SZMEX v Minister for Immigration
[2008] FMCA 967
•11 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMEX v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 967 |
| 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), ss.424, 424A, 424AA, 425 |
| SZLQD v Minister for Immigration [2008] FCA 739 at [12] SZLTC v Minister for Immigration [2008] FMCA 384 |
| Applicant: | SZMEX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1066 of 2008 |
| Judgment of: | Driver FM |
| Hearing date: | 11 July 2008 |
| Delivered at: | Sydney |
| Delivered on: | 11 July 2008 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms N Johnson Sparke Helmore |
ORDERS
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 $2,700.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1066 of 2008
| SZMEX |
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 1 April 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 in relation to his claims and the Tribunal decision on them is summarised in the Minister's written submissions filed on 3 July 2008. I adopt as background for the purposes of this judgment paragraphs 2 to 4 of those written submissions:
The written claims of the applicant, a citizen of the People’s Republic of China (“the PRC”), were contained in a statutory declaration accompanying his protection visa application: court book “CB” 25-29. The applicant claimed to fear persecution from the PRC authorities as a result of protest action he took after he was ordered to vacate his business premises. The applicant claimed to have taken his grievance to the People’s Court, the People’s Congress and the Complaint Bureau without success. The applicant was detained for two weeks during which he was interrogated, tortured and accused of anti-government activities.
The Tribunal rejected the applicant’s claim to fear harm in the PRC on the basis that it found him not to be a credible witness at the Tribunal hearing: CB 72.2. In light of inconsistencies in the applicant’s evidence and the Tribunal’s “serious doubts” about his credibility, it did not accept that the applicant and his two friends established separate factories in the same area which they were forced to vacate. Nor did the Tribunal accept that the applicant took his grievance to a range of agencies. The Tribunal noted that the applicant had provided no documentary evidence to support his claim to have taken his grievance to the People’s Court, the People’s Congress and the Complaint Bureau: CB 72.3.
The Tribunal did not accept the applicant’s claims about his detention and persecution by the PRC authorities and was not satisfied that he had suffered harm for reason of his political opinion in the PRC: CB 72.8. The Tribunal was not satisfied that such harm would befall him in China in the reasonably foreseeable future and found that any fears the applicant had were not well-founded: CB 72.9.
These proceedings began with a show cause application filed on 28 April 2008. The applicant continues to rely on that application. The application asserts breaches of s.424AA and 424A of the Migration Act 1958 (Cth) (“the Migration Act”) and a failure to consider his claims correctly and fairly.
The application is supported by a short affidavit filed with it which I received. I also have before me as evidence the court book filed on 27 May 2008. Only the Minister made written submissions. The applicant denied receipt of those submissions, but I am satisfied that they were sent to him at his address for service by express mail on 3 July 2008. In any event, the submissions were read to the applicant by the interpreter before I came on the bench for today's hearing.
I reject the first two grounds of review. There was no obligation on the Tribunal to disclose information to the applicant pursuant to either s.424A or s.424AA of the Migration Act. The Tribunal decision turned on its disbelief of the applicant's evidence to the Tribunal for the purposes of the review. Relevantly, the Tribunal said[1]:
The applicant claims that he has been persecuted by the Chinese authorities for protesting against the denial of his basic rights as a result of being forced to vacate his furniture factory by Qingzhou City government in order to allow them to rebuild residences for government officials and their families.
The Tribunal did not find the applicant a credible witness at the hearing. The applicant claims that he moved from a small village in Zhejiang province to Qingzhou City in Shangdong Province in 1982 and 22 years later established a furniture factor with 20-30 employees in an industrial development area comprising around 30 businesses. He claims that coincidentally 2 of these other businesses were also furniture factories employing 20-30 staff established by 2 friends from the same small region in Zheijiang Province as the applicant. The Tribunal considers that such a coincidence strains the bounds of credibility.
The applicant has provided no documentary evidence to support his claim that he took his grievance to the People’s Court, the People’s Congress and the Complaint Bureau “as well as other relevant government agencies”. He claims that there had been no formal process or documentation involved: the parties were not required to set out the nature of their grievance in writing, they simply visited the agencies in person and were given no satisfactory response.
The applicant claims that when he and Mr Dai and Mr Ge were detained for the first time, they were interrogated separately and beaten by “many police” to the point where they were rendered unconscious. He claimed that daily beatings would start at 10 am and continue for many hours well into the afternoon. Despite the extent and duration of the claimed beatings, the applicant told the Tribunal that he had not sustained any visibly significant injuries when he was released after 2 weeks. The applicant said that he had been beaten with “soft batons” and no injuries were visible. The tribunal considers that the duration and extent of the claimed beatings are both wholly disproportionate to the applicant’s ‘crime’ of protesting against the forced removal of his businesses and not consistent with his statement that he suffered no visibly significant injuries.
Given the inconsistencies in the applicant’s evidence and the Tribunal’s serious doubts about his credibility, the Tribunal does not accept: that the applicant and his 2 friends established separate furniture factories in the same industrial development area; that the applicant and the others signed 30 year leases then 2 years later were forced to vacate their factories to make way for houses for local government officials and their families; or that they took their grievance to a range of agencies. And the Tribunal does not accept the applicant’s claims regarding his detention and persecution by the Chinese authorities.
The Tribunal is not satisfied that the applicant has suffered harm for reason of his political opinion in China and is not satisfied that such harm will befall him in the reasonably foreseeable future if he returns to China. The Tribunal also considers that any fears the applicant may have of being persecuted for his political opinion on his return to China are not well-founded fears.
[1] CB 72
There was no obligation on the Tribunal to disclose in writing to the applicant information that the applicant gave to the Tribunal for the purposes of the review. Neither was there any obligation on the Tribunal to disclose in advance of its decision its own reasoning process.
I agree with the Minister's submissions that s.424AA is permissive rather than mandatory[2]. There are obligations in s.424AA where the section is engaged, which I have dealt with previously[3]. In this case the section was not engaged. There is nothing in the record of what occurred at the hearing conducted by the Tribunal to indicate that the Tribunal embarked upon a course of oral disclosure pursuant to s.424AA. Neither was such a course of oral disclosure required in the circumstances of this matter. The need for such disclosure would, in my view, only arise for the purposes of s.424AA through the operation of s.424A(2A) or s.425. As there was no obligation to make written disclosure under s.424A there was no need to make oral disclosure as an alternative.
[2] SZLQD v Minister for Immigration [2008] FCA 739 at [12]
[3] SZLTC v Minister for Immigration [2008] FMCA 384
Neither was there any need for an oral disclosure pursuant to s.424AA in order to ensure a fair hearing. It was clear from the decision of the Minister's delegate that the credibility of the applicant's claims was in issue. Even if that were not so the record of the Tribunal hearing is sufficient to persuade me that the Tribunal raised with the applicant in reasonable detail its credibility concerns. There was no obligation for some further disclosure pursuant to s.424AA.
The third ground in the application alleges that the Tribunal failed to consider the applicant's claims correctly and carefully. The Minister's submissions suggest that this is an attempt at merits review.
The question of jurisdictional error might arise if the Tribunal did not engage in an active intellectual process in dealing with the applicant's claims. The Tribunal's reasons are relatively sparse and are not altogether persuasive or understandable. It is not clear to me, for example, why the applicant's claim that he and two friends from the same area opened furniture factories in the same city was a coincidence which strained the bounds of credibility. Neither is it clear to me what the inconsistencies were that he Tribunal considered significant to the outcome. The only inconsistency identified by the Tribunal in its findings and reasons was the apparent inconsistency between the applicant's claim that he had been beaten many times over a long period and his statement that he suffered no visibly significant injuries.
Notwithstanding those doubts, I am satisfied that the Tribunal did engage in an active intellectual process in considering the applicant's claims. It is apparent that the applicant's claims were discussed with him in reasonable detail at the Tribunal hearing. The applicant was simply not believed.
The applicant asserted in his oral submissions that in the circumstances the Tribunal should have gone to China to conduct its own investigation of his claims. However, it is well established that the Tribunal is not required to conduct its own investigation independently of what is put before it by an applicant. It was for the applicant to satisfy the Tribunal of his claims. It was no obligation on the Tribunal to prove or disprove those claims. In the result the Tribunal was not satisfied that the applicant had a well-founded fear of being persecuted for reasons of his political opinion or for any other Convention reason should he return to China.
I find that the Tribunal decision is free from jurisdictional error. It is therefore 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 $2,700. Scale costs in this instance would be $5,000. The applicant said that he could pay the costs but sought clarification of my reasons for judgment.
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 $2,700.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 17 July 2008
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