SZMLC v Minister for Immigration
[2008] FMCA 1488
•24 October 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMLC v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1488 |
| MIGRATION – RRT decision – Chinese applicant claiming political persecution – disbelieved by Tribunal – no jurisdictional error established – application dismissed. |
| Migration Act 1958 (Cth), s.424A |
| Re Refugee Review Tribunal & Anor; Ex parte H (2001) 179 ALR 425 |
| Applicant: | SZMLC |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1614 of 2008 |
| Judgment of: | Smith FM |
| Hearing date: | 24 October 2008 |
| Delivered at: | Sydney |
| Delivered on: | 24 October 2008 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Mr P Snell |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $3,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1614 of 2008
| SZMLC |
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 October 2007. On 7 December 2007 he lodged an application for a protection visa, assisted by a migration agent, Priscilla Yu. A statement attached to the application explained why he claimed to fear to return to The People’s Republic of China.
The applicant said that in late 2004 he got a job with an office equipment company, servicing copying machines. In 2006, farm land owned by his father and other farmers was confiscated. In February 2007, his father “started leading some of farmers” to request the Government to return their farm land. However, six of them including the applicant’s father were arrested and subjected to torture and mistreatment. One of the farmers died, another became permanently paralysed, and “my father survived, but he had to remain in the bed for over 2 months”. The surviving farmers were required to pay a large fine.
The applicant said that Ms H, a reporter on a newspaper, was related to the dead man. She visited the home village, and interviewed all of the victims and their families to gain relevant information. She was assisted by the applicant to do this. However, “Ms H was arrested by the Public Security Bureau (PSB) [in June 2007] while she had almost finished her report about the whole matter”. The applicant believed that he should continue her work. He said:
I took advantaged of my job to make over 30,000 copies of pamphlets. In those pamphlets, I condemned the Communist dictatorship to persecute news workers like Ms H who dared to openly expose the truth to the public and condemned the Chinese government to persecute innocent people …
He organised some of the farmers secretly to distribute the pamphlets between June and October 2007, and took some of the farmers to visit government agencies, urging investigations. The applicant said: “the authorities gave me more and more troubles from September 2007”, so that the applicant organised a trip overseas. He said he was interrogated by police seven times, with the last interrogation occurring two days before he left China. One of his friends who assisted him distributing pamphlets was also subject to investigation. After he left, three people who had helped him were arrested, and his father was subjected to investigation. He said that he “[had] been regarded as a main leader in organisation of distributing or posting many anti‑government pamphlets; and as a result, I have become the target of the Chinese government since then”.
A delegate interviewed the applicant, but was not satisfied that he had a well‑founded fear of persecution if he should return to The People’s Republic of China. The delegate made a decision on 10 January 2008, refusing the application. The delegate thought that the applicant’s claims about some events were “vague, lacking in specific details and unsubstantiated by any evidence like detention papers, penalty payment receipts or medical certificates”. The delegate thought some aspects were implausible, and noted that the applicant had left China without difficulty. He was not satisfied that the applicant was a person of significant adverse interest to the Chinese authorities.
The applicant appealed to the Tribunal. He attended a hearing on 26 March 2008, but did not submit any additional evidence. A transcript of the Tribunal’s hearing is not in evidence, although the applicant has been given an opportunity to present one. I must therefore rely on the Tribunal’s detailed description of its hearing.
According to the Tribunal, it put a number of concerns to the applicant, where he had given new information or information that appeared inconsistent or implausible. It also put to the applicant that the Tribunal had not been able to discover on the internet any article or any report written by a reporter called Ms H. In response, according to the Tribunal, the applicant said: “she must have published other articles and that she was unable to publish the article about his father”.
The Tribunal questioned the applicant about his claim to have been called up for questioning on seven occasions, in all of which he was only asked to give a sample of his handwriting. It put to him that it found this difficult to believe. It also put to him that it was odd that the police had not searched his house. The applicant then claimed that they had searched his house, and the Tribunal questioned him about why he had not said this earlier. The Tribunal also put to the applicant that exit controls in China should have made it difficult for him to leave the country, if he was under investigation.
Subsequent to the hearing, the applicant was sent a written invitation to comment on a number of matters, including that extensive searches of the website of Ms H’s newspaper showed no record of such a reporter nor of any articles or reports attributed to or authored by her, notwithstanding that the newspaper was also published online.
In response, the applicant’s agent forwarded a statutory declaration of the applicant, attempting to explain and respond to the various matters put to him. In this, the applicant said:
… I was told that Ms H had several pen‑names. But, I am really unable to remember what the pen‑names, which has been used by Ms H, is exactly in the newspaper though she did not tell me about it before. …
The applicant also sought to explain why he was able to leave China, by suggesting that he was only one of a large number of people who were under investigation at that time.
On 27 May 2008, the Tribunal handed down a decision affirming the delegate’s decision. The Tribunal’s statement of reasons carefully recited the evidence, and in my opinion, provides a careful analysis of all the evidence.
The Tribunal said generally: “the applicant did not impress the Tribunal as a reliable, credible and truthful witness”, and it thought that: “the totality of the applicant’s evidence shows a propensity to tailor his evidence in a manner which achieves his own purpose”. It therefore did not believe any of the applicant’s key claims concerning his persecution by Chinese authorities.
The Tribunal explained a number of reasons which led to those conclusions. They included reference to changes by the applicant of his evidence concerning his visit to Ms H in prison, and how her family knew how to telephone him. The Tribunal found his explanation of how he was able to visit her in prison unsatisfactory. It said “more importantly”, its inability to find any record of a reporter named Ms H, and the applicant’s different responses when this was put to him, were unsatisfactory. It said: “the absence of any evidence relating to Ms H in the sources consulted casts serious doubt on his claims relating to Ms H and other claims which flow from that”.
The Tribunal discussed the applicant’s evidence that he was questioned by police seven times in relation to the leaflets. It maintained the opinion which it had put to the applicant, that the repetition of the events described by him appeared implausible, and it thought his explanations unsatisfactory. In my opinion, it gave logical and rational reasons for forming that view.
The Tribunal referred to other embellishments of the applicant’s history which he had given to the Tribunal, in its word, “belatedly”, including his statement that his house had been searched. Moreover, the Tribunal thought that if his house had been searched and the photocopier which the applicant claims to have used in his copying had been found, it would have been easy for the police to link him to the pamphlets and arrest him before he was able to depart China. The Tribunal also gave weight to country information suggesting that persons under investigation would have found it difficult to depart China on a passport issued in their own name.
Based on all its reasoning and its general view of the applicant’s credibility, the Tribunal rejected the applicant’s history. It did not accept that he was of any interest to the authorities in China, nor that “the applicant holds an anti‑government political opinion which he would seek to express or may suppress due to his fear of the authorities upon his return”. The Tribunal did not accept that he had been harmed in the past, nor that there was a real chance that he would be harmed if he returned, by reason of his actual or imputed political opinion or any other Convention reason. It said that it was also not satisfied that he had a subjective fear of being persecuted.
The applicant now asks the Court to set aside the Tribunal’s decision and to send the matter back to the Tribunal. I can only make these orders if I am satisfied that the Tribunal’s decision is 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.
The applicant relies on three grounds of review which are set out in an argumentative fashion in the original application, and were repeated today in a written submission in Chinese which was read to the Court by the interpreter. These grounds make general claims that the Tribunal failed to assess the applicant’s evidence genuinely or correctly or reasonably, and that the Tribunal’s reasoning reveals that it “made its finding with apprehensive bias”.
However, I do not accept these characterisations of the Tribunal’s reasoning. In my opinion, its overall conclusions were open to it on the evidence before it, and its statement of reasons shows a genuine and rational attempt to assess the credibility of the applicant’s uncorroborated history.
Although the applicant criticises a number of aspects of the Tribunal’s reasoning, I think his criticisms relate only to the merits of reasoning which was open to the Tribunal and within its jurisdiction. It was the Tribunal’s duty to arrive at conclusions on the truth of the history presented to it, and the fact that it set out reasons for rejecting that truth in its ultimate statement of reasons does not show that it prematurely closed its mind to considering the evidence properly.
Moreover, in my opinion the arguments presented in the applicant’s documents are based upon inaccurate references to the evidence before the Tribunal and to the Tribunal’s reasoning.
Thus, Ground 1 presents an argument that the Tribunal’s dissatisfaction with the applicant’s attempts to explain how Ms H’s family telephoned the applicant on his telephone number, and how he had been able to visit Ms H. It is argued that, in fact, the Tribunal had accepted the applicant’s explanations, and therefore acted inconsistently in its reasoning when disbelieving the applicant.
However, this argument gives an erroneous twist to a statement by the Tribunal, which said:
Whilst, in isolation, these explanations are reasonable, combined with other implausibilities in the applicant’s evidence regarding Ms H, the applicant’s belated revelation of having visited Ms H in prison becomes problematic.
That sentence then introduced an analysis by the Tribunal of the defects in the applicant’s evidence and explanations about the relevant matters. It is clear that there was no acceptance of the applicant’s explanations or evidence.
On the Tribunal’s description of the applicant’s evidence about how he had learned of Ms H’s arrest and visited her, he may have appeared to give inconsistent and tailored responses. I am, at least, not satisfied that it was not open to the Tribunal to have formed that impression. Its description is:
57.He said that after talking to the farmers, Ms H went back to [city] to write the article. When she showed the article to her editor, he was not sure if the article should be published so the article was shown to the editor‑in‑chief. As soon as the editor‑in‑chief saw the article he called the police and Ms H was arrested. He was asked how he knew these details. He said he learnt these details later on when he went to visit Ms H in prison a week after her arrest. He was asked how he had found out about Ms H’s arrest. He said he received a call from her family. He was asked why her family would call to notify him of her arrest. He said because they knew she was investigating the matter and she was in contact with him. He said his number was in her mobile phone, so the family called him. The Tribunal put to him that Ms H’s telephone must have included many numbers and asked him why the family had called him. He then said that Ms H’s phone was confiscated by the police and he did not know how the family got his number. The Tribunal again asked him why her family would call to inform him about the arrest. He said he did not know the reason, but they informed him of the matter. (emphasis in original)
58.He said his visit to Ms H was arranged through a friend. He could not arrange the visit through legal channels, so he used his “connections”. He explained that he had a friend who knew someone who worked “inside”, but he did not know how his friend arranged this. He was asked how was it that he did not know how his friend had arranged the visit. He said he did not know his friend’s contact or how the visit was arranged. He did not ask his friend how he had arranged the visit. He simply asked him to help him so that he could visit Ms H. His friend went to see his friend who arranged the visit. It was put to him that it was odd that he could not go to visit his father, but had managed to visit Ms H. He said he did not know anybody in [location], but his friend knew someone who worked in [city] PSB. He said as soon as he arrived at the prison he asked Ms H how she was arrested.
In my opinion, the Tribunal’s adverse opinion of the applicant’s evidence about the detention of Ms H was open to it. I can detect no irrationality nor unreasonableness in the Tribunal’s reasoning at this point of its statement of reasons.
Ground 2 argues that it was not open to the Tribunal to conclude that the applicant had “shifted my evidence”, in his responses to the Tribunal’s inability to find any reference to a reporter named Ms H at the newspaper identified by the applicant. However, in my opinion it was open to the Tribunal to conclude that the applicant’s explanations in his written response to the s.424A letter suggested contrivance rather than the truth.
In this circumstance, I can find no evidence of “apprehensive bias” in relation to these matters, on the test identified by the High Court in Re Refugee Review Tribunal & Anor; Ex parte H (2001) 179 ALR 425.
Ground 3 criticises the Tribunal’s reasoning in which it found to be implausible, the applicant’s claim that he was questioned seven times in a manner which repeated itself. However, in my opinion the criticisms go only to merits of reasoning which was open to the Tribunal. The Tribunal certainly did consider all of the applicant’s evidence and his responses, including his response to the s.424A letter. I have no reason to disbelieve its statements that it took this into account.
I have considered all the points made by the applicant in his written submissions and orally to me, but I am not persuaded that the Tribunal’s decision was affected by jurisdictional error. I must, therefore, dismiss the application.
I certify that the preceding twenty‑nine (29) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 10 November 2008
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