SZILF v Minister for Immigration - [2007] FMCA 945

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZILF v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 945

MIGRATION – RRT decision – Chinese applicant claiming political persecution as labour activist – disbelieved by Tribunal – no jurisdictional error found – application dismissed.

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

SZBYR v Minister for Immigration & Citizenship [2007] HCA 26
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214

Applicant:

SZILF

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG634 of 2006

Judgment of:

Smith FM

Hearing date:

12 June 2007

Delivered at:

Sydney

Delivered on:

12 June 2007

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Mr J Mitchell

Solicitors for the Respondents:

Blake Dawson Waldron

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG634 of 2006

SZILF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed on 28 February 2006, which has been set down for a final hearing under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”) in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 18 January 2006 and handed down on 31 January 2006. The Tribunal affirmed a decision of a delegate made on 29 September 2005, 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 the Court’s powers are subject to s.474, so that I do not have power to set aside the Tribunal’s decision and send the matter back to the Tribunal unless I am satisfied that the Tribunal’s 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.
The applicant arrived in Australia on a two weeks visitor’s visa in June 2005. On 1 July 2005 he applied for a protection visa assisted by an agent, Priscilla Yu. He claimed in a statutory declaration attached to the application that his true name was different to the name shown in the passport, notwithstanding his photograph in the passport. His agent presented to the Department the passport, and also a Chinese identity card showing his photograph, but in the different name which he claimed as his true identity. He also submitted a third document, being a marriage certificate, which also showed his photograph and the name which he claimed as his true identity.
The Department arranged for all three documents to be considered by its document examination unit, which found no evidence of tampering or alteration to any of the three documents. It concluded that both the passport and the identity card were “genuine documents of the People’s Republic of China”. The authenticity of the marriage certificate was not commented upon.
In his statutory declaration the applicant claimed that he travelled on the false passport due to being on a “black list” of the Public Security Bureau as a result of his “political opinions and actions against the PRC authorities”. He narrated a personal history in China, which commenced:
(d)I started working as a construction labourer when I was very young; and I have worked for many construction projects. During my work, I have many times been subjected to humiliation and discrimination, because I was just “construction labourer” who had to struggle in the bottom of the society.
The applicant said that in 2003 he was working as a construction labourer when the company refused to make full payments to all the workers, and that they demonstrated under the leadership of Mr X. He said that he was “not a significant leader at the above‑mentioned protest, but I was indeed an activist”. He said Mr X was subsequently arrested by the PSB, and the applicant became an activist again with Mr X’s sister and became a close friend of Mr X. He claimed that in April 2004:
(i)… Mr X organised a special meeting for establishment of the temporary union in the temporary shed of construction site, and around 100 construction laborers attended the meeting. Mr X was elected as the Chairman, Mr Z and I was elected as Deputy Chairman. Mr S and Mr D were elected as members in the standing committee. Mr X, Mr Z, Mr S and Mr D and I organized a standing committee of the temporary union.
(j)From then on, the temporary union became a sole, unofficial organization to strive for basic human rights of our construction laborers in the construction site. The union assisted construction laborers to get payment on time; to have necessary working safety protection utilities and equipment, to be covered by workers insurance, to have a clean and healthy dining room, and so on. The union’s influence among construction laborers become stronger and stronger; and eventually more than 60% construction laborers participated in the temporary union.
(k)Around January 2005, Mr X, and other members of the standing committee, including me, were suddenly taken to the PSB by some policemen, while we had a routine meeting to discuss about our activities of the temporary union. Our five people, Mr X, Mr Z, Mr S, and Mr D and me, were subjected to interrogation by the PSB. We were denounced to establish and develop an illegal workers organization. We were required to dismiss the union immediately. Although we tried to argue that the union was solely for the purpose to protect basic human rights of construction laborers, but the policemen never listened to us.
(l)From then on, we were continually subjected to question and interrogation many times. Our basic human rights have been seriously threatened.
(m)In order to strive for the basic and legal right of our temporary union, under the leadership of the standing committee, the temporary union organized our construction laborers to widely distributed propaganda materials in which we actively promoted genuine purpose of establishment and development of the union. In the meantime, the union sent many petitions to relevant official departments.
(n)However, the PRC authorities never ever respect and protect our basic human rights, and our requests have been refused again and again. Especially, Mr X and Mr Z were arrested by the PSB on 1 March 2005. I, together with other members in the standing committee, have also been on the “black list”. I got the news in advance through my wife’s friend Ms H who worked in Fujian Government. In order to escape from persecution, I had to go to [location] shortly after that.
(o)I hided in a friend’s place in [location] for several months, and eventually escaped to the Australia in June 2005, but my wife and parents have become the target of the PSB. All of them have been subjected to investigation by the PRC authorities.
A delegate refused the application on the ground that the applicant had provided no evidence to substantiate any of his claims in relation to being a labourer or a labour activist, and formed the view that the applicant had not been persecuted in the past.
On appeal, the applicant attended a hearing on 12 December 2005 to which he was invited. Although he was still assisted by his agent, no further documents or corroboration were presented to the Tribunal.
In its statement of reasons, the Tribunal gave a description of the hearing conducted by it. According to its description, the applicant was closely questioned about his claimed involvement in organising the union and in its activities. The applicant said he had no documents to corroborate his claims, including the propaganda material which he claimed he had distributed. The Tribunal also questioned the applicant about his claims to have been detained and interrogated by the PSB, and his claims to have avoided arrest on the warning of the wife of his friend. It sought to gain clarity about his escape from China, including how he obtained his false passport. The Tribunal put to the applicant that country information said that “many official documents (especially identity documents) are forged and that irregular or improper use of documents is widespread”.
Under the heading “Findings and Reasons”, the Tribunal first addressed the identity of the applicant. The Tribunal referred to the three documents submitted by the applicant’s agent, and said that it had some doubts about the truth of his claim that the passport was not in his true name. It noted the curious fact that the visa in the passport had been granted by the Australian Embassy on an application showing a photograph of a person who was not the person whose photograph appeared in the passport also presented to the Embassy. However, it said:
Nevertheless, given that there is nothing in the material before it which can assist in conclusively indicating the Applicant’s identity the Tribunal is prepared to give him the benefit of the doubt by accepting that he is a citizen of the People’s Republic of China whose name is [the name in the identity card and not the passport] and who was born in [location] in 1969.
The Tribunal referred to the possible reasons why a person might travel on a false passport, and said: “the Tribunal is not prepared to accept at face value his claim that he did so [i.e used the false passport] because he could not obtain a passport in his own name and feared detection when leaving China”.
The Tribunal then closely examined the applicant’s claimed union involvement. It pointed to difficulties in those claims and how they had been presented, including the fact that his account was “vague, sketchy and confused”. The Tribunal pointed to difficulties believing some aspects of his history, including his account of his escape from Fujian. It said that it was not credible. It said that it was not persuaded “of the truth of the account offered by the Applicant as to how he obtained” his falsified passport.
At the conclusion of its discussion the Tribunal addressed the opening paragraph in the applicant’s narrative, which I have set out above, referring to humiliation and discrimination when he was a young construction labourer. Under a heading “Discrimination”, it said:
In his protection application the Applicant claims that he began working in the construction sector when he was very young and that he was on many occasions subjected to discrimination and humiliation because he was a construction worker. He did not make any mention of this claimed discrimination at the hearing.
The Tribunal has considered this claim but is not satisfied that, even if the Applicant did suffer discrimination and humiliation because of the nature of his employment as he claims, this can be said to have occurred because of a Convention reason. Nor is the Tribunal satisfied that such treatment, while no doubt hurtful, can have constituted serious harm amounting to persecution, given that the Applicant was able to live at the same address for the ten years prior to his departure for Australia, marry, raise a family, remain in gainful employment for twenty years and generally lead a normal life.
The Tribunal’s conclusions were summarised by it:
On the basis of the information before it the Tribunal is not satisfied that the Applicant was an activist among construction workers or that he helped found a union to protect the rights of such workers, as he claims. The Tribunal is not satisfied that he was arrested and interrogated by the PSB for such activity or that he narrowly escaped arrest, fled to Hainan Island and hid there for two months before departing for Australia. The Tribunal is not satisfied that the Applicant is on a black list maintained by the PSB or that they are searching for him. Nor is the Tribunal satisfied that the PSB have targeted the Applicant’s wife and parents or placed them under investigation.
The Tribunal is not satisfied that there is a real chance that the Applicant would suffer serious harm amounting to persecution in China at the hands of the PSB or anyone else. The Tribunal is not satisfied that the Applicant has a well‑founded fear of persecution on the basis of his political opinion or for any other Convention reason should he return to China now or in the reasonably foreseeable future and is not satisfied that he is a refugee.
I have considered the reasoning and procedures followed by the Tribunal, and am unable to identify jurisdictional error affecting the Tribunal’s decision.
The applicant has presented various arguments attempting to show jurisdictional error, in an application and an amended application. The first ground is:
1.The Tribunal failed to properly determine my review application.
An argument is then presented which, in effect, repeats the applicant’s refugee claims and argues that “I, therefore, must be subjected to persecution by the Chinese government”. However, this argument presents only the merits of the refugee claims afresh to the Court, and does not present jurisdictional error.
The second ground contends:
2.The Tribunal failed to comply with its obligation under s424A(1) of the Migration Act 1958 (“the Act”).
The argument then presented identifies findings made by the Tribunal which are argued to have been “wrong findings”, and not to have been foreshadowed to the applicant in an invitation for comments under s.424A(1). However this argument misconceives the obligations of the Tribunal under that provision. The Tribunal is not obliged to foreshadow its thought processes where, as in the present case, its adverse findings were based on evidence given by the applicant to the Tribunal at the hearing (see s.424A(3)(b)). I therefore do not consider that the arguments presented in the amended application concerning s.424A can succeed.
Counsel for the Minister raised two aspects of the Tribunal’s reasoning as relevant to a consideration of s.424A, notwithstanding that they were not particularised in the application. The first concerns the Tribunal’s reference to information taken from the Department’s document examination report, which raised a doubt about the applicant’s claim to have travelled on a falsified passport. However as I have indicated above, the Tribunal gave the applicant the benefit of the doubt about that aspect of his claims, and I do not consider that in this part of its reasons the Tribunal referred to information which it used as a reason for affirming the delegate’s decision. No breach of s.424A(1) is therefore shown at this part of its reasons.
A second part of the Tribunal’s reasons which might give rise to a concern in relation to s.424A is its discussion of paragraph (d) of the applicant’s statutory declaration, concerning his claim to have been subjected to humiliation and discrimination as a young construction worker.
However, in my view, the Tribunal’s discussion of this matter was not a necessary part of its jurisdictional task, since I would not understand this part of the applicant’s statutory declaration as presenting a basis for the applicant’s fear to return to China. Rather, it was presented to introduce the history which led the applicant into becoming a union activist and then being persecuted, which the Tribunal rejected. I therefore do not consider that the Tribunal’s reference to information, which it appears to have taken from the protection visa application concerning the applicant’s place of residence and family, was reasoning engaged in as a necessary part of its jurisdictional task. On that basis, any failure to put to the applicant the information which it referred to in that discussion, did not give rise to jurisdictional error.
Furthermore, even if that part of the statutory declaration did raise a claim which the Tribunal was bound to address, it addressed it with two alternative reasons shown in the second paragraph of its discussion extracted above. The first reason was that it was not satisfied that the claim referred to hardship which occurred “because of a Convention reason”. In my view that was an independent reason given by the Tribunal for rejecting this element. If there were any failure by the Tribunal under s.424A(1) reflected in its second reason, which addressed whether the treatment “constituted serious harm amounting to persecution”, the Tribunal’s reasons can be supported on the first “entirely independent basis” (see SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214 at [233], and SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [26]). I therefore do not accept that the Tribunal’s decision is vitiated by any failure under s.424A(1).
The third ground in the amended application contends:
3.The Tribunal failed to comply with its obligation under s425 of the Migration Act 1958 (“the Act”).
Particulars
3.1I have been arranged a hearing, however, I do not think that I have been provided a fair chance to well present my oral evidences in support of my application, and on many occasions, I have been strictly restricted by those “picky” questions of the Tribunal so that I have been unable to present my oral evidence, completely and clearly.
3.2During the Tribunal’s hearing, the Tribunal indeed discussed some issues with me, but it never ensured me to genuinely understand the key issues that would be directly in relation to my review application, which made it impossible for me to give my argument against those issues.
3.3As a matter of fact, during the Tribunal’s hearing, I many times thought that I had already explained my claims, and the Tribunal had already well understood my claims, because the Tribunal did not tell me, clearly and honestly, that it had not accepted my explanation.
3.4From this point, I have, in fact, been deprived of the right entitled under the s.425 of the Act.
The difficulty with the contentions made under this ground is that the applicant has not tendered to the Court a transcript of the hearing held by the Tribunal, although he was given that opportunity. I am therefore not satisfied on the material before me that the applicant was denied the opportunity required to be afforded under s.425 including by alerting him to the issues in the case. I am not satisfied that the applicant would not have been clearly alerted by the Tribunal’s questioning that it might not accept his claimed history.
The fourth ground in the amended application contends:
4.The Tribunal ignored and failed to consider, properly and fairly, the claims that I made to it, including whether the harm feared amounted to persecution and whether that fear was “well founded”.
The argument presented with this ground essentially argues with the merits of the Tribunal’s reasoning. I am unable to identify an argument raising a ground of jurisdictional error. I consider that the Tribunal’s reasoning did address the claims which had been presented by the applicant as the reasons for his fear of return to China, and that its conclusions were open to it on the evidence before it. The Tribunal had the task of addressing the credibility of a story which was independently supported only by the questionable corroboration of a false passport. I consider it was open to it to form an adverse view of the credibility of the applicant’s evidence.
The fifth ground in the amended application makes unparticularised contentions:
5.I have to emphasize that in deciding my application, the Tribunal has misunderstood my application, and failed to consider an essential claim in the case; asked itself a number of wrong and irrelevant questions; and failed to identify and consider the relevant issues to be determined. As a result, the Tribunal incorrectly assessed my credibility.

However, no argument has been presented to me, either in writing or orally by the applicant today, to explain these contentions, and I am unable to give them any substance.
The applicant had no submissions to make to me today. For the above reasons I am not persuaded that any of the grounds raised in his amended application can be upheld. In my opinion, the Tribunal’s decision was a privative clause decision, 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: 22 June 2007