SZKSN v Minister for Immigration - [2008] FMCA 334

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKSN v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 334

MIGRATION – RRT decision – Chinese applicant claiming political persecution – disbelieved by Tribunal – no jurisdictional error established – application dismissed.

Migration Act 1958 (Cth), ss.424A(1), 424A(3)(b)

Re Refugee Review Tribunal & Anor; Ex parte H (2001) 179 ALR 425
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152

Applicant:

SZKSN

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG1747 of 2007

Judgment of:

Smith FM

Hearing date:

25 February 2008

Delivered at:

Sydney

Delivered on:

25 February 2008

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms N Johnson

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $3,200.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1747 of 2007

SZKSN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant came to Australia in August 2006. On 8 September 2006, a migration agent, Priscilla Yu, lodged a protection visa application on his behalf. It attached a statutory declaration containing a narrative of what the applicant claimed to have occurred in the People’s Republic of China, which left him fearful of return.
The applicant claimed to have hairdressing qualifications and experience, and in January 2004 to have opened a hairdressing salon in a province away from his home. He claimed that while he was absent from his business on a visit home, Mr Z, a person who worked with him in the salon, was arrested by police who had visited the salon seeking to locate a friend of the applicant, Mr L. Mr L was wanted by police for having organised a sit‑in protest after his fertiliser business had been forced to stop production by corrupt officials. The applicant claimed that when he returned to his business, he went to the Public Security Bureau to save Mr Z, but he was arrested. The police tried to obtain information about Mr L from him, and he was detained, subjected to inhuman treatment by the police, physically mistreated, and interrogated many times. However, he was released because “I really knew nothing about it, because I was not in [the province] while Mr L had been in troubles”. However, Mr Z was detained in detention, and was sent for two years re‑education through labour.
The applicant claims to have “many time required the PSB, the court, the procurators, and other relevant government agencies to re‑investigate Mr Z’s case”. However, this incurred more police harassment, and in April 2006 the police broke into his salon, alleging that it had become a “secret liaison centre of an anti‑government organisation”. Everything was destroyed, and the applicant was cruelly beaten by many police in a dark room, and was then held for one month. He was released “after I promised not to seek any appeal for my case and for my friend Mr Z and I also had to promise to leave [the province] and never come back”.
He then returned to his hometown, but “the policemen continually gave me troubles, because they had already been notified by the police [in the other province] that I am a ‘trouble maker’”. He claimed that he found it was impossible to escape from persecution, except by leaving the country, and that he had to “use a passport not in my genuine name” for this purpose.
A delegate refused the application on 28 November 2006. The delegate had interviewed the applicant before making her decision. She said that “his account of his claimed persecution was characteristic of someone who had rehearsed his interview responses on the basis of what he had written in his application”. She did not find his account to be convincing and credible, and indeed described aspects of it as “far fetched and implausible”, particularly concerning the account of his escape from China.
The delegate gave particular consideration to the fact that the applicant used a false passport. She said:
As I do not consider that the PRC authorities were adversely interested in the applicant as a result of his “anti‑government activities”, I consider that the applicant departed China on a bogus passport not due to a well founded fear of persecution but rather because of personal convenience. Based on the country information available I am satisfied that the applicant would not be subjected to treatment amounting to persecution should he return to China for his use of a bogus passport. I consider that the applicant used the bogus passport not because of his fear of persecution for a Convention reason but because the passport he used contained a valid Australian visa which he may not have been able to obtain otherwise.
The applicant was assisted by his agent to appeal to the Tribunal, and he attended a hearing on 29 March 2007. He presented to the Tribunal documents to corroborate his claimed identity and his hairdressing qualifications and business, but no other corroboration of his claims.
In a decision handed down on 8 May 2007, the Tribunal affirmed the delegate’s decision. It noted that the applicant had entered Australia on a passport containing photo substitution, which had not been detected when he left Hong Kong or entered Australia. It said: “The applicant clearly had access to persons who were able to produce convincing but fraudulent documentation”. However, it said that although it had reservations about the documents provided to the Tribunal, it was prepared to accept that he was a hairdresser by training and had opened a hairdressing salon in the province away from his home.
However, the Tribunal did not accept any of the applicant’s claimed history of persecution. It expressed a general view of him as a witness:
The Tribunal found the applicant to be an unconvincing witness. His oral evidence before the Tribunal was dense with dates when certain events occurred and names of persons involved. However when the Tribunal asked for details and sought information which was peripheral to these facts the applicant’s responses were vague and lacked detail. The applicant’s evidence before the Tribunal, particularly in relation to his detention and questioning by police and the circumstances of his release proved particularly unsatisfactory and the Tribunal will refer to these aspects of the applicant’s evidence in turn.
The Tribunal then addressed the various elements in the claimed history. It found implausibility in the claimed circumstances of the applicant’s first detention for seven days when he returned to his business. It described his account of efforts made on behalf of Mr Z’s behalf as “most unsatisfactory”. It found his account of being held for one month in April 2006 to be implausible, when there was no evidence against him. It also found implausible that the police in his home province would continue to harass him.
The Tribunal did not accept any of the elements in his history, in which he sought to explain his fear of return to China. It said that it was not satisfied that he was wanted by the Chinese authorities because of activities which were considered anti‑government. It was not satisfied that he had suffered serious harm amounting to persecution by reasons of actual or imputed political opinion, and was not satisfied that there was a real chance that he would suffer persecution in the reasonably foreseeable future if he returned to China.
The applicant now asks the Court to set aside the Tribunal’s orders, and to order it to reconsider his refugee claims. I can only make these orders if the Tribunal’s decision was affected by jurisdictional error. I do not have authority to decide whether the applicant should be believed, nor whether he should be granted a protection visa or any other permission to stay in Australia.
The applicant relies on four grounds of review which are elaborated in an amended application. He today read a submission which repeated these arguments.
The first ground is that the Tribunal “failed to take relevant material into account”. It is argued that the Tribunal failed to appreciate the significance of the applicant’s travel from China on a false passport as evidence in support of the truth of his claims.
It is very clear, in my opinion, that the Tribunal was aware of the applicant’s use of a false passport and of its significance to his claimed history. As I have indicated above, the delegate had specifically addressed that point, and the Tribunal’s extensive description of the hearing indicates that it spent a long time closely questioning the applicant about how he obtained a passport and travelled on it. At the end of the hearing the Tribunal appears to have put to the applicant some difficulties it had in accepting parts of this history. This appears to have included its suggestion that the friend who had assisted by providing the passport may “not have done so to assist him to avoid persecution but did so simply because this was his business”, that is, to assist travel out of China and into Australia.
Because I consider that the Tribunal was probably very alive to this aspect of the applicant’s claim, I am not prepared to draw an inference that it was later overlooked, from the absence of further discussion of it under the heading “Findings and Reasons”. As with the Tribunal’s view of the applicant’s identity and hairdressing documents, I think it likely that the Tribunal treated the possession of a false passport as being neutral in relation to the veracity of his claims. I therefore would not draw an inference that the Tribunal failed to appreciate that in some circumstances the possession of a false passport might lend support to the claims of a refugee claimant. I am not persuaded by the argument presented in support of Ground 1.
The second ground in the amended application contends that the Tribunal “made a decision with apprehended bias”. The argument in support of this contention relies entirely upon the merits of the Tribunal’s factual reasoning concerning the applicant’s evidence. No transcript has been tendered to the Court to suggest that a finding supporting an apprehension of bias could be made based on the conduct of the hearing. Rather, as I have indicated, the Tribunal’s description of the hearing shows a very thorough and genuine attempt to assess the truth of the applicant’s claims with an open mind.
The applicant’s argument is that there were “unwarranted assumptions” or “poor knowledge” about the Chinese circumstances which undermined the Tribunal’s conclusions. However, this does not, in my opinion, lend any support for a finding of apprehended bias. It was the task of the Tribunal when it came to make its final decision to rule upon the history presented to it, and the fact that it made adverse findings does not show that it closed its mind before arriving at its final decision. The Tribunal’s reasoning and conclusions were not, in my opinion, unreasonable or not open to it on the evidence before it.
I am not persuaded that any of the arguments by the applicant establish that a lay observer “might reasonably apprehend that the [Tribunal] might not bring an impartial mind to the resolution of the question to be decided” within the principles explained by the High Court in Re Refugee Review Tribunal & Anor; Ex parte H (2001) 179 ALR 425.
The third ground in the amended application contends that “the Refugee Review Tribunal (“the Tribunal”) failed to comply with its obligations under s.424A(1) of the Act”. The argument which is presented is that the Tribunal relied upon information when making its conclusions which was “not the information that I have given to it”. It is then argued that the Tribunal was required to allow the applicant an opportunity to comment in writing upon that information.
However, in my opinion, this argument misconceives how the Tribunal reasoned, and the effect of s.424A(1) and s.424A(3)(b) of the Migration Act 1958 (Cth). The Tribunal is not obliged to invite written comments in relation to its reasoning processes concerning evidence given by an applicant to it at a hearing. In my opinion, the argument presented to the Court attempts only to challenge such reasoning by the Tribunal. I therefore do not accept this ground.
The fourth ground of the amended application contends that “the Tribunal failed to comply with its obligation under s.425(1) of the Act”. However, it provides no particulars of its allegation that the applicant was not given a genuine opportunity to give his oral evidence in support of his claims and to present his arguments.
In my opinion, on the evidence before me he was plainly given such an opportunity. As I have indicated above, the delegate’s reasons should have made it clear to the applicant that the general credibility of all his claimed history would be in issue in the proceedings in the Tribunal. The Tribunal’s account of its questioning suggests that this would also have been apparent from its questioning. In the absence of a transcript, in particular, I am not persuaded that there was any fresh issue upon which the applicant was denied an opportunity to address evidence and submissions (cf. SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152).
I have considered all the arguments presented by the applicant to the Court, and I am not persuaded that the Tribunal’s decision was affected by any jurisdictional error. I must, therefore, dismiss the application.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 19 March 2008