SZIBO v Minister for Immigration - [2006] FMCA 1546

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIBO v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1546

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error.

Migration Act 1958 (Cth), s.422B

Minister for Immigration & Multicultural & Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration&Multicultural & Indigenous Affairs v Lay Lat (2006) 151 FCR 214
Minister for Immigration & Multicultural & Indigenous Affairs v Rajalingham (1999) 93 FCR 220
VWFP & VWFQ v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 231
WAAD v Minister for Immigration & Multicultural Affairs [2002] FCAFC 399

Applicant:

SZIBO

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File No:

SYG 70 of 2006

Judgment of:

Barnes FM

Hearing date:

10 October 2006

Delivered at:

Sydney

Delivered on:

10 October 2006

REPRESENTATION

Applicant:

In Person

Counsel for the Respondents:

Mr D Jordan

Solicitors for the Respondents:

Blake Dawson Waldron

ORDERS

That the title of the first respondent be changed to the ‘Minister for Immigration and Multicultural Affairs’.
That the application is dismissed.
That the applicant pay the costs of the first respondent fixed in the sum of $4,200.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG70 of 2006

SZIBO

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 13 December 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 Peoples Republic of China. In his protection visa application he claimed to fear persecution for reason of political opinion, in particular arising from his activities as a member of a group called “China Rainbow Push Coalition of Mainland”. He claimed that he became an activist in 2003 and that as a result of his involvement in this organisation he had been detained by the Chinese authorities.
He provided photographs which were said to show him being arrested by the Chinese authorities. He claimed that he secured his release after payment of “high ransoms” and then fled to Australia.
In support of his application to the Tribunal the applicant provided a further statement addressing aspects of the decision of the delegate of the first respondent and also claimed that he had become committed to Falun Gong after his arrival in Australia. He claimed that the photographs he had submitted were genuine and were taken by a friend. He submitted documents to the Tribunal which were claimed to be official records of his arrest and detention and photographs depicting his practice of Falun Gong in Australia.
In its reasons for decision the Tribunal set out the applicant's claims in connection with his protection visa application and review application and referred to what occurred at the Tribunal hearing. It summarised his claims as a claim that he feared harm on return to China by reason of his political opinion and political activities in China and also because of his involvement with Falun Gong in Australia.
The Tribunal was not satisfied that the applicant was in genuine fear of persecution or that he faced a real chance of persecution on return to China. It gave a number of reasons for that finding. It did not accept that the organisation China Rainbow Push Coalition of Mainland existed as a political or quasi-political group. It found the applicant's description at the Tribunal hearing of the nature, purpose, membership and activities of the group to be devoid of appropriate and pertinent detail such that it was unconvinced as to the existence of the group.
Further, the Tribunal found that even if it accepted the existence of such a group, it did not accept as plausible that a group as described by the applicant at the hearing (a small group of middle class people meeting in parks and pubs to discuss vaguely political ideas) would be of interest to the authorities or result in the arrest of the applicant.
The Tribunal did not place weight on the documents purporting to be official records of the applicant's arrest and detention. It had regard to the fact that while such documents indicated that the applicant was arrested on the grounds of providing state secrets to foreign organisations, he also claimed that he was released some 5 days later for insufficient evidence and that his release was organised through the payment of moneys. The Tribunal considered it implausible that a person arrested on such serious charges would be released by way of bribery and/or simply after 5 days because of insufficient evidence.
Nor did the Tribunal place weight on the photographs of the claimed arrest. It did not doubt that a friend of the applicant took the photographs, but considered that they were of a contrived situation and not a real event, noting that they consisted only of the applicant in handcuffs, a person in a uniform and a “plain clothes” person.
The Tribunal also had regard to the fact that the applicant's passport indicated that shortly after his claimed detention he departed China legally, passing through border security checks without difficulty.

It found that this signified that he was not of any adverse interest to the authorities.
For all these reasons the Tribunal did not accept that the applicant had come to the adverse interest of the Chinese authorities by reason of his claimed political opinion or political activities.
In relation to the applicant's claimed involvement in Falun Gong, the Tribunal accepted that the applicant had had contact with Falun Gong in Australia, but had regard to the fact that his witness was not associated with Falun Gong and could only testify to taking the applicant to practice sites. It found that the applicant’s oral evidence in respect of his understanding of and commitment to Falun Gong was highly generalised and non-specific. Hence it regarded the applicant’s involvement in Falun Gong in Australia as peripheral, observing that at best he claimed only to have sometimes attended practice sessions in a park and once to have handed out flyers.
It did not accept that such limited involvement in Falun Gong in Australia gave rise to a real chance that the applicant would face harm from the Chinese authorities on his return to China. Nor did it accept, for reasons that it gave, that the applicant had a commitment to Falun Gong such that he would pursue involvement in Falun Gong on his return to China. Accordingly, it did not accept that the applicant had a well-founded fear of persecution for a Convention reason on return to China.
The applicant sought review by application filed in this Court on

9 January 2006. He filed an affidavit on the same day, in which he repeated his claims to fear persecution. The only ground relied on in the application is that the Tribunal failed to comply with its obligation pursuant to the Migration Act 1958 (Cth) (the Act), and denied the applicant procedural fairness. There are five particulars to this ground which I take in fact to be two grounds, a failure to comply with procedures (although particular procedures are not identified) and a claim of denial of procedural fairness. I have considered each of those grounds in relation to each of the particulars.
The first particular is that the Tribunal did not accept the existence of the political group, China Rainbow Push Coalition of Mainland in China. The application continues that such a group existed, as evidenced by the fact that the applicant was detained and provided a detention notice to the Tribunal as proof. It was contended that the Tribunal contradicted itself by saying that even if it accepted the existence of such a group, it did not accept that the applicant was of interest to the authorities. It was said that this indicated that the Tribunal was not certain that there was such a group or not in China.
First, insofar as the applicant takes issue with the Tribunal’s factual findings and seeks merits review, merits review is not available in this Court. The Tribunal's findings in relation to the existence of the group were open to it on the material before it for the reasons that it gave.

It went on to consider whether the applicant had a well-founded fear of persecution on the alternative basis (consistent with the approach in Minister for Immigration & Multicultural & Ethnic Affairs v Guo (1997) 191 CLR 559, Minister for Immigration & Multicultural & Indigenous Affairs v Rajalingham (1999) 93 FCR 220 and WAAD v Minister for Immigration & Multicultural Affairs [2002] FCAFC 399), that the group did exist. However it did not accept as plausible that such a group would be of interest to the authorities and result in the arrest of the applicant. The fact that the Tribunal considered such an alternative does not establish either a lack of procedural fairness or that it failed to comply with its obligations under the Migration Act.

There is nothing in this particular that establishes either a failure to comply with the Tribunal's obligations under the Migration Act or a denial of procedural fairness.
In relation generally to the claim of denial of procedural fairness, I note that s.422B of the Migration Act is applicable, as to which, see Minister for Immigration&Multicultural & Indigenous Affairs v Lay Lat (2006) 151 FCR 214. It is not, however, necessary to consider the scope of section 422B as no lack of procedural fairness is established in the manner contended for by the applicant.
The second particular is that:
“It shows that the Tribunal lacks knowledge of China system after the Tribunal concluded in its finding that the Tribunal considers it to be implausible (or impossible) that a person arrested on the serious charges such as the Applicant's would be released by way of bribery. But no-one knew better than the Applicant how the Applicant sought help from the friends and connections and later was released after being described as the charges with insufficient evidence.”
However this particular also takes issue with the merits of the Tribunal decision. Merits review is not available in this Court.
Similarly, in paragraph 3 the applicant contends that the Tribunal “should unarguably accept the photographs provided by the Applicant in support of his claim are genuine and should give enough weight” when considering his claim, as it “has no proof otherwise”. This claim does not establish jurisdictional error. The Tribunal's findings in relation to the weight to be placed on the photographs were matters for the Tribunal on the evidence before it. Its findings were open to it on the material before it. It was not necessary in carrying out its obligation under the Act for the Tribunal to have “proof” that the photographs were not genuine in the manner contended for by the applicant.
Insofar as it is intended to be contended that there has been a failure to comply with procedures under the Migration Act, the Tribunal's subjective evaluation of the weight to be attached to particular items of evidence before it is not information subject to the obligation in s.424A of the Act (as to which see VWFP & VWFQ v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 231 at [70] and cases cited therein).
The fourth particular is that the Tribunal:
“will better understand how a person of adverse interest to the authorities in China can still leave China through its border security checks if the Tribunal could refer to the term “mai guan (buy customs officers) in the Chinese language”.
First, there is no obligation on the Tribunal to refer to terms in the Chinese language in its reasons for decision. In any event it is apparent from the Tribunal reasons for decision and its account of what occurred in the hearing (which is the only evidence before the Court of what occurred during the Tribunal hearing) that the applicant's claim was that he departed the country legally passing through border security checks without difficulty and without needing the assistance of his friend who was willing to pay money for him to exit. Hence this contention is inconsistent with the Tribunal's account of the applicant's evidence in this regard. The Tribunal finding that the applicant’s legal departure from the country without difficulty or the assistance of his friend indicated that he was not of any adverse interest to the authorities of China, does not establish a jurisdictional error.
The final particular states that:
“Considering the length of stay in Australia by the Applicant it is correct to conclude that the Applicant is a committed Falun Gong practitioner. It is reasonable to give some considerations that the Applicant’s further involvement with the Falun Gong organisation in future in Australia will make the Applicant more knowledgeable in Falun Gong and at the same time undoubtedly alert the Chinese authorities in China and abroad and the Applicant is highly likely face harms and risks and persecution if the Applicant is in the hands of the authorities in China.”
Insofar as this contention takes issue with the Tribunal's factual findings, it seeks impermissible merits review. If it is intended as a contention that the Tribunal failed to consider the applicant's Falun Gong claims, it does not establish jurisdictional error. The Tribunal understood and addressed the applicant's claims in relation to involvement in Falun Gong in Australia. Indeed it accepted that he had had contact with Falun Gong in Australia. However, it had regard to the fact that his oral evidence in respect to his understanding of and commitment to Falun Gong was highly generalised and non-specific, that his supporting witness was not in fact associated with Falun Gong and that the applicant only claimed to have sometimes attended practice sessions in a park and once to have handed out flyers. In light of that material it found that his involvement was peripheral.
It then went on to consider whether such involvement gave rise to a real chance that the applicant would face harm from the Chinese authorities on his return to China. It did not accept that such limited involvement would give rise to such a real chance of harm. Further it considered, but did not accept, that the applicant had such a commitment to Falun Gong that he would pursue involvement in Falun Gong on his return to China, based not only on the fact that his interest only arose in Australia, but also on its finding that his description at the hearing of his understanding and involvement in Falun Gong had been cursory. No error is identified or apparent in the Tribunal consideration of the applicant's claims in relation to his involvement in Falun Gong.
As no jurisdictional error has been established the application should be dismissed. The first respondent also seeks that the title of the first respondent be changed to the ‘Minister for Immigration and Multicultural Affairs’. I will make such an order. First, I will hear submissions in relation to costs.

RECORDED : NOT TRANSCRIBED

The applicant has been unsuccessful and there is nothing in the material before the Court to warrant a departure from the normal rule that the unsuccessful applicant should meet the costs of the respondent. The respondent seeks costs in the sum of $4,200, an amount which I consider is appropriate in light of the nature of this and other similar matters.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 25 October 2006