SZHNC v Minister for Immigration

[2008] FMCA 117

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHNC v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 117

MIGRATION – RRT decision – Chinese applicant claiming political persecution – disbelieved by Tribunal – no jurisdictional error in its reliance on country information – no breach of s.424A – application dismissed.

Migration Act 1958 (Cth), ss.424A, 424A(1), 424A(3)(a), 424A(3)(b)

Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59
SZBYR v Minister for Immigration & Citizenship [2007] HCA 26

Applicant: SZHNC

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2330 of 2007

Judgment of: Smith FM

Hearing date: 31 January 2008

Delivered at: Sydney

Delivered on: 31 January 2008

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Ms T Quinn

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. The application is dismissed. 

2. The applicant must pay the first respondent’s costs in the sum of $3,500. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2330 of 2007

SZHNC

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant came to Australia in February 2005, and lodged an application for a protection visa on 24 March 2005.  A brief typed statement attached to the application claimed that he had been persecuted in China in 2002 and 2004 for engaging in religious activities as a Christian. 

2. A delegate refused the application on 26 April 2005 and the applicant appealed.  He attended two hearings, the first held by a Tribunal who made a decision which was subsequently set aside by consent, and the second hearing was held by the Tribunal as constituted when making the decision which is now before me. 

3. The applicant employed a new migration agent when his matter was in the Tribunal, and she presented a statutory declaration setting out a claimed history.  This was consistent with the history which the applicant presented at both hearings.  It disclaimed the claims originally made to the Department, and blamed the applicant’s original agent for the presentation of the false claims. 

4. The applicant claimed to the Tribunal that he feared persecution on the ground of his actual or perceived political opinions, and made no claim based on religious persecution.  He claimed that a friend lost employment in a State‑run factory, with many other people.  The friend participated in demonstrations in August 2004, which were protracted and attended by hundreds of people.  The friend was subsequently arrested and sent to a labour camp.  The friend’s wife then pursued grievances against the secretary of the Communist Party in the city, who had previously been a manager at the factory.  She organised a petition which was delivered to that person at his secret office location.  The friend’s wife also organised a demonstration at this location in December 2004, which “got out of control” and she then fled to a different part of the country.  The applicant claimed that she had been arrested after his arrival in Australia, and had implicated the applicant in her protest activities. 

5. The applicant told the Tribunal that he had not himself participated in any political activities, but he had been responsible for informing his friend’s wife as to the secret location of the office of the party secretary, which he had discovered was adjacent to his own home.  His observations allowed him to tell his friend’s wife when to present her petition and to organise her demonstration.  The applicant claimed that he decided to leave China after the December demonstration, and that he feared that he would be persecuted if he returned.  He showed the Tribunal a passport which he had obtained during 2004, and which contained a visa to come to Australia in May 2004 which he had not used. 

6. In its decision handed down on 3 July 2007, the Tribunal affirmed the decision of the delegate.  It considered the evidence given by the applicant at the two hearings and in his statutory declaration, and assessed it against independent information which it referred to concerning the Chinese authorities’ responses to workers’ protests and other demonstrations. 

7. The Tribunal formed the opinion that “the applicant has not given credible evidence regarding events and circumstances which led to his departure from China and which form the basis of his protection claims”.  It found implausibility in his history, believing that it was “highly implausible that the authorities would tolerate 10 demonstrations taking place over a one month period in relation to lay offs at [the factory], before they took any action”. 

8. The Tribunal found other aspects of the history implausible also.  It said that while it accepted that protests may have taken place in relation to redundancies at factories during 2004, it did not accept that the applicant had given credible evidence about the events he had told the Tribunal.  It considered that his evidence was inconsistent with independent evidence.  It therefore did not accept the history of demonstrations presented by the applicant, nor that he had a friend that had been harmed in the manner described, nor that the friend’s wife had been involved in activities as described.  It did not accept the applicant’s claims that he had been indirectly involved in protest activities at a secret office of the Communist Party secretary, and thought it was “highly implausible that the [city] CCP Secretary would feel pressured or compelled to move from the [city] municipal government offices to a secret location to undertake his work, as a result of any protests by laid off workers from [the factory], or any subsequent protests by family members of detained protesters”. 

9. The Tribunal did not accept any of the applicant’s history about his discovering the secret office location and assisting his friend’s wife’s protest activities.  It did not accept that his friend’s wife had been arrested or had implicated the applicant in political activities.  It did not accept that the authorities were seeking the applicant, that he had come to their adverse attention as a result of any involvement in worker protests, or as a result of any other involvement in petitions with the authorities on labour‑related or other social and political issues.  It did not accept that he “has been or is of any adverse interest to the Chinese authorities on account of his actual or imputed political opinion”. 

10. The Tribunal accepted that the applicant had “expressed views about the negative effects of economic reform in China and the problems faced by workers”, but did not accept that his views “establish that he would become involved in political activities if he returned to China such that he would come to the adverse attention of the authorities”.  It did not accept that he “would be of adverse interest to the authorities in the reasonably foreseeable future on account of his actual or imputed political opinion if he returned to China”. 

11. The applicant now asks the Court to set aside the Tribunal’s decision and to order it to reconsider his refugee claims.  I can only make these orders if I am satisfied that the Tribunal’s decision was affected by jurisdictional error.  I do not have authority to decide whether the applicant’s refugee claims should be believed, nor whether he should be granted a protection visa or any other permission to stay in Australia. 

12. The applicant’s application upon which he relies contains one ground, which is that there was a breach of s.424A(1) of the Migration Act 1958 (Cth) on the part of the Tribunal. The application and the applicant’s written submission argue that this occurred because the Tribunal did not put to the applicant in writing for comment the inconsistencies between his evidence and the country information relied upon by the Tribunal which formed part of its reasoning.

13. However, in my opinion this argument is based upon a misconception of the effect of s.424A(1). The adverse country information which was relied upon by the Tribunal does not itself give rise to an obligation under s.424A(1) (see s.424A(3)(a) and Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR).  Nor is the Tribunal obliged to put to an applicant for comment its reasoning processes which make use of that information when assessing the evidence given by an applicant to the Tribunal (see SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [18] and s.424A(3)(b)).

14. In his written submissions, which were repeated to me today by the applicant, the applicant presented another argument criticising the Tribunal’s decision.  This argued that the Tribunal’s reasoning was incorrect, where it was based on its findings as to what was likely on the part of the Chinese authorities in relation to worker demonstrations and the location of senior Communist Party officials and procedures for handling petitions.  It was argued, indeed, that the converse conclusion should have been arrived at by the Tribunal, that is, that the information in fact supported the applicant’s claimed history. 

15. However, I am not satisfied that the Tribunal’s adverse conclusions based on the country information which it identified were not open to it as a matter of law.  The fact that other opinions might have been open does not establish jurisdictional error.  I consider that the criticisms made by the applicant went only to the merits of the Tribunal’s reasoning process, and I do not accept that they have displayed such irrationality as could allow an inference of jurisdictional error (see Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 per Gleeson CJ at [9], McHugh & Gummow JJ at [36]‑[37], Kirby J at [81], [128], [137]).

16. Considering all the material before me, I am not satisfied that the Tribunal’s decision was affected by jurisdictional error.  I must therefore dismiss the application. 

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  8 February 2008