SZIMU v Minister for Immigration
[2006] FMCA 1321
•29 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIMU v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1321 |
| MIGRATION – RRT decision – Chinese person fearing persecution for political activities – disbelieved by Tribunal – no jurisdictional error found. |
Federal Magistrates Court Rules 2001 (Cth), r.44.12
Migration Act 1958 (Cth), ss.424A, 424A(1), 425, 474(1), 476, 476(1)
| Applicant: | SZIMU |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG756 of 2006 |
| Judgment of: | Smith FM |
| Hearing date: | 29 August 2006 |
| Delivered at: | Sydney |
| Delivered on: | 29 August 2006 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Ms K Rose |
| Solicitors for the Respondents: | Phillips Fox |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $3,800.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG756 of 2006
| SZIMU |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application filed on 14 March 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 January 2006 and handed down on 9 February 2006. The Tribunal affirmed a decision of a delegate made on 6 October 2005 which refused to grant a protection visa to the applicant.
Under s.476(1) the Court has “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 set aside the Tribunal’s decision and send the matter back 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.
The applicant arrived in Australia on 26 June 2005, and on 7 July 2005 an application for a protection visa was presented on his behalf by a migration agent, Ms Priscilla Yu. The applicant’s claims to seek protection in Australia against return to his country of nationality, the People’s Republic of China, were presented in a typed statutory declaration.
He claimed to have an identity different to that shown in the passport with which he entered Australia. He gave a history of employment between 1996 and 2004, in which he claimed to have lost two jobs as a result of corrupt or unfair conduct by an employer supported by the Chinese government authorities. He claimed that in 2004 he became an employee of H, who organized a pro‑democracy propaganda movement. The applicant, his friend W, and two other persons “became the earliest members in the group”. The applicant led one wing of it, concerned with distributing pro‑democracy propaganda material. He claimed to have recruited other members. His declaration described how the group had come to the attention of the Chinese authorities:
(s)In February 2005, Mr. Z was arrested by the PSB, while he was found to mix some propaganda materials together with some commercial advertisement leaflets and then put them into those mail boxes of villages. Mr. Z refused to expose any details regarding to the propaganda group but only insisted that it was his personal action. However, the PSB still tried to find all others in relation to Mr. Z’s case. Many friends, including me, who were suspected to have special relationship with Mr. Z, have been subjected to investigation by the PSB.
(t)During that special period, Mr. H, Mr. W, and I many times gathered together to discuss how to face such a difficult situation. On one hand, we tried to save Mr. Z out of the detention; and on the other hand, we had to think about what we should do if everything were discovered by the PSB. I, therefore, began to secretly seek a way to go to the overseas from then on.
(u)Early in April 2005, the PSB discovered the secret printing workshop for those pro-democracy propaganda materials at the basement of Mr. W’s building materials shop. Mr. W and most of members in his group have been arrested by the PSB. I got this news when I took some of members in my group to distribute some propaganda materials in [city] of [province]. I immediately went to hide in a friend’s place. Soon after that, I have been informed that most of other members, even including Mr. H, have been arrested by the PSB; and the policemen have come to my home with arrest warrant.
(v)I hide in my friend’s place for several months. In the late of June 2005, I got a chance to leave China from [city] to Macao with helps of my friend. In order to avoid the attention of the PRC, I had to use the Passport of “[name]”. I then went to Hong Kong; and finally arrived in Australia.
No supporting evidence of these claims was presented, other than an identification card in the name of the person whose identity the applicant claimed.
A delegate refused the application on 6 October 2005, on the ground that he was not satisfied that the applicant was specifically known and wanted by the PSB as a known organiser of a pro‑democracy movement.
The applicant lodged an application for review by the Tribunal on 25 October 2005, appointing Ms Yu as his authorised agent. No further supporting materials were presented to the Tribunal, but the applicant attended a hearing on 16 December 2005.
The Tribunal gave a description of the hearing in its statement of reasons. As I shall discuss below, the applicant criticised aspects of the hearing in both his original application and his amended application. At the first court date and at a show‑cause hearing, I drew the applicant’s attention to the need to support such grounds with a transcript of the hearing. On the latter occasion, I drew his particular attention to this need, and it was the possibility that he might present a transcript which caused me not to dismiss his case under r.44.12 of the Federal Magistrates Court Rules 2001 (Cth). However, he has not presented any supporting evidence of his criticisms of the hearing, and I am left to rely upon the Tribunal’s description of its hearing.
The Tribunal described the applicant’s evidence concerning his involvement in the pro‑democracy group. The Tribunal questioned the applicant concerning the guiding principles of the China Democracy Party (“the CDP”), and about aspects of his narrative which caused it concerns. According to the Tribunal it invited the applicant at the end of the hearing generally to make further statements. There is no suggestion which I can find in the Tribunal’s description, that the hearing was not conducted fairly to give the applicant a full opportunity to present his claims.
Subsequent to the hearing, the Tribunal sent a letter to the applicant in accordance with s.424A of the Migration Act. This invited the applicant’s comments on three aspects of his claims where it had information from his protection visa application and from a bridging visa application, which the Tribunal thought might appear inconsistent. The applicant’s agent presented a response by the applicant which the Tribunal considered.
Under the heading “Findings and Reasons”, the Tribunal accepted “for the purposes of this decision” that the applicant’s real identity was shown in the identity card, and not the passport which he used to travel into the country. The Tribunal said that it accepted the broad outline of his work history between 1996 and 2004. However, the applicant had told the Tribunal “that he did not fear harm arising from these past incidents, but rather from his involvement in the CDP group” after 2004.
The Tribunal then addressed his claims about that involvement, and said that it had “significant difficulties with the credibility of the Applicant’s claims relating to the period after April 2004”. It gave the conclusion that it was “not satisfied that the Applicant joined and became involved in political work for the CDP”.
The Tribunal explained this conclusion by identifying four reasons relating to his level of knowledge with the CDP, the vagueness of some aspects of his narrative, the “hesitant, confused evidence” the applicant gave about his activities in the group, and what the Tribunal regarded as an inability to explain how he became aware of the content of the interrogation of a person who had been arrested. The Tribunal summarised this reasoning:
It is the combined effect of all the above factors – his patchy knowledge of the CDP, his vague evidence concerning H’s background, his hesitant account of his own role and continued anomalies in the account of the claimed incidents – which leads the Tribunal to conclude that the Applicant is not and was not associated with the CDP, that the incidents did not occur as claimed, and that he did not have to go into hiding and subsequently escape from China for his safety.
The Tribunal then discussed other aspects of the evidence, which it treated neutrally. It also said that its adverse findings were “reinforced by the Applicant’s conduct since his arrival in Australia”. In particular, the applicant had made no attempt in his six months of residence in Australia, to “articulate his CDP interests (other than in the course of his refugee application) or make any form of contact with likeminded persons”.
The Tribunal then considered whether as a person who “broadly favours democracy and similar values”, the applicant would be at risk of persecution. It accepted that he was such a person, and concluded:
However, his views are in the Tribunal’s opinion not of sufficient intensity that the Applicant will be motivated to act on them if he returns to China. The Tribunal is therefore not satisfied that he faces a real chance of persecution arising from them.
The Tribunal was therefore not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention.
I have considered the Tribunal’s reasoning and its procedures, and am unable to identify jurisdictional error affecting its decision.
The applicant has received help from an assiduous but unknown adviser of Chinese refugee applicants, who has presented a detailed critique of the Tribunal’s decision in an application and an amended application. They are too long to set out in this judgment.
Many of the points made in these documents attack the merits of the Tribunal’s reasoning rather than its legality. However, it is not within this Court’s jurisdiction to set aside a Tribunal’s decision on the basis that the Tribunal member formed opinions which may not have been correct on their merits. The Court can only examine whether the assessments of the Tribunal were open to it as a matter of law on the material before it. I therefore reject the contentions contained in the amended application which argue that the Tribunal member displayed insufficient understanding of the factual background to the applicant’s claims.
Other criticisms in the amended application are that the applicant was “interrupted by the Presiding Member”, and that the Tribunal did not ask relevant questions “clearly and properly”. There are also contentions that “there might be some mistakes or misunderstandings owing to incorrect translations for the questions by the interpreter”. There is an oblique suggestion that the Tribunal should have considered that the applicant “might … be afraid to speak freely and give a full and accurate account of my case”. There is also an oblique suggestion that the Tribunal was biased and “did not want me to further details about the CDP”.
However, none of these contentions are made out, in the absence of a transcript and any support in the documents before me. On the contrary, I find that the Tribunal’s reasoning was rational and appears to have been open to it on the material before it. I can see no evidence that the applicant was denied the opportunity he was entitled to have under s.425 of the Migration Act. That section requires him to be given the opportunity “to give evidence and present arguments relating to the issues arising in relation to the decision under review”.
I therefore consider that none of the particulars listed under Ground 1 of the amended application are made out, to the extent that they raise matters capable of constituting jurisdictional errors.
Ground 2 argues that the Tribunal failed to comply with obligations under s.424A(1). However, the particulars of this ground misunderstand the purpose and content of s.424A. It does not give an applicant an opportunity to make written comments on the reasons which a Tribunal member is proposing to adopt. Rather, an applicant’s entitlement is only to be invited to comment on particulars of information which provides the reason or part of the reasons for affirming the delegate’s decision, if that information was specifically about the applicant and was not given to the Tribunal by the applicant. In the present case, I can identify no failure by the Tribunal to comply with that obligation.
Ground 3 contends a failure to comply with the Tribunal’s obligations under s.425. I addressed this issue above, and can find no evidence allowing the ground to be upheld.
Ground 4, as with Ground 1, argues that the Tribunal failed to consider the applicant’s refugee claims fairly and carefully. However, in my opinion it did do that.
I therefore do not accept any of the grounds raised by the amended application.
The applicant attended today, and read from a prepared written submission which repeated the contentions which are in his amended application, and which I have addressed above. I have considered all that he has said, but am not persuaded that the Tribunal’s decision in this case was affected by jurisdictional error. It is therefore a privative clause decision for which relief is barred by s.474(1), and I must dismiss the application.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 12 September 2006
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