SZLHO v Minister for Immigration
[2008] FMCA 501
•24 April 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLHO v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 501 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – allegation that Tribunal’s decision was illogical was no more than emphatic disagreement with it – no breach of s.424A proved – no breach of s.425 proved – everything the applicant said was in issue – applicant had adequate opportunity to give evidence and present arguments. |
| Migration Act 1958, ss.422B, 424A, 425, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 81 ALJR 515 |
| Applicant: | SZLHO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2807 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 11 April 2008 |
| Date of Last Submission: | 11 April 2008 |
| Delivered at: | Sydney |
| Delivered on: | 24 April 2008 |
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 2807 of 2007
| SZLHO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of China where, he alleges, he signed a letter of complaint demanding compensation for the acquisition of local farmers’ land and that this subsequently led to him being arrested, detained and mistreated. The applicant arrived in Australia on 13 February 2007.
The applicant claims to fear persecution in China because of his actual or imputed political opinions.
After his arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on 2 April 2007. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 10 of the Tribunal’s decision (Court Book (“CB”) pages 73 – 79).
Protection visa application
In his protection visa application, the applicant made the following claims:
a)the applicant was in the Chinese navy from 1985 to 1990;
b)around 23 December 2006, a former navy colleague invited the applicant to a gathering of demobilised soldiers. At the gathering, another former colleague (“XQW”) told the applicant that the naval base had been expanded and that the navy had occupied land belonging to his family. Although they were promised compensation, this was never paid;
c)the applicant felt that the navy’s actions violated their idea of what the military stood for. He proposed sending a letter to the navy base demanding:
i)compensation for local farmers;
ii)payment of an agreed sum; and
iii)that the naval base respect “basic human rights” in the future;
d)everyone present agreed with the applicant’s suggestion. XQW wrote the letter and all those present signed it. XQW presented it to the Fujian naval base headquarters;
e)on 3 January 2007 local Public Security Bureau (“PSB”) officers accused the applicant of anti-government activity. They took him to the PSB and interrogated him until midnight. Everyone else at the gathering was detained too and XQW was arrested. The police asked the applicant to be an informer on XQW;
f)after his release, the applicant organised for the twenty people at the gathering to go to the PSB office in Ningde, where XQW had been detained, in order to demand his release;
g)the applicant and others were arrested for being supporters of XQW. They were:
i)detained from 8 to 12 January 2007;
ii)interrogated and mistreated both physically and mentally;
iii)forced to write letters confessing and renouncing their anti-government activities;
iv)fined RMB 5,000; and
v)warned that there would be further investigations;
h)despite the warnings from police the applicant refused to give up his activities. He tried to contact other soldiers asking them to petition for XQW’s release. From late January to early February 2007 the applicant organised about one hundred demobilised soldiers to send petitions to the government;
i)a reliable source told the applicant that he was suspected of inciting anti-government activities. He immediately went to Shanghai to escape persecution. After he departed China, police went to the applicant’s home to arrest him. Around this time, some ten demobilised soldiers, including XQW, had been arrested; and
j)the applicant was “regarded as a leader who incited demobilised soldiers to have anti-government movements” and feared persecution for this reason.
Tribunal hearing
At the Tribunal hearing the applicant made the following additional claims:
a)his problems with the police only started after his overseas trip to Thailand and Malaysia in December 2006; and
b)he was invited to the gathering of soldiers the day after his return from his trip.
The applicant also confirmed that he had lodged a business visa application prior to being tipped off about his pending arrest.
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 did not accept as credible the applicant’s claims about what happened after his return from his overseas trip in December 2006, on the basis that:
i)the applicant gave a hesitant and unsatisfactory account of what motivated him to embark on protest activity from 23 December 2006;
ii)he had not informed himself of the issue before getting involved in XQW’s problems; and
iii)the applicant played up the human rights character of the protest and minimised the practical issues which might have been the basis of XQW’s concerns, thereby contriving a Convention related claim, casting doubts on whether the event happened at all;
iv)he gave no evidence that he was political in the past;
v)he faltered in explaining why he was a leader;
vi)he gave no cogent reason as to why he would organise a protest when he lived at least 100km away from Ningde, where XQW, most of his ex-military colleagues and the relevant naval authorities were based;
vii)the Tribunal found the applicant’s account of his alleged periods of detention and their consequences contrived and unbelievable, stating:
A)it was curious that the applicant would resume political activities in Ningde given that the authorities there had escalated the issue by having the Fujian City PSB arrest him; and
B)the Tribunal found it troubling that despite the authorities’ close and harassing interest in the applicant, he was able to resume political activities and/or commence arrangements to leave China for Australia;
viii)it was illogical that even though the authorities were after the applicant in late January 2007, they waited until 14 February 2007 (the day after his departure) before they tried to arrest him having acted very quickly previously;
b)the Tribunal found that the applicant’s travel arrangements and orderly departure from China, including the lodging of a business visa application, were inconsistent with his claim that it was a flight from persecution;
c)the Tribunal dismissed the applicant’s claimed past political activities and the authorities’ alleged consequent actions against him as fabricated;
d)the Tribunal did not accept that the applicant had been involved in a land dispute, finding that the applicant had invented claims that were based on reports of such events rather than on his own experiences;
e)the Tribunal did not accept that the applicant had any information or reason to suspect that the authorities had any adverse interest in him for any reason at all and dismissed his claim of past harm; and
f)the Tribunal did not accept that the applicant had any attributes, actual or perceived, which will motivate him to pursue political matters in China which will attract the adverse attention of the authorities.
Proceedings in this Court
The grounds of the application can be summarised as follows:
a)Ground one:
i)the Tribunal’s decision was based on irrational and illogical reasoning or was based on unwarranted assumptions;
ii)the Tribunal failed to give consideration to relevant and significant evidence supporting the applicant’s claims;
iii)the Tribunal failed to assess evidence favouring the applicant;
iv)the Tribunal made its decision recklessly; and
v)the Tribunal failed to make a genuine attempt to exercise its jurisdiction;
b)Ground two: the Tribunal breached s.424A(1);
c)Ground three: the Tribunal breached s.425.
Ground one
As submitted by the Minister, the various elements of the first asserted ground of review, as illuminated by the particulars of that ground, reveal that it is no more than an attack on the Tribunal’s findings of fact and its determination as to the merits of the review application which was before it. The allegation that the Tribunal’s findings were irrational or illogical is, when viewed in light of the particulars, no more than an emphatic disagreement with the Tribunal’s conclusions. For instance, in the particulars, the following sentence appears:
So, it is definitely incorrect that the Tribunal made a finding that the applicant “gave no cogent reason as to why he organised the protest when he lived at leat [sic] 100km away from Ningde…”
Although the applicant asserts that the Tribunal proceeded on “unwarranted assumptions”, the Tribunal’s decision demonstrates that it undertook a careful analysis of the applicant’s factual allegations and reached a conclusion that they were not plausible. Indeed, far from failing “to give consideration to relevant and significant evidence” as alleged by the applicant, to reach its conclusion the Tribunal undertook a detailed consideration of the evidence he advanced. In this connection it should be observed that the applicant has not identified what evidence supporting the applicant’s claim the Tribunal failed to consider, other than referring in addresses to his reply to the Tribunal’s s.424A notice which, the Tribunal’s decision records, was specifically considered.
Further, rather than undertaking its task recklessly, as alleged, the Tribunal undertook a detailed assessment of the applicant’s allegations and concluded that they were unmeritorious.
Generally, as to the first asserted ground of review, I adopt the following passage from the first respondent’s outline of submissions:
Far from rejecting the applicant’s claims in relation to his involvement in protest activities, his detention by the PSB, his further political activities and his arrangements to leave Australia, on the basis of “unwarranted assumptions”, the Tribunal rejected the applicant’s claims on the basis of its assessment of his evidence, including the further evidence provided by the applicant in response to the s.424A letter sent by the Tribunal. Ultimately, it rejected the applicant’s claims because of its conclusion that he was not a credible witness. It was open to the Tribunal to take this approach. While the applicant may disagree with the Tribunal’s findings, he cannot re-agitate his claims, and the evidence he gave in support of those claims, in this Court. Nor can the applicant rely on the unfavourable result he obtained in the Tribunal for an inference that it did not make a genuine attempt to consider his claims.
Ground two: the Tribunal breached s.424A(1)
In the particulars of the second asserted ground of review the applicant says that the Tribunal failed to disclose “most of information that the Tribunal has considered as the reason or part of reason in making its final decision”. This asserted ground of review misunderstands the information which is required to be notified pursuant to s.424A(1), in that it does not take account of the exclusions found in s.424A(3) relating to information provided by the applicant for the purposes of the review and other information of a more general nature, not specifically about the applicant, and which is often described as independent country information.
The Tribunal’s decision was based principally upon the evidence which the applicant gave to the Tribunal at its hearing. To a lesser extent, the Tribunal referred to independent country information. However, only a small part of the Tribunal’s decision was based on other information and, to the extent that it was, it related to the applicant’s travel arrangements which were specifically raised in the s.424A(1) notice.
The Tribunal’s obligation to notify the applicant of adverse information is limited to the obligations found in s.424A. This results from s.422B’s codification of the natural justice hearing rule in those provisions found in div.4 of pt.7 of the Act. Section 424A is one of those provisions and no other one of them requires the Tribunal to notify an applicant of adverse information.
The Tribunal met its obligations under s.424A. Consequently, the second asserted ground of review is not made out.
Ground three:
The applicant particularised the third ground of review in the following terms:
The Tribunal failed to clearly make me to understand the issues raised in the review application, such as the issues in relation to my protests and my detention, so that I could not make my comment or present my arguments against the issues.
The Tribunal’s decision indicates that it sought evidence and submissions from the applicant on all the issues on which it based its decision. Moreover, at its hearing the Tribunal made it clear that it did not necessarily accept the applicant’s story. For instance, in relation to his claim to have been arrested on 3 January 2007 following the letter which was written by XQW following the gathering around 23 December 2006, the Tribunal said:
The Tribunal flagged its concerns about the apparent contradictions in what the applicant was claiming. The Tribunal noted that, at that stage, the applicant had done no more than suggest the letter; this was hardly political activism. (CB 76-77)
Later, the Tribunal records its comments at the conclusion of its hearing:
The Tribunal noted country information indicating that land issues were sometimes contentious, and that they could take on a political flavour. However, it registered concern about the credibility of the applicant’s claimed personal experiences, particularly taking into account the timing and location of the incidents; his ability to resume these even after the authorities had acted against him; and his involvement in his business visa application. (CB 77)
In SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 81 ALJR 515 the High Court noted that a Tribunal might indicate to an applicant that everything he or she says in support of his or her application is in issue. That is the case here. The Tribunal indicated to the applicant that everything he said was in issue with the result that it met its s.425 obligation to alert him to those issues which might be determinative of the review application.
In his oral submissions the applicant said that he had not been given a fair opportunity to give oral evidence. To the extent that this might be taken to mean he was prevented from giving all the evidence he wished to give at the Tribunal hearing, such a submission is unsupported by evidence and is contradicted by the contents of the Tribunal’s decision record. It is apparent that the Tribunal undertook an extensive enquiry during which the applicant provided evidence on all relevant issues. Moreover, the Tribunal records that, at the end of the hearing:
The applicant said that he had nothing to add; the hearing had covered his claims. (CB 77)
The applicant also submitted that the Tribunal had told him he could give further materials after the hearing but he was not given this opportunity. When questioned about this by the Court, the applicant was unable to articulate what this submission meant given that, after the hearing, he had submitted a statutory declaration in answer to the Tribunal’s s.424A notice. There is no evidence to suggest that the applicant had attempted to submit further material to the Tribunal and, in answer to the Court’s questions, he did not suggest that he had made such an attempt. In light of the above matters, this allegation cannot be 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-six (26) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 24 April 2008
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