SZGZZ v Minister for Immigration - [2007] FMCA 456

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGZZ v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 456

MIGRATION – RRT decision – Chinese claiming persecution for political activities – disbelieved by Tribunal – no jurisdictional error found.

Acts Interpretation Act 1901 (Cth), s.8
Migration Act 1958 (Cth), ss.424A(1), 425, 474, 483A
Migration Litigation Reform Act 2005 (Cth) Sch.1 cl.41

Applicant S301/2003 v Minister for Immigration and Multicultural Affairs (2006) FCAFC 155 at 19

Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507; (2001) 178 ALR 421
NBKS v Minister for Immigration and Multicultural Affairs (2006) FCAFC 174
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 231 ALR 592, [2006] HCA 63

Applicant:

SZGZZ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2317 of 2005

Judgment of:

Smith FM

Hearing date:

19 March 2007

Delivered at:

Sydney

Delivered on:

19 March 2007

REPRESENTATION

Counsel for the Applicant:

Applicant in Person

Counsel for the First Respondent:

Mr D Godwin

Solicitors for the Respondents:

DLA Phillips Fox

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

SYG 2317 of 2005

SZGZZ

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 23 August 2005 seeking relief under s.483A of the Migration Act 1958 (Cth), (“the Migration Act”), in respect of a decision of the Refugee Review Tribunal dated 28 June 2005 and handed down on 19 July 2005. The Tribunal affirmed the decision of a delegate made on 21 February 2005 refusing 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The Court's jurisdiction under s.483A has been repealed, but the repeal does not affect the continuance of this proceeding (see Migration Litigation Reform Act 2005 (Cth) Sch.1 cl.41, and Acts Interpretation Act 1901 (Cth) s.8). The jurisdiction is subject to limitations under s.474, so that I do not have power to send the matter back to the Tribunal unless I am satisfied that the Tribunal's 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 or any other permission to stay in Australia.
The applicant arrived in Australia in October 2004 on a three-day transit visa travelling from Fiji. On 12 October 2004, an application for a protection visa was lodged on his behalf by an agent. It explained the applicant's reasons for seeking protection in Australia against return to his country of nationality, the People's Republic of China.
The applicant claimed to have published on the Internet, in June 2004, criticisms of actions of the local government authorities when acquiring land in the vicinity of the applicant's and other persons' farms. He said “Later on, I wrote more and put all of my articles on the Net.”. He claimed that “I heard that several people had been arrested” for similar activities. He said: “This made me feels nerves and I decided to run away before government find that fact”, notwithstanding that he had made his publications anonymously from a public internet bar.
No support for these claims was presented to the Department of Immigration, and a delegate refused the application on the grounds that his statement was uncorroborated, and there were discrepancies between the applicant's claims and statements he had made to acquire his transit visa. The delegate also thought that the applicant's acquisition of a passport in August 2003, and his travel in October 2004 without difficulty, suggested that he was not a person of interest to Chinese authorities.
After the applicant appealed to the Tribunal, he was represented by a different migration agent, Priscilla International. They presented a statutory declaration making completely different claims. The applicant said that he was not the author of criticisms of the government, but that his friend, Mr Z, had drafted a petition and published it with criticisms concerning the corrupt government system, in particular, when acquiring land used by farmers. The applicant claimed:
I made hundreds of copies of the petition drafted by Mr Z, and then organised some farmers to widely distribute them not only in my home village, but also in those villages around (his) town.
He claimed also to have organised the distribution of articles written by Mr Z, and:
In the end of July 2004, Mr Z's friend, Ms W, secretly informed him that Mr Z and I were regarded as key targets investigation by the PSB, because we were both suspected to be "black hand" behind the screen for those farmers' protests. Ms W suggested to us to leave Fujian as soon as possible. I, therefore, went to Beijing early in August 2004.
After he had left for Peking, Mr Z was arrested and subsequently in October 2004 Ms W made a confession implicating the applicant and Mr Z as “the major leader of organising to distribute thousands of propaganda materials around (his) town”. The applicant earlier in his statement indicated that he had acquired his passport in August 2003 with the assistance of a person who was “able to help people to go the overseas and worked as an export labourer”. He claimed that he had not used the passport at that time, because that person had “asked for too much money that I was unable to afford”.
The applicant attended a hearing before the Tribunal on 6 June 2005, and was questioned by the Tribunal about the change in his claims. The applicant blamed his original agent for the difference. He also claimed that the name shown in his passport did not have his father's surname, and was not the name under which he was born, but that his name had been changed when he was a boy.
He presented to the Tribunal a document which was translated which purported to be a summons to a person having the surname which the applicant claimed to have been that of his true father, requiring that person to attend at the town PSB bureau on a date in October 2004, two days after the applicant’s arrival in Australia. He presented that document at the end of the hearing before the Tribunal. The Tribunal questioned the applicant as to “why he had not previously referred to his father having been summonsed”, and also “indicated to the applicant that it had some concerns as to the provenance of the document and as to the authenticity of the events to which it supposedly referred”. The Tribunal regarded the applicant's responses as not being “satisfactory”. A transcript of the hearing is not in evidence before me and I can only rely upon the Tribunal's description.
Another matter upon which the applicant was questioned, was his plans for travelling abroad in 2003. The applicant confirmed that at that time he had “simply wanted to find the means of travelling to another country to work”. The Tribunal said:
From what it heard at the hearing, the Tribunal established to its satisfaction that the applicant's ambition to travel abroad to work was thwarted for financial reasons. The Tribunal asked the applicant how he became able to afford to travel fourteen months later and he said that his family could see that he was in trouble and helped him.
The Tribunal then questioned the applicant about his involvement in the farmers’ dispute during 2004. It questioned how he had been able to use his passport to leave China in a situation where he claimed to be a known dissident, and it regarded the applicant's responses to this questioning as inconsistent. The Tribunal also questioned the applicant about the publications which he claimed to have been involved in, including the contents of leaflets he claimed to have distributed.
Under the heading “Findings and Reasons” the Tribunal said that the evidence of the applicant's true identity was “problematic”, but it said that it “sees no reason in the present case not to decide his case” on the basis that he was the person shown in his passport. The Tribunal examined his evidence concerning his obtaining of the passport, and concluded that he had “never lost sight of his ambition to work abroad”. It said that it did not accept that money had been easier to raise in 2004 than it had been in 2003, and said:
The Tribunal merely assumes that the applicant was eventually able to cover in 2004 whatever shortfall he had faced in 2003.
The Tribunal rejected the whole of the applicant's claims to have been involved in political activities during 2004. It said:
The Tribunal does not accept on the evidence before it that the Applicant attracted negative attention from the PRC authorities, not even in the farmer-related context of the dispute he has described. His evidence as to his grasp of the farmers’ demands was vague and unimpressive. His evidence about the authorities’ concerns about him was inconsistent. The Tribunal was ultimately not satisfied that the Applicant triggered the movement he described, particularly because he was involved at the time in getting out of the PRC to improve his lot on his own. The Tribunal finds that it cannot give any weight to the alleged summons submitted by the Applicant. The Tribunal has concerns as to its genuineness, given that the Applicant never referred previously to his father having been summoned. In any event, the Tribunal cannot be satisfied on the evidence before it that the purported summons relates to the Applicant.
The Tribunal is of the view that if the authorities were as concerned about the Applicant as he has claimed, they would have cancelled his passport. The Applicant’s explanations as to why they did not, for example when he said that they could not cancel it because it was in his possession, were not impressive or persuasive.
The Tribunal relies on the Applicant’s evidence about economic opportunism and on the evidence of the legal issue of his passport and finds that his Convention-related claims are concoctions.
I have considered the reasoning of the Tribunal and its procedures, and am unable to identify any jurisdictional error affecting its decision. I consider that the Tribunal's reasoning was clearly open to it on the evidence which appears to have been before it.
The applicant's original application contains arguments which are repeated in an amended application. This presents the following grounds and particulars:
The grounds of the application are-:
1.There was an error of law in the Tribunal’s decision constituting a jurisdictional error;
2.There was a procedural error in the Tribunal’s decision constituting an absence of natural justice.
Particulars
1.The Tribunal failed to comply with its obligation under s.424A(1) of the Act.
a.The Tribunal’s decision has relied on the following information:
·    “…the Applicant left the PRC and entered Australia, very likely with his migration assistance contacts in Australia already set up before he left home…”
·    “…the Tribunal assumes the Applicant raised what money or additional money he needed in the additional fourteen months after August 2003…”
b.Subjected to s424A(1) of the Act, the Tribunal must give to me particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and ensure that I understand why it is relevant to the review; and invite me to comment on it.
c.In this case, the Tribunal, apparently, failed to give me particulars of the information mentioned above Paragraph 1.a, and failed to ensure me to understand why those pieces of information are relevant to the review, and failed to invite me to comment on the information.
2.The Tribunal failed to comply with its obligation under s.425(1) of the Act
a.Subjected to s425(1) of the Act, the Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
b.In this case, the Tribunal refused to provide me any genuine opportunity during the Tribunal’s hearing to give evidences; and
c.Particularly, during the hearing, the Tribunal failed to give me any chances to present my argument against the information used by the Tribunal in its decision; and the Tribunal failed to create any opportunities for me to give my oral evidences in support of my review application.
3.The Tribunal has apparently made an erroneous finding and reached a conclusion in the way that has apparently affected the exercise of the Tribunal’s power.
a.The Tribunal made a conclusion that “…His evidence as to his grasp of the farmers’ demands was vague and unimpressive…” However, during the hearing, the Tribunal has never ever asked me any questions which could make me give any details about my claims regarding to farmers’ demands.
b.The Tribunal “   was ultimately not satisfied that the Applicant triggered the movement he described…”. However, apart from my written claims about the farmers’ movement, the Tribunal has never ever asked any questions, during the hearing, that led me describe the farmers’ movement in details.
4.The Tribunal has deliberately ignored the most important documentary evidence.
a.In support of my claims, I have provided a summons; however, the Tribunal deliberately ignored such important documentary evidence that I have a real chance of being persecuted on my return and my fear of being persecuted is therefore well-founded.
b.I am sure that the summons that I have provided to the Tribunal can be verified according to the official stamp and its registered number. Unfortunately, the Tribunal did nothing until it made its unfair decision.
5.The Tribunal made a bias decision.
a.I do indeed have a “real doubt” about the matter whether or not the Tribunal really intended to make a fair decision on my review application, even if its decision is protected by private clause. I have found what the Tribunal did is to try its best to “pick up” or “create” some inconsistencies or mistakes in my claims, Most of the Tribunal’s allegations either ignored relevant material or relied on irrelevant material or based on its poor knowledge about actual situation in China.
6.In summary, I never ever believe that the Tribunal has assessed my application fairly and carefully.
In relation to the first ground, further particulars are provided in a written submission which the applicant filed before the hearing, and in an oral submission which the applicant read from a piece of paper today. This gives the following additional particulars:
a. The Presiding Member has considered the following pieces of information as the reason or part of reasons for affirming the decision that is under review:-
·    There is no evidence in this case of the Applicant being known legally as (the passport name) in Fujian or anywhere; and the passport was issued in Beijing, rather than where the Applicant lived;
·    The Applicant never referred previously to his father having been summoned; and
·    The applicant’s passport has not been cancelled by the Chinese government.
In my opinion, there is no substance to any of the applicant's arguments in relation to a breach of s.424A(1). The Tribunal's conclusions in relation to the applicant's travel out of China and his reasons for travelling in 2004 rather than when he acquired his passport in 2003 were, in my opinion, conclusions which were based only on information given by the applicant to the Tribunal at the hearing. The Tribunal was not obliged to give its thought processes about that information to the applicant by way of an invitation for written comment.
The Tribunal's reference to the fact that the applicant had not previously referred to his father having been summonsed soon after the applicant arrived in Australia, did not, in my opinion, make use of information which disclosed a need to comply with s.424A(1). In my opinion, the Tribunal used only information as to when that particular claim was first made, and did not positively draw an adverse conclusion from an omission in an earlier source of information. It therefore falls within the reasoning referred to by the Full Court in Applicant S301/2003 v Minister for Immigration and Multicultural Affairs (2006) FCAFC 155 at 19, and also Weinberg J in NBKS v Minister for Immigration and Multicultural Affairs (2006) FCAFC 174 at [31]-[42]. There was not, in the present case, a "positive use" of information taken from previous statements of the applicant within the authorities cited by Weinberg J.
The Tribunal’s assessments of information concerning the applicant’s name and passport and the summons to the applicant’s claimed father, used information given to the Tribunal at the hearing. The assessments themselves were not ‘information’ coming within s.424A(1).
For the above reasons I am not satisfied that there was any failure to comply with s.424A(1) in this case.
In relation to the second ground, alleging a failure to comply with obligations under s.425(1), I have considered whether the applicant was denied the opportunity required by that section as interpreted by the High Court in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 231 ALR 592, [2006] HCA 63 at [36]-[37]. In particular, I have considered whether the reasoning which the applicant refers to in his arguments about s.424A was sufficiently raised with the applicant as an issue in the review. However, in my opinion, the Tribunal's description of the hearing indicates that probably he was fully alerted to the issues going to his credibility upon which the Tribunal ultimately decided the case. Certainly in the absence of a transcript, I am not prepared to find that there was any failure to comply with s.425(1) in this case.
In relation to ground 3, I am not persuaded that the Tribunal's conclusions were not open to it on the evidence before it, including all the applicant's responses to its questioning at the hearing. The applicant has not presented a transcript to establish this ground.
In relation to ground 4, it is not correct that the Tribunal "deliberately ignored" the summons document which was presented to it at the hearing. In my opinion, the Tribunal's conclusion that it “cannot give any weight to the alleged summons” showed a weighing of that evidence which was open to it. I reject the suggestion that the Tribunal's reasoning about that document reveals the Tribunal did not approach its final decision with a mind prepared to properly weigh the evidence.
In relation to ground 5, I am not persuaded that there is any substance shown in the evidence that the Tribunal had actual bias or gave rise to an apprehension of bias within the principles referred to in Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507; (2001) 178 ALR 421 and Re Refugee Review Tribunal; Ex parte H [2001] HCA 28. The criticisms of the Tribunal's ultimate conclusions for not being satisfied as to the applicant's credibility show, in my opinion, only that the Tribunal ultimately did the function required of it: i.e., to form a view as to the applicant's credibility when arriving at its final decision.
The applicant's written and oral submissions as well as addressing the s.424A(1) ground, contained a further ground, that:
The presiding member rejected my claim simply based on his unwarranted assumption.
With the following particulars:
a.In the decision, the Presiding Member has stated that :-
“…the Applicant left the PRC and entered Australia, very likely with his migration assistance contacts in Australia already set up before he left home, with the same motivation that he had had when he first approached (names) for help in August 2003. The Tribunal assumes the applicant raised what money or additional money he needed in the additional fourteen months after August 2003…”

In my opinion, there was nothing unwarranted, irrational or unreasonable in the inferences drawn by the Tribunal from the applicant's evidence concerning his travel and reasons for travelling.
I am not persuaded by any of the documents lodged by the applicant, or by his submissions, that the decision of the Tribunal was affected by jurisdictional error. It is therefore a privative clause decision, and I must dismiss the application.

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

Associate: Michael Abood

Date: 4 April 2007