SZMDO v Minister for Immigration
[2008] FMCA 898
•30 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMDO v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 898 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal was affected by bias – whether the Refugee Review Tribunal considered all relevant claims – whether the Refugee Review Tribunal complied with s.424A of the Migration Act 1958 (Cth). |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65; 65(1); 91R; 91S; 424A; 424A(1); 474; pt.8 div.2 |
| Applicant: | SZMDO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 934 of 2008 |
| Judgment of: | Emmett FM |
| Hearing date: | 30 June 2008 |
| Date of last submission: | 30 June 2008 |
| Delivered at: | Sydney |
| Delivered on: | 30 June 2008 |
REPRESENTATION
| The Applicant appeared in person assisted by a Mandarin interpreter. |
| Solicitors for the Respondent: | Mr A. Marcus, Australian Government Solicitor |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 934 of 2008
| SZMDO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
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 25 January 2008 and handed down on 19 February 2008.
The applicant claims to be from the People’s Republic of China (“China”) and a supporter of the China Democracy Party (“the Applicant”).
The Applicant arrived in Australia on 4 April 2006 having departed legally from Dalian on a passport issued in his own name on 3 April 2006, then travelled to Japan where he claims to have received an illegal Japanese passport which he used to enter Australia on 4 April 2006.
On 5 May 2006, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural Affairs (“the Department”) under the Act.
On 28 June 2006, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.
On 26 September 2007, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 25 January 2008, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 26 March 2008, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Applicant’s application for a protection visa
The Applicant’s claims in his protection visa application are accurately summarised in the First Respondent’s outline of submissions as follows:
“4. 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:
a. He was involved in a pro-democracy rally whilst a student in Fuqing in 1989, and was injured when the military suppressed the rally on 4 June 1989.
b. He was dismissed from his college because of his involvement with the pro-democracy movement. As a consequence, he was forced to return to his home town to work as a labourer until 1993, when he became involved in a petrol station in Kaili City.[1]
c. The business in Kaili was initially a success, but ran into trouble after about a year because local officials insisted on taking petrol without paying and also forced the business to make donations to local reconstruction projects. In 1995 the business was closed, without compensation, to make way for a road.[2]
d. Having returned to his hometown, the applicant resumed contact with his former classmates and, through them, became involved with the Chinese Democratic Party (CDP). He became a CDP member on 25 October 1998.[3]
e. He participated in a CDP rally in Fuqing on 1 October 1999, and was detained for 18 days as a result. He was released when his family members paid a bribe.
f. In spite of difficulties finding employment, he remained involved with the CDP, including helping to organise a rally planned for 10 March 2006. On 8 March 2006, he was informed by a relative that police were beginning to arrest the organisers of the rally. This prompted him to flee to Dalian, where he arranged to leave for Australia, though in the meantime his wife had been detained.[4]”
[1] RD 18
[2] RD 18
[3] RD 19
[4] RD 19-20
The Delegate’s decision
On 28 June 2006, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
The Delegate found that the Applicant’s application lacked “substantiating detail” and that there was no evidence to suggest that the authorities would arrest or harm the Applicant on his return to China.
The Tribunal’s review and decision
On 26 September 2007, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. The Applicant provided his passport and a copy of the bio-data page of the false Japanese passport the Applicant used to enter Australia to the Tribunal but no other written material in support of his review application.
On 16 October 2007 the Tribunal wrote to the Applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing on 12 November 2007 to give oral evidence and present arguments. The Applicant attended that hearing and gave evidence.
On 12 November 2007, the Applicant gave evidence at the hearing before the Tribunal in which the Applicant expanded upon his written claims and made new claims. The Tribunal decision noted that the Tribunal discussed with the Applicant his background including his education and history of employment and residence; circumstances surrounding his travel to Australia; his claims of persecution; his involvement with and knowledge of the China Democracy Party; and, independent country information.
The new claims made by the Applicant included that his brother, who was also involved in the China Democracy Party, had been jailed; and, that airport officials had been bribed to allow him passage.
The Tribunal noted that the Applicant appeared “highly evasive in discussing the manner in which he left China and entered Japan”, that he “could not adequately explain” how his Japanese passport had been delivered to him in Japan and that “he appeared confused from time to time whilst giving evidence of his background and history”.
The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.
The Tribunal found the Applicant was not a witness of truth.
The claims made by the Applicant and the decision of the Tribunal is accurately summarised by the First Respondent in his written submissions as follows:
“8. During the hearing the applicant also expanded on his history in China and his claims of past persecution. Some of this evidence added to his original claims, and some of it was inconsistent with his earlier and/or other claims. In particular, during the hearing the applicant gave evidence to the following effect:
a. The petrol business in Kaili closed in 1994 because it was not profitable.[5]
[5] RD 70.8
b. Although not certain about the exact number of years, he thought that in the period between 1996 and 2001 he worked in Fuqing City in the building industry.[6]
[6] RD 70.9
c. He and his brother were involved in the CDP, and he left China because his brother had been jailed.
d. His activities in the CDP included organising members to criticise the government, promoting the CDP, and organising family members to participate in a procession held in Hong Lu to commemorate the Tiananmen Square protests on 1 November 1999. Some members of the procession, including the applicant, were arrested by police and jailed. His relatives arranged for his release after about 20 days.[7]
[7] RD 71.4
e. In 2006, he tried to organise a memorial to commemorate the people involved in the Tiananmen protests. The protest, planned for 10 March 2006, did not go ahead as some people involved in the planning had been arrested, and he decided not to continue as the police probably knew the names of people involved.[8]
f. He decided to leave China after relatives told him that police were trying to arrest him on 2 March 2006.[9]
g. He left China legally in April 2006.
9. During the hearing, the applicant also stated that he had been assisted in preparing his PVA, but as it had not been read back to him in Mandarin, some its claims might not be true.[10]
…
RRT decision
11. The RRT was not satisfied that the applicant had been involved with the CDP. It found that his evidence of such involvement was inadequately detailed, and appeared to be rehearsed. Furthermore, the RRT found that the applicant's account was contradicted by independent country information which suggested that the CDP had been entirely suppressed by 2000/2001. Accordingly, the RRT did not accept that the applicant had been arrested and detained as a result of his involvement with the CDP.
12. The RRT also found that the applicant's evidence of his arrest and detention was lacking in detail. The RRT did not accept that, if the applicant had been of interest to the authorities as claimed, he would have been able to leave China legally. The RRT stated that it considered that the applicant paid a fee to a person to arrange his departure from China for economic reasons, and not in order to escape persecution for any Convention reason.[11]
13. The RRT did not accept that the applicant faces a real chance of persecution for reasons of his political opinion if he returns to China now, or in the foreseeable future and, accordingly, was not satisfied that the applicant had a well-founded fear of persecution for a Convention-related reason.[12]”
[8] RD 71.6
[9] RD 71.7
[10] RD 71
[11] RD 80-81
[12] RD 81
The proceeding before this Court
The Applicant was unrepresented before this Court although had the assistance of a Mandarin interpreter. The Applicant has participated in the Legal Advice Scheme.
The Applicant confirmed that he relied on the grounds contained in an amended application filed on 4 June 2008.
The grounds of the application are expressed to be as follows:
“1. The Tribunal had bias against me and could not make a fair decision on my application. The Tribunal failed to consider my claims.
2. The Tribunal had not notified me in the writing the reason or part of the reason for affirming the decision. The Tribunal failed to consider my application according to S424A of the Migration Act 1958.
3. The Tribunal believed that I was smuggled into Australia by snakeheads. It was a conclusion based on assumption of the officer.”
Each of the grounds was interpreted for the assistance of the Applicant and the Applicant was invited to make submissions in support of each of the grounds and in support of his application generally. The Applicant confirmed that he had filed no evidence or submissions in support of his application.
Ground 1
The Applicant’s allegation of bias was unsupported by particulars or evidence. However, when the Applicant was asked by the Court to identify why he contended that the Tribunal did not make a fair decision and which of his claims the Tribunal failed to consider, he made the following submissions:
(1)That the Tribunal failed to consider his history of being persecuted in China.
a)However, a fair reading of the Tribunal decision makes clear that the Tribunal gave a detailed account of the Applicant’s claims, both written and oral. In particular, the Tribunal noted exchanges it had with the Applicant about his claims of events in China that he said gave rise to a fear of persecution in China. In particular, the Tribunal explored with the Applicant his history in China as an alleged party member of the China Democracy Party and his alleged activities in promoting that party and participating in protests.
b)Ultimately, the Tribunal rejected the Applicant’s claims of having any involvement with the China Democracy Party or suffering any harm due to any political activities. The Tribunal found that the Applicant’s evidence of arrest and detention lacked detail; his evidence of knowledge and involvement in the China Democracy Party was “unsatisfactory and inadequate”; the Applicant was unable to give the sort of detail the Tribunal would expect of a person with active involvement for seven to eight years; the Applicant’s evidence was inconsistent as to when he first became involved in the party; and, the Applicant’s evidence “appeared rehearsed with him having no real experience of involvement in the China Democracy Party in 1999 or at any other time”.
c)The Tribunal’s findings were open to it on the evidence and materials before it and for the reasons it gave.
d)The fact that the Tribunal ultimately did not accept the Applicant as a witness of truth and rejected his claims of past persecution does not support the Applicant’s assertion that the Tribunal failed to consider his claims.
(2) That the Tribunal wrongly found that the Applicant’s petrol station was forced to close down because his business was not profitable.
a)However, the sole basis upon which the Applicant claimed to have a well-founded fear of persecution if he were to return to China was because of his political opinion or imputed political opinion by reason of his alleged membership of the China Democracy Party. The Applicant never made a claim that the business was closed because of any persecutory conduct. In the circumstances, it was not necessary for the Tribunal to make a finding as to why the petrol station was closed. However, the finding it made was open to it on the evidence and material before it and for the reasons it gave. It is not an error going to the Tribunal’s jurisdiction for the Tribunal to make a finding about a matter which it was not obliged to consider and determine.
(3) The Tribunal found that after 2001 the China Democracy Party no longer existed, however, the Applicant asserted that it continued to meet in secret.
a)The Tribunal’s finding was consistent with the independent country information before it that disclosed no information suggesting that the China Democracy Party continued and organised any further activities in China. It was open to the Tribunal to accept the independent country information and reject the Applicant’s evidence, which it also found to be internally inconsistent. In the circumstances, a fair reading of the Tribunal’s decision makes clear that the Tribunal considered the Applicant’s evidence that the China Democracy Party continued to meet in secret after 2001.
(4) The Applicant contended that the Tribunal had failed to consider the consequences the Applicant would face if he were to return to China.
a)However, the Tribunal concluded that it did not accept that the Applicant faced a real chance of persecution for reasons of his political opinion if he returned to China now or in the reasonably foreseeable future. A fair reading of the Tribunal’s decision makes clear that the Tribunal’s finding in this regard was open to it for the reasons that it gave. Its finding was based on the evidence and material before it and in reaching that conclusion, the Tribunal applied the correct law to its findings.
(5) The Applicant complained that the Tribunal had failed to consider his alleged injury and detention for 10 days following an event on 4 June 1989.
a)However, a fair reading of the Tribunal’s decision makes clear that the Tribunal noted that the Applicant claimed to have been injured following a demonstration on 4 June 1989 and, indeed, accepted that the Applicant may have been injured, although was not satisfied that it was for any Convention-related reason. The Tribunal rejected the Applicant’s claims of detention. Those findings were open to the Tribunal on the evidence before it and for the reasons it gave.
(6) The Applicant complained that the Tribunal failed to consider the Applicant’s evidence about organising a protest on 10 March 2006 that was ultimately abandoned and which allegedly caused the Applicant to flee China in April 2006.
a)However, the Tribunal noted that the Applicant gave oral evidence that he left China in April 2006 because his brother and colleagues had just been arrested for their China Democracy Party activities. The Tribunal rejected the Applicant’s evidence in this regard on the basis that there was no credible country information to suggest that persons were arrested in 2006 in the Fujian province for China Democracy Party activities.
b)The Tribunal’s finding in relation to the Applicant’s claims as to why he left China were open to it on the evidence and material before it and for the reasons it gave. The fact that the Tribunal did not accept the Applicant’s evidence does not support the Applicant’s contention that the Tribunal failed to consider his claims.
(7) The Applicant stated that the Tribunal wrongly found the Applicant’s purpose in moving to Australia was for economic reasons.
a)This was a matter put to the Applicant by the Tribunal at the hearing based on independent information put before it.
b)As stated above in these Reasons, the Tribunal’s findings were open to it on the evidence and materials before it and for the reasons it gave.
Accordingly, ground 1 is not made out.
Ground 2
Ground 2 is not supported by particulars or relevant submissions.
The Court explained to the Applicant the obligations of s.424A(1) of the Act and invited the Applicant to identify the information that engaged the obligations of s.424A(1) of the Act. The Applicant responded that the Tribunal did not provide sufficient reasons.
However, it is for the Applicant to put before the Tribunal sufficient material to enable the Tribunal to reach the level of satisfaction required in respect of its consideration of the relevant criteria. Section 65(1) of the Act mandates that if the Tribunal is not so satisfied then it must refuse the Applicant a protection visa.
The Tribunal found the Applicant not to be a credible witness; that his evidence was internally inconsistent; that his evidence was inconsistent with independent country information that was before the Tribunal; and that his knowledge of the China Democracy Party was not consistent with the level and duration of his claimed involvement with the China Democracy Party.
As stated above in these Reasons, these findings were open to the Tribunal on the evidence and material before it and for the reasons it gave.
Otherwise, a fair reading of the Tribunal’s decision makes clear that there was no information before the Tribunal that engaged the obligations of s.424A of the Act.
Accordingly, ground 2 is rejected.
Ground 3
In support of ground 3, the Applicant said that he used another country’s passport to come to Australia; that he couldn’t have come otherwise; and that he did not belong to the category of those being smuggled.
In addition, the Applicant said that the Tribunal found that the Applicant came to Australia for economic reasons having used the services of “snakeheads” and was smuggled into Australia. The Applicant appeared to disagree with those findings.
The Tribunal referred to country information that suggested “that Japanese passports had been used in some cases of illegal migration” and that “snakeheads” or people smugglers have provided documents and contacts for a fee for many persons from Fujian province to arrange illegal migration to western countries to improve their economic condition.
A fair reading of the Tribunal’s decision record makes clear the detailed exchange in which the Tribunal engaged with the Applicant about these claims. The Tribunal’s concerns were put to the Applicant by the Tribunal in some detail and the Applicant’s responses noted.
On the Applicant’s own evidence, the Applicant left China on his own passport and went to Tokyo. In Tokyo the Applicant obtained a false Japanese passport. He said that he paid money to a person who arranged his departure from China and the false travel documents he used to enter Australia.
In the circumstances, it is clear that the Applicant paid money for false documents that he used to enter Australia. The Tribunal found that conduct was inconsistent with engaging the services of a person simply for the purpose of leaving China.
The Applicant came to Australia on a false passport and that fact required some consideration by the Tribunal. It was not the fact that the Applicant had to leave China and was unable to leave lawfully on a passport in his own name. The Tribunal found the Applicant’s evidence about the manner in which he left China and entered Japan to be “highly evasive”.
In the circumstances, the Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave.
Accordingly, ground 3 is not made out.
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 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 reached conclusions based on the findings made by it and applied the correct law in reaching those conclusions.
In the circumstances, the Tribunal complied with its obligations under 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 fifty (50) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate:
Date: 30 June 2008
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