SZJQJ v Minister for Immigration - [2007] FMCA 429

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJQJ v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 429

MIGRATION – RRT decision – Chinese applicant fearing persecution for political opinions – adverse reference by Tribunal to failure previously to mention new claim – no breach of s.424A – no other jurisdictional error found.

Migration Act 1958 (Cth), ss.424A, 424A(1), 474, 476

NBKS v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 174

Applicant:

SZJQJ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG3245 of 2006

Judgment of:

Smith FM

Hearing date:

13 March 2007

Delivered at:

Sydney

Delivered on:

13 March 2007

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Mr S Free

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $4,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3245 of 2006

SZJQJ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed on 7 November 2006, which has been set down for a final hearing on whether the applicant is entitled to relief under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”) in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 14 September 2006 and handed down on 5 October 2006. The Tribunal affirmed a decision of a delegate made on 10 May 2006, refusing to grant a protection visa to the applicant.
The Court’s jurisdiction under s.476 is “the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution”, but the Court’s powers are confined by s.474, so that I do not have power to send the matter back to the Tribunal unless I am satisfied that the Tribunal’s 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 in January 2006, and on 20 February 2006 an application for a protection visa was lodged by him. The application disclosed no assistance being given, and presented no evidence in support of a claim to fear persecution if he returned to his country of nationality, the People’s Republic of China, other than a brief typed statement. In his statement, the applicant said:
In 1989, I was actively involved with the student movement to ask for freedom and democracy in China. … I went to Tiananmen Square, and supplied the students with food, drinks and other material required. I joined the demonstrations and organized other workers and carders to support the students movement and to be involved in the movement. … In the following months after the 89 Pro‑democracy movements, I was often called to security bureau for investigation. I was not allowed to work normally in that factory. Almost every week, I was required to attend the security bureau for reporting. I suffered serious mental and physical torment from the Chinese authorities. Early 2000, I was formally sacked by the company and I lost any job opportunity in Beijing.
The applicant said he opened a restaurant in late 2000, and encountered difficulties with officials “who have corruption problems”. Bribes had to be paid to local police and cadres. He also said:
In my spare time, I liked to go to parks for social activities. In early 2005, I often discussed my opinions about the one‑party dictatorship in China, I often discussed with friends about the bureaucracy, and corruption within the Chinese authorities. One day, police detained me from my restaurant. I was beaten and threatened. What they were worrying about was that their bad behaviours being disclosed in the public. They physically tortured me; their purposes were to threaten me so as to stop me from disclosing their behaviours. I applied for a passport through the help of a friend; I paid RMB 100,000 to get my passport ready for me to leave China.
A delegate refused the application on the grounds that, considering the passage of time, the applicant would not face a real chance of being persecuted on the basis of active participation in the pro‑democracy movement in 1989. The delegate was not satisfied that the applicant had been persecuted by corrupt Chinese police in early 2005 as claimed, because the applicant had been able freely to obtain a passport and leave China through Beijing airport.
On appeal to the Tribunal, the applicant attended a hearing to which he was invited by the Tribunal on 26 July 2006. The Tribunal gave a description of the hearing in its statement of reasons. A transcript has not been tendered by any party, and I have no reason not to accept the Tribunal’s description.
The Tribunal thought that the picture presented by the applicant at the hearing was significantly different to that given in his written statement in relation to at least two matters. First, the applicant presented his involvement in the pro‑democracy movement in a different way, claiming a continuing involvement in demonstrations concerning workers’ rights which he had not previously suggested as the reason for his harassment by authorities. The Tribunal also thought that the applicant gave a different explanation for his claimed detention in 2005, because he linked the detention with his earlier involvement in workers’ rights demonstrations and continuing political activities while he operated his restaurant.
These two matters were raised with the applicant in the course of the hearing, and also were presented to the applicant for written comment in a s.424A letter which the Tribunal gave to the applicant at the end of the hearing.
In response, the applicant wrote to the Tribunal a letter received on 9 August 2006, in which he maintained a claim that he had “continued to organize workers for activities for asking for freedom and democracy, and against corruption including demonstrations”. For the first time, the applicant also claimed a period in detention prior to his sacking. He said: “in 1993, I was first sent to prison, I was there for 3 months. After released, I was often called for inquiry by police”. The applicant also maintained that he had continued, after operating the restaurant, to be involved in the pro‑democracy movement and to have held meetings at his restaurant which incurred the attention of police, leading to his 2005 detention.
In its statement of reasons under the heading “Findings and Reasons”, the Tribunal stated its opinion:
The applicant claims that he will be persecuted for reason of his political opinion if he returns to the PRC. However, he has provided different reasons in the written claims presented with his initial application, and in the oral evidence given at the hearing, for the circumstances in which he claims to have come to the adverse attention of the authorities.
The Tribunal examined the two matters that had been raised in its letter, and it said that it did not consider that his response to its letter had provided “a satisfactory explanation” for the discrepancies. The Tribunal also commented upon its general impression of the applicant’s evidence at the hearing:
I found the applicant to be an unimpressive witness in other respects. He did not bring his passport to the hearing despite specifically being asked to do so. He was evasive about his address. Most significantly, his answers to questions about the manner in which his protection visa application were completed can, in my view, only be described as evasive. I formed the impression that the applicant was not willing to assist the Tribunal to obtain the information necessary to make a proper decision about his application.
The Tribunal then specifically referred to the new claim raised in the response to the Tribunal’s letter:
In his written response to the s.424A letter the applicant made yet another new claim, stating that he was detained for three months in 1993; he had not mentioned this previously. In his oral evidence he had claimed that he was detained only in 2001 and 2005. In my view, this further undermines the credibility of the applicant.
The Tribunal’s general conclusion was:
In view of the inconsistencies referred to above between the claims made by the applicant at different times, for which he has not provided any satisfactory explanation, I do not accept that the applicant has told the truth about the circumstances in which he departed from the PRC. I am therefore unable to be satisfied that he has a well founded fear of persecution for the reasons claimed either in his protection visa application or before the Tribunal, or for any other Convention related reason.
I have considered the reasoning of the Tribunal and its procedures and am not satisfied that the Tribunal’s decision was affected by any jurisdictional error.
At a show‑cause hearing which I conducted on 6 February 2007, I identified a possible concern in relation to the Tribunal’s reasoning where it referred to the “yet another new claim” as to a detention for three months in 1993 as a matter which “further undermines the credibility of the applicant”. I invited the Minister to present submissions on whether this revealed a failure to follow s.424A(1), notwithstanding that this point had not been identified in the applicant’s application.
I have now been assisted by submissions from counsel for the Minister, and by discussion in a recent Full Court case of the jurisprudence in relation to references by Tribunals to “omissions” or “gaps” in documents presented by an applicant (see NBKS v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 174). An issue in relation to s.424A(1) often arises when new claims are made which were not made in statements provided in support of visa applications to the Department, as to whether the Tribunal relied upon information taken from that original statement which must be put to the applicant in a s.424A notice.
Clearly, distinctions have to be made which at times can be quite fine, and these are illustrated in the different reasoning in NBKS of the majority justices, Weinberg and Allsop JJ, and of Tamberlin J in dissent. I find Weinberg J’s analysis to be of particular assistance. His Honour distinguished cases where the absence of information in a document is referred to by a Tribunal merely to show a “gap” in the sequence of facts presented by the applicant. This may give rise to “an observation made in relation to a failure to give information or make a claim”, which forms part of an assessment of an applicant’s credibility. In such a case, the Tribunal’s assessment of the significance of the delay in making the new claim, does not use information taken from an earlier document which may be required to be put to the applicant under s.424A(1).
The distinction drawn by Weinberg J, with reference to previous authorities, is with the taking of information from the document which amounts to “a positive use of information”, even though it is the positive use of information as to the absence of something from the first statement. In NBKS, the majority justices thought that the Tribunal had used the omission of reference to a matter in a doctor’s report as supporting a positive conclusion that the doctor did not hold an opinion on a relevant matter. There was therefore positive use of information from the fact of the omission, and a s.424A(1) invitation was required.
This seems a logically valid distinction, albeit a fine one. As I have indicated, I believe that authorities binding upon me require me to apply it. In relation to a Tribunal’s reasoning suggesting recent invention, it requires consideration of whether the Tribunal referred to the absence of any earlier reference by an applicant to the new information only to note the passage of time before it was raised, or whether the Tribunal drew a positive inference that the information is untrue because it was omitted from earlier evidence. The latter reasoning requires a s.424A(1) notice, but the former does not.
In the present case, the Tribunal said that the 1993 detention was a matter which the applicant “had not mentioned … previously”, including in his oral evidence to the Tribunal. Implicitly, it was also referring to the absence of reference to the claim in the information given to the Department. However, in my opinion, its reference to the novelty of the claim made only a point as to the sequence of presentation of the new claim, which caused the Tribunal to disbelieve the claim and also to conclude that the new claim “further undermines the credibility of the applicant”. The Tribunal’s reasoning drew only from an assessment of the timing of the applicant’s claim in relation to his 1993 detention, and in my opinion did not rely upon positive information drawn from the visa application statement. I do not consider that the Tribunal was obliged to serve a further s.424A letter on the applicant arising from the further information which he presented in his letter received by the Tribunal on 9 August 2006.
I now turn to consider whether any other ground of jurisdictional error is shown to affect the Tribunal’s decision.
The applicant’s application to the Court contains some unparticularised grounds of review, which have been repeated in an amended application. Their numbering is imperfect. I think in fact the applicant presents eight propositions:
1.The Tribunal had bias against me.
2.The Tribunal did not fully consider the information and documents provided for my application.
3.The Tribunal failed to consider my application according to S91R of the Migration Act 1958.
4.The Tribunal’s satisfaction that I am not a refugee was not based on a rational and logical foundation for this belief.
5.The Tribunal did not provide me adequate particulars of the independent information for the consideration of my application.
6.The Tribunal relied upon irrelevant material.
7.The “country information” relied upon by the Tribunal was out of date and/or based on hearsay.
8.The Tribunal failed to assess the chance of my persecution on my return to China because of my political opinions.
In my opinion, there is no substance to any of these contentions. The contention that the Tribunal “had bias against me” is not supported in any material before me. The applicant’s oral submissions referred to his belief that the Tribunal had decided against him because he had not been “polite” at the hearing. However, I can find no suggestion in the evidence that the Tribunal formed such an opinion, and certainly not that any irrelevant weight was given to such an opinion or that it might appear to have influenced the Tribunal’s decision.
The applicant also said that he believes that the Tribunal failed to understand his claims, and in particular to understand that the inconsistencies arose from imperfections of communication rather than lack of credibility. However, this point does not establish bias, nor, in my opinion, does it show any other ground of jurisdictional error. It challenges no more than the Tribunal’s factual assessment of his evidence.
I am not persuaded by anything in the material that the Tribunal “did not fully consider the information and documents provided for my application”. As I have indicated above, the Tribunal carefully considered the applicant’s written statements and his oral evidence. In my opinion, the fact that the Tribunal did not accept the applicant’s claims to have grounds for fearing persecution does not show that it did not consider those claims.
There is no substance to the contentions that the Tribunal failed to apply relevant sections of the Migration Act, nor that it did not provide a rational and logical foundation for its conclusion.
As I have indicated above, I have considered a possible argument for the applicant in relation to a failure to follow s.424A(1), and I do not consider that that argument can succeed for the reasons I have explained.
The Tribunal did not refer to any irrelevant material, nor did it rely upon any country information at all.
In my opinion, the Tribunal did assess the chance of the applicant’s persecution if he returned to China.
I therefore do not consider that any of the grounds in the application are made out. For the above reasons, I consider that I must dismiss the application.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 3 April 2007