SZMHD v Minister for Immigration

[2008] FMCA 1337

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMHD & ANOR v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1337

MIGRATION – RRT decision – Chinese applicant claiming political persecution for labour activism – essential claims disbelieved by Tribunal – no jurisdictional error found – application dismissed.

Migration Act 1958 (Cth), s.424A

Re Minister for Immigration & Multicultural Affairs; Applicant S20/2002 (2003) 198 ALR 59
SZBYR & Anor v Minister for Immigration & Citizenship (2007) 235 ALR 639

First Applicant: SZMHD

Second Applicant: SZMHE

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1282 of 2008

Judgment of: Smith FM

Hearing date: 12 September 2008

Delivered at: Sydney

Delivered on: 12 September 2008

REPRESENTATION

Counsel for the Applicant: First Respondent In Person

Counsel for the First Respondent: Mr J Mitchell

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. The application is dismissed.

2. The applicants must pay the first respondent’s costs in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1282 of 2008

SZMHD

First Applicant

SZMHE

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicants are a husband and wife, who arrived in Australia in June 2007 as visitors sponsored by the wife's brother in Australia.  On 23 July 2007 they lodged applications for a protection visa assisted by an agent, Priscilla Yu.  The wife made no separate claim to fear persecution, but the husband claimed to fear persecution if the family returned to the People's Republic of China.  An attached statutory declaration set out the history upon which he made that claim.   I shall refer to him as ‘the applicant’, as did the Tribunal.

2. The applicant said that, after studying at a primary school and middle school, he was employed by a construction engineering company which employed mostly agricultural labourers to work on construction sites.  He commenced his employment in 1996, and in September 2002 he was promoted to being Deputy General Manager of the company.  During 2005 the company was engaged in a large project involving the construction of a railway tunnel.  In the course of this, a number of the workers were injured and one particular worker was killed.  From December 2005 and during 2006, the applicant attempted to assist the injured people and their relations to gain compensation, and he also promoted the safety of the workers at the construction site.  However, inadequate compensation and responses were made, in particular by the railway company.  He said:

   From November 2006, after I completely lost my confidence with (the railway company) I started contacting the complaint centre of labour bureau of (a city) and (other agencies) in order to seek protection by the relevant government agencies. 

3. He approached the People's Court or People's Procurators to seek legal assistance, but did not receive any ‘real’ help.  At this time, his family was worried about his safety and tried to persuade him to give up actions against the railway company, and his mother asked his brother in Australia to arrange a trip to Australia.  From March 2007, he encouraged and organised some of the agricultural labourers in his company, as well as other people, to send petitions to the railway company and government agencies as well as other authorities.  He said: “the authorities regarded those petitions as anti-government propaganda materials”.  On 30 April 2007 he was suddenly arrested by police from the public security bureau, and he was told that he had been reported as planning a large anti-government labourers' protest on Mayday.  He said he was subjected to persecution, interrogated, heavily beaten and detained for eight days before being released.  He said:

   I had to decide to leave China at the end, because it would be impossible for me to have any normal life.  Being regarded as a person with a “black record” of having “incited” anti-government movement in the past, I have become a target of the PSB.  During the following one month period, I was questioned by the police for five times at the PSB; and the police went to my living place in (his city) for three times and my home in (his alternate residence city) for twice with excuses of investigating my anti-government activities.  Some of my families including my wife as well as my relatives have also been questioned by the police.  Moreover, my wife got pregnant and I really scared that my wife and my future baby might suffer from persecution owing to my particular political background .  I, therefore had to try my best to leave China as soon as possible.

   On 8 June 2007, my wife and I finally left China after my family had once again bribed those corrupt police at the PSB.

   It is apparently that my purpose to leave my country China solely for the purpose to escape from persecution by the PRC authorities owing to my political opinions and action.  I, therefore, have to seek protection by the Australian Government.

4. No supporting evidence of these claims was sent to the Department of Immigration, and a delegate refused the applications on 12 October 2007.  The delegate thought there were a number of factors which cast serious doubt on the credibility of the claims and the genuineness of the applicant’s claimed fear of Convention related persecution. 

5. On appeal, the applicant was further assisted by his agent.  He attended a hearing held by the Tribunal on 21 January 2008, which was resumed on 27 February 2008.  A transcript of these hearings is not in evidence, although the applicants have been given an opportunity to present one.  However, the Tribunal gives very detailed account of the two hearings in its statement of reasons, and there is no reason why I should not accept that account. 

6. According to the Tribunal, the applicant initially described his construction company as having approximately 200 employees and a turnover of twenty million Yuan per year.  He attempted to explain why he would have become its deputy general manager at the age of 23 and with little education.  He also described his involvement in the railway construction project, the injuries of workers in the course of the project, and his involvement in the making of complaints and petitions.  At the resumed hearing, he was further questioned about his claimed arrest, and some inconsistencies in his evidence were pointed out to him. 

7. The Tribunal put to the applicant at the hearing some information which its investigations had obtained from the file of the Department of Immigration in relation to his Visitor's Visa application in China.  It also put to him information from internet researches.  These had investigated the person who signed Chinese employment certificates and grant-of-leave letters on behalf of the construction company, which had been given to the Department in support of the visitor's visa application.  The English translations of these documents shown the signatory as being the general manager, Mr MJL, and had translated the middle name as ‘Jian’.  The Tribunal's researches in relation to the Chinese characters for this person’s name were put to the applicant at the hearing.  The Tribunal said:

   The Tribunal discussed the applicant’s claim that he was the Deputy General Manager of the Company. The Tribunal explained to the applicant that the Department’s file in relation to his visitor visa indicated that the Department did a check on his employment and it was found to be not genuine, but the Department was willing to grant the visitor visas because his brother was able to pay a bond of $15,000 per person. The applicant confirmed that he provided reference documents in relation to his visitor visa by Mr MJL. The Tribunal showed the applicant the Chinese characters for Mr MJL’s name and he was confirmed that it was correct. The Tribunal advised the applicant that a Chinese speaking staff member had searched the Internet for the Chinese characters of Mr MJL’s name and found a document entitled “Fujian Provincial partial list of falsification of manager’s qualification certificates”. The Tribunal advised the applicant that the document lists 10 people from the company and indicates that Mr MJL was held responsible as the legally appointed representative of the company for the falsification of documents.

   The Tribunal also discussed other matters with the applicant husband and also took some evidence from the applicant wife. 

8. After the hearing, the Tribunal sent to the applicant an invitation for written comments.  This included information suggesting that the sponsored visitor’s visa application had been made before the applicant claimed to have become a person of interest to the authorities.  It included also some matters concerning his claimed employment as Deputy General Manager of the construction company.  This part of the letter said:

   ·    The Department file indicates that when you made the application for the visitor you have claimed that you were employed as the Deputy General Manager of (named) Construction Engineering Company.  The documents that you provided to the Department confirmed your employment and were signed by Mr MJL.

   ·    The Department’s visitor visa file indicates that when it conducted a “Stream 2” check, which is a check conducted by the Department on your claims to have been employed as the Deputy General Manager of the company, it concluded that employment claims were “not genuine”.  The Department’s case notes indicate that although it found that your employment claims were not genuine, it decided to grant the visas to you and your wife because your sponsor, your brother who is an Australian permanent resident, was willing to put up a security bond of $15,000 each for you and your wife.

   ·    Information on your application form indicates that you left school at the age of approximately 16 or 17 years and that you had no qualifications in engineering or construction.

   ·    Checks on the Chinese character names of the General Manager, Mr MJL by a fluent Chinese speaking staff member of the Tribunal, also indicate that Mr MJL has been held responsible as the legally appointed representative for falsifying manager’s qualifications.  The Tribunal has attached the Chinese version of this document for your information (2006, Fujian Provincial Partial List of Falsification of Manager’s Qualification Certificates).

   The above information is relevant because it may lead the Tribunal to conclude that your claims to have been employed as the Deputy General Manager of the (Named) Construction Engineering Company are false.  The Tribunal may conclude that you were not employed in that capacity for the company and that Mr MJL has provided false documents on your behalf.  As discussed with you at the Tribunal hearing, the information before the Tribunal also indicates that false documentation is readily available in Fujian (Immigration and Refugee Board of Canada 2005, CHN100510.E – China: The manufacture, procurement and distribution and use of fraudulent documents, including passports, hukou, resident identity cards and summonses; the situation in Guangdong and Fujian particularly (2001-2005). The Department of Foreign Affairs and Trade has confirmed this information recently and October 2004).  The Tribunal may conclude that as your claim to be the Deputy General Manager is an integral aspect of your claims, that your claims regarding the actions that you took against the Chinese (Named) Company whilst the Deputy General Manager of the (Named) Construction Engineering Company are false.

   It is significant to a submission which I shall address below, that in this letter the references to Mr MJL in the first and last dot paragraphs of this passage spelled his middle name, which appeared at the end of the name, as ‘Jiang’ and not ‘Jian’.

9. In response to this part of the invitation for comments, the applicant's agent forwarded a statutory declaration by the applicant which included the following paragraphs:

   8.The person who signed the employment reference in relation to my visit visa application should be “L-, M- Jian” rather than “L-, M- Jiang”.

   9.Having carefully checked falsified people list in the form attached to Tribunal’s fax dated 10 March 2008, I could really only find the name of “L-, M- Wen” rather than “L-, M- Jian”.  Also, the information only indicated some of people for falsifying manager’s qualification; but it neither indicated that (named) Company was a false company nor “Mr L-, M- Jian” was not a legal representative and general manager of the company.

   10.I have to emphasise that I am the Deputy General Manager of (named) Company and Mr M- Jian L- was the legal representative and General Manager of (named) Company.

10. The Tribunal handed down a decision affirming the delegate's decision on 22 April 2008. 

11. In its statement of reasons it carefully narrated the claims made by the applicant, the evidence taken at the two hearings, and the subsequent s.424A correspondence with the applicant and his agent. Under the heading, "Findings and Reasons", the Tribunal referred to evidence concerning the construction company and the railway project, and the applicant's knowledge of these matters. It accepted that such a project had occurred, that injuries to workers may have occurred, and that the railway company may not have paid reasonable compensation to injured and deceased workers and their families. It also accepted that the applicant “displayed a reasonable knowledge of the construction project and accepts that he may have been employed on the project or have been otherwise involved in some way in the construction of the tunnel”. 

12. However, it did not accept that he had been employed as a Deputy General Manager in the construction company, nor any of his claims to have been involved in petitions and agitation on behalf of workers' rights.  This was because it did not accept that he was a credible witness in relation to those matters, and it concluded that he had “relied upon some involvement and knowledge in the (project) to fabricate a set of claims to support his application for a protection visa”.

13. The Tribunal said that the applicant's claim to have been the Deputy General Manager of the construction company was “an integral aspect of his claims”, and examined that element closely.  It identified three reasons for disbelieving it.  First, it noted information from the Department file, which had been put to the applicant, which suggested that Departmental inquiries during the course of considering the visitor's visa application had indicated that his employment was “non genuine”, without the source of this opinion being indicated. 

14. Secondly, the Tribunal noted that supporting documents for the visitor's visa application had been provided and signed by Mr MJL as General Manager, and it noted its information from the provincial government website “indicating that Mr MJL has been held responsible as the legal representative of the (construction company) for issuing fraudulent documents in relation to managers' qualifications”. 

15. Thirdly, the Tribunal explained why it thought it to be “highly implausible” that the applicant could have progressed to the senior level of Deputy General Manager of a reasonably large construction and engineering company at the age of 22 or 23, in circumstances “where he had commenced employment at the company as a labourer, after leaving school in Year 9 and without ever obtaining any qualifications in engineering or construction”.   The Tribunal said that it had considered the applicant's explanation for his senior position, and said that it did not accept that “this overcomes the Tribunal's findings above”.  He has suggested that he was employed at a senior level because of his experience as a skilled agricultural worker, in circumstances where the company was “just a construction team that consisted of agricultural workers”.  Moreover, the Tribunal thought that the explanation was “indicative of his attempts throughout the review process to modify his evidence to either minimise or enhance the size of the company and the importance of his position.” The Tribunal gave other several illustrations where it thought that this had appeared in the course of his evidence to it.

16. The Tribunal also discussed the applicant's responses to the information which had been put to him, that Mr MJL had appeared on a Chinese website as a person who was responsible for issuing false documents.  The Tribunal said:

    The Tribunal has also considered the applicant’s explanation, in response to the Tribunal’s post hearing letter, to the information indicating that Mr MJL was held responsible as the legal representative of the (named) Construction and Engineering company for falsifying documents. The applicant has claimed that he “carefully checked” the list and the name  ‘L- M- Jian” does not appear on the list and only the name “L- M- Wen” appears on the list. The Tribunal notes that while it mistakenly referred to “L- M- Jiang” in its post hearing letter, a copy of the document “Falsification of Manager’s qualifications” was provided to the applicant and he has stated in his response that the name of the General Manager is L- M- Jian, not L- M- Jiang. The Tribunal accepts that the name of the General Manager was L- M- Jian. However, the Tribunal does not accept the applicant’s claim that the name L- M- Jian does not appear on the document provided to him by the Tribunal. As explained at length to the applicant at the second hearing and in the post hearing letter, the document referring to the falsification of manager’s qualifications was found by a fluent Chinese speaking staff member who searched on the Internet for the Chinese characters of Mr L- M- Jian’s name. The applicant confirmed the Chinese characters of Mr L- M- Jian’s name at the Tribunal hearing.  Thus, the Tribunal is satisfied that the applicant verified the Chinese characters for Mr L- M- Jian’s name. The Tribunal accepts that the Chinese characters for the name L- M- Wen also appear on the document, but considers that even a cursory check of the document would reveal that the Chinese characters for the name L- M- Jian are clearly listed on the document.  The Tribunal considers that the applicant’s denial that the name Mr L- M- Jian appears on the document is indicative of his attempts to mislead the Tribunal.

    The Tribunal further considers that the applicant’s comments in his response to the Tribunal’s post hearing letter, whereby he states that the company is not a false company, is an attempt to create confusion and obscure the issues relating to the document showing that Mr L- had been held responsible as the legally appointed representative of the company for providing false documents. The Tribunal is satisfied that the applicant was informed at length during the Tribunal hearing that the Tribunal did not doubt that the company genuinely existed, but had serious concerns regarding his claim to have been employed as the Deputy General Manager of that company. Accordingly, the Tribunal is satisfied that the applicant understood the relevance of this issue given that it was raised and discussed at length at the Tribunal hearing and reiterated in the Tribunal’s post hearing letter. Thus, although the Tribunal accepts the documents provided by the applicant in response to its post hearing letter confirming the status of the (Named) company and confirming that Mr L was the General Manager, the Tribunal does not accept it explains or overcomes the issues relating to Mr L being held responsible for the provision of false documentation and other concerns raised by the Tribunal relating to the applicant’s claims to be the Deputy General Manager of the (Named) company. 

1. As a result of its rejection of the applicant's claimed position in the construction company and its further conclusions about the credibility of his evidence and responses, the Tribunal rejected the applicant's claimed activities as Deputy General Manager which incurred the persecution he claimed to have suffered. 

2. The Tribunal also said that there were other aspects of his evidence which caused concern, and it pointed to areas of improbability.  It noted the applicant's explanation for applying for a visitor's visa prior to his claimed arrest, and considered that this remained “problematic”.  It concluded that his actions in seeking to leave China several months prior to his claimed arrest showed that he was not concerned with his safety due to harm from Chinese authorities, and that he wished to leave China for reasons unconnected with his application for protection. 

3. The Tribunal therefore was not satisfied that the applicants were persons to whom Australia had protection obligations under the Refugee's Convention. 

4. The applicants now ask the Court to set aside the Tribunal's decision and to remit the matter for further consideration.  I can only make these orders if I am satisfied that the Tribunal's decision was affected by jurisdictional error.  I do not have power myself to decide whether the applicants’ refugee claims should be believed nor whether they qualify for protection visas or any other permission to stay in Australia. 

5. The applicants rely upon three grounds presented in their original application.  Submissions in support of the first two grounds were read to me today by the applicant husband. 

6. The first ground is:

   The Tribunal has completely misstated my evidences; and the Tribunal's decision has definitely included apprehended bias. 

   The argument which is then presented as ‘particulars’ refers to the applicant's explanation for being able to achieve the position of Deputy General Manager of the construction company despite a lack of education and his youth.  His submissions to the Tribunal are repeated, and it is contended that:

   Unfortunately my complaints, claims and evidences have completely been misstated by the Tribunal.  I have to say that the Tribunal's decision has definitely included apprehended bias. 

7. However, I have not been able to identify any relevant misstatement of the evidence by the Tribunal which would undermine its reasoning in relation to this element in the applicant's claims.  It appears to me to have been open to the Tribunal to have arrived at its conclusions on the evidence, and it gave several rational reasons for having done so.  I accept that the conclusion arrived at by the Tribunal was based upon evidence and reasoning which was not necessarily compelling, but the Tribunal shows that it has carefully weighed the evidence in the context of the applicant's general credibility which it has assessed in the course of its hearing.  I consider the conclusions which are attacked in this ground were open to the Tribunal on the evidence before it, and do not reveal any jurisdictional error. 

8. I can find no evidence at all supporting the contention of apprehended bias.  In my opinion, the Tribunal’s reasoning which is attacked shows no more than the Tribunal doing its statutory duty to arrive at conclusions, including as to its satisfaction as to the applicant’s claimed refugee history. 

9. The second ground in the application seizes upon the error in the 424A(1) letter, in which the Tribunal referred to Mr MJL’s middle name as ‘Jaing’ rather than ‘Jain’.  It is contended that as a result of this, information was put to the applicant for comment which was not the information which the Tribunal intended to put to the applicant.  It is submitted:

   So, in such a situation the Tribunal should at least give me a fair chance to be provided correct information and to make my comment on the correct information.

10. I am not persuaded that these contentions identify any breach of s.424A(1), nor any other obligation on the Tribunal in relation to the putting of matters to an applicant.

11. First, in my opinion, the relevant paragraphs in the 424A letter did not contain a mistake which was reasonably likely to mislead the applicant, or in fact did mislead the applicant, as to the person who was being referred to as the general manager, and the person who appeared in the Chinese list of persons responsible for fraudulent documents in relation to manager’s qualifications. The Tribunal’s letter referred the applicant to his own Chinese documents submitted to the Department, with English translations, when obtaining visitors’ visas. These had been shown to him in the course of the hearing by the Tribunal. They manifestly had referred to the person with a Chinese signature and a Chinese name, whose middle name was translated as “Jian” and not “Jiang”. There could have been no doubt that the s.424A(1) letter was also referring to this person. The applicant's response to that part of the letter pointed this out, and made clear that he had not been mislead as to the person the Tribunal was really referring to. I consider that the mistaken English reference to Mr MJL’s middle name was of no significance to the matters which were being put to the applicant in the s.424A letter.

12. Moreover, in relation to the list of persons found responsible for falsifying manager's qualifications, the applicant was provided with “the Chinese version of this document”, and it is not suggested that it contained any error in the Chinese characters for Mr MJL’s name appearing in that list.  It is apparent from the applicant’s response that the Chinese list was closely examined by the applicant and his agent.  The applicant claimed that the list had been carefully checked to find the correct name for Mr MJL in Chinese characters, and that it was not there.  It is clear from this response that the applicant and his agent understood what was being put to the applicant.  The information which the Tribunal ultimately relied upon was the contents of the Chinese document which had been given to the applicant, and to which he had responded without any misapprehension as to what was being put to him.  The English spelling of the name, whether correct or incorrect, was not the information which the Tribunal ultimately relied upon in its reasons in the paragraph which I have set out above. 

13. For both these reasons, I do not accept that there was any particular of information which formed a reason for the Tribunal affirming the delegate’s decision, and which was not put to the applicant sufficiently in terms of s.424A(1).

14. This ground in the application also appears to suggest that there was an element of unfairness arising from the Tribunal's mistaken reference to ‘Jiang’, and possibly also from its assessment of the applicant’s response as revealing an attempt “to mislead the Tribunal" as to the true contents of the Chinese document. 

15. However, in my opinion, no unfairness arose in the circumstances which I have described, and there was no breach of any procedural obligation on the Tribunal arising from this correspondence.  At all times the applicant was well aware of the Chinese name of the person who was being referred to, and was not at all misled by the mistaken English reference to the middle name.   All that happened was that the applicant was caught out by the Tribunal, when it checked for itself the Chinese characters for the names in the list which had been sent to the applicant.  This revealed that the applicant’s response made assertions as to the contents of that list which were patently incorrect, and where this must have been known to the applicant and his agent if they had, as they said, “carefully checked falsified people list” looking for the correct name. 

16. In my opinion, the Tribunal's conclusion that there had been an attempt in the response to its s.424A letter to mislead the Tribunal as to the contents of the Chinese list of names was a finding which was open to it, and which was an unsurprising conclusion in the circumstances. I do not consider that the Tribunal’s assessment of the misleading response was itself a matter which should have been put to the applicant, nor that it gave rise to any obligations to warn the applicant that it might find that there had been an attempt to mislead it as to the contents of the Chinese list. In my opinion, the situation illustrates the point made in SZBYR & Anor v Minister for Immigration & Citizenship (2007) 235 ALR 639 at [20].

17. For the above reasons I am not persuaded that any jurisdictional error has been established which is raised by ground two of the application. 

18. Ground three of the application contains a lengthy argument supporting the proposition:

    The Tribunal, on the surface, may have considered my response to the Tribunal's post-hearing letter; but as a matter of fact, the Tribunal failed to look at my claims fairly and properly.

    There is then an extract of the “claims and/or evidences” which are claimed to have been wrongly assessed. 

19. However, in its own terms, this ground concedes that the Tribunal did consider the applicant’s response, and the contrary is not arguable in the face of the Tribunal's statement of reasons. In my opinion, the argument which is presented does no more than dispute the merits of the Tribunal's conclusions about the relevant circumstances. I am not persuaded that any of the Tribunal's reasoning which is attacked showed such illogicality or unreasonableness as to give rise to jurisdictional error within principles referred to in Re Minister for Immigration & Multicultural Affairs; Applicant S20/2002 (2003) 198 ALR 59.

20. For the above reasons, I have not been persuaded by any of the grounds of review which are before me.  I am unable to find jurisdictional error affecting this Tribunal's decision, and I must therefore dismiss the application.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Michael Abood

Date:  8 October 2008