SZHJX v Minister for Immigration - [2007] FMCA 364

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHJX v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 364

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error.

Migration Act 1958 (Cth), s.424A(1)

Applicant S301/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 155
Khan v Minister for Immigration & Multicultural Affairs [2000] FCA 1478
Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61
SZCIJ v Minister for Immigration & Multicultural Affairs & Anor [2006] FCAFC 62
WAGP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 276

Applicant:

SZHJX

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG3017 of 2005

Judgment of:

Barnes FM

Hearing date:

1 March 2007

Delivered at:

Sydney

Delivered on:

1 March 2007

REPRESENTATION

Applicant:

In Person

Counsel for the Respondent:

Nil

Solicitors for the Respondent:

Sparke Helmore

ORDERS

The name of the first respondent be changed to read ‘Minister for Immigration and Citizenship’.
The application is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $4,100.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2017 of 2005

SZHJX

Applicant

And

MINISTER FOR IMMIGRATION &CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) signed on 17 August 2005 and sent to the applicant on 13 September 2005.
The applicant who is a citizen of the People’s Republic of China (the PRC), arrived in Australia in November 2004 and applied for a protection visa. In his protection visa application he claimed that his family had suffered persecution from the Chinese authorities because of his relatives’ membership of the Guomin Party in Taiwan. He claimed that they lacked basic human rights and could not visit Taiwan. He also claimed he was a Falun Gong member, had joined a protest and suffered persecution from Chinese authorities. The application was refused and the applicant sought review by the Tribunal. He provided a written statement in connection with his application that reiterated his initial claims.
The applicant attended a Tribunal hearing conducted with the assistance of an interpreter who is recorded by the Tribunal to be an interpreter accredited in the Mandarin language. The Tribunal also recorded that in the hearing the applicant indicated that the earlier written material omitted reference to his religious beliefs and to what had happened to him because of his religion and a claim that his parents had been gaoled for six months when he was five to six years old. He said that a friend had assisted him with the protection visa application.
The applicant told the Tribunal that his family suffered persecution from the authorities because of his relatives’ membership of the Guomin Party, that his parents were gaoled and otherwise subject to mistreatment, that they were refused passports to visit Taiwan and that letters sent to and from relatives were confiscated and also his claim that in 1998 he had been refused membership of the Chinese Communist Party at his workplace because he had relatives in Taiwan.
He claimed that he had suffered persecution from the Chinese authorities as a member of Falun Gong, that he joined a protest condemning the Communist Party for suppressing Falun Gong and helped to spread pamphlets, and that his name had been mentioned when police were checking protestors in relation to a Falun Gong protest in Shenyang in 2000. He also claimed that the police were always chasing him and that he had hidden everywhere.
The Tribunal recorded that at the hearing the applicant also claimed that he suffered persecution because he was a Catholic, that the family was affected because they had a Catholic relative in Taiwan. He claimed that he had not been promoted at work because he was a Catholic. More generally, he claimed that he left China because he realised the police were giving him problems and because many people around him were being arrested.
In its findings and reasons the Tribunal accepted that the applicant was a national of the PRC, that his family had relatives in Taiwan and that in the early 1970s his parents had been gaoled because of some suspicions about their links with such relatives. It also accepted that mail between the families was intercepted by the authorities until 2002 when the relatives in Taiwan died and that the applicant had been refused membership of the Chinese Communist Party in his workplace in or around 1998 because he had relatives in Taiwan. The Tribunal stated, however:
…as I do not consider that the difficulties he faced personally (refusal of membership of the CCP and possibly lack of promotion in his workplace) amounted to persecution, as he clearly stated that he had no further problems attributable to his having relatives in Taiwan after 1998, I am satisfied that, during his last years in China, the authorities did not suspect him of holding dissident views because of that past connection.
The Tribunal had regard to independent information to the effect that people suspected of holding suspect political views were subject to harsh penalties and that the applicant had not been subjected to harsh penalties. It found that as he had no continuing link with Taiwan, the chance was remote in the extreme that he might face any serious harm in the reasonably foreseeable future as a result of having had family members in Taiwan. The Tribunal found that he did not have a well-founded fear of being persecuted for an imputed political opinion.
The Tribunal found the applicant’s “belated” claim to be a Catholic to be untruthful, based on the applicant’s lack of knowledge about the church and the absence of any documentary evidence to support his claim or to indicate that he had been attending church in Australia.
As to the applicant’s claim to be a supporter of Falun Gong, while the Tribunal found that the applicant had correctly named its leader, it found he was unable to explain with any cogency why, given he did not participate in Falun Gong practice, he had decided to support the group. It also had regard to his failure to participate in any Falun Gong practice sessions with any of the Falun Gong groups in Sydney and most significantly, found his claims in relation to the operations of Falun Gong in China to be inconsistent with independent country information (in particular, he was unaware that the change in government attitude was in 1999). The Tribunal found that this lack of awareness indicated that the applicant did not participate in the activities he described in 1998 and had little or no contact with Falun Gong practitioners. Hence, it did not accept the he participated in a Falun Gong protest in 2000 or in any subsequent activities in support of Falun Gong. The Tribunal was not satisfied that the applicant was an activist critical of the Chinese authorities’ treatment of Falun Gong practitioners, nor that he might be perceived by the authorities to have any link with Falun Gong. It found that he did not have a well-founded fear of being persecuted in China based on his claimed links with Falun Gong or for any other Convention-related reason.
The applicant sought review by application filed in this Court on 18 October 2005. He relies on an amended application filed on 19 January 2006 which contains five grounds. The first ground is that the Tribunal failed to comply with its obligations under s.424A(1) of the Migration Act 1958 (Cth) in that it failed to give the applicant particulars of specified items of independent country information to which it referred in the Tribunal reasons for decision, to explain why such material was relevant and to give him an opportunity to comment on such information.
The amended application refers to the Tribunal finding that independent evidence made it clear that persons suspected of holding suspect political views were subject to harsh penalties in China and lists items of country information referred to in the Tribunal reasons for decision. However, as submitted for the first respondent, all of the independent country information referred to is information which is within the exception to s.424A(1) in s.424A(3)(a). No failure to comply with s.424A is established.
The second ground is that the Tribunal ignored important facts in making its decision. The particulars in the amended application repeat aspects of the applicant’s factual claims based on the relationship between his family and Taiwan and refer to a paragraph of the UNHCR Handbook which pointed out that an applicant may have been subjected to various measures not in themselves amounting to persecution, but which nonetheless, combined with other adverse factors, may produce an effect in the mind of the applicant that can reasonably justify a claim to a well-founded fear of persecution on cumulative grounds.
First, insofar as the applicant seeks merits review, merits review is not available in this Court. Secondly, while the claims the applicant makes in this ground relate to his family background and the treatment of his family and the consequential impact on him, the Tribunal considered such claims and indeed accepted the applicant’s claims about past imprisonment of his parents and interception of mail and also that the applicant was refused membership of the Communist Party in or around 1998. Nonetheless, for the reasons that it gave in relation to the difficulties he had faced personally, it was satisfied that in his last years in China the authorities did not suspect him of holding dissident views because of that past connection. It noted that the applicant had had stated that he had no further problems attributable to his having relatives in Taiwan after 1998, and also that independent evidence made it clear that people suspected of holding suspect political views were subject to harsh penalties which the applicant himself had never experienced.
The Tribunal’s conclusions in relation to the applicant’s claims in this respect were open to it on the material before it for the reasons that it gave. It has not been established that the Tribunal failed to take into consideration integers of the applicant’s claims or otherwise fell into error in the manner contended for by the applicant.
The third ground is that the Tribunal made wrong findings. The first particular is that the applicant may not participate in Falun Gong practise sessions in Australia but that it must be “unfair” if the Tribunal rejects his claims regarding his involvement in protests in China solely based on it this factor. However, the applicant’s failure to participate in activities in Australia was not the sole reason for the Tribunal’s rejection of his claims about participation in or support for Falun Gong in China. In particular, as set out above, the Tribunal had regard to the applicant’s lack of knowledge about the situation of Falun Gong in China. No error is established on this basis.
The second particular is that if the applicant made a mistake about the year - 1999 or 1998 - because of his poor memory or because he was too nervous, it was unfair if the Tribunal rejected his claims solely based on that mistake. The applicant claimed that he had participated in Falun Gong activities in 1998, in particular a protest condemning the Communist Party for suppressing Falun Gong. The Tribunal had regard to the independent information that Falun Gong was not operating in secret before 1999 and that the attitude of the government changed towards it only in 1999. It did not reject the applicant’s claims in relation to Falun Gong based only the applicant’s ‘mistaken’ claim that he participated in activities in 1998. It recorded that in the Tribunal hearing after the applicant made his claims about events of 1998, it put to him evidence that Falun Gong was not being suppressed in 1998 and was not banned until 1999 and that his response was that Falun Gong was secret in 1998. When the Tribunal put evidence to him that it was not secret, he responded that the authorities had started to suppress Falun Gong in 1997. There is nothing in the material before the Court to suggest that the applicant claimed to the Tribunal that he had made a mistake in relation to the year in which he participated in Falun Gong activities. In any event no “wrong finding” constituting a jurisdictional error is established.
I note in that respect and also generally in relation to the other grounds relied on by the applicant, that in making a general claim that the Tribunal was “unfair”, he referred to the fact that he had no English and could not afford a lawyer before the Tribunal. However, legal representation is not normally permitted in relation to Tribunal hearings in the manner he seems to contend. Moreover, the Tribunal recorded that the applicant had the assistance of an accredited Mandarin interpreter. No lack of fairness is established arising out of those claimed factors.
In the particulars ground 3 the applicant also relied claimed that the Tribunal ignored a statement in the UNHCR handbook referring to the fact that an applicant may be afraid to speak freely and give a full and accurate account of his case; that it may be necessary for an examiner to clarify apparent inconsistencies and resolve contradictions and that untrue statements by themselves are not a reason for refusal of refugee status. It is clear, however, in this case that the Tribunal took into account a number of factors in rejecting the applicant’s claims. On the material before the Court there is nothing to suggest that it failed to comply with s.425 or otherwise fell into error in the manner in which it conducted the Tribunal hearing, or that the manner in which it made its findings or its findings involved error of law.
Ground 4 in the amended application repeats the applicant’s claims in summary. The general complaint that the Tribunal failed to comply with its obligations under s.424A(1) does not assist the applicant as this is not a case in which the Tribunal relied on information to which the obligations in s.424A(1) apply. The written submissions for the first respondent addressed the fact that the Tribunal referred to the fact that the applicant’s claim to be a Catholic was made belatedly at the Tribunal hearing. As contended, the fact that the applicant failed to make such a claim at an earlier date is not information within the meaning of s.424A(1), most significantly because the Tribunal in the findings and reasons part of its decision did not find that the lateness of the claim played any part in its process of reasoning; see Applicant S301 of 2003 v MIMIA [2006] FCAFC 155 at 19).
The Tribunal rejected the applicant’s claims to be a Catholic because of his lack of knowledge of the church and lack of supporting documentary evidence. As the “belatedness” of the claim was not the reason or a part of the reason for affirming the decision under review, there was no requirement for the Tribunal to put such material to the applicant. Moreover, there is authority that the word “information” does not encompass a failure to mention a matter to the Tribunal (see WAGP of 2002 v MIMIA (2002) 124 FCR 276 at 26 and Applicant S301/2003 v MIMIA [2003] FCAFC 155) and it was open to the Tribunal to comment on the mere fact of the lateness of the particular claim (Applicant S301/2003 at [19]).
As already indicated, merits review is not available in this Court and the claim that the Tribunal failed to consider the applicant’s claims or the integers of his claims is not established. The Tribunal accurately summarised and considered the applicant’s evidence as set out in his protection visa application and written statements. The decision is the only evidence of what occurred in the Tribunal hearing and the Tribunal summarised the claims made in that context and addressed all of those claims, considering the totality of the case put forward as required (see Khan v MIMA [2000] FCA 1478).
The last ground in the amended application is that the application has not been considered fairly and properly. No particulars are provided. I have addressed the applicant’s oral claims in relation to his lack of English and lack of a lawyer. I also note that the application to the Tribunal was made after the introduction of s.422B of the Migration Act, as to which see MIMA v Lay Lat [2006] FCAFC 61 and SZCIJ v MIMA & Anor [2006] FCAFC 62. In any event, there is nothing in the material before the Court to suggest any lack of procedural fairness in any sense.
The applicant’s oral claim that the police were still chasing him seeks impermissible merits review. His claim that his documents were prepared by a friend who did not help him very effectively does not establish jurisdictional error on the part of the Tribunal. Insofar as he intended by that claim to take issue with the scope of the amended application filed in this Court, I note that the respondent’s written submissions range beyond the scope of the amended application and that no jurisdictional error is apparent on the material before the Court. Accordingly, the application must be dismissed.
The applicant has been unsuccessful. It is appropriate that he meet the costs of the first respondent. The amount sought is appropriate in light of the nature of this and other similar matters.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 26 March 2007