with that assertion that his wife was willing to address the envelope to him in Australia and use the family’s home address as the source of the letter, a link which would clearly reveal his whereabouts.

    For the above reasons I do not consider the content of the letter, or of the documents purporting to be summonses and a verdict, reliable as sources of evidence. I am also not satisfied that the applicant’s wife is in hiding or that she fears the PRC authorities for the reasons claimed, either on her own or the applicant’s behalf.

    I accept that in 2005 leaders of unauthorised religious groups were sometimes the target of harassment, interrogation, detention and physical abuse. I also accept that police closed "underground" churches and other places of worship, and that local officials destroyed some unregistered places of worship around the country (see U.S. State Department, 2006, section 2c). However I am not satisfied, and do not accept, that the Public Security Bureau has information that the applicant is a member of, or has assisted, an underground church. I am therefore not satisfied that they wish to arrest him for these reasons.

    Although his evidence about the church at Padstow was vague, and he showed little familiarity with it, I accept that the applicant may have attended a church in Sydney until some five months before the second Tribunal hearing. That is consistent with his ability to answer basic questions about Christianity at the first hearing. I am also satisfied that he may have attended a registered Christian church in China, given his evidence of his two sisters’ connections with such a church and his evidence that he had attended it, although I cannot ascertain with any confidence how regular or frequent that attendance may have been.

    However, I am not satisfied that he was or is being sought by the PSB in China because of his involvement with an underground or unregistered church in China, nor that he was involved in any way with an “underground” or unregistered church there. I am satisfied that, if he wished to attend church in China, he could and would attend a registered church, and that if he did so this would be an entirely lawful activity (see 2006, U.S. State Department) and would not give rise to any Convention-related harm at all.

    For the reasons above the Tribunal finds that the applicant does not have a well-founded fear of persecution for a Convention reason in China.

11. The applicant then filed the application in this Court, seeking judicial review by way of an order to show cause, of the Tribunal’s decision.

The application

1. In his application, the applicant set out grounds as follows:

   ·There was an error of law in the Tribunal’s decision constituting a jurisdictional error;

   ·There was procedural error in the Tribunal’s decision constituting an absence of natural justice.

Particulars:

1)Frankly speaking, at the time while I left the hearing room after I had attended the hearing before the currently constituted Tribunal, I thought that my review application must have been successful, because the currently constituted Tribunal made me believe that my oral evidences and my arguments had been well understood and completely accepted by Ms. Philippa McIntosh, the Presiding Member of the currently constituted Tribunal (“the Presiding Member”). Therefore, I am very much surprised at which the currently constituted Tribunal has still decided to affirm not to grant me a protection visa.

2)I accept that “the most crucial aspect of” my account is my evidence “regarding the woman…whom” I claim “was apprehended by the PSB at some point in the course of passing on paper” from my firm “to the underground church group”. This matter is central to my account because I claim that she then gave information to the police about me, as a result of which I now face arrest. However, the Presiding Member, at any time before she made her decision (before, during, or after the hearing before the currently constituted Tribunal), ensure me to understand the key issue that “It remained unclear” from my evidence “at what point she had become involved in its delivery, or what contribution she could possibly have made to the firm’s normal process of delivering a quantity of paper to a customer.”

3)Furthermore, the Presiding Member, at any time before she made her decision (before, during, or after the hearing before the currently constituted Tribunal), ensure me to understand that “It remains difficult to understand from” my evidence why I “might have bothered to accompany these deliveries”.

4)It is true that those documentary evidences submitted by me “would go some way to overcoming the considerable doubts” referred to above. However, the Presiding Member has apparently misunderstood summonses and a verdict submitted by me because she did not have basic knowledge about them. It is not the case that I explained those legal documents hereby, but it is the case that the Presiding Member failed to ensure me to understand her concerns about it.

5)In addition, the Presiding Member has completely confused my evidences that my wife had sent two further summonses to me this year and a letter in which she expresses her current situation in China. Again, it is not the case that I make any explanation hereby, but it is the case that the Presiding Member, at any time before she made her decision (before, during, or after the hearing before the currently constituted Tribunal), ensure me to understand the issues.

6)I have to say that the Presiding Member failed to comply with her obligations under the s.424A(1) of the Act. In this case, the Presiding Member, failed to provide me particulars of those pieces of the negative information or negative issues before she made her decision; the Presiding Member has failed to ensure me to understand that those pieces of negative information or native (sic) issues mentioned above would be directly in relation to my review application; and the Presiding Member has failed to invite me to comment on those pieces of negative information or negative issues.

7)Also, I have to say that the Presiding Member failed to comply with its obligations under s.425 of the Act. During the Tribunal’s hearing, the Presiding Member failed to invite me to comment on those pieces of negative information or negative issues, because she failed to provide them to me, clearly and completely.

8)Finally, I have to say that the currently constituted Tribunal exceeds its powers and thus commits a jurisdictional error because it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal’s power.

The amended application

1. In his amended application filed on 1 March 2007, the applicant set out the same grounds with particulars as follows:

   ·There was an error of law in the Tribunal’s decision constituting a jurisdictional error;

   ·There was procedural error in the Tribunal’s decision constituting an absence of natural justice.

Particulars:

1)The Tribunal significantly assessed my evidences unfairly; and I have been misled by it; and it presented unsupported, unreasonable and capricious adverse conclusion to justify its decision.

Particulars 1(a) to 1(e) are virtually the same as those in the original application, and are as follows (with words inserted in bold)

a)Frankly speaking, at the time while I left the hearing room after I had attended the hearing before the currently constituted Tribunal, I thought that my review application must have been successful, because the currently constituted Tribunal made me believe that my oral evidences and my arguments had been well understood and completely accepted by Ms. Philippa McIntosh, the Presiding Member of the currently constituted Tribunal (“the Presiding Member”). Therefore, I am very much surprised at which the currently constituted Tribunal has still decided to affirm not to grant me a protection visa.

b)I accept that “the most crucial aspect of” my account is my evidence “regarding the woman…whom” I claim “was apprehended by the PSB at some point in the course of passing on paper” from my firm “to the underground church group”. This matter is central to my account because I claim that she then gave information to the police about me, as a result of which I now face arrest. However, the Presiding Member, at any time before she made her decision (before, during, or after the hearing before the currently constituted Tribunal), failed to (emphasis added) ensure me to understand the key issue that “It remained unclear” from my evidence “at what point she had become involved in its delivery, or what contribution she could possibly have made to the firm’s normal process of delivering a quantity of paper to a customer.”

c)Furthermore, the Presiding Member, at any time before she made her decision (before, during, or after the hearing before the currently constituted Tribunal), failed to ensure me to understand that “It remains difficult to understand from” my evidence why I “might have bothered to accompany these deliveries”.

d)It is true that those documentary evidences submitted by me “would go some way to overcoming the considerable doubts” referred to above. However, the Presiding Member has apparently misunderstood summonses and a verdict submitted by me because she did not have basic knowledge about them. It is not the case that I explained those legal documents hereby, but it is the case that the Presiding Member failed to ensure me to understand her concerns about it.

e)In addition, the Presiding Member has completely confused my evidences that my wife had sent two further summonses to me this year and a letter in which she expresses her current situation in China. Again, it is not the case that I make any explanation hereby, but it is the case that the Presiding Member, at any time before she made her decision (before, during, or after the hearing before the currently constituted Tribunal), failed to ensure me to understand the issues.

2)The Tribunal failed to comply with its obligations under s.424(1) of the Act.

a)The Presiding Member has considered some of information, such as the one that those documents (summonses and a verdict) do not refer to any law in the penal code having been broken; or another one that those documents might be in relation to the information from DFAT; as well as the one regarding my wife’s sending those documents to me; etc. as the reason or part of the reason for making her findings.

b)However, the Presiding Member failed to provide me particulars of those pieces of the information before she made her decision; the Presiding Member has failed to ensure me to understand they would be in relation to my review application; and the Presiding Member has failed to invite me to comment on them.

3)The Tribunal failed to comply with its obligations under s.425 of the Act.

Particular 3(a) is the same as particular 7 in the original application as follows:

I have to say that the Presiding Member failed to comply with its obligations under s.425 of the Act. During the Tribunal’s hearing, the Presiding Member failed to invite me to comment on those pieces of negative information or negative issues, because she failed to provide them to me, clearly and completely.

The applicant then repeats particular 8 of the original application as follows:

Finally, I have to say that the currently constituted Tribunal exceeds its powers and thus commits a jurisdictional error because it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal’s power.

Findings as to the grounds in the application

1. Particular 1 challenges the rejection of the decision of the Tribunal generally, expressing surprise that the decision of the delegate was affirmed. The particular does not establish any ground for review and it is rejected.

2. In Particular 2: The applicant refers to the most crucial aspect of his evidence, being the claim that the woman who took over delivering paper for the church gave information to the police and the applicant now faces arrest. The applicant states that he was assured by the Tribunal that the key issue was that it remained unclear from his evidence “at what point she had become involved in the delivery, or what part she played in delivering the paper.” The Tribunal found this claim about the woman delivering paper to be implausible (CB 133.1). That finding was reasonably open to the Tribunal and is not reviewable. This particular is rejected.

3. Particular 3: this particular seeks to review a finding that it was difficult for the Tribunal to understand why the applicant might have bothered to accompany the deliveries of paper (CB 133.2). The Tribunal found that the applicant was not being truthful about those activities (CB 133.3). That finding as to credibility was properly open to the Tribunal and does not warrant review. This particular is rejected.

4. Particular 4 complains that the Tribunal failed to make it clear at the hearing what concerns the Tribunal had about summonses and a verdict submitted by the applicant. There is no breach of natural justice or other law in the Tribunal failing to raise all matters of concern to it at the hearing. There is no breach of Div 4 Pt 7 of the Migration Act. This particular is rejected.

5. Particular 5 alleges that the Tribunal misunderstood the applicant’s evidence that his wife sent to him this year two summonses and a letter expressing her current situation in China. The applicant alleges that the Tribunal did not ensure that he understood the issues.

   It is for the applicant to establish his case to the satisfaction of the Tribunal: Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 144 ALR 567 at 596. The Tribunal found (CB 133.9) that it did

   not consider the content of the letter, or of the documents purporting to be summonses and a verdict, reliable as sources of evidence. I am also not satisfied that the applicant’s wife is in hiding or that she fears the PRC authorities for the reasons claimed, either on her own behalf or on the applicant’s behalf.

   Those findings were properly open to the Tribunal and do not call for review. This particular is rejected.

6. Particular 6 alleges a failure to comply with s.424A(1) of the Act, claiming that the Tribunal failed to provide the applicant with particulars of the “negative information” and did not invite him to comment on it. In submissions to the Court the applicant said the breach of s.424A was that the Tribunal failed to express in writing the doubts it had about the summons and seeking his views on those doubts. The Court will return to the issue of s.424A later.

7. Particular 7 alleges that the Tribunal failed to comply with s.425 of the Act. This section requires the Tribunal to invite the applicant to appear and give evidence in relation to the decision under review. The Court finds that the Tribunal complied with that section by way of the letter of 21 July 2006 (CB 101). The applicant attended the hearing and gave evidence (CB 125.4). This particular is rejected.

8. Particular 8 is a general claim of “excess of power, asking the wrong question, ignoring relevant material, relying on irrelevant material, and making erroneous findings.” Nothing has been put to the Court to establish any such errors and the particular is rejected.

Findings as to the grounds in the amended application

1. The grounds are taken to be the same as in the application. The addition of the words in bold is of no significance as the particulars in the original application are understood by the Court to have the same meaning as those in the amended application. Particulars 1(a)-1(e) are the same as particulars 1-5 in the application and are rejected for the reasons already expressed.

2. Particular 2 alleges a failure to comply with s.424A(1) of the Act. Particulars 2(a) and (b) complain that the Tribunal “considered information about the summonses and verdict not referring to any special law in the penal code having been broken.” The conclusions of the Tribunal are not “information” for the purposes of s.424A(1): SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62. The Court refers to the supplementary reasons delivered on 6 February 2007 in SZCIJ at para.5 as follows:

   matters which the appellant seeks to raise under 424A are not ‘information’ falling within 424A(1). Rather they constitute part of the Tribunal’s subjective appraisal or thought processes.

   See also SZEEU v Minister for Immigration and Multicultural Affairs [2006] 150 FCR 214 para.206: “‘information’ does not encompass the Tribunal’s subjective appraisals, thought processes or determinations.” The Court applies this statement of law.

   The Court understands the “negative information” in particular 6 of the application to refer to the concerns the Tribunal had about the summonses and verdict. The words “negative information” is taken to refer to country information. Such information is covered by the exclusion in s.424A(3)(a). There was no breach of s.424A(1).

3. Particular 3 of the amended application alleges a breach of s.425 and is rejected for the same reasons given regarding particular 7 of the application.

4. The final particular in the amended application is the same general claim as particular 8 of the application and is rejected for the same reasons.

Conclusion

1. The Court finds no error of law, denial of natural justice or reviewable findings of fact. The respondents have shown cause why orders should not be made for the relief claimed. The Tribunal’s decision is a privative clause decision, and has not been infected by jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.

2. Accordingly, the application and amended application are dismissed.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Turner FM

Associate:  Sarah James

Date:  13 April 2007