SZMJI v Minister for Immigration
[2008] FMCA 1439
•3 October 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMJI v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1439 |
| MIGRATION – RRT decision – Chinese applicant claiming political persecution – disbelieved by Tribunal – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), s.424A |
| NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs(2004) 214 ALR 264 Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 |
| Applicant: | SZMJI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1475 of 2008 |
| Judgment of: | Smith FM |
| Hearing date: | 3 October 2008 |
| Delivered at: | Sydney |
| Delivered on: | 3 October 2008 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Mr J P Knackstredt |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the amount of $4,100.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1475 of 2008
| SZMJI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant arrived in Australia in August 2007. On 27 September 2007 he lodged an application for a protection visa assisted by a migration agent, Priscilla Yu. A statement attached to the application recounted a history upon which he claimed to fear return to The People’s Republic of China.
The applicant said that he had worked as a fisherman since leaving school, and that in January 2007 he and other fishermen were “suddenly notified by the local government that we had not been allowed to go fishing at the sea close to the shore for the reason that it had been confiscated by the army”. He and another person organised protests about this during May 2007, and distributed propaganda materials and organised a protest gathering. The gathering was broken up by police and soldiers, and the applicant and the other leader and other people were arrested and detained. The applicant was “regarded as major organisers of the protest which has been classified as an ‘anti‑government’ one”. He was detained for three weeks, and physically and mentally persecuted. His family had to pay a bribe to get his release, and he was also subsequently punished by being required to work on a construction site between July and August 2007. He said: “I had to ask my friend to organise my trip to the overseas”, and that friend helped him to leave.
No further details of these matters were given to the Department of Immigration, and no supporting evidence was presented to the Department or to the Refugee Review Tribunal.
A delegate refused the application on 24 December 2007. The delegate said that he was not satisfied with the veracity of the applicant’s claims, and referred to his failure to refer to the fact that his passport was a second passport issued before the persecution which he claimed to have suffered. He also referred to a delay before the applicant left China after receiving an Australian visa, and the fact that the applicant left China using his own passport without any apparent difficulty.
On appeal, the applicant attended a hearing held by the Tribunal on 27 March 2008. A transcript is not in evidence before me, although the applicant was given an opportunity to present one. I must rely upon a detailed account of the hearing given by the Tribunal.
In this respect, I note that the applicant was given the sound recording of the hearing at the end of the hearing. In a later letter inviting comments, the Tribunal put to him that parts of his evidence had been “vague, lacking in detail and difficult to obtain”. The applicant’s written response admitted listening to the recording, and admitted that this was a possible interpretation of parts of his evidence. He, however, sought to explain why it might have appeared thus.
The Tribunal handed down a decision on 13 May 2008 which affirmed the delegate’s decision. The Tribunal identified the particular parts of the applicant’s evidence at the hearing which caused it to consider that he had been vague, lacking in detail and generally unsatisfactory in his evidence about some matters. The Tribunal concluded overall from his evidence:
In the circumstances, I am of the view that the applicant was familiar with the claims set out in the statement that was prepared for him by his adviser, because he had learned them, but was unable to provide convincing answers about matters not included in the statement because many of the claims are not true.
The Tribunal did not accept the applicant’s general credibility, nor the elements in his history upon which he claimed to fear persecution.
The Tribunal said it had also considered the applicant’s evidence about his departure arrangements, and thought that it was unsatisfactory and “inherently implausible”. The Tribunal thought that the renewal of his passport indicated that he had an intention to travel overseas, and the means to do so legally, prior to his claimed difficulties with the Chinese authorities.
The Tribunal referred to evidence from the Department file, which had been put to the applicant, that false information had been provided in support of obtaining the Australian visa. It said that it did not have regard to the provision of false information, but it assessed the applicant’s evidence about being assisted by a friend to get the visa, and found it to be “implausible and evasive”. The Tribunal said that the Chinese authorities had the opportunity to prevent the applicant from travelling by confiscating his passport following his release from detention, and the applicant had not provided a satisfactory explanation as to why this had not happened.
For all those reasons, the Tribunal did not accept the applicant’s claimed history, and was satisfied that he did not have a well‑founded fear of persecution in The People’s Republic of China for the reasons claimed.
The applicant now asks the Court to set aside the Tribunal’s decision, and to remit the matter to the Tribunal for reconsideration. 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 applicant should be given a protection visa, nor whether he qualifies for any other permission to stay in Australia.
The applicant has been given an opportunity to file an amended application and additional evidence after receiving a bundle of relevant documents and a referral for free advice. However, he relies upon the grounds set out in his original application and no further documents were filed.
The application has three grounds. The first contends that the Tribunal’s decision “has included apprehensive bias”. The particulars to the ground argue that bias is shown by a statement in the Tribunal’s reasoning that:
Passports are used for overseas travel. They are quite costly. I consider that a person in the financial position of the applicant would not obtain a passport if he did not intend to travel overseas.
It is argued that this finding was made without evidence, and was a matter of dubious opinion. It is suggested that bias was shown by the Tribunal’s failure to accept the applicant’s explanation about renewing his passport without any intention of using it. Ground 2 of the application characterises the same reasoning as revealing both bias and a “completely incorrect finding”.
However, the applicant himself had given evidence to the Tribunal as to the cost of his obtaining his renewed passport (see paragraph 44 of the Tribunal’s reasons). I am not persuaded that it was not open to the Tribunal then to form conclusions as to the likelihood of the applicant renewing his passport without an intention of travelling on it, taking into account the expense. I am not persuaded that the Tribunal’s refusal to accept the applicant’s explanation was not open to it, nor that it shows any irrationality or unreasonableness which might reveal a closed mind by the Tribunal before it came to make its decision (cf. NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs(2004) 214 ALR 264).
Nor in my opinion do the elements of the Tribunal’s reasoning which are attacked in Grounds 1 and 2 reveal irrationality or unreasonableness such as is required to establish jurisdictional error of the type discussed by the High Court in Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59.
The argument presented in Ground 2 essentially, in my opinion, does no more than argue with the merits of reasoning by the Tribunal which was within the province of the Tribunal’s jurisdiction, and which reveals it making a rational and genuine attempt to exercise its jurisdiction.
Ground 2 and Ground 3 also challenged the Tribunal’s reasoning where it did not accept the applicant’s explanation for parts of his evidence “appearing vague, lacking in details and difficult to obtain”, and for not accepting a rather convoluted and obscure response given by the applicant to the Tribunal after receiving a s.424A letter. However, in my opinion, these criticisms do not reveal any jurisdictional error by the Tribunal.
After taking into consideration all the arguments presented by the applicant in his application and to me again today orally, I am not persuaded that the Tribunal’s decision was affected by any jurisdictional error. I must, therefore, dismiss the application.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 20 October 2008
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