SZJQS v Minister for Immigration
[2007] FMCA 1202
•18 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJQS & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1202 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – whether failure to comply with s.424A or 425 of the Migration Act 1958. |
| Migration Act 1958 (Cth) ss.91R, 414A, 424A, 425 |
| Applicant A & Anor v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225 SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 |
| Applicant: | SZJQS & SZJQV |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3274 of 2006 |
| Judgment of: | Barnes FM |
| Hearing date: | 18 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 18 July 2007 |
REPRESENTATION
| Applicants: | In person |
| Counsel for the Respondent: | Ms V McWilliam |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The name of the first respondent be changed to ‘Minister for Immigration and Citizenship’.
The application is dismissed.
The applicants shall pay the costs of the first respondent fixed in the sum of $4,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3274 of 2006
| SZJQS & SZJQV |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 17 October 2006 affirming a decision of a delegate of the first respondent not to grant the applicants protection visas. The applicants, a husband and wife, are citizens of the People's Republic of China who arrived in Australia at different times in 2006. They applied for protection visas in May 2006.
No specific Convention claims were made by or on behalf of the applicant wife. Hence the fate of her application depended on the outcome of the applicant husband’s application. For convenience future references to the applicant are references to the applicant husband, unless otherwise specified.
In connection with the protection visa application, the applicant provided a statutory declaration setting out his claims. He claimed first that he had a furniture shop that he had to close in 2002 “mainly for the reason that I could not get rid of those corruptive officials” such as officials from named bureaus who he said always gave him troubles forcing him to make furniture or wooden products but not paying him, “making” him undertake a heavy burden of taxes and levies and asking him to “donate” money with various excuses.
From 2003 he worked primarily as a labour contractor. In mid-2004 he was pressured by a police officer (who I will refer to as a Mr W) to undertake carpentry work for a new restaurant owned by Mr W’s friend, Mr Z. He claimed that Mr W had asked him to do carpentry work in the past but not made any payment for it, that he pressured him and said not only that Mr Z was a rich person with a lot of money but also that the applicant would get into trouble if he refused to undertake the project.
The applicant claimed that the proposed restaurant and nightclub project was not a small project. He organised 23 carpenters and completed the project at the end of June 2005. He claimed that except for a ten per cent fee paid in advance, Mr Z refused to pay. He initially complained that the company suffered financial hardship and promised to make a later payment. However the applicant claimed that Mr Z continued to refuse to pay after the restaurant and nightclub opened and that he was under pressure from the carpenters and their families.
The applicant claimed that on or about 21 January 2006 Mr W and “many policemen” broke into his house with a search warrant. They told him that the PSB had received a report from someone that he had hidden illegal propaganda materials in relation to Falun Gong. The applicant claimed that “obviously” they found nothing in relation to Falun Gong, but that they took away all of his commercial documents, including the contract agreement with Mr Z.
Subsequently, Mr Z denied everything about the contract fee that was owed, stating that he would make payment only when the applicant could show him the contract agreement. The applicant sought return of the document from Mr W but was told that the police had not taken such a commercial document when they searched the applicant’s home. The applicant eventually realised “it was a conspiracy” and that Mr Z had never intended to make the payment.
The applicant claimed that he then organised the carpenters to go to the restaurant to ask Mr Z to pay them. He continued to visit Mr Z and sought help from the authorities which was refused in the absence of documentary evidence.
He claimed that on or about 5 February 2006 “in order to produce social impact against Mr Z… and those corruptive officials like Mr. W.. and also for the purpose to widely get public support” he organised the carpenters and their families to set up a roadblock in front of the entrance to the restaurant and nightclub asking Mr Z to make the payment. Soon after Mr W and other police surrounded them, forced them to remove the roadblock and drove them away.
The applicant claimed that on the night of 5 February 2006 while he was in discussion with friends, Mr W and policemen came to his home again. He was denounced as planning anti-government political demonstrations and detained at the PSB for one week, during which time he was beaten and forced to sign a confession that he had planned and organised anti-government political demonstrations. He also claimed that he was warned not to “seek any appeals” or he would be subject to severe punishment. He claimed that after his release Mr W and policemen continually gave him troubles because he was regarded as a person with serious anti-government political ideologies who had never given up protests against the government and that the police came to his home, questioned him, monitored his daily activities and that sometimes he was required to report to the PSB. He claimed that he left China with the help and support of friends to escape persecution.
The application was refused by a delegate of the first respondent and the applicant sought review by the Tribunal. He attended a Tribunal hearing at which he and his wife gave evidence. He provided the Tribunal with a copy of a document which he claimed was a warrant of arrest issued on 5 February 2006.
In its reasons for decision the Tribunal set out and summarised the claims made by the applicant both in connection with his protection visa application and to the Tribunal. It detailed what occurred in the hearing on 27 September 2006. I will return to aspects of that evidence in discussing the grounds relied on in these proceedings. The Tribunal set out independent country information, in particular in relation to corruption in the People's Republic of China.
In its findings and reasons the Tribunal accepted that the applicant was a national of China. It accepted that when he was managing his business prior to 2003 he was approached by various officials who sought donations or withheld payments for the work he performed. However, the Tribunal did not accept that such conduct amounted to persecution within the meaning of section 91R of the Migration Act 1958 (Cth). It had regard to his statement (and it is apparent that this is a reference to a statement made by the applicant during the hearing) that despite the corrupt officials’ actions he had enough money to support his family, that his shop was well known and that he had many customers. On that basis the Tribunal found that the work performed by the applicant for the “corrupt officials” did not give rise to a significant economic hardship that threatened his capacity to subsist or to earn a livelihood.
It also found that any fines the applicant was required to pay (as he had claimed in connection with his protection visa application) did not remove his ability to earn sufficient funds to support himself and his family. In that respect it had regard to his evidence that he had been able to save a sum of money to enable his son to study in Australia. The Tribunal had recorded that in the hearing the applicant had stated that his son was a student in Australia and that he gave him about $AUS2,000 in April 2006 and prior to that gave him about $AUS15,000. The Tribunal found that the request for payment of fines did not amount to serious harm for the purposes of the Migration Act 1958 (Cth).
The Tribunal accepted the applicant’s claim that he performed work for Mr Z who was introduced to him by Mr W who was employed by the local police. The Tribunal also accepted that the applicant was not paid the full fee for the work that he performed and that he attempted to obtain this money by attending Mr Z’s premises on a number of occasions and demanding money. However, the Tribunal did not consider that withholding money for work performed would necessarily amount to persecution. It found for the reasons it had stated in relation to the earlier claims that in this instance the withholding of funds by Mr Z for the work the applicant carried out for him did not amount to persecution.
The Tribunal accepted the applicant’s claims that Mr W and other police visited his home in January 2006 for the purpose of removing commercial documents from him and his evidence that he was never involved in Falun Gong activities, never practised Falun Gong and never had Falun Gong material at his home, that Mr W was aware of this lack of involvement in Falun Gong, that it was a conspiracy and that Mr W’s sole purpose in visiting the home was to remove the commercial documents relating to the work the applicant performed for Mr Z.
Based on this evidence, the Tribunal found that the applicant did not have the religious belief and that he was not a member of a particular social group through any involvement in Falun Gong, that the authorities were aware of his lack of involvement and hence did not impute to him any political opinion or religion or characteristics identifying him as a member of a particular social group based on any alleged involvement with Falun Gong. Rather, the Tribunal found, based on the applicant’s own evidence, that the police visit and the attendant harassment “resulted from the commercial dispute between the applicant and Mr Z…” and that the events in January 2006 did not relate to any of the bases identified in the Refugees Convention. The Tribunal concluded in relation to those events that there was no causal connection between the treatment of the applicant and any of the bases identified in the Convention.
The Tribunal then considered the events of February 2006. It set out, with apparent acceptance, the applicant’s claim that he attended Mr Z’s business premises with the carpenters and their families and broke the door of the premises, that Mr Z complained to the police and that the police dispersed the crowd. However the Tribunal did not consider the actions of the police to be Convention-related. It had regard to the applicant’s confirmation that he was engaged in a criminal activity and had destroyed private property and also set up a roadblock with the other unpaid workers. It found that in responding to these actions and dispersing people engaged in a criminal activity it could not be said that the police acted otherwise than in accordance with acceptable legal norms. It found no discriminatory conduct in the police actions (see Applicant A & Anor v MIEA (1997) 190 CLR 225 at 233 Brennan J) and concluded that dispersing the group of which the applicant was a member did not constitute persecution within the meaning of the Refugees Convention and was not done for a Convention reason.
In relation to the applicant’s claims about what occurred thereafter, the Tribunal did not accept his claim that on the night of 5 February 2006 the police attended his home and that he was subsequently detained and mistreated. It found the applicant not to be a credible witness and that his claims with respect to detention and harm were vague and general and lacked any degree of particularity or supporting evidence. It was not satisfied that the applicant was detained and physically harmed by the authorities as claimed. For the same reason it did not accept the applicant’s claim (which it found to be vague and unsubstantiated) that he was thereafter required to report to the police.
The Tribunal addressed the document which purported to be an arrest warrant. It stated that when questioned about apparent anomalies in the warrant and the absence of information identifying him the applicant had become evasive and ultimately admitted that he was not aware whether the warrant was genuine. He told the Tribunal that it was the warrant used by Mr W. The Tribunal did not accept that the applicant was detained as claimed and also did not accept that the arrest warrant was a “genuine document”, finding it significant that the applicant himself was uncertain about its authenticity.
The Tribunal then considered the applicant’s claims that thereafter he was harassed by the police and asked not to engage in anti-government activities and that he was told that the roadblock may have constituted an anti-government activity. The Tribunal accepted that the applicant may have been so informed by the police, but found that the authorities were enforcing a generally applicable law and that there was no element of discrimination with respect to the applicant. However, the Tribunal rejected the applicant’s claims that he had signed a statement indicating that he was involved in anti-government activities, that he continued to be harassed and that he was required to report to the police after his release from the claimed detention.
It did not accept that the applicant was of any continuous interest to the Chinese authorities, finding it significant that he could depart the country freely, whereas independent country information indicated that if he was of interest to the authorities he would have been likely to face a greater level of difficulty in departing China. The Tribunal found that the applicant was of no interest to the Chinese authorities and was unlikely to be subject to persecution if he returned to China now or in the reasonably foreseeable future.
In relation to the applicant’s claims about corruption of officials, the Tribunal noted that there were avenues of complaint available, but found that the applicant was not concerned with Mr W’s corrupt activities but rather with the non-payment of money. The fact that the authorities refused to investigate his complaints due to the absence of supporting documents was said to support this finding. Hence it found that the applicant did not effectively seek state protection against corrupt officials such as Mr W. Further, it could not be satisfied that, had he done so, effective protection would not have been offered to the applicant, having regard to independent information confirming that the Chinese authorities were eager to reduce official corruption and took extensive steps in so doing.
The Tribunal considered the possibility that opposition to official corruption or expression of such opposition may fall within the description of political opinion, but found that in this case the applicant’s claims of persecution did not arise from such opposition or expression of opposition to official corruption. It had regard to the fact that the applicant claimed he suffered harm as a result of a commercial dispute and that the actions of corrupt officials were directed at gaining direct financial benefit from him. It did not accept that the applicant had expressed his opposition to the corruption of officials, as distinct from non-payment. Finally, it did not consider, given the government initiatives to stamp out corruption, that “exposure of corrupt practices could be perceived to be a challenge to state authority or an act inspired by political opinion”.
The Tribunal also referred to the evidence of the applicant’s spouse which it found to be unhelpful. It concluded that after considering the applicant’s claims separately and on a cumulative basis, if he returned to China he would not face a real risk of persecution for a Convention reason. It found that any fear of persecution he faced was not well founded and was not due to a Convention reason. Hence, it was not satisfied that he or his wife (who made no specific Convention claims) were persons to whom Australia had protection obligations.
The applicant sought review by application filed in this Court on 10 November 2006. He relies on an amended application filed on 3 April 2007. The amended application contains three grounds. The first is that the Tribunal failed to comply with its obligation under section 424A(1) of the Migration Act 1958 (Cth). Under section 424A(1) the Tribunal must give to the applicant for comment particulars of any information it considers would be the reason or a part of the reason for affirming the decision under review, subject to specified exceptions in subsection (3).
The particulars of ground 1 in the amended application refer to three different categories of information. This ground takes issue with the Tribunal understanding of the applicant’s claims and the Tribunal conclusions. It is contended that the Tribunal’s account of aspects of the applicant’s claims in its reasons for decision was not in fact “the information” that the applicant had given to the Tribunal and that the Tribunal had misstated or misunderstood such information. This contention is made by reference to what are said to be the claims made by the applicant, being those set out in the statutory declaration accompanying the protection visa application. It is also claimed that the Tribunal was obliged under section 424A(1) to provide the information to the applicant, ensure he understood why it was relevant and invite him to comment on it.
The first particular takes issue with what is said to be the Tribunal’s conclusion based on “information” that the applicant “stated that despite corruptive officials asking him to perform work without pay he had enough money to support the family. His shop was well known and he had many customers”. This is said to be the reason for the finding that “the work performed by the applicant for the ‘corruptive officials’ did not give rise to significant economic hardship that threatened the applicant’s capacity to subsist or earn a livelihood …” Further it is claimed that the Tribunal considered information that “the applicant was able to save a sum of money to enable his son to study in Australia …” as the reason for a finding that the request for payment of fines did not amount to serious harm for the purposes of the Act …”
The applicant claimed first that this information was not information that he had given to the Tribunal. It was claimed that the information given by the applicant as to why he had to close his furniture shop was that contained in the statement accompanying his protection visa application.
It is apparent from the whole of the Tribunal reasons for decision, that in referring to statements by the applicant and the applicant’s ability to save a sum of money to enable his son to study in Australia, the Tribunal was referring to the evidence given by the applicant in the Tribunal hearing, as set out in the decision. The Tribunal then addressed the evidence before it, consisting not only of the evidence given by the applicant in connection with the protection visa application but also the evidence given at the hearing which elaborated on or clarified his claims in relation to these events.
There is nothing in the material before the Court to establish that the Tribunal misstated or misunderstood the claims made by the applicant in relation to the business he operated prior to 2003. The only evidence before the Court of what occurred in the Tribunal hearing is the Tribunal’s reasons for decision. The Tribunal’s statement of the evidence given by the applicant is consistent with its statement of what occurred in the hearing.
Insofar as the applicant takes issue (in this and in the subsequent particulars to ground 1) with either the fact that his evidence failed to satisfy the Tribunal that there was persecution or a Convention nexus or with the fact that in some respects the Tribunal did not believe his claims, as Finn and Stone JJ observed in VAF v MIMA (2004) 206 ALR 471 at 476 to 477 (at [14]):
[Information] does not encompass the tribunal’s subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.
I note that in SZBYR v MIAC [2007] HCA 26 at [18] Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ referred with approval to these observations of Finn and Stone JJ in VAF and also stated:
… if the reason why the Tribunal affirmed the decision under review was the Tribunal’s disbelief of the appellants’ evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of paragraph (a) of section 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants’ evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute “information”.
The Tribunal accepted the applicant’s claims in his protection visa application and at the hearing in relation to events prior to 2003. However it was not satisfied that the conduct complained of amounted to persecution within s.91R of the Migration Act. This is not an instance in which the Tribunal disbelieved the applicant based on inconsistencies in claims made at various times. It is relevant to note that, as their Honours continued after citing VAF:
If the contrary were true, s424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process.
It is not, however, necessary in this instance to address the question of the extent of the application of s.424A to “inconsistencies” (see SZBYR at [18]) and cf SZEEU v MIMIA & Anor (2006) 230 ALR 1). There is no suggestion in the account of the Tribunal hearing or in the reasons for decision that the Tribunal relied on inconsistencies between the claims made in the applicant’s protection visa application and at the hearing in a manner which might give rise to an obligation under section 424A(1).
Insofar as the applicant complained – and he repeated this contention in oral submissions – that the Tribunal should have let him know its reasons for making the decision and let him have a chance to rebut those reasons based on all the information relied on, such a claim does not established jurisdictional error, as the Tribunal’s subjective reasoning process is not “information” within section 424A(1) of the Act.
I do not understand the applicant’s claim to be a claim that the Tribunal erred in failing to put to him for comment aspects of information in his claims made in connection with the protection visa application. Rather, the applicant’s complaint in this respect is that the Tribunal considered other information (which the Tribunal stated that he provided at the Tribunal hearing) and that such other information should have been put to him. However under section 424A(3)(b), the obligation in section 424A(1) does not apply to such information as it is information that the applicant gave for the purpose of the application.
The second particular to ground 1 faces the same difficulties as those referred to above. The application suggests that the Tribunal’s view that “withholding money for the work performed” will not “necessarily amount to ‘persecution’” was the reason for refusing his claims. However it is contended that he claimed in connection with the protection visa application that the work for Mr Z was not a small project, that 23 other carpenters were organised by him and involved in the claim and that the visit to his home in January 2006 was a conspiracy, the sole purpose being to remove commercial documents.
The applicant again takes issue with the Tribunal reasoning process and to some extent seeks merits review which is not available in this Court. It has not been established that the Tribunal misstated or misunderstood his claims. Rather, it summarised, and indeed accepted, that the events in relation to the commercial contract had occurred as claimed by the applicant. The fact that the Tribunal also found that withholding money for work performed would not necessarily amount to persecution forms part of the Tribunal reasoning process and is not a matter subject to the obligation in s.424A(1).
The Tribunal findings in relation to these aspects of the applicant’s claims were more detailed than set out in the particulars. The Tribunal referred to its earlier reasons in finding that withholding money for work performed did not necessarily amount to persecution, by reference to language that is to be found in paragraphs 91R(2)(d) and (f) of the Migration Act. The Tribunal also considered the visit to the applicant’s home in January 2006, but found that it related to the commercial dispute as did attendant harassment. In particular it found that such events did not relate to any of the bases under the Convention and that there was no causal connection between the treatment of the applicant and any of the bases identified in the Convention. It properly had regard to whether the conduct in question constituted serious harm to the applicant as required under section 91R(1)(b) and addressed factors in section 91R(2). The Tribunal reasoning in this respect is not information that gives rise to an obligation under section 424A(1) of the Act.
The next particular takes issue with the Tribunal’s statement that the applicant “confirmed that he was engaged in a criminal activity and had destroyed private property. He had also set up a roadblock with other workers who had not been paid”. The application contends that this was the reason or part of the reason for the finding that “the dispersal of the group of people of which the applicant was a member did not constitute ‘persecution’ within the meaning of the Convention and was not done for a Convention reason”. The applicant claims that the information he gave the Tribunal consisted of the claims made in connection with his protection visa, not only about the events at the dance hall but also his claims about subsequent detention, harm and mistreatment after release.
Again, there is nothing in the Tribunal’s reference to the applicant’s confirmation that he was engaged in a criminal activity, destroyed private property and set up a roadblock that is inconsistent with his earlier claims or not supported by the Tribunal account of what occurred in the hearing. Insofar as the applicant takes issue with the Tribunal’s reasoning towards its conclusion that dispersal of a group of people engaged in a criminal activity did not constitute persecution and was not done for a Convention reason, that does not establish that the reasoning process constitutes information within section 424A(1). Nor has it been established that the Tribunal misstated or misunderstood the claims that the applicant made in this respect.
Further, the fact that, for the reasons that it gave, the Tribunal did not find the applicant’s claims in relation to subsequent detention and mistreatment to be credible does not establish that the Tribunal misstated or misunderstood those claims in a manner constituting jurisdictional error. Credibility is a matter for the Tribunal and its findings in this respect were open to it on the material before it for the reasons that it gave. In particular, it was not necessary, contrary to the contention in this ground, for the Tribunal to put to the applicant its conclusions in relation to these claims pursuant to section 424A of the Act.
Finally under this ground, the applicant contended that he could cite a lot of other examples of the Tribunal’s unfair decision and non-compliance with section 424A and that his claims had been misstated or misunderstood by the Tribunal. However he did not do so and there is no evidence before the Court of any such examples. I note that no transcript of the Tribunal hearing was put before the Court, despite the fact that the applicant was given the opportunity to file and serve additional evidence (including a transcript) in orders made on 30 November 2006 at a directions hearing.
No misstatement or misunderstanding by the Tribunal constituting failure to comply with section 424A(1) or other jurisdictional error is established on the material before the Court on the basis contended for in ground 1.
The second ground relied on by the applicant is that the Tribunal failed to comply with its obligation under section 425 of the Migration Act. It is claimed first that the Tribunal “failed to create a genuine chance for [the applicant] to give oral evidence because [he] was often interrupted and also because [he] had been under huge pressure”. There is no evidentiary support for such contention before the Court. Indeed I note that there is nothing in the Tribunal account of the hearing to support such a claim. The material before the Court does not establish that the Tribunal failed to comply with its obligation under section 425 of the Migration Act to invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review.
The second particular of this claim is that the Tribunal failed to inform the applicant clearly of what the Tribunal believed to be the actual issues in relation to its decision and that as a result he could not present argument against the issues. Again, there is no evidentiary support for such a claim. Insofar as it is intended to rely on the decision of the High Court in SZBEL v MIMA [2006] HCA 63, I note that the delegate’s decision put in issue the applicant’s credibility in such a way that, as their Honours stated in SZBEL at [47]:
The delegate’s decision sufficiently indicated to the applicant that everything he said in support of the application was in issue.
The delegate considered the credibility of the applicant’s claims, had regard to country information and the manner of the applicant’s departure from the PRC legally with a passport in his own name and without any difficulty, and found that this provided a strong foundation for confidence that the applicant was not of adverse interest to the Chinese authorities at the time he left the country. The delegate also had regard to the applicant’s failure to seek protection immediately after his arrival in Australia as calling into account the genuineness of his fears. Reference was also made to the absence of documentary evidence to support his claims. On that basis the delegate was not satisfied that the applicant had ever come to the adverse attention of the authorities due to anti-government activities or that there was any evidence to suggest that he faced a risk of persecution on return to China.
Insofar as it is suggested that the Tribunal failed during the course of the hearing to inform the applicant of relevant issues not apparent from the delegate’s decision, there is no evidence to support such claim. The Tribunal’s detailed account of the hearing is to the contrary and indeed suggests that issues and their relevance were in fact raised in considerable detail with the applicant. No failure to comply with section 425 is established in the manner contended for by the applicant.
Finally, it is contended in ground 3 that the Tribunal failed to consider the applicant’s claims properly and fairly. It is claimed that the “key issue” in the case was that the applicant had been “regarded as a person who had serious ‘anti-government’ political ideologies” who had “never given up [his] protests against the government” and that as a result policemen came to his house, questioned or monitored his daily activities and that sometimes he was required to report his anti-government activities to the PSB and that it was impossible for him to “have any normal livings”.
Insofar as the applicant contended that he had or was regarded as someone who had a serious anti-government political ideology, those claims were in fact addressed by the Tribunal. The Tribunal set out the claims made in connection with the applicant’s protection visa application. It also recorded that in the course of the hearing it asked the applicant if he was ever involved in anti-government activities, and that he stated that he was not. The Tribunal also recorded that the applicant said that he did not know what Mr W knew about it and that Mr W had told him that he organised 23 people and that this was against the government. His wife stated that he was not involved in anti-government activities or Falun Gong and that it was “a matter of money”. Hence it is clear that the applicant did not in fact claim to be involved in anti-government activities.
Further, for the reasons set out above, the Tribunal considered but rejected the applicant’s claim that he had signed a statement indicating that he was involved in anti-government activities. While it accepted that the police may have informed him that he should not engage in anti-government activities and that setting a roadblock may have been such an activity, it also found that in cautioning the applicant in this respect the authorities were enforcing a generally applicable law and that there was no element of discrimination with respect to the applicant.
More generally, the Tribunal found not only that it did not accept that the applicant was of any continuing interest to the Chinese authorities (hence addressing both actual and perceived “anti-government” or other political opinion) but also, while acknowledging that in certain circumstances exposing corruption may in itself fall within the description “political opinion,” that it did not consider this to be such a case. It found that the applicant’s complaints to the authorities were not concerned with corrupt activities but rather with the non-payment of money and that his claims of persecution arose not from his opposition to official corruption or from his expression of such opposition but were the result of the commercial dispute. Moreover it did not consider that exposure of corrupt practices could be perceived as a challenge to Chinese state authority or an act inspired by political opinion, based on the country information in relation to government initiatives to stamp out corruption.
Contrary to the contention in ground 3, the Tribunal did consider the applicant’s claims insofar as they were framed in terms of actual or perceived anti-government political ideologies or anti-corruption. The fact that the Tribunal found no Convention nexus to the basis for the applicant’s claims of persecution does not establish that it failed to consider his claims properly or fairly or that it misstated or misunderstood his claims as contended.
Finally in oral submissions the applicant reiterated some of his claims about events that had occurred to him in China. However, as I indicated to him, merits review is not available in this Court. This is not a rehearing and these claims do not establish jurisdictional error on the part of the Tribunal.
As no jurisdictional error has been established, the application must be dismissed. The name of the first respondent should be amended to reflect the change in name to Minister for Immigration and Citizenship.
The applicants have been unsuccessful. It is appropriate that they meet the costs of the first respondent. The fact that the applicant husband states that they have insufficient funds at present is not a reason for not awarding costs or not awarding an appropriate amount. I note that the Tribunal hearing was conducted with the assistance of a Fuqin interpreter. This hearing was adjourned in the absence of a Fuqin interpreter who, it emerged, was necessary, despite the fact that the amended application had indicated that the applicant spoke Mandarin. It became apparent that the hearing would proceed much more successfully, as indeed has been the case, with a Fuqin interpreter.
In all the circumstances, having regard to the nature of this and other similar matters, I consider that an appropriate amount for the award of costs is the sum of $4,500.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 2 August 2007
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