SZKJL v Minister for Immigration - [2008] FMCA 17

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKJL v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 17

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed.

The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZKJL”.

Migration Act 1958 (Cth), ss.91X, 422B, 424A

Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547
Minister for Immigration & Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407
Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507
Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 26
NBKT v Minister for Immigration & Multicultural Affairs [2006] FCAFC 195
Re Refugee Review Tribunal, Ex Parte H (2001) 75 ALJR 982
SZBYR v Minister for Immigration & Citizenship [2007] HCA 26
SZCJD v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 609
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2
VFAB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 102

Applicant:

SZKJL

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 903 of 2007

Judgment of:

Lloyd-Jones FM

Hearing date:

26 November 2007

Delivered at:

Sydney

Delivered on:

15 January 2008

REPRESENTATION

Advocate for the Applicant:

The applicant appeared in person with the assistance of a Mandarin interpreter

Solicitors for the Respondents:

Mr G Johnson of DLA Phillips Fox

ORDERS

The application filed on 19 March 2007 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 903 of 2007

SZKJL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

The applicant is a male who claims he was born in Shanghai, the People’s Republic of China, in 1953. The applicant was involved in protests against alleged corrupt officials and stockbrokers concerning share trading in a company, Kelong Electrical Equipment. The applicant claims he was denounced for sending petitions to incite anti-government sentiment in respect of the share trading in this company. He seeks protection in Australia because he fears persecution if he returns to China.
The applicant claims that in 2000 and when encouraged by friends, he invested in the stock market in Shanghai. He claims that he suffered substantial losses because the stock market in China was controlled and operated by corrupt officials with powerful connections. The applicant cites Kelong Electrical Equipment and his purchase of 18,900 of their stocks on the understanding that the value would greatly increase. Although the stock value fell, he retained the shares on the advice of brokers who said that they would quickly rise in value. This did not occur and the applicant commenced his complaint.
The applicant states that he was taken to the Shanghai Public Security Bureau (PSB) by police and interrogated extensively. He was accused of a petition to incite an anti-government movement. He claims that he was mistreated physically and mentally by the police. Upon release, the applicant continued protesting in front of the official stock market building in Shanghai over corrupt stock trading. This led his arrest again by the PSB and his detention for over a month. He states that his wife bribed officials for his release and he subsequently came to Australia with a tour group.
The applicant arrived in Australia on 16 August 2006 and applied for a Protection (Class XA) visa on 24 August 2006. A delegate of the Minister refused to grant the visa on 1 November 2006 on the basis that the applicant is not a person to whom Australia owes protection obligations under the Refugees Convention. The applicant applied to the Refugee Review Tribunal (“Tribunal”) on 30 November 2006 for review of the delegate’s decision. The Tribunal affirmed the delegate’s decision on 29 January 2007 and the applicant applied to this Court seeking judicial review of that decision (reference number 060997333).
At the first Court date, the applicant indicated that he wished to participate in a scheme to give unrepresented applicants in refugee matters an opportunity to receive independent legal advice on the prospects of success of his appeal. The applicant was allocated a panel advisor and was provided with advice. The applicant also granted leave to file an amended application giving complete particulars of each ground of review relied upon. The applicant filed an amended application which contained the following grounds:
(a)Ground one – In deciding my application, the Tribunal had completely identified a wrong issue; and had completely misunderstood my claims; and has completely made an incorrect finding.
(b)Ground two – The Tribunal failed to comply with its obligations under s.424A(1) of the Migration Act 1958 (Cth).
A Court Book (“CB”) prepared and filed by the first respondent’s solicitors is marked Exhibit “A”. This document was read into evidence and is the only evidence before the Court.

Consideration

The applicant confirmed that he had not complied with orders requiring him to prepare written submissions in support of his application. However he accepted the invitation to make oral submissions.

Ground one

In deciding my application, the Tribunal has completely identified a wrong issue; and has completely misunderstood my claims; and has completely made an incorrect finding.
Particulars
a.My claims are based on the evidence that:-
In May 1996, I was dismissed by Shanghai Printing and Dying Factory, where I had worked for more than 18 years since January 1978. From then on, I was in difficulties to find any stable work, but had to maintain basic living on doing some small businesses or odd jobs. I have made some money and got some savings during the following years, but I have to worry about the future, because both my wife and I are getting older and older; so we need a stable income or sufficient savings.

In 2000, encouraged by some friends, I started making some investment in the stock market in Shanghai. However, I have eventually found that it is a hell on earth; because the stock market in China has actually been controlled and operated by those corruptive officials, as well as those dirty businessmen who have powerful official background.
For example, value of the stock of “Kelong Electrical Equipment” (000921), while I purchased in 2000, was RMB 9.78 yuan; and then I purchased 18,900 stocks. However, right now, the value was only about RMB 2.00 yuan. It should not be unusual if the value of a stock has been floating in the stock market. But, it is definitely unusual if the stock’s value floating has been controlled or operated by those corruptive officials, or dirty businessmen who have powerful official background. It is the case of “Kelong Electrical Equipment” stock. At the beginning, those corruptive officials or dirty senior stock brokers told us that the value of “Kelong Electrical Equipment” would be increased greatly in order to absorb more and more investors; and then, while the value of the stock fell on the market, they said that it would be a temporary phenomena; and it would have significant rise in the value of the stock quickly so as to stop us selling them; and finally, we have realised that we have been cheated completely and we lost everything.
b.   In other words, I was not a professional in the stock market; instead, I was just an ordinary person who had lost their jobs and who had intended to make some money in the stock market but without professional training and without sufficient knowledge.
c.   Furthermore, the stock market that I had been involved was the Shanghai Stock Market instead of Shenzhen Stock Market.
d.   Therefore, it might be true that I had no knowledge regarding the history of the Shenzhen stock market and other laws or regulations in the stock market; but such an issue should not become a bar to my major claims, because, as I have mentioned above, I am NOT a professional in the stock market.
e.   I, therefore, have to claim that in deciding my application, the Tribunal has completely identified a wrong issue; and has completely misunderstood my claims; and has completely made an incorrect finding.”

The applicant’s oral submissions effectively repeated the issues raised in the particulars of ground one. He stated that he did not fully understand the operation of the stock exchange and relied on friends and the internet for information on the most appropriate shares to purchase. The applicant complained that the Tribunal made reference to the Shenzhen stock exchange whereas he dealt exclusively with the Shanghai stock exchange. It appears that the applicant claims that the Tribunal mistakenly dealt with the wrong stock exchange when considering his application.
To assist my understanding of the applicant’s claims, I note the following characteristics in respect of the stock market in China which was not directly addressed in the Tribunal’s decision or the country information contained in the Court Book. Three separate stock exchanges, Shanghai and Shenzhen and Hong Kong operate within the People’s Republic of China. The Shanghai exchange is based in the city of Shanghai, Shenzhen in the south-east city of Shenzhen in the province of Guangdong near the Hong Kong border and the Hong Kong exchange has operated for many years in that territory established during British administration. The Shanghai and Shenzhen exchanges are divided into two sub-exchanges identified as “A” and “B”. The “A” exchange lists local companies and is open to trading by Chinese nationals but not to foreigners. The “B” exchange is open to trading by foreigners but excludes Chinese nationals. In Hong Kong there is a separate “H” exchange which lists Chinese enterprises and trades with residents of Hong Kong and foreigners but excludes Chinese nationals. For these purposes, Hong Kong residents are not considered Chinese nationals but for some exceptions which are not relevant to this matter.
Guangdong Kelong Electrical is listed on the Shenzhen “A” exchange and the Hong Kong “H” exchange. Although Guangdong Kelong Electrical is not listed in Shanghai, the applicant could own stocks in that company on the Shenzhen “A” exchange without restriction. He would not be entitled to hold shares in Guangdong Kelong Electrical listed on the Hong Kong “H” exchange. Guangdong Kelong Electrical has been subject to suspension at various times and identified as a speculative stock by investment analysts.
At the Tribunal hearing held on 29 January 2007, the applicant informed the Tribunal that his investments were held in the Shenzhen exchange. However, his statutory declaration attached to his protection visa application states that his investment was in the Shanghai exchange (CB 28, paragraph 3 and 5). After filing his application for review before the Tribunal, the applicant’s migration agent, Priscilla International Co Pty Ltd, forwarded a letter to the Tribunal notifying it of two changes to the statutory declaration. These amendments did not relate to the Shanghai exchange, therefore the material considered by the Tribunal still contained his claim that he had invested in the Shanghai exchange.
The Tribunal decision under the heading “Evidence from Other Sources” records the following information in respect of the trading in Kelong Electrical Holdings:
The independent also indicates that:
Guangdong Kelong Electrical Holdings… Is China’s biggest refrigerator and air-conditioning manufacturer. It is listed on both the Hong Kong and Shenzhen stock markets (See: importantly, Kelong Electrical Holdings is not listed on the Shanghai exchange as claimed by the applicant. Although this is not addressed by the Tribunal, the full name of the company is Guangdong Kelong Electrical Holdings.
Further independent evidence indicates that:
Shares in Kelong were suspended from trading from June 2005 until recently. (See: downloaded on 29 January 2006, at hearing).
The independent evidence, from the Shanghai Daily Newspaper also indicates in an article entitled: “Kelong Cools off”, that:
GUANGDONG Kelong Electrical Holdings Co, China’s biggest maker of refrigerators, lost 35.7 million yuan (US$4.46 million) in the first half of this year, the company said in a statement posted on the Shenzhen Stock Exchange.
(See: 30 August 2006, downloaded 18 January 2007). (CB 90)
The Tribunal decision also records under the heading “Evidence from Other Sources” the following information about the Shenzhen stock exchange:
The Shenzhen Stock Exchange (the SSE) is a mutualized national stock exchange under the China Securities Regulatory Commission (the CSRC), that provides a venue for securities trading. A broad spectrum of market participants, including 540 listed companies, 35 million registered investors and 177 exchange members, create the market. Here buying and selling orders are matched in a fair, open and orderly market, through an automated system to create the best possible prices based on price-time priority.
Since its creation in 1990, the SSE has blossomed into a market of great competitive edges in the country, with a market capitalization around RMB 1 trillion (US$122 billion). China securities market is undergoing fundamental changes. The implementation of the new Securities Law, Company Law, self-innovation strategy as well as the development of non-tradable share reform embodies enormous opportunities to the market. Adhering to the principle of “Regulation, Innovation, Cultivation and Service”, the SSE will continue to maintain its focus on developing the Small and Medium Enterprises Board, while seeking for a tier market. (CB 89)
Mr Johnson, for the respondents, submits in written submissions that the applicant did not claim that he was a stock market professional and thus could not be expected to be familiar with certain factual matters he was questioned on by the Tribunal. It is submitted that there was no presumption on the part of the Tribunal that the applicant have a professional’s understanding of the stock market. The Tribunal decision, under the subheadings “How the applicant became involved in the Stock Market” and “The applicant’s knowledge of the stock market and it workings”, records an examination of the applicant’s initial investment and the knowledge he gained during his involvement (CB 91-92). The Tribunal put to the applicant a series of questions which it considered should have been easy to answer by a person with several years experience in the stock exchange. The applicant’s evidence was that he had been involved in dealings with the stock exchange since 2000.
Mr Johnson submits in relation to the applicant’s claim that the Tribunal identified and questioned him on the wrong stock exchange, that the applicant himself gave evidence at the hearing that the stock exchange he invested in was Shenzhen and not Shanghai. It is submitted that there is no evidence that the applicant raised this matter with the Tribunal member during the hearing. In the absence of a transcript of the hearing, the only evidence before the Court is the Court Book and the Tribunal’s decision. These reveal inconsistencies as to which stock exchange the applicant claims he was involved in. His initial visa application identifies the Shanghai exchange and this was not amended when he filed his Tribunal review application.
The Tribunal appears to have proceeded on the understanding that the applicant was referring to the Shenzhen exchange as this is the exchange on which Kelong Electrical is listed, not Shanghai. The Tribunal decision does not indicate that the applicant disputed this fact during the hearing. The Tribunal proceeded to ask the applicant a series of general questions about the operation of the Shenzhen exchange which it believed a normal investor on the exchange would be aware of. The applicant’s claim is that he commenced investing in 2000 and purchased a number of different stocks and used Kelong to illustrate the difficulties he was experiencing. He confirmed that from 2000 to 2006, his primary occupation was that of a stock market investor. However, the Tribunal formed the view that the applicant lacked credibility because of his evidence at the hearing was “implausible, inconsistent and completely lacking in reliability”.
The Tribunal’s adverse credibility finding and consequent rejection of the applicant’s claims is a matter for the Tribunal par excellence: Minister for Immigration & Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J. I am satisfied that the Tribunal finding in this respect was open to it on rational grounds on the material before it. The decision discloses no error in its treatment of the applicant’s credibility: Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547.

Ground two

The Tribunal failed to comply with its obligations under s.424A(1) of the Act.
Particulars
a.The Tribunal has considered the information, which “the applicant’s claims and evidence are contradicted by the independent evidence”, as a part of reason in affirming the decision under the review; however, the Tribunal has failed to inform me the information that it has used as a part of reason for review; and the Tribunal has failed to ensure me to understand that the information would be in relation to the review; and the Tribunal failed to invite me to comment on the information.
b.According to s.424A(1) of the Act, the Tribunal must:
(i)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, 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; and
(ii)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(iii)invite the applicant to comment on it.

c.It is obviously that the information mentioned above is NOT the case:
(i)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(ii)that the applicant gave for the purpose of the application; or
(iii)that is non-disclosable information.
(iv)Therefore, I must say that the Tribunal failed to comply with its obligation under s.424A(1) of the Act.

The applicant in oral submissions briefly set out what he understood to be the operation of s.424A(1) of the Act and then repeated the particulars attached to this ground of review.
Mr Johnson submits that although the applicant claims that the Tribunal fell into error for not disclosing certain information which formed part of its decision, he did not provide any particulars that identified the information the Tribunal relied upon nor disclose any other aspect of the decision-making process which breached s.424A. It is submitted that the Tribunal affirmed the delegate’s decision because the applicant:
(a) was not a credible witness (CB 91);
(b)was not found to have ever been involved in the stock exchange (CB 93, 94); and
(c) his claims of anti-corruption lacked credibility (CB 94).
Findings (a) and (c) were based solely on the Tribunal’s conclusion as to the applicant’s credibility based on the evidence that he submitted at the Tribunal hearing. Credibility is a question of fact reserved for the primary decision-maker: Durairajasingham. Finding (b) is also a finding of fact opened to the Tribunal. Mr Johnson submits that the information relied on by the Tribunal in making these three findings was information provided for the purposes of the application and therefore falss within the exception under s.424A(3)(b). The statutory declaration filed with the visa application was effectively part of the application to the Tribunal due to the amendment filed by the applicant’s migration agent.

In support of this submission, Mr Johnson relies upon the decision SZCJD v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 609. In that case, the Tribunal described the applicant’s claims (from his original visa application) of association with the Awami League as vague and lacking in details. It then questioned the applicant about his involvement with that organisation. Justice Heerey at [42] concluded, consistent with SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2, that this was information given at the Tribunal hearing for the purposes of that application.
Mr Johnson also referred to NBKT v Minister for Immigration & Multicultural Affairs [2006] FCAFC 195, where the Full Court considered whether s.424A(3)(b) can apply with respect to information arising from questions asked during a hearing. It indicated the importance to consider carefully the nature of the information said to fall within that provision, and the circumstances in which it was communicated to or elicited by the Tribunal. NBKT at [59] states that it was unhelpful to draw artificial distinctions between information which an applicant “put[s] forward in chief” (volunteered information), and information the Tribunal elicits through questioning (responsive information).
Mr Johnson also relied on Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264 which establishes that the Tribunal is not obliged to provide an applicant with an opportunity to comment on independent country information that it relies on in its decision as this is excluded from s.424A(1) by s.424A(3)(a). The Tribunal relied upon country information for the purposes of identifying inconsistencies in the oral evidence given by the applicant (CB 94). SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [18] states that there is no requirement for the Tribunal to provide its perceived inconsistencies to an applicant for comment under s.424A(1).
I agree with the submissions made by Mr Johnson that the applicant’s claims in relation to an alleged breach of s.424A have not been made out. In the absence of particulars identifying how the Tribunal breached the provision, I am satisfied that the first respondent’s submissions sufficiently cover any possible breach although the applicant has been unable to properly articulate his claim.

Ground three

I never ever believe that my application has been assessed by the Tribunal, fairly and carefully.

This ground is not supported by particulars and appears to be a general statement of disappointment in the outcome of the Tribunal decision. If the applicant is attempting to claim a lack of procedural fairness, the Tribunal is bound by s.422B of the Act which is an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. A fair reading of the Tribunal decision does not disclose any conduct indicating that the Tribunal did not comply with s.422B.

Alternatively, if the applicant is attempting to claim that the Tribunal member was biased, this is unsupported by any particulars. Actual bias can be said to exist where the Tribunal member had a pre-existing state of mind which disabled him from undertaking or rendered him unwilling to undertake a proper evaluation of the materials before him relevant to the decision to be made: Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 at [35] and [72]. Actual bias may be said to exist where the Tribunal was so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or argument may have been presented. A party alleging actual bias on the decision-maker’s part carries a heavy onus that must be clearly proved. A case of actual bias is seldom made out by reference solely to the reasons for decision and no inference of bias or pre-judgment can be drawn from the mere fact of an adverse finding: VFAB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 102 at [21].
Apprehended bias will exist where a fair minded lay observer, who is properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, would not apprehend that the Tribunal member might not bring an impartial mind to the resolution of the question to be decided: Re:Refugee Review Tribunal, Ex Parte H (2001) 75 ALJR 982 at [27]. In the circumstances, in the absence of any specific claim as to bias and with no transcript evidence before this Court, a claim of bias cannot be sustained.

Conclusion

The applicant is a self-represented litigant who appeared at the hearing with the assistance of a Mandarin interpreter. The applicant complied with Court orders to file an amended application setting out his particularised grounds of review. The applicant appears to have been assisted in the preparation of this document by a third party with a limited understanding of migration law. The amended application does nothing more than state two very broad principles of administrative review and contains no particulars which identify the alleged errors. The particulars that have been pleaded are an amplification of the basic claim and bear no relevance to the Tribunal decision. I am satisfied that Mr Johnson has correctly and adequately addressed the grounds pleaded in the amended application. As this is a self-represented litigant, the Court is further obliged to review the Court Book and, in particular, the Tribunal decision. I have done so but have been unable to identify any error on the face of those documents. I am satisfied that no jurisdictional error is apparent and that the application must be dismissed.
I am satisfied that an order for costs should be made in this matter and I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate:

Date: 15 January 2008