SZHSC v Minister for Immigration - [2007] FMCA 668

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHSC v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 668

MIGRATION – Review of Refugee Review Tribunal decision – whether Tribunal complied with s.424A – whether information used by Tribunal was ‘information’ covered by the exception in s.424A(3)(c) – where statement by applicant annexed to protection visa application found to be information covered by the exception in s.424A(3)(b).

Migration Act1958, s.424A

VHAP of 2002 v MIMA [2004] FCAFC 82
SZHVC v MIMA [2006] FCA 135
SZEEU v MIMA [2006] FCAFC 2

Applicant:

SZHSC

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 3510 of 2005

Judgment of:

Raphael FM

Hearing date:

19 April 2007

Date of last submission:

19 April 2007

Delivered at:

Sydney

Delivered on:

19 April 2007

REPRESENTATION

Applicant in person

Counsel for the Respondent:

Mr S Free

Solicitors for the Respondent:

Sparke Helmore

ORDERS

The application is dismissed.
The applicant shall pay the First Respondent’s costs assessed in the sum of $5,000.00.
The name of the First Respondent is amended to “Minister for Immigration and Citizenship”.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3510 of 2005

SZHSC

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

It must be very difficult for an applicant who provides what appears at first sight to be a comprehensive, cogent and credible story about his reasons for leaving his homeland and seeking the protection of Australia to find that a Tribunal considers the entire story to be a bundle of lies based upon some independent country information that does not directly attack the instances of persecution or concerns for fear that the applicant expresses but indicates merely that some of those things might not have happened in the way in which he described them on some sort of averaging of positions. For example, in this particular case the applicant, who is a citizen of China, told the Tribunal about the arrest of 60 persons on suspicion of participating in an underground Christian church and the resultant protest which he claims took place in Fuqing City between October and November 2004. The Tribunal rejected this story on the basis that it would have expected the demonstration to have been reported.
Whilst that may be a perfectly reasonable view for the Tribunal to have taken it is understandable that the applicant himself, who stated to the Tribunal that he was telling the truth, finds it difficult to accept. This is perhaps even more in the case when the applicant speaks no English and has to rely on the assistance of interpreters and explains why, in part at least, the applicant makes an application for review of the Tribunal’s decision to this Court when effectively the review he seeks is a merits review which the Court is unable to provide.
The applicant in these proceedings is a citizen of China. He arrived in Australia as a visitor in January 2005 and applied for a protection (Class XA) visa on 25 January 2005. His application for that visa was declined by a delegate of the Minister on 11 April 2005 and he lodged an application for review with the Tribunal on 18 May 2005. The applicant, who was represented by a migration agent who did not appear with him, attended a hearing before the Tribunal on 31 August 2005. On 5 October 2005 the Tribunal determined to affirm the decision under review and handed that decision on 22 October 2005.
The applicant’s claims to be a person to whom Australia owed protection obligation arose out of his activities as a driver for the PSB. In a statement found at [CB24]-[28] and affirmed by the applicant before the Tribunal, he describes how when he took his job in 1997 it was made clear to him that he had to shut his eyes and ears to activities that the police themselves might be carrying out and which might offend him. He then describes a number of incidents in which he witnessed human rights abuses by the PSB and how after 2003 he began to attempt to do something to alleviate the condition of persons who had been placed in the control of the PSB or to bring to the attention of family and friends the public abuses by the PSB that he had witnessed.
One of the more convincing testimonies that he gives concerns an old man who in October 2004 was one of 60 people suspected of participating in an underground Christian church. The applicant claimed that this person, whom he named, was beaten to death. He claimed that he was required to take the body of this person to the hospital so that it could be said that the old gentleman had died of a heart attack. The applicant told the family of this man what had happened and as a result there was a demonstration against the activities of the PSB. It was the failure of the Tribunal to find a report of this demonstration that convinced it that the applicant was not telling the truth. Perhaps a fairer thing to have said was that the evidence provided by the applicant did not allow the Tribunal to come to the state of satisfaction that was required by the Act.
The applicant claimed that he had obtained a passport in 2001 and in December 2004 had applied for one month’s holiday, which time he used to travel first to Beijing and then to Australia. He said that an investigation had been commenced within the PSB to discover who was leaking information such as that which caused the demonstration that I have referred to. He says that he believes that the blame has now been placed upon him and that his father and his wife have been subjected to investigation by the PSB following his leaving the country.
The Tribunal uses independent country information to say:
“In the present case, the Applicant’s claims are not in accordance with the independent information available to me in relation to the situation in China. In the first incident to which the applicant refers, the arrest of [named person] and three of his students for distributing pro-democratic materials to commemorate the 4 June massacre, the Applicant claims that [named person] and his three students were released after 100 students and teachers mounted a protest at the Fuqing PSB. As I put to the Applicant, the information available to me indicates that the PSB responds to demonstrations by using armed force to break them up [significant number of pieces of independent information then quoted].”
The Tribunal then discusses the demonstration concerning the church which I have referred to before stating:
“As I put to the Applicant, there is no evidence from independent sources that any of the demonstrations to which he referred took place and if, as he claims, around 60 people suspected of participating in an underground Christian church had been arrested in Fuqing in October 2004 I would have expected this to have been reported. As I noted, one of the things which is closely watched in China is the Christian church and, in particular, unregistered or underground churches. The Applicant responded that he was telling the truth and that was what happened. However I do not accept that the Applicant is telling the truth about these events which he says prompted him to leave China.”
Finally, the Tribunal states that it does not accept that the applicant disclosed official information to the relatives of people who had been arrested by the PSB or that his home had been searched and his father and wife had been investigated:
“As I indicated to the Applicant in the course of the hearing before me I consider that he would have required the permission of his work unit before travelling overseas.”
The applicant does not directly criticise the methodology of the Tribunal, which is, of course, perfectly entitled to prefer country information to the testimony of an applicant however credible that may appear to an outside observer. What the applicant argues is that the Tribunal failed to comply with the provisions of s.424A of the Migration Act in regard to the information which it used to come to the view that the applicant was not telling it the truth.
Mr Free in some very thorough and helpful written submissions has noted that the information used by the Tribunal, most of which I have referred to, is information that would appear to be covered by the exception contained in s.424A(3)(a) being information that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member. Because the reference to “just about a class of persons of which the applicant or other person is a member” is not an additional criterion to be met in order for the subsection to apply; VHAP of 2002 v MIMA [2004] FCAFC 82; I would accept that the general information that the Tribunal has used falls within the exception.
Mr Free covers the Tribunal’s concern about the absence of information; in particular the alleged non-reporting of the demonstration. He argues that this could be characterised as information of general application and hence within the terms of the exception SZHVC v MIMA [2006] FCA 135 at [15] and provides an alternative that in any event the lack of information is not “information”; it is merely an observation about a gap which was considered by the Full Court in SZEEU v MIMA [2006] FCAFC 2 at [208]. Mr Free also submits, rightly to my mind, that the Tribunal’s reasoning about inconsistencies between the applicant’s account and the independent sources was not itself information for the purposes of s.424A:
“As this was an aspect of the RRT’s subjective appraisal of the evidence rather than being information of which the RRT had been told or apprised; SZEEU v The Minister supra at 206 per Allsop J.”
In his oral submissions to me Mr Free also covered the area of the applicant’s statement annexed to his protection visa application being information that was not provided for the purposes of the Tribunal. He points me to [CB49] where in a letter to the Tribunal the applicant says:
“According to my claims previously provided to the Immigration Department, it should be accepted that … [t]here is essential and significant reason for my claimed persecution is related to the Convention ground of political opinions.”
And again at [CB50]:
“Furthermore, according to my claims it should be accepted that -:”
It must follow from this letter and those expressions that the Tribunal was intended to read the statutory declaration and thus it was a piece of information provided to the Tribunal by the applicant himself and consequently subject to the exception set out in s.424A(3)(b).
In these circumstances I am unable to find that the Tribunal fell into jurisdictional error in the manner in which it made its decision in this case and as the Court is unable to provide independent merits review it follows that the application must be dismissed and the applicant ordered to pay the respondent’s costs which I assess in the sum of $5,000.00. I order that the name of the first respondent be amended to be the “Minister for Immigration and Citizenship”.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 19 April 2007