SZHLW v Minister for Immigration
[2007] FMCA 231
•27 February 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHLW v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 231 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error. |
| Migration Act 1958 (Cth), ss.424A, 422B Federal Magistrates Court Rules 2001 |
| Minister for Immigration & Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 168 ALR 407 Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 SBBG v Minister for Immigration & Multicultural Affairs [2003] FCAFC 121 |
| Applicant: | SZHLW |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG3126 of 2005 |
| Judgment of: | Barnes FM |
| Hearing date: | 27 February 2007 |
| Delivered at: | Sydney |
| Delivered on: | 27 February 2007 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Ms S Sirtes |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
The application is dismissed.
The applicant shall pay the First Respondent’s costs fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3126 of 2005
| SZHLW |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
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) handed down on 22 September 2005 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa. The applicant is a citizen of the People’s Republic of China who arrived in Australia in August 2004 on a business visa. In October 2004 he lodged an application for a protection visa including a statutory declaration which set out his claims. His application was refused and he sought review by the Tribunal. Accompanying his application to the Tribunal he repeated aspects of this claims. The applicant attended a Tribunal hearing. After the Tribunal hearing the Tribunal wrote to the applicant care of his migration agent inviting him to comment on information that would be the reason or part of the reason for deciding he was not entitled to a protection visa and the applicant provided a response to that information.
In its reasons for decision, the Tribunal outlined at some length the applicant’s claims, as made in the statement accompanying his protection visa application and in his evidence at the Tribunal hearing. In the findings and reasons part of its decision it found that the applicant’s oral account of the events he claimed to have experienced, the timing and names of the persons involved adhered faithfully to the contents of the written statement.
It summarised those claims as being a claim by the applicant that he lost his job with a particular department store in October 2002 when the company went bankrupt, that he and other workers did not receive entitlements promised by the industrial association, although former managers did receive payments and allowances. The applicant claimed that he and three friends formed an informal group to strive for the human rights of the former workers. About 20 people protested in front of the building housing the local people’s government. He claimed that an official accepted a petition and that he and another of his colleagues were invited into an office and told their petition would be given consideration.
He claimed that in the absence of a response they organised another protest with more than 80 people in attendance that went on for three days. According to the applicant, he and three colleagues, being the informal leaders of the group, were arrested at their homes on the evening on 4 June 2003 allegedly because they were protesting on a sensitive day. He claimed that he was detained for almost three months, interrogated, urged to confess to anti-government conduct and badly treated. He claimed he and the others were released in August 2003. They decided that they would confess their conduct had been anti-government. They were required to report weekly to the local police office. He also claimed that after they released the group of four decided to continue with their campaign and continued to print and distribute propaganda material in secret until July 2004, when the applicant learned that one of the group had come to the notice of the PSB and was under investigation.
The Tribunal recorded that according to the applicant his wife was already concerned for his safety and in March 2004 had arranged for a passport for him with the assistance of a friend, who made most of the arrangements necessary for him to obtain a visa for Australia. The Tribunal recorded that the applicant obtained a police clearance certificate and undertook a medical examination but claimed that he did not know when the application for passport and visa were made.
The Tribunal stated that “having had the opportunity to discuss these experiences and explore his claims in depth” it did not find the applicant to be credible with respect to his substantive claims. It found the applicant’s evidence unconvincing. In the first place it did not accept that if the applicant was fleeing from serious harm in China he would have committed all his experiences to paper and carried such document on his person to Australia as he had claimed. It did not accept that he had lost his job when the department store in which he had worked went bankrupt or that he had been involved in demonstrations and detained and mistreated as claimed.
It gave a number of reasons for these findings. In particular, it found that the applicant’s “evidence about the demonstrations and his own particular role was vague and unconvincing”. It had regard to the fact that he could not give a meaningful description of the activities of the four so called leaders, their plan of action or desired outcomes and that, although he claimed to be responsible for writing propaganda materials and delivering speeches, he had been unable to discuss the content of these in any meaningful way. It had regard to his inability to discuss in detail the content of the speeches which he claimed to have delivered during the June 2003 protest which were considered by the authorities to have “stirred up anti‑government activities” leading to his detention. It also referred to the fact that while the applicant claimed that he had been questioned constantly during his detention, he had failed to describe these interactions in a way which convinced the Tribunal that he had actually experienced the situation. The Tribunal pointed out that when asked about the question by police, the applicant “only responded that they kept asking him why he conducted the demonstration and he responded that he had nothing to confess”.
The Tribunal found implausible the applicant’s claim that he and his three colleagues has close contact while in detention and came jointly to an agreement to write a confession to secure their release. It also found it implausible that after release and despite a failure to make earlier progress, the four resumed the distribution of leaflets in secret until July 2004. It did not accept that if the applicant had been detained and subsequently required to report weekly to the local police, that he would not be under surveillance. It rejected his claim that he continued to distribute propaganda material in secret from September 2003 until July 2004.
The Tribunal also rejected the applicant’s claim that his wife had started making arrangements in advance for his departure from China because of fears for his safety. In that context, the Tribunal had regard to the fact that it had put to the applicant in a letter of 15 July 2005 information indicating that his passport had been issued in March 2004, a visa granted on 13 August 2004 and that he had travelled to Australia on 29 August 2004 and that the information was relevant because the Tribunal may conclude from it that the applicant’s plans for travel to Australia were arranged over an extended period of time and that the travel was undertaken at a time of the applicant’s choosing and convenience.
The applicant responded by letter dated 9 August 2005 that his wife had commenced arrangements for his trip overseas as early as March 2004 “in case [he] was in dangerous” (sic) as he was involved in activities not tolerated by the authorities. He claimed he had had the assistance of a named friend. However, in its findings and reasons the Tribunal noted that it had dismissed the claims about the applicant’s release from detention and continued dissemination of propaganda materials in secret after August 2003. It had regard to the fact that the applicant did not explain to the Tribunal’s satisfaction “why it was particularly in February or March 2004 that his wife was moved to start making arrangements for his departure overseas”. It found that his response to the invitation to comment on this information failed to explain this to the Tribunal’s satisfaction.
The Tribunal found on the applicant’s evidence, that he had secured his passport in his own name through normal channels and provided all the required documentation to obtain it. It found that the applicant’s travel arrangements were not made hurriedly (noting the visa was granted five months after the passport was issued). In the circumstances it concluded that the applicant was not fleeing harm in China as claimed, it but “was involved in a plan over time to secure the necessary documentation to travel to Australia for the purpose of securing a long term stay by any means available to him”.
The Tribunal then reiterated that it was not satisfied that the applicant was involved in protest action over the non-payment of an allowance for the unemployed from April 2003 until July 2004 as claimed or that he was detained and thereafter required to report weekly after his release. It found accordingly that it did not accept that the applicant’s colleagues had been arrested and detained as claimed or that his wife had been questioned by the PSB because of his failure to report to the police.
The Tribunal was not satisfied that the applicant had ever suffered any harm in China for reason of his political opinion, real or imputed or that he would suffer harm in the future in China for any Convention reason.
The applicant sought review by application filed in this Court on
26 October 2005. He relies on an amended application filed on
24 February 2006. He also made oral submissions today to which I will return.
The amended application claims that there was an error of law in the Tribunal decision constituting a jurisdictional error and that there was a procedural error in the decision constituting an absence of natural justice. There are then a number of particulars. The first contention is that the Tribunal failed to properly determine the review application based on the fact that the Tribunal accepted that his oral evidence at the hearing “adhered faithfully” to the contents of the written statement as to the events he claimed to have experienced, the timing and names of the persons involved. The applicant took issue with the Tribunal credibility finding, contending that while the Tribunal discussed his experiences with him in depth, it reached that decision on the basis that his evidence about the demonstrations and his own role was vague and unconvincing and because he obtained his passport early in March 2004.
The amended application elaborates on these concerns. Before addressing the particular elaboration in the amended application, I note generally that the fact that the Tribunal accepted that the written and oral evidence as to the events the applicant claimed to have experienced was consistent does not demonstrate jurisdictional error in its credibility finding. It appears that it is contended that the Tribunal should have accepted the applicant’s claims as true because his oral evidence was consistent with his written claims. However, it is apparent from the Tribunal reasons for decision that while it started by referring to the consistency between the written and oral claims, it nonetheless found the applicant not to be a credible witness based on his evidence at the Tribunal hearing and in particular the various respects in which it found that evidence to be unconvincing and/or vague. It gave particular examples of the vagueness and the lack of plausibility in aspects of the applicant’s evidence, in particular about his own claimed activities and role and the content of the claimed propaganda material and speeches.
In the amended application the applicant took issue with the Tribunal’s lack of satisfaction with his description of the detail of protest speeches and propaganda materials. He claimed that he had provided details in that respect in the written statement that he provided in connection with his protection visa application. However, as is apparent from the Tribunal reasons for decision, the Tribunal’s concern was with the applicant’s inability to discuss with the Tribunal in any detail the contents of the speeches and pamphlets in the course of the Tribunal hearing and not with the fact that he had claimed to have been engaged in protest speeches and distribution of propaganda material as set out in his protection visa application. This claim seeks merits review which is not available in this Court. The fact that the applicant is of the view that he had told the Tribunal the content of his protests, expects and propaganda materials in a meaningful way does not establish error.
The Tribunal gave reasons for its findings of implausibility in relation to his claims about what occurred while he was allegedly in detention and thereafter and also for why it rejected his claims and his explanation in relation to the timing of his passport and visa applications and travel to Australia.
Credibility is a matter for the Tribunal par excellence, as stated by McHugh J in MIMA, Re; Ex parte Durairajasingham (2000) 168 ALR 407. The findings in that respect were open to it on the material before it for the reasons that it gave. The fact that the Tribunal placed more weight on the inconsistencies and vagueness and lack of plausibility in the elaboration of the applicant’s oral evidence than on the consistency with his written claims was a matter for the Tribunal and does not establish jurisdictional error.
The applicant claimed that the Tribunal ignored the facts of lacked basic knowledge about protests of the unemployed in China. The amended application described the protests, sought to distinguish formal political movements in Western countries and claimed that it was unfair if the Tribunal “just looked at those protests simply with western eyes”.
However the relevant Tribunal findings were based not on the nature of the claimed protests but rather on the fact that the applicant’s evidence about the demonstrations and “his own particular role” was vague and unconvincing. It outlined particular concerns about the evidence, for example that he could not give a meaningful description of the activities of the leaders, the content of propaganda materials or speeches. Moreover the Tribunal considered other areas of implausibility and unconvincing evidence in finding that the applicant was not credible. No error is established on this basis.
Contrary to the contention in the amended application, the Tribunal did not fail to take into account the applicant’s claims in relation to the circumstances in which he obtained his passport, visa and made his travel arrangements. In its reasons for decision, it set out details of the request for comment on information, the response and also the information given by the applicant at the Tribunal hearing. In that respect however, as set out above, the Tribunal did not accept the applicant’s claims, finding that there had not been a satisfactory explanation for why the applicant’s wife was moved to start making arrangements in February or March 2004 (a matter not specifically addressed by the applicant) and also that on the applicant’s own evidence he obtained his passport in his own name through normal channels and that his travel arrangements were not made hurriedly. This led to the Tribunal’s conclusion that he was not fleeing harm in China as claimed. It has not been established that the Tribunal fell into jurisdictional error in relation to the applicant’s claims in relation to his travel arrangements.
The applicant also contended that the Tribunal ignored his claims in relation to his passport, including the claims that he made in response to the Tribunal’s request for information under s.424A. In the amended application the applicant repeated his response to the 424A request for information and his explanation (based on the attitude of his wife, the existence of a friend and her assistance in obtaining a passport for the applicant, that neither he nor his wife knew exactly how the trip overseas was arranged and that he had no option but to go overseas after being subjected to interrogation by the PSB because of a colleague’s case in July 2004.)
In essence, the applicant takes issue with the suggestion that his plans to travel to Australia were arranged over an extended period of time and that his travel was undertaken at a time of his choosing and convenience. Insofar as the applicant seeks merits review and takes issue in this and in other respects with the conclusions of the Tribunal and its factual findings, merits review is not available in this Court. The Tribunal had regard to the applicant’s response to the s.424A letter but found that it did not provide a satisfactory explanation for the timing of the arrangements.
The applicant also claimed that the Tribunal refused to rely on important independent country information. In the amended application he refers to three items of independent country information: two human rights reports and a US State Department country report. However no country information is cited in the Tribunal reasons for decision. There is no suggestion that the applicant put country information consisting of this or any other independent country information to the Tribunal. The information referred to in the amended application is not information which is said to have been relied on by the delegate and hence before the Tribunal in that sense.
It is for an applicant to put material before the Tribunal and for the Tribunal to determine whether he has a well-founded fear of persecution for a Convention reason. However, there is no obligation on the Tribunal to refer to particular items of independent country information, particularly in circumstances where there was no reliance by the applicant on those items of country information and where the basis of the Tribunal’s decision was a rejection of the applicant’s credibility (based not on the situation in China, but rather on matters such as the fact that his evidence was found to be vague and unconvincing about his own particular role and the particular activities that he claimed to have engaged in in the past). No jurisdictional error is established in relation to independent country information in the manner contended for by the applicant.
It is contended generally by the applicant that based on his claims the Tribunal misunderstood his application and failed to consider an essential claim in his case. However, he has not identified an integer of his claims which the Tribunal failed to consider, but rather appears to take issue with the fact that the Tribunal did not accept his claims. This contention does not establish jurisdictional error.
It also claimed that the Tribunal asked itself a number of wrong and irrelevant questions and incorrectly assessed his credibility. Again these generally expressed contentions challenge factual findings and the credibility finding and seek to re-agitate the merits of the Tribunal decision. As I indicated to the applicant, fact finding is a matter for the Tribunal. These contentions do not establish jurisdictional error on the part of the Tribunal. No constructive failure on behalf of the Tribunal has been established.
In paragraph 3 of the amended application, the applicant refers to the decision of the Full Court of the Federal Court in SBBG v MIMA [2003] FCAFC 121 and sets out paragraph 20 of that judgment dealing with the scope of the rules in relation to a breach of natural justice. The applicant contends that the Tribunal decision involved a reasonable apprehension of bias and that the Tribunal proceeded on a misunderstanding of the law, at least in relation to defining its core task, including a misunderstanding of the legal meaning of refugee.
An allegation of bias must be distinctly made and clearly proved, see MIMA v Jia (2001) 205 CLR 507 at 69. That has not occurred it the present case. Moreover it is well established that it is a rare case in which bias, either actual or apprehended, on the part of the Tribunal will be apparent merely from its written reasons. In essence, the applicant takes issue with the Tribunal’s rejection of his credibility. However the material before the Court does not establish either actual or apparent bias on the part of the Tribunal. Nor is it apparent that the Tribunal has proceeded in some undefined way on a misunderstanding of the law or a misunderstanding of the legal meaning of refugee. The applicant failed not because of an issue in relation to an aspect of the legal meaning of refugee, but rather because the Tribunal found for the reasons that it gave that he was not credible with respect to his substantive claims. The findings were open to the Tribunal on the material before it for the reasons it gave. On this basis it was not satisfied that he had ever suffered harm in China for reason of his political opinion, or that he would suffer harm in China for any Convention reason in the future. No jurisdictional error is established in the manner contended for by the applicant.
In paragraph 5 of the amended application, the applicant contends that the Tribunal failed to comply with s.424A of the Migration Act 1958. He repeated in oral submissions the contention that the Tribunal was under an obligation to put to him for comment particulars of information that would be the reason or part of the reason for affirming the decision under review. The amended application is generally expressed as a claim that the Tribunal “mostly” relied on particular information which was actually a misunderstanding of his claims or wrong findings regarding his application and claimed that in that respect the Tribunal failed to comply with s.424A(1).
Insofar as the applicant takes issue with the Tribunal’s approach to information that he gave to the Tribunal for the purposes of the review application, such material is outside the operation of s.424A(1) by virtue of the sub-s.(3) exception.
It is the case that the Tribunal referred to information in relation to the date of the applicant’s passport application, the date on which his passport was granted and the dates of his visa and travel. That was information provided by the applicant to the Department in connection with his protection visa application. However the Tribunal put such information to the applicant in a s.424A letter of 15 July 2005. The applicant responded and the Tribunal took such comments into account. It met its obligations in that respect.
Insofar as the applicant means to contend that the Tribunal should have put to him its preliminary views in relation to his application, there is no such obligation under s.424A(1). The Tribunal is not obliged to put its conclusions and thought processes to an applicant for comment under s.424A. It is not obliged to put to the applicant the fact that it has concerns about his credibility or that it found his evidence vague and unconvincing. Nor is it obliged to give him an opportunity to provide comments or make a rebuttal of its views. No failure to comply with s.424A of the Migration Act has been established. There is nothing to suggest that critical issues were not raised at the hearing.
The final paragraph of the amended application asserts that the applicant did not believe that the Tribunal had assessed his application fairly and carefully. This does not establish jurisdictional error. Insofar as it is contended that there was a lack of procedural fairness or denial of natural justice I note the operation of s.422B of the Act. In any event, this is not a case in which any lack of procedural fairness has been established on the material before the Court.
As I indicated, the applicant raised a number of issues in oral submissions which overlapped with matters or elaborated on matters in his amended application. In particular, he again raised the point that the Tribunal had found that his written and oral accounts of events were consistent and claimed that the Tribunal ignored that he had pointed out some of the facts in those explanations. However, as discussed above, the Tribunal recognised that internal consistency, but nonetheless found for reasons of deficiencies, as it were, in the applicant’s oral account at the hearing and elaboration on his claims in response to the Tribunal hearing, that it was not satisfied with his credibility. It did not ignore the oral explanations as contended, rather it considered them but did not reach the conclusion in relation to such explanations that the applicant contends should be the case. The applicant’s disagreement with the Tribunal’s factual conclusions does not, however, establish jurisdictional error.
The applicant also contended that the Tribunal did not understand that the activities he organised were not organised in the same way as is common in western society. He suggested that the Tribunal relied on a western point of view and did not have enough understanding of the Chinese situation. However the Tribunal did not make findings as to how such protest or demonstrations or events were organised or structured in China. Rather, as indicated above, the Tribunal found that the applicant’s oral account at the hearing was vague and unconvincing as to the detail of what he said he had done and what he said had actually occurred during the course of such events. In other words, it was the absence of a full and convincing description of the activities the applicant claimed to have engaged in, rather than any concern about the nature of such activities, that led the Tribunal to reject the applicant’s credibility in this respect and no jurisdictional error is established on that basis.
The applicant also sought to put to the Court further claims in relation to the manner in which he obtained help to leave China. However, as indicated above, the Tribunal rejected his claims in that respect for the reasons that it gave. This is not a rehearing. No jurisdictional error has been established in the manner in which the Tribunal dealt with that aspect of the applicant’s claims.
The applicant also raised again, and elaborated on, his concerns about s.424A. He claimed that the Tribunal used distorted information or misunderstood information, ignored important information and should have sought his comment. There is no obligation under s.424A(1) to put to an applicant all of the Tribunal’s preliminary findings and reasons for comment. I have addressed the claims that the applicant made and elaborated on in relation to the three identified items of independent country information. Such information was not put before the Tribunal by the applicant or cited in the Tribunal decision. For the sake of completeness, I note in that respect that in any event such information would come within the s.424A(3) exception.
The applicant contended that all that he had said was the truth. However the assessment of the applicant’s claims and his credibility was a matter for the Tribunal. No jurisdictional error has been established in the Tribunal reasons or procedures. In these circumstances the application must be dismissed.
The applicant has been unsuccessful. It is appropriate that he meet the costs of the first respondent. The amount of $5,000 is appropriate in light of the nature of this and other similar matters and consistent with the Federal Magistrates Court Rules 2001. The name of the first respondent should be changed as is sought by the first respondent.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 14 March 2007
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