SZGSP v Minister for Immigration - [2007] FMCA 368

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGSP v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 368

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91X, 422B, 425, 483A

Applicant WAEE v Minister for Immigration (2003) 75 ALD 630
SZBEL v Minister for Immigration [2006] HCA 63
VJAF v Minister for Immigration [2005] FCAFC 178

Applicant:

SZGSP

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 1810 of 2005

Judgment of:

Lloyd-Jones FM

Hearing date:

5 February 2007

Delivered at:

Sydney

Delivered on:

22 March 2007

REPRESENTATION

Advocate for the Applicant:

The applicant appeared in person with the assistance of a Mandarin interpreter

Counsel for the Respondents:

Mr G Kennett

Solicitors for the Respondents:

Mr A Cox of DLA Phillips Fox

ORDERS

The Refugee Review Tribunal is joined as the second respondent.
The name of the first respondent be amended to read ‘Minister for Immigration and Citizenship’.
The application filed on 11 July 2005 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1810 of 2005

SZGSP

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Proceedings

These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.483A of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 11 July 2005 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 16 May 2005 and handed down on 7 June 2005, affirming a decision of the delegate of the first respondent made on 16 September 2004, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks relief against the decision of the Tribunal.
The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been given the pseudonym “SZGSP”.
The applicant has not sought to join the Tribunal as a party, however given that it is an exercise of the Tribunal’s jurisdiction that is under review, I will make the appropriate order that the Tribunal is joined as a party: SAAP v Minister for Immigration [2005] HCA 24 at [43], [91], [153] and [180].
A Court Book ("CB") prepared by the respondents’ solicitors was filed and served on 1 September 2005. I have marked it Exhibit “A” and it was read into evidence.

Background

The Tribunal decision of Eraine Grotte, reference N04/49972, provides the following background information. The applicant, who claims to be a citizen of the Peoples Republic of China (“the PRC”), arrived in Australia on 8 July 2004. On 6 August 2004, he lodged an application for a Protection (Class XA) visa with the Department of Immigration under the Act. On 16 September 2004, a delegate of the Minister refused to grant a protection visa and on 11 October 2004, the applicant applied to the Tribunal for review of the delegate's decision.(CB 66)
The applicant claims that around 1999, people from Weixing Company, which was sponsored by the Fujin Province government, went to his village looking for labourers. The company's business was organising "export labour" for overseas businesses. The applicant claims that he and 20 other young men were thus recruited as "export labour" by the company. He claims that in August 1999, he was sent to Indonesia and worked on a construction site for a few months. He said that according to his contract, his wages were paid to Weixing Company which deduced 20% for administration fees. The applicant returned to China in November 1999.(CB 68)
The applicant further claims that he went to Singapore in June 2000 again as "export labour" for a construction company. Shortly after his arrival he was informed that Weixing Company would not pay the workers any wages then but would only cover their accommodation. Their wages would be paid two years later in China. The applicant claims this was to ensure that the workers returned to China.(CB 69.1)
The applicant claims that during the next two years he experienced many difficulties working on construction sites and lived in harsh conditions. After he returned to China, Weixing Company refused to pay his wages, making excuses for about five months. In October 2002, Weixing Company went bankrupt. Together with 20 other "export labourers", the applicant demanded payment of his wages to no avail.
The applicant claims that because Weixing Company was a State-owned enterprise and the "export labour" system was approved and arranged by the authorities, the Chinese government should take responsibility and pay their wages. The applicant claims he was one of six representatives elected to negotiate with the authorities. Between November 2002 and February 2003, the group visited different government departments, including the social security department, the foreign trading department, the labour’s union, the people’s congress, the local court, and the office of the people’s government. The applicant claims that the authorities would not help unless they organised a large protest.(CB 69.4)
The applicant claims that in March 2003, he participated in organising a protest against the Chinese authorities. Between March and April 2003, he helped organise five protests in Fuzhou City. The largest protest on 20 April 2003 involved 100 export labourers and a public rally and street demonstrations took place. He claims that although there was support from the people, armed police dispersed them. The applicant claims that he was arrested by the Public Security Bureau and detained from 20 April 2003 to 31 May 2003. The applicant claims he was tortured while he was in detention and only released after his family paid a bribe. He was warned not to participate in any more protests.(CB 69.6)

Tribunal’s Findings and Reasons

A summary of the Tribunal's reasons is contained in the first respondent's written submissions prepared by Mr Kennett and I adopt paragraph 4 of those submissions:
4. The Tribunal accepted that the applicant had worked overseas, had had difficulty in obtaining payment and had sought redress from the authorities. However, it did not accept that he had been involved in any anti-government activities or come to the adverse attention of the authorities, and expressed the view that he was not “'credible with respect to this substantive claims” (CB77). It gave reasons for this conclusion:
. the applicant's account of his activities and his answers to questions about them were vague and uninformed; (CB77 to 78)
. it was not plausible that, having been detained, the applicant would be able to continue his anti-government activities without being bothered by the authorities, and then leave China without difficulty on a passport in his own name; (CB 78).
. if the applicant had truly been in fear of being persecuted, he would have made inquiries about refugee status in Indonesia (where he spent some time before arriving in Australia) (CB 78 to 79).

Application for Review of the Tribunal’s Decision

On 11 July 2005, the applicant filed an application for review in this Court under s.39 of the Judiciary Act. In accordance with orders made at first directions on 3 August 2005, the applicant filed an amended application on 27 September 2005, which contained the following grounds:
1.There was an error of law in the Tribunal's decision constituting a jurisdictional error;
2.There was procedural error in the Tribunal's decision constituting an absence of natural justice.
Particulars:
1. The Tribunal ignored important independent country information in making its decision on my application; and, particularly, information from US Country Reports on Human Right Practices - 2004 release by the Bureau of Democracy, Human Rights, and Labour on February 28, 2005.
2. In the Tribunal's decision, it has mentioned in detail independent country information - Hong Kong Christian Trial Committee, “New Labour Relations”, February 1997 from CISNET (CX 26107). The Tribunal has, apparently, failed to consider following important issues - :
. Such independent country information was released in February 1997, which is 8 years old, while the Tribunal made its decision. It is, apparently, irrelevant to current situation in China;
. Even if the Tribunal wanted to use it as a reason or part of reason in making its decision, the Tribunal must 1) give to me particulars of the information that the Tribunal considers would be the reason; 2) be sure that I understand why it is relevant to the review; and 3) invite me to comment on it. The Tribunal, apparently, failed to do so. It means that the Tribunal failed to comply with its obligation under Section 424A of the Act.
3. Furthermore, the Tribunal failed to comply with its obligation under Section 425 of the Act. The Tribunal has, in fact, deprived my right to present arguments relating to the issues arising in relation to the decision under review, because the Tribunal never wants to ensure me to genuinely understand what the relevant issues are.
4. The Tribunal failed to provide me the tape recordings in relation to the Tribunal's hearing, and I therefore was unable to present a transcript as evidences in support of my claims mentioned in above Paragraph 3.
5.The first respondent did provide me a bundle of relevant documents (green book); however, it failed to provide me the tape recordings in relation to the Tribunal's hearing.
6.The Tribunal failed to consider the important information provided that I have personally been subjected to persecution owing to my political activities not tolerated by the PRC authorities.
7.In summary, I never ever believe that the Tribunal has assessed my application fairly and carefully.

Submissions and Reasons

The applicant appeared self-represented with the assistance of a Mandarin interpreter. The applicant indicated to the Court that he had filed written submissions, however, the Court records make no reference to such a document. When asked whether he had copies of those submissions, the applicant said that he only had one prepared in Chinese. The applicant was invited to make oral submissions which he did. Those submissions raised essentially the same issues as the amended application and did not encompass any new material not already before the Court. The applicant did say that he had not been provided with hearing tapes of the Tribunal hearing. Unfortunately, it was not possible to determine from the applicant at which stage had he requested the tapes and what efforts he made to obtain a copy. A transcript of the Tribunal’s proceedings was attached to the affidavit of Mr Cox, which were not provided to the applicant until the morning of the Court hearing. Mr Kennett indicated that Mr Cox’s affidavit had been sent to the applicant's last known address. However the applicant claims that he did not receive it.
The applicant appeared before me at first directions on 3 August 2005. At that time, a Mandarin interpreter explained the information and documents provided to him and assisted him in completing forms which were handed up in Court. The applicant wished to participate in the Court-sponsored legal advice scheme. He was subsequently allocated a panel adviser who held a conference with him on 28 November 2005 for the provision of legal advice. There is no information on the Court file about requests for hearing tapes or about problems in obtaining them. The applicant appeared before me for second directions when I reviewed the file and allocated a final hearing date. When the applicant was asked whether he was ready to proceed to final hearing, he confirmed this and the issue of the hearing tapes was not raised. I am satisfied that the applicant has been given ample opportunity to raise this issue earlier, however, no formal requests were made either by him or his panel adviser for the supply of those tapes.
In the amended application under the heading “Particulars” is reference to a 2004 United States country report on Human Right Practice released by the Bureau of Democracy, Human Rights and Labour on 28 February 2005. The applicant has extracted the following passages:
The Constitution provides for freedom of association. However, in practice, workers were not free to organize or join unions of their own choosing…
During the year, the Government took specific actions against illegal union activity, including the detention and arrest of labour activists. In April, Chen Kehai and Zhao Yong, workers from the Tieshu Textile Factory in Suizhou, Hubei Province, were tried under summary proceedings and convicted on charges of disturbing public order for their involvement with a labour protest at the factory. A third worker, Zhu Guo, reportedly was tried and convicted on charges of assembling a crowd to disturb social order. Four other Tieshu workers were sentenced to re-education through labour (see Section 2.b).
Other labour activists, detained in previous years, were reportedly still in detention at year's end. In May 2003, Yao Fuxin and Xiao Yunliang, leaders of a large labour protest in Liaoyang City, Liaoning Province, who were detained in March 2002, were sentenced to 7 and 4 years in prison for subversion, based largely on allegations that they had made contact with the CDP in 1998, several years before the workers protests. Many observers believe that the sentences were largely in retaliation for their role in the labour protest and in exposing official corruption. Prison authorities continued to deny the two activists’ applications for medical parole. Other labour activists reportedly still in detention, included Hu Mingjun, Wang Sen, Wang Miaogen, Zhang Shanguang, Li Wangyang, Li Jiaqing, Miao Jinhong, Ni Xiafei, Li Keyou, Liao Shihua, Yue Tianxiang, Guo Xinmin, He Zhaohui, Peng Shi, Wang Guoqi, and labour lawyer Xu Jian.
Mr Kennett submits that there is no evidence of the above document being before the Tribunal. Even assuming that it was, a failure to refer to a document in a decision does not mean the Tribunal was unaware of it. A failure to take into account a particular item of evidence (as opposed to a claim or an issue) does not amount to jurisdictional error. Mr Kennett referred to ApplicantWAEE v Minister for Immigration (2003) 75 ALD 630 at [46] where French, Sackville and Hely JJ stated:
46.It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised `with an eye keenly attuned to error'. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
I accept Mr Kennett's submission that the first particular of review cannot be sustained.
The second particular of the amended application refers to the independent country information “Hong Kong Christian Trial Committee, "New Labour Relations", February 1997 from CISNET (CX26107)”. Under the heading “Claims and Evidence” in the Tribunal decision is extracted almost four pages of that report. The amended application claims that the report was eight years old at the time of the Tribunal decision and it is therefore irrelevant due to the current situation in the PRC. Mr Kennett submits that this is no more than a complaint about the weight the Tribunal chose to give to a particular item of information. It does not disclose a ground of judicial review. In respect of the second issue raised under this ground, Mr Kennett submits that the obligation under s.424A to provide particulars of information which would be part of the reason for affirming a delegate's decision does not arise in respect of the country information: VJAF v Minister for Immigration [2005] FCAFC 178.
I accept the submissions of Mr Kennett in respect of both issues are raised by the applicant in the second particular. I am satisfied that this particular cannot be sustained.
The third particular claims that the Tribunal failed to comply with s.425 of the Act. This case, when decided, was subject to s.422B which establishes that the obligations of procedural fairness apply to the extent that they are imposed by Div. 4 of Part 7 of the Act. Consequently, it is not necessary to determine whether s.425 is to be regarded as involving an obligation similar to common law principles of procedural fairness. This would require the applicant's attention to be drawn to the issues which arise in relation to the decision under review. The claim is not apparent and the applicant did not provide any further explanation. I am satisfied that this particular cannot be sustained.
The fourth particular claims that the Tribunal failed to provide the applicant with a tape recording of its hearing. This has been referred to above and it is not apparent that any formal request for the supply of the hearing tapes was made. This issue was not raised by the panel adviser in any formal way. Mr Kennett, in his written submissions, contends it is clear that the course of questioning adopted by the Tribunal was sufficient in directing the applicant's attention to the issues upon which the decision ultimately turned. Mr Kennett addressed five of those issues. First, the delegate had rejected the applicant's claim of being a disaffected worker (let alone a politically active one) as "totally unsubstantiated". It described his claim to have been involved in representing workers as lacking in any "persuasive or compelling evidence".(CB 43) Mr Kennett argues that the credibility of the applicant's claim would be an issue in any review.
Secondly, the letter inviting the applicant to attend a hearing told him that the Tribunal was unable to make a favourable decision on the information already before it.(CB 56) Mr Kennett submits that together with what the delegate said, the inescapable inference was that the Tribunal needed to be convinced of the veracity of the applicant's central factual claims.
Thirdly, the Tribunal questioned the applicant closely about the activities in which he claimed to have been involved.(Transcript pp.9-17) The Tribunal also pressed the applicant for answers when he was unresponsive.(Transcript pp.10.40–12.7, 13.40), or when it needed more detail (Transcript pp.12.20, 12.42, 14.5-14.29, 14.38- 25.15). The applicant was thus put on notice that the details of his claim were important and given an extended opportunity to elaborate on them. (Transcript p.21.27-21.41)

Fourthly, the presiding member expressed her difficulty in accepting that the applicant was not arrested for regularly distributing anti-government leaflets. She also had problems with the applicant’s account of how he left China.(Transcript p.17) The delegate had also referred to the implausibility of the applicant obtaining a passport in his own name and leaving China, if he had a political profile.(CB 43)
Finally, the Tribunal questioned the applicant on why he did not seek refugee status in Indonesia and was then not satisfied with his explanation.(Transcript p.20.15-20.35) Mr Kennett submits that the facts of the present case are far removed from SZBEL v Minister for Immigration [2006] HCA 63 (“SZBEL”) where that the delegate's decision was not based on certain aspects of that applicant’s claims, and the Tribunal itself "did not say anything to him that would have revealed to him that these were live issues.": SZBEL at [43]. Here, the only aspect of the Tribunal's ultimate reasoning that was not expressly foreshadowed was its opinion that the applicant's answers were vague and uninformed. However, SZBEL confirms that "procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given”: SZBEL at [48]. Mr Kennett submits that, accordingly, even if s.425 imposes standards analogous to the common law principles of procedural fairness, this Tribunal did not fail to meet those standards.
I accept Mr Kennett's submission in respect of the third particular, and that this particular of the applicant’s argument should be rejected.
The third and fourth particulars of review were raised elsewhere and do not substantially add to the issues considered. These two particulars can be ignored.
In the sixth particular, the applicant claims that the Tribunal failed to consider important information which he provided. He claims he was persecuted because of his political activities which were not tolerated by the Chinese authorities. This contention is not supported by the Tribunal decision as it clearly considered and rejected the applicant's assertion of persecution. Clearly, the Tribunal did consider the claims raised by the applicant; however, the applicant takes issue with the Tribunal's conclusion which was not in his favour. I am satisfied that no jurisdictional error is identified in this particular.

Conclusion

The applicant appeared at the hearing as a self-represented litigant. Mr Kennett, for the respondents, assisted the Court with written submissions which were supplemented by oral submissions in respect of the amended application. I am satisfied that none of the grounds identified can be sustained. Neither is it apparent that any other grounds of review exist to suggest the Tribunal made a jurisdictional error in its decision-making process. The application should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate:

Date: 19 March 2007