SZMCF v Minister for Immigration
[2008] FMCA 939
•8 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMCF v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 939 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in China – applicant not believed – no reviewable error found – application dismissed. |
| Migration Act 1958 (Cth), s.424A |
| Applicant: | SZMCF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 735 of 2008 |
| Judgment of: | Driver FM |
| Hearing date: | 8 July 2008 |
| Delivered at: | Sydney |
| Delivered on: | 8 July 2008 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Mr A Markus Australian Government Solicitor |
ORDERS
The applicant is to pay the setting down fee of $419 within seven days or apply for a waiver.
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 735 of 2008
| SZMCF |
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 4 March 2008. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from China and had made claims of political persecution. Background facts relating to the applicant's protection visa claims and the decision of the delegate and the Tribunal on them are conveniently summarised in the Minister's written submissions filed on 3 July 2008. I adopt as background for the purposes of this judgment paragraphs 3 through to 9.4 of those written submissions:
The applicant is a 33 year old male, and a citizen of the People's Republic of China. He arrived in Australia as part of a tour group on 30 January 2007.
On 9 February 2007, he lodged a protection visa application (PVA) with the Department of Immigration and Citizenship.[1] In his PVA, the applicant claimed to have been subject to persecution in China due to his support for the pro-democracy movement. In particular, the applicant claimed as follows:
[1] Relevant Documents (“RD”) 1
· He used to run a successful restaurant with a close friend, but the restaurant was closed down and his friend was arrested after an argument between his friend and some PSB officials. Whilst he managed to have his friend released by paying a bribe, they got into debt.
· In order to earn money, they went to work in a coal mine in July 2006. On 26 November 2006, there was an explosion in the coal mine, resulting in the death of 8 people and the injury of others.
· Whilst the applicant and his friend were not on duty at the time of the explosion and therefore were not injured in the accident, they wanted the owners of the coal mine to pay them money, but most of the owners "run away". The applicant and his friend subsequently discovered that the owners "colluded" with corrupt local officials, which is why they were able to flee.
· In December 2006 he and his friend organised coal miners to protest and demand that various government agencies investigate and take action against corrupt officials and mine owners, and provide compensation to the victims of the explosion and give the money owed to the other workers.
· Not being able to achieve their goal, they decided to organise "a large open protest in order to make social impact against the PRC authorities". On 22 December 2006 the applicant and his friend organised about 200 coal miners to attend a protest in front of a government building, but the protest was quickly suppressed and more than 20 people, including the applicant, were arrested.
· The applicant was subjected to torture whilst in detention, and forced to write a statement promising "not to make any troubles with the government again".
· He was released on 31 December 2006, but was regarded as a political dissident and had to report to the local police station weekly and was often questioned by the police.
· His friend, who was not arrested during the demonstration, went to Beijing. He managed to travel to Beijing in late January 2007, and with the help of his friend, who arranged for him to leave the country as part of a tour group, was able to leave China. His friend did not borrow enough money for two people to travel, and he remained in Beijing for the time being.
The delegate's decision
The delegate interviewed the applicant in relation to his claims on 27 March 2007. In a decision dated 30 April 2007, the delegate found that the applicant failed to meet the prescribed criteria for the grant of a protection visa and, accordingly, refused the applicant's application.[2] In substance, the delegate found that the applicant and his claims lacked credibility. Ultimately, the delegate was not satisfied that there was any credible evidence to suggest that the applicant was of significant adverse interest to the Chinese authorities because of his political activities, or that he would face a real chance of persecution because of any Convention related reason were he to return to China.
[2] RD 44-51
Before the Tribunal
On 31 May 2007, the applicant lodged an application for review with the Tribunal.[3]
The applicant was invited to, and attended, a hearing before the Tribunal held on 24 July 2007[4], and also provided a response to an "invitation to comment on/respond to information in writing" in the form of a statutory declaration dated 13 February 2008[5].
The Tribunal handed down its decision on 4 March 2008, affirming the decision not to grant a protection visa to the applicant.[6]
Tribunal decision
In concluding that the applicant was not a person to whom Australia owed protection obligations, the Tribunal made detailed and lengthy findings. The Tribunal's key findings were as follows:
· The applicant was an unreliable witness with poor credibility.
· The applicant's claims regarding his opinions and activities in China were a "concoction to give verisimilitude to his claim to be a refugee"[7];
· The Tribunal did not accept the applicant's version of events leading up to his departure from China; specifically, the Tribunal did not accept the applicant's claims about the failure of his restaurant business in Nanchang City in December 2005, his subsequent employment as a miner in an illegal mine, his involvement in pro-democracy protests following an explosion at the mine on 26 November 2006, his status as a political dissident of ongoing adverse interest to the authorities and the circumstances that allowed him to depart China without hindrance through Beijing Airport using a passport in his own name.
· The Tribunal did not accept that the applicant holds anti-government opinions that he would seek to express on his return China, and found that he was not wanted by authorities in China at the time of his departure and he would not be persecuted as a political dissident if he was to return.
[3] RD 52-56
[4] RD 67. The applicant's evidence before the Tribunal is summarised at length in the Tribunal's decision at RD 90-98.
[5] RD 75-76
[6] RD 64
[7] RD 107.9
These proceedings began with a show cause application filed on 28 March 2008. That application asserts a reasonable apprehension of bias, factual findings based on incorrect information, a contradictory finding, unfair consideration of evidence and an incorrect assessment of credibility. The particulars take issue with various aspects of the Tribunal decision. The applicant continues to rely upon that application. The application is supported by a short affidavit filed with it. I received that affidavit. I also have before me as evidence the book of relevant documents filed on 6 May 2008 and a bundle of supplementary documents filed on 2 July 2008.
Although the grounds in the application are couched in legal terms, in substance, the applicant takes issue with the Tribunal's reasoning. He was unable to support the allegation of a reasonable apprehension of bias. Plainly, the Tribunal had fundamental credibility concerns about the applicant's claims and expressed those both at the hearing conducted by the Tribunal and in an invitation to comment sent pursuant to s.424A of the Migration Act 1958 (Cth).
In its decision it is obvious that the applicant was not believed. The Tribunal expressed itself firmly, but I see nothing in the Tribunal decision or the record of the Tribunal's process to support the allegation of a reasonable apprehension of bias.
The applicant asserts that the Tribunal made incorrect factual findings in respect of the timing of an explosion at a mine where the applicant claimed to have worked. The issue there was that the applicant claimed that the explosion occurred at a different time to that reflected in country information. The implication was that the applicant was attempting to associate himself with a real event in order to support his protection visa claims. The issue was raised in the s.424A invitation (see RD 70 and 71). The applicant's response on page 75 of the book of relevant documents indicates a retreat from his earlier evidence to the Tribunal. I see no error of fact, let alone any legal error in the Tribunal's examination of that issue.
Likewise, the applicant asserts that the Tribunal was in error in dealing with his claims in that the Tribunal proceeded on the basis that he claimed to be on a wanted list, when he never made such claim. I see no support for that contention in the Tribunal's reasons. The Tribunal was concerned that the applicant was able to depart from China without difficulty, whereas the country information available to the Tribunal indicated that a person in the applicant's claimed position would be on an alert list and would encounter difficulty in leaving China. That country information was put to the applicant and the Tribunal preferred the country information to the applicant's oral evidence. I see no error in the Tribunal's approach. I reject the grounds in the application to the extent that they amount to complaints about factual findings.
Ground 4 in the application appears to assert that the Tribunal was in error in treating his response to the s.424A invitation as raising a new ground. I agree with the Minister's submissions that it was open to the Tribunal to make its finding in relation to that response based upon his written claims to the Minister's Department. There was an inconsistency. I adopt for the purposes of this judgment, with minor amendments, paragraphs 24 to 26 of the Minister's written submissions:
The particulars of the applicant's complaint are that the Tribunal found that he had raised a "new claim" in his s.424A response to the effect that his friend had "facilitated [his] exit through bribery". The applicant states that he had raised this issue in his statement to the Department and it was not, in substance, a new claim devised for the purposes of the s.424A response to explain away his unhindered exit through Beijing Airport. The paragraph in the statement to the Department relied on is as follows:
On 25 January 2007, I arrived in Beijing; and (the applicant's friend) told me that he had already made arrangement[s] for me to leave the country following a tour group. However, he could not go together with me, because the money that he had borrowed had only been enough for one person. He said that he would also leave the country as soon as he got sufficient money.
There is nothing in this paragraph that expressly states, or even implies, that the applicant's friend had paid a bribe to facilitate the applicant's departure from China. In the circumstances, it is submitted that it was clearly open to the Tribunal to find that the applicant had not, prior to his response to the "invitation to comment on/respond to information" claimed that his friend may have facilitated his exit from China through bribery.
In any event, the finding complained of, even if incorrectly made and erroneous, is not one that goes to the Tribunal's jurisdiction. It was an incidental finding relating to one of a number of possible explanations offered by the applicant in an attempt to explain how it was that he could leave China lawfully on his own passport despite the fact that he claimed to be a person of adverse interest to the authorities with a record of past political dissent and arrests. The relevant finding was in no way material to the decision.
The applicant has failed to demonstrate any jurisdictional error in the Tribunal decision. Neither is any such error apparent to me from my own reading of the material.
I find that the Tribunal decision is a privative clause decision. Accordingly, the application must be dismissed.
Costs should follow the event in this case. The Minister seeks an order for costs on a party/party basis fixed in the amount of $4,500. The applicant was concerned that he may not be able to pay those costs immediately. I will not require payment of costs by any particular time. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,500.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 10 July 2008
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