SZMII v Minister for Immigration - [2008] FMCA 1543

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMII v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1543

MIGRATION – Application to review of decision of Refugee Review Tribunal – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.424A, 424AA, 425

SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190
SZLQD v Minister for Immigration and Citizenship [2008] FCA 739
SZLTC & Ors v Minister for Immigration & Anor [2008] FMCA 384
SZLXI v Minister for Immigration and Citizenship [2008] FCA 1270
SZLYS v Minister for Immigration & Anor [2008] FMCA 1397
VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471

Applicant:

SZMII

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1372 of 2008

Judgment of:

Barnes FM

Hearing date:

30 October 2008

Delivered at:

Sydney

Delivered on:

30 October 2008

REPRESENTATION

Applicant:

In person

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

That the application is dismissed.
That the applicant pay the costs of the first respondent fixed in the sum of $3,900.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1372 of 2008

SZMII

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Refugee Review Tribunal handed down on 1 May 2008 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of the People’s Republic of China, arrived in Australia in October 2007 and applied for a protection visa. In a statutory declaration accompanying his protection visa application the applicant explained that he travelled to Australia on a passport under a name that was not his real name and that he had a different date of birth. He provided details of what he said was his real identity. He claimed that after he graduated from school in 1990 he became an apprentice cook, learning to make Japanese food and that he completed his apprenticeship training at a Japanese seafood restaurant over a three and a half year period.
The applicant claimed that over the next ten years he worked as a Japanese cook at several Japanese restaurants. A named person had successfully pressured him to work in his Japanese restaurant from March 2004 onwards. He claimed that that person had a “powerful background” and that after he started to work for him he found that he and other workers had to work very hard, but were underpaid and mistreated. This culminated in a loss of unpaid salaries when the restaurant went bankrupt and the restaurant proprietor fled overseas in March 2007.
The applicant claimed that he and a friend began to organise former employees to seek compensation from the restaurant owner’s family. He claimed that they were unable to get help from government agencies or solicitors and that they were threatened by followers of the restaurant owner’s family. He claimed that in June 2007 he and his friend organised 50 to 60 ex-employees of the restaurant to participate in a sit-in protest in front of the local government offices. He claimed that he organised the distribution of copies of a petition he and his friend had drafted seeking a number of specified actions, including compensation of the victims of the restaurant.
The applicant claimed that the protest was suppressed by the Public Security Bureau (PSB) and that he and his friend were arrested. They were alleged to have organised an anti-government protest on a “sensitive” day, being the day before an anniversary of the Tiananmen Square massacre. He was detained for nearly two months and subjected to mistreatment during his detention. He claimed that he was released after his family paid a bribe and that he had to confess to anti-government activities and promise not to take any action against the government in the future. He claimed that his friend was not released, but sent to a labour camp.
The applicant claimed that thereafter he was under scrutiny by the PSB being regarded as a dangerous person, and that he had to report to the local police station once a week, have permission to leave home and be available for further investigation. He claimed his brother obtained a passport for him in another name and that he escaped from China in later September 2007.
The application was refused by a delegate of the first respondent and the applicant sought review by the Tribunal. The applicant attended a Tribunal hearing.
In its reasons for decision the Tribunal accepted the applicant’s claim to be known by the name that he had claimed was his in the statement accompanying his protection visa application and that he had entered Australia using a false passport. It stated that it did not draw any adverse conclusions from that fact. While it referred to the fact that there had been an examination of the passport on which the applicant travelled by the Document Examination Branch of the Department, the results were inconclusive. It gave the applicant the benefit of the doubt and accepted that he was the person he claimed to be.
The Tribunal did not accept any of the applicant’s claims to be a refugee on the basis of political opinion and membership of a particular social group. It dealt first with his claims that he was an experienced and skilful cook of Japanese food and his claims of employment in the Japanese restaurant and what occurred thereafter.
In relation to the applicant’s claim that after he lost his employment he tried to pursue family members of the owner of the restaurant to compensate him for lost wages, the Tribunal accepted that a person who lost his job and had not been paid for several months would be unhappy and wish to be compensated. However the Tribunal noted that the applicant’s evidence was that a named person was the sole owner of the restaurant and that there was no evidence that that person’s family had any responsibility for closure of the restaurant or for non-payment of the wages.
In his statutory declaration the applicant claimed he had approached certain government officials. The Tribunal had concern about his inability at the hearing to list all the departments he claimed he had approached and the fact that at the hearing he could not name the three demands said to be in the petition described in his statutory declaration.
The Tribunal was not satisfied that the applicant had attended government agencies to seek help as claimed. It was of the view that if he had done so he would have been more precise and more detailed about the agencies attended. Nor was it satisfied that he had been involved in a demonstration where petitions he had been involved in drafting were distributed as otherwise he would have been able to give greater detail about the information contained in the petition. The Tribunal had regard to the fact that the applicant had given inconsistent evidence and had failed at the hearing to detail evidence which he had described in greater detail in his statutory declaration.
The applicant had claimed for the first time at the hearing that prior to commencing work at the restaurant he and his wife had been threatened by the restaurant owner. The Tribunal had regard to the fact that the applicant had introduced new evidence at the hearing even though he had stated he had not left anything out of his protection visa application.
On the basis of these concerns the Tribunal found that the applicant was not a credible witness. It found that as he was not involved in the claimed demonstration or arrested and detained as he claimed. Nor was it satisfied that he was involved in any anti-government protests. The Tribunal referred to the fact that the applicant’s claims at the hearing related to a privately owned restaurant and a petition for the family of the restaurant owner to compensate employees for lost wages and suffering. It did not accept that the claimed demonstration about a privately owned restaurant would lead the authorities to arrest and detain the applicant for two months, notwithstanding the date of the demonstration. It was not satisfied that the applicant’s political opinion or his imputed political opinion was or is the essential and significant reason for the persecution he claimed to fear.
The Tribunal was not satisfied that the applicant was arrested, detained and subjected to abuse while in detention and subjected to persecution by the PSB thereafter, or that he was regarded as a dangerous person with firm anti-government ideologies. It did not accept that he was forced to report to the local police station once a week and was not allowed to leave his home without permission, or that his father paid bribes so that he could be released. It referred to the fact that the applicant had given evidence that his wife and son lived at the same house where they had lived previously and that his son went to the same school. It did not accept that his family members were monitored.
Although the applicant had a passport which he claimed was false, this did not persuade the Tribunal that he was a refugee. It was of the view that there were many and varied reasons why a person might not have a passport in his or her own name.
The Tribunal reiterated that it had found that the applicant was not a credible witness and did not accept his evidence that he had complained and demonstrated against mistreatment by a former corrupt employer.
Before addressing the applicant’s claim based on membership of a particular social group the Tribunal considered the applicant’s claim to have been an experienced Japanese chef, or cook of Japanese food, for some 17 years.
The Tribunal observed that it had already found that the applicant was not a credible witness and that although he claimed to be an experienced and skilful cook of Japanese food of 17 years’ experience, he was unable to give evidence about the food he cooked, except for a reference to sushi and a soup which he claimed was called “hai ha” soup. It found that he was not a Japanese cook and did not have 17 years’ experience as a Japanese cook.
Because the Tribunal did not accept the applicant’s claim to have been a Japanese chef, it did not accept any of the claims that flowed from this, including his claim that he was bullied into working for a restaurant, abused, underpaid, lost his job because the restaurant went bankrupt, demonstrated, approached solicitors or government agencies, organised a demonstration and prepared petitions, or that he was arrested, detained or persecuted, subjected to surveillance thereafter, or was regarded as a dangerous person.
The Tribunal did not accept that the applicant was a member of a group of ex-employees of a Japanese restaurant which closed down, or a member of a group which demonstrated against loss of wages or loss of employment. It found that he did not have a well-founded fear of persecution for reason of his membership of a particular social group.
The Tribunal summarised that it found that the applicant was not persecuted or discriminated against because of political opinion or membership of a particular social group in China and that he had not ever been adversely affected on that basis. It found that he did not have a well-founded fear of being persecuted in China for reasons of political opinion or membership of a particular social group. Nor did the Tribunal accept that the applicant was subject to any persecution arising from the restaurant owner’s claimed collusion with corrupt relatives, officials or followers of his family.
Given that the Tribunal did not accept that the applicant had worked for the restaurant owner and did not accept that he had pursued the owner’s family for compensation for lost wages, it found the applicant’s claimed fear of persecution was not well founded. It also did not accept that the applicant was involved in participating in or organising any form of political demonstration in China, was arrested and detained for those reasons in China or that he was wanted by any “organ” of the Chinese government for reasons of his political opinion or membership of a social group, either for having participated in demonstrations, expressing his political opinion in China or for any other reason.
The Tribunal reiterated that the reason it found against the applicant in relation to these matters was that it did not accept that he was a witness of truth. It was not satisfied on the evidence before it that the applicant had a well-founded fear of persecution within the meaning of the Refugees Convention.
The applicant sought review of the Tribunal decision by application filed in this Court on 28 May 2008. There are two grounds in the application. The first ground is that the Tribunal failed to comply with its obligations under s.424AA of the Migration Act 1958 (Cth). Particulars to this ground are that the Tribunal had regard to certain pieces of information as the reason, or part of the reason, for affirming the decision under review.
The application then sets out extracts from the Tribunal’s findings, including that a named person was the sole owner of the restaurant and that there was no evidence that his family had any responsibility for closure of the restaurant and non-payment of wages; that the applicant was unable to list all the departments he claimed in his statutory declaration he had approached and did not name the three demands he claimed were in the petition distributed by him; that he had first claimed at the hearing that prior to commencing work at the restaurant he and his wife had been threatened and that there were inconsistencies in his evidence; that he failed at the hearing to detail evidence described in greater detail in the statutory declaration; that he introduced new evidence at the hearing despite his statement that he had not left anything out of the application and; that he was unable to answer questions about dishes he had cooked in the restaurant and that he had been asked a number of times about dishes he cooked and did not answer the question.
The applicant claimed that the Tribunal failed to give him clear particulars of the abovementioned information, failed to ensure that so far as reasonably practicable he understood why the information was relevant and the consequences of reliance and failed to invite him to comment and advise him that he may seek additional time and may respond in writing.
The second ground is that the Tribunal failed to comply with its obligations under s.424A(1) of the Act and that it failed to give the applicant clear particulars in writing of the same information and to ensure that he understood why it was relevant and the consequences of it being relied upon and to invite him to comment.
In oral submissions the applicant reiterated that the Tribunal had failed to give him the opportunity to comment on information and confirmed that the information to which he referred was the Tribunal reasons for refusal of his protection visa application.
It is, however, well established that the concept of “information” in s.424A(1) of the Migration Act does not extend to the Tribunal’s subjective appraisals, thought processes or determinations, as Finn and Stone JJ observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 and as was referred to with approval by Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ in SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at [18]. Nor, as Finn and Stone JJ went on to state (at [24]):
… does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.
As the majority judgment in SZBYR pointed out at [18] if the contrary were true s.424A would in effect oblige the Tribunal to give advance written notice, not merely of its reasons, but of each step in its respective reasoning process. Their Honours observed that however broadly information be defined its meaning in this context “is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence.”
The matters raised by the applicant consist of aspects of the Tribunal’s reasoning process in relation to evidence that he provided to the Tribunal. These matters do not constitute information for the purposes of s.424A of the Act. The obligation in s.424A(1) does not extend to information that the applicant gave for the purposes of the review under s.424A(3) or during the process that lead to the decision under review (see s.424A(3)(b) and 424A(3)(ba)). As already observed, it does not extend to inconsistencies in that information or the Tribunal’s conclusions arising from such inconsistencies such as were addressed in this instance. The Tribunal relied upon the evidence given by the applicant at the hearing as well as inconsistencies between that evidence and what was contained in his protection visa application. Consistent with the approach taken by the High Court in SZBYR, such material does not constitute information to which the obligation in s.424A(1) applies. No failure to comply with s.424A(1) is established.
Ground one of the application relates to the same information and contends that the Tribunal failed to comply with s.424AA of the Act. However, the term “information” in s.424AA has the same meaning as in s.424A(1). (See SZLTC & Ors v Minister for Immigration & Anor [2008] FMCA 384 and SZLYS v Minister for Immigration & Anor [2008] FMCA 1397). Moreover, as Marshall J indicated in SZLQD v Minister for Immigration and Citizenship [2008] FCA 739 at [12], s.424AA places no obligation on the Tribunal but enables it, if it so chooses, to give an applicant any information which the Tribunal considers would be part of the reason for affirming the decision under review orally.
In SZLXI v Minister for Immigration and Citizenship [2008] FCA 1270 Cowdroy J observed that while s.424AA does not contain a provision equivalent to the exceptions in s.424A(3) of the Act, it “is merely an alternative form of notification available to the Tribunal.” Hence the exclusions contained in s.424A(3) apply equally to s.424AA.
On that basis, material that is not information for the purposes of s.424A(1) of the Act is also not information for the purposes of s.424AA. The particulars identified by the applicant do not constitute information for the purpose of s.424A or 424AA. No jurisdictional error is established on either of the bases contended for by the applicant.
Finally, in concluding submissions the applicant stated that he had explained himself at the hearing and answered all the Tribunal’s questions. He said that the answers were translated by an interpreter, but he was not sure whether everything was translated. He did not elaborate on this claim. The only evidence before the Court of what occurred in the Tribunal hearing is the Tribunal reasons for decision. There is nothing in what the applicant said today or in the Tribunal reasons for decision to suggest any failure by the Tribunal to comply with its obligations under s.425. There is no evidentiary basis for his general and unparticularised assertion that it may be that all of his answers were not translated by the interpreter. On the material before the Court no jurisdictional error is made out on this basis.
More generally, I note that the applicant took issue with the reasons that the Tribunal had refused his application. Insofar as the applicant might be seeking merits review of the Tribunal decision, merits review is not available in this Court. The application should be dismissed. The applicant should pay the costs of the first respondent.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 17 November 2008