SZJII v Minister for Immigration

[2007] FMCA 180

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJII v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 180

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in China – no reviewable error found – application dismissed.

Migration Act 1958 (Cth), s.424A
Federal Magistrates Court Rules 2001 (Cth)

Applicant: SZJII

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG2545 of 2006

Judgment of: Driver FM

Hearing date: 21 February 2007

Delivered at: Sydney

Delivered on: 21 February 2007

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents: Ms S McNaughton

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The Court directs that the name of the first respondent be amended to the “Minister for Immigration and Citizenship”.

2. The application is dismissed.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, in the amount of $5,000, pursuant to rule 44.15(1) and item 1(c) of Part 2 of Schedule 1 of the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2545 of 2006

SZJII

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”).  The decision was handed down on

   
   

   17 August 2006.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant had claimed political persecution in China.

2. The background to the applicant’s protection visa claims and the Tribunal’s decision on them are summarised in the Minister’s outline of written submissions filed on 12 February 2007.  I adopt as background for the purposes of this judgment, with necessary amendments, paragraphs 2 to 5 of those submissions.

Background

1. The applicant, a citizen of the People’s Republic of China, arrived in Australia on 12 August 2002[1]. 

   [1] Page 29 of the Court Book

2. On 30 August 2002, the applicant lodged an application for a protection visa, with annexures[2], with the then Department of Immigration and Multicultural and Indigenous Affairs pursuant to the Migration Act1958 (Cth) (“the Migration Act”). A delegate of the first respondent refused to grant a protection visa on 10 December 2002[3].  The applicant applied to the Tribunal for a review of that decision on or about 6 January 2003[4].  On 20 January 2004, the Tribunal affirmed the decision not to grant the applicant a protection visa[5]. The applicant sought judicial review of the Tribunal’s decision and on 9 March 2006, by consent, the Federal Magistrates Court  made orders quashing the Tribunal’s decision and remitting the matter to the Tribunal according to law. On 17 August 2006, the Tribunal, differently constituted, affirmed the decision of the delegate[6].  On 11 September 2006, the applicant applied for a review of the Tribunal’s decision, and on

   
   

   9 November 2006, he filed an amended application.

   [2] Page 1

   [3] Page 38

   [4] Page 46.2

   [5] Page 141

   [6] Page 216

Nature of applicant’s claim for refugee status

1. The applicant’s claims were set out in writing within the application at page 17 of the court book and further set out in an annexed statement set out in translation at page 32 of the court book. Further written documents containing his claims are set out in documents he sent to the Tribunal at page 46, page 78 and also in a reply to a s424A letter at page 193 of the court book. The applicant claimed to fear persecution on the basis of his political protest activities in China and Australia as a leader of an underground political organization named the Chinese Labor Party (“CLP”).

The Tribunal’s approach

1. The Tribunal accepted that the applicant was a national of the People’s Republic of China but was not satisfied as to the accuracy of his claims. At pages 237 to 241 of the court book, the Tribunal set out in some detail the inconsistencies in his evidence and why his explanation for these inconsistencies did not allay the Tribunal’s concerns. The Tribunal also noted that it did not place any weight on the letters produced by him from his wife and sister and why it had come to that view[7].  The Tribunal also set out its reasons for finding that it was not satisfied that the CLP operated in China[8]. The Tribunal concluded that it was not satisfied that the applicant had a well-founded fear of persecution because of his political opinion, real or imputed.

   [7] Page 239.1

   [8] Page 239.5

The present application

1. These proceedings began with a show cause application filed on 11 September 2006.  I find that the application was filed within time.  The applicant now relies upon an amended application filed on

   
   

   9 November 2006.  I gave directions in this matter on 10 October 2006.  I gave the applicant the opportunity to file an amended application and affidavit evidence.  The applicant took up the first opportunity but not the second.  He does, however, rely upon his one page affidavit filed on 11 September 2006 with his original application.  I accepted paragraph 2 of that affidavit as a submission.  I also accepted as evidence the book of relevant documents filed on 13 October 2006.

2. The grounds of review set out in the amended application are summarised and dealt with in the outline of submissions filed by the Minister.  I agree with those submissions and adopt with necessary amendments, paragraph 6 through to 10 of those submissions.

3. Ground 1 – failure take account of relevant material: the contents of the website of the Chinese Labor Party.  This ground must fail. The website arises in a particular context, as follows. The applicant submitted two documents which were attached to his reply to the s424A letter at pages 193ff. The two documents were referred to at page 193.5 of the court book as “attachment 1 and 2”. The English translations of attachment 1 and 2 appear at pages 206 and 208 – 210 of the court book. They are referred to by the Tribunal at pages 236.9 – 237.3 of the court book. The first of these documents is said to be sourced from “historical data from the website of the Chinese Labor Party”. The second document appears to have been signed by Mr Fang Yuan on 12 July 2006.

4. These documents were referred to by the Tribunal at page 239.5 of the court book in the following context:

   I am prepared to accept that such an organization as the Chinese Labor Party exist in Australia and that it is headed by Mr Fang Yuan. However, there is no evidence before me on which I am satisfied that the party has any material existence in China itself. While there is a single reference in the Ming Pao article submitted to the Tribunal by the Applicant to a Chinese Labor Party banner appearing in a May Day parade in Hong Kong in 2002 I am not satisfied that this is a sufficient basis for concluding that the Chinese Labor Party also operates in China.  There are not other independent reports as to the party’s activities. The two documents attached to the Applicant’s letter to the Tribunal of 21 July 2006 are not independent reports but are taken from the Chinese Labor Party website and appear to have been prepared by Mr Fang himself. I am not satisfied that any weight can be placed on the claims made in these documents about the party’s membership or role in China.”  [Emphasis added].

5. I accept the Minister’s contention that this approach to these documents was open to the Tribunal.  The Tribunal is not obliged to accept the veracity of all material placed before it by an applicant, whether or not they are from a website. The question of the accuracy and independence of the information it assesses is for the Tribunal, not for the Court: NAHI v Minister for Immigration [2004] FCAFC 10 at [11]. The Tribunal was entitled to require information independent of Mr Fang in order to be satisfied of the CLP’s membership or role in China.

6. Ground 2 – the Tribunal based its decision on irrelevant material: the Tribunal based its decision on the fact that the applicant had been assisted in his application by a registered migration agent when he had been assisted by no such person. This ground must fail. The applicant himself stated in his letter to the Tribunal of 9 July 2006 at page 195.5 of the court book:

   The migration agent I authorised was a registered agent. But her license can only prove the legality of her qualification. Migration agent was her occupation. It did not prove that she had high professional standard. In fact, the incompetence of this agent was the main reason for so many problems in my application for protection.

   The applicant is now contradicting his earlier assertion by claiming that he was not assisted by a registered migration agent.  It is for him to satisfy the Court by adducing evidence of that fact. No such evidence has been provided.

7. Ground 3 – the Tribunal’s reasoning in dismissing the contents of the letters from the applicant’s wife and sister was illogical, irrational and not based upon findings or inferences of fact supported by logical grounds.  This ground cannot be made out. The Tribunal set out in some considerable detail the reasons it was not satisfied that any weight could be placed on these letters at page 239.1 – 5 of the court book. This was in part based upon the near identical nature of the letters purportedly written by his wife and the wife of another applicant. The Tribunal was not satisfied as to the reason proffered by the applicant as to how this could have otherwise occurred.  It further stated at court book page 239:

   Taken together with my concerns about the accuracy of other claims advanced by the applicant I am not satisfied that any weight can be placed on the letters produced by him asserting that the Chinese authorities have questioned his family members about his political activities in Australia.

   This approach was open to the Tribunal.

Other issues

1. The applicant took the opportunity to make oral submissions at the hearing this afternoon.  In those oral submissions he augmented his amended application somewhat.  He made clear that he asserts that the Tribunal was biased.  He asserts that the presiding member displayed a bad attitude in particular to his witness Mr Fang.  I note in addition that in his affidavit the applicant accused the Tribunal of acting capriciously and arbitrarily.

2. There is, however, no evidence of bias by the Tribunal whether actual or apprehended.  The only record of what occurred at the Tribunal hearing available to me is the record of the Tribunal decision set out in the court book.  I reject the claim of bias and capriciousness.

3. Much of the applicant’s submissions were directed to an attack upon the merits of the Tribunal decision.  As I explained to the applicant that is beyond the scope of this proceeding.  However, a number of matters raised by the applicant orally need to be addressed.  One of those concerns a letter from the applicant’s sister which he submitted in support of his review application.  The letter appears on page 126 of the court book.  The applicant submits that this letter was not considered by the Tribunal.

4. On page 236 of the court book the presiding member records that the applicant claimed that his political activities in Australia had drawn him to the adverse attention of the Chinese authorities and sought to support that claim by reference to letters from his wife and sister stating that they had been questioned by the police.  This is the only reference in the Tribunal decision to the letter from the applicant’s sister. 

5. There were three letters from the applicant’s wife appearing on pages 82, 84 and 124 of the court book.  It appears that either the applicant or the Tribunal was mistaken in identifying the letter from the sister as a letter stating that they had been questioned by the police.  There was no such statement in the letter from the sister appearing on page 126 of the court book.

6. The Tribunal was concerned about the letters given the similarity of them to letters in another case.  The letter from the sister does not appear to fall into that class.  This leads me to think that the Tribunal was probably mistaken in dealing with the letter in that paragraph of its reasons.  If the letter from the sister was referred to in error there was no other reference to it.  I conclude that the letter was either overlooked or mistakenly referred to or intentionally not referred to.  On its face the letter provides no support to the applicant’s claims of having a well-founded fear of persecution for any political reason.  The applicant contends that the letter has a hidden meaning.  If so, it is too well hidden to be discernible.  Given that the letter provides no apparent support to the applicant’s claims I see no jurisdictional error should the letter have been overlooked by the Tribunal.

7. The applicant also contended that the Tribunal overlooked evidence of activities by the Chinese Labor Party in China and drew my attention to a Chinese language article reproduced on page 182 of the court book.  Ms McNaughton in her submissions put to me that this article is reproduced in English on pages 179 to 181 of the court book.  I accept that submission.  The article only refers to activities of the Labor Party in Hong Kong.  That was dealt with by the Tribunal and, accordingly, I reject the applicant’s submission.

8. The applicant also submitted that the Tribunal did not consider his submissions to the Tribunal blaming his migration adviser for omissions in his protection visa claims.  I reject that submission.  The applicant’s assertions were plainly considered by the Tribunal and dealt with in the decision record on page 240 of the court book.

9. The applicant submitted that the Tribunal erred in dealing with his failure to attend a demonstration in Sydney on 23 April 2005.  In that submission the applicant was mistaken.  What concerned the Tribunal was not so much the applicant’s failure to attend the demonstration but his ignorance of it when he was asked questions about it at the hearing by the Tribunal.  The Tribunal adequately dealt with that issue in its reasons on page 238 of the court book.

10. In his submissions in reply the applicant asserted that the Tribunal had failed to deal with corroborative evidence of a secret meeting he claims to have had in China.  That evidence appears on page 183 of the court book in the form of a declaration by a Chinese man living in San Francisco.  That declaration on its face provides a hearsay account of such an alleged clandestine meeting.  Neither Ms McNaughton nor I could find any reference to that document in the record of the Tribunal decision. 

11. It is apparent from what the Tribunal says about this aspect of the applicant’s claims that the Tribunal considered this particular claim to have been a recent invention.  The Tribunal relevantly deals with this issue on pages 240 and 241 of the court book.

12. After the declaration was submitted to the Tribunal the applicant was invited to comment on adverse information including the fact that the claimed meeting had not been referred to in the applicant’s protection visa claims.  The applicant’s response which appears on pages 192 to 199 of the court book (and in relation to this issue at pages 196 and 197) is referred to by the Tribunal in its reasons.

13. The presiding member noted that in that response the applicant had stated that at the time the protection visa application was completed he had no proof which he could offer to support his claims.  The Tribunal rejected that explanation.  Of course, the declaration was submitted later in support of the review application.  The applicant’s statement was not, therefore, a statement that at the time of the Tribunal hearing he had no evidence to support the claim. Neither did the Tribunal take the applicant’s statement as a statement that he had no evidence at any time to support the claim.

14. In the circumstances the silence of the Tribunal in relation to the declaration is curious.  However, in my view the silence is explicable given that the Tribunal formed the opinion that the claim was a recent invention. Having formed that view the Tribunal did not need to deal with the hearsay declaration because the applicant’s credibility had already been entirely rejected in relation to the claim.

15. I see no other jurisdictional error in the Tribunal decision.  The decision is, therefore, a privative clause decision and the application must be dismissed and I so order.  I will direct that the title of the Minister be amended to the Minister for Immigration and Citizenship.

16. Costs should follow the event in this case.  The Federal Magistrates Court Rules 2001 (Cth) and scale of costs in relation to migration proceedings prescribe an amount of $5,000 to be payable after a final hearing. The Minister seeks those scale costs. The applicant referred to his inability to pay such costs but that is not a reason for me to refrain from making a costs order. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application in accordance with rule 44.15 and item (1)(C) of Part 2 of Schedule 1 of the FederalMagistrates Court Rules in the sum of $5,000.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  26 February 2007