SZGYJ v Minister for Immigration - [2005] FMCA 1591

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGYJ v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1591

MIGRATION – Review of decision by Refugee Review Tribunal – refusal to grant protection visa – applicant relied before Tribunal on subpoena received from authorities in PRC requiring attendance not part of protection visa application (“pva”) – Tribunal found subpoena not genuine on bases including failure to mention in pva – applicant provided information to Tribunal – s.424A complied with.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424A; 424A (1)(a); 441A ; 477; 483

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24
SZECF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1200
VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283

Applicant:

SZGYJ

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG2158 of 2005

Judgment of:

Emmett FM

Hearing date:

31 October 2005

Date of Last Submission:

31 October 2005

Delivered at:

Sydney

Delivered on:

1 November 2005

REPRESENTATION

The Applicant appearing for himself

Counsel for the Respondent:

Mr T. Reilly

Solicitors for the Respondent:

Ms T. Quinn, Phillips Fox

ORDERS

The Application filed 12 August 2005 is dismissed.
The Applicant pay the Respondent’s costs in the amount of $2800.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2158 of 2005

SZGYJ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Application

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and s.483A of the Migration Act 1958 (Cth) (“the Act”) for judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) to affirm the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the delegate”) not to grant a protection visa to the Applicant.
The Applicant claims to be a citizen of the Peoples Republic of China (“the PRC”).
At the time of the Applicant’s application for a protection visa the Applicant had a wife and son who continue to reside in the PRC.
Prior to arriving in Australia, the Applicant claimed he worked as a brick layer.
The Applicant claims that he legally departed from Guang Zhou on

28 September 2004.
The Applicant arrived in Australia on 9 September 2004.
On 11 October 2004, the applicant lodged an application under the Act for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs.
The Applicant claimed that if he returned to the PRC he would be detained and treated in the same way as those who had acted in the same manner as he had. The Applicant claims to have sent a letter to the Communist Party leadership regarding student riots which occurred on 4 June 1989 and seeking assistance for his nephew who participated in the riots and was arrested and detained. The letter went on to accuse the Party of corruption and advocated the adoption of western democracy.
On 21 January 2005, a delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol.
On 27 January 2005, the Applicant filed an application for review by the Tribunal. On 30 March 2005, the Tribunal affirmed the decision of the delegate not to grant a protection visa.
On 12 August 2005, the Applicant filed an Application in this Court seeking judicial review of the Tribunal’s decision.
The Applicant relies on 4 grounds in support of his Application:
“A. I am a citizen of China who claims to have a well-founded fear of persecution for reasons of my political activities in China 1989 under the Refugee Convention as amended by the Refugees Protocol.
B. The tribunal was error law those finding were open to it from my side fact and evidence.
C. There is on the face of the tribunal decision no basis for making such a statement. The Tribunal member is substituting his view this is no more than a personal judgment view without any foundation in evidence.
D. The tribunal failed to take relevant consideration into account to exercising its power to determine to the Applicant as a refugee.”
The Tribunal had before it the protection visa application lodged on

11 October 2004 and the delegate’s decision given on 21 January 2005. The Applicant gave oral evidence.
The Applicant claimed in his protection visa application that his nephew had been arrested and detained following the riots in Beijing in 1989. After the change of leadership of the Chinese Communist Party in 2002, the Applicant claims to have written to “Parliament House” seeking the release of his nephew and stating that “a government should not treat its people like enemy”. The Applicant claimed that he had heard that several other people who had written in similar terms were detained and that he feared he would be treated similarly if he were to return to the PRC. He claimed that the authorities would be against him and not protect him.
On 11 February 2005, the Applicant had received an invitation to attend a hearing. The invitation informed him that the Tribunal had considered the material before it in relation to his application but was unable to make a decision in his favour on that information alone.
In response to that invitation, the Applicant faxed copies of 2 documents in Chinese with translations to the Tribunal. One document was a copy and was headed ‘Subpoena’. It was dated 15 September 2004 and stated that the Applicant was required to appear before the City Public Security Bureau on 20 September 2004. The second document was a copy of a letter dated 18 June 2004 claimed by the Applicant to have been sent to Secretary Hu Jingtao and other leaders asking that Secretary Hu release those dissidents detained in 1989 and to clear the names of those involved, including the Applicant’s nephew. The letter criticised government officials for embezzling public funds and stated that China should adopt more liberal policies and the political systems of democratic countries.
In his protection visa application the Applicant referred to a letter he had written to “parliament house” although no copy was provided. It was not suggested by either party that the reference to that letter was in respect of any other document than the letter dated 18 June 2004, a copy of which was provided to the Tribunal.
The document headed ‘Subpoena’ was not a document provided with or mentioned in the Applicant’s application for a protection visa.
At the hearing before the Tribunal, the Applicant stated that both documents had been sent to him recently by his wife in the PRC. The Applicant stated that a copy of the Subpoena had been sent as his wife had felt that it was not safe to send the original.
In relation to the letter, the Applicant stated that it was a draft that he had written at the time and had retained at home until sent to him by his wife. When asked by the Tribunal why he had not bought the documents or copies with him, given that he stated that he had left the PRC intending to seek asylum in Australia, the Applicant responded that it had not occurred to him that they may be useful.
The Applicant stated that, after he had sent the letter, in late August 2004 local police/PSB came and talked to him and warned him not to do so again. The Applicant stated the PSB had come to his home seeking his whereabouts twice more in October 2004, after he had left the PRC.
The Applicant stated that the PSB brought the Subpoena to his house on 15 September 2004 but he was not there and his wife told them he was away on business. The Applicant stated he did not attend at the PSB office in answer to the Subpoena on 20 September 2004 because he was afraid he would be arrested. The Tribunal noted that the PSB had not come back to ask his whereabouts until October 2004 and had not been back again since.
The Tribunal noted that the Applicant had not mentioned the Subpoena in his application for a protection visa lodged on 11 October 2004, although he had received it on 15 September 2004 and left the PRC on 28 September 2004. The Applicant responded that he had only been thinking about the letter and not about the Subpoena.
In relation to the letter, the Applicant stated that he had written it himself. The Tribunal noted that it was not written until 1½ years after Hu became Secretary of the Party and, although it sought redress for his nephew, the letter did not mention the nephew’s name or details.
The Tribunal also observed that it seemed “a little odd” that the Applicant had linked a plea for his nephew with criticism of the Party of corruption and with a call to abandon the current system and adopt western democracy, a call that was obviously likely to be unacceptable to the Secretary. The Applicant responded that he knew “for sure” that the letter would not work but the whole family was at the time worried and filled with hatred for the Party. The Tribunal commented that it seemed strange that he would send a letter that he knew would not work, especially if his aim was to assist his nephew.
The Tribunal also noted that, notwithstanding receiving the Subpoena, the Applicant had been able to depart the PRC without difficulty and using a passport in his own name.
The Tribunal was satisfied that, if the Applicant had made some kind of representation in relation to his nephew, the only consequence was a warning from the local police and that nothing further occurred subsequently, other than the possibility of a routine enquiry when he failed to return from short term travel overseas.
The Tribunal had a number of difficulties with both the letter and the Subpoena provided to it by the Applicant. Ultimately, the Tribunal was not satisfied that the Subpoena was genuine, nor that the Applicant did in fact send a signed letter in June 2004, in terms of the copy before the Tribunal, to the Communist Party leadership.
In relation to the Subpoena, the Tribunal gave the following reasons for rejecting the authenticity of the Subpoena:
a)The Applicant failed to refer to the Subpoena in his application for a protection visa.
b)The Applicant was unable to provide a satisfactory explanation for a photocopy being sent from the PRC by his wife rather than the original.
c)Non compliance with the Subpoena to appear on a particular date, being 20 September 2004, led to no follow up or visit by the PSB until at least a fortnight later after the Applicant had left the PRC.
d)The local PSB were responsible for the formal procedures for allowing people to depart the PRC and issuing exit permits and it was the local PSB that the Applicant claimed was aware and interested in him at the relevant time, having sent him the Subpoena.
e)The Applicant does not claim to have evaded exit procedures by bribery or other means.
f)Two police enquiries, made in October 2004 shortly after the Applicant’s departure, as to his whereabouts did not involve any search of his house and were not followed up in the ensuing several months. The Tribunal considered that such conduct on the part of the PSB did not suggest that the Applicant was of any significant or ongoing concern to the Chinese authorities.
Having found that the Subpoena was not genuine, the Tribunal went on to identify concerns about the letter the Applicant claims to have written. These concerns are referred to above at paragraphs 24 and 25.
The Tribunal was not satisfied that the Applicant had experienced harm amounting to persecution, nor that he faces a real chance of harm amounting to persecution were he to return to the PRC.
The Applicant was unrepresented before this Court, although he had the assistance of an interpreter.
Other than disagreeing with the findings and conclusions of the Tribunal, the Applicant had nothing cogent to say in support of his Application. The Applicant did not particularise any of the grounds referred to in his Application, nor did he file an amended application with full particulars or provide written submissions in support of his grounds, despite being directed on 8 September 2005 to do so.
The First Respondent submitted that the factual findings made by the Tribunal were open to the Tribunal for the reasons given by the Tribunal and that this Court cannot review the Tribunal’s decision. The First Respondent submitted that the Tribunal explained why the Tribunal did not accept the Applicant’s claims and the conclusions it made were open to it.
I accept the First Respondent’s submissions in relation to the findings of fact made by the Tribunal. However, the Applicant was not represented before me and I was concerned that, had he been, a ground might have been advanced that s.424A of the Act required the Tribunal to give notice in writing (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24) to the Applicant that the omission in the Applicant’s protection visa of the Subpoena may be information that might enliven s.424A of the Act.
Upon completion by the Applicant of all he wished to put in support of his Application, I raised with the First Respondent the possible existence of a ground relating to the application of s.424A of the Act and the relevance, if any, of Allsop J’s recent decision in SZECF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1200 (“SZECF”).
Allsop J in SZECF at [30] said the following:
“To say that there is no information here because the statement (which is information) lacked the aspect now being adduced would be to fail to recognise that the information that is central to the reason for the decision is that the appellant said so much and no more on an earlier occasion. That is the relevant information.”
Applying that principle to the facts of this case the Applicant’s protection visa application is the “statement” and “the aspect now being adduced” is the subpoena. The “relevant information” is that the Applicant said that “so much and no more” in his protection visa application. It is the fact that the Applicant said “so much and no more” in his protection visa application, omitting the subpoena, that the Tribunal found to be the first “notable” factor or difficulty that formed part of the reason for its finding that the subpoena was not genuine. The First Respondent conceded that this was information that was within the notion of “information” as that word is used in the context of s.424A.
However, the First Respondent submitted that it is necessary for the information to be an “integral” part of the Tribunal’s decision for affirming the decision under review and that because the Tribunal had other difficulties that it identified, it could not be suggested that the information is “integral to the reasoning process” of the Tribunal in rejecting the Applicant’s claim and therefore s.424A would not be enlivened (VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283 at [41] –[43]).
The First Respondent submitted that because the Tribunal had other reasons for rejecting the Subpoena, it was not, therefore, an integral part of the Tribunal’s reasons for finding that the subpoena was not genuine.
Further, the First Respondent submitted that, because the Tribunal did not accept that the letter that the Applicant claimed to have written to the Communist Party leadership was sent to the Communist Party leadership, and it was that letter upon which the Applicant relied as giving rise to his claims for persecution by the authorities, that the finding that the Subpoena was not genuine was irrelevant to the failure of the Tribunal to be satisfied that the Applicant was not a person to whom Australia owes protection obligations pursuant to the Refugees Convention.
However, that is not the way in which the Tribunal expressed its consideration of the use of those 2 documents. The Tribunal stated, having found that the PSB Subpoena was not genuine, that “this conclusion reinforces separate concerns about the letter allegedly sent to the Communist Party leadership in June 2004.”
On a fair reading of those words, the Tribunal found that the Subpoena was not genuine, as part of its reasons for rejecting the Applicant’s claim that he sent such a letter. One of the reasons why the Tribunal found that the Subpoena was not genuine was “notably including the applicant’s failure to refer to it at all in his protection visa application of 11 October 2004.”
The language referred to by the First Respondent in analysing SZECF refers to the information being “central”, “instrumental” and “integral” to the reason or part of the reason for the Tribunal affirming the decision under review. However the language of s.424A does not use any of those words. The language of s.424A states specifically that the Tribunal must give to the Applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information the Tribunal considered would be the reason or part of the reason, for affirming the decision that is under review.
Allsop J, in SZECF at [25], said that one must assess and characterise the importance of the information itself to the reasoning process of the Tribunal apparently underlying its conclusion as to lack of satisfaction. His Honour went on to say at [34]:
“In my view, here, the knowledge of the tribunal of the content of the earlier statement, including the limits of its contents can be seen to be a part of the reason for the decision because its form and content were instrumental in the tribunal reaching a conclusion that the oral evidence of the appellant was false and the documents he were propounding were fraudulent.”
At the heart of Allsop J’s reasoning in SZECF is the question of whether the information was information that the Tribunal considered would be the reason or part of the reason for affirming the decision that is under review (s.424A(1)(a)).
The Tribunal dealt with that information, by describing it as the first of the Tribunal’s difficulties and prefacing the information with the word “notably”. In the Macquarie Dictionary, “notable” is defined as: “worthy of note or notice; noteworthy”. If a factor considered by the Tribunal in making a conclusion adverse to an applicant in the position of the Applicant, in respect of the genuineness of a document before it is “worthy of note”, it must follow that it is part of the Tribunal’s reason for rejecting that document. Where the Tribunal then states that, because it has found that document not to be genuine, its conclusion about rejecting the Applicant’s claim of sending a letter that was the cause of his persecution is “reinforced”, then the notable factor must be a part of the reason for the Tribunal affirming the decision under review. If that notable factor is otherwise “information”, as used in the context of s.424A of the Act, then it follows that such information must be given to the Applicant in accordance with s.424A of the Act.
In the circumstances, I am unable to accept the Respondent’s submission that the Tribunal’s consideration of the Applicant’s failure to refer to the information in his protection visa application was not part of the reason for affirming the decision under review.
However, Allsop J in SZECF, at [18], identified 3 matters for consideration. They are as follows:
“(a) whether there is “any information” for the purposes of s.424A(1).
(b) If so, whether it can be said to be information that the Tribunal considered would be the reason or part of the reason for affirming the decision under review
(c)Whether in the light of any questioning about the earlier statement the information can be said to have been give for the purposes of the Tribunal review application.”

I have dealt with (a) and (b) above, having found that there is “information” for the purposes of s.424(A)(1)(a) and that that information was considered by the Tribunal to be part of the reason for affirming the decision under review.
In relation to (c) above the Tribunal noted, in its decision, that it raised with the Applicant that the Applicant had received the Subpoena on

15 September 2004, had left China on 28 September 2004 and lodged his protection visa application on 11 October 2004. The Tribunal observed to the Applicant that the Applicant’s application for a protection visa, which referred to the June 2004 letter and the August 2004 police warning, made no mention at all of the Subpoena although it would have been very much on the Applicant’s mind at the time. The Tribunal noted in its decision that the Applicant had responded that he had only been thinking about the letter not about the Subpoena.
The question for consideration is, whether the questioning by the Tribunal about the protection visa application (being “the earlier statement”), in which the Applicant appears to have affirmed that he did not mention the Subpoena, was information that can be said to have been given by the Applicant to the Tribunal for the purpose of the Tribunal review application. If indeed, this the case, then s.424A(3)(b) excludes, from the requirements of s.424A, information provided by the Applicant to the Tribunal for the purpose of the Tribunal review application.
There is no further guidance as to the application of (c) by Allsop J in SZECF as he concluded that the issue of (c) did not arise on the facts in SZECF. (See [36]).
I am satisfied that, by raising with the Applicant, the claims in his protection visa application and the fact that no mention was made of the Subpoena and that the Tribunal noted to the Applicant that it would have been very much on the Applicant’s mind at the time, and the fact that the Applicant responded that he had only been thinking about the letter not about the Subpoena, the Applicant confirmed the information to the Tribunal. To my mind, that confirmation of the information, relating to what was contained in the protection visa application, and the fact that the Subpoena was not mentioned and, having regard to the exchange between the Tribunal and the Applicant as reflected in the Tribunal decision, are sufficient to satisfy me that the Applicant gave the information to the Tribunal for the purposes of the review application.
In those circumstances, the information is excluded under s.424(A)(3)(b) from the requirement of s.424A(1)(a) and therefore, no issue under s.424A arises.
The findings of fact made by the Tribunal were open to the it, on the material before it, and supported the Tribunal’s conclusion that the Applicant had not experienced harm amounting to persecution, nor that he faced a real chance of harm amounting to persecution were he to return to the PRC.
Accordingly, the Tribunal’s decision is a privative clause decision and, pursuant to s.474A of the Act, this Court has no jurisdiction to interfere. Further, the First Respondent filed a Notice of Competency, on 5 September 2005, on the basis that the Application before this Court was filed more than 28 days after the handing down of Tribunal’s decision. Accordingly, pursuant to s.477(1A) of the Act, the application is incompetent.
The Application filed in this Court on 12 August 2005 is dismissed with costs.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate: S. Riddle

Date: 1 November 2005