SZGXT v Minister for Immigration
[2007] FMCA 259
•26 February 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGXT v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 259 |
| MIGRATION – RRT decision – Chinese applicant claiming political persecution – disbelieved by Tribunal – no jurisdictional error found. |
Migration Act 1958 (Cth), ss.424A, 424A(1), 425, 483A, Pt.8
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
| Applicant: | SZGXT |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG2121 of 2005 |
| Judgment of: | Smith FM |
| Hearing date: | 26 February 2007 |
| Delivered at: | Sydney |
| Delivered on: | 26 February 2007 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Mr J Smith |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $4,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2121 of 2005
| SZGXT |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application filed on 9 August 2005, in which the applicant seeks judicial review under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 3 June 2005 and handed down on 7 July 2005. The Tribunal affirmed a decision of a delegate made on 2 February 2005, which refused to grant a protection visa to the applicant.
The Court’s jurisdiction under s.483A has been repealed, but the repeal does not affect the continuance of this proceeding. The jurisdiction is subject to limitations under Part 8 of the Migration Act, which have the effect that I cannot set aside the Tribunal’s decision and send the matter back to the Tribunal, unless I am satisfied that its decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant’s refugee claims should be believed, nor whether he qualifies for a protection visa.
The applicant arrived in Australia in November 2004. Soon after his arrival, an application for a protection visa was lodged on his behalf by an agent, Priscilla Yu. A statutory declaration signed by the applicant recounted a history upon which he claimed protection in Australia against return to his country of nationality, the People’s Republic of China.
The applicant claimed to have worked as a bookkeeper in a factory, and to have discovered corrupt payments being made. He claimed to have revealed this to a friend, who then went missing. While the applicant was on a business trip in early 1999, he was suddenly arrested by the PSB and accused of taking money from his employer. He claimed to have confessed after being beaten, and to have been sentenced to two years imprisonment. During his imprisonment he suffered physical and mental persecution, and he was not able to find “any normal and stable jobs” after he was released in March 2001. He said he was required to report once a month to police.
Notwithstanding this experience, in October 2002 he was persuaded by Mr Z, who had been imprisoned with him, to “participate in the political movement against the PRC authorities”. He said:
p)Instructed by Mr. Z, I have distributed hundreds of pro‑democracy materials in my hometown [town] during the period from November 2002 to October 2004. In June 2003 Mr. Z assisted me to have my name changed and then got a passport for me through his friend Mr. H. Mr. Z also told me that Mr. H would assist me to leave the country if something happened to me owing to my political movement against the PRC authorities.
q)I finally got into troubles in October 2004, because Mr. Z and his friend Mr. L were arrested while they distributed some propaganda materials in Beijing during the public holidays of National Day. I was informed by Mr. H, who worked in the PSB in [city], and previously got a passport for me. I immediately escaped to [that city] from my hometown as soon as I got the news. I asked Mr. H to assist me to leave the country .
r)Carefully arranged by Mr. H, I successfully left the country on 29th November 2004.
s)My families and friends in my hometown have been subjected to investigation by the PSB. The PSB has clearly informed my parents that I have been classified as a key person who has actively and deeply involved in the anti‑government movement.
No supporting material was given to the Department. In his reasons for refusing a visa, the delegate disbelieved the claims because “it is difficult to accept that the authorities would have allowed the applicant to depart China freely had he been of real interest”. The delegate made other points, and formed the opinion that “the applicant does not have a well‑founded fear of Convention based persecution”.
The applicant’s application for a review was brought by his agent, and was accompanied by a submission which repeated verbatim the claims made to the Department.
The applicant attended a hearing on 16 May 2005. He presented to the Tribunal two documents, one of which he claimed was a “Certificate of Being Released from Prison” and the other was an identification card showing the name which he claimed was his real name. The Tribunal also examined his passport in a different name, upon which he travelled to Australia.
The Tribunal questioned the applicant about his claims, including his imprisonment and his claimed pro‑democracy activities between 2002 and 2004. The applicant has not presented a transcript of the hearing, although the possible need for this was drawn to his attention in the Court’s directions given at the first court date in 2005.
According to the Tribunal’s description of the hearing, it had difficulty accepting that pamphlets or leaflets had been written on his dictation, and that he had distributed them in a public street. It drew his attention to its difficulties, and at the end of the hearing expressly told him: “I had difficulty accepting that he had ever been involved in any anti‑government or pro‑democracy activity”. The Tribunal also expressed its difficulties in accepting that the applicant had been assisted to leave the country by a PSB officer. The applicant maintained to the Tribunal “that he had been involved in the anti‑government movement in China and he would receive a very serious sentence. He might even be sentenced to death” if he returned to China.
Under the heading “Findings and Reasons”, the Tribunal gave brief reasons for disbelieving most of the applicant’s narrative. It said:
As I indicated to the Applicant in the course of the hearing before me, I accept that he was convicted of taking money to which he was not entitled, that as a result of this conviction it would have been difficult for him to obtain employment as a bookkeeper or accountant and this may have provided him with a motive for wishing to travel overseas. As I noted, it would also have been difficult for him to travel in his own name as a result of his conviction and this would explain why he obtained a passport in a false name. The Applicant agreed. As I put to him, however, I do not accept that he was ever involved in any anti‑government or pro‑democracy activity. The Applicant’s evidence regarding his involvement in the distribution of anti‑government pamphlets or leaflets was unconvincing. He claimed that the pamphlets or leaflets which he had been distributing had consisted of two sheets of paper which had been closely printed with text which he himself had dictated yet he was only able to tell me in the broadest terms what he claimed had been written on the two sheets of paper. He resorted to slogans about democratic freedom, human rights freedom and legal protection, the same slogans he resorted to when giving his reasons for having come to Australia. Moreover he was unforthcoming about the manner in which he had distributed these pamphlets or leaflets, eventually claiming that he had given these papers to people in the streets. As I put to him, I do not consider it credible that he would have been able to do this for a period of almost two years without attracting the attention of the PSB.
The Tribunal then made it clear that, although it accepted the applicant’s evidence regarding his true identity:
… I do not accept that he was falsely charged with taking a sum of money from the company for which he had been working in [city] nor that the reason why he was falsely charged was that he had found out that the company regularly paid large amounts in ‘allowances’ to a government official and members of the official’s family.
The Tribunal expressly rejected all of the applicant’s claims that following his release he had become involved in an anti‑government political movement, and that he had been assisted, as he claimed, by a friend and a PSB official. The Tribunal did not accept that the applicant had in the past been prevented from expressing his true political opinions, nor that there was a real chance that he would be prevented from expressing his true political opinions if he returned to China. It did not accept that there was a real chance that he would be persecuted for reasons of his real or imputed political opinion if he returned to China.
I have considered the Tribunal’s reasons. It had the difficult task of assessing the credibility of the applicant’s narrative and, in my opinion, has shown that it has made a genuine attempt to perform that task. I am not satisfied that its reasons or its procedures reveal any jurisdictional error affecting its decision.
The applicant’s application sets out six “particulars” of general allegations of error of law and procedural error.
1.The Tribunal’s decision has included a reasonable apprehension of bias.
(a)The Tribunal deliberately ignored the reason why I was sentenced 2‑year imprisonment when I was in China.
The fact-:
Although I was, on the surface, convicted of taking money to which I was not entitled, I was actually trapped by those corruptive officials and leaders who intended to cover the truth. Particularly, I could not get any support and helps. I was beaten by those policemen, and I was told that I would be tortured to death if I refused to “confess” my “crime”. I eventually had to give up, and confessed “everything” which was in fact framed by those corruptive officials.
(b) The Tribunal deliberately ignored my sufferings during my 2‑year imprisonment.
The fact-:
During my imprisonment, I was subjected to physical and mental persecution not only by the policemen, but also by those criminals. Particularly, I was forced to manufacture tourist commodities, such as hats or caps, and all of the products would be exported to the overseas. Before I was in the jail, I used to be told by Mr. L that it is absolutely illegal to export those products manufactured by the criminals in the jail. However, the PRC authorities are still doing so, and forced us to work day and night without any payment.
(c)The Tribunal deliberately ignored my sufferings after I was released.
The fact-:
Since I was released in March 2001, I have not found any normal and stable jobs except some of odd ones. I have been required to report to the local police station once a month, submitting my “self‑examined” report. Sometimes, I have been required to attend political study organized by the local police station or the local government. The policemen or officials from local government have come to my place sometimes for investigation.
(d)The Tribunal deliberately ignored that I have, in fact, deprived of my basic right to seek an appeal in China.
(e)The Tribunal deliberately ignored that my sufferings were mainly caused by my political opinions and actions against those corruptive officials in China.
2.The Tribunal has proceeded on a misunderstanding of the law, at least in relation to defining its core task. This includes, in particular, a misunderstanding of the legal meaning of “refugee”.
(a)One of the key elements of the Convention definition is that an applicant must fear persecution. Under s.91R(1) of the Migration Act 1958 (“the Act”) persecution must involve “serious harm” to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). The expression “serious harm” includes, for example, a threat to life or liberty, significant physical harassment or ill‑treatment, or significant economic hardship or denial of access to basic services or denial of capacity to earn a livelihood, where such hardship or denial threatens the applicant’s capacity to subsist: s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
(b)The fact is that the Tribunal deliberately misunderstanding of the law and deliberately ignored my sufferings in China, including serious threat to my life and liberty, significant physical ill‑treatment, denial of capacity to earn a livelihood, etc.
3.An administrative tribunal exceeds its powers and thus commits a jurisdictional error if 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: Craig v South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs.
In this application, the Tribunal has, apparently, exceeded its powers and commits jurisdictional errors, because it has deliberately ignored important materials and information, made erroneous findings, misunderstood the law, etc.
4.The Tribunal failed to comply with its obligation under s.424A(1) of the Act.
(a)The Tribunal’s decision is mainly based on the following pieces of information-:
- The Tribunal did not accept that I was involved in any anti‑government or pro‑democracy activities;
- My evidence regarding my involvement in the distribution of anti‑government pamphlets or leaflets was unconvincing.
(b)The Tribunal indeed asked a few questions in relation to above‑mentioned information. However, the Tribunal failed to ensure me to understand why those legal documents are relevant to the review, and failed to invite me to comment on those documents.
5.The Tribunal failed to comply with its obligation under s.425 of the Act.
(a)I was rarely given a chance to provide my oral evidences completely and accurately during the hearing, because I was strictly restricted by those questions which had been deliberately designed by the Tribunal in advance.
(b)The Tribunal, during the hearing, never clearly gave me that the particulars of the information that the Tribunal relied on and whether the Tribunal understood or accepted my claims or explanation, so that I could not have a true chance to make my comment.
For example, the Tribunal said that “… it was a little difficult …” to accept my claims of distributing some papers in the street. However, after I made my explanation, the Tribunal never clearly told me whether the Tribunal understood or accepted my claims or explanation, so that I could not have a true chance to make my comment on it.
6.In summary, I never ever believe that the Tribunal has assessed my application fairly and carefully.
The applicant’s argument that a reasonable apprehension of bias might arise relies upon the reasoning ultimately given by the Tribunal for rejecting his significant claims. In particular, its rejection of his claim to have been wrongly sentenced to imprisonment for revealing corruption. However, in my opinion, a reasonable lay observer informed of the situation would understand that it was the task of the Tribunal to make that assessment, and I do not accept that he or she might draw an inference from the reasoning followed by the Tribunal that it approached the assessment of the case with a closed mind (see Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]‑[32]).
In the absence of a transcript indicating the manner in which the applicant was questioned by the Tribunal, I would not conclude that the Tribunal did not make a genuine and unbiased attempt during the hearing to explore the applicant’s claimed imprisonment and the truth of his claimed attachment to pro‑democracy activities. I reject the contention that the Tribunal “deliberately ignored” the claims made by the applicant. In my opinion, its statement of reasons indicates that it has considered them.
In relation to the second particular, no particular argument has been shown for the contention that “the Tribunal deliberately misunderstanding of the law”. For myself, I am unable to identify any legal misapprehension on the part of the Tribunal.
In relation to the third particular, as I have indicated above, I do not consider that the Tribunal has failed to identify and address the refugee claims made by the applicant.
In relation to the fourth particular, I accept the arguments presented on behalf of the Minister that no breach of s.424A(1) is established. The Tribunal based its conclusions upon information given by the applicant to the Tribunal at the hearing and in the original visa statement as re‑published to the Tribunal by the applicant’s agent. It was not part of the Tribunal’s duties under s.424A(1) to invite the applicant to comment in writing upon the Tribunal’s reasoning concerning the applicant’s evidence given to it.
In relation to the fifth particular, I am not satisfied that the applicant was denied the opportunity to participate in a “real and meaningful” hearing pursuant to s.425 of the Act. I consider that the applicant was put on notice that the credibility of his claims was in issue, both by the reasoning of the delegate and, on the Tribunal’s account of the hearing, by its expression of concerns in the course of the hearing.
In relation to the sixth particular, I am not persuaded that the Tribunal did not assess the applicant’s application “fairly and carefully”.
The applicant attended today without a written submission or prepared argument. His essential contention was that the Tribunal was wrong in disbelieving him. He maintained his claim that he would suffer harm if he returned to China.
However, as I have explained to him, I am not satisfied that the Tribunal did not perform its review according to law. I must therefore dismiss this application.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 8 March 2007
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