SZKIM v Minister for Immigration
[2007] FMCA 977
•28 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKIM v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 977 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision. MIGRATION – Visa – protection visa – refusal – no breaches of s.424A or s.425 proved – bias on the part of the Tribunal not proved – Tribunal under no duty to enquire. |
| Migration Act 1958, ss.91X, 424A, 425 |
| VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 Sun v Minister for Immigration & Ethnic Affairs (1997) 151 ALR 505 Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 |
| Applicant: | SZKIM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 825 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 14 June 2007 |
| Date of Last Submission: | 14 June 2007 |
| Delivered at: | Sydney |
| Delivered on: | 28 June 2007 |
REPRESENTATION
The applicant appeared in person.
| Counsel for the Respondents: | Ms. A. Mitchelmore |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 825 of 2007
| SZKIM |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an amended application dated 18 May 2007, the applicant seeks review of the decision of the Refugee Review Tribunal (“Tribunal”) which was signed on 31 January 2007 and which affirmed an earlier decision of the delegate of the Minister for Immigration and Multicultural Affairs (“Minister”) dated 7 November 2006 refusing the applicant’s application for a protection visa.
Section 91X Migration Act 1958 (Cth) (“Act”) provides that the Court must not publish the applicant’s name.
Background facts
The Tribunal quoted the applicant’s self-description as follows:
… On 7 January 1983, I was born in Fujian Province, the PRC; and I grew up in the village, which was called as “Dongying Village”, on the coast. … I have one sister … I have never married. … From September 1990 to July 1996, I studied at the Primary School of Dongying Village; and I studied at ZhongEn Middle School in Longtian Town from September 1996 to July 1999. After that, I assisted my parents to run a clam farm, which was about 50 mu (Chinese acreage that is about 666.7m2), in the coastal waters. (Court Book (“CB”) page 94).
The applicant claims to fear persecution in China because of his clam farming.
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-11 of the Tribunal’s decision (CB 94-101). Relevantly, they are in summary:
a)in 2002, owing to successful business development of the applicant’s family’s clam farm, the applicant’s parents contracted more coastal waters from the Administrative Committee of Donying Village (“the Village Committee”). The applicant’s family’s clam farm was enlarged to 200mu and the contract fee had to be paid to the Village Committee at the end of every year. The contract period was for five years, commencing in January 2002 and ending in December 2006;
b)in 2005, the applicant’s family was suddenly notified by the Village Committee that the coastal area of his village, covering the area of the applicant’s family’s clam farm, was chosen by the local army to be the location of two-months’ military training. The Village Committee said that the local army would provide the applicant’s family with compensation;
c)the applicant asked the Village Committee for a written promise of compensation from the local army, but was told that he should trust the army and the government;
d)from June to July 2005, the local army held two-months’ landing training. During that period, the applicant’s village was regarded as a no-go area and the villagers (including the applicant’s family) moved to live with friends and relatives in other villages;
e)in early August 2005, the people were allowed to return to their village. The applicant found that as the sea had been polluted by machinery oil, which had probably leaked out of landing-craft or amphibious vehicles such as tanks, not many of the clams in the applicant’s family’s clam farm could survive the “military disaster”. Most of the baby clams died within a month. The applicant was told by an “experienced person” that it would take at least two or three years for the sea to be completely clear;
f)the applicant once again questioned the Village Committee about receiving some sort of compensation from the local army, but the applicant was told that it was not their problem that the local army had not paid them any money;
g)from September to December 2005, the applicant together with some of the local villagers, asked for help from the Village Committee, the People’s Government in Longtian Town, and the People’s Government in Fuqing City, but the government refused to do anything for them;
h)at the end of 2005, the Village Committee forced the applicant’s family to pay the contract fee as usual;
i)in January 2006, the applicant decided to organise with some of the local villagers to take legal action against the local army, demanding compensation. The local court in Longtian refused to accept the applicant’s application, saying that the case should be dealt with in the military court due to the fact that the defendant was the local army. The applicant was refused in the local court in Fuqing City and Fujian Province for similar reasons;
j)in February 2006, the applicant along with some of the local villagers, went to the military court in Fuzhou. However, his application was immediately thrown away because he was told that only army members were eligible to lodge applications with the military court;
k)when the applicant returned to his home town, he was arrested by the Public Security Bureau (“PSB”) because he was denounced for making trouble at the headquarters of the Military Zone in Fuzhou. The applicant was interrogated by the police many times, and subjected to mistreatment, physically and mentally. He was detained for a month from February to March 2006. He was eventually released, but was warned not to make any trouble again;
l)in May 2006, the applicant organised about one hundred local villagers to have an open protest in front of the military base of the local army. The protest was immediately supported by more and more people. However, because the applicant was unexperienced in organising such a big open protest, everything quickly became disorderly. Soldiers drove the protesters away by shooting to the sky and a lot of people were seriously hurt by the armed soldiers. Some of the people were arrested. The applicant was informed by a friend that PRC authorities had ordered his immediate arrest. The applicant’s friend urged him to flee as soon as possible; and
m)from May 2006, the applicant went into hiding in order to escape the arrest of the PRC authorities. He came to Australia using a false passport. Since then, the applicant’s parents were questioned many times by the PSB and he has become a target of the PRC authorities.
The applicant submitted the passport with which he travelled to Australia, a “Contract Business Agreement” in relation to the alleged lease of the claim farm, his PRC identity card, a series of photographs of the clam farm and a “Detention Notice”.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal found the applicant’s evidence of the time between high and low tides at his family’s clam farm to be internally inconsistent. The Tribunal found that a person claiming to be a clam farmer, or at least a person whose family is associated with clam farming and whom he assists in marketing, would know this fundamental information upon which the cultivation of clams is based and it did not accept that anyone living in a coastal enterprise involving the sea would be unaware of the time between tides;
b)the Tribunal found the applicant’s evidence that he was uncertain whether the river upon which the family farm was situated, and which was close to the sea, actually ran into the sea, was not credible, stating that it expected that a person in his position would know this information;
c)the Tribunal found that the applicant was not a credible witness having regard to his inconsistent evidence and his lack of knowledge regarding tides and where his family farm was situated in relation to the sea;
d)in relation to the photographs provided by the applicant in his application the Tribunal accepted that they showed a clam farm but there was no independent evidence that they represented the applicant’s clam farm or showed his family. Nor did they show any damage claimed to have been caused by the army. The Tribunal did not attach much weight to the photographs;
e)although the Tribunal drew no adverse inference from the inconclusive results of the Immigration Department’s Document Examination Unit’s examination of the “Detention Notice” and contract document submitted by the applicant, it nevertheless found that the documents did not support the applicant’s claims. It noted independent country information that little evidentiary weight can be placed on any official Chinese document given that many official documents are forged or bought in China and that the irregular or improper use of documentation is widespread; and
f)the falsity of the passport on which the applicant travelled to Australia did not, of itself, support his claims.
In essence the Tribunal found:
Having regard to the Tribunal’s findings, the tribunal finds that the applicant’s evidence overall is not credible, and it rejects his claims. (CB 106).
Proceedings in this Court
The grounds of the application can be summarised as follows:
a)the Tribunal failed to comply with its obligations under s.424A(1) of the Act; and
b)the Tribunal was biased.
At the hearing the applicant also raised a potential breach of s.425 of the Act in that he alleged that the translation services at the hearing were inadequate and that he may have been misinterpreted.
Dealing with each of these grounds in turn:
The Tribunal failed to comply with its obligations under Section.424A(1) of the Act
The Tribunal’s finding was one based on its perceptions of the applicant’s credit. The Tribunal arrived at its conclusion that the applicant was not a credible witness based on the information the applicant provided at the hearing that he thought that the river upon which the family farm was situated ran into the sea and after comparing the applicant’s evidence at the hearing concerning the times between high and low tides with independent country information relating to tides. The information provided by the applicant at the hearing falls within the exception contained in s.424A(3)(b) and the independent country information falls within the exception found in s.424A(3)(a). Consequently, none of this information attracted a duty to send a s.424A(1) notice.
As to the conclusions which the Tribunal drew from this information, the Tribunal’s thought processes do not amount to information, as that term is understood in the context of s.424A and thus no obligations arose under the section in relation to it: VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 at 477 [24].
Although the Tribunal’s conclusion was based on an adverse finding as to the applicant’s credit, it also discussed the photographs, Detention Notice and contract document all of which the applicant had submitted to the Tribunal at the hearing (CB 98.7). The information contained in these documents fell within the s.424A(3)(b) exception and, for the reasons already given, the conclusions which the Tribunal drew from those documents, including conclusions based on independent country information, was not “information” for the purposes of s.424A.
As to the applicant’s passport, the Tribunal accepted the applicant’s evidence at the hearing that the passport on which he travelled to Australia was false, having already found that the applicant travelled to Australia on a passport in which the bearer’s photograph had been substituted. The issue of the passport had been raised in the Tribunal’s s.424A(1) letter dated 11 December 2006 and in his evidence at the hearing the applicant stated that he did not have a passport in his own name, that he had obtained the passport from one of his friends and that he believed that his photograph was substituted for that of the true holder of the passport. The Tribunal accepted the applicant’s evidence concerning the passport but concluded nevertheless, that this fact did not, of itself, support the applicant’s claims. Consequently, this issue was not one upon which the Tribunal relied when arriving at its decision to affirm the decision of the delegate and a s.424A(1) notice having nevertheless been served in relation to it, no breach of that section is disclosed.
The applicant submits that what the Tribunal actually relied upon was not information which the applicant provided but information which was misstated or misunderstood by the Tribunal. At the hearing it was submitted, for the first time, that the translation services provided to the applicant at the Tribunal hearing had been inadequate, the interpreter not doing a good job and misinterpreting what the applicant said. There is no evidence, such as by way of transcript or expert evidence regarding the translation services at the Tribunal hearing, to support this allegation. Nor is there any evidence before the Court to support the assertion that the applicant’s evidence, as reported in the Tribunal’s decision record, is misstated or misunderstood. Consequently, there is no evidentiary basis for the applicant’s allegation that the information which the Tribunal relied upon was not, in fact, information which he supplied to it which would fall within the exception in s.424A(3)(b).
Particular (e) of this asserted ground of review disputes the Tribunal’s conclusion that the applicant gave inconsistent information regarding his family’s farm and that he gave information which was inconsistent with the independent country information. In this paragraph the applicant challenges the conclusions of the Tribunal which were based on the evidence which was before it. The Tribunal’s findings were open to it on the evidence and even should its conclusion on the facts have been wrong, that does not amount to a jurisdictional error which will ground an order setting aside the decision.
Consequently, no jurisdictional error is demonstrated in relation to this asserted ground of review.
The Tribunal was biased
The elements of this asserted ground of review are that with a “strong Western bias” the Tribunal failed to consider the applicant’s claims properly and fairly and, without any basic knowledge about the actual situation in China, nevertheless refused to undertake necessary research about that situation.
In relation to the first element of this ground no evidence has been adduced to support it. As North J said in Sun v Minister for Immigration & Ethnic Affairs (1997) 151 ALR 505 at 562:
Actual bias exists where the decision-maker has prejudged the case against the applicant, or acted with such partisanship or hostility as to show that the decision-maker had a mind made up against the applicant and was not open to persuasion in favour of the applicant.
There is nothing in the Tribunal’s decision record which would suggest that it refused to consider the applicant’s claims properly and fairly, still less that it had its mind made up against the applicant and was not open to persuasion. The Tribunal’s decision demonstrates that it took into account what was put to it by the applicant but the internal inconsistencies in the applicant’s evidence and his inability to give accurate answers in respect of matters with which he ought to have been familiar led the Tribunal to a conclusion which was open to it. Although that conclusion was adverse to the applicant it does not demonstrate bias but, rather, a logical and reasoned consideration of the evidence before it. Consequently, the claim of bias is not made out.
As to the second element of this ground, that the Tribunal refused to undertake research into the situation in China, the Tribunal has no obligation to seek out information. Although it is empowered to do so it has no obligation to make enquiries: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12.
No jurisdictional error has been demonstrated in relation to this asserted ground of review.
Breach of s.425
As already commented upon in these reasons, this ground was raised for the first time in the applicant’s oral submissions to the Court and no evidence has been adduced in support of it. This is notwithstanding that on 26 March 2007 the applicant was ordered to file and serve any affidavit containing additional evidence relied upon, including transcript of the Tribunal hearing, by 21 May 2007. In the absence of any such evidence there is no basis upon which the Court can conclude that the Tribunal was in breach of s.425 of the Act by not giving the applicant a real and meaningful hearing. As a result, this ground is not made out.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Cameron FM.
Associate:
Date: 28 June 2007
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