SZIOY v Minister for Immigration

[2007] FMCA 1359

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIOY v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1359

MIGRATION – Review of Refugee Review Tribunal decision – Tribunal did not take into account an irrelevant consideration – Tribunal did not fail to afford applicant procedural fairness – Tribunal did not act “capriciously and arbitrarily” – Tribunal was not satisfied that applicant’s claimed resignation from the Chinese Communist Party was not for the purposes of strengthening refugee claims – s.91R(3) applied – no jurisdictional error – application dismissed.

Migration Act 1958, ss.91R(3), 422B, 424A(3)(b), 424A(1)

Elias v Commissioner of Taxation (2002) 123 FCR 499
Paul v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 396
SZCIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2007] FCAFC 62
Minister for Immigration & Multicultural & Indigenous Affairs v Lay Lat (2006) 151 FCR 214
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 231 ALR 592
NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235
VWSTv Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 286
WAJQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 79
SJSB v Minister for Immigration & Multicultural and Indigenous Affairs [2004] FCAFC 225
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Minister for Immigration & Multicultural & Indigenous Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration & Ethnic Affairs v Guo& Anor (1997) 191 CLR 559

Applicant: SZIOY

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 945 of 2006

Judgment of: Nicholls FM

Hearing date: 9 August 2007

Date of Last Submission: 9 August 2007

Delivered at: Sydney

Delivered on: 9 August 2007

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondents: Mr G. Johnson

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. The reference to the first respondent be amended to read “Minister for Immigration and Citizenship”.

2. The application is dismissed.

3. The applicant pay the first respondent’s costs set in the amount of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 945 of 2006

SZIOY

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. I have before me an application filed in this Court on 30 March 2006 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), signed on 8 February 2006 and handed down on

   
   

   28 February 2006, which affirmed the decision of a delegate of the respondent Minister to refuse the grant of a protection visa to the applicant.

2. The applicant is a citizen of the People’s Republic of China who arrived in Australia on 2 July 2005. On 16 August 2005, the applicant lodged an application for a protection visa with the first respondent’s Department. On 22 October 2005, a delegate of the respondent Minister refused to grant a protection visa, and on 21 November 2005 the applicant applied for review of that decision.

3. The applicant’s claims to protection are contained in his application for a protection visa (reproduced at Court Book (“CB”) 1 to CB 26), in an accompanying statement (CB 27), and in his application for review (CB 46 to CB 49). The applicant claimed that he came to Australia to visit his son, that he was previously a member of the Chinese Communist Party (“CCP”) but on visiting his son he “learnt a lot of things that [he] would never find out in China”, and following this that he “signed the announcement that I would no longer be a member of CCP…by doing this I would become target of the Chinese government as a political defector”. (See CB 27).

4. Following receipt of his application for review, the Tribunal wrote to the applicant on 6 December 2005 (CB 55 to CB 56) advising that on the information before it, it could not make a decision favourable to him. It invited him to a hearing, which he attended on 8 February 2006 (CB 59).

5. The Tribunal’s account of what occurred at the hearing (CB 75.9 to CB 77.1) is reproduced in its decision record (at CB 71 to CB 79). The Tribunal found (at CB 77.2 to CB 77.10):

   1)It accepted the applicant’s claim that before he departed China he was a strong supporter of the Communist Party in China (CB 77.3).

   2)It accepted that after he arrived in Australia he may have learnt things about the CCP which shocked him, about which he was previously unaware (CB 77.4).

   3)However, given his “vague and unconvincing description of the circumstances in which he purportedly signed a document (of which he had no copy) to the effect that he resigned from the CCP”, it was not satisfied that such a document ever existed or ever came into existence (CB 77.4 to CB 77.5).

   4)Even if it was wrong, there was no evidence that the “Chinese Embassy” in Australia would have been made aware of the existence of this document, or if it had been, that as a consequence, the applicant would be seen as a “political defector” (CB 77.5).

   5)Even if it were to believe that the applicant signed such a document after his arrival in Australia, it was satisfied that he had engaged in this conduct for the sole purpose of strengthening his claim for refugee status and pursuant to s.91R(3) of the Migration Act 1958 (“the Act”), and disregarded this issue (CB 77.6).

   6)The applicant had not ever claimed he had suffered persecution in China and it was therefore satisfied he did not so suffer (CB 77.7).

   7)It was satisfied the applicant had never suffered persecution in China for a Convention-related reason and did not have a well-founded fear of so suffering in the reasonably foreseeable future. It therefore affirmed the decision not to grant a protection visa (CB 77.9 to CB 78.1).

6. The application filed on 30 March 2006 seeks review on the following (particularised) grounds:

   “1. the RRT decision was affected by Jurisdictional error:

   a) The RRT took into account an irrelevant consideration:

   b) The RRT failed to afford the applicant procedural fairness

   c) The RRT acted capriciously and arbitrarily and formed its assessment of satisfaction on illogical reasoning.”

7. At the hearing before the Court, the applicant appeared in person with the assistance of a Mandarin interpreter. Mr Johnson appeared for the first respondent. In spite of the orders relevantly made by a Registrar of this Court at the first Court date, the applicant has not filed anything further in support of his application. I have written submissions from the Minister drafted by Mr Johnson.

8. The applicant particularises the three grounds of the application by stating:

   1)That the Tribunal’s conclusion that he signed the document resigning from the CCP after his arrival in Australia for the purpose of strengthening his claim for refugee status was made on “illogical reasoning”.

   2)That it was “incorrect” for the Tribunal to assume that there was no evidence that the Chinese Embassy in Australia would have been made aware of the applicant’s resignation from the CCP.

9. At the hearing before the Court, the applicant stated:

   1)That he had been a CCP member for many years and he could not now go back to China given that he had resigned.

   2)That there were human rights abuses in China and he was fearful because of this.

   3)He asked the Court to take into account the human rights situation and makes its decision on “humanitarian grounds”.

10. Given the applicant was unrepresented before the Court, I explained the role of the Tribunal and the different role of the Court. He confirmed that the matters asserted in the application to the Court were drafted by him with the assistance of his son who translated into English.

11. In relation to those matters asserted in the application, he explained:

    1)That the Australian government gave protection to a former employee of the Chinese Consulate in Sydney (“he got what he wanted”).

    2)That it was unfair that “ordinary folks” could not get a protection visa.

    3)That the Tribunal was probably influenced by the CCP in some way, or that because of the trade relationship between Australia and China the Tribunal was “under pressure” to find against him.

12. I agree with Mr Johnson that there is nothing in the Tribunal’s decision record to show that it took into account an irrelevant consideration. Even beyond Mr Johnson’s reference to “an irrelevant consideration” being a factor or integer that the legislation prohibited from consideration (see Elias v Commissioner of Taxation (2002) 123 FCR 499; [2002] FCA 845 at [63] per Hely J), there is simply nothing that the applicant points to, nor is there anything otherwise evident, to show that the Tribunal’s reasoning was affected, and that its ultimate conclusion was affected, by matters not relevant to such consideration. Nor conversely, as Mr Johnson also submits, is there anything to show that the Tribunal failed to take into account any “relevant consideration” in the sense as described in Paul v Minister for Immigration &  Multicultural Affairs (2001) 113 FCR 396 at [78]).

13. To the extent that the applicant’s complaint may be a reference to the Tribunal’s consideration that the applicant signed the resignation document after his arrival in Australia for the purpose of strengthening his claim for refugee status, this cannot be said to be irrelevant to the Tribunal’s consideration given that it was obliged to consider such an issue pursuant to s.91R(3) of the Act.

14. Further, to the extent that the applicant may be seeking to say that it was irrelevant that the Tribunal considered that there was no evidence that the “Chinese Embassy” would have been aware of the applicant’s resignation from the CCP, this also was a relevant issue. Even if the applicant had signed such a document, a circumstance which the Tribunal contemplated, the knowledge of this by the local Chinese authorities was plainly relevant as to the question of whether the applicant would face persecution on return to China. This ground does not succeed.

15. The applicant also complains that the Tribunal failed to afford him procedural fairness. I note that this is an application to which s.422B of the Act applies (SZCIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2007] FCAFC 62 and Minister for Immigration & Multicultural & Indigenous Affairs v Lay Lat (2006) 151 FCR 214), making the provisions contained in Division 4 of Part 7 of the Act the exhaustive statement of the natural justice hearing rule (absent bias).

16. Within the statutory context it is plain that the Tribunal relied on information provided by the applicant himself for the purposes of the review, such that this information falls within the exception contained in s.424A(3)(b) from the requirements in s.424A(1) of the Act.

17. Further, the applicant was invited to a hearing before the Tribunal, an opportunity which he took up and participated in with the assistance of an interpreter in the Mandarin language. At the first Court date in this matter, a Registrar of this Court made orders, by consent (the applicant appeared in person with the assistance of an interpreter in the Mandarin language), which amongst other things, required the applicant to have filed a transcript of the Tribunal hearing by 11 August 2006. No such transcript has been filed. The Court therefore, only has before it the Tribunal’s account of what occurred at the hearing. With reference to SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 231 ALR 592, it is clear that on that account, firstly, the Tribunal raised with the applicant its “considerable doubts” about him having signed the resignation document from the CCP, secondly, on the basis that even if he had done so, that the Chinese Government would be aware of it, and thirdly, if such a document did exist, that it had “considerable doubts” that it had not been signed for the sole purpose of establishing a claim for refugee status (see CB 76.9 to CB 77.1).

18. Plainly, these were the determinative issues in the Tribunal’s evaluation. The applicant would have been aware of those issues at least as at the time of the hearing. Further, the relevance of the applicant’s actions following his arrival in Australia and within the context of s.91R(3) of the Act, was also an issue that was determinative in the decision of the Minister’s delegate (see CB 43.8 to CB 44.3) to refuse the applicant a protection visa, and plainly would have been known to the applicant at that earlier time. I cannot see any breach of the Tribunal’s obligations to afford procedural fairness to the applicant, either within the relevant statutory context or even as those principles are understood at general law.

19. The applicant’s claim now that it was unfair that the former consular employee was given protection and he was not does not disclose any failure to accord procedural fairness to him by the Tribunal. In any event, as he acknowledged to the Tribunal and as reported in the Tribunal’s account of the hearing, his circumstances and those of the consular employee “were not the same” (CB 76.8). This ground also does not succeed.

20. The applicant also complains that the Tribunal acted capriciously and arbitrarily, and that the Tribunal formed its assessment of not being able to be satisfied that the applicant met the relevant requirements for the grant of the protection visa on “illogical reasoning”. Putting aside the issue of whether illogicality on its own would be sufficient to reveal jurisdictional error (NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235, VWSTv Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 286, WAJQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 79), I cannot see that in any event, the Tribunal’s reasoning was illogical. The applicant’s claims, and evidence, were that he had been a strong supporter of the CCP in China, and after coming to Australia he was shocked to learn things about the CCP of which he had been previously unaware. Based on his vague and unconvincing description, the Tribunal was not satisfied that the resignation document existed, but even if it had existed, it found there was no evidence that the Chinese Embassy in Australia would have been made aware of this document. Further, the Tribunal found that, even if the applicant had signed such a document, it could not be satisfied that such conduct was engaged in by the applicant other than for the purpose of strengthening his refugee status and was therefore bound to disregard the signing of such a document even if that had occurred.

21. Relevantly, on the facts of this case, there are two issues where the issue of satisfaction by the Tribunal was required in the exercise of its statutory jurisdiction.

22. First, with reference to s.91R(3) of the Act, the Tribunal was required to disregard the applicant having signed a document resigning from the CCP, unless it could be satisfied that the applicant engaged in this conduct for a purpose other than strengthening his claims to be a refugee. That the Tribunal expressed its conclusion in this regard in terms of it being satisfied that the applicant engaged in this conduct for this sole purpose conclusively and plainly, shows that it could not be satisfied that he engaged in this conduct otherwise than for the purpose of strengthening his claims to be a refugee. Given the circumstances that were put before it, I cannot see any illogicality in the Tribunal reaching the view that it could not be satisfied that it was done for a purpose other than strengthening the claims to being a refugee.

23. The second relevant “statutory” issue relating to “satisfaction” is whether the Tribunal could be satisfied on the material before it, and as against the relevant criteria for a grant of a protection visa, that such criteria were met. For the reasons it gave, the Tribunal could not be so satisfied. I can see no illogical reasoning in the way the Tribunal addressed this issue. I note further, Mr Johnson’s reference to SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225 at [15]):

    “…does not require the decision maker to reach a decision to refuse to grant a visa only if a particular matter is established. Rather, it requires a refusal if the decision maker is not affirmatively satisfied that the criteria for the grant of the visa in question have been satisfied.”

    This was affirmed in Minister for Immigration v Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [17].

24. Nor can I see that the Tribunal made any “incorrect assumption” in relation to whether the Chinese Embassy in Australia would have been made aware of the applicant’s resignation from the CCP. As Mr Johnson correctly submits, there was no “incorrect assumption”. The Tribunal noted that there was no evidence that it had been made so aware and further, that even if such evidence were to exist, that there was no evidence that in any event, the applicant would be considered a “political defector”. I cannot see that the Tribunal made any assumption in this regard in the sense put forward by the applicant. That there was “no evidence” was a matter of fact that was plainly open on the material before the Tribunal. In this regard, I also note (again) from the Tribunal’s account of what occurred at the hearing, the discussion at the hearing concerning “the recent case of the ‘defection’ by the Secretary of the Chinese Embassy in Australia” (CB 76.8). As the Tribunal noted, it pointed out to the applicant that his circumstances were different to the circumstances in that case, and the applicant is reported as having acknowledged this “to be correct” (CB 76.8).

25. I should just also note that it was plainly open to the Tribunal to reject the applicant’s claim in the first instance that he had signed the resignation document from the CCP. It is a matter for the Tribunal as the finder of fact, to make such findings, including findings on credibility (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 per McHugh J at [67]).

26. In any event, there is nothing before the Court to show that the Tribunal’s finding in this regard was illogical or capricious. It can be well understood that the Tribunal found the applicant’s account concerning the signing of this document as “vague and unconvincing” when the applicant’s account was that he had handed over this document to some unidentified person “behind a counter” at some unidentified place, and was unable to provide a copy. The Tribunal’s finding that such a document did not, or did not ever exist, was sufficient to have formed the basis for the affirming of the delegate’s decision for the refusal of a protection visa. That the Tribunal (absent doubt) went on to consider the alternative does not reveal jurisdictional error on its part. This is not a case where the Tribunal was required to address the “what if I am wrong?” question. The Tribunal’s finding that the document did not exist was made with sufficient confidence (Minister for Immigration & Multicultural & Indigenous Affairs v Wu Shan Liang (1996) 185 CLR 259, Minister for Immigration & Ethnic Affairs v Guo& Anor (1997) 191 CLR 559). However, I cannot see that it was wrong for the Tribunal to also go on and consider the alternative. The caution that the Tribunal thereby exhibits, in my view, also strongly counters the applicant’s claim that it acted capriciously.

1. In all, as Mr Johnson submits there are three separate independent bases to the Tribunal’s decision to affirm the decision under review. First, there was no document of resignation from the CCP – the basis for the claimed fear of harm. Second, even if there was, there was no evidence that it had come to the attention of the Chinese authorities and even if it had, there was no evidence that the applicant would be adversely seen as a “political defector”. Thirdly, s.91R(3) of the Act obliged it to disregard this conduct. Any one of these bases is sufficient to ground the Tribunal’s ultimate decision. I cannot discern jurisdictional error in relation to any of the three bases.

2. In all, therefore, I cannot discern jurisdictional error in the Tribunal’s decision record. This application is dismissed.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: 

Date:  13 August 2007