SZHBP v Minister for Immigration
[2007] FMCA 511
•20 April 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHBP v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 511 |
| MIGRATION – RRT decision – Chinese applicant claiming political persecution – Tribunal accepted past persecution but found no real chance of future persecution – its conclusions were open on the evidence and revealed no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.424A(1), 474(1), 476(1) |
SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9
SZGVQ v Minister [2006] FMCA 1005
NBKT v Minister for Immigration [2006] FCAFC 195
Minister for Immigration and Multicultural Affairs v Eschetu (1999) 197 CLR 611
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Minister for Immigration & Multicultural Affairs v Rajalingham (1999) 93 FCR 719
Ex parte Applicant S20/2002 (2003) 198 ALR 59
Applicants A233 of 2003 v Refugee Review Tribunal [2004] FCAFC 296
| Applicant: | SZHBP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3677 of 2006 |
| Judgment of: | Smith FM |
| Hearing date: | 23 March 2007 |
| Delivered at: | Sydney |
| Delivered on: | 20 April 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr N Dobbie |
| Solicitors for the Applicant: | Parish Patience Solicitors |
| Counsel for the First Respondent: | Mr G Kennett |
| Solicitors for the Respondents: | Blake Dawson Waldron |
ORDERS
The application is dismissed.
The applicant must pay the costs of the first respondent in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3677 of 2006
| SZHBP |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed on 11 December 2006 under s.476(1) of the Migration Act 1958 (Cth) (“the Migration Act”) which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 27 November 2006 and handed down on
29 November 2006. The Tribunal affirmed a decision of a delegate made on 13 August 2004, which refused to grant a protection visa to the applicant. An earlier decision of the Tribunal was quashed by a consent order of this Court made on 26 September 2006.
Under s.476(1) the Court has “the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution”, but its powers are confined by s.474(1) so that I cannot remit the matter again unless the most recent decision of the Tribunal was affected by jurisdictional error. I do not have power to decide whether the applicant’s claims should be believed, nor whether he qualifies for a refugee visa.
The applicant’s application for protection was lodged on 3 August 2004 by an agent, Priscilla Yu. In it, he claimed to have arrived in Australia in June 2004, on a Taiwan passport travelling from Fiji. The application was accompanied by a copy of a PRC identity card in a different name, which the applicant claimed to be his true identity.
A statutory declaration narrated a history upon which the applicant claimed protection against return to the China.
He claimed to have been a self-employed driver, who encountered a decline in work in 2003 “owing to negative impact of SARS”. He said that a friend, Mr L, to whom he passed on a job, suffered paralysing injuries when his “small truck fell into a ravine in the mountainous area while he tried to dodge a big truck which had overtaken him illegally”. The person responsible was a senior government official in the province, and this resulted in Mr L receiving no compensation. The applicant “could not keep silence”. He claimed:
8).During the period from July 2003 to September 2003, I organized self-employed drivers to strive for respect and protection of our basic human rights. We particularly required the authorities to re-investigate Mr L’s accident, to openly punish Mr J and his father as well as those corruptive officers, and to provide reasonable compensation for Mr L and his family. For this purpose, I first tried to approach some of solicitors for legal assistance, but no one liked to help us because no one wanted to have troubles with the government officials. I then contacted local court in S… City, in order to sue Mr J and his father by myself. However, the court refused to accept my application with the excuse that I was not qualified to do so. After that, I took some of self-employed drivers, including Mr L’s relatives and friends, to send petition to the local government in S… City and then to the People’s Government in Fujian Province. We were refused eventually, with the excuse that the PSB has already made a fair decision. Finally, in the end of September 2003, I had to take around 50 self-employed drivers to have a sit-in protest in front of the People’s Government of Fujian Province, and distributed copies of our petition to the public in the mean time. However, the government still did not send anyone to talk or discuss or help us; and even on one came out to care about us. On the contrary, the armed policemen in front of the government building threatened us that we would have big troubles and would be subjected to serious punishment if we continually held sit-in protest there, because the National Day (1st October) was coming.
9).However, I really could not give up and I have to strive for our basic human rights; otherwise, we would dead. Shortly after the holiday of National Day, on 10th October 2003, I organized more than 100 people, including self-employed drivers and their relatives, to hold a big protest. In order to make stronger social influence, I chose a key intersection of the highway from Xiamen City to Fuzhou City as the place for our demonstration. We distributed propaganda materials to those drivers, in which I encouraged people to unite together so as to strive for our basic human rights, and especially, I called on those self-employed drivers to establish our own union to protect our basic human rights. I would not expect that the demonstration organized by me was so successful that hundreds of people gathered around us, and many self-employed drivers even stopped their vehicles and stood together with us.
10).I was taken away by the PSB from my home in the evening of 10th October 2003, and I later on knew that I was followed by plain policeman, I was detained in the detention centre of Fuqing PSB for 3 months, and was not released until 31st December 2003. During that period, I was question many times, and particularly I was physically tortured by those cruel policeman. From the very beginning, they forced me to admit that I had organized anti-government political demonstration, but I firmly refused them, because what I wanted was just respect and protection of our self-employed drivers’ basic human rights. I was then beaten by police, but I still refused to sign any confession. Later on, the policeman almost did not question me anymore, instead, put me into a dark and dirty room together with those criminals. They told me that I would not be released unless I made my confession. Then, they ordered those criminals to torture me from time to time. I had to give up eventually, otherwise, I would be persecuted to death. On 31st December 2003, I was eventually released after I signed on a confession in which I admitted my so-called anti-government activities.
11).Since then, I have been regarded as a person who has organized anti-government demonstration. I have continually been subjected to unfair treatment by those officers from local police stations, from Fuqing PSB, and from local government. The policemen often come to my home or take me to the local PSB, for questioning my daily activities or forcing me to submit ideological report. It is impossible for me to have any normal living, and I even could not get any jobs, because the PSB has told everyone that I am a trouble-maker with anti-government ideology.
12).In order to escape from such unfair political persecution permanently, I had to decide to leave my country. It is obviously impossible for me to do so legally, because it is impossible for me to get my passport or any other necessary documents for my leaving. I had to sell my truck plus all of my savings to buy a passport of Taiwan, on which I had to use a different name and different personal details. With the helps of some good friends, I finally escaped to the overseas.
No evidence corroborating any part of these claims was ever given to the Department, nor to the Tribunal.
The delegate refused the application, referring to the absence of “substantive evidence of any description to substantiate any of the purported claims he has made relative to his claimed activities and the resulting harassment by the PRC authorities”. The delegate also concluded that the applicant probably left the PRC legally, on a document other than the passport which he submitted with the visa application, and was of no interest to PRC authorities for any Convention related reason at the time of his departure.
On appeal, the applicant continued to be represented by his agent, who presented a submission but no additional evidence. The applicant did not attend a hearing to which he was invited by the Tribunal as first constituted. In its reasons for decision, handed down on 22 December 2004, the Tribunal considered the uncertain evidence as to the applicant’s true identity and travel, and concluded that he was probably a Taiwanese or Fijian national. It also assessed his claims on an assumption that he was a PRC national, but did not accept their veracity. It is unnecessary to examine its reasons, since it is not argued that they were relied upon in the present decision. Its decision was quashed, upon a concession that the Tribunal had relied upon information which was not the subject of an invitation for comments under s.424A(1).
Following the remitter, the applicant continued to employ Priscilla International. No further evidence was submitted, but the applicant did attend a hearing on 1 November 2006. The Tribunal gave a description of his evidence in its statement of reasons, and this provides the only evidence of what happened.
The Tribunal said that “the applicant essentially repeated the claims he provided to the Department”. It said that he limited his period of claimed political activity to four months in 2003:
The Tribunal discussed with the applicant his political activities. He stated that essentially his political activities were confined to that period between July and October 2003 when he was trying to obtain compensation for his friend. He stated he has not been involved in any activities of political nature since October 2003. The applicant claimed that after he was released from prison he was questioned by the authorities at least twenty-five times before he fled to Taiwan in June 2004. He stated he was sometimes questioned by the police at the police station and other times he was visited at home by local government officials. He stated they questioned him about his day to day activities and they monitored his movements. The applicant stated that he was sometimes questioned two times on the one day. He stated he could not bear the harassment so he fled to Taiwan.
The applicant claimed that he “fled to Taiwan in 2004”, and there acquired the passport upon which he entered Australia. The Tribunal said:
The Tribunal asked the applicant if members of his family encountered difficulties with the authorities after he left. He stated the authorities approached his mother this year seeking to speak to him. He stated his mother told him that the police came to the house looking for him. The Tribunal asked the applicant how he knew that the visit in 2006 had any connection with his political activities in 2003. He stated there was no other possible reason for the visit
The Tribunal asked the applicant if he was involved in any political activities in Australia or if he attempted to publicise the plight of his friend after he arrived here. He stated he was not involved in political activities. The Tribunal asked the applicant why he thought the authorities in China will be interested in him in the future if he has not been involved in any political activities for almost three years. He stated they will seek to harass and arrest him for what he did in 2003.
The Tribunal said that it put to the applicant information concerning how “the PRC government has targeted individuals and groups who persistently express opposition to the government. The Tribunal noted that the authorities in China are not targeting citizens who were previously involved in political activities or those who had opinions against the government but failed to express those opinions.” It suggested to the applicant:
that the above US Department of State report, and other information from external sources discussed during the hearing, supports the applicant’s claim that politically active citizens of China are at risk of harm by the authorities. The Tribunal commented however, that the same sources of information indicated that PRC citizens ceased to be persons of interest to the authorities once they stopped being involved in political activities and the authorities were satisfied that they were no longer implicated in political activities against the government. The Tribunal commented that as the applicant ceased to be politically active in 2003, and he has not demonstrated any interest in further political activities, he will no longer be a person of interest to the PRC authorities. The applicant stated that he held a leadership position in 2003 and the authorities visited his mother earlier this year seeking to speak to him. The Tribunal noted that the applicant organised protest activities in 2003 and the authorities took action against him at that time. It commented that the applicant has not been involved in any political activities for over two years and he was not been involved in any activity for a considerable period of time which would attract the adverse interest of the authorities in China. He stated the authorities told his mother earlier this year that they wanted to contact him. The Tribunal asked the applicant if the authorities indicated to his mother why they wanted to contact him. He stated there can only be one reason, that reason being his political activities in 2003. The Tribunal commented that there could be other reasons as well. He stated the PRC authorities are interested in him because of his political activities in 2003.
Under the heading ‘Findings and Reasons’, the Tribunal summarised the applicant’s claim:
The applicant claims that he is (name), a citizen of China, who fled to Taiwan in June 2004, bought another person’s passport, and used that passport to enter Australia. The applicant claims that during 2003 he organised protest activities in Fujian after a friend was denied compensation following a motor vehicle accident. He claims that the person who caused the accident used connections in government to avoid paying compensation. The applicant claims he was detained on 10 October 2003 following a large demonstration involving over one hundred persons. He claims he was held by the police until 31 December 2003 and while he was detained the authorities mistreated him. He claims he was released after he signed a document admitting that he had been involved in political activities against the government. The applicant claims he was monitored and harassed by the authorities until he fled to Australia in June 2004. The Tribunal accepts these claims.
The applicant claims that if he returns to China he will again be targeted by the authorities, arrested and mistreated, because he was an organiser of protest activities against the government in 2003. He claims the authorities demonstrated an interest in him earlier this year when they indicated to his mother that they wanted to speak to him.
Its conclusions in relation to his history, and its assessment of his risk of persecution if he returned were as follows:
The Tribunal has considered information from external sources, summarised above and discussed with the applicant at the hearing, dealing with the PRC government’s attitude towards protest activities and dissent. The Tribunal accepts that the PRC government does not tolerate dissent and often the PRC authorities have been implicated in human rights violations against political activists. The Tribunal is satisfied that while the applicant was politically active in 2003 he attracted the adverse attention of the authorities. It accepts his claim that they monitored his activities for six months until he fled to Taiwan. Nevertheless, the Tribunal has formed the view after considering the above information from external sources that the authorities in China are only interested in individuals who are either politically active or those suspected of being politically active against the government (see for example, US Department of State, 2006, Country Reports on Human Rights Practices 2005: China (includes Tibet, Hong Kong, and Macau), 8 March, at The Tribunal finds that the applicant ceased to be politically active approximately three years ago and he is not implicated in any activity of a political nature which will attract the adverse interest of the PRC authorities now or in the reasonably foreseeable future.
The Tribunal has formed the view that the applicant’s involvement in political activities was confined to those few months in 2003 when he expressed views against the authorities because his friend was denied compensation. The Tribunal is satisfied that now, almost three years after the applicant ceased to be involved in political activities, the chance that the PRC authorities will seek to harm him for political reasons, is remote. The Tribunal is satisfied that the authorities in China will no longer consider the applicant to be a political activist, or suspect him of being a person who is implicated in political activities against the government, as he has not been involved in any activities of a political nature for a considerable period of time.
The Tribunal noted the applicant’s claim that the authorities in China visited his mother earlier this year. The applicant claims that the visit is proof that the authorities are still pursuing him for political reasons. However, the Tribunal has formed the view, after considering the limited information the applicant has regarding this matter, that he does not have sufficient information on which to conclude that the police are seeking to find and harm him for political reasons. The Tribunal accepts that the authorities in China visited the applicant’s mother earlier this year and they indicated to her that they wanted to speak to the applicant. However, it does not accept that the visit demonstrates ongoing interest by the authorities regarding the applicant’s political opinion. The Tribunal finds that there is compelling evidence from external sources to indicate that persons such as the applicant, that is persons who were politically active but have ceased to be politically active against the government, do not attract the ongoing adverse interest of the authorities in China. The Tribunal finds that it is mere speculation on the part of the applicant that the authorities in China are still pursuing him because of his involvement in political activities in 2003 or that the authorities were seeking to find and harm him in 2006 for expressing his political opinion in 2003.
The Tribunal assessed the likelihood that the applicant would suffer ‘employment difficulties’ if he returned to China. It accepted that “after his release from prison he was unable to obtain employment because the authorities told employers that he was a trouble maker.” However, it referred to advice that “PRC citizens previously implicated in political activities against the PRC government … were allowed to become involved in trade and economic pursuits without hindrance from the government’ once they ceased to be involved in political activities against the government”. It concluded as to the future:
that the applicant is no longer implicated in political activities against the PRC government or involved in any activity which might give rise to a suspicion that he is involved in political activities against the PRC government. The Tribunal is satisfied that he will not be prevented from obtaining employment by the authorities in China because of his protest activities in 2003
The Tribunal’s further findings, in my opinion, made clear that it did not confine its assessment of the future to a consideration of whether the applicant was at risk arising from his past political activities, but also considered the likelihood that the applicant would become involved in other political activities which might incur persecution. Thus, it found both:
·“now, when the applicant is no longer involved in activities against (the persons he criticised in 2003), the chance that the will be at risk of harm by the persons he criticised in 2003, is remote”, and
·“as the applicant has not been implicated in any activities of a political nature since 2003, or expressed an interest in further political activities in the reasonably foreseeable future … the chance that the PRC authorities or anyone else will seek to harm (him) in the reasonably foreseeable future, for political reasons, is remote.”
I therefore do not consider that the Tribunal’s decision can be challenged upon the basis that it addressed only the risk of the applicant suffering continuing persecution by reason of past political activities (cf. SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9, and my decision in SZGVQ v Minister [2006] FMCA 1005 at [35] and ff.). Nor do I consider that the Tribunal’s reasoning shows it addressing the applicant’s future risk of political persecution upon an assumption that he would modify his future conduct in the face of a threat of political persecution (cf. NBKT v Minister for Immigration [2006] FCAFC 195 at [65] and ff.).
In my opinion, the Tribunal’s reasoning should be understood as founded upon a factual assessment of the applicant as someone who had engaged in a brief episode of political activism and had no “interest in further political activities in the reasonably foreseeable future”. Other Tribunal members might have arrived at a different assessment, but I do not consider that this assessment was not open to the Tribunal on the evidence. It was a matter of evaluation of the applicant as a person, of his past history, and of his future behaviour. A court on judicial review must be cautious before giving effect to its own factual assessment on such an issue so as to conclude that it was flawed by jurisdictional error (cf. Minister for Immigration and Multicultural Affairs v Eschetu (1999) 197 CLR 611 at [40]-[44]).
The applicant’s solicitor did not contend that the Tribunal made either of the errors to which I have referred above. Nor, as I understood him, did he press a submission that I should conclude that its ultimate conclusion was not open to it, in the sense of a conclusion made without any support in the evidence (Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356). However, he came very close to this position when he attacked particular parts of the Tribunal’s reasoning under the following grounds of review:
1.(a) The Tribunal erred in failing to complete the exercise of its jurisdiction
Particulars
(a)The RRT failed to consider the Applicant’s claim that he called on self-employed truck drivers to form a trade union.
(b)The RRT failed to consider and decide on the Applicant’s claim that he was marked for harm by local authorities and the regional government, rather than the national government.
(c)The RRT failed to consider a claim that arose clearly on the evidence before the Tribunal- that being that the Applicant’s reputation as a trouble maker and leader, promoted by the authorities, would prevent him earning a livelihood in the future.
(d)The RRT failed to consider whether the Applicant would be perceived as being politically active or a political threat in circumstances where the Tribunal found that he had,
(i)been detained, tortured and made to sign a confession,
(ii)been harassed for the six months after he had been released from custody, and
(iii)then disappeared from the area and departed the PRC unlawfully.
(e)The Tribunal failed to engage in reasonable speculation as to the reason why the police recently visited the Applicant’s mother’s house asking for him.
(f)The RRT failed to take into account the Applicant’s claim that he was a political activist leader.
(g)The RRT failed to consider whether the Applicant would be perceived as a political activist leader.
2.The Tribunal made a finding in the complete absence of evidence.
Particulars
(a)There was no evidence, and it was not open for the Tribunal to find, that the police visited the applicant’s mother and asked for the Applicant for any reason other than his participation in political activities.
(b)There was no evidence and it was not open for the Tribunal to find, that the PRC authorities and or the regional authorities no longer consider the Applicant to be a political activist.
(c)There was no evidence and it was not open for the Tribunal to find, that the PRC authorities and or the regional authorities were satisfied that the Applicant was no longer implicated in political activities against the government.
(d)There was no evidence and it was not open for the Tribunal to find, that the PRC authorities and or the regional authorities knew if the Applicant had ceased to be politically active.
(e)There was no evidence and it was not open for the Tribunal to find that the Applicant ceased to be politically active approximately three years before the RRT’s decision, made on 27 November 2006.
Generally, I have concluded that these grounds, and the arguments presented to me, amounted to an invitation that I should find jurisdictional error by concluding that the Tribunal made factual errors or wrong assessments of the evidence in relation to particular elements in the applicant’s history and claims. However, I have resisted this invitation, and, as I have indicated, I am not prepared to find any factual assessment of the Tribunal reveals a failure to exercise jurisdiction (cf. Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [9], [34]-[36], [81]).
Dealing with each of the particulars of the grounds, I have concluded as follows:
a)I reject the contention in ground 1(a) that the Tribunal overlooked the part of the applicant’s claimed history in which he “called on those self-employed drivers to establish our own union”. This claim in para.9 of the applicant’s written statement, was that he did this in “propaganda materials” which “we distributed”. I consider it most unlikely that the Tribunal overlooked this part of the applicant’s narrative, and find that it was addressed by the Tribunal within its findings which considered the applicant’s “protest activities” in 2003.
b)I do not accept the argument under ground 1(b) that the Tribunal overlooked that the applicant claimed to have suffered harm at the hands of local and regional government authorities rather than the national government. The Tribunal’s reasoning which assessed his history was based upon country information which considered actions against protestors taken by “the authorities” in China at all levels, and I would not read its reasoning as being confined to a consideration of the actions of the central government.
c)In relation to ground (1)(c), the Tribunal clearly addressed the applicant’s fear that he would be prevented from earning a livelihood in the future. It accepted that he suffered “in the six months after his release …because the authorities told employers that he was a trouble maker”, and expressly found that in the future “the authorities … will not seek … to interfere with his employment opportunities …”. I consider that this finding, and the more general findings which found that the applicant did not have a well-founded fear of persecution, sufficiently addressed this part of the applicant’s claims.
d)As I have explained above, the Tribunal did address whether the applicant would face any further persecution “for political reasons” in the future. I am not satisfied that, when doing so it did not take into account its findings which accepted the past episode of persecution. Its whole reasoning process which I have extracted above reveals that it confronted that necessary factual assessment, and found against the applicant. I therefore do not accept ground 1(d).
e)Ground 1(e) was developed with reference to the authorities which have held that a Tribunal is not required to engage in “reasonable speculation” on the hypothesis that its factual findings might be wrong, if its reasons indicate no doubts about those findings (see Minister for Immigration & Multicultural Affairs v Rajalingham (1999) 93 FCR 719 at 239 – 241, Applicants A233 of 2003 v Refugee Review Tribunal [2004] FCAFC 296 at [11]–[14]). I am not persuaded that the Tribunal made any error under these principles, when it examined the significance of the applicant’s claim that police had visited his mother on one occasion “earlier this year”.
f)In relation to grounds 1(f) and (g), it was not necessary for the Tribunal to categorise the applicant as “a political activist leader” when considering his claimed history. It was enough, in my opinion, for it to show that it was aware of the history of his involvement in protest activities, and that it assessed its implications when considering the likelihood of the applicant suffering persecution in the future. I am not persuaded that when making its findings about the future the Tribunal did not consider whether he would again engage in protest activities or be perceived as a political activist warranting persecution. I consider that its findings sufficiently addressed these issues.
g)Ground 2(a) essentially challenged the Tribunal’s conclusion that the applicant’s evidence of one visit by a policeman did not provide “sufficient information on which to conclude that the police are seeking to find and harm him for political reasons”. I do not accept that this assessment was not open to the Tribunal.
h)Grounds 2(b), (c), (d), essentially challenged the Tribunal’s conclusion that the applicant was not at continuing risk of persecution by reason of events in the past. As I have indicated above, I am not persuaded that its conclusions on this issue were not open to the Tribunal on the material before it.
i)Ground 2(e) challenged the further finding that the applicant would not be politically active in the future. This finding was supported by the applicant’s own evidence to the Tribunal that “he has not been involved in any activities of political nature since October 2003” either in China or Australia. As I have explained above, I am not persuaded that the Tribunal’s predictive assessment from this evidence was not open to it.
For the above reasons, I am not satisfied as to any of the grounds of appeal argued before me, nor that the Tribunal’s decision was otherwise affected by jurisdictional error. I must therefore dismiss the application.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Michael Abood
Date: 20 April 2007
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