SZLSC v Minister for Immigration - [2008] FMCA 376

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLSC & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 376

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal was biased – whether the Refugee Review Tribunal failed to have replied to the applicant’s evidence.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424A; 424A(1); 474; pt.8 div.2

Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28
NADH of 2001 & Others v Minister for Immigration and Multicultural and Indigenous Affairs 214 ALR 264
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Abebe v Commonwealth of Australia (1999) 162 ALR 1

First Applicant:

SZLSC

Second Applicant:

SZLSD

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 3707 of 2007

Judgment of:

Emmett FM

Hearing date:

14 March 2008

Date of last submission:

14 March 2008

Delivered at:

Sydney

Delivered on:

1 April 2008

REPRESENTATION

Applicants appearing on their own behalf

Counsel for the Respondent:

Ms L. Clegg

Solicitors for the Respondent:

Ms M. Palmer, Sparke Helmore

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3707 of 2007

SZLSC

First Applicant

SZLSD

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 18 October 2007 and handed down on 30 October 2007.
The first named applicant is the husband of the second named applicant. The applicants are citizens of the People’s Republic of China (“the PRC”). The first named applicant arrived in Australia on

14 February 2007
and the second named applicant arrived in Australia on 2 April 2006.
On 13 February 2007, the applicants lodged an application for protection visas with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”). The application of the second named applicant is dependent on the outcome of the first named applicant’s application. Accordingly, these reasons consider the position of the first named applicant (“the Applicant”).

The Applicant’s claims

In support of the application for a protection visa, the Applicant provided a statement dated 12 February 2007 in which he claimed that he established a nursery of young fruit trees and plants in May 1998 in the Fuqing province in the PRC.
The Applicant stated that in 2003 the Qingchuan Agricultural Bureau (“the Agricultural Bureau”) commenced ordering young trees from the Applicant’s nurseries. The Applicant stated that in 2006 his trees were transported to the Agricultural Bureau, however, the Agricultural Bureau refused to pay the Applicant. The Applicant stated that he sought help from the “People’s Court or the People’s Procurators or the People’s Congress”, all of whom refused him assistance.
The Applicant stated that between 6 and 10 November 2006 he and his staff visited the Agricultural Bureau everyday seeking payment. He stated that on 10 November 2006 he and his staff had a “sit-in protest” in front of the Agricultural Bureau. The Applicant stated that his sit-in protest attracted “wide support from the public”. The Applicant stated that about 200 or 300 people ultimately joined him and his staff, as a result of which, he was then perceived as having “organised an anti-government movement in the public.”
The Applicant stated that he and others from Fuqing province were then arrested by the Public Security Bureau (“the PSB”) and detained for three weeks. The Applicant stated that during that period he was interrogated everyday and “cruelly tortured”.
The Applicant stated that following his release he was made to pay a fine and has been under the surveillance of the PSB in Fuqing since that time as he was perceived to be an anti-government trouble maker.
The Applicant stated that the Agricultural Bureau still owed him money for the trees. He stated that in December 2006 he wrote to the Central Government in Beijing three times asking the Government to investigate the corruption of the Agricultural Bureau and the PSB in Qingchuan County.
The Applicant stated that on 25 December 2006 he was informed by a friend that the PSB was intending to take action against him. He stated that, as a consequence, he first hid at a friend’s place and then left the PRC on a false passport issued in another’s name.

The Delegate’s decision

On 22 February 2007, a Delegate of the Minister refused the applicants protection visas. The Delegate accepted that the Applicant may have been a victim of corruption. However, based on independent country information, the Delegate did not accept that the Applicant could not seek protection from the authorities. The Delegate was not satisfied about the Applicant’s claims of leading a sit-down protest of 300 people and the subsequent adverse attention of authorities, including his alleged imprisonment and mistreatment. The Delegate did not accept that the Applicant was of adverse interest to the authorities when he left the PRC necessitating his obtaining a fraudulent passport.

The Tribunal review and decision

On 23 March 2007, the Applicant lodged an application for review of the Delegate’s decision with the Refugee Review Tribunal (“the Tribunal”). On 22 May 2007, the Applicant provided a statutory declaration to the Tribunal in support of his review application. The statutory declaration expanded on the claims previously made by him.
On 8 June 2007, the Tribunal wrote to the Applicant pursuant to s.424A of the Act in which it referred to evidence before it that the Applicant’s passport was a genuine Chinese passport and that the Applicant’s identity card was genuine. The letter noted that the Applicant stated that he had “left China with a passport using the other’s name”. The letter noted that in his protection visa application the Applicant gave two names, one name as “also known as”. It noted that the Applicant had stated that he was married to the second named applicant whose passport was in her correct name. The letter informed the Applicant that because of this information, the Tribunal may conclude that he was not the person he claims to be and he is not married to the second named applicant. The letter stated that such information may lead the Tribunal to conclude that the Applicant was not truthful in his protection visa application and therefore may not be a credible witness.
The Tribunal also noted in the letter that the second named applicant had said she was the wife of the applicant and had a son in Australia as a student. The Tribunal said that this information was relevant because it contradicted the information provided by the Applicant that the passport on which he entered was genuine, but in the name of another. The Tribunal stated that that information may cause it to conclude that the second named applicant was not truthful.
On 22 June 2007, the Tribunal received a response to the s.424A letter in the form of a statutory declaration by the Applicant and a photograph of the Applicant’s family taken in 2005. In his statutory declaration, the Applicant stated that he was married to the second named applicant with whom he had two children, and that his wife and first son are currently in Australia. The statutory declaration also confirmed that the name on his passport was “definitely not my real name”.
On 13 August 2007, the Applicant attended a hearing before the Tribunal. Following that hearing, the Tribunal sent the applicants a further letter dated 17 August 2007 pursuant to s.424A.
The Tribunal’s letter informed the Applicant of inconsistencies in his evidence and that of his wife in relation to the Applicant’s assertion that he said he wanted to visit Australia to visit his wife who was sick. The tribunal’s letter pointed out that the Applicant’s wife had not mentioned that she was sick in her evidence to the Tribunal and told the Tribunal that the Applicant simply wished to visit her and her son in Australia.
In particular, the letter informed the Applicant of gaps in the evidence of his wife about her knowledge of his activities. The letter informed the Applicant that the gaps relating to his wife’s knowledge about his activities were in respect of matters that the Tribunal would ordinarily expect the Applicant to have told her about once he was in Australia. The letter informed the Applicant that this information may lead the Tribunal to place little reliance on his wife’s evidence and the Tribunal may conclude that the events alleged by the Applicant did not take place as alleged. The Tribunal informed the Applicant that, in the alternative, his wife’s lack of knowledge may lead the Tribunal to conclude that she was evasive in giving her evidence and not a truthful or credible witness.
The letter also informed the Applicant of other information that may be part of the reason that the Tribunal affirmed the decision under review, including information provided by the Applicant in his protection visa application that was inconsistent with his oral evidence.
On 3 September 2007, the Tribunal received a response from the Applicant by way of a further statutory declaration in which the Applicant sought to address the Tribunal’s concerns.
In relation to his wife’s knowledge of his PRC activities, the Applicant stated that he “dared not to tell any sensitive things to my wife” because of “strict monitoring system over the system’s communication such as phone with the people in the overseas by the PRC authorities.” The Applicant stated that he had tried to explain his difficulties to his wife since arriving in Australia, however “it is really not easy for her to understand it owing to her poor education background.” The Applicant also stated that his wife, the second named applicant, “was scared and very much nervous while she was questioned at the hearing before the Tribunal.”
In its decision record the Tribunal summarised with particularity the Applicant’s claims made in his protection visa application; recorded the evidence given by the Applicant at the first hearing; noted matters explored by the Tribunal with the Applicant; identified matters of concern about the Applicant’s evidence; and noted with particularity the evidence of the second named Applicant, his wife.
Following the first hearing, the Tribunal sent the passports of the applicants to the document examination unit of the Department of Immigration and Citizenship for examination. The Tribunal noted the results that the Applicant’s identity card was genuine, the passport in the name of the second applicant was genuine, and that the passport in the name other than the Applicant’s was a genuine PRC passport.
In its decision record, the Tribunal noted the contents of the Applicant’s statutory declaration dated 23 May 2007, which expanded on the Applicant’s claims.
The Tribunal quoted its s.424A letter dated 8 June 2007 and noted the Applicant’s response dated 22 June 2007, including the photograph allegedly of the Applicant and his family.
The Tribunal referred in detail to the evidence of the applicants at the second hearing on 13 August 2007. The Tribunal noted matters of concern it raised with the Applicant, such as the issue of an apparently genuine passport in the name of another, and other concerns raised by the Tribunal in its s.424A letter. The Tribunal then noted the evidence provided at that hearing by the second named applicant. The Tribunal then quoted in full its second s.424A letter, dated 17 August 2007, and noted that the Applicant responded by way of statutory declaration, dated 31 August 2007.
Ultimately, the Tribunal was satisfied that the Applicant’s identity was as he claimed and that both applicants were citizens of the PRC. The Tribunal also accepted that the photograph provided by the Applicant was of his family.
However, the Tribunal was troubled by the contradictory and inconsistent evidence provided by the applicants at the hearings. The Tribunal was not satisfied by the explanations offered by the Applicant in respect of matters raised by the Tribunal in its s.424A letters. The Tribunal was not satisfied that the Applicant staged a sit-in, was arrested and detained as alleged. The Tribunal found that the Applicant was not of interest to the PSB and was not being monitored by them as alleged. Accordingly, the Tribunal was not satisfied that the Applicant would be at risk if he were to return to the PRC.
The Tribunal noted that it considered the Applicant’s claims independently and cumulatively and that it was not satisfied that the Applicant had suffered any of the claimed harm, nor that there is a real chance of Convention related harm occurring to him in the reasonably foreseeable future if he were to return to the PRC.
The Tribunal affirmed the decision under review.

The proceeding before this Court

On 30 November 2007, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
The Applicant appeared before this Court unrepresented although had the assistance of an interpreter. The Applicant confirmed that he appeared for the second named applicant who was also present in Court.
The Applicant confirmed that he relied upon the grounds identified in the application filed by him on 30 November 2007. Each of the grounds and particulars were read to the Applicant for his assistance. The grounds are bare assertions of error, however, I have understood the Applicant’s complaints to be as distilled in the particulars which are summarised and dealt with below.
The Applicant was invited to make submissions in support of any of the grounds and in support of his application generally. The Applicant read pre-prepared submissions that essentially repeated the matters referred to in the grounds and particulars of the application.
At the heart of the Applicant’s complaint was the Tribunal’s failure to accept the truthfulness of his evidence.
For the first time, during his oral submissions, the Applicant alleged that the Tribunal was biased against him. The Applicant offered no evidence or particulars in support of his allegation of bias.
A fair reading of the Tribunal’s decision does not disclose any prejudgment on the part of the Tribunal in the sense that the Tribunal was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented.” (Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17 at [69], [71]-[72], [127]).
A fair reading of the Tribunal’s decision does not suggest that the Tribunal approached its task other than open with a mind open to persuasion. There is no evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind in determining the application for review (Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 at [27]-[32]; NADH of 2001 & Others v Minister for Immigration and Multicultural and Indigenous Affairs 214 ALR 264 at [115]).
Accordingly, such allegation is rejected.
The First Respondent in written submissions accurately distilled the Applicant’s application to five grounds. I propose to consider those grounds in accordance with the distillation made by counsel for the First Respondent.
Ground 1 appears to be a complaint by the Applicant that the Tribunal, in accepting that the Applicant’s identity is as claimed, failed to have regard to the Applicant’s evidence about why he entered Australia on a passport not in his name.
However, the Tribunal referred to that information in its s.424A letter dated 8 June 2007.
Further, a fair reading of the Tribunal’s reasons make clear that the Tribunal was aware of the Applicant’s allegation that he was obliged to obtain a passport in a false name because he was of interest to the authorities in the PRC in respect of whom he had a well-founded fear of persecution. The Tribunal was not satisfied that the Applicant was of adverse interest to the authorities; nor, was the Tribunal satisfied that the Applicant had engaged in the conduct which he alleged gave rise to his persecution.
In the circumstances, a fair reading of the Tribunal’s decision record makes clear that the Tribunal considered the Applicant’s explanation as to the reason why he obtained a passport in a false name and was not satisfied about the explanation. Those findings are findings of fact, including the adverse credibility finding. Those findings were open to the Tribunal on the evidence and material before it and for which it gave reasons. Findings in relation to credibility are a matter for the Tribunal “par excellence” (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
Accordingly this complaint is not made out.
Ground 2 appears to assert that, if the Tribunal found the Applicant’s wife to be “a competent witness but was very vague and evasive”, then the Tribunal should have “inferred that my evidences were detailed and clear.”
This ground goes on to assert that it was unfair for the Tribunal to give weight to the Applicant’s wife evidence in relation to the claims of past persecution allegedly suffered by the Applicant when she was not present.
However, a fair reading of the Tribunal decision makes clear that the Tribunal accepted that the wife was unaware of the events and that she did not have personal knowledge of them. The Tribunal also accepted that the Applicant may not have spoken to her about these events while he was still in the PRC. However, the Tribunal found that it was “difficult to accept that a person in the primary applicant’s situation, who had made claims of persecution in China, would not tell his wife about them once he could freely and privately do so in Australia.”
The Tribunal noted the Applicant’s explanation that he had tried to explain his difficulties to her but that it was not easy for her to understand because of her poor education. However, the Tribunal found the Applicant to be “a competent witness”, and that her lack of education did not appear to be a “barrier to her understanding the situation in relation to other matters, such as regarding her son in Australia and the appeal process.”
The Tribunal was not satisfied that the events occurred as alleged on the Applicant’s evidence alone and found that it was reasonable to expect corroboration by the second named applicant, if, indeed, the Applicant had staged a “sit-in in Sichuan province and was arrested and detained in Sichuan.”
A fair reading of the Tribunal’s decision record makes clear that the Tribunal considered the wife’s evidence; informed the applicants of its concerns about the fact that the Applicant had not told his wife about his alleged persecution in the PRC; and considered the responses by the Applicant. The Tribunal then made findings that were open to it on the evidence and material before it and for which it provided reasons.
To the extent that ground 2 appears to suggest that because the Tribunal found the Applicant’s wife to be “very vague and evasive”, it therefore was appropriate to infer that the Applicant’s evidence was detailed in fear, is not a complaint of any substance.

Accordingly, ground 2 is not made out.
Ground 3 makes a similar complaint as referred to in ground 2. The ground appears to repeat the same misconceived complaint that the Tribunal was rejecting the Applicant’s evidence in respect of past persecution because his wife was unable to corroborate them in circumstances where she had been “thousands of miles away.”
However, as referred to above in these Reasons, it was the fact that the Applicant had not informed his wife about any of the events that he alleged gave rise to his harm in the PRC, once he had arrived in Australia, that caused the Tribunal to find that the Applicant’s allegations were uncorroborated.
In any event, it was not only the lack of corroboration for the Applicant’s claims that caused the Tribunal to make adverse findings. The Tribunal was also concerned by the inconsistencies in the evidence provided by the wife and the Applicant.
As stated above in these Reasons, these findings were open to the Tribunal on the evidence and material before it and for which it provided reasons.
Accordingly, ground 3 is rejected.
Ground 4 appears to contend that the Tribunal wrongfully rejected the Applicant’s evidence on the basis that it was “not persuaded” and that the only evidence in support of the Applicant’s claims was that of the Applicant.
If this ground is no more than a disagreement with the Tribunal’s ultimate findings and conclusions and the Tribunal’s failure to accept the claims of the applicants as alleged, then such a complaint invites merits review which this Court cannot undertake (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10]; Abebe v Commonwealth of Australia (1999) 162 ALR 1).
If this ground is asserting that the Tribunal rejected that Applicant’s claims because of a lack of corroboration only, a fair reading of the Tribunal’s decision discloses that, at the heart of the Tribunal’s lack of satisfaction about the Applicant’s claims to be a refugee, was the internally contradictory and inconsistent evidence given by the applicants. As stated above in these Reasons, those findings by the Tribunal were open to it on the evidence and material before it and for which it provided reasons.
Accordingly, ground 4 is not made out.
Ground 5 makes the general assertion that the Applicant has “never agreed that my application has been assessed by the Tribunal fairly and carefully.” Such an allegation is unsupported by particulars and does not disclose an error capable of review by this Court.
A fair reading of the Tribunal’s reasons does not support the allegation that the Tribunal did not “fairly and carefully” consider the Applicant’s application. Indeed, the Tribunal invited the applicants to give evidence on two occasions and sent two letters pursuant to s.424A. The information in the second s.424A letter dated, 17 August 2007, went further than the obligations under s.424A(1) in that it disclosed the reasoning process that it was likely to adopt in respect of its evaluation of the second applicant’s evidence.
Accordingly ground 5 is rejected.

Conclusion

A fair reading of the Tribunal’s decision makes it clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant; had regard to all material provided in support, and, made findings based on the evidence and material before it. Those findings of fact, including adverse credibility findings, were open to the Tribunal on the evidence and material before it and for which it provided reasons. A fair reading of the Tribunal’s decision makes clear that the Tribunal applied the correct law to those findings and made conclusions based on the findings made by it on the evidence and material before it.
In the circumstances, the Tribunal complied with the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court is dismissed with costs.

I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate: S. Kwong

Date: 1 April 2008