SZHUO v Minister for Immigration and Citizenship
[2008] FCA 854
•6 June 2008
FEDERAL COURT OF AUSTRALIA
SZHUO v Minister for Immigration and Citizenship [2008] FCA 854
SZHUO v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 2181 OF 2007MOORE J
6 JUNE 2008
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 2181 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZHUO
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
MOORE J
DATE OF ORDER:
6 JUNE 2008
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed with costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 2181 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZHUO
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
MOORE J
DATE:
6 JUNE 2008
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an appeal against a judgment of a Federal Magistrate of 12 October 2007 dismissing an application for judicial review of a decision of the Refugee Review Tribunal of 8 November 2005: SZHUO v Minister for Immigration & Anor [2007] FMCA 1688. The Tribunal had affirmed a decision of a delegate of the Minister to refuse to grant the appellant a protection visa.
Background
The appellant is a citizen of the People's Republic of China who claimed to have a well-founded fear of persecution from the authorities for sheltering, in her photography studio, two political dissidents who were members of the Party of Democracy and aiding them in the distribution of anti-government materials. The appellant also claimed persecution on grounds of her imputed membership of the Chinese Democracy Party.
The appellant claimed to have been a photographer who managed a small photography studio. She claimed corrupt government officials would tyrannise her.
The appellant claimed that in December 2003 she hired two people to assist her in the studio. As the appellant could only afford wages for one person, the two people accepted a single wage but arranged to reside at the studio. In March 2004, the appellant unexpectedly returned to her studio late one afternoon and found the two were preparing propaganda materials. The appellant discovered they were dissidents who had been involved in demonstrations and had been subject to investigation and persecution by the Public Security Bureau ("PSB"). They had continued to distribute anti-government propaganda. (At the hearing the applicant indicated they were from the Party of Democracy of China).
The appellant agreed with their cause and sheltered them. In May 2004, the male dissident left and the appellant assisted the female dissident to manufacture propaganda materials. In October 2004, the female dissident left to obtain news of the male dissident. In November 2004, the female dissident returned and warned the appellant that the other dissident had been arrested and suggested she leave the country. The appellant left for Australia and was later informed that her studio had been searched and family and neighbours investigated.
On 16 September 2005, the Tribunal invited the appellant to comment on information that would be the reason, or a part of the reason, for affirming the decision that was under review. The letter identified particulars of the relevant information as being that she had indicated in her application for a business visa that she had been manager of a dress shop. The letter noted, in effect, that this was inconsistent with her claim of having worked in a photographic shop. The appellant responded through her migration agent on 27 September 2005. The agent forwarded the Tribunal a statutory declaration of the appellant. In that statutory declaration the appellant said that when in China, she had had the assistance of a person "managing people to go overseas" to obtain a business visa. This appears to be a suggestion that the person was some sort of professional adviser or migration agent.
The appellant said that she had never signed any of the business visa application documents. In her statutory declaration, the appellant requested the Tribunal to provide her with a copy of the business visa application so she could "verify herself". Her explanation in the statutory declaration as to why there was a reference to a dress shop was not entirely clear. On one view, her explanation was that the adviser or agent in China had indicated that for some purpose relevant to her application for the business visa she had to be engaged in a business larger than her photo studio. In the result, the adviser or agent made the application on a fabricated basis, namely that the appellant was associated with a dress shop and was seeking to enter Australia to explore investment opportunities in Adelaide.
The decision of the Tribunal
The Tribunal did not accept the appellant was a witness of truth, and found that her claims relating to the Democracy Party were implausible. The Tribunal did not accept the appellant's claims that she came to the attention of the authorities as a result of her involvement with the production of pamphlets. The Tribunal found the appellant had provided inconsistent and varying evidence as to the implausibility of working and remaining at home whilst being wanted by the PSB. The Tribunal found the appellant's evidence as to the pamphlets was vague and lacking in details. It expected that she should have more knowledge in relation to that matter.
The Tribunal rejected the appellant's explanation for what the Tribunal viewed as her deception in obtaining the business visa and gave the following reason:
Business visitors to Australia conduct business or explore opportunities in Australia that are relevant to their existing business activities. Referring to her statutory declaration of 27 September 2005, I would expect that a person "specially for managing people to go overseas" would be aware of the requirements for the visa submitted, especially as the visa applied for did not require an applicant to show that their business was of a particular size. I do not accept that the applicant's business visa was issued in the circumstances described. I am satisfied the applicant was employed in the clothing industry in PRC.
The Tribunal made no express finding about whether the appellant had signed her business visa application documents.
In conclusion, the Tribunal said:
The applicant is not a political dissident nor has the applicant been involved in any anti-government activity, prior to leaving PRC. I am of the view that the chance that she would become politically active if she returned to China is remote. It follows that I am unable to be satisfied that the applicant has a well-founded fear of persecution for reasons of her political opinion. The applicant has not claimed to fear persecution for any other Convention reason and no other reason is suggested on the evidence before me. I am therefore not satisfied that the applicant has a well-founded fear of persecution for a Convention reason.
I am satisfied the applicant is able to return to PRC.
The application in the Federal Magistrates Court
On 12 December 2005, the appellant sought judicial review of the Tribunal's decision and asserted jurisdictional error and a denial of natural justice. She was not legally represented, which was reflected in the way the grounds were formulated. Particulars in support of those grounds alleged:
·Breach of s 424A(1) of the Act in relation to country information and the business visa application, including the signature on it.
·Failure to comply with s 425 of the Act;
·Bias, including ignoring the appellant's response to the s 424 letter; and
·Failure to consider claims and incorrectly assessed credibility.
For present purposes, it is only necessary to refer to the way the Federal Magistrate dealt with the alleged non-compliance with s 424A of the Act. His Honour accepted, as the Minister had submitted, that the Tribunal had not disputed that the appellant had not signed the visa application. Rather, as his Honour pointed out, the Tribunal rejected the entire explanation as to why a different business was listed on the business visa application. His Honour concluded that the signature on the business visa application was not, relevantly, information "that would be the 'reason for decision'" to affirm the decision on review. His Honour indicated that the Tribunal was not obliged to make further enquiries regarding the signature on the business visa application as this issue was not central to the Tribunal's decision.
His Honour dealt with other aspects of the Tribunal's consideration of the business visa application. However, it is unnecessary to detail his Honour's consideration of them, given what I understand to be the only point of substance raised in the appeal.
The appeal
On 2 November 2007, the appellant file a Notice of Appeal that asserted the following six grounds of error in the Federal Magistrate's decision:
1.Ignored the appellant's oral submissions to the Tribunal;
2.Erred in finding the Tribunal decision's did not indicate an apprehension of bias;
3.Erred in finding the Tribunal did give the appellant an opportunity to clarify evidence;
4.Erred in finding the Tribunal did not have an obligation to make further inquiries;
5.Failed to consider important claims including a breach of s 424A of the Act; and
6.Did not consider the application properly and fairly.
During the hearing of the appeal the appellant, again unrepresented, directed her submissions to only one issue of possible substance, namely, the failure of the Tribunal to provide her with a copy of the business visa application as she had requested in her statutory declaration sent to the Tribunal under cover of a letter from her migration agent dated 27 September 2005.
In my opinion, this issue is not fanciful. What I understand to be the submission of the appellant is that her account to the Tribunal was that the reference to the dress shop in the business visa application came from her Chinese adviser or migration agent. The agent thought it was necessary to refer to a business other than (on the appellant's account) her real business and made a false reference to the dress shop in the appellant's application. The import of the appellant's submission to the Tribunal (on one view of her statutory declaration) was that the reference to the dress shop was the agent's idea and was false, and she had not adopted it herself because she had not signed the documents. If this is correct, the explanation she gave about the false reference to the dress shop would have been corroborated if she had been able to demonstrate that the signature on the application was not her signature. The appellant sought a copy of the application to be able to do this.
It probably would have been desirable for the Tribunal to have met her request. If it had provided the appellant with a copy of the application and she had been able to demonstrate to the Tribunal's satisfaction that the signature on the application was not her signature, then her explanation for the reference to the dress shop may well then have taken on the appearance of a plausible explanation as part of her more general explanation as to how the business visa application came to be completed and submitted. However, the real issue is whether the Tribunal was obliged to provide her with a copy, and whether its failure to do so might constitute jurisdictional error.
There was, in the circumstances, a measure of possible unfairness flowing from the Tribunal's failure to provide the appellant with a copy of the business visa application documents. The appellant's account of what happened (that the business visa application was made by her agent and not signed by her) is not implausible. Thus the Tribunal may have considered it appropriate to explore more fully this aspect of her claims and it does not appear that the Tribunal undertook the task of comparing whatever signatures appeared on the documents supporting that application with whatever other signatures were available to the Tribunal as likely signatures of the appellant (such as the signature in the application for review). That comparison would have either supported the appellant's account of how the business visa application was made, or fortified the Tribunal's ultimate conclusion that the application was coloured by deception attributable to the appellant's migration agent or the appellant.
However, it is not apparent to me that the Tribunal was obliged to provide the appellant with a copy of the business visa application documents. The application documents were almost certainly not themselves "information" for the purposes of s 424A. Nor was the question of whether she signed the business visa application documents of central relevance to her claims, and it was but one limited aspect of the multifaceted reasons relied upon by the Tribunal in not believing the appellant's account of her experiences in China. The failure of the Tribunal to provide the appellant with a copy of the business visa application documents does not appear to me to amount to jurisdictional error.
The appeal should be dismissed with costs.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore. Associate:
Dated: 6 June 2008
The Appellant appeared in person Counsel for the Respondents: D Godwin Solicitor for the Respondents: Australian Government Solicitor Date of Hearing: 27 February 2008 Date of Judgment: 6 June 2008
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