SZKGR v Minister for Immigration
[2007] FMCA 949
•19 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKGR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 949 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China as a result of protesting against a local company – applicant disbelieved – no reviewable error found – application dismissed. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.424A, 425 |
| Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 Minister for Immigration v SZGMF [2006] FCAFC 138 NAOA v Minister for Immigration [2004] FCAFC 241 Re Refugee Review Tribunal; ex parte H (2001) 179 ALR 425 SZIWK v Minister for Immigration [2007] FCA 168 |
| Applicant: | SZKGR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG711 of 2007 |
| Judgment of: | Driver FM |
| Hearing date: | 19 June 2007 |
| Delivered at: | Sydney |
| Delivered on: | 19 June 2007 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondents: | Mr D Godwin |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG711 of 2007
| SZKGR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was signed on 22 January 2007 and was handed down on 1 February 2007. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The background in relation to the applicant’s arrival in Australia, his protection visa claims, his review application and the Tribunal’s decision on it are set out in the Minister’s written submissions filed on 7 June 2007. I adopt as background for the purposes of this judgment, with minor amendments, paragraphs 1 through to 9.8 of those written submissions:
The circumstances of this matter are that the applicant arrived in Australia on 21 June 2006 on a Taiwanese passport. He applied for a protection visa on 4 August 2006 (court book (CB) 1-26). This was refused by the Minister’s delegate on 10 October 2006 (CB 91-101).
In his protection visa application the applicant made claims in respect of the Peoples Republic of China (PRC) as his country of nationality rather than Taiwan.
The applicant made the following claims in his protection visa application ('PVA'):
a)Since January 1998, he worked as an independent electric welder, with some jobs arranged by his master, …. In 2002, his master was forced to move his workshop to Honglu town, because the Fuyao Group, whom was strongly supported by the Chinese Government, forced [his master] to sell his property at much less than market value. The Fuyao Group had a monopoly over the market, therefore, were able to offer very low prices for work.
b)In January 2005, his master accepted a job for the Fuyao Group, however, the Fuyao Group refused to pay for several months. The applicant and his master sought legal assistance, but the solicitors declined to act against the Fuyao Group, and the local government also warned the applicant and his master not to damage the reputation of the group.
c)In December 2005, the applicant and his master organised 'about 60 people' to protest in the Fuyao industry area of Fuqing city. 'About 500 to 600 people' later joined this protest, which was regarded as anti-government, and the applicant was arrested by the PSB.
d)The applicant claimed he was detained and suffered inhumane treatment at the hands of the PSB from December 2005, to February 2006. The applicant claimed he was only released after his parents paid a large bribe to have him released, however, he was continually harassed by the PSB.
e)The applicant claimed that in June 2006, he fled from China because he was informed that he was wanted by the PSB because of petitions he had sent and his 'bad' record.
f)His master arranged for him to go to Yunnan province, and on 15 June, 2006, he went from Jinhong to Thailand, arriving 17 June, and then left Bangkok for Taipei on 20 June 2006, arriving in Australia on 21 June.
On 4 August 2006 DIAC sent the applicant’s Taiwanese passport to the document examination unit (CB 34). On 25 August that unit provided an opinion that the passport was genuine (CB 72-73). On 21 September 2006, the applicant was interviewed by DIAC about, inter alia, how he left China, how he obtained a Taiwanese passport, who paid for his ticket, and who helped him get to Taiwan (CB 78). The applicant claimed that he crossed the Chinese border at the back of a truck transporting chickens. When he got to Bangkok a friend of his father’s friend helped him to get to Taiwan on a fake Thai passport. The friend then gave him the Taiwanese passport at Taipei airport.
On 27 September, 2006, the applicant's advisor provided DIAC with what were claimed to be copies of his trade qualification, his business licence, his contract with the Fuyao Glass industry group and a copy of the summons issued by the Fuqing city PSB (CB 79-90). The summons (CB 89) was dated 23 June 2006, and stated that the applicant was summoned to attend an interrogation at the crimes investigation squad of the Fuqing city PSB at 10am on 26 June 2006.
Decision of the delegate
The delegate concluded that the applicant’s account of the protest lacked detail and was unconvincing. The delegate relied on information from the Australian Diplomatic Mission that there was no protest at Fuqing against Fuyao Industry Group in December 2005 recorded in the Chinese language on-line media including the local Fuqing media (CB 100). The delegate regarded the applicant’s claims as to his inability to get a passport and how he departed China to be far fetched and implausible (CB 100). The delegate noted that the applicant left China on 15 June 2006, however the summons he had submitted was dated 23 June 2006. The delegate concluded that the applicant was not of adverse interest to the Chinese authorities and he had departed on a bogus passport because it contained a valid Australian visa. The delegate also relied upon the applicant’s delay of 6 weeks before claiming protection in Australia.
Appeal to the Tribunal
The applicant appealed to the Tribunal (CB 103-106). The applicant made no additional claims in his application for review of the delegate's decision. On 3 January 2007 the applicant attended at a hearing of the Tribunal and gave oral evidence. On 4 January 2007, the Tribunal wrote to the applicant by fax through his adviser indicating that the information it possessed suggested that the applicant may not have a well-founded fear of persecution should he return to China (s.424A letter CB 128-130).
a)The Tribunal accepted that the applicant arrived in Australia using a Taiwanese passport on 21 June 2006, however, it informed the applicant that a forensic examination had concluded the passport was genuine and the photo 'could well be of' him. The Tribunal advised the applicant that this could indicate he was a Taiwanese citizen.
b)The Tribunal believed that as the applicant had travelled on a Thai passport, there was no reason for him to obtain a Taiwanese passport, other than to enter Australia illegally. The Tribunal stated this went to 'the veracity of' his claims.
c)The Tribunal highlighted that the applicant did not apply for international protection in any of the countries he was in, and also lied to the Australian authorities by claiming to be a Taiwanese citizen, when, in fact he was a citizen of the PRC.
d)The Tribunal informed the applicant that, subject to any comments he may make, these facts may raise doubts about his credibility and his past or future persecution.
e)Further, the Tribunal raised doubts over the applicant's claim to have a 'bad' record in China, suggesting that he may have had a valid PRC passport and used this to leave China. This would go to the question of whether he was, in fact, detained by the PRC authorities.
f)The Tribunal highlighted that the applicant's delay in applying for a Protection visa after arriving in Australia could suggest that he did not have a well-founded fear of persecution for a Convention related reason.
On 18 January 2007 the applicant responded to the Tribunal’s letter, and attached a statement together with a certified copy of a notice of detention of a person … dated 22 October 2006, and a letter from the applicant’s father which said that … was the applicant’s younger brother (CB 131-135). In the statement the applicant claimed that the photo on the Taiwanese passport was not of him, the applicant claimed he did not seek protection in Thailand because he was “never allowed to go any other place but stayed in a secret place”. He was never allowed to hold the Thai passport. In Hong Kong and Taiwan he could not seek protection as he was always in a transit lounge, was scared, had no legal knowledge, and could not understand Thai, English, Taiwanese or Cantonese. He did not expose his true identity when he first arrived in Australia as he feared being arrested for using a false passport. It took a month to seek protection as he needed to get legal assistance, he could not understand any English and he needed time to obtain English translations of his materials.
Tribunal decision
In a decision dated 22 January 2007, the Tribunal was unable to be satisfied that the applicant was a person to whom Australia has protection obligations under the Refugees' Convention.
a)The Tribunal did not accept the applicant's claims that he had no freedom to move about, or that he had to travel through many international customs checks completely under the control of his escort.
b)The Tribunal found that the applicant's lack of knowledge about his journey and his claims about being smuggled into Thailand and then Bangkok undetected went to the matter of his truthfulness and his credibility and led to the finding that he was not a credible witness.
c)The Tribunal accepted that the applicant is a national of the PRC, however, believed that he was never of any interest to the authorities there. The Tribunal believed the applicant made up his claims about being persecuted for the purposes of his PVA. The Tribunal also did not accept the applicant was detained and found him not to be a credible witness.
d)Despite the Tribunal’s acceptance that the applicant was summoned to appear at the PSB, it did not accept that this was for a convention related reason, or that this indicated he would be subject to persecution.
e)The Tribunal attached no weight to the letter from the applicant's father. Regarding the applicant's claims about his brother, the Tribunal was not able to accept that any of the applicant's claims indicated that his brother had been detained for a convention related reason.
f)The Tribunal accepted that the applicant may have had a low key disagreement with the Fuyao company, however, did not accept that he had been subject to serious harm because of this. The Tribunal also did not accept that the applicant was involved in any protest or demonstrations against the company.
g)The Tribunal expected that if the applicant was politically active, he would have pursued these activities in Australia.
h)Having considered all the claims, the Tribunal believed that the applicant 'embellished' his claims in order to enhance his claims for a Protection visa and it was not satisfied there was a real chance that the applicant would be persecuted should he return to China.
These proceedings began with a show cause application filed on 1 March 2007. That application asserted actual notification of the Tribunal decision on 12 February 2007. On that basis I find that the application was filed within time. The applicant now relies upon an amended application filed on 31 May 2007. The grounds of that application are conveniently summarised in paragraph 10 of the Minister’s written submissions. I adopt with minor amendments that paragraph for the purposes of this judgment:
The amended application filed on 31 May 2007 alleges that there is an error of law and a procedural error in the Tribunal’s decision constituting an absence of natural justice. It then alleges as particulars breaches of ss.424A and 425 of the Migration Act 1958 (Cth) (“the Migration Act”) and also alleges bias and making findings based upon an unwarranted assumption.
a)In relation to s.424A, it is stated that the Tribunal relied on two pieces of information. One piece of information referred to was the 'Fuqing City PSP summons.' The other was the “Notification of detention” concerning the applicant’s brother.
b)In relation to s.425 the applicant alleges that he was “restricted by the presiding member, only to focus on his questions which could not, genuinely and fairly, create a chance for me to give my oral evidences in support of my claims”. He also alleges that the presiding member did not inform him of the issues properly and clearly during the hearing.
c)It is complained that the Tribunal member was biased. One particular mentioned is that the member “deemed” that the applicant left China on a PRC passport. The second particular was that the presiding member was of the view that the applicant was poorly educated and then made a finding that the applicant had only a very minor role in the claimed dispute with the Fuyao company.
d)The fourth particular seems to be that the rejection of the letter from the applicant’s father was based upon an unwarranted assumption.
e)The final particular is a series of dot points, which are dealt with in the Minister’s submissions under the heading “other matters”.
I have before me as evidence the court book filed on 2 May 2007. That is the only evidence I have before me. I gave procedural orders in relation to this matter on 16 March 2007. I gave the applicant the opportunity to file and serve additional affidavit evidence but he has not taken up that opportunity. The applicant attended in person today’s hearing and made oral submissions. He considers that the hearing opportunity he was afforded by the Tribunal was not a fair one. However, his concerns are directed to the terms of the Tribunal decision rather than the process followed by the Tribunal.
The applicant was invited to attend a hearing before the Tribunal because the Tribunal was unwilling to make a favourable decision on the papers. He attended a hearing and gave evidence and answered questions. What happened at the hearing was summarised by the Tribunal in its reasons on pages 151 to 154 of the court book. There is nothing in that material that provides any support for the proposition that the hearing opportunity afforded the applicant was less than adequate.
The applicant is also concerned that the Tribunal did not meet its obligations under s.424A of the Migration Act. The applicant does not dispute that the Tribunal wrote to him, through his migration agent, on 4 January 2007 inviting comment on potentially adverse material (CB 128 to 130). He points out, however, that the letter does not in its text mention s.424A of the Migration Act. The failure to mention the section, however, does not amount to a failure to comply with the Tribunal’s obligations under the section. The letter uses the language of the section and s.424A does not require that the section be identified in letters sent pursuant to it.
The applicant’s other submissions were directed to the merits of the Tribunal decision, which are beyond the scope of this decision. In other respects I agree with the Minister’s written submissions on the grounds of review advanced by the applicant. I adopt for the purposes of this judgment, with minor amendments, paragraphs 11 through to 17 of the Minster’s written submissions:
On 16 March 2007 the applicant was directed to file any additional affidavit evidence upon which he wishes to rely for the purposes of establishing an arguable case by 31 May 2007. No evidence has been filed by the applicant in accordance with that direction. The burden of establishing that there was a failure to afford a hearing in accordance with s.425 falls upon the applicant. This burden cannot be met in this case without a transcript of what occurred at the hearing. Accordingly this ground must fail: NAOA v Minister for Immigration [2004] FCAFC 241 at [21]; SZIWK v Minister for Immigration [2007] FCA 168 at [15].
Apprehended bias
The test for an apprehension of bias in a Tribunal member was set out in Re Refugee Review Tribunal; ex parte H (2001) 179 ALR 425 at 434 to 435 ([27]-[31]) and MIMA v SZGMF [2006] FCAFC 138 at [14] by Branson, Finn and Bennett JJ). The test is whether a hypothetical fair-minded lay observer, properly informed about the nature of the proceedings, the matters in issue and the conduct said to give rise to an apprehension of bias, might reasonably apprehend that the Tribunal member might not bring an impartial mind to the question to be decided. The conclusions reached by the Tribunal member were open to it on the evidence and are not indicative of any bias on the part of the member. As the applicant has not filed any other evidence there is nothing more before the Court which might support the allegation of bias.
Findings based on an unwarranted assumption
The amended application alleges that the rejection of the letter from the applicant’s father was based upon an unwarranted assumption. The Tribunal (at CB 162) provides extensive reasons for giving the letter no weight. These are that it did not accept that the applicant’s father would, while in China, risk writing such a highly critical letter, as this could have been intercepted by the authorities and it would have implicated the father directly in anti- government activities. It would also have placed the applicant’s brother at extreme risk of further punishment. Nor did the Tribunal accept that the father would bother to write to the son to tell him about his own activities. The Tribunal gave the letter no weight and found it to be a self serving concoction. The assertion by the applicant that the Tribunal made an unwarranted assumption is no more than an attempt to obtain merits review.
Other matters
The first dot point in particular 5 alleges that the Tribunal failed to determine the applicant’s case including whether the harm feared amounted to persecution and whether that fear was well founded. The short answer to this point is that the Tribunal did not accept that the applicant had any reason to fear harm at all.
The second dot point asserts that the Tribunal misunderstood the applicant’s claims and failed to consider an essential claim in the case. As this ground is not particularised in any way it must fail.
The third dot point alleges that the Tribunal asked itself a number of wrong and irrelevant questions and the fourth dot point alleges that the Tribunal failed to identify and consider the relevant issues to be determined. On the face of its reasons the Tribunal has considered all the claims of the applicant. Again as these assertions are not particularised in any way they must fail.
The fifth dot point alleges that the Tribunal incorrectly assessed the applicant’s credibility. The Tribunal’s credit finding is supported by factual findings and reasoning and was open to it. Furthermore, the assessment of credibility is a question of fact and an error in that assessment is no more than an error of fact, even if established: see Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407.
I find that the Tribunal decision is free from jurisdictional error. It is therefore a privative clause decision and the application must be dismissed.
The application having been dismissed, costs should follow the event. The Minister seeks scale costs of $5,000. The applicant’s submissions were not directed to the issue of costs. I see no reason to depart from the court scale in this matter. 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(1) and item 1(c) of Part 2 of Schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 25 June 2007
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