SZLUU v Minister for Immigration - [2008] FMCA 770

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLUU v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 770

MIGRATION – RRT decision – Chinese applicant claiming fear of employer and police – disbelieved by Tribunal – no misunderstanding of claims – no jurisdictional error found.

Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1
Re Refugee Review Tribunal & Anor; Ex parte H (2001) 179 ALR 425

Applicant:

SZLUU

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3942 of 2007

Judgment of:

Smith FM

Hearing date:

2 June 2008

Delivered at:

Sydney

Delivered on:

2 June 2008

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Mr T Reilly

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $4,800.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3942 of 2007

SZLUU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant arrived in Australia in early April 2007 on a Chinese passport genuinely issued to him, but containing an Australian temporary business visa which had been issued on the basis of false documentation, suggesting that he was part of a business delegation to study technology involved in hydroponics. The documentation was elaborate, and included several photographs of the applicant.
On 4 May 2007 a migration agent lodged an application for a protection visa on the applicant’s behalf. Attached to it was a statutory declaration setting out a claimed history upon which he feared return to the People’s Republic of China. In the statutory declaration, the applicant referred to having left his home in Fujian province to seek work as a construction labourer in X city, in another province. He said that, with many other workers in that industry, he had difficulty extracting payment for his services. He referred to a demonstration held in December 2005 to protest against unpaid labour fees, but it is unclear whether he claimed to have participated in it. He said that he was subsequently paid, and that the following year he returned to X city and resumed his employment, in company with a friend.
He claimed that in October 2006 he witnessed his friend being so seriously beaten up when demanding unpaid wages, that the friend subsequently died in hospital. He claimed that he was threatened not to reveal the truth and that, when he did report it to the Public Security Bureau, he was beaten up by the employer and his bodyguards, and asked to leave the city without receiving his own labour fee. The police accepted the employer’s story that there had been a workplace accident. He claimed: “I did not give up”. He brought his friend’s family and other people to X city to find out the truth. However, the police “put me into the detention centre with an excuse that I had incited anti‑government movement, I was cruelly tortured by those police at the detention centre for one month”. He claimed to have been released after his wife paid bribes. His statement concluded:
(18)After that, I have found that it has become very difficult for me to get survive in that country. With a “black” record that I have been detained by the PSB owing to my anti‑government movement, I have been regarded as a “trouble maker” by the government. As a result, I have frequently been questioned by the local police station; and it is very hard for me to get a stable job, because those people, who were willing to offer me a chance, were always given warning that I was a “trouble maker” with “black” record. In the end, I have to decide to leave China in order to escape from persecution permanently.
(19)On 5 April 2007, I finally left China with great helps of my friends. I have to seek a protection in Australia, because I do indeed have a well‑founded fear of being persecuted on my return.
No support for these claims was provided to the Department of Immigration, and a delegate refused the application on 30 May 2007. The delegate provided numerous reasons for her decision, including not being satisfied as to the credibility of the applicant’s claims. The delegate also relied upon some dubious reasoning in relation to what can constitute persecution by reason of political opinion under the Refugees Convention, but this reasoning was not followed when the matter came to be considered by the Tribunal.
On appeal, the applicant was represented by his migration agent. He attended a hearing held by the Tribunal on 6 September 2007. He was subsequently given the tapes of the hearing, but has not presented a transcript to the Court.
According to the Tribunal, the applicant presented two documents purporting to be summonses from the Chinese Public Security Bureau. The first summoned him to attend at the X city branch of the Public Security Bureau on 15 April 2007. The second was in same terms, but purported to have been issued from his hometown city Public Security Bureau, and required him to report on 21 April 2007. The applicant made claims about these documents, and that he was actively sought by the police in China, at the commencement of the hearing before the Tribunal. The Tribunal described this:
Asked why he left China the Applicant said it was because he was being persecuted by the police. Asked what he feared would happen to him if he returned he said he had lost his human rights in China and he feared the PSB would arrest him if he returned. Asked why they would wish to do this he said he was considered as a trouble maker involved in anti‑government activities. This was why he had been summonsed for questioning. Asked what he meant by this he said the PSB wanted to find out what he had been doing lately in China. The summonses were sent to him after he left China. He submitted two documents which he said were summonses from the PSB in [X city] and [his home city] and which required him to report to the PSB. Asked when he had received the summons from the [X city] PSB he said it was delivered to his former address there after he left China. Asked how he had obtained the documents he said the [X city] police sent the summons to his former address there and it was forwarded on to his wife by someone from [his home city].
The Tribunal closely questioned the applicant about the origin of these summonses. It raised questions about their genuineness, and why there had been a delay in his receiving them from his wife. The Tribunal also questioned the applicant about how he had come to Australia. He claimed not to have known how a friend obtained the visa and his passport, and he also claimed that the friend had bribed officials at the airport to assist his departure.
After the hearing, the Tribunal raised a number of the concerns which it had already put to the applicant at the hearing, in a letter inviting written comments. In response, the applicant’s agent forwarded a further statutory declaration seeking to explain these matters.
In a decision handed down on 22 November 2007, the Tribunal affirmed the delegate’s decision. It narrated the course of the applicant’s claims and the hearing, and the subsequent correspondence. In its “Findings and Reasons”, the Tribunal identified the claim put at the forefront of the applicant’s evidence at the hearing, i.e., that he would be arrested if he returned, and the basis upon which that claim had been presented by the applicant by way of the tender of the two summonses, and his claims as to what he had been told by his wife about police visits.
The Tribunal identified a number of reasons why it did not believe the authenticity of these documents, nor the applicant’s explanations for the delay in presenting evidence that he was being sought by police, nor his explanations as to how he was able to leave China by bribing airport officials. The Tribunal arrived at a conclusion that it was not satisfied “that the Applicant can have been of any adverse interest to the Chinese authorities at the time he left the country”.
The Tribunal concluded:
Having considered all the information before the Tribunal on this issue I am not satisfied that the Applicant has provided a credible explanation for the late appearance of his claimed fear of arrest. I am not satisfied that any evidentiary weight can be placed on the two documents which are said to be summonses issued to him by the PSB offices in [X city] and [his home city]. I am not satisfied that his claim to have been summonsed by the PSB and to be at consequent risk of arrest by them is anything more than a recent invention intended to bolster his case for protection and I am not satisfied that it is true. Nor am I satisfied as to the truth of the associated claim, advanced by the Applicant at the hearing, that police have regularly visited his house in [his home city] to ask for his whereabouts, forcing his wife to leave the house and go to live with her parents.
In the light of these adverse findings, the Tribunal said that it could not be satisfied as to the general credibility of the other parts of the applicant’s claims, since they were unsubstantiated from any external source. It said:
As a consequence I am not satisfied that his assertions concerning possible harm from a labour contractor in [X city] or an inability to find work in China are credible and I do not accept them.
The Tribunal was not satisfied as to the truth of any of the relevant history presented to the Tribunal by the applicant, and was not satisfied that he had a well‑founded fear of persecution for real or imputed political opinion or any other Convention reason should he return to China.
The applicant now asks the Court to set aside the Tribunal’s decision, and to send the matter back to the Tribunal. I can only make these orders if I am satisfied that the Tribunal’s decision is affected by jurisdictional error. I do not have power myself to decide whether the applicant is a refugee, nor whether he should be given permission to stay in Australia for any reason.
The applicant relies on four grounds of review which are explained in his original application. The arguments were repeated orally by the applicant today, reading from a statement prepared for him. The first ground refers to the Tribunal’s reasoning in its first paragraph under the heading “Fear of Arrest”:
In the first place the Applicant’s claims concerning his fear of arrest are new. They were not mentioned by him in his application for protection, in which his claimed fears centre on his inability to find a job because he has been blacklisted, in his application for review or at any time prior to the Tribunal hearing. His explanation for this at the hearing was that the two summonses said to have been issued by the PSB in [X city] and in [his home city] only reached his wife after he left China and that he only asked her to send them to him after he received his invitation to the hearing. He said he had not dared to ask her to post them to him before this. He expands on this in his response to the Tribunal’s letter of 11 October 2007 by claiming that his wife did not tell him about the summonses because she was worried that the PSB monitored their telephone conversations and because she did not wish him to worry. He claims she later told him about them but could not find a safe way to send them to him until 30 August 2007 ‘with the help of her friends.’
The applicant argues that the Tribunal incorrectly identified in this paragraph, and in some of its subsequent statements, that the applicant had made a “new” claim as to a fear of arrest. He argues that it was implicit in his original statement in paragraph 18 which I have quoted above, that he had a fear of harassment by police when he left China. In effect, it is contended that the Tribunal made the jurisdictional error described by the Full Court in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 at [63]:
… It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. …
Counsel for the Minister submitted that, if the Tribunal had overlooked an implication in the applicant’s original statement that he was claiming a current fear of police harassment, this would have been an error of fact only, not providing jurisdictional error. He submitted that the error was analogous to the error of fact which the Full Court found in NABE not to be jurisdictional.
I am not persuaded that the Minister’s argument should succeed. However, I have concluded that, properly understood, the Tribunal’s reasoning does not show that it misunderstood the claims which had originally been made by the applicant in his statutory declaration, nor that it failed to address them.
Before making the statements now attacked by the applicant, the Tribunal had set out his original claims. In the course of its “Findings and Reasons” it also referred to the applicant’s original claim that he “was subjected to repeated harassment by the [home city] PSB”, when it discussed the likelihood that the police in X city would still have been looking for him there. I am not persuaded that it overlooked this part of the original claims.
In my opinion, it is clear that the Tribunal’s reference to a “new” claim to fear arrest was to the claim made by the applicant at the start of the hearing, that very soon after he left China summonses had been issued by the PSB in two cities and that the police were actively looking for him. It was that claim which the Tribunal then addressed over its subsequent two pages of its reasoning. As I have indicated, it used this new part of the applicant’s claims to test his general veracity. It found various reasons for rejecting the new claim that, in effect, he was of particular adverse interest to the Chinese authorities at around the time he left the country. In my opinion, this did not involve any misunderstanding of any of the applicant’s refugee claims.
I therefore am not persuaded that a jurisdictional error of the type referred to by the Full Court in NABE has occurred in this case.
The second ground in the application contends that the Tribunal’s decision “has included a reasonable apprehensive bias”. The two reasons given in support of this contention are that the Tribunal unreasonably expected the applicant to explain why the police in X city would have been looking for him in that city, and then based its reasoning which rejected his new claim on the ground of improbability of that event. This is attacked on the ground that it involved “unwarranted assumption”.
I am inclined to the opinion that the Tribunal’s reasoning shows no more than the drawing of inferences which were open on the evidence. However, even were the Tribunal’s reasoning to be open to valid criticism based on logic, I do not consider that the points made by the applicant give any substance to a contention of actual or apprehended bias under principles referred to in Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 and Re Refugee Review Tribunal & Anor; Ex parte H (2001) 179 ALR 425. It was the Tribunal’s duty to make a genuine effort to arrive at findings as to the veracity of the history claimed by the applicant. The fact that it arrived at adverse conclusions does not itself provide any evidence that it had a closed mind to his evidence before it arrived at its decision. On the evidence before me, there is nothing in the surrounding reasoning of the Tribunal, nor in its procedures, which suggests any bias to me. I therefore do not accept this ground.
The third ground contends that “the Tribunal failed to consider my claims properly and fairly”. It is then argued that the Tribunal failed to appreciate the explanations which the applicant put forward in response to the Tribunal’s invitation for comments. However, it is clear that the Tribunal fully considered those explanations. It discussed them, and rejected them. Indeed, it found implausibility in what it was being asked to believe, which supported its general doubt about the applicant’s credibility.
Similarly, I consider that the other two points made under this ground, concerning the Tribunal’s reasoning about the applicant’s evidence, do no more than argue with the merits of that reasoning. I am not persuaded that the Tribunal did not genuinely consider all the evidence before it. I consider that its conclusions were open to it. In my opinion, the Tribunal’s conclusions on credibility were not affected by any jurisdictional error.
For the above reasons, I do not accept any of the arguments presented by the applicant. I am not satisfied that the Tribunal’s decision was affected by jurisdictional error. I must therefore dismiss the application.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 16 June 2008