SZIYM v Minister for Immigration - [2006] FMCA 1871

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIYM v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1871

MIGRATION – Review of a Refugee Review Tribunal decision – no reviewable error – application dismissed.

Migration Act 1958 (Cth), ss. 424A , 476

Re MIMIA v ex parte Palme [2003] 216 CLR 212

Applicant:

SZIYM

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 1740 of 2006

Judgment of:

Turner FM

Hearing date:

13 December 2006

Date of last submission:

13 December 2006

Delivered at:

Sydney

Delivered on:

13 December 2006

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent:

Mr. Johnson

Solicitor for the Respondent:

Ms. E. Warner Knight of Australian Government Solicitor

ORDERS

That the application be dismissed.
That the applicant pay to the first respondent its legal costs in this matter fixed at the sum of $5000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1740 of 2006

SZIYM

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application of the Migration Act for an order that the respondents show cause why a remedy should not be granted in the exercise of the Court's jurisdiction under s.476 of the Migration Act (“the Act”) in respect of the decision of the Refugee Review Tribunal (“the Tribunal”) dated 24 April 2006.
The applicant was born on 28 March 1962 and is a citizen of the People’s Republic of China and is of Christian faith.
The applicant arrived in Australia on 4 July 2005 on a temporary business visa which had been issued in Beijing on 23 June 2005.
The applicant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 4 August 2005. In this application he claimed fear of persecution based on his religious beliefs (Court Book (“CB”) pp. 28-29).
On 4 October 2005 the Minister's delegate sent a letter to the applicant inviting him to attend an interview to be held on 13 October 2005 in regard to his application for a protection visa. The applicant did not attend that interview.
On 7 November 2005 the Minster's delegate sent a letter to the applicant advising him that the Department had received information from the Chinese authorities that they suspected that the applicant had used forged official documents and seals to obtain travel documents to Australia (CB 35-37).
By that letter the applicant was invited to submit written comments in regard to the content of the letter within 21 days, and the applicant was advised that if he did not respond to this request: “The Department may decide your protection visa application on the basis of the available information”.
No response to that letter was received by the Department. The application was refused by a delegate of the first respondent on

19 December 2005.
On 20 January 2006 the applicant filed an application for a review of the decision of the Minister's delegate with the Refugee Review Tribunal. The applicant was invited to attend the Tribunal hearing and give evidence by letter dated 27 January 2006 (CB 57).
The first two paragraphs of that letter state:
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.
We now invite you and any persons listed above to come to a hearing of the Tribunal to give oral evidence and present arguments in support of your claims. You can also ask the Tribunal to obtain oral evidence from another person or persons.
The applicant gave oral evidence before the Tribunal on 28 March 2006, at which time he maintained the claims made in his original protection visa application and also made the following claims (CB 75):
·The applicant claimed that he had been involved in corruption at a company where he was employed. The applicant claimed that from 2003 onwards he no longer wished to be involved in this corruption. In 2004 the government began to pursue the matter and the general manager of the company wanted the applicant to go overseas as he presented a threat to the company. The applicant stated that he believed the Anti-Corruption Bureau is now looking for him although they had not been looking for him before he left China.
·The applicant claimed that he had been arrested and detained for half a month because he had gone to the underground church.
·The applicant claimed also that he had been a member of the Chinese Communist Party since 1986 and they had said that as a member of the Chinese Communist Party he should not participate in an underground church. He said that for over 10 days he suffered a lot.
·The applicant also claimed he had been accused of being a Falun Gung practitioner but he denied this. He said that involvement in Falun Gung was regarded more seriously in Chen Yang than involvement in an underground church. He said that he spent a lot of money to be released and his fellow church members had also gone to the PSB (CB 76).
·The applicant said that he had not had further problems with the authorities in China after he had been released in 2004 (CB 77).
·He said that if the Chinese government was not looking for him he would go home. He confirmed that he claimed that they were looking for him because of his involvement in corruption at the Chinese Chemical and Petroleum Company. He said that if this matter was settled he would go home. The Tribunal noted that as indicated in the letter which the Department sent to the applicant in November 2005, the Department had received information indicating that forged official documents and seals had been used to obtain his travel documents to and from Australia.
·The applicant said that he had given the general manager his ID card and his photographs and the general manager had arranged everything else. He said this would have been easy for the general manager because he had contacts with the authorities. The Tribunal noted that the Chinese authorities were apparently aware that forged official documents and seals had been used and asked the applicant if the general manager had been arrested. The applicant said that he did not know but he thought that the general manager would have been able to handle this matter (CB 77).
The Tribunal indicated to the applicant that with regard to his claims based on his involvement in the underground church it had difficulty believing he was telling the truth. The Tribunal noted that the applicant had not provided much detail in regard to the church and although he claimed to have an interest in Christianity, he said that he was going to a church here in order to learn English (CB 77).
The Tribunal put to the applicant that, in regard to his claims based on his involvement in corruption, it did not appear that these claims bore the necessary relationship with one of the five Convention reasons. The applicant said that he just wanted to stay here for a period of time. He repeated that if he returned to China now they would kill him because they were afraid that they would give the authorities some information about them which would get them into trouble.
The Tribunal noted that it did not appear that they wanted to kill him for reasons of his race, religion, nationality or political opinion, or his membership of any particular social group for the purposes of the Convention. The applicant indicated that he understood.
The Tribunal handed down its decision on 18 May 2006. That decision affirmed the decision of the Minister's delegate refusing to grant the applicant a protection visa. In considering the applicant's claims the Tribunal accepted that (CB 77):
…as Beaumont J observed in Randhawa v The Minister for Immigration (1994) 52 FCR 437 at 451, ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for. However this should not lead to ‘an uncritical acceptance of any or all of the allegations made by suppliant’s. As the Full Court of the Federal Court (von Doussa, Moore and Sackville JJ) observed in Chand v The Minister for Immigration and Ethnic Affairs (unreported, 7 November 1997):,
‘Where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved". The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another’ ( citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281-282).
As the Full Court noted in that case, this statement of principle is subject to the qualification explained by the High Court in Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 576 per Brennan CJ, Dawson, Toohey, Guadron, McHugh and Gummow where they observed that:
‘in determining whether there is a real chance that an event will occur, or will occur for a particular reason, the degree of probability that similar events have or have not occurred for particular reasons in the past is relevant in determining the chance that the event or the reason will occur in the future’
If, however, the Tribunal has ‘no real doubt’ that the claimed events did not occur, it will not be necessary for it to consider the possibility that the findings might be wrong: Minister for Immigration & Multicultural Affairs v Rajalingham (1999) 93 FCR 220 per Sackville J (with whom North J agreed) at 241. Furthermore, as the Full Court of the Federal Court (O’Connor, Branson and Marshall JJ) observed in Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-9, there is no rule that a decision-maker concerned to evaluate the testimony of a person who claims to be a refugee in Australia may not reject an applicant's testimony on credibility grounds unless there are no possible explanations for delay in the making of claims or for any evidentiary inconsistencies. Nor is there a rule that a decision maker must hold a positive state of disbelief before making an adverse credibility assessment in a refugee case (CB 77-8).
The Tribunal stated that it preferred the applicant's evidence at the hearing, to the claims made in the statement accompanying the original application, to the extent of any inconsistency. The Tribunal did not accept that the applicant held questionable beliefs nor that he was arrested and detained for half a month because he attended an illegal underground church on around three occasions.
The Tribunal continued by asserting that “the applicant was unable to tell me much about the underground church he claimed to have attended. He did not know the name of the church and said he had gone there with his cousin. After much prevarication he said that he had sung songs which he had not understood. He said that his cousin told him a lot but he could not remember it. The applicant said he had been to a church in Ashfield but he was unable to name the church and said he had gone there to learn simple English”. (CB 78).
Having regard to the applicant's evidence before it at the hearing the Tribunal “did not accept that if the applicant returned to China now or in the reasonably foreseeable future that there was a real chance that he would worship at an underground church in China”. The Tribunal did “not accept that the applicant held a genuine Christian belief or even an interest in Christianity”. Further, the Tribunal did “not accept that there was a real chance the applicant would be persecuted for his religious beliefs”.
As the Tribunal did “not accept that the applicant was arrested and detained because he attended an underground church it likewise did not accept that there is a real chance that the applicant would be persecuted on the basis of any political opinion imputed to him, because he is or was a member of the Chinese Communist Party who attended an underground church”.
For the same reason the Tribunal did “not accept that the applicant would be persecuted for reasons of his membership of the particular social group of members of the Chinese Communist Party who have attended an underground church”.
The Tribunal continued stating that “at the hearing before me the applicant said that he had been involved in corruption in his capacity as Vice General Manager of the Shenyang branch of the Chinese Chemical and Petroleum Company. He said that the Anti-Corruption Bureau was looking for him and that he feared that those with whom he had been involved with corruption would pay money to have him killed because they were afraid that he would give the authorities some information about them” (CB 78)
As the Tribunal put to the applicant, “it does not appear that his fears on this account bear the necessary connection with one of the five Convention reasons. The Anti-Corruption Bureau is not looking for him for a Convention reason but because he was involved in corruption. Likewise, one of more of the five Convention reasons is not the essential and significant reason why those with whom he was involved in corruption will seek to prevent him from giving information to the authorities”.
The Tribunal continued:
There is no suggestion, for example, that either the Anticorruption Bureau or the applicant's associates impute any political opinion to him either on the basis of his involvement in corruption or on the basis of his ability to provide information to the authorities in relation to his former associates. The Tribunal did not accept that one or more of the five Convention reasons is the essential and significant reason for the persecution which the applicant fears arising from his involvement in corruption as required by para.99R(1)(a) of the Act (CB 79).
The Tribunal continued in paragraph 2 that it:
…accepted that the Chinese authorities suspect that forged official documents and seals were used to obtain the visa on which the applicant travelled to Australia. The Tribunal noted that it did not regard this information as information that is the reason or part of the reason for affirming the decision under review, as referred in s.424A of the Act. The Tribunal did not accept that one or more of the five Convention reasons is the essential and significant reason for any consequences which the applicant may fear arising from the use of forged official documents and seals to obtain his visa.
The Tribunal continued:
Once again there is no suggestion that the authorities in China impute any political opinion to him as a result of the manner in which he left China. Nor is there any suggestion that he will be treated differently or punished more severely than any other person suspected of having committed the same crime for reasons of any political opinion imputed to him, for example on the basis of his membership of the Chinese Communist Party.
The Tribunal stated that it was not satisfied that the applicant has a well founded fear of being persecuted for a Convention reason if he returns to China (CB 79). The Tribunal stated:
It follows that he is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Consequently the applicant does not satisfy the criterion set out in para.36(2)(a) of the Migration Act for the grant of a protection visa, nor is he the spouse or a dependent of a person who holds a protection visa as required by para.36(2)(b).
The Tribunal then affirmed the decision not to grant the applicant a protection visa.
The applicant then filed the application in this Court seeking an order that the respondent show cause why an order should not be granted in the exercise of the Court's jurisdiction under s.476 of the Migration Act 1958. In his application the applicant set out three grounds as follows:
1) The claims I put forward to the Refugee Review Tribunal were partially ignored. Some of the claims were not assessed by the Refugee Review Tribunal.
2) That before the Refugee Review Tribunal made its final decision it failed to advise me under what grounds it was going to refuse my review application after hearing. I was not advised what queries or questions or conflicts he was holding in his mind therefore I was not given a fair opportunity to comment on those matters.
3) The Refugee Review Tribunal member has not given my application a fair assessment therefore he has made judicial error on that point.
The applicant was invited by this Court to make further submissions in support of his application and has done so. The findings of the Court are as follows. The decision of the Tribunal is based on non-acceptance of the evidence of the applicant on issues fundamental to his claim.
In ground one the applicant claims the claims he has put forward to the Tribunal were ignored by it and that some of the claims were not assessed by the Tribunal. A reading of the decision shows that the claims were not ignored by the Tribunal and that most of them were rejected. The Court finds no error of law or denial of natural justice raised by that claim. The applicant has not demonstrated that any of his claims were not assessed by the Tribunal. The Tribunal made no error of law in reaching its decision and the applicant was not denied natural justice. The Court rejects ground one.
Ground two asserts that the Tribunal should have advised the applicant on what grounds it was going to reject his claim so that he could comment on those matters. The Court finds that the Tribunal gave the applicant a full opportunity to present his case. He was invited to attend the hearing and did so and gave oral evidence. He raised additional claims which were not in his written application and those claims were considered by the Tribunal. The Court finds that the applicant was given a fair hearing. The Tribunal, after considering the matters before it, rejected much of what the applicant claimed. The Tribunal was not required to conduct a further hearing or give the applicant an opportunity to comment on its findings save only with respect to any issue that was not obvious from the known material or the nature of the decision to be made. The Court refers to the decision in Re MIMIA v ex parte Palme [2003] 216 CLR 212. The Court finds not error of law or denial of procedural fairness and the Court rejects ground two.
Ground three alleges that the Tribunal did not give the applicant’s application a fair assessment. On the contrary, the Court finds that after assessing the material and evidence the Tribunal rejected many of the claims made, for the reasons set out by the Tribunal. The Court rejects ground three.
The Court also rejects the matters which the applicant is recorded CB 75 as saying that “he was raising matters which he had not dared to mention in the application”. The Tribunal considered those matters and rejected many of them as detailed in its decision. The Court finds that the Tribunal did not make any error of law or deny natural justice in relation to any of the matters raised by the applicant.
The Court finds that s.424A does not apply to the information that the applicant has used forged documents to obtain his travel documents for travel to Australia, as that information was not a reason or part of the reasons for affirming the decision under review. The Tribunal stated:
I note for the sake of completeness that I do not regard this information as information that is the reason or part of the reason for my affirming the decision under review as referred to in s.424A of the Act (CB 79).
The Court therefore rejects all grounds raised by the applicant and dismisses the application to it. As the decision of the Tribunal is a privative decision which has not been affected by jurisdictional error there is no jurisdiction under s.474 of the Act for this Court to interfere with that decision.

The application is therefore dismissed.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Turner FM

Associate: Dian Neligan

Date: 20 December 2006