SZGVR v Minister for Immigration

[2006] FMCA 1781

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGVR v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1781

MIGRATION – Review of decision by Refugee Review Tribunal – use of independent country information – whether independent information in public domain.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); pt.8 div.2

Re Minister for Immigration and Multicultural Affairs & Ors; Ex Parte Cassim (2000) 175 ALR 209
WAEJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 597
VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74
Kioa v West (1985) 159 CLR 550

Applicant: SZGVR

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG1979 of 2005

Judgment of: Emmett FM

Hearing date: 21 November 2006

Date of last submission: 21 November 2006

Delivered at: Sydney

Delivered on: 5 December 2006

REPRESENTATION

Counsel for the Applicant: Mr B. Zipser

Counsel for the Respondent: Ms L. Clegg

Solicitors for the Respondent: Ms Z. Brauer, Clayton Utz

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1979 of 2005

SZGVR

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 10 May 1999 and handed down on 12 May 1999.

2. The applicant was born on 24 December 1968 and claims to be from the People’s Republic of China (“the PRC”) (“the Applicant”).

3. The Applicant arrived in Australia on 4 September 1996, having legally departed from Fujian on a passport issued in his own name and a visitor’s visa issued on 30 August 1996.

4. On 9 September 1996, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural Affairs (“the Department”) under the Act.

5. In his protection visa application, the Applicant claimed that he feared persecution by the Chinese government due to his involvement in anti-Chinese Communist Party (“CCP”) activities in 1989, including making speeches demanding freedom, democracy and human rights, taking part in anti-CCP government activities and demonstrations in Fuzhou city and participating in demonstrations in memory of students shot at Beijing Tiananmen Square.

6. On 3 June 1997, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).

7. On 30 June 1997, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. Before the Tribunal, the Applicant maintained the claims made in his protection visa application.

   
   

   On 10 May 1999, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.

8. On 27 July 2005, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

1. Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.

2. Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.

3. Australia has protection obligations to a refugee on Australian territory.

4. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

   “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

The Tribunal proceeding

1. The Applicant attended a hearing of the Tribunal on 29 October 1998 and gave oral evidence.

2. The Tribunal noted the Applicant’s claims were set out in written submissions to the Department, written submissions to the Tribunal and oral evidence. The Tribunal noted that at the hearing the Applicant reiterated his previous claims and added that he is now involved with the KMT Association in Sydney (which I understand to be associated with the China National Party) and has been involved in seminars and other activities and has applied for membership of the China National Party. The Tribunal noted that the Applicant sent a number of documents and photographs post hearing, which he alleged illustrated his activities with the KMT Association.

3. The Tribunal summarised the Applicant’s claims as arising from:

   i)Harm suffered by him and family members during the Cultural Revolution;

   ii)Participation by him in the pro democracy movements in Fujian around May – June 1989;

   iii)Criticism by him of the CCP whilst in New Zealand;

   iv)Involvement by him in anti-CCP activities through his membership and participation in the KMT Association in Sydney.

4. I now turn to the Tribunal’s consideration and findings in respect of these four claims.

(i) Applicant’s claim relating to his family

1. In considering the Applicant’s claims relating to his family, the Tribunal accepted that the Applicant’s parents may have been persecuted during the Cultural Revolution. However, the Tribunal concluded that the effect on the Applicant’s life was not persecution for the purposes of the Convention.

2. The Tribunal gave reasons for that conclusion based on the Applicant’s family background, that he was not deprived of an education and that any lack of employment was because of the economic situation.

   
   

   The Tribunal noted that the Applicant himself stated that the reason for any unemployment was because of the economic situation.

   
   

   The Tribunal also had regard to the fact that the Applicant was able to set himself up successfully in a small business and was employed with a firm where he was a valued member and was asked to represent the company at a trade fair in New Zealand.

3. The Tribunal concluded that, having regard to these factors, there was no real chance of persecution because of the Applicant’s family background, now or in the reasonably foreseeable future.

(ii) Applicant’s pro-democracy activities

1. In relation to the Applicant’s claims relating to his pro-democracy activities, the Tribunal had regard to independent country information. The Tribunal found that independent country information broadly agreed with the events described by the Applicant and the Tribunal accepted that the Applicant may have participated in pro-democracy activities. The Tribunal noted that the Applicant claimed that he gave speeches “in front of the masses”. However, the Tribunal found that the independent country information before it indicated that chanting seemed to have been the method of the students voicing of their opinions, rather than speeches.

2. The Tribunal found that the actions described by the Applicant of his activities were participatory, rather than ones of leadership.

   
   

   The Tribunal found that the Applicant was not a high profile student leader or dissident and that, even if he participated in any demonstrations at any time in Fuzhou, his participation was not in any leadership capacity.

3. The Tribunal noted that independent country information indicated that Chinese authorities, for the most part, did not seem to treat harshly people who merely participated in demonstrations and non-leadership roles. The Tribunal also had regard to independent information that indicated that the Chinese government was no longer interested in people involved in the 1989 pro-democracy movement, provided they had not become involved in high level dissident activities on their return to the PRC. The Tribunal stated the independent information before it suggested that, whilst persecution is still occurring in the PRC, it appears that those who are suffering persecution now are current high profile dissidents and certain minority groups.

   
   

   Other independent information revealed no indication that 1989 activists are still being pursued by the police and revealed that the PRC government was no longer repressing 1989 pro-democracy activists.

4. Based on this independent information, the Tribunal concluded that there is not a real chance that the Applicant would be persecuted for his political opinion, should he return to the PRC, now or in the foreseeable future.

(iii) Applicant’s claims in New Zealand

1. In relation to the Applicant’s claims of conversations he had in New Zealand criticising the PRC government that were overheard, resulting in a warning to him that he would be held responsible for what he was saying, the Tribunal was not satisfied that such a warning occurred. The Tribunal observed that there was no means of corroborating the Applicant’s claims. The Tribunal noted that, even if it were to accept that the events occurred as the Applicant asserted, it found it implausible that punishment of a kind which could constitute Convention persecution would be meted out to the Applicant.

2. For those reasons, the Tribunal found there is no real chance that the Applicant would be persecuted for his conduct in New Zealand, now or in the reasonably foreseeable future.

(iv) Applicant’s claim of participation in KMT activities in Sydney

1. In relation to the Applicant’s claims of political activities in Australia, the Tribunal accepted that the Applicant has participated in activities of the KMT Association in Sydney and has applied to become a member of the KMT Party. However, from information provided by the Applicant, the Tribunal found that not all activities of the KMT Association are political or represent political activism.

2. In considering this claim, the Tribunal also had regard again to independent information before it that indicated that those with former influence and positions with established high profiles in the PRC as protest leaders and who were capable of effecting and organising large scale demonstrations, were unlikely to be permitted to return to the PRC. The Tribunal found that independent information revealed that the PRC was not unduly perturbed by those who claimed to be leaders of pro-democracy organisations overseas but who did not have a leadership role and a high public profile before they left the PRC.

3. The Tribunal observed that it had referred to independent information about prominent dissidents in the PRC because the Applicant had mentioned the arrest of Wei Jiengsheng (“Wei”), a known prominent dissident, in his submission. The Tribunal stated that it “wishes to emphasise the difference between a high profile dissident such as Wei and the Applicant.”

4. The Tribunal found that there is no real chance that the Applicant would be persecuted for his activities in Australia, should he return to the PRC.

5. The Tribunal stated that it considered the Applicant’s claims individually and cumulatively and concluded that his fear of persecution for a Convention reason was not well founded.

The proceeding before this Court

1. The Applicant was represented before this Court by Mr Zipser, of counsel. The Applicant read an affidavit affirmed by him on 1 May 2006. The affidavit addressed the delay of 6 years by the Applicant in seeking judicial review of the Tribunal’s decision.

2. The Applicant was granted leave to file in Court and rely on an amended application. Counsel for the Applicant identified Grounds 1 and 2 as those being relied upon and did not press Ground 3. Grounds 1 and 2 of the amended application are in the following terms:

   “1. The Tribunal accepted that the applicant had engaged in pro-democracy activities in China, but found that there was “not a real chance that the applicant would be persecuted for his political opinion should be return to China”. (CB 122.8) The Tribunal based this finding in part on country information. On the face of the Tribunal’s decision, the Tribunal did not put the country information to the applicant and give him an opportunity to comment. If the transcript of the RRT hearing supports this point, there was a denial of procedural fairness giving rise to jurisdictional error.

   2. The Tribunal accepted the applicant’s claim that he had participated in activities of the KMT Association in Sydney. However, the Tribunal found that “there is no real chance that the applicant would be persecuted for his activities in Australia should he return to the PRC”. (CB 125.7) The Tribunal based this finding in part on country information. On the face of the Tribunal’s decision, the Tribunal did not put the country information to the applicant and give him an opportunity to comment. If the transcript of the RRT hearing supports this point, there was a denial of procedural fairness giving rise to jurisdictional error.”

Ground 1

1. At the heart of this ground is a complaint that the Tribunal did not put to the Applicant independent country information to which it had regard.

2. Counsel for the Applicant contended that the Tribunal relied on independent country information in concluding that, whilst the Applicant had engaged in pro-democracy activities in the PRC, there was not a real chance that the Applicant would be persecuted for his political opinions, should he return to the PRC, because he did not have any leadership role in such activities.

3. In particular, counsel for the Applicant stated that the Applicant claimed that he gave speeches “in front of the masses”. Counsel for the Applicant submitted that independent information which stated that “no speeches were given at any of the demonstrations we witnessed or heard described”, was not put to the Applicant prior to the Tribunal concluding that it doubted the Applicant’s assertion that he gave speeches. Counsel for the Applicant submitted that the Tribunal relied on independent information that suggested that chanting was the method used by students voicing their opinion and not speeches.

4. A transcript of the Tribunal hearing, prepared and tendered by the Applicant, disclosed that the Applicant claimed to have made two speeches and that several people were delivering speeches simultaneously.

5. Counsel for the Applicant submitted that the participation by the Applicant in the giving of speeches was consistent with a person of a high level of participation, rather, than merely one of the protestors and was therefore suggestive of a leadership role.

6. However, the Applicant stated, in material provided in supported of his application, that he is a dissident but that he does “not know whether I am an important organiser or not”. That statement cannot be consistent with a claim of being a high profile leader or dissident in any leadership capacity. There is no claim by the Applicant to have a leadership role. In circumstances where he did not know whether or not he was an important organiser, it cannot be a jurisdictional error on the part of the Tribunal to conclude, as it did, that the Applicant was not a high profile student leader or dissident and that, even if he participated in any demonstrations any time in Fuzhou, his participation was not in a leadership capacity.

7. Accordingly, the Applicant’s contention that the Tribunal failed to consider a claim by the Applicant that he had a leadership role because he made two speeches is not made out, where the Applicant himself does not profess to be “an important organiser”.

8. Counsel for the Applicant also contended that the Tribunal, in considering the Applicant’s claim of persecution for participation in the demonstrations in the terms claimed by the Applicant, had regard to independent information before it that was not put to the Applicant during the hearing. Counsel for the Applicant contended that the Tribunal’s failure to put independent information upon which it relied in making adverse findings, resulted in a denial of procedural fairness to the Applicant by depriving him of an opportunity to address that information.

9. The Tribunal identified independent sources of information from which it concluded that there is not a real chance that the Applicant would be persecuted for his political opinion, should he return to the PRC. Those sources were made up of extracts from two academic papers, and information obtained from DFAT, Asia Watch and Amnesty International reports. All sources provided substantially the same information, namely, that it is only high profile dissidents who continue to be at risk in the PRC.

10. Information referred to by a tribunal that is in the public domain and readily accessible by an applicant, if not put to an applicant prior to making an adverse finding does not result in a denial of procedural fairness (Re Minister for Immigration and Multicultural Affairs & Ors; Ex Parte Cassim (2000) 175 ALR 209 at [22]; VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 at [27]; Kioa v West (1985) 159 CLR 550 at [587]).

11. It may be arguable that the academic papers, to which the Tribunal had regard, may not have been information necessarily in the public domain, or of which the Applicant should be aware. However, those papers did no more than repeat information provided by the extracts from DFAT, Asia Watch and Amnesty International reports. The DFAT, Asia Watch and Amnesty International reports were information in the public domain and information readily accessible to the Applicant.

12. Counsel for the Applicant referred the Court to WAEJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 597 (“WAEJ”) where a tribunal relied on country information, in making an adverse finding, without advising the applicant of its intention to rely on that material and without offering the applicant an opportunity to comment upon it, thereby denying the applicant procedural fairness. The independent information before the tribunal in WAEJ was a Reuters report and was used by that tribunal as founding a particular adverse conclusion without putting that information to the applicant.

13. However, the Full Court of the Federal Court in WAEJ found that there was nothing in the Reuters report that could have grounded the tribunal’s finding. Accordingly, the Full Court of the Federal Court held that the applicant had been denied the opportunity to divert the tribunal from error by pointing out that the report was wholly unable to support the conclusion drawn by the tribunal. Further, the Full Court found that the applicant could not have been expected to know, or to have any understanding of, the manner in which the tribunal would purport to use the information.

14. The use of independent information by the Tribunal, in the proceeding before this Court, is quite different from the use made of independent information by the tribunal in WAEJ. In the proceeding before this Court, the Tribunal’s findings and conclusions were made in accordance with the independent information, namely, that it was only those who had been high profile dissidents in the PRC that continued to be at risk. The Tribunal’s decision did not turn on anything contained in the academic writings alone.

15. In the circumstances, there was no denial of procedural fairness to the Applicant of the type or nature that occurred in WAEJ. There was nothing in the academic writings of such a critical nature that was not otherwise contained in the other independent country information. Further, there can be no claim of a lack of understanding on the part of the Applicant of the use that the Tribunal would make of such information, where the Tribunal made findings in accordance with that information. To the extent that the information relied upon was information from DFAT and Asia Watch and Amnesty International and was to the same effect, there is no denial of procedural fairness to the Applicant not to put to him other information in academic writings that was in similar terms to the information disclosed by the other reports, whose information was clearly in the public domain.

1. Moreover, there was no evidence presented by the Applicant, in the nature of independent information that supported his claim that those who participated in the pro-democracy activities were persecuted by reason only of their participation. That opportunity was available to the Applicant prior to the hearing.

2. Accordingly, Ground 1 is not made out.

Ground 2

1. Counsel for the Applicant submitted that, essentially, he relied on the same submissions as he had made in support of Ground 1, namely, that the Tribunal failed to put independent information upon which it relied as part of the reason for affirming the decision under review to the Applicant, thereby denying him procedural fairness.

2. The Tribunal referred specifically in its decision to two DFAT communications from which it concluded that it was only high profile dissidents who had leadership roles in pro-democracy organisations before they left the PRC that were at risk of persecution, were they to return to the PRC. The Tribunal otherwise accepted the Applicant’s claims of participation in activities of the KMT association in Sydney.

3. A fair reading of the decision makes it plain that the Tribunal found that the Applicant was not a high profile dissident in the PRC, such as Wei. The Tribunal also noted it was the Applicant who had mentioned Wei in his submissions. The Tribunal plainly drew a distinction between the activities in the PRC of Wei and the activities in the PRC of the Applicant. Those findings of fact were open to the Tribunal on the evidence and material before it and for which it provided reasons.

4. Accordingly, Ground 2 is not made out.

Conclusion

1. In the circumstances, the decision of the Tribunal is not affected by error and the proceeding before this Court should be dismissed.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate:  S. Kwong

Date:  5 December 2006