SZMAD v Minister for Immigration - [2008] FMCA 620

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMAD v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 620

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China – Tribunal accepted claims of some past harm but rejected other claims pointing to a risk of future harm – Tribunal failing to resolve an issue it raised bearing on the genuineness of the applicant’s fear – no reviewable error found – application dismissed.

Migration Act 1958 (Cth), s.424A

Minister for Immigration v Zhou (1997) 191 CLR 559

Applicant:

SZMAD

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 503 of 2008

Judgment of:

Driver FM

Hearing date:

14 May 2008

Delivered at:

Sydney

Delivered on:

14 May 2008

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents:

Mr J Mitchell

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application is dismissed.
The first applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,800.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 503 of 2008

SZMAD

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was handed down on 5 February 2008. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The background facts relating to the applicant’s arrival in Australia, his protection visa claims and the Tribunal decision on them are conveniently set out in written submissions filed on behalf of the Minister on 7 May 2008. I adopt as background for the purposes of this judgment paragraphs 2.1 to 3.4 of those written submissions, with any necessary amendments:
The applicant is a citizen of the People’s Republic of China who arrived in Australia on 19 June 2007 and lodged an application for a protection visa (class XA) on 19 July 2007.
The applicant claimed that he worked in a state-owned construction company and was involved in a project to build a primary school in Shangcai County, Henan Province. The project was aimed at assisting AIDS victims in that County and had the support of a local government leader. The applicant claimed that the project was terminated in August 2005 by the local county government when the leader who had supported the project was arrested. The workers remained unpaid for the work they had completed and in December 2006 protested to recover unpaid entitlements. The applicant claimed that he was arrested by the Public Security Bureau and detained and interrogated for more than a month. He was released in January 2007. In April 2007 the applicant helped to organise a further protest where 20 local villagers were arrested. The applicant managed to escape but his family were questioned and he went into hiding before leaving China. He claimed that he was wanted by the authorities.
On 12 October 2007 a delegate of the Minister refused to grant the applicant a protection visa. The delegate did not accept that the applicant’s claims were credible.
Application for review
On 8 November 2007 the applicant filed an application for review with the Tribunal.
The applicant attended a hearing of his application for review on 3 January 2008.
On 5 February 2008 the Tribunal handed down its decision affirming the decision under review. The Tribunal accepted the applicant’s claims relating to his construction activities and accepted that it was possible that the applicant was detained in December 2006 and released in January 2007. The Tribunal did not accept that the arrest was at the behest of corrupt officials and found that the PSB had no further interest in the applicant after his release.
The Tribunal did not accept that the applicant was of interest to authorities because of his organisation of a further protest in April 2007. It did not accept that this claim was credible. It found that that applicant was not of any interest to authorities when he left China and therefore his fears of persecution on return to China were not well‑founded.
These proceedings began with a show cause application filed on 29 February 2008. The applicant continues to rely upon that application. He also relies upon his supporting affidavit filed on the same day. I also have before me as evidence the book of relevant documents filed on 25 March 2008.
The application recites in detail the manner in which the Tribunal dealt with the applicant’s claims. The applicant is fundamentally concerned that the Tribunal, having accepted what he describes as most of his claims, should have accepted all of them. It was plain from what is said in the application and what the applicant said in oral argument today that he considers that the rejection by the Tribunal of some of his claims, after major elements of his claims were accepted, indicates unfairness and bias. The application also asserts a breach of s.424A of the Migration Act 1958 (Cth) (“the Migration Act”).
I reject the applicant’s contentions. The mere fact that the Tribunal accepts some claims and rejects others does not indicate let alone establish bias. Neither does it establish unfairness in any legal sense. The Tribunal either accepted or gave the applicant the benefit of the doubt in relation to the majority of his claims about his past experiences. The Tribunal did not believe the applicant’s claims that were intended to establish that he was at continuing risk of serious harm in China. This appears to me to have been a case where the Tribunal could have formed the view that the applicant had come to the Tribunal with a core set of true claims which had been augmented with untrue details in order for the applicant to attempt to establish for himself the profile of a refugee.
I accept the Minister’s submission that the assessment made by the Tribunal must be a forward looking assessment. The Tribunal’s approach, as required by Minister for Immigration v Zhou (1997) 191 CLR 559 at pages 575-7, was based on an assessment of claimed past persecution and an assessment of the likelihood of prospective Convention related persecution. It was in relation to the second limb of the assessment that the applicant failed.
The applicant was unable to persuade the Tribunal that he had any profile which would cause the authorities in China to have a continuing adverse interest in him. Further, the Tribunal found that if the authorities in China had wished to harm the applicant during 2007 they had had plenty of opportunity to do so. The fact that he had not been harmed in the period between his release and his departure from China supported the Tribunal’s finding that any fear of persecution the applicant may have was not well-founded.
In my view the findings made by the Tribunal were open to it on the material before it. There is no substance to the allegation of bias. The applicant considers that the Tribunal outcome is unfair but the issue for the Court is whether the process followed by the Tribunal was fair. The applicant was invited to a hearing before the Tribunal in accordance with the Tribunal’s obligations under the Migration Act. It appears that the hearing opportunity afforded the applicant was a fair one.
The applicant asserts that the Tribunal breached s.424A of the Migration Act but the particulars in his application simply identify difficulties the Tribunal had with his own evidence. There was no obligation on the Tribunal to disclose to the applicant, pursuant to s.424A, information the applicant had himself given to the Tribunal for the purposes of the review. Neither was there any obligation on the Tribunal to disclose its own thinking processes in relation to that information pursuant to s.424A. I reject the assertion of a breach of s.424A.
I have considered whether there is any other jurisdictional error apparent from the Tribunal decision that has not been identified by the applicant. On pages 93 and 94 of the court book the Tribunal dealt with the issue of the applicant’s identity. The Tribunal stated:
With regard to his identity, he claims his real name is …, and has submitted in evidence of this a PRC identification card in that name. The DEU has stated that it shows no evidence of tampering or alterations. With regard to the passport with which he entered Australia, in a different name, he claims that it is not his passport and was obtained through fraudulent means. The Tribunal notes the evidence from the DEU (4 September 2007) indicating that, although the passport appears to be genuine and shows no evidence of tampering alterations, some such passports are known to have been undetectably photosubstituted. In light of this, the Tribunal considers it possible that the passport is photosubstituted and that the applicant’s name is not that contained in the passport. The Tribunal considers it most likely that the applicant’s real name is ….
It follows that the Tribunal is satisfied that he left the PRC in a passport in a name other than his own. As to whether the reason he did so was a fear of persecution (or merely, for example, that the passport contained an Australian visa), the Tribunal has considered this issue below.
The difficulty is that I am unable to find any later consideration of the issue in the Tribunal’s reasons. Counsel for the Minister submits that the issue was considered generally and dealt with by the Tribunal’s finding that the applicant did not have a well-founded fear of Convention related persecution in China. That was ultimately the question that the Tribunal had to answer. However, having posed for itself a question of whether the applicant had a genuine fear of persecution as evidenced by his use of a false passport or whether he was simply interested in entering Australia unlawfully on a false passport, the Tribunal should have answered that question. The Tribunal in its reasons does not resolve that issue and makes no finding whether the applicant actually fears persecution.
Although the Tribunal’s failure to answer the question it posed and indicated had been considered in its reasons is unfortunate, in my view no jurisdictional error results because the Tribunal has answered the question it was required to answer pursuant to the Migration Act and the Refugees Convention, namely, whether the applicant had a well‑founded fear of convention related persecution in China.
I find that the Tribunal decision is free from jurisdictional error. It follows that the Tribunal decision is a privative clause decision and the application must be dismissed. I so order.
The application having been, dismissed costs should follow the event. The Minister seeks an order for costs fixed in the sum of $4,800. Scale costs in this instance would be $5,000. The applicant did not wish to be heard on costs.
I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the amount of $4,800.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 15 May 2008