SZHJI v Minister for Immigration

[2007] FMCA 826

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHJI v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 826

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

Migration Act 1958 (Cth), ss.422B, 424A, 474, 483A
Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41
Acts Interpretation Act 1901 (Cth) s.8

Kim v Minister for Immigration & Multicultural Affairs [2006] FCAFC 64
Minister for Immigration & Multicultural & Indigenous Affairsv Lay Lat (2006) 151 FCR 214
SZCIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 62

Applicant: SZHJI

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2986 of 2005

Judgment of: Smith FM

Hearing date: 21 May 2007

Delivered at: Sydney

Delivered on: 21 May 2007

REPRESENTATION

Counsel for the Applicant: In Person

Counsel for the First Respondent: Mr J Mitchell

Solicitors for the Respondents: Blake Dawson Waldron

ORDERS

1. The application is dismissed.

2. The applicant must pay the first respondent’s costs in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2986 of 2005

SZHJI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application filed on 17 October 2005, which has been set down for a final hearing on whether the applicant is entitled to relief under s.483A of the Migration Act 1958 (Cth) in relation to a decision of the Refugee Review Tribunal dated 23 August 2005 and handed down on 13 September 2005. The Tribunal affirmed the decision of a delegate made on 25 March 2005, refusing to grant a protection visa to the applicant.

2. The Court's jurisdiction under s.483A has been repealed, but the repeal does not affect the continuance of this proceeding (see Sch.1 cl.41 of the Migration Litigation Reform Act 2005 (Cth), and Acts Interpretation Act 1901 (Cth) s.8). Its jurisdiction is subject to limits under s.474, so that I do not have power to remit the matter 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 should be believed, nor whether he qualifies for a protection visa.

3. The applicant arrived in Australia in December 2004, on a passport issued in his name on 18 March 2004 and containing a temporary business visa granted in the Australian embassy in Peking on

   
   

   22 September 2004.  The visa required arrival before 22 December 2004, and permitted residence for one month.

4. Upon the expiry of that visa, on 21 January 2005, the applicant applied for a protection visa, assisted by an agent, Priscilla Yu.  A statutory declaration attached to the application recounted a history upon which the applicant claimed protection in Australia against return to the People's Republic of China.  The applicant claimed:

   I had to leave my country in order to escape from political persecution by the PRC authorities, because I had been regarded as an activist who has actively organized labor's movement against the Chinese government.

5. The applicant claimed to have been dismissed with inadequate termination payments from his job in a granary, when it left public ownership in 2003.  He claimed to have organised open protests by other workers in his situation, which were held in May 2003 and September 2003.  At the latter protest meeting, “we gathered more than 300 people” who protested at the local district government offices.  On the ninth day of the protest, he claims to have been arrested by the Public Security Bureau and held in detention, where he was tortured and released after signing a confession at the end of September 2003. 

6. He claims then to have been involved in distributing propaganda materials from early 2004, and:

   We actually formed an informal propaganda group, and worked for "China Labour Watch".  Hundreds of propaganda materials have been distributed through our group during the period from April to November 2004.

7. The applicant claimed that he decided to leave the country around August 2004, when one of his group was arrested, and he claimed one of his relatives who worked “in the exit and entry administration bureau” obtained a passport for him at that time. He was able to obtain a visa in the passport at the end of September 2004. The applicant said:

   When I tried to leave the country at that time, I got some troubles, because of my bad record about detention around September 2003.

8. He claimed to have continued with his propaganda activities, and “got into trouble again in the middle of December 2004” when he and others were found distributing propaganda materials “secretly to a shopping centre”.  One person was arrested, but he and two other friends escaped, and “eventually, on 20 December 2004, I left the country with assistance of (his relative)”.  He claimed that his two other friends had been arrested and had confessed, and that his home had been searched and his wife and father subjected to interrogation:

   I have been informed by my wife and my father that PSB regards me as an activist who has actively organised labor's movement against the Chinese government, and also deeply involved in "China Labour Watch", one of anti-government organisations classified by the PRC authorities.

9. No corroboration of any of this narrative was provided to the Department, nor subsequently to the Tribunal.  The delegate pointed to aspects of the narrative which “makes me doubt the veracity of the applicant's claims”, and was not satisfied that he was subjected to harm in China. 

10. On appeal, the applicant attended a hearing to which he was invited, held on 18 August 2005.  He showed the Tribunal his passport and it took copies of it.  A transcript of the Tribunal's hearing is not in evidence before me. 

11. The Tribunal member questioned the applicant about statements in his protection visa application as to where he had lived in China, and he confirmed that he had lived at an address in a rural area and that his family was still living at that address.  The address was written on a piece of paper and translated to the Tribunal.

12. The Tribunal also questioned the applicant concerning his passport, and said:

    The applicant stated that he did not have any ID because he ran away from his country secretly. The Tribunal asked the applicant what he meant by that given that he had left China using a passport in his own name. He agreed the passport was in his name but said that he had to get the help of a relative who works in migration/border control to help him get the passport and visa issued. He asked for help to apply for the passport/visa in September 2004. The Tribunal asked why his passport’s date of issue is shown as March 2004. The applicant stated that he asked the person who helped him to submit the application for the passport in September 2004. He does not know why his passport states it was issued in March 2004. The person who helped him get it said that it was stated to be issued as at that date because it had to go through police scrutiny. The Tribunal stated that it did not understand that explanation.

    The applicant said that he had trouble from the police after his visa was granted and he thought he would not be able to leave the country. He became desperate. The Tribunal asked the applicant how then he was able to leave his country using a passport in his own name in December 2004 and asked him if anything occurred at the time he left China to come to Australia. He said that he tried to leave China in September 2004 when he obtained his visa and had trouble doing so because of his detention record. He said that in December 2004 he was in danger and left secretly. He said that his friends had been arrested when they were handing out pamphlets. The Tribunal stated that that did not explain how the applicant was able to leave his country in December 2004 without difficulty using a passport in his own name.

13. Under the heading: “Findings and Reasons”, the Tribunal gave short reasons for disbelieving the history claimed by the applicant.  It did not accept that the applicant was “a witness of truth”.

14. Central to this conclusion was the applicant’s ability to travel to Australia on a passport in his own name issued in March 2004.  The Tribunal did not accept his claim that the date in the passport had been backdated, and it did not accept that he could not leave China in September 2004 because of his detention record.

15. It also referred to the fact that he had lived at his usual address in China until the time he had left China, and that he used his passport when he did leave China.  It said that this “is not consistent with the applicant's claims that he was persecuted in China and fled that country, "ran away secretly", because he feared further persecution there”. 

16. It concluded:

    In the Tribunal's view there is no plausible evidence before it that the applicant will suffer persecution from authorities in China either now or in the reasonably foreseeable future because of his political activities/opinion if he returns to his country.  Having regard to the above the Tribunal is not satisfied, on the evidence presently before it, that the applicant has a well-founded fear of persecution in China within the meaning of the convention.

17. I have considered the reasoning of the Tribunal and its procedures, and am unable to identify jurisdictional error affecting its decisions.

18. The applicant has filed an application which contains three grounds.  Ground 1 is that:

    The Tribunal failed to comply with its obligations under

    
    

    s.424A(1) of the Migration Act 1958.

19. The argument presented in the particulars under that ground repeat the applicant's explanation for travelling on a passport which he claimed had been obtained in September 2004, notwithstanding that it has an issue date in March of that year. The argument refers to the Tribunal's refusal to accept his explanation  for this, and says:

    The Tribunal failed to give me particulars of any of the independent information on which the Tribunal was relied, to refuse to accept my claims mentioned above.

    And:

    The Tribunal failed to create a fair opportunity for me to comment on the issue arising from this point.

20. However, in my opinion the Tribunal was not obliged to put to the applicant in writing its thought processes concerning the date of the applicant's passport and how it assessed his claim that that date was false. These were matters of “thought processes” of the Tribunal, based on information shown on the face of the passport which was given by applicant by presenting it to the Tribunal at the hearing. The Tribunal was not obliged to put that information to the applicant by way of a s.424A(1) notice (see s.424A(3)(b)).

21. On the Tribunal’s file, there appears to have been a copy of an application for a business visa, made in the name of the applicant in September 2004, in which he was presented as one of a party of fifteen persons travelling to Australia:

    To study on human resources management in Australia, and to seek future cooperation opportunities with Australian counterparts and training opportunities at the Australian National University.

    This party appears to have been sponsored by an associate professor at that university.  

22. I can find no indication in the evidence before me, and in particular in the Tribunal's reasons, that it used any information from these documents as part of its reason for affirming the delegate's decision. I can understand that the Tribunal might not have felt it necessary to explore the circumstances of the business visa application, since on the applicant's own claims, his visa was falsely obtained. I am not satisfied that anything taken from those documents was required to be put to the applicant pursuant to s.424A(1). Nor did any such obligation otherwise arise under obligations of procedural fairness, since s.424A(1) was exhaustive of the applicant's entitlements to procedural fairness in relation to adverse information on the Tribunal’s files (see s.422B, and Minister for Immigration & Multicultural & Indigenous Affairsv Lay Lat (2006) 151 FCR 214, SZCIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 62, and Kim v Minister for Immigration & Multicultural Affairs [2006] FCAFC 64).

23. The second particular of the alleged breach of s.424A(1) given under ground 1 of the application, is that the Tribunal did not warn the applicant that it might draw adverse conclusions from his evidence as to his place of residence and that of his family. However, this was clearly information given to the Tribunal by the applicant at the hearing, and it is a misconception of s.424A to contend that the Tribunal's thought processes about that information were required to be put to the applicant by way of written notice.

24. Ground 2 of the application alleges:

    The Tribunal failed to consider relevant independent country information, which is a denial of procedural fairness.

    There is then reference to three reports in relation to China, which are not referred to in the Tribunal's reasons.  However, there is no evidence that the Tribunal was asked to consider those reports.  In my opinion there is no substance in this ground. 

25. Ground 3 of the application alleges:

    The Tribunal failed to comply with its obligations under s.425 of the Act. 

    The particulars allege that the applicant was denied a fair hearing because:

    3.1.1The Tribunal has distorted my evidences provided during the hearing;

    3.1.2The Tribunal many times interrupted my claims or explanations;

    3.1.3The Tribunal failed to give sufficient time to the interpreter’s translation so that the Tribunal failed to make me understand its questions or issues clearly, thoroughly or accurately;

    3.1.4The Tribunal failed to give me any fair chances to comment its negative understanding of my claims as well as the important independent country information;

    3.1.5The Tribunal intentionally gave me strong pressure; and the Tribunal failed to consider my claims according to actual situation in China.

26. These allegations gain no support from any evidence which is before me.  In particular, the applicant has not presented a transcript of the hearing upon which to base these criticisms.  In my opinion they are not shown to have any substance. 

27. The applicant attended today and repeated to me his claim to have travelled on a passport showing a false date of issue, and his explanation for that.  However, as I have explained to him, it was the Tribunal's duty to assess that explanation, not mine.  I am not satisfied that the Tribunal's consideration of his evidence was attended by any jurisdictional error.  

28. For the above reasons, I consider that the Tribunal's decision was a privative clause decision and I must therefore dismiss the application.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Michael Abood

Date:  1 June 2007