SZIIJ v Minister for Immigration - [2006] FMCA 1089

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIIJ v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1089

MIGRATION – RRT decision – Chinese person claiming political persecution – did not attend hearing – Tribunal’s reference to ease of travel shown in passport – information was re‑presented by applicant to Tribunal – no jurisdictional error found.

Federal Magistrates Court Rules 2001 (Cth), r. 44.12
Migration Act 1958 (Cth), ss.424A(1), 424A(3)(b), 425, 425A, 426A(1), 474(1), 476

NAKF v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 130 FCR 210
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214, [2006] FCAFC 2

Applicant:

SZIIJ

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG451 of 2006

Judgment of:

Smith FM

Hearing date:

20 July 2006

Delivered at:

Sydney

Delivered on:

20 July 2006

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms C Gray

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $3,300.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG451 of 2006

SZIIJ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application invoking the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”), which seeks orders by way of judicial review in relation to a decision of the Refugee Review Tribunal (“the Tribunal”) dated 4 January 2006 and handed down on 24 January 2006. The Tribunal affirmed a decision of a delegate refusing to grant a protection visa to the applicant.
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) if the Tribunal’s decision is a “privative clause decision”. It is such a decision unless I am satisfied that it was affected by jurisdictional error (see Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476). 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.
The present application has been listed before me twice before today. At a first court date I gave directions allowing the applicant to file an amended application and any further evidence. At a further directions hearing on 20 June 2006 I set the matter down for final hearing today, dispensing with a show cause hearing under rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth). I did that, in particular, due to a desire to receive submissions as to the Tribunal’s compliance with s.424A(1). For reasons which I shall explain below, I am now satisfied that no such breach occurred in this case.
The applicant arrived in Australia in June 2005 and on 26 July 2005 he applied for a protection visa. Attached to his application was a typed four‑page statement setting out a history explaining why he sought protection in Australia against return to his country of nationality, the People’s Republic of China.
He claimed that as a result of an experience where he lost his employment in company with other employees in his factory, he joined a union of independent workers in June 2002 as “an active member”. He referred to the union’s efforts during 2002 and 2003 to conduct demonstrations against the management of the factory, and to seek redress from the provincial government and then from the national government in China. He claimed that, in the course of a demonstration in 2003 before the provincial government building:
Surprisingly, our action was seriously mistreated by the armed police. They pulled us to the ground and arrested us in just seconds after we set up notice boards. Then we were transferred to [location] Police. Police took our statement about the event and then detained us in the police station. At the night of that day, some plant cloth young men came into the detention room and beat us. They said they were giving us a big lesson. Later I knew some of the union members were seriously injury and was transferred to hospital soon.
After we had been detained for 15 days, the [location] police turned us to the [local] police. We were transferred to [local] detention camp after we went back to [local city]. On 19 October 2003, an officer in [local] detention camp declared three months labour detention on us including me. He announced we were convicted of so called “threatening national security and social stability”, but there was no trial and judgment at all. My family spent considerable money to offer bribes to detention camp officers while I was still mistreated everyday.
The applicant claimed that after his release he had participated in a deputation to Beijing to complain. An officer of the “National Appeal Head Office” suggested that the government would give a redress. However, on return to his local area an incident occurred in which:
… hundreds of [local] police broke into union members’ homes and arrested more than twenty people. My wife called me and I escaped to [location] immediately. I stay with one of my high school mates. He then introduced me to a person who has great influence. That person obtained a passport issued back to 2003 and a visa to Korea. My wife later gave him RMB25000 to show our thanks. I went to Korea on 30 April 2005 with six other union members who escaped from [local city] and other cities. We tried to seek protection from Korea government but Koreans did not want even listen. We had to return to China soon. I returned to China on 3 May 2005 with other two members while the others did not follow. On 19 May 2005, I heard those four members who did not returned with us were forced to leave Korea and were transferred to Chinese police. This made me feel very scared. I spent all my money to obtain an Australian visa and left China successfully on 28 June 2005.
A delegate assessed the applicant’s claims, and on 20 October 2005 refused the visa application. The delegate said about the applicant’s claimed visit to Korea:
The applicant claims that the Korean government did not want to listen to his claims for asylum (5:1,ff.8‑9). Against the country information that is available in relation to this issue, I consider that had the applicant sought asylum, he would have been able to pursue this option through the country’s established procedures. I do not accept that the applicant’s pleas for asylum were ignored. I do not accept that his plea for asylum was not listened to, making him believe he had no alternative but to return to the country from which he was seeking asylum. I consider that had the applicant felt a subjective fear of persecution in relation to China, he would not have voluntarily returned to China in accordance with his visa conditions. He had a three month time period in South Korea in which to pursue options for asylum, as well as options for travelling onwards from South Korea to a third country. I consider that had the applicant truly feared persecution upon return to China, he would not have voluntarily returned to that country. I consider that his voluntary return to China is a strong indicator that he did not fear persecution from the Chinese government.
I note the applicant’s statement that he obtained his PRC passport through an influential person. He has not claimed that a false identity is shown in this document. From his statement of claims it can be inferred that the passport’s 2003 date of issue and the Korean visa were arranged for him by this person of influence. I note that the applicant has used this passport on three occasions, twice to exit China (in April and again in June 2005) and once to re‑enter China (in June 2005). The ease with which the applicant departed and re‑entered China indicates that the passport is regarded by the Chinese entry and exit authorities to be a valid document, and the applicant’s identity had not been flagged as a person of interest to the authorities.
When the applicant appealed to the Refugee Review Tribunal, he attached to his application a signed statement giving his “Reasons for Review Application”. In this he addressed, in particular, the paragraphs from the delegate’s reasoning, which I have set out above. He said:
1,The passport I used for travel was purchased through my friend. I am not able to explain why it works well when I used it at Chinese custom. The passport is in my real name, while there could be a quarter million people in China using the exactly the same name. I also did not notice that the passport was issued with a different ID card number until recently I check it carefully after I received the refusal letter from the DIMA. Entering and existing China is not that difficult for those people which the authority is interested in.
2,I did not return from South Korea voluntarily like the DIMIA case officer imagined. The Korea authority told us it was impossible to accept our application for protection. The reason is very clear. Korea and Koreans only concern their own country and people. South Korea solely provide substantive protection to people escaped from North Korea basicly for political advantage. None of us in Korean ethnic group and is from North Korea. It is too naïve to assume Korea would provide any aid to an alien. I suggest the RRT to investigate whether there is any person other than Korean (from North Korea) receives any substantive refugee protection from the South Korea Government. In addition, Korea immigration officials told us if we do not return to China before visa expires, they would hand us to the PRC police directly. How could I take that risk to wait in Korea? The situation of those four fellow unionists best supports my worry.
The applicant did not appoint a recipient for correspondence nor authorise an agent to act on his behalf in the appeal, but gave an address for service of correspondence which was a post office box at Pymble.
The Tribunal sent to that address on 25 November 2005 a letter inviting the applicant to attend a hearing at 10 am on 21 December 2005. The letter informed the applicant: “the Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone”. The letter requested the applicant to return a “Response to Hearing Invitation Form”.
A response signed by the applicant was received by the Tribunal on 7 December 2005. This informed the Tribunal that the applicant did intend to come to the hearing. However, in its statement of reasons the Tribunal said:
… he failed to appear on the scheduled date. He also failed to explain his absence before or since. The Tribunal will now proceed to a decision on the material before it.
I am satisfied the Tribunal had power so to proceed pursuant to s.426A(1), and that its discretion not to appoint a rescheduled hearing has not been shown to have miscarried.
The Tribunal, after setting out the usual consideration of the law in relation to refugee status in Australia, addressed the claims that the applicant revealed in the visa application and the review application.
In the course of its description of his claims it commented:
South Korea has been a State Party to the Convention since December 1992 (UNHCR website, State Parties to the 1951 Convention and 1967 Protocol, The Applicant has not explained how he had an asylum claim in a Convention signatory state dismissed within so much less than four days that he was even able to organise early travel back to the PRC.
The Applicant evidently re‑entered the PRC and departed again without being harmed or detained.
The Applicant attempted to address concerns of the primary decision‑maker in a statement attached to his application to the RRT. He said his passport, issued in his real name, was purchased through a friend and that he did not know how he was able to use it at “Chinese custom.” He made an unsupported assertion about the passport having a different citizen’s ID number from the one he was able to verify after receiving the primary decision. He provided none of the documentation he claimed to have checked.
The Applicant claimed he only returned to the PRC from South Korea reluctantly. He provided no further detail about the asylum process he supposedly engaged during his four‑day stay. He claimed he would have been deported by the South Korean officials had he remained there seeking asylum after the expiry of his (three‑month) South Korean visa. He disagreed with the primary decision‑maker’s reliance on an inability to locate any information about PRC‑national asylum seekers being deported to the PRC from South Korea in recent years.
The Tribunal then noted:
The Applicant claimed that the case of four fellow unionists demonstrated the degree of harm he faced in the event of return to the PRC, but he has provided no evidence, beyond a few assertions, linking himself to any detained, or otherwise persecuted, unionists. Furthermore, he has not fulfilled his undertaking to give oral evidence in a matter that, as he was advised by the Tribunal, could not be resolved in his favour on the papers alone.
Under the heading “Findings and Reasons”, the Tribunal gave the following short explanation for its decision to affirm the delegate’s decision:
The Tribunal accepts that the Applicant is a national of the PRC. The Tribunal relies on the Applicant’s use of a passport issued in his own name and, in particular his unremarkable use of it to leave the PRC twice and to re‑enter that country without any relevant impediment. The Tribunal concludes from this that if the Applicant was ever of any relevant interest to the PRC authorities, he ceased to be a significant time before he was authorised to travel. The Tribunal does not accept on the scant evidence before it that the Applicant avoided scrutiny in the circumstances claimed by having a different citizen’s ID number in his passport.
The Applicant’s claims about asylum‑seeking in South Korea are vague and undetailed. It is implausible that the Applicant could apply for asylum and be advised of potential deportation in such a short period of time. The Tribunal does not accept that the Applicant went to South Korea to seek protection or that he tried to obtain it while he was there. Even if he did, there is no basis for assuming the asylum bid in South Korea was genuine, let alone on the Applicant’s performance as a witness in the present case, and it is significant that he was able to re‑enter the PRC without being detained as he claimed he would be.
The Tribunal is not satisfied that the Applicant faces a real chance of Convention‑related persecution in the PRC. His claimed fear of such persecution is not well‑founded. He is not a refugee.
Having considered the evidence as a whole, the Tribunal is not satisfied that the Applicant is a person to whom Australia has protection obligations under the Convention. Therefore the Applicant does not satisfy the criterion set out in s.36(2) of the Act for a protection visa.
The application filed in this Court contains essentially three grounds (numbering added):
1.The RRT did not give me enough time to give them evidence. They did not consider the difficult situation for me to bring evidence from China and they don’t care if I was safe if I go back to China now.
2.DIMIA and RRT used a overdate information to processing my application. I’m sure I need protection if I go back to China now. I must be in dangerous.
3.Due to my language problem, the decision is not fair.
It was supported by a very brief affidavit which stated:
1.The decision of RRT is not correct because I did not give some evidence.
2.Due to I did not speak English, so DIMIA and RRT did the decision under not fair conditions.
The arguments intended in these documents, as with the arguments in the amended application to which I shall refer below, have not been elucidated by the applicant in written or oral submissions. Indeed, today the applicant had nothing whatsoever to say to me in support of his case. He did, however, present a written statement which explained his absence from the hearing:
… I did not came to RRT for hearing is due to I was suddenly sick and I can’t go to any doctor. So I didn’t have the doctor’s certificate. I feel sorry for this.
I note that the applicant did not claim at any time to have contacted the Tribunal to seek to explain his absence, nor to seek an adjournment or re‑scheduled hearing. In those circumstances, in my opinion, the Tribunal has complied with its statutory obligation under s.425 to give the applicant an opportunity to attend a hearing to give evidence. It has complied with the notification requirements arising under s.425A and, as I have indicated above, the Tribunal then had power to conclude the matter, due to the applicant’s unexplained absence from the hearing. For those reasons, I do not consider that any jurisdictional error arises under Ground 1 of the application.
Ground 2 is obscure as to what is the “overdate information” alleged to have been used by the Tribunal. I am unable to identify any error in the Tribunal’s references to general information, which appears on my reading of its decision, to have been limited to the situation of Korea in relation to the Refugee’s Convention.
Ground 3 is entirely unexplained and I can give it no substance as raising a ground of jurisdictional error.
The applicant’s amended application contains grounds with the numbering as shown:
1.The Tribunal failed to carry out it’s statutory duty.
Particulars
a.The Tribunal had the following information which was the reason, or part of the reason, for affirming the decision and failed to give particulars of that information to the Applicant, explain why it was relevant and give the Applicant an opportunity to comment upon it.
(i)     “that he was able to re‑enter the PRC without being detained which he claimed he would be”
b.The Tribunal failed to review the Applicant’s application.
2.The Tribunal’s decision was based on unwarranted assumptions and/or was based on reasoning which was irrational and/or illogical.
Particulars
i.“The Applicant has not explained how he had an asylum claim in a Convention signatory state dismissed within so much less than 4 days that he was able to organise early travel back to the PRC” CB 58
ii.“…the Applicants performance as a witness in this case.” The Applicant did not present any evidence as a witness in this case.
3.The Tribunal failed to carry out it’s decision in a bona fide manner.
Particulars
a.The Tribunal is required to provide a review, setting out it’s reasons on essential matters of fact and referring to the evidence or other material on which these findings were based.
The Tribunal decision
(i)     is 6 pages long
(ii)     the first page is the cover sheet
(iii)   the second, third and fourth pages are pro‑forma paragraphs included in all decisions of the Refugee Review Tribunal
(iv)    the fifth page and 30% of the sixth page is a summary of the Applicant’s claims
(v)     the “Findings and Reasons” of the Tribunal are contained in 17 lines
b.The Tribunal misrepresented the Applicant’s evidence
(i)     the Applicant’s evidence was
“The Korean authority told us it was impossible to accept our application for protection.”
(ii)     The Tribunal stated
“The Applicant has not explained how he had an asylum claim in a Convention signatory state dismissed within so much less than four days” which implies that the application was lodged and considered prior to it being dismissed.

The first ground read with particular (a) raises the s.424A(1) issue which caused me a concern. This is that the Tribunal has used as a reason for affirming the delegate’s decision, information that the applicant had left and re‑entered China “without any relevant impediment” and “without being detained” on return from Korea.
This was the very point made by the delegate in the paragraphs which I have extracted above, based upon the applicant’s movements given in the protection visa application and upon the passage from the applicant’s statement attached to his visa application which I have extracted above. The Tribunal therefore did have “prior” information which might have provided “a part of the reason” for its decision, within the analysis provided in the case of SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214, [2006] FCAFC 2.
The use of such information establishes an obligation on the Tribunal to have complied with s.424A(1) in relation to serving a written invitation for written comments, unless that duty was excluded by s.424A(3)(b) for the reason that the information can also be characterised as information “that the applicant gave for the purpose of the [review] application”. It is clear, for example in SZEEU at [83], [173] and [264], that if the source of information used by a Tribunal was, or might have been, information given by an applicant for the purposes of the review application, it does not matter that that information was also found, or might also have been found, by the Tribunal in “prior information”.
In my opinion, that is what has happened here. I consider that reading the letter attached to the applicant’s review application in the context of the delegate’s decision to which it responded, the applicant has re‑presented to the Tribunal the information that his passport had allowed him to pass through Chinese customs posts travelling to and from Korea, and then to Australia, without impediment and without being detained. I therefore do not consider that a failure to comply with a duty arising under s.424A(1) has been established in this case.
Ground 1(b) has not been explained by the applicant. In my opinion the Tribunal plainly did consider and review the applicant’s claims to be a refugee.
Ground 2(i) seeks to identify “unwarranted assumptions” or “reasoning which was irrational and/or illogical” in the Tribunal’s references, in the passages I have extracted above, to the absence of explanations as to “how he had an asylum claim in a Convention signatory state dismissed within” the four days he claimed to have been in Korea.
The basis on which it was argued that this was an unwarranted assumption or irrational is not clear from this particular, but I consider that it probably is making the same point as Ground 3(b). The contention appears to be that, in fact, the applicant’s claim was not that the Korean authorities received and refused an application for recognition as a refugee, but that they declined to receive an application and made it “impossible to accept our application for protection”.
However, the material which was before the Tribunal did not present the applicant’s history in those terms. The applicant’s visa statement said: “we tried to seek protection from Korea government but Koreans did not want even listen”. I consider that it was open to the Tribunal, as a matter of law, to read the applicant’s claims as being that an asylum claim had been presented to an appropriate agency in Korea and had been refused within the brief period that the applicant claimed to have been in that country.
I therefore reject Grounds 2(i) and 3(b) that the Tribunal misunderstood the applicant’s claims in this respect. I also reject the contention that this part of the Tribunal’s reasoning showed unwarranted assumptions or irrationality. In effect, the Tribunal only drew attention to the prima facie difficulty of understanding how Korea could have ignored its obligations under the Convention as claimed, in the absence of the applicant to give explanations at a hearing. Such reasoning, in my opinion, was clearly open to it.
Ground 2(ii) seeks to characterise as irrational the Tribunal’s reference to the applicant’s “performance as a witness” in the sentence in which the Tribunal said that even if the applicant had sought protection in Korea:
… there is no basis for assuming the asylum bid in South Korea was genuine, let alone on the Applicant’s performance as a witness in the present case, and it is significant that he was able to re‑enter the PRC without being detained as he claimed he would be.
The Tribunal’s reference to “let alone on the Applicant’s performance as a witness” is infelicitous. However, I consider that, in the context, the Tribunal should be understood as saying that it had taken into account the nature and extent of the applicant’s evidence on this issue, including the absence of evidence given by him at the hearing. Understood in that way, there is nothing irrational about the Tribunal’s reasoning and it was, in my opinion, open to it as a matter of law.
Ground 3(a) contends that the Tribunal “failed to carry out it’s decision in a bona fide manner” based on the five points made as to the form and content of the Tribunal’s statement of reasons.
An allegation that a decision‑making power has been exercised without good faith requires a finding by the Court as to the actual state of mind of the decision‑maker, and that the decision‑maker has deliberately failed to attempt a genuine review as required by the statute (see Gyles J in NAKF v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 130 FCR 210 at 219). As his Honour pointed out, this is a serious contention only to be presented and made out upon clear evidence.
The matters pointed to in the applicant’s amended application in this respect fall far short of even a hint of substance to this contention. In my opinion, the Tribunal’s reasons showed that it did attempt a bona fide review of the applicant’s entitlement to a protection visa. For the reasons I have explained above, its reasoning in relation to the applicant’s claim to have had his asylum claims rejected in Korea during his four day presence in that country was not irrational, and in my opinion provides no support for the contention of absence of bona fides.
For the above reasons, I consider that none of the arguments raised by the applicant’s documents establish jurisdictional error affecting the Tribunal’s decision. It is therefore a privative clause decision for which relief is barred under s.474(1) of the Migration Act, and I must dismiss the application.

I certify that the preceding thirty‑eight (38) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 9 August 2006