SZKIB v Minister for Immigration

[2008] FMCA 769

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKIB v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 769

MIGRATION – RRT decision – Chinese applicant claiming political persecution for anti-government activity – disbelieved by Tribunal – no jurisdictional error found – application dismissed.

Migration Act 1958 (Cth)

NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 214 ALR 264
Re Minister for Immigration & Multicultural Affairs; Ex Parte Applicant S20 (2003)198 ALR 59
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152

Applicant: SZKIB

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3720 of 2007

Judgment of: Smith FM

Hearing date: 2 June 2008

Delivered at: Sydney

Delivered on: 2 June 2008

REPRESENTATION

Counsel for the Applicant: In Person

Counsel for the First Respondent: Ms S Kantaria

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application is dismissed.

2. The applicant must pay the first respondent’s costs in the sum of $2,830

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3720 of 2007

SZKIB

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant arrived in Australia in August 2006 on a Chinese passport issued to a different person, containing an Australian business visa issued to that person, and with the applicant's photograph substituted for that person’s photograph. On 13 September 2006 a migration agent, Priscilla Yu, lodged an application for a protection visa on behalf of the applicant. A statutory declaration attached to the application set out the history upon which the applicant sought protection against return to the People's Republic of China.

2. The applicant claimed that she and her husband had been working in a seafood business owned by her father. In December 2000, her husband had been beaten up by the owner of a seafood restaurant (‘Mr Z’), when he tried to obtain payment of outstanding accounts. Her husband was “tied up” and sent to the Public Security Bureau, with the accusation that he attempted to rob the seafood restaurant owner. This person had powerful connections, and witnesses gave false evidence against her husband. He was sentenced to 10 years' imprisonment in July 2001.

3. She claimed that since that time “I have spent nearly five years to seek appeal for my husband's case”.  She referred to visiting government agencies for that purpose.  In 2005 she met a teacher (‘teacher L’), who was a new graduate and was the teacher of her daughter.  The teacher helped the applicant to write petitions, and:

   14. From 2006, in order to get support from the public and create pressure against those corruptive government officials, Teacher L suggested me to widely distribute copies of my petition in (her town), in Fuqing City, and in Fuzhou City.  She assisted me to draft the petition, and made thousands of copies of it; and she also organised some of her students, including my daughter, to distribute the copies of my petitions in the street.

   15. In April 2006, Teacher L, was, unexpectedly, arrested by the PSB with the excuse that she had incited anti-government movement and distributed anti-government propaganda materials.  I was not at home where the police tried to arrest me in the same time, because I delivered some seafood products together with my brother.  After that, my parents tried to persuade me to flee away because they thought that I had been in dangers; but I could not listen to them.  Teacher L was such a good person who had strong sense of the justice; what she had done was simply to help me and to support me; and thus I could not leave her with the PSB.  On the contrary I persuaded my father, two of my brothers, my sister, as well as my relatives and friends, to have an open protest against the corruptive government officials in (her town), requesting the government to release Teacher L immediately without any conditions.

   16. On 1 May 2006, I took nearly 50 families, relatives and friends to have an open protest in front of the local government in (her town), requiring the government to release Teacher L, to return the justice to my husband, to investigate Mr Z and his families and to clean up corruption in the government.  In the meantime, we widely distribute the copies of my petition which was actually drafted by Teacher L.  It was a public holiday and many people were in the outside; and therefore my protest, at once won wide support by more and more people, but it was quickly suppressed by the police.  My father, two of my brothers, as well as other about 5-6 people, were arrested by the PSB.

   I luckily escaped owing to protection of my father and two of my brothers, but since then, I have become the target of police.  I had to hide in a friends place for about 3 months and finally escaped to the overseas by using a passport in different name.  But my father, and two of my brothers, have still been detained even today; and particularly, Teacher L have been sentenced to a 3 –year reduction through labour.

4. No support for these claims was given to the Department of Immigration, and a delegate refused the application on 10 October 2006.  The delegate accepted that the applicant's husband might be in prison, but considered that this “was a result of business conflict rather than politically motivated".  In relation to the applicant's claims to be wanted by authorities for participating in anti-government activities, the delegate said:

   I have serious doubts about the genuineness of the applicant’s claims in respect of her being wanted by the authorities for participating in anti-government activities.  I find many of the details in her claim as implausible.  I find it curious that the teacher who was not identified in the written petition distributed to the local population was identified and arrested by the authorities whilst the applicant was not detected.  I find it also incredible that the applicant was able to elude the authorities for about a month after the teacher was arrested.  I also do not consider plausible that the applicant would have the courage to attend the demonstration in front of the government house in (her town) when she fully knew that she was wanted by the authorities in connection with the distribution of the petition.  I also find it implausible that the applicant could organise 50 families and demonstrate in front of the government house when she said all along that she only finished 5 years of education.  She had also not claimed having any leadership experience of whatever form.

5. The delegate referred to this implausibility, and to the lack of evidence to substantiate claims, and was not satisfied that the applicant had a well-founded fear of persecution should she return to China.  The delegate noted that in the applicant’s province “emigration through illegal entry to a Western country has become a common practice”. 

6. On appeal, the applicant attended two hearings held by members of the Tribunal.  A decision published by the member constituting the Tribunal at the first hearing was set aside by consent order in this Court on 20 June 2007.  The first hearing was held on 9 January 2007 and the second hearing, held by the reconstituted Tribunal, was held on 12 September 2007.  Throughout these procedures the applicant was represented by her agent.  She was sent the tapes of both of the hearings, but she has not tendered a transcript of either of them. 

7. The applicant presented to the Tribunal photographs showing her husband in a setting which may have been a prison, and also a document which she claimed was a prison visitors book showing visits until December 2005.  She had no other evidence to corroborate her claims. 

8. At the second hearing, the Tribunal indicated that it would take into account her evidence given at the first hearing, but it also questioned her, and gave her an opportunity to explain her claims again. It put to her various problems with her claims concerning the activities of teacher L, the teacher's arrest, and the claimed arrest of members of her family but not herself. 

9. In a decision handed down on 6 November 2007, the Tribunal affirmed the delegate's decision.  The Tribunal accepted that the applicant's husband had been imprisoned, but it said:

   [The Tribunal] is of the view that the imprisonment of her husband alone has not caused the applicant to have a well-founded fear of persecution as the applicant is not claiming to have had any involvement with her husband in the events that led to his imprisonment. 

10. The Tribunal said that, even if he had been wrongly imprisoned, it was not satisfied "that the applicant subsequently engaged in the behaviour which she claims has brought her to the adverse attention of the authorities".  It noted that she was claiming to fear persecution because of events that occurred some five years after her husband had been imprisoned, and it therefore addressed whether those claims were believable.  It decided that they were not credible, and said that it was not satisfied that the applicant distributed petitions which were prepared by a teacher, nor that she had organised a protest after the teacher was arrested.  It also did not accept the subsequent events giving rise to the applicant herself being wanted by police. 

11. The Tribunal's reasons for arriving at this conclusion involved it carefully considering the history presented by the applicant about the involvement of teacher L, and the applicant's evidence when questioned about this.  A fundamental reason for its disbelief was that it did not seem plausible to the Tribunal that a young teacher “would take to the street accompanied by her young students to distribute petitions on the applicant's behalf in the manner claimed”.   The Tribunal also noted that there were conflicts in the applicant's evidence given to the Tribunal on several aspects of that history. 

12. The Tribunal considered the implications of the applicant travelling on a passport and a visa issued to a different person.  However, it was not satisfied that the authorities were interested in the applicant for distributing petitions and organising a protest, or for espousing her political views in China, and did not accept that she departed China for the reasons she claimed.  The Tribunal did not accept there was a real chance that she would suffer serious harm amounting to persecution on account of her political opinions or for any other Convention reason if she returned to China. 

13. The applicant now asks the Court to set aside the Tribunal's decision and to remit the matter to the Tribunal.  I do not have power to do that, unless I am satisfied that the Tribunal's decision was affected by jurisdictional error.  I do not have power myself to decide whether the applicant should be believed, nor whether she qualifies for a protection visa or any other permission to stay in Australia. 

14. A number of points are made in her original application.  Essentially, it contends that the Court should draw a conclusion that the Tribunal's decision “has included a reasonable apprehension of bias”, because it was based on "its own unwarranted assumption" as to the likelihood of the claimed actions of teacher L.  It is suggested that the Tribunal's decision was incorrect because:

    6 The Tribunal has accepted that my husband was imprisoned; but the Tribunal failed to consider, fairly and properly, that I, as a wife of a person who would be wrongly imprisoned for 10 years, would be definitely subjected to serious discriminations and persecutions under the Communist dictatorship; and the Tribunal failed to consider that my livelihood and freedom would be threatened, seriously and continually, owing to my particular relationship with my husband.  The Tribunal failed to consider that various elements involved would, if taken together, produce an effect on my mind that could reasonably justify a claim to well-founded fear of persecution on cumulative grounds. 

15. At the hearing today, the applicant described the Tribunal's reasoning about the behaviour of the teacher as “not fair”, and complained that she was not believed by the Tribunal. 

16. However, in my opinion, the applicant's complaints address only the merits of the conclusion arrived at by the Tribunal.  Her challenge to the reasoning of the Tribunal which led to those conclusions is based only upon the merits of reasoning which was open to the Tribunal.  It was the duty of the Tribunal to interview the applicant, and to form its view about the credibility of events happening in 2005 and 2006, which were not corroborated by any evidence other than the applicant's own claims and the 2001 imprisonment of her husband.  I do not accept that the points made by the Tribunal were unreasonable, without evidentiary foundation, or otherwise not legally open to the Tribunal.  I can find none of the elements of unreasonableness in the reasoning which would allow a conclusion of bias or apprehension of bias such as was found in NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 214 ALR 264.

17. The applicant has not presented a transcript to show anything occurring at the hearing which would support a reasonable apprehension of a prematurely closed mind on the part of the Tribunal.  Merely from considering the findings and reasons ultimately provided by the Tribunal, I do not consider that the ground of bias is made out.  As I have indicated, I have not been able to detect any other jurisdictional error evidenced by the reasoning followed by the Tribunal. 

18. The applicant was referred for free legal advice to a barrister who has prepared an amended application, which is also relied upon by the applicant.  This presents two grounds.  The first ground is:

    1. The Tribunal committed jurisdictional error of law by failing to comply with its obligations under section 425 of the Migration Act so as to give the applicant an opportunity “to give evidence and present arguments arising in relation to the decision under review”.

    Particulars:

    a.  In concluding the applicant has not met the prescribed criteria for grant of protection visa the delegate found many of the details in the applicants claim implausible – viz:

    (i)that the teacher was identified and arrested by the authorities;

    (ii)that the applicant was able to elude the authorities for about a month after the teacher was arrested (CB 57);

    (iii)that the applicant would have the courage to attend the demonstration in front of the government house in (her town);

    (iv)that the applicant could organise 50 families and demonstrate in front of the government house when she only finished 5 years of education.

    b.  In affirming the delegate’s decision the Tribunal did not accept that:

    (i)the police would come to arrest the applicant five years after the applicant’s husband was arrested.

    (ii)petitions for the release of applicant’s husband were publicly distributed and therefore there is no reason why the police would cone to arrest the applicant (CB 159)

    (iii)the applicant would jeopardise the safety of her father, 2 brothers and sister and a number of other relatives and friends by organising a protest when the police had already come to arrest her 2 or 3 times before (CB 159.9)

    c.  The applicant refers to particulars to ground 2

    d.  It was incumbent on the Tribunal to put the applicant on notice that the preceding issues were relevant to its review of the delegate’s decision as they did not naturally arise from the decision of the delegate.

19. This ground appears to invoke the High Court's decision in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152, by suggesting that the Tribunal's decision rested upon its determination of issues which would not have been reasonably anticipated by the applicant, so as to deny her a reasonable opportunity to address those issues in the course of giving her evidence to the Tribunal as required by s.425 of the Migration Act.

20. However, I do not accept this contention.  In my opinion, the applicant was on clear notice from the delegate's decision that the plausibility of her account of being involved with teacher L in petitioning activities, and of thus incurring the persecution of government agents during 2005 and 2006, was in issue.  I do not accept that SZBEL required the Tribunal to foreshadow precisely the path of reasoning which it, in fact, followed when supporting the delegate's concern about implausibility. 

21. Moreover, I accept the submissions of the Minister's representative that the points raised by the delegate were put to the applicant in the course of her hearings by the Tribunal.   On the Tribunal's description of the second hearing, it also clearly brought to her attention the various points of concern about her history which ultimately found their way into the Tribunal's reasoning.  I have therefore not been persuaded that there is any point of substance in ground 1 of the amended application. 

22. Ground 2 of the amended application is as follows:

    2.  The Tribunal’s decision was infected with jurisdictional error in that the reasoning process employed by the Tribunal in reaching its decision reveals irrationality, illogicality, and/or reasonableness.

    Particulars:

    a.The Tribunal did not accept that the applicant organised a protest on 1 May against the arrest of the Teacher L as it was not accepted that Teacher L was arrested because she distributed petitions on behalf of the applicant (CB 159.8);

    b.The Tribunal then reasoned that it is not credible that the applicant would have organised a protest after Teacher L was arrested as there would have been a known risk that participants in the protest would be arrested (CB 159.9);

    c.It was irrational/unreasonable for the Tribunal to find that the applicant did not organise a protest against the arrest of Teacher L when it was found that Teacher L had not been arrested and supporting its finding by hypothesising about the possibility of Teacher L being arrested and the risk (or otherwise) averse nature of the applicant when there was no evidence to support the Tribunal’s finding about the applicant’s state of mind at the time of the arrest.

23. This ground challenges the reasoning of the Tribunal in the following paragraph:

    As the Tribunal is not satisfied that teacher L was arrested because she distributed petitions on behalf of the applicant, the Tribunal is also not satisfied that the applicant organised a protest on 1 May, against the arrest of teacher L. The applicant also claims that the protest was also against her husband’s imprisonment but the Tribunal also does not find it credible that the applicant would have organised a protest after teacher L had been arrested and after the police had come to the applicant’s home to arrest her, as there would have been a known risk that participants, including the applicant, would be arrested. The Tribunal does not find it credible that the applicant would not only have jeopardised her own safety by organising a protest when the Police had already come to arrest her 2 or 3 times, but she would also have jeopardised the safety of her father, 2 brothers and sister, and a number of other relatives and friends who she claims attended the protest. The Tribunal therefore does not accept that the applicant organised a protest in May 2006 and the Tribunal does not accept that the applicant was in hiding from the authorities during the period after the protest in early May 2006, until she departed China in September 2006.

24. I do not accept that this paragraph discloses any irrationality or unreasonableness of reasoning which could evidence jurisdictional error in the manner suggested in Re Minister for Immigration & Multicultural Affairs; Ex Parte Applicant S20 (2003)198 ALR 59 at [9], [36]-[37], [81], [128], and [137].

1. It is correct that in this paragraph, the Tribunal pointed to two reasons for not being satisfied that the applicant had organised a protest after the arrest of teacher L. It is possibly also correct that it was logically unnecessary for the Tribunal to form any opinions about the inherent plausibility of these events, after it had rejected the claim that there had been a prior arrest of a teacher involved in protests. However, presenting the two alternative reasons was not irrational, and did not flaw the essential conclusion arrived at by the Tribunal in respect of that part of the applicant's history, nor its conclusions concerning the other parts. Indeed, it is understandable that the Tribunal would have commented upon its concerns about the plausibility of this element in the history, since it gave support to its rejection of earlier elements also.

2. For the above reasons, I am not persuaded by any of the arguments presented by the applicant to show that the Tribunal's decision was affected by jurisdictional error.  I must therefore refuse the application.  

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Michael Abood

Date:  17 June 2008