SZIGN v Minister for Immigration

[2006] FMCA 1840

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIGN v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1840

MIGRATION – RRT decision – Chinese applicant claiming political persecution – disbelieved by Tribunal – findings were open to Tribunal – no jurisdictional error found.

Migration Act 1958 (Cth), ss.424A(1), 424A(3)(a), 425, 474(1), 476

Abebe v The Commonwealth of Australia (1999) 197 CLR 510
Applicants A233 of 2003 v Refugee Review Tribunal [2004] FCAFC 296
Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12
NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235
NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 214 ALR 264
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 201 ALR 437
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
SZDTZ v Minister for Immigration & Anor [2005] FMCA 1392
VWST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 286

Applicant: SZIGN

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG363 of 2006

Judgment of: Smith FM

Hearing date: 23 November 2006

Delivered at: Sydney

Delivered on: 23 November 2006

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Mr M P Cleary

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application is dismissed. 

2. The applicant must pay the first respondent’s costs in the sum of $5000. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG363 of 2006

SZIGN

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application filed on 6 February 2006 under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”), which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 19 December 2005 and handed down on 12 January 2006.  The Tribunal affirmed a decision of a delegate made on 24 August 2005 which refused to grant a protection visa to the applicant. 

2. The Court’s jurisdiction under s.476 is “the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution”, but its powers are confined by s.474(1) so that I do not have power to send the matter back to the Tribunal unless I am satisfied that the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant’s refugee claims should be believed, nor whether he qualifies for a protection visa.

3. The applicant entered Australia in December 2004 on a passport containing his photograph but issued in the name of a different person.  On 13 January 2005 an agent lodged an application for a protection visa on his behalf.  It attached a five‑page statutory declaration recounting a history which caused him to seek protection in Australia against return to the People’s Republic of China.  No corroborative documents were provided to the delegate, nor subsequently to the Tribunal, other than an identity card in the name which he claimed was his and, after the Tribunal’s hearing, a death certificate showing the death of his father from natural causes. 

4. In his visa statement and his evidence to the Tribunal, the applicant claimed that he had inherited a fresh water aquatic farm which he developed.  He claimed that in 2000 officials from the provincial government required him to sell his produce to them at lower than market prices, and sometimes without ever receiving payment, to allow them to trade in the produce with Japan.  He said this also happened to other farmers, and that early in January 2004 he and two other people decided to prepare a petition protesting to the government.  They obtained 50 or 60 signatories, but had difficulty finding any government officials who would accept the petition. 

5. In April 2004 the four organisers, including himself, decided to encourage a boycott of the government purchases, and six of them refused completely to supply products.  He said that, as a result, in May 2004 the six people were taken into detention by the Public Security Bureau (“PSB”) without charge, and were subjected to interrogation.  He said that one of the arrested persons committed suicide, and as a result the others were released after being held for some three weeks.  

6. He said that the government purchasing officials then became even more demanding.  The three remaining organisers, including himself, organised a further protest which was held in September 2004 in the central park of the provincial city in a peaceful manner.  He said that the protest lasted for about a week.  It commenced with 50 people and their families attending the rally, but attracted more supporters and nearly 1000 people had gathered by the end.  The protest, he said, also called on the government to punish the policemen who were responsible for the suicide. 

7. He claimed that at the end of September 2004 he received a warning from the wife of a member of the PSB that the PSB had established a special investigation unit to investigate the anti‑government activities of himself and the other organisers.  He said that she did this because she was a friend of his wife.  He claimed that he left his home, and hid until obtaining the passport and visa to come to Australia.  He claimed that he has been told that his home had been thoroughly searched many times and his family subjected to investigation.  At the hearing before the Tribunal, he claimed that his father had had a heart attack after one such visit. 

8. The applicant’s evidence given to the Tribunal at the hearing on 11 November 2005 is not shown in a transcript, but the Tribunal gives a description of it in its statement of reasons.  It does not appear to have found any substantial inconsistency in his accounts.  However, the Tribunal arrived at the conclusion that “the Tribunal is not able to accept several key aspects of the applicant’s claims”.  These were identified by the Tribunal as four in number. 

9. First, the Tribunal did not find it credible that the applicant would have been able to organise and attend a protest rally for one week in September, as he claimed.  The Tribunal said: 

   The Tribunal considers that if the applicant had already been identified as a person leading anti‑government activities and had been detained for this reason, the authorities would have monitored his activities more closely after his release, tried to break up the protest immediately, disperse the crowd and arrest the applicant, rather than let him continue to attend the protest every day for a week.  This is consistent with the independent country information that the Chinese authorities are quick to break up such protests: [citing a US State Department report for 2004 in relation to China].  … 

   The Tribunal therefore finds that the applicant’s claims about the September 2004 protest rally are not credible.  The Tribunal does not accept that such a rally took place or that the applicant was involved in organising it or participating in it. 

10. The second point  made by the Tribunal was:  

    The Tribunal finds it is not credible that the PSB would have waited until September 2004 to establish a special investigation task force, if the applicant had earlier come to their attention for expressing anti‑government opinion as he had claimed.  …  

    The Tribunal considers that if the applicant had come to the attention of the PSB and the local authorities as he has claimed, the PSB would have established a taskforce at an earlier stage to investigate and arrest the applicant.  The Tribunal therefore finds that the applicant’s claims about his investigation and arrest by the PSB for reasons of his political opinion are not credible.  Therefore, the Tribunal does not accept the applicant’s claims that he was being investigated by the PSB or that he would be arrested if he returned to China for reasons of his political opinion or imputed political opinion. 

11. Thirdly, the Tribunal said that it did not accept that “he was assisted by the wife of the person heading the special PSB task force”, because “it is not credible that a person with close connections to the PSB would assist him to the extent of obtaining a false passport, if there was indeed a warrant for his arrest and he was wanted by the authorities as he claimed”.  The Tribunal concluded from this point that it did not accept that the applicant “would be arrested on his return to China for reasons of his political opinion or imputed political opinion”. 

12. Fourthly, the Tribunal considered the applicant’s evidence that, after the complaints in February 2004 had failed, he had taken “no further action to report the matter to the Central Government”.  It said 

    The applicant’s actions in this respect are inconsistent with the other aspects of his claims, that he persisted in protesting against the [provincial] authorities by directly taking his complaint to the mayor and city officials. 

    The Tribunal considers that if the applicant had a genuine grievance about the prices he was being paid and was leading a protest movement, he would have more actively pursued his concerns with the Central Government … 

13. The Tribunal also said that it had considered whether his use of a false passport lent support to his claims, but decided that this did not “demonstrate that he was of adverse interest to the Chinese authorities for his political opinion or imputed political opinion”. 

14. The Tribunal’s concluding paragraphs making findings which addressed every element in the applicant’s claims: 

    The Tribunal has found above that the applicant has not given a credible account of key aspects of his claims.  For these reasons, the Tribunal does not accept that the applicant is a credible witness and does not accept that the applicant is telling the truth about the events leading up to his departure from China.  The Tribunal does not accept that the aquatic farmers were required to sell their products exclusively to the [provincial] government for less than market price.  The Tribunal does not accept that the applicant organised a petition and tried to present it to government officials.  The Tribunal does not accept that he refused to sell his products to the government in April 2004, that he organised a protest rally in September 2004 or that he was under investigation by the PSB for anti‑government activities.  It follows that the Tribunal does not accept that the applicant was detained in May 2004, as he was not involved in anti‑government activities.  The Tribunal does not accept that he was wanted by the authorities at the time he left China, that he could only leave China using a false passport or that he will be arrested for reasons of his political opinion on his return. 

15. It is clear from its statement of reasons, that the Tribunal did not accept the applicant’s key refugee claims, and that it expressed no doubt about its findings.  On current authorities, the Tribunal was therefore not obliged to consider the possibility that the applicant’s history might have been true, notwithstanding its contrary findings (see Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 575‑576, Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at 544‑545, Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 239‑241, Applicants A233 of 2003 v Refugee Review Tribunal [2004] FCAFC 296 at [11]‑ [14], and SZDTZ v Minister for Immigration & Anor [2005] FMCA 1392 at [19]‑[20]).

16. I have considered the Tribunal’s reasoning, and do not find it persuasive in its analysis of the applicant’s evidence.  However, it is not the task of this Court to perform a reassessment of an applicant’s credibility in relation to an uncorroborated history which has been presented to the Tribunal.  The Court does not perform a merits review of the Tribunal’s decision.  Although I consider that other members of the Tribunal might have arrived at different conclusions, I am not persuaded that the reasoning of the present Tribunal was so illogical or lacking in rational foundation as to establish a failure by the Tribunal to perform its task according to law.  I do not consider that the outcome is so obviously unreasonable as to establish any ground of jurisdictional error which might be contemplated arising from unreasonable or illogical reasoning (c.f. Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at [38], citing Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [34] and [37], and c.f. Kirby J in Applicant S20 at [81] and [137]; NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs(2004) 214 ALR 264 at [12] and [134]‑[135]; NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235; and VWST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 286).

17. The applicant has filed an application and an amended application which contains several pages of argument which criticises the Tribunal’s decision.  The amended application alleges error of law and procedural error and has 10 paragraphs of particulars.  

18. Particular 1 is that the Tribunal failed to comply with obligations under s.424A(1), by failing to give the applicant an opportunity to comment in writing on the information which the Tribunal took from the general country information about protests in China. However, it is now well established that such information is excluded from obligations under s.424A(1) by reason of s.424A(3)(a) (see Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572).

19. Particular 2 argues: 

    a.The evidence was that:-

    –In April 2004, our four people, Mr. W, Mr. H, Ms. J and I, had to re‑discuss our plan; and we then decided to encourage those people, who run aquatic farms, to reduce or even refuse to supply aquatic products to the government unless a reasonable market price were given.  Our decision was not easily accepted by some of people, because they did not want to directly get into troubles with the government and they were afraid to lose their business eventually.  In the meantime, the government sent some local officials and policemen to those aquatic farms, and threatened us that we would be severely punished either we refused or reduced to supply our aquatic products to the government.  Eventually, only around 10 aquatic farms agreed to reduce their supplies to the government, and 6 aquatic farms including my one to refuse to supply aquatic products to the government. 

    –Unexpectedly, on 10^th May 2004, all of six people including me, who refused to supply aquatic products, were arrested by the PSB, with excuse that we were suspected to organize anti‑government political movements.  We were detained at the detention centre in [city], and subjected to interrogation by the PSB from day to night.  The PSB asked us to expose our activities, and particularly who was the person behind the screen.  Actually, we did not have anyone behind the screen.  It was absolutely spontaneous movement.  However, the PSB seemed not to believe us, and forced us to point out the so‑called “black‑hand” with various cruel methods, and even asked those criminals to beat us.  We eventually understood that it was just an excuse of the PSB to severely punish us.  On 31^st May 2004, we all were released except Mr. W who committed suicide in the detention centre because he really could not bear miserable persecution.  He cut his artery with a piece of broken bowl.  Our five people were required to pay RMB 50,000 yuan as penalty, and promised not to have any protests against the PRC in the future. 

    b.It is apparently that the actual reason why I was arrested and detained by the PRC authorities was because I, together with other five people, refused to supply aquatic products to the government, but the authorities did it with an excuse that we were suspected to organize anti‑government political movements.  In other words, at that time, even the government itself did not think that we had really organised anti‑government movement.  That was why I could be released; and I thought that it was also the reason why the authorities did not set up any special investigation task force in May 2004. 

    c.However, the situation has been completely changed in September 2004 for the reasons as follows:-

    –On 8^th September 2004, our three people, Mr. H, Ms. J and I, eventually organized the first open rally in the central part of [city].  Around 50 people, including owners of aquatic farms and their families, attended the rally.  We distributed copies of our petition in which three of our major requirements have been re‑stated, and also called people to support us.  Unexpectedly, we were widely supported.  During the following one week period, more and more people gathered together with us, expressing their strong supports.  In the end, nearly one thousand people gathered in the central park of [city].  We not only asked the government to accept three of our major requirements, but also required the government severely punishing those cruel policemen who were actually the killer of Mr. W.  (emphasis in original) 

    d.It was owing to our open protests against the PRC authorities, the PRC authorities immediately set up a special investigation task force in September 2004, and this is obviously consistent with the independent country information cited by the Tribunal. 

20. This argument was developed by the applicant before me today in his oral submissions.  In short, he argued that the Tribunal misunderstood his claim by forming the view that he would have been regarded as an anti‑government protestor at the time of his May 2004 detention.  This opinion then caused it to regard as unbelievable, that the applicant would in September 2004 have been allowed to organise a rally which lasted one week, and that only after the rally were steps taken to investigate and arrest him as an anti‑government activist. 

21. There was some force in the applicant’s argument, and I have carefully considered it.  However, I do not think that it reveals that the Tribunal failed to identify and take into account the factual claims made by the applicant as to what had happened to him during 2004 and the activities which he was involved in.  I consider that his arguments, therefore, show no more than that the Tribunal’s factual assessment of his evidence may have been in error.  In my opinion its error, if any, did not amount to jurisdictional error. 

22. Particular 3 is that the Tribunal “failed to comply with its obligations under s.425 of the Act”.  The argument presented is somewhat unclear, but appears to argue that subsequent to the Tribunal’s hearing it “failed to give me the core issues, and further failed to ensure me to understand the issues.  As a result, I could not have a genuine fair chance to get my arguments against the issues”.  The applicant’s concern appears to be that the Tribunal did not foreshadow at the hearing, nor subsequently, its particular concerns about elements in the applicant’s history which provided its reasons for disbelieving him. 

23. In the absence of a transcript, it is difficult for me to form any conclusion as to whether, in fact, these concerns were or were not canvassed with the applicant at the hearing.  However, on current authorities, the Tribunal is not required to warn an applicant that parts of his account might not be believed, and is not obliged to warn applicants as to reasoning which might be followed when the Tribunal arrives at its ultimate conclusions (c.f. Abebe v The Commonwealth of Australia (1999) 197 CLR 510 per Gummow and Hayne JJ at [187], Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 per Gaudron and Gummow JJ at [76] and Callinan J at [208], and Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 201 ALR 437 at [56]‑[58]). I therefore do not consider that any breach of the Tribunal’s obligations to afford an opportunity referred to in s.425 has been established.

1. Particular 4 argues that the Tribunal relied upon the wrong parts of the independent country information which was before it.  The application extracts, without identifying the source, information suggesting widespread protests occurred in China linked to economic issues, including land disputes, industrial disputes and anti‑government protests.  Similar information can be found in a paragraph following the statement to which the Tribunal referred in its reasons in the extract I have made above.  Thus, under the heading “Freedom of Peaceful Assembly and Association”, the US country report on China for 2004 commenced its discussion:  

   The Constitution provides for freedom of peaceful assembly; however, the Government severely restricted this right in practice. The Constitution stipulates that such activities may not challenge “Party leadership” or infringe upon the “interests of the State.” Protests against the political system or national leaders were prohibited. Authorities denied permits and quickly moved to suppress demonstrations involving expression of dissenting political views.

   At times, police used excessive force against demonstrators.  Demonstrations with political or social themes were often broken up quickly and violently.  The vast majority of demonstrations during the year concerned economic and social issues such as land, housing, health, and welfare.  Land disputes, industrial disputes, and anti‑government protests were the three main causes of civil disturbances, according to a 2004 study of publicly reported protests.  Citing government statistics, government‑run Outlook magazine reported that over 58,000 “mass incidents” took place during 2003, more than 6 times the number reported 10 years earlier.  Some of these demonstrations included thousands of participants.  According to government statistics reported in Hong Kong, more than 2.3 million people took part in petitions, marches, and sit‑ins in urban areas in 2003, while over 8 million participated in demonstrations in rural areas.  Ministry of Public Security publications indicated that the number of demonstrations continued to grow and that protesters were becoming more organized. 

2. The applicant argued that the Tribunal was selective in the information which it drew from the country information, and failed to give weight to other pieces of information which might have appeared to support the truth of his claimed history. 

3. Here too, at the level of factual merit, there is some strength to the applicant’s argument.  However, he has not persuaded me that the Tribunal overlooked the parts of the country report to which he refers, and I am not prepared to draw that inference merely from the absence of explicit reference to it. 

4. I am therefore not satisfied that there was significant and material country information before the Tribunal to which it failed to have regard.  I am not persuaded that it was not open to the Tribunal to rely upon the passage which it identified when assessing the applicant’s history. 

5. The final paragraphs of the particulars in the amended application make general allegations that the Tribunal’s reasoning was unreasonable “in the Wednesbury sense”, that its finding of inconsistency was unsupported, and that its failure to give weight in the applicant’s favour to his use of a false passport was “completely wrong”.  The amended application said in summary: “I never ever believe that my application has been assessed by the Tribunal, fairly and carefully”. 

6. I have considered these criticisms, and all the criticisms of the Tribunal made by the applicant to me, but do not accept that the Tribunal has made a decision which was not within the permissible exercise of its jurisdiction.  

7. For the above reasons, I have been unable to identify any jurisdictional error affecting this Tribunal’s decision. It is therefore a privative clause decision within s.474(1) of the Migration Act, and I must dismiss the application.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  15 December 2006