SZHMH v Minister for Immigration - [2006] FMCA 142

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHMH v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 142

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in China – asserted factual errors made by the RRT – no reviewable error found – application dismissed.

Applicant:

SZHMH

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

REFUGEE REVIEW TRIBUNAL

File Number:

SYG3169 of 2005

Judgment of:

Driver FM

Hearing date:

19 April 2006

Delivered at:

Sydney

Delivered on:

19 April 2006

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms D Watson
Australian Government Solicitor

ORDERS

The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3169 of 2005

SZHMH

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application to review a decision of the Refugee Review Tribunal (“the RRT”). The decision was handed down on 29 September 2005. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from China and had made claims of political persecution. Relevant background is set out in the Minister's written submissions filed on 13 April 2006. I adopt as background the following from paragraphs 3 to 7 of those submissions:
As a result of orders made by Driver FM on 6 February 2006, paragraphs 6, 8 and 9 of the application have been struck out. No amended application has been received by the first respondent. The first respondent has been served with a document entitled “Applicant’s Submissions” filed on 10 March 2006. This document is not, in fact, a submission, but merely annexes material which was not before the RRT.
Application for review
The application pleads two grounds of review, supported by a number of particulars. The grounds of review are that there was jurisdictional error in the RRT decision and that there was a procedural error constituting an absence of natural justice
In the particulars provided in support of the grounds of review, the applicant sets out - at paragraph 2 a finding which he asserts is a mistake by the RRT. The applicant disputes the finding by the RRT that it rejected his claim that he had access to high level information or documents, which he then passed on to a pro-democracy Taiwanese group. In paragraphs 3, 4 and 5 the applicant sets out a number of factual matters which he alleges the RRT failed to take into account, leading to the mistaken finding in paragraph 2.
The RRT in its decision under “Findings and Reasons” stated that it rejected the applicant’s claim that he had been recruited to obtain confidential information for a group sponsored by a pro-democracy Taiwanese interest. There were a number of reasons for rejecting this claim and these are set out in the decision. Firstly, the applicant was not able to explain how this group operated in promoting pro‑democracy ideas in mainland China to the RRT’s satisfaction (court book, page 84). The RRT also rejected his claim that he was encouraged to obtain confidential information on the basis that the applicant was unable to identify the specific nature of the information which he passed on to his colleague (court book, page 84).
It further held that it did not accept that high level political or military documents would be kept at the local police station in Sanshan or that the local police chief would be in a position to be discussing such information with his colleagues or elsewhere (court book, page 84). This is the finding which the applicant now disputes. This finding was in response to the applicant’s claim that he obtained such information due to his employment as a driver to the police chief in Sanshan. In its decision, the RRT notes that it put to the applicant that a driver for the local Sanshan Public Security Bureau would not have access to high level political or military information, nor would he have access to high level documents in the police station. The applicant is recorded as stating that he overheard his superiors talking and that his superiors left documents lying around in the station. The RRT then records – “I put it to him that the local PSB he worked in was a police station in a rural area and I had great difficulty accepting that any high level political or military documents would be held in that office. There was no further response by the applicant.” (court book, page 79).
The applicant has been given several opportunities to file evidence in support of his application. On 2 December 2005 Registrar McIllhatton ordered that the applicant file and serve any amended application by 24 February 2006 and any additional affidavit evidence, including a transcript of the tribunal hearing, by the same date. On 6 February 2006, in dealing with a motion by the Minister to have the judicial review application dismissed summarily, I ordered the applicant to file and serve any amended application by 31 March 2006 and any affidavit evidence by the same date. No amended application and no affidavit evidence have been filed.
The applicant did file on 10 March 2006 a document headed “Applicant's Submissions”. That document simply introduces two further documents in Chinese with English translations. Those documents appear to support the applicant's claims to be a refugee. The applicant was somewhat equivocal as to whether the RRT had access to those documents. Initially he said that he had obtained them since the RRT decision. When I pointed out to him that the RRT could not take into account documents it did not have, he asserted that the RRT had indeed got them. He told me that he had provided the documents to his migration agent who had translated them.
I note that before the RRT the applicant was represented by Ms Priscilla Yu of Priscilla International Co. The applicant told me from the bar table that Ms Yu had made English translations of the two documents in March 2006. He told me that he understood that Ms Yu had provided the documents in Chinese either to the RRT or to the Minister's delegate. The documents do not appear in the book of relevant documents filed on 14 December 2005. That is the best evidence available of what was before the Minister's delegate and the RRT.
The documents purport to be official Chinese documents notifying the applicant's dismissal from his employment as a result of anti-state activities and also that he was marked out for re-education. The discussion that apparently occurred at the hearing conducted by the RRT (court book, pages 79 and 80) indicates that the applicant was at that time unaware of these documents. On page 79 of the court book the presiding member states:
The applicant stated that he continued to work as a driver for the Sanshan PSB until he left for Australia in December 2004. He did not resign from his employment when he left but told his employers that he was going on a holiday. He does not know what happened to his job but stated that his mother has told him that the police (PSB) have visited his home asking about his whereabouts.
This indicates that at the time of the RRT hearing the applicant had no knowledge of the document he now relies upon which purports to be notice of his dismissal from his employment. Further, the applicant made no claim at the RRT hearing of a fear of re-education. A discussion recorded by the presiding member (court book, pages 79 and 80) indicated that the applicant had a generalised fear of physical harm should he return to China. I find that the documents attached to the applicant's submissions filed on 10 March 2006 were not before the RRT at the time it made its decision.
The judicial review application asserts mistakes made by the RRT, in particular in relation to two core issues arising from the applicant's protection visa claims. These are said to be the location of the Sanshan police station where the applicant claimed to work or have access and the timing of his friend's alleged attempt to obtain a copy of the Chinese Anti-Secession Law 2004.
In his oral submissions the applicant asserted that he did not feel the need to explain these issues in great detail as he thought that his claims were accepted. This is not consistent with what appears in the record of the RRT decision. The presiding member details (court book, pages 76 to 82) an extensive discussion with the applicant about his claims, including in particular concerns held by the presiding member about the credibility of the applicant's claim that he had access to high level political or military information at the Sanshan police station.
I accept from what the presiding member says (court book, page 79) that she put her concerns to the applicant and that he made no reply. I also accept from what the presiding member says (court book, page 80) that following the intervention of the applicant's adviser during the course of the hearing the presiding member repeated her concerns. In my view the applicant could have been left in no doubt that far from his core claims being accepted by the RRT, it was clear that the presiding member had real difficulties with those claims.
The applicant asserts jurisdictional error in the decision of the RRT based upon factual errors made by it. I do not accept that any factual error was made by the RRT. Even if a factual error had been made, it does not follow that such an error would establish jurisdictional error. I accept paragraphs 8 and 9 of the Minister's submissions in relation to the remaining grounds of review in the judicial review application. I adopt those paragraphs for the purposes of this judgment:
… the matters set out in paragraphs 3, 4 and 5 [of the application] were matters which were never put to the RRT by the applicant, despite the RRT specifically raising its concern about this aspect of his claim. The applicant cannot now complain that such matters were not taken into account by the RRT.
In relation to the matters raised in paragraph 7, the RRT rejected the applicant’s claim that one reason why he feared persecution was that his colleague, Mr Zhi Xing Zhong, was arrested in December when trying to take a copy of the Anti-Secession laws from the Politics and Laws Commission in Fuzhou (court book, page 76). The RRT found at court book, page 85 that this claim was not credible because the Anti-Secession laws were announced mid way through December 2004 and there had been much discussion about them since their announcement. While it is the case that the applicant claimed that he was discussing the laws in September, the significant event which he claimed caused him to fear persecution was Mr Zhi’s arrest in December when he was attempting to take a draft of the laws (see court book, page 27 at point T). The applicant’s allegation that the RRT made a wrong finding and ignored a core claim is without foundation. The so-called “core claim” was that his colleague was arrested in December 2004 which resulted in him fleeing China and this is what the RRT addressed.
In my view the decision of the RRT is free from jurisdictional error. It follows that the decision is a privative clause decision and the application must be dismissed.
On the question of costs, the application having been dismissed, costs should the event. The Minister seeks an order for costs fixed in the sum of $4,800. That includes costs of approximately $1,200 incurred on the interlocutory hearing of the Minister's motion for summary dismissal. The Minister was partially successful and partially unsuccessful on that motion. To the extent that the Minister was unsuccessful the Minister should not recover the additional costs incurred by the second hearing required on those issues. The applicant did not wish to be heard on the question of costs. Taking into account the degree of success obtained by the Minister on the interlocutory hearing and the additional costs incurred on the final hearing, I have concluded that a fair party/party assessment of costs would be $4,000.
I order that the application is dismissed and the applicant shall pay the first respondent's costs and disbursements of and incidental to the application, which I fix in the sum of $4,000.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 27 April 2006