SZHKH v Minister for Immigration
[2007] FMCA 267
•5 March 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHKH v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 267 |
| MIGRATION – Application for review of a decision of the Refugee Review Tribunal – no jurisdictional error. |
| Migration Act 1958 (Cth), ss.424, 424A, 425, 441 |
| Minister for Immigration & Multicultural & Indigenous Affairs v Lay Lat [2006] FCAFC 61 Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 78 ALJR 992 VCAK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 459 |
| Applicant: | SZHKH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG3051 of 2006 |
| Judgment of: | Barnes FM |
| Hearing date: | 5 March 2007 |
| Delivered at: | Sydney |
| Delivered on: | 5 March 2007 |
REPRESENTATION
| Applicant: | In person |
| 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 costs of the first respondent fixed in the sum of $3,300.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3051 of 2005
| SZHKH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 15 September 2005 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa. The applicant, a citizen of the People’s Republic of China, arrived in Australia in December 2004. He claimed in his protection visa application to have been a farmer who owned land in Fujian Province that had been reclaimed by the government. The application was refused.
The applicant sought review by the Tribunal and provided an accompanying statement claiming to fear persecution for reason of political opinion as a proponent of the independence of Taiwan. However the applicant’s migration agent subsequently advised the Tribunal that, due to carelessness in arranging the files, the applicant’s statement had been lodged “uncorrected”. Subsequently it was clarified that the applicant’s claims were consistent with those made in the statement submitted to the Department. A statement to that effect was submitted to the Tribunal with two minor elaborations.
The Tribunal wrote to the applicant on 7 June 2005 pursuant to s.424 of the Migration Act 1958 (Cth) seeking additional information on specified issues.
There is nothing in the material before the Court to suggest and nor is it claimed that the Tribunal failed to comply with its obligations under the Migration Act in relation to the sending of this letter. The applicant provided a response within the prescribed time and it is clear from the Tribunal reasons for decision which refer to that response that it had regard to that response in making its decision on the review.
The applicant attended a Tribunal hearing with the assistance of a Mandarin interpreter. The Tribunal recorded the evidence given at the hearing and also that, following the hearing, the Tribunal wrote to the applicant under s.424A of the Migration Act by letter sent by facsimile message to his authorised recipient inviting him to comment on information that would, subject to his comments, be the reason or part of the reason for affirming the decision under review. In particular, the letter invited comment on information contained in the applicant’s business visa application and information relating to a third party’s protection visa application and Tribunal application which made almost identical claims.
Again, there is nothing in the material before the Court to suggest, nor is it claimed, that the Tribunal failed to comply with its obligations under the Migration Act in relation to this letter. The Tribunal recorded that it received no response to the s.424A letter. It proceeded to make a decision on the review without taking any further action to obtain the applicant’s views on the information.
The Tribunal outlined the applicant’s initial claims to have been a land owning farmer and his claims to fear persecution because of issues arising from the alleged confiscation of that land by the government, in particular, that his family were left with almost nothing, were refused government social security payments and that they were forced to live in poverty. It set out his claims about joining a group of activists consisting of other farmers in the region who participated in protests against the government and that they were so successful that he and others involved were arrested and detained.
The applicant claimed he was detained on two occasions in June and July 2004, on one occasion securing his release by paying a bribe. Thereafter he continued to lobby the government to obtain financial support. He claimed that after each attempt he was fined and he and his family were threatened by imprisonment and that his actions placed his family in danger so he decided to come to Australia.
In the findings and reasons part of its decision, the Tribunal stated that it did not accept that the applicant was a farmer from a village in Fujian, as claimed. It had regard to a number of factors, including the fact that the applicant had provided no corroborative evidence to support his assertion that he was a farmer (such as a copy of the household register). Nor had he provided or been aware of any documentation to show that he had a right to farm land in China. The Tribunal also found a contradiction in the applicant’s written claims to the Tribunal and his oral evidence in relation to the alleged size of the farm in question. It found his evidence on that subject unconvincing. The Tribunal also found that there was a contradiction in the material before it concerning the applicant’s alleged response to the claimed confiscation of his land and, in particular, as to whether he had taken legal action against the government.
The Tribunal also had regard to other evidence before it to suggest that the applicant was not a farmer, in particular, the contents of his application for a business visa to come to Australia which had resulted in the grant of a visa and in which it was claimed that he was the Vice-General Manager of a machine and electrical equipment company in a city. It had regard to the fact that when asked about this at the hearing, the applicant had acknowledged that he had an association with these companies, although he had asserted the connection was nominal. It noted that he had not responded to a further invitation by the Tribunal to comment in writing on the identified implications of this information.
On the basis of the business visa application and the material in relation to that application, the Tribunal concluded that the applicant was employed in a senior capacity by the machine and electrical equipment company since 1999 and that he had resided in a named city during that time and in an earlier city for the previous 11 years. It found that this evidence was not consistent with the applicant’s claims to have resided in a named village since birth and to have been a farmer there.
The Tribunal concluded that, given the evidence of the application for a business visa, the lack of corroborating evidence and the contradictions, the applicant was not a farmer in a village in the years leading up to his departure from China and hence that the events he claimed flowed on from the alleged confiscation of his farm land did not take place. The Tribunal therefore found that he was not arrested and fined, was not regarded as a dissident and had not been deprived of an opportunity to earn an income.
As the applicant had confirmed that the claims submitted with his application for review about being a pro-Taiwanese political activist did not apply to him and were submitted in error the Tribunal found that he was not involve in pro-Taiwan political activities and was not adversely regarded by the PRC authorities as a result.
The Tribunal concluded that the applicant did not have a well founded fear of persecution in China for a Convention reason.
The applicant sought review by application filed in this Court on
20 October 2005. He has not filed written submissions and in oral submissions he repeated his claims to be a refugee.
The first ground in the application is that the Tribunal failed to obtain current country information in relation to a matter on which it based its decision and in so doing failed to accord procedural fairness to the applicant and misconceived its obligations under s.424 of the Migration Act. This ground, however, is misconceived. The Tribunal rejected the applicant’s claims to have been a farmer on the basis of contradictions in his evidence and the lack of corroboration. The Tribunal did not refer, and it was not necessary for it to refer, to independent information in making this finding. It was not under an obligation to search out and obtain information to support the applicant’s case: see MIMIA v SGLB (2004) 78 ALJR 992 at 43.
Paragraph 1(b) alleges without particularisation that the Tribunal made an error in terms of procedural fairness. Section 422B is applicable to this application, see MIMIA v Lay Lat [2006] FCAFC 61 and it has not been established that the Tribunal failed to comply with its relevant obligations under any of the provisions in Division 4 of Part 7 of the Migration Act.
As set out above, the Tribunal wrote to the applicant on a number of occasions including the letter on 7 June 2005 under s.424 of the Act. The Tribunal took his response into account. The Tribunal also, importantly, wrote to the applicant after the hearing under s.424A of the Act by letter sent by facsimile to the applicant’s migration agent. There was no response to this letter received by the Tribunal. There is nothing in the material before the Court to establish any failure by the Tribunal to comply with the provisions in relation to the giving of such letters to an applicant. In particular, there is nothing to suggest that the requirements of s.441A were not met or s.441G or, indeed, that there was any failure to comply with s.425(1).
Nor is there anything in the material before the Court to suggest that there has been any failure by the Tribunal to comply with s.424A. In that respect I note that the Tribunal may have appeared to rely on information provided by the applicant in connection with his protection visa application which was not repeated in precisely the same terms in the subsequent statement provided to the Tribunal (that is that he initially stated he took legal action against the Government whereas he referred to action against the Government in a subsequent statement).
However, in his response to the request for information under s.424 of the Act, the applicant provided the information that he took legal action during March to May 2004, thus confirming the information which the Tribunal found inconsistent with the oral evidence provided to the Tribunal. No failure to comply with any of these provisions has been established, let alone a lack of procedural fairness.
Ground 2 is that the Tribunal denied access “to the nature of justice”. Paragraph 2(a) asserts generally that the Tribunal made an error of law in the exercise of its discretion under ss.36 and 65 of the Act. As the respondent contended, in the absence of any meaningful particulars or explanation of the relevance of this allegation to the applicant’s case, this ground must fail.
Finally, the application contends that the Tribunal denied the applicant natural justice in making its decision without undertaking proper investigations and failing to understand land documents issued in the People’s Republic of China. It is, however, for an applicant to make out his case before the Tribunal and if, as in this case, the Tribunal cannot be satisfied on the material presented that the applicant’s claims are genuine, it does not have a duty to make further inquiries, (see SGLB) or to undertake investigations (see VCAK v MIMIA [2004] FCA 459).
This is not a case in which there is anything to suggest that the applicant sought to put material before the Tribunal that was not considered. Indeed I note that in the s.424 letter the Tribunal asked the applicant for details in relation to his land. The response does not purport to put any information before the Tribunal in relation to land documents in the People’s Republic of China or to otherwise address the basis of the applicant’s claims as to use or ownership of the land. The Tribunal’s findings in relation to credibility of the applicant were open to it on the material before it for the reasons that it gave and no jurisdictional error is established in its decision or procedures.
Finally, I note that the applicant claimed that a lawyer prepared his case for the Tribunal and that he was not entirely clear what the lawyer had done. I note in that respect that the applicant not only provided written statements in connection with his protection visa application and also to the Tribunal addressing his claims to be a farmer but also that he attended a Tribunal hearing with the assistance of a Mandarin interpreter at which time he confirmed that the information provided by him or on his behalf was correct and had been translated for him.
There is nothing in the material before the Court to suggest that the applicant raised with the Tribunal any concern about the manner in which his case had been conducted. While the Tribunal raised, in its s.424A letter, the fact that applications by others for protection and review were in identical terms, those particular matters were not matters relied upon by the Tribunal in the findings and reasons part of its decision. Rather the Tribunal relied on the business visa application and the contradictions and lack of conviction in the applicant’s claims referred to above.
Nor did the Tribunal rely in its findings and reasons on the fact that there had been incorrect claims made about the applicant being a pro-Taiwan political activist. In these circumstances there is nothing in the material before the Court to suggest that any concern that the applicant may have about the conduct of his migration agent (who I note is not described as a lawyer in any of the material before the Court) is such as to establish jurisdictional error on the part of the Tribunal.
As no jurisdictional error has been established, the application must be dismissed.
It is appropriate to alter the name of the first respondent as is sought. The applicant has been unsuccessful and should 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-eight (28) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 15 March 2007
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