SZMKX v Minister for Immigration
[2008] FMCA 1487
•22 October 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMKX v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1487 |
| MIGRATION – RRT decision – Chinese applicant claiming persecution for political activities – disbelieved by Tribunal – no breach of ss.424A or 424AA established – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.424A, 424AA |
| Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572 Re Refugee Review Tribunal; Ex Parte H & Another (2001) 179 ALR 425 SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609 SZJJD v Minister for Immigration & Citizenship [2008] FCAFC 93 SZLXI v Minister for Immigration & Citizenship [2008] FCA 1270 SZMDJ v Minister for Immigration [2008] FMCA 1298 VJAF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 178 |
| Applicant: | SZMKX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1590 of 2008 |
| Judgment of: | Smith FM |
| Hearing date: | 22 October 2008 |
| Delivered at: | Sydney |
| Delivered on: | 22 October 2008 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Counsel for the First Respondent: | Mr P Reynolds |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant pay the first respondent’s costs in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1590 of 2008
| SZMKX |
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 a visitor’s visa issued in June 2007, permitting him to visit his son who is studying in Australia. On 20 September 2007 a migration agent, Pricilla Yu, lodged an application for a protection visa on behalf of the applicant.
A statement attached to the visa application explained why the applicant feared to return to the People’s Republic of China. He claimed that during late 2006 his parents were notified by the local government that they had to move out of their property in Fuzhou City because it, and many other properties, had been purchased by the “Fuzhou General Hospital of Nanjing Military Region”. They were promised alternative accommodation, but did not receive this. The applicant claimed that his very elderly mother “organised about 20-30 people whose properties had been taken by the army unfairly, to have sit in protest in front of the Fuzhou General Hospital” in June 2007. The mother was arrested immediately and detained for five days, and was “seriously injured owing to inhuman mistreatment suffered at the detention centre”.
The applicant then decided that he should organise a protest against the PRC authorities. He said: “I took about two weeks to get contact with families of other five victims ... for the purpose to plan organise a large protest against the PRC authorities, urging the authorities to pay attention to basic human rights of our ordinary people.” He organised 70 to 80 people to gather in a park on a day of national importance and “as a result I was arrested by the PSB in the end.” He was detained for 20 days, “subjected to miserable persecution”, forced to confess, and only released upon the payment of a bribe and on condition that he had to report to the local police station once a week.
The applicant had received his tourist visa on the day before this protest, and he said that his brother had a friend at an airport who “bribed an officer there through the friend” so that the applicant could leave China. He said that the police had been looking for him after he came to Australia, and that his clothing shop in another city had also been confiscated.
A delegate interviewed the applicant, and on 19 November 2007 refused the visa application. The delegate thought the applicant’s responses in the interview provided little detail when he was questioned, and were “characteristic of rehearsed answers”. He thought that the applicant’s account of leaving China was implausible, and noted that his planned trip to Australia predated the persecution which he claimed.
On appeal, the applicant attended a hearing held by the Tribunal on 12 February 2008. He was given the recording of the hearing at the end of the hearing, but has not presented a transcript to the Court. According to the Tribunal’s statement of reasons, it attempted to question him closely about his places of residence and those of his parents, the claimed acquisition of his parents’ house, his mother’s protest, and his own claimed protest and arrest.
The Tribunal said that it put to him that its enquiries into independent information could find no report of the compulsory acquisition of over a thousand homes as claimed, nor of any protests. The applicant responded that the Chinese government could “cover up” such events. It is common ground that the Tribunal did not invite the applicant to provide more comments on this general information after the hearing.
The Tribunal also questioned the applicant to see if he could give details about his arrest and detention, his reporting conditions, and the circumstances of his departure from China.
On 15 May 2008, the Tribunal handed down a decision which affirmed the delegate’s decision. In its findings and reasons, the Tribunal said that it was not satisfied that the applicant had organised a protest or that he was arrested and detained as claimed. It referred to its questioning of the applicant about the protest, and concluded that his answers had been vague and lacking in details which the Tribunal would have expected him to be able to provide. It concluded that “he was unable to do so because he was not talking from actual experience but was making up his evidence as he went along.”
The Tribunal arrived at a similar conclusion in relation to the applicant’s evidence about how he alone was arrested at the protest, which the Tribunal also thought was implausible. It formed a similar view of the applicant’s vague evidence about how a friend in the duty free shop at the airport had been able to arrange his departure from China.
The Tribunal also referred to its own efforts to find country information corroborating the applicant’s claimed history. It said:
The Tribunal was also unable to find any independent information about the applicant’s claims that the army acquired (named) Road in October 2006. It was also unable to find any reports of people protesting or being arrested. The Tribunal has considered the applicant’s response that there were no reports because it was covered up by the Government. In view of the scale of the acquisition, according to the applicant the army acquired an entire street of over 1000 households, and the fact that relatively large protests were held in public areas which led to arrests and people being detained, the Tribunal finds it difficult to believe that that the Government would be able to completely cover up all reports both by local and international reporters.
Although the Tribunal’s conclusions about that matter were not definite, they appear to have partly influenced the Tribunal’s ultimate conclusion. This was: “viewed cumulatively, the problems with the applicant’s evidence outlined above have led the Tribunal to conclude that the applicant was not a credible witness”. Based on its adverse view of the applicant’s general credibility, the Tribunal did not accept the key elements in his claimed history, including that the applicant’s mother’s property had been acquired without compensation, leading to her protest, arrest and mistreatment. The Tribunal then specifically also rejected each element in the applicant’s claimed history of his own persecution.
The Tribunal considered whether the applicant was a person who held political opinions which might lead him to be persecuted in the future if he returned to China. However, having rejected his history, it concluded that he did not have such opinions. It concluded that there was not a real chance that the applicant would engage in protest activities in the future if he were to return to China, and that he did not have a well founded fear of persecution if he returned based on political opinion or imputed political opinion or any other Convention reason.
The applicant now asks the Court to set aside the Tribunal’s decision and to remit the matter. 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 believed, nor whether he qualifies for a protection visa or any other permission to stay in Australia.
Although the applicant has been given the opportunity to file an amended application and additional evidence, after receiving a bundle of relevant documents and a referral for free legal advice, he has not filed any additional material.
His original application contains discursive grounds of review alleging that the Tribunal made incorrect findings, reasoned unfairly, and “made findings based on nothing but its apprehensive bias”.
The arguments in support of the contentions found in grounds 1 and 2, in my opinion, are lacking in any demonstrated substance. The Tribunal is criticised for drawing conclusions about the general nature of the applicant’s evidence and his responses to detailed questioning by the Tribunal. However, no transcript has been put into evidence to allow the Court to form any assessment of the fairness of the Tribunal’s questioning, nor to consider the foundations for its conclusions about the manner in which the applicant responded. On the Tribunal’s own description of the hearing, it appears to me that its conclusions were well open to it on the material before it.
I can detect nothing in the Tribunal’s ultimate reasoning about the evidence before it which lends support to an apprehension that the Tribunal prematurely closed its mind to considering the merits of the applicant’s case. I can find no basis for being satisfied according to the test of apprehended bias referred to by the High Court in Re Refugee Review Tribunal; Ex Parte H & Another (2001) 179 ALR 425. It was the duty of the Tribunal to arrive at a conclusion about the applicant’s credibility, and in my opinion its statement of reasons shows no more than the Tribunal performing that duty.
In this context, the arguments presented by the applicant which criticise the Tribunal’s reasoning do no more than argue with the merits of the Tribunal’s assessment of factual matters within its jurisdiction.
Ground 3 contends that the Tribunal failed to comply with obligations under s.424AA or s.424A(1) of the Migration Act. Reference is made to the Tribunal’s observation that it was unable to find any independent information about the applicant’s claims about the compulsory land acquisitions and protests. It is argued that the Tribunal failed to provide clear particulars of this information and to follow other steps which are described in s.424AA(b).
I am not satisfied that, in fact, the Tribunal did not fairly discuss its investigations with the applicant at the hearing. As I have indicated above, it is common ground that it did not invite him to ask for additional time to comment after the hearing. However, in my opinion, the Tribunal was not obliged by the Migration Act to do that.
The relationship between ss.424AA and 424A(1) has been addressed by a number of cases in this Court, which have adopted a construction which recently was also taken by the Federal Court. I referred to these authorities in SZMDJ v Minister for Immigration [2008] FMCA 1298:
21.The second ground of the application contends that the Tribunal failed to comply with obligations under s.424AA. As counsel for the Minister points out, a recent decision of Cowdroy J in SZLXI v Minister for Immigration & Citizenship [2008] FCA 1270 exercising the appellate jurisdiction of the Federal Court has held, in paragraphs [23]-[27], in effect, that s.424AA is not a self-standing procedural provision, such that any non-compliance gives rise to jurisdictional error vitiating a decision of the Tribunal. His Honour appears to have concluded from legislative history that the intended consequence of any non-compliance with s.424AA is only that s.424A(2A) will not apply to excuse a procedure under s.424A(1), whether the non-compliance arises from a discretionary decision not to follow the s.424AA procedure or from defects occurring in the procedure when purportedly followed. On this construction, the s.424AA procedure operates only as an embellishment or qualification to obligations under s.424A(1). Counsel for the Minister noted that this construction has been applied in several cases in this Court, and I consider that I should do likewise.
22.The construction has the consequence that, even if there were any failure to follow procedures described in 424AA, it would also be necessary to establish that the Tribunal’s decision relied upon some piece of information which would have been required to be put to an applicant under s.424A(1) for written comment. It also means that the exclusions of s.424A(3) therefore also apply as exclusions to any jurisdictional requirement to observe s.424AA as an alternative to the procedure under s.424A(1).
I see no reason to depart from a construction of s.424AA that it is subordinate to 424A(1), and therefore subject to the exclusions in 424A(3).
In the present case, the negative outcome of the Tribunal’s researches may not have been ‘information’ coming within 424A(1) (see SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609 at [18]). If it was, then in my opinion it was also information of the type coming within the exclusion in s.424A(3)(a) as that provision has been interpreted in the Full Court in Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572, VJAF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 178 and SZJJD v Minister for Immigration & Citizenship [2008] FCAFC 93. The consequence is that obligations under 424A(1) were excluded in relation to the Tribunal’s reliance on the outcome of its own enquiries into corroborative information which was not specifically about the applicant. Applying the opinion of Cowdroy J in SZLXI, the Tribunal’s omission to follow procedures under 424AA in relation to this information would not give rise to any jurisdictional error.
I therefore do not accept the contentions made in the third ground of the application.
The applicant attended today, and at his request a submission in Chinese was read to the Court by the interpreter. However, it only repeated the arguments contained in the application.
On all the material, I am not satisfied that the Tribunal’s decision was affected by jurisdictional error. I must therefore dismiss the application.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Michael Abood
Date: 4 November 2008
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