SZJAJ v Minister for Immigration - [2006] FMCA 1624

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJAJ v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1624

MIGRATION – RRT decision – Chinese applicant claiming persecution under one‑child policy and for political activity in Australia – disbelieved by Tribunal – no jurisdictional error found.

Migration Act 1958 (Cth), ss.91R, 424A, 424A(1), 474(1), 476
Migration Legislation Amendment Act (No. 6) 2001 (Cth), Sch.1 Pt.2 cl.7

NAIS v Minister for Immigration & Multicultural & Indigenous Affairs(2005) 223 ALR 171

Applicant:

SZJAJ

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG1892 of 2006

Judgment of:

Smith FM

Hearing date:

23 October 2006

Delivered at:

Sydney

Delivered on:

23 October 2006

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms V McWilliam

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $3,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1892 of 2006

SZJAJ

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 7 July 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 June 2006 and given to the applicant on that day. At that time, as now, the applicant was held in immigration detention. The Tribunal affirmed a decision of a delegate made as long ago as 30 April 1997, which refused to grant a protection visa to the applicant on an application made on 11 September 1996.
The ability of the Tribunal to examine the delegate’s decision notwithstanding the long delay in the matter reaching the Tribunal arose because the Department was unable to establish actual notification of the delegate’s decision to the applicant and, due to the invalidity of a regulation, was unable to rely upon a deemed notification so as to establish that the applicant had lost his right of review. When the applicant was taken into detention in 2005, the decision was therefore re‑notified to the applicant, and he then acquired the right of review which he exercised.
A further delay occurred while the proceedings were before the Tribunal, due to the setting aside of an earlier decision of the Tribunal by a consent order in this Court. The reasons for that do not appear in the material before me, but I deduce that it was accepted that the earlier Tribunal failed to follow the requirements of s.424A(1). The present Tribunal took care to follow the requirements of that section, and I have not been able to identify any information which formed part of its reasons which it did not put to the applicant for written comment, where that was required.
The applicant arrived in Australia on a visitor’s visa in May 1996 after visiting a brother in New Zealand. His application was completed without any apparent involvement of a migration agent, and attached a brief statement explaining why protection was sought against return to the People’s Republic of China. The statement claimed that the applicant had been fined after he and his wife had three children after their first daughter. He and is wife were also threatened with sterilisation procedures, and his wife was eventually forced to have that operation. There were also added expenses in obtaining education for the children, and the applicant had sought to make a new life in Australia.
When applying for review in the Tribunal in July 2005, the applicant provided two further statements explaining claims in relation to persecution under the one child policy. This included a claim that “in 1997 my wife finally left home. Disappeared since. … I lost my wife”.
In a further statement sent to the Tribunal on 11 May 2006, a claim was made that in a telephone conversation with his eldest daughter in China, he was told that police had attended his home and her workplace, and had seized photographs and letters which he had sent from Australia. He claimed that this was the result of his participating in a global hunger strike while he was held at Villawood. He also claimed that: “I escaped from China without paying 150,000 yuan for penalty”, for breach of the one child policy, and that this was the reason for the continuing interest of the PBF.
The discrepancies between the applicant’s 1996 statement and his 2005 statements were put to the applicant in a s.424A letter. The applicant made a response which was taken into consideration by the Tribunal. The applicant also attended a hearing held by the reconstituted Tribunal on 2 June 2006.
In its statement of reasons, the Tribunal identified the claims made by the applicant to the Department, to the first Tribunal and to the reconstituted Tribunal. The Tribunal also questioned the applicant about his claims and set out his answers. The applicant’s claims in relation to participating in a hunger strike were:
Asked what he was afraid would happen to him if he returned to China the Applicant said he had already submitted information about this. He said he had telephoned his daughter in China on 1 May 2006 and was told that on 18 April 2006 representatives from the local Residential Committee and the police questioned his family in their house about letters he had sent them and took away letters and photographs. He said he suspected the police were interested in him because of his involvement in protests against the Chinese government while in immigration detention and the fact that his name was posted on the internet in connection with this activity. He suspected that if he returned to China he would be arrested.
I asked the Applicant if he had ever previously involved himself in political protest activity, either in China or in Australia. The Applicant said that in China he was only persecuted because of the one child policy. In Australia he had lived and worked peacefully, without any political involvement.
…
I asked the Applicant about his claims to have been involved in a hunger strike in immigration detention. The Applicant said it was organised by someone on about 9 March. It lasted 24 hours and those who participated wore a green symbol. The organizers asked them if they wished to take part and they all signed their names. The organizers said that once they signed their names they would appear on the internet and that they would be persecuted for this if they went home. Maybe the organizers had sent the names out on the internet. I asked the Applicant if he had ever seen his name on the internet. The Applicant said he had never used the internet. I asked whether he had ever previously been involved in protests or demonstrations against the Chinese government and he said he had not. I put to him that, under s.91R(3) of the Act I was required to disregard his conduct in Australia unless I was satisfied that he engaged in it otherwise than for the purpose of strengthening his claim to be a refugee. The Applicant said that as a result of the things that had happened to him he felt that China is very unfair in terms of human rights. There had been a few actions such as hunger strikes in the past in immigration detention, but he really felt he had to join this protest. He believed the question of having children should be up to individuals, but in China it was a government policy. He and his wife had been hurt and damaged by this policy, and the death of his daughter was indirectly caused by it. He had voluntarily joined the protest and had not realized that it would result in the harassment of his family. He assumed this was because of his record, and the authorities combined old and new issues.
The Tribunal set out in its statement of reasons its s.424A letter and the applicant’s response, but it is unnecessary for me to discuss these.
Under the heading “Findings and Reasons”, the Tribunal indicated significant reasons for not being satisfied that the applicant’s account of his experiences in China and the harm he claimed to have suffered was accurate. It said that it was prepared to give the applicant the benefit of some doubt by accepting that “he and his wife did breach the Chinese government’s one child policy by having three, or possibly four, children after the birth of their first child in 1985”. However, the Tribunal referred to significant discrepancies in his evidence. In particular, it contrasted his first statement which referred to fines and medical costs totalling 20,000 yuan with his more recent claims. These were that fines totalled 150,000 yuan, that the family was subject to additional fines and imprisonment, that their house was confiscated, and that he and his wife had been arrested in 1991, detained and tortured for a month.
The Tribunal was not satisfied with the applicant’s explanation for the difference “is credible”. It said that on the basis of the discrepancies, it was not satisfied that the more recent claims were true. The Tribunal said that its doubts about the truthfulness of his claims were “further increased” by the discrepancy in his account as to what happened to his wife. The applicant had told the Tribunal that in fact, contrary to his original letter, his wife had not disappeared but only had mental problems.
In relation to the claim that the applicant had been involved in anti‑government political activity in Australia which had drawn him to the attention of the Chinese authorities, the Tribunal was not satisfied as to any of these claims. It said:
At the hearing on 2 June 2006 I asked the Applicant about his involvement in this demonstration. His responses were notably vague and, concerning the posting of his name on the internet, he was able to say only that he had registered his name and had been told by the organisers of the protest that it would be posted and would lead to his persecution if he returned to China. He was unable to confirm that his name was ever placed on the internet. On the basis of his responses I am not satisfied that he ever involved himself in a protest action against the Chinese government while in immigration detention in March 2006 or that he ever lent his name to such an action.
In his letter to the Tribunal of 11 May 2006 the Applicant claims to have been told in a telephone conversation with his daughter on 1 May 2006 that she had been questioned by police about him while at school and that police went to his mother‑in‑law’s house, questioned members of his family and took away letters and photographs from him. He claims that this interest by the authorities was linked to his political protest activity in immigration detention and claims they have found his name on the internet. At the hearing on 2 June 2006 I asked the Applicant about this claimed telephone conversation and he told me that police and members of the Residence Committee had questioned her and other members of his family in his mother‑in‑law’s house. However, he was unable to remember anything about the police questioning his daughter at school earlier the same day, an issue which, if it did occur, could reasonably be expected to have been significant and dramatic for her as well as for him. Given his inability to remember this aspect of a telephone conversation with his daughter which is said to have occurred only one month before the hearing I am not satisfied that such a conversation took place or, if it did, that the Applicant’s account of it is accurate. I am not satisfied as to the truth of his claims that his daughter or other members of his family were questioned by police, or that police and other officials came to their house and took away letters and photographs.
The Tribunal also referred to the applicant’s delay in seeking protection after leaving China both in New Zealand and Australia. It said that it was not satisfied that the applicant’s actions in failing to seek protection earlier were “consistent with his claimed fear of persecution in China”.
Bringing together all of its concerns, the Tribunal gave the following summary of its conclusions:
Summary
On the basis of the information before me I accept that the Applicant and his wife breached the Chinese government’s one child policy. I accept that they were fined for this reason, that the Applicant was dismissed and that his wife was forced to undergo a sterilization operation. Whatever harm or hardship may have been caused to the Applicant and his wife by these penalties in the past, I am not satisfied that there is any reason to believe they will suffer harm in the future for their breach of the one child policy. I am not satisfied that the Applicant was fined 150,000 yuan or that this debt, or any other debt, is still owed by him to the Chinese government. I am not satisfied that he and his wife had their house confiscated or were ever arrested, detained, tortured and required to make a self‑confession. I am not satisfied that he is seen by the Chinese authorities as holding an adverse political opinion, either for breaching the one child policy or for involving himself in any protest activity while in immigration detention. I am not satisfied there is a real chance that he would be arrested or in any other way harmed by the Chinese authorities if he returned to China. I am not satisfied that he has a well‑founded fear of persecution because of his political opinion or for any other Convention reason should he return to China now or in the reasonably foreseeable future and I am not satisfied that he is a refugee.
I have carefully considered the reasoning of the Tribunal and am unable to identify any jurisdictional error affecting its decision.
The applicant was given the opportunity to file an amended application and written submissions but has not done so. He has received relevant documents from the Tribunal’s file and a referral for free legal advice. However, the only document which he has filed is his original application, which contains three grounds.
The first ground repeats a general claim to be at risk of persecution. This does not provide a ground of review by this Court.
The second and third grounds claim that the Tribunal failed to understand his claims and to consider relevant matters, and that the Tribunal refused him a visa “without any proper grounds and proper investigation”. However, no details of these claims are given and I am unable to identify any substance in them.
Today, the applicant made three points orally. The first point, as I understood it, was that his case should be decided upon the law as it stood in 1996 when he made his protection visa and not current law. However, the applicant said he was not a lawyer and that he could not identify any point in the Tribunal’s decision where incorrect law was applied.
For myself, I was not able to identify any inapplicable law applied by the Tribunal. The Tribunal did consider the provisions of s.91R, which it refers to in its reasons, in the transcript and in its description of the hearing, but that provision was applicable by reason of transitional provisions in the 2001 amending Act (see Migration Legislation Amendment Act (No. 6) 2001 (Cth), Sch.1 Pt.2 cl.7).
The applicant’s second point was difficult to understand, but I think he characterised the Tribunal’s conclusions in relation to his claim concerning the hunger strike, as a decision based on “personal opinion” and therefore legally defective.
However, it was the Tribunal’s duty to make a decision on whether it would accept that claim, which was presented without any corroboration. The Tribunal interviewed the applicant and has not accepted his claim for the reasons I have set out above. I consider that on the material before me, its conclusion was open to it as a matter of law.
The applicant’s third point sought to suggest that there were errors of procedure in his case by reason of the long delay between 1997 and 2005 when he was finally notified of the delegate’s decision.
However, I am unable to identify in this circumstance a jurisdictional flaw affecting the Tribunal’s decision. The decision to re‑notify the applicant when he was in detention assisted the applicant, rather than the converse, by giving him a second opportunity to present his claims to the Tribunal. This is not a case such as in NAIS v Minister for Immigration & Multicultural & Indigenous Affairs(2005) 223 ALR 171 where inordinate delay causes doubt as to whether genuine consideration has been given by the Tribunal to the applicant’s claims.
The long delays in the matter, and the acceptance by the Minister that there was imperfect notification of the delegate’s decision and a further procedural defect when the matter was first before the Tribunal, might give rise to humanitarian considerations in the applicant’s case, but these are not matters which the Court can itself address by way of remedy. The applicant’s remedies in that respect must lie with seeking discretionary decisions from the Minister.
For the above reasons, I have decided that the Tribunal’s decision is unaffected by jurisdictional error and is therefore a privative clause decision within s.474(1) of the Migration Act, and I must dismiss the application.

I certify that the preceding twenty‑six (26) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 6 November 2006