SZMIB v Minister for Immigration
[2010] FMCA 152
•4 March, 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMIB v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 152 |
| MIGRATION – Review of RRT decision – corroborative evidence – where Tribunal placed no weight on evidence given its quality – where Tribunal made adverse credibility finding after making a series of findings of fact. |
| Migration Act 1958 (Cth), ss.48B, 430 |
| Applicant: | SZMIB |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | BRG 135 of 2009 |
| Judgment of: | Jarrett FM |
| Hearing date: | 14 May, 2009 |
| Date of Last Submission: | 14 May, 2009 |
| Delivered at: | Brisbane |
| Delivered on: | 4 March, 2010 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the Respondents: | Mr Yuille |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application filed on 2 November, 2009 be dismissed;
The Applicant pay the First Respondent’s costs fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 135 of 2009
| SZMIB |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of China. He arrived in Australia on 9 November, 2007. On 7 December, 2007 he applied for a protection (class XA) visa from the Department of Immigration and Citizenship.
On 14 January, 2008 a delegate of the Minister refused to grant him a protection visa. On February, 2008 the applicant applied for review of the delegate’s decision from the Refugee Review Tribunal. On 17 April, 2008 the Tribunal determined to affirm the decision not to grant the applicant a protection visa and handed that decision down on 28 April, 2008.
The Applicant sought review of the Tribunal’s decision in the Federal Magistrates Court. In a judgment handed down on 20 October, 2008 Federal Magistrate Raphael upheld the Applicant’s review application[1]. His Honour ordered that the decision of the Tribunal be quashed, and that the matter be remitted to the Tribunal for reconsideration according to law.
Upon remittal, the Tribunal (differently constituted) invited the Applicant to attend a hearing, to take place on 5 January, 2009. The hearing was held on that day and the Applicant attended. In a decision made on 23 January, 2009 and faxed to the Applicant on 27 January, 2009 the Tribunal again affirmed the decision of the delegate. On 29 February, 2009 the Applicant applied to this Court for review.
The application has two grounds, namely:
1. RRT did not use favorable cases to my application.
2. Procedural fairness has been denied. RRT failed to assess all the document I provided to them.
Directions were made for the parties to file and serve outlines of argument. Only the First Respondent has done so. In doing so, the First Respondent has sought to anticipate the arguments that might be made by the Applicant having regard to the very general nature of the grounds of review set out in the application. I am much assisted by that approach. The applicant’s oral argument did not provide any amplification of the matters he saw as important to the resolution of this case.
The First Ground
The applicant did not elaborate on what he meant by this ground of review. As the First Respondent points out in written submissions, the duty of the Tribunal is to review the decision of the delegate and to “act ‘judicially’ and according to law”. In so doing, it may exercise all of the powers and discretions conferred by the Act, asking itself whether the decision of the delegate is the correct and preferable decision on the material before the Tribunal.
I accept the submission that the Tribunal set out in some depth the relevant law, as reflected in the Act, the Convention Relating to the Status of Refugees, and the applicable case law. None of what was set out by the Tribunal was controversial. The Tribunal referred to the relevant authorities in its determination.
The Tribunal made a number of findings of fact, the most important being:
92. In the present case, as I put to the applicant in the course of the hearing before me, I consider that there are good reasons for rejecting his claim that he was involved in anti-government activity in China. At the hearing before me I raised a number of inconsistencies in the applicant's evidence with him. …
…
95. I accept that the applicant served in the People's Liberation Anny for a total of eight years and that he was stationed in Changle City in Fujian province. I accept the applicant's evidence that he got married in Fujian in January 2006 and that his wife continues to live in her father's home in Longtian in Fujian. I acc.ipt that the applicant's wife has only ever visited Anhui on one occasion, before their marriage. I accept that the applicant had to return to Anhui after he was demobilised in December 2006 but that he then returned to Fujian for the birth of his first child in March 2007. I accept that the applicant was a cook in the army and that in June and July 2007 he obtained work at a night food stall at an army base only 70 kilometres from his wife's hometown in Fujian. The applicant said at the hearing before me that this had only been for a bit over a month but, as I put to the applicant, I find it difficult to accept that he would not have been able to find employment in Fujian.
…
97. The applicant asked why he would not have wanted the job if the local government had given him a job but as I put to him - and he conceded - the whole basis for his claim is that the local government in Anhui did not give him a job. It is this which he claims led to his antigovernment activity. I do not regard it as credible that someone in the applicant's situation -with a wife and child in Fujian, with a wife who did not want to move to Anhui and with work available in Fujian - would not have remained in Fujian rather than returning to Anhui to continue his fruitless quest for work as he claims.
98. Moreover, as I likewise put to the applicant, I find it difficult to accept that the authorities would simply have released him with a 10,000 yuan fine if, as he claims, he organised a sit-in protest in front of the Hefei PSB involving demobilised soldiers from all over China while Mr Liu, whose only offence was distributing copies of the petition in a park, was kept in gaol…
…
100. Furthermore, as I likewise put to the applicant, it is also difficult to accept that the Anhui PSB would have allowed him to go to Fujian, that they would have told the Fujian PSB that he had done nothing wrong and that he would have been able to leave China travelling on a passport in his own name if his claims were true. …
…
103. As I put to the applicant, he claims that he confessed to being involved in anti-government activities and I therefore find it difficult to accept, in light of the advice of the Australian Department of Foreign Affairs and Trade, that he would have been able to leave China travelling on a passport in his own name. …
104. With respect, I find it difficult to accept that the applicant's friend could have 'bought out the Customs' in Shanghai so that the applicant would be able to leave China travelling on a passport in his own name. I remain of the view that the fact that, as he claims, the Anhui PSB allowed him to go to Fujian, that (as he claimed at the hearing before the first Tribunal) the Anhui PSB told the Fujian PSB that he had done nothing wrong, and that he then left China travelling on a passport in his own name cast doubt on whether the applicant is telling the truth about his claimed involvement in anti-government activities in China.
…
106. Having regard to the advice of the Australian Department of Foreign Affairs and Trade I give little weight to the household registration booklet and the 'Detention Notification' which the applicant produced after the hearing before the first Tribunal. I do not consider that they outweigh the view 1have formed of the applicant's own credibility. For the reasons given above, I do not accept that the applicant is telling the truth when he claims to have been involved in anti-government activity in China. 1 do not accept that he drafted antigovernment petitions with five friends who were also demobilised soldiers nor that he and his friends sent these petitions to different levels of the Chinese Government. I do not accept that the applicant was required to attend a two week political study class organised by the PSB and the Local Anus Department in Fengtai county of Anhui province in July 2007, nor that one of the applicant's friends, Mr Liu Mingliang, was arrested on 1 August 2007 because he was distributing copies of the petition in a park in Hefei.
107. Having regard to the view I have formed of the applicant's credibility, 1 do not accept that on 20 August 2007 he organised a sit-in protest in front of the PSB in Hefei City involving demobilised soldiers from all over China, nor that the applicant himself was arrested, detained for one month until 21 September 2007, physically and mentally persecuted by the police and forced to confess his anti-government activities. I do not accept that after his release the applicant was continually monitored by the PSB and Government officials at his home in Anhui, nor that he had to obtain permission from the PSB in Anhui in order to join his wife and child in Fujian. I do not accept that the applicant's friend Mr Lin Wei was arrested in mid-October 2007, nor that, since the applicant left China, Mr Lin and others have confessed and all the applicant's claimed anti-government activities have been discovered by the Chinese authorities. I do not accept that the applicant's wife or other members of his family have been investigated by the PSB since he left China nor that, as the applicant claimed at the hearing before the first Tribunal, the household registration of his wife and child has been transferred to Anhui.
108. Having regard 'to my findings of fact above, I do not accept that the applicant was ever of any interest to the authorities in China. I do not accept that there is a real chance that he will be persecuted for reasons of his political opinion if he returns to China now or in the reasonably foreseeable future.
…
110. I do not accept that any penalties which may be imposed on the applicant and his wife for violating the family planning laws will be imposed on him for one or more of the five 'Convention reasons. Having regard to my findings above I do not accept that there is a real chance that the applicant will be persecuted for one or more of the five Convention reasons if he returns to China now or in the reasonably foreseeable future.
I accept the First Respondent’s submissions that based on the findings of fact made on the material before it the Tribunal did not accept that the applicant had a well-founded fear of persecution based on one or more of the five Convention reasons. The Applicant therefore did not satisfy section 36(2)(a) of the Act, and the visa application had to be refused. I accept the First Respondent’s submissions that the Tribunal’s findings were open to it on the material before it, and should not be disturbed.
The applicant did not identify the “favorable cases” that he alleges were not taken into consideration by the Tribunal.
The second ground
By this ground, the Applicant argues that the Tribunal denied him procedural fairness and that the Tribunal failed to assess all of the documents provided to it.
The First respondent points out that by s. 422B of the Act, Division 4 of Part 7 of the Act is “taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.” Division 4 is to be interpreted as providing “comprehensive procedural codes which contain detailed provisions for procedural fairness but which exclude the common law natural justice hearing rule.”27
The First respondent further submits:
22. In compliance with s.425 of the Act, the Applicant was invited to attend, and did attend, an oral hearing. During the course of the hearing, the Tribunal raised with the Applicant, squarely and clearly, information that it considered to be the reason, or part of the reason, for affirming the decision under review.29 By acting in this way, the Tribunal engaged, and complied with, section 424AA of the Act. It was therefore relieved of the requirement to comply with section 424A of the Act. The First Respondent submits that the Tribunal has complied with all of its obligations under Division 4 of Part 7 of the Act.
I accept that submission.
The Applicant alleges that procedural fairness was denied because the Tribunal “...failed to assess all the document I provided to them.” The Applicant does not disclose what those further documents might be.
The First Respondent points out that on the last occasion this matter came before the Court, Raphael FM expressed some concern about the (differently constituted) Tribunal’s consideration of allegedly official Chinese Government documents provided by the Applicant. The Tribunal gave little or no weight to photocopies of official documents provided by the Applicant. Before the Federal Magistrates Court, the Applicant produced the original documents. The first respondent further points out that Raphael FM did not decide the case on that point, rather holding that the findings made by the Tribunal were speculative, made in the absence of evidence, and not open on the evidence before it. However, his Honour did note that the documents provided were of considerable importance, especially with regard to the Applicant’s credibility.
The Tribunal from whose decision this application is now brought considered, but still did not accept the authenticity of the relevant documents. I accept the submission made by the First Respondent that the Tribunal gave clear findings about that matter based on probative material and logical grounds. As to the documents and their authenticity, the Tribunal said:
105. As I noted, the applicant produced some documents after the hearing before the first Tribunal which he said had been posted to him from Fujian on 29 March 2008. Even if, as the applicant maintained at the hearing before me, it was physically possible for him to have contacted his wife in China immediately after the hearing on 26 March 2008 to arrange for these documents to be sent to him, I consider it relevant that, as I put to the applicant, the Australian Department of Foreign Affairs and Trade has advised that any official document can be either bought or forged in China, that irregular or improper issue of documentation is widespread and that therefore little evidentiary weight can be placed on any official Chinese document (DFAT Country Information Report No. 301100, dated 5 June 2000,.CX42649; DFAT Report No. 327 - China: RRT Information Request CHN17017, dated 7 October 2004). The applicant said that I could have his documents checked and he said that I could find out online because they had reference numbers. However when I asked him what he meant he said that he did not know what I meant by checking whether the documents were genuine or not. As I put to him, I consider that the only check I could make which would determine if the documents were genuine would be to contact the authorities in China and I am unable to make such checks, given that the applicant claims that he fears being persecuted by the authorities in China. I note for the sake of completeness that this is not a case where the skills of an expert document examiner would be of assistance since the advice of the Australian Department of Foreign Affairs and Trade indicates that the base documents in question will be genuine but that the documents will have been irregularly or improperly issued.
106. Having regard to the advice of the Australian Department of Foreign Affairs and Trade I give little weight to the household registration booklet and the 'Detention Notification' which the applicant produced after the hearing before the first Tribunal.
I accept the First Respondent’s submission that the Tribunal clearly fulfilled its duty to raise with the applicant its concerns about the authentic of the relevant documents. The Tribunal brought its concerns about the authenticity of the documents to the Applicant's attention more than once, and allowed him an opportunity to respond. The Tribunal also made it clear that the Applicant could seek further time to make submissions if he wished. He refused those offers.
I accept the First Respondent’s submission that no breach of procedural fairness can be made out in this case. The Tribunal complied with all of its obligations under Division 4 of Part 7 of the Act. It set out at length, and dealt with, all of the evidence and material before it. This ground of review must fail.
Conclusion
The Applicant has not established that the Tribunal’s decision is affected by jurisdictional error. The application must be dismissed with costs.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Jarrett FM
Date: 4 March 2010
[1] SZMIB v Minister for Immigration & Anor [2008] FMCA 1433
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