SZJSX v Minister for Immigration - [2007] FMCA 1951

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJSX v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1951

MIGRATION – Review of decision of the Refugee Review Tribunal – Tribunal did not misunderstand, distort or ignore the applicant’s claims – no breach of s.424A of the Act – no breach of s.425 of the Act – no jurisdictional error – application dismissed.

Migration Act 1958, ss.91R, 424A, 425

Applicant A and Another v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225
NADO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 169
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007]HCA 26
VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214; (2004) 206 ALR 471
QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92
Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572; (2004) 140 FCR 572
VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82
Mahzar v Minister for Immigration and Multicultural Affairs [2002] FCA 1759
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63

Applicant:

SZJSX

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3454 of 2006

Judgment of:

Nicholls FM

Hearing date:

22 November 2007

Date of Last Submission:

22 November 2007

Delivered at:

Sydney

Delivered on:

27 November 2007

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Counsel for the Respondents:

Ms S Sirtes

Solicitors for the Respondents:

Clayton Utz

ORDERS

The reference to the first respondent be amended to read “Minister for Immigration and Citizenship.”
The application filed on 23 November 2006 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3454 of 2006

SZJSX

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made under the Migration Act 1958 (Cth) (“the Act”) filed on 23 November 2006 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), signed on 11 October 2006 and handed down on 24 October 2006, which affirmed the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.

Background

The respondent Minister has filed a bundle of relevant documents in this matter known as the Court Book (“CB”) from which the following is discerned. The applicant is a national of the People’s Republic of China who arrived in Australia on 27 May 2006 and applied for a protection visa on 27 June 2006. This application was refused by a delegate of the respondent Minister on 3 August 2006. The applicant sought review by the Tribunal on 1 September 2006 (CB 49 to CB 53). He was represented before the Tribunal by a registered migration agent (CB 49 and CB 51). The applicant attended a hearing before the Tribunal on 4 October 2006. The Tribunal’s account of what occurred at the hearing is set out in its decision record (CB 91.6 to CB 96.5).

Applicant’s claims to protection

The applicant’s claims before the Tribunal were that he was a self-employed automotive electrician and that he had problems with corrupt officials from government agencies who required the applicant to perform work for little or no pay. The applicant wrote to a non-government human rights organisation (the China Society For Human Rights Studies – CSHRS) to complain. The applicant claimed that he was questioned and interrogated by security officials “many times,” and claimed that he was denounced for having contacts with underground anti-government political organisations. He claimed to have been detained and subjected to physical and mental mistreatment.

The Tribunal

The Tribunal accepted that the applicant had been requested to carry out the work for corrupt officials (CB 98.4), but did not consider that the conduct of these officials amounted to persecution within the meaning of s.91R (CB 98). The Tribunal was not satisfied that if the applicant had written to CSHRS, he would have been perceived to have expressed a political or anti-government opinion (CB 98.8 to CB 99.1). While acknowledging that exposing corruption, in certain circumstances may fall within the description of “political opinion” (for the purposes of a Refugees Convention nexus), it did not consider the applicant’s circumstances to be such a case (CB 99.2 to CB 99.8). The Tribunal accepted the applicant’s evidence that the practice of seeking bribes and cheap, or free, work is common in China, but found that there was no discriminatory conduct in the actions of officials whereby the applicant was singled out by reference to the prescribed categories of discrimination (CB 99.10). The Tribunal did not accept that the applicant had been detained (CB 100.5).
The Tribunal found the applicant not to be a credible witness. His claims in relation to his detention and the harm that he claimed had been inflicted upon him were described as “vague and general” and lacking in any degree of particularity. His evidence in this regard was found to be inconsistent (CB 100.6 to CB 101.3). It further found that the applicant had been able to depart China freely (CB 101.3), and accepted independent country information available to it which indicated that if he was of continuous interest to the authorities he would have likely faced a greater level of difficulty in leaving China (CB 101.7).
The Tribunal stated that it considered the applicant’s claims separately and on a cumulative basis and found that if the applicant returned to China he would not face a real risk of persecution for his political opinion, membership of a particular social group or for any other Convention reason. Accordingly it found he was not a person to whom Australia owed protection obligations and affirmed the decision which was the subject of the review.

Application to the Court

The application before the Court puts forward two grounds:
“- There was an error of law in the Tribunal’s decision constituting a jurisdictional error;
- There was procedural error in the Tribunal’s decision constituting an absence of natural justice.”
These grounds are particularised in the following way (although it is not clear to which of the two grounds, or indeed either of them, the particulars relate):
Particulars:
1. The Presiding Member of the Tribunal (‘the Presiding Member’) has exceeded his powers and thus definitely committed a jurisdictional error.
-   Political opinion is the main issue in my case instead of corruption. That is that the sole reason why I have many times been questioned and interrogated by the PSB and the NSB; and why I have been denounced to have some contacts with underground anti-government political organisations in China or anti-Communist organisations in the overseas; and why I have bee subjected to on-going persecution by the Chinese government.
-   Human rights is another issue in case. The Presiding Member completely ignored or intentionally distorted my claims regarding to my sufferings from January 2005. As a matter of fact, my basic human rights have wantonly been ruined by the PRC authorities; and in the end, I was in extremely difficult at that time. As I have claimed, there is no human right for our ordinary people in China at all!
-   Therefore, the Presiding Member has, in my case, obviously identified a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affected the exercise or purported exercise of the Tribunal’s power.
2. The Presiding Member failed to comply with his obligations under s.424A of the Act.
-   The Presiding Member has, in fact, failed to give to me, in the way that the Tribunal considers appropriate in the circumstances, particulars of the information in relation to the above-mentioned issues or country information; failed to ensure, as far as is reasonably practicably, that I understand why it is relevant to the review; and failed to invite me to comment on it.
3. The Presiding Member failed to comply with his (sic) obligations under s.425 of the Act.
-   The Presiding Member has, in fact, failed to give me a genuine chance to give evidence and present arguments relating to the issues arising in relation to the decision under review.
In summary, I have never believed that my review applicant has been fairly and carefully assessed by the Tribunal.”

Hearing before the Court

At the hearing before the Court the applicant appeared unrepresented. He was assisted by an interpreter in the Cantonese language. Ms S Sirtes appeared for the first respondent.
At the hearing the applicant stated that his claims (“original materials”) related to “human rights” but that the Tribunal’s decision dealt with his claims as being about “anti-corruption.”

Particular One – Jurisdictional error

Particular one asserts jurisdictional error on the part of the Tribunal which is said to have either identified or dealt with the wrong issues in two ways. First (the issue which he raised orally before the Court), the Tribunal saw his claims, and dealt with his claims, on the basis of harm from corrupt officials, instead of dealing with the issue as one of his “political opinion.” Second, that he put forward the human rights situation in China and that his claims arose from this, but the Tribunal ignored or distorted his claims to have suffered human rights abuses since January 2005 and his claim that “basic human rights have wantonly been ruined by the PRC authorities.”
I cannot see that in the circumstances of what is before the Court now that the Tribunal failed to understand, or identify, the different aspects of the applicant’s claims (“wrong issue”), or ignored aspects of the applicant’s claims, or otherwise was in error, as set out in this particular.
The Tribunal understood the applicant’s claims to be that while running his automotive business he had problems with corrupt officials. The applicant’s assertion now by way of this particular that, by implication, his case was about “political opinion” instead of “corruption,” is not borne out by the applicant’s claims as put in his statutory declaration of 26 June 2006 (CB 25 to CB 27), or in his evidence to the Tribunal (CB 91.6 to CB 96.5). The Tribunal clearly dealt with this claim.
It found that while it accepted the applicant’s claims in this regard, that the payment of fines or bribes to these corrupt officials did not amount to serious harm for the purposes of s.91R, and therefore did not amount to “persecution” within the meaning of the Convention. The Tribunal plainly dealt with this aspect of the applicant’s claims. This finding was open to it for the reasons which it gave.
Nor did the Tribunal ignore the “political opinion” aspect of the applicant’s claims, as it is said to have arisen from his reporting of the incidents of corruption to CSHRS, and to any perception that may have arisen from his opposition to official corruption or his expression of such opposition. The Tribunal’s analysis at CB 98.8 to CB 100.4, reveals that it did not ignore this aspect of the applicant’s claims. It accepted that the applicant may have written to the CSHRS, but was not satisfied that in doing so he expressed, or would have been perceived as expressing, “a political opinion or an anti-government opinion” (CB 98.9).
It acknowledged that in some circumstances exposing corruption may fall within the description of “political opinion” (CB 99.3). But found that the applicant’s circumstances were not such a case” (CB 99.4).
The Tribunal found that the applicant stated that he did not seek state protection against the corrupt officials. It found in any event that effective state protection would have been available to the applicant (CB 99.8). In all it did not accept that there was any Convention link between the applicant’s claims and the Convention, neither by way of membership of particular social group or otherwise.
Any plain reading of the applicant’s claims as set out in his statement (CB 25 to CB 237) attached to his protection visa application reveals the Tribunal did not misunderstand or “distort” his claims. Plainly, the applicant’s fears arose out of his dealings with corrupt officials.
At the hearing the applicant told the Tribunal that when he was interviewed by officials they asked whether he had taken part in anti-government activities or whether he had any involvement with dissident groups (CB 92.9 to CB 93.2). The Tribunal records that it asked the applicant why this was not put in his original statement. The applicant responded that the police asked him questions as to whether he was involved with dissident groups, but he had not participated in any anti-government activities (CB 93.4).
The Tribunal rejected the applicant’s claims to have been detained by the Chinese authorities because it found the applicant not to be a credible witness in this regard (CB 100.6).
In all, therefore, the Tribunal dealt with the applicant’s claims to have been abused by corrupt officials, that he had reported this to an independent body – the CSHRS. That he was questioned by police as to how he obtained the CSHRS address and as to whether he had any anti-government links or participated in anti-government activities, to which he had replied he did not. The specific harm that he said flowed from all of this was detention and mistreatment. A claim which the Tribunal rejected given its finding that he was not a credible witness in this regard.
I cannot see that the Tribunal misunderstood or distorted or ignored the applicant’s claims. That it did not accept critical aspects is not to ignore or distort. The Tribunal’s findings were open to on what was before it. I cannot discern error in this regard.
I note that in his application to the Court the applicant asserts that he was “denounced to have some contacts which underground anti-government political organisations in the overseas (sic).” No such claim was put before the Tribunal such that the Tribunal can be said to have ignored it.
The applicant also complains that the Tribunal ignored or “intentionally distorted” his claims as they arose out of a denial of his human rights, presumably because he is an ordinary person, and in circumstances where “there is no human right for ordinary people in China at all.”
This issue was certainly raised by the applicant in his statutory declaration attached to his protection visa application, at paragraph 7 (CB 26.4). It was also discussed during the hearing before the Tribunal. The Tribunal (CB 96.2):
“Suggested to the applicant that broad statements that there were no human rights in China were unhelpful because the role of the Tribunal was to determine whether the applicant would face persecution for a Convention reason.”
In any event, the Tribunal directly addressed this issue in its decision record and plainly understood (CB 101.7):
“[T]he applicant’s core complaint appears to be the human rights violations in China.”
Relying on Applicant A and Another v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 (“Applicant A and Another”) at 232-233, per Brennan CJ, the Tribunal was of the view that the denial of human rights per se: “does not attract the protection of the Convention.” Plainly, in that sense, the Tribunal did not completely ignore the applicant’s claim in this regard.
Further, nor can I see error in the Tribunal’s approach as to how it dealt with this claim. While there are circumstances where “persecution” (for the purposes of the Refugees Convention) can include serious human rights breaches, with reference to Applicant A and Another, the Convention would not be engaged where the breaches feared were not more than an indiscriminate or non-selective infringement of human rights. Section 91R(1) of the Act encompasses this proposition that “persecution,” for the purposes of the Refugees Convention, must involve “systematic and discriminatory conduct.” In NADO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 169 per French, Sackville and Hely JJ (at [26]), the Court held that any failure relating to a protection of “core human rights” would not amount to persecution without the requirements of s.91R being satisfied.
The Tribunal plainly dealt with the applicant’s claims within this context. It specifically found that the conduct of the officials did not amount to “persecution” within the meaning of s.91R of the Act (CB 98). The Tribunal rejected the applicant’s claims that would have been perceived, or indeed had expressed, a political opinion or an anti-government opinion (CB 98 .9), either by writing to the CSHRS, or by way of expression of his opposition to the corruption of officials. It found that, in any event, in relation to complaints about the officials, that effective state protection is available to the applicant in China. The Tribunal also rejected that there was any Convention nexus between the applicant’s claims and circumstances, and any membership of a particular social group such that the Convention obligations would be engaged (CB 100). In all, therefore, I cannot see any error in the Tribunal’s dealing with this claim.

Particular Two – Breach of s.424A of the Act

In particular two, the applicant asserts a breach of s.424A of the Act. It is not exactly clear what information the Tribunal is said to have been obliged to put to the applicant pursuant to that section.
I note that in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 (“SZBYR”), the High Court considered the circumstances in which s.424A is engaged. At [15], the Court said:
“Section 424A does not require notice to be given of every matter the Tribunal might think relevant to the decision under review. Rather, the Tribunal’s obligation is limited to the written provision of ‘particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.’”
This leads to the question as to what “information” the applicant says the Tribunal should have provided to him for comment.
At best, the applicant’s complaint appears to be (with reference to “the above-mentioned issues”) that the Tribunal did not put to him the adverse views that it drew in relation to his claims involving political opinion, corruption and human rights, or of the view that it took of his claims in this context.
Such issues are not “information” for the purposes of s.424A. See SZBYR (at [18]), with reference there to VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214; (2004) 206 ALR 471 at 476-477 (at [24]), per Finn and Stone JJ:
“[D]oes not encompass the Tribunal’s subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of details or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps, etc.”
In any event, to the extent that the Tribunal relied on what the applicant himself said that the hearing, such information would fall within the exception contained in s.424A(3)(b) from the obligation set out in s.424A(1).
The applicant also complains that the Tribunal failed to give him country information. In addition to what is set out above, country information relied on by the Tribunal plainly falls within the exception contained in s.424A(3)(a) as it did not relate to the applicant personally, or another person (QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92, at [22], Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572; (2004) 140 FCR 572, at [71], VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82, at [12]-[14]).

Particular Three – Breach of s.425 of the Act

The third particular complains that the Tribunal failed to comply with its obligations pursuant to s.425. The applicant claims that the Tribunal failed to give him: “a genuine chance to give evidence and present arguments.”
The Tribunal invited the applicant to attend a hearing and the applicant attended a hearing. The Tribunal’s account of what occurred at the hearing is set out in its decision record at CB 91.6 to CB 96.5. The applicant has not put any evidence before the Court by way of transcript of the Tribunal hearing, or otherwise, to challenge the Tribunal’s account of what occurred at the hearing beyond his mere assertion in the application that the Tribunal failed to give him a “genuine chance.”
On what it is before the Court now, I cannot see that the Tribunal failed in its obligation pursuant to s.425. There is nothing before the Court to show that the hearing was “a hollow shell” in the sense as set out in Mahzar v Minister for Immigration and Multicultural Affairs [2002] FCA 1759 (at [31]). Nor is there anything before the Court now to show that the Tribunal did not act in accordance with what was relevantly set out by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 (“SZBEL”).
Relevantly, in this regard, the Tribunal raised with the applicant the inconsistencies in his claims (CB 93.9, CB 94.7 and CB 95.8) and referred him to independent country information in relation to the Chinese Government’s engagement in major anti-corruption campaigns (CB 95.3), and put to him that his broad statements concerning human rights in China were unhelpful given the role that the Tribunal was required to undertake (CB 96.2). With reference in particular to what was said in SZBEL at [44] the Tribunal plainly raised the determinative issues arising in relation to the decision under review with the applicant at the hearing. Further, with reference to SZBEL at [35], and to the extent that it relates to the applicant’s credibility, this was an issue that was raised, and was before the delegate (see CB 47.9).
I cannot discern jurisdictional error as it arises from the grounds and particulars put forward by the applicant. Nor can I otherwise discern jurisdictional error in the Tribunal’s decision. This application is therefore dismissed.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: A Douglas-Baker

Date: 27 November 2007