SZMKI v Minister for Immigration

[2008] FMCA 1236

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMKI v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1236

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.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), s.424A

Applicant: SZMKI

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1539 of 2008

Judgment of: Driver FM

Hearing date: 2 September 2008

Delivered at: Sydney

Delivered on: 2 September 2008

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents: Ms S Sirtes

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The applicant is to pay the outstanding setting down fee within seven days or apply for a waiver of that fee.

2. The application is dismissed.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1539 of 2008

SZMKI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

(As Corrected)

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”).  The decision was apparently handed down on 20 May 2008.  The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant protection visa.

2. The background facts relating to the applicant's protection visa claims and the Tribunal decision on them are conveniently summarised in the Minister's outline of submissions filed on 1 September 2008.  I adopt as background for the purposes of this judgment paragraphs 1 through to 8 of those written submissions:

   The applicant is a 56 year old Chinese citizen who arrived in Australia on 25 August 2007 on a tourist (subclass TR676 visa) (court book (“CB”) 27)

   On 9 October 2007 the applicant lodged an application for a protection (Class XA) visa with the Department of Immigration & Citizenship (CB 15 to 42) together with a separate statutory declaration claiming persecution stemming from his protests at having his land expropriated by the Chinese government (CB 43 to 45).

   After the Minister’s delegate refused the applicant’s protection visa application on 3 January 2008 (CB 135 to 143) he applied to the Tribunal on 1 February 2008 to review that decision (CB 145 to 148). 

   On 18 February 2008 the applicant was invited to give evidence at a hearing of the Tribunal and was informed by that invitation that the Tribunal was unable to make a decision in the applicant’s favour based on the material provided to date (CB 153 to 154).

   On 13 March 2008 the applicant attended a hearing of the Tribunal at which he gave evidence with the assistance of Mandarin interpreter (CB 158 to 159 and 188.8). 

   On 3 April 2008 the Tribunal wrote to the applicant pursuant to s.424A of the Migration Act 1958 (Cth) (“the Migration Act”), inviting him to comment on information (CB 166 to 168). The applicant responded on 17 April 2008 by way of statutory declaration, sent by his migration adviser (CB 172 to 174).

   On 20 May 2008 the Tribunal handed down a decision, made on 6 May 2008, affirming the decision of the delegate not to grant the applicant a protection visa (CB 182 to 199).   

   The Tribunal’s decision

   The Tribunal:

   a)Accepted that the applicant was of Chinese nationality (CB 196.4).

   b)Noted that independent country information indicated that the Chinese government had expropriated farm land with little or not compensation and accepted that farmers protesting over such expropriations had encountered violent clashes and that protest leaders had been arrested and detained (CB 196.8 to 196.9).  The Tribunal also accepted on that information that the protests have been viewed by as having a political component and that some activities had been classified as offences such as subverting state power (CB 197.1).

   c)Was satisfied that the applicant had been running a business in Zhongtang town prior to coming to Australia (CB 197.3). 

   d)Did not accept the applicant was a witness of truth (even when ignoring the Department interview (see next sub-paragraph) (CB 197.8 and 198.9)) and found he had created his claims (CB 197.4). 

   e)Noted that the applicant had given inconsistent evidence to the Department and the Tribunal, however, ultimately the Tribunal gave the applicant the benefit of the doubt and disregarded the Department interview of 22 January 2008 (CB 197.7).

   f)Did not accept that the applicant had been disposed of his land by corrupt officers in Yangbian village, that he protested the forcible removal of land from farmers, was detained or harmed as a result of the protests, went into hiding or was required to sign a guarantee that he would not cause further trouble (CB 199.2 to 199.3).

   g)Was satisfied the applicant did not leave China fearing Convention harm (CB 199.3).

   h)Was satisfied the applicant did not have an adverse political profile in China and that that the authorities would not seek him on return.  Accordingly, the Tribunal found there was not a real chance that the applicant would be involved in political activity if he returned to China (CB 199.6).  Further, the Tribunal did not accept the applicant had a well-founded fear of persecution by reason of a real or imputed political opinion or his membership of the particular social groups it outlined (CB 199.8). 

3. These proceedings began with a show cause application filed on 17 June 2008.  The applicant continues to rely on that application.  It contains three grounds the text of which I incorporate in this judgment: 

   1.The Tribunal failed to consider my evidences fairly and properly; instead, the Tribunal’s finding is poorly established without any reasonable ground.

   Particularly

   In the Tribunal’s decision, the Tribunal stated that:

   …the applicant was telephoned by a China based Department officer in August 2007, at his business premises…

   But, the Tribunal did not give nay evidence that I am the person who was telephoned by a China based Department officer in August 2007; or the Tribunal did not give any evidence that such an telephone interview was at my business premises.

   As a matter of fact, I was definitely not the person who had been interviewed by a China based Department officer in August and such a phone interview was definitely not at my business premises, because the business had been closed by the authorities.

   So, based on the evidences mentioned above, on what ground that the Tribunal could make a finding like that …the applicant was at his business premises in August 2007 … ?

   If the above finding has not been well established and it does not have any reasonable ground, then the Tribunal must make following incorrect findings:

   As I have found he was running his business in August 2007, I am not satisfied that he was detained or harmed by the Chinese authorities of Guandong province for organising and being involved in a demonstration that was called to protest the compulsory acquisition of his business.  I do not accept his tyre shop was dismantled by the authorities whilst he was in the detention centre in June 2007 …

   2.     The Tribunal’s decision has included apprehensive bias.

   Particularly

   In the Tribunal’s decision, the Tribunal stated that:

   …The applicant claimed in his s.424A response that he was required to report to the police station on week after his release from detention, he failed to do so and he thought that he must be in trouble with the PSB. He did not make this claim to the Tribunal at hearing. He also explained that by using the words ‘troubles with the PSB’ in his PVA these words indicated that he was required to report to the police station one week after his release from detention, he failed to do so and he thought that he must be in trouble with the PSB.  I also do not accept that by telling the Tribunal that he went to Macong after release from detention ‘because I was too scared to return’ indicated that the applicant was scared to return because he had not reported to the police as required.  I am of the view that his explanation for the inconsistency in his claims about reporting to the police is a late invention made to overcome his evidence.

   Unfairly rejecting my evidence simply with an excuse that his explanation for the inconsistency in his claims about reporting to the police is a late invention made to overcome his evidence is definitely strong evidence that the Tribunal’s decision has included apprehensive bias.  With such bias, there is no evidence that the Tribunal has considered my following evidences properly and fairly:

   I was continually in troubles with the PSB before my leaving on one hand …

   Similarly, with such bias, the Tribunal gave no reason why it was not satisfied the applicant has an adverse political profile in China and why it was not satisfied the applicant left China through bribery.

   3.The Tribunal failed to consider my fear of being persecuted on return properly.

   Particularly

   Based on my claims and evidence, I do have a real chance of being persecuted on my return; but the Tribunal incorrectly assessed my credibility and the Tribunal failed to consider my claims or evidences properly and fairly and the Tribunal made its findings with apprehensive bias.  As a result, the Tribunal failed to consider that I am the person who must have a real chance of being persecuted on my return; and my fear must be well-founded.

4. The application is supported by a short affidavit which I received as evidence.  I also have before me as evidence the court book filed on 21 July 2008.

5. The parties were asked to provide written submissions.  Only the Minister has done so. 

6. The applicant took the opportunity to make oral submissions.  It is apparent from those oral submissions that the applicant is concerned about the outcome of his case before the Tribunal.  He is concerned that he was not believed.  He would like another opportunity so that he could make a better effort to explain his claims.  His submissions focussed on the Tribunal's finding that the applicant had not given a satisfactory explanation in response to the Tribunal's invitation to comment on inconsistencies between his evidence to the Tribunal and information concerning his apparent presence at his business premises in August 2007.  The applicant asserted before me that the Tribunal's information was wrong and it was not him who answered a call from the departmental officer at that time.  He challenged the Tribunal to prove that it was him who answered the phone.  However, he made no such assertion to the Tribunal in response to the Tribunal's invitation to comment.  That invitation (CB 166 to 168) drew attention to the information that a departmental officer in China rang the applicant in August 2007 at his business premises.  The letter explained that the information was relevant because it might suggest that the applicant had provided inconsistent information to the Department and to the Tribunal.  It might suggest that the applicant was living and working at his business premises at the time when the applicant asserted he no longer had a shop as it was dismantled prior to August 2007. 

7. The applicant's response to the Tribunal's invitation was in the form of a statutory declaration (CB 173 and 174).  That response did not address directly the issue raised by the Tribunal.  The applicant suggested before me in his oral submissions that he was advised to respond in that way by someone other than his migration agent.  Be that as it may, the Tribunal was left with the response it had.  The Tribunal dealt with this issue in its reasons at CB 197 and 198.  It was an issue of significance.

8. The Tribunal found that it was not satisfied that the inconsistency it had identified had been addressed by the applicant in his response.  The Tribunal found that the applicant was at his business premises in August 2007.  As a result of that finding the Tribunal could not be satisfied that the applicant was detained or harmed by the Chinese authorities in Guangdong Province at the time he alleged.

9. I reject the applicant's contention that in making this finding the Tribunal did not consider the applicant's claims properly.  I agree with the Minister's submissions at paragraph 10 to 13.  The Tribunal had regard to the record of telephone call reproduced at CB 14.  The Tribunal's finding was open to it on the material before it.  There was no jurisdictional error.

10. The applicant, in the second ground, asserts a reasonable apprehension of bias.  In substance, however, it was apparent from the applicant's oral submissions that he is concerned simply that he was not believed.  I agree with the Minister's submissions that there is nothing on the face of the record of the Tribunal's decision to indicate that a fair-minded observer who was properly informed as to the nature of the proceedings would have reasonably apprehended that the Tribunal did not bring an impartial mind to its task.

11. The third ground is a patent attack upon the merits of the Tribunal decision.  That is beyond the scope of this proceeding. 

12. In my view, the decision of the Tribunal is free from jurisdictional error.  It is therefore a privative clause decision and the application must be dismissed.

13. The application having been dismissed, costs should follow the event.  The Minister seeks an order for costs fixed in the sum of $5,000 in accordance with the Court scale.  The applicant asserted an inability to pay.  As has been repeatedly stated, impecuniosity is not a reason for the Court to refrain from making a costs order.  I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  8 September 2008

CORRECTION

1. The paragraph numbering has been corrected from paragraph 8.