SZJSX v Minister for Immigration and Citizenship

[2008] FCA 268

FEDERAL COURT OF AUSTRALIA

SZJSX v Minister for Immigration and Citizenship [2008] FCA 268

SZJSX v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 2379 OF 2007

GILMOUR J
7 MARCH 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2379 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJSX
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GILMOUR J
DATE OF ORDER:	7 MARCH 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs fixed at $2,673.25.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2379 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJSX
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GILMOUR J
DATE:	7 MARCH 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1. This is an appeal from a judgment of the Federal Magistrates Court delivered on 27 November 2007 dismissing an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”).  The Tribunal had affirmed a decision of a delegate of the first respondent (“the Minister”) refusing an application for a protection visa.

   BACKGROUND

2. The appellant is a citizen of the People’s Republic of China who arrived in Australia on 27 May 2006.  On 27 June 2006 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship.

3. In his protection visa application, the appellant claimed he was a mechanic who feared persecution by reason of corrupt officials who made him work for little or no money.  He said that he wrote to the China Society for Human Rights Studies (CSHRS) complaining about the conduct of the officials and that his letters had offended many corrupt officials in the government agencies who wanted to expose him to mortal danger. The appellant alleged that in December 2005 two people came to his repair workshop who advised that they were from the CSHRS, although their business cards indicated that they were from the Propaganda Department of the Communist Committee.  The appellant discovered that the CSHRS was controlled by the Propaganda Department. 

4. He claimed that the police later interrogated him for seeking human rights and because his letters offended many officials.  He claimed that since 2006 he had been interrogated many times by the Public Security Bureau and National Security Bureau and was denounced as having contacts with underground anti-government political organisations in China or anti-Communist organisations overseas.  The appellant claimed that both the PSB and NSB searched his home on many occasions and that he was detained by the PSB for about one month during which time he was physically and mentally mistreated.  The appellant insists that he lost his business and also had to report to the local police weekly.

   THE TRIBUNAL’S DECISION

5. The appellant attended a hearing on 4 October 2006 and gave oral evidence to the Tribunal.  It found that the applicant was not a credible witness.

6. The Tribunal accepted that the appellant may have performed work for corrupt officials but found that this did not amount to serious harm within the meaning of s 91R of the Act and accordingly did not amount to persecution under the Refugees Convention.

7. The Tribunal accepted that the appellant had written to CSHRS.  However, it was not satisfied that by doing so he would have come to the adverse attention of the Chinese authorities.  The Tribunal regarded the appellant’s complaint as one concerning non-payment or insufficient payment for work performed and not directed towards government corruption generally.  It concluded that the appellant would be unlikely to suffer adverse consequences in China for attempting to expose corrupt government practice.

8. The Tribunal rejected the appellant’s claim to have been detained and physically mistreated, on the basis of his vague, general and inconsistent evidence.  In particular his “story” with respect to the time of his alleged detention changed on several occasions.  It also found that if the appellant was of any interest to the authorities, he would not have been able to leave China without difficulty.

9. As it was not satisfied that the appellant held a well-founded fear of persecution for a Convention reason, the Tribunal dismissed the application.

   PROCEEDINGS IN THE FEDERAL MAGISTRATES COURT

10. Before the Federal Magistrate, the appellant claimed:  

    (a)There was an error of law in the Tribunal’s decision constituting a jurisdictional error;

    (b)There was procedural error in the Tribunal’s decision constituting an absence of natural justice.

11. The appellant provided the following particulars in addition to his grounds of appeal:

    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 been 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.”

12. In relation to particular 1, the Federal Magistrate was not satisfied that the Tribunal had misunderstood the appellant’s claims and that the Tribunal’s findings were open to it on the evidence before it: [22].

13. In relation to particular 2, His Honour found that there was no breach of s 424A(1) of the Act as the Tribunal’s adverse views on the appellant’s claims was not considered “information” for the purposes of the section. In any event, the Tribunal relied on what the appellant provided at hearing which was covered by the exclusion in s 424A(3)(b): [34].

14. Finally, in relation to s 425 of the Act, his Honour found that the Tribunal had afforded the appellant procedural fairness by raising the inconsistencies in his evidence at the hearing and referring him to independent information relied upon: [38]-[39].

15. The application was accordingly dismissed.

    THE NOTICE OF APPEAL

16. The notice of appeal in substance contains the same grounds raised before the Federal Magistrate:

    1.His Honour failed to consider, properly and correctly, that there is a jurisdictional error in the Tribunal’s decision.  The Tribunal failed to understand, or identify wrong issue, or ignored aspects of my claims, or otherwise was in error, as set out in my application with the Federal Magistrates;

    2.His Honour failed to consider, correctly and properly, that there is a breach of s 424A(1) of the Act in the Tribunal’s decision; and

    3.His Honour failed to consider, correctly and properly, that there is a breach of s 425 of the Act in the Tribunal’s decision.

17. At the hearing of the appeal before me the appellant made oral submissions which extended beyond the grounds of appeal and the particulars which are contained in the application for review to the Federal Magistrates Court.  He complained that the immigration officials and the “lower court” communicated relevant regulations to him which he did not understand.  He said that he did not accept the judgment.

18. These submissions do not disclose competent grounds of appeal.  They do not disclose error on the part of the Federal Magistrate or jurisdictional error on the part of the Tribunal.

    REASONING

    Ground 1:

19. The appellant relies on the same particulars as were set out in his application to the Federal Magistrates Court, namely that his claim was not one based on official corruption but rather concerned his political opinion and human rights.  The Federal Magistrate correctly identified this characterisation of the appellant’s case as not borne out by his claims set out in his statutory declaration of 26 June 2006.  The appellant had never before asserted a claim based on his political opinion.  To the extent that it referred to his human rights this was couched in the context of his complaint about corrupt officials.  In his statutory declaration he referred to his letters to the CSHRS in which he advised that “… my basic human rights have wantonly been trampled by those corruptive officials …”.  This was plainly a reference to the corrupt officials who, the appellant complained, were constantly requiring him to do mechanical work on their vehicles for little or no payment and to whom he had to give cash gifts on Chinese New Year’s Day or on the occasions of other festivals. 

20. The Tribunal understood the nature of this complaint and that the alleged denial of human rights sat in a context of the alleged corruption by the various officials concerning no payment or under-payment for work done on vehicles at their request by the appellant. 

21. The Tribunal found that the appellant’s complaints were directed at non-payment of fees and not at government policies.  It also found that given the extensive government-led initiatives in China to stamp out corruption that exposure of corrupt practices could not be perceived to be a challenge to State authority or an act inspired by political opinion.  

22. It acknowledged that, in some circumstances, exposing corruption may fall within the description of “political opinion”, but this was not such a case. The Federal Magistrate expressly considered this question in that way [16].

23. While the Tribunal accepted the appellant’s claims about the corrupt officials it concluded that this was common practice in China and that the requests to perform work for little or no pay did not amount to serious harm for the purposes of s 91R of the Act. 

24. The Federal Magistrate correctly identified that this was how the Tribunal had considered the appellant’s claims: [11]-[29].

25. The Federal Magistrate did not accept that the Tribunal had misunderstood or distorted or ignored the appellant’s claims. The fact that it did not accept critical aspects of his claims did not amount to ignoring or distorting them: [22]. I have considered the Tribunal’s reasons and those of the Federal Magistrate in these respects. No relevant error is discernable.

    Ground 2:

26. I have considered the Federal Magistrate’s reasons at [30]-[35] and respectfully agree with those reasons and conclusions.

27. The exclusionary provisions of s 424A(3)(a) and (b) of the Act have the effect of excluding independent country information and evidence given by the appellant during the hearing, from the operation of s 424A of the Act.  Further, it is well established that the Tribunal’s thought processes do not fall within the purview of s 424 of the Act: Re Minister; Ex parte Durairajasingham (2000) 168 ALR 407 at [67].

    Ground 3:

28. Beyond mere assertion that the Tribunal, in contravention of s 425 of the Act, failed to give the appellant a genuine chance to give evidence and present arguments this ground is not particularised. There is no evidence to support it. Indeed, the evidence is to the contrary. The Federal Magistrate, correctly in my opinion, so found: [37]-[39]. No relevant error is demonstrated.

29. The appeal will be dismissed.  The appellant should pay the costs of the first respondent.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.

Associate:

Dated:        7 March 2008

The Appellant appeared in person:
Counsel for the Respondent:	Ms McWilliam
Solicitors for the Respondent:	Clayton Utz
Date of Hearing:	7 March 2008
Date of Judgment:	7 March 2008