SZNSM v Minister for Immigration
[2009] FMCA 835
•27 August 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNSM v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 835 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China – applicant not believed – no reviewable error found – application dismissed. |
| Migration Act 1958 (Cth), ss.424A, 424AA, 425 |
| Minister for Immigration, Local Government and Ethnic Affairsv Wu Shan Liang (1996) 185 CLR 259 SZBEL v Minister for Immigration (2006) 231 ALR |
| Applicant: | SZNSM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1572 of 2009 |
| Judgment of: | Driver FM |
| Hearing date: | 27 August 2009 |
| Delivered at: | Sydney |
| Delivered on: | 27 August 2009 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms K Whittemore Sparke Helmore |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,300.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1572 of 2009
| SZNSM |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The decision was made on 3 June 2009.
The applicant is from China and had made claims of religious persecution. The background to the applicant’s claims and the Tribunal decision on them is conveniently summarised in the Minister’s written submissions filed on 19 August 2009. I incorporate in this judgment as background, with minor amendments, paragraph 2 through to paragraph 10 of those written submissions:
In his protection visa application, the applicant claimed to fear persecution from the Public Security Bureau (‘PSB’) in China after he witnessed PSB members’ torture his friend to death whilst they were both held in detention. They had been detained for attempting to recover monies owed to them from a corrupt construction company. Despite warnings from the PSB that he would be killed if he revealed the circumstances surrounding the death, the applicant disclosed the truth to the victim’s family: Court Book (‘CB’) 17-20.
The applicant was motivated to take action after he became involved in an underground Christian Church at the behest of a distant relative, Mr Yu Chao Qin (Mr Yu). After learning the truth about their son’s death, the victim’s family appealed to the central government in Beijing for justice. As a result the PSB became aware that the applicant had exposed the truth about the death and since that time the applicant had become known as the ‘black hand behind the screen’ of the family’s protest activities and has been blacklisted. Mr Yu advised the applicant that he had been black-listed after he learned of the information from a friend in the PSB. Fearing arrest and severe punishment, the applicant decided to flee China. Unable to obtain a passport in his own name, the applicant enlisted the help of Mr Yu who organised the applicant’s false passport and exit from China. The applicant claimed he cannot return to China as he would be subjected to persecution and the PRC authorities would not protect him.
The applicant was invited to attend an interview with a delegate of the Minister on 6 January 2009: CB 35. The applicant attended the interview before the delegate on that date and gave further details of his claims, particularly in relation to Mr Yu and how he obtained his false passport and visa to exit China: CB 43.5.
In a decision dated 6 February 2009, a delegate of the Minister refused to grant the applicant a protection visa: CB 42-49. The delegate did not accept that the applicant was persecuted in China on the basis of his political beliefs. The delegate found that the applicant’s claim about the escalation of a commercial dispute into a matter of police and political corruption was ‘not credible’ and found that the sudden appearance of Mr Yu in his life, who had been able to warn the applicant of the PSB interest in him and obtain him sophistically altered travel documents at short notice, was ‘unlikely’. The delegate did not consider the applicant’s conversion to Christianity as he found that the applicant had made no claims, Convention-based or otherwise, to fear persecution on that basis. Accordingly, the delegate concluded that the applicant’s fear of harm was not well-founded: CB 48-49.
On 6 March 2009, the applicant lodged an application with the Tribunal for review of the delegate’s decision: CB 51-54.
By a fax to applicant’s authorised recipient dated 19 March 2009, the Tribunal invited the applicant to attend a hearing on 14 May 2009: CB 55-57. The applicant accepted the invitation (CB 59-61) and attended the Tribunal on 14 May 2009: CB 62-63.
The Tribunal’s decision record contains a summary of matters discussed at the hearing: CB 75[28]-80[58]. The Tribunal made its decision on 3 June 2009, affirming the decision under review. The Tribunal noted independent evidence which confirmed the applicant’s identity card in the name … was genuine, but that he had entered Australia on a false passport. On the basis of this information the Tribunal found that the applicant was the person as he claimed to be. The Tribunal noted that there may be many reasons why an applicant would use a false passport to exit China and the fact that the applicant did so did not mean that the Tribunal accepted his claim that this was the only way he could safely exit China: CB 80[60]-[62].
The Tribunal rejected all of the applicant’s substantive claims to fear harm on the basis of adverse credibility findings. The Tribunal identified a number of implausibilities and inconsistencies in the applicant’s account (CB 82[68]-83[71]) and concluded that as they were ‘centrally important aspects of the applicant’s claims’ it was unable to be satisfied as to the credibility of his claims in general: CB 83[72]-[73]. In particular, the Tribunal was not satisfied that the applicant’s account of the presence of Mr Yu in his life and the assistance he provided was plausible, particularly given that the applicant had made no attempt to find out the fate of Mr Yu since he left China, coupled with his ignorance of how Mr Yu was able to assist him in the various ways he claimed.
The Tribunal concluded that it was not satisfied that the applicant’s claims were credible and that he was ever converted to Christianity by a distant relative named Mr Yu, or that as a result he revealed to his friend’s family the truth about his friend’s death at the hands of the PSB. The Tribunal was not satisfied that the applicant was targeted by the PSB for this reason, that he went into hiding after being warned by Mr Yu of the PSB’s interest in him or that he was helped by Mr Yu and other Church members to obtain a falsified passport, as this was the only way he could leave China. The Tribunal was not satisfied the applicant was ever arrested by the PSB or that he suffered harm from the PSB or anyone else in China. The Tribunal noted that the applicant had not claimed to fear harm for any other reason, including his claimed Christian belief. Accordingly, the Tribunal concluded that the applicant’s fear of harm was not well-founded and affirmed the delegate’s decision: CB 83[72]-[75]. The Tribunal’s adverse credibility findings were findings of fact, open to the Tribunal on the material before it. Such factual matters are solely for the Tribunal to determine and do not come within the scope of the Court’s jurisdiction.[1]
[1] Minister for Immigration, Local Government and Ethnic Affairsv Wu Shan Liang (1996) 185 CLR 259 at 272; NADR v Minister for Immigration (2003) FCAFC 167 at [9]
These proceedings began with a show cause application filed on 1 July 2009. The applicant now relies on amended application filed in court by leave today. That application contains the ground that the decision of the Tribunal is affected by jurisdictional error in that the Tribunal failed to make findings on all the integers of the applicant’s case. The particulars are that the Tribunal failed to make a finding about whether the applicant was an underground Christian in China and, if so, whether there was a real chance of him being persecuted for this reason upon his return.
I have before me as evidence the court book filed on 30 July 2009 and the applicant’s affidavit filed on 1 July 2009. Both parties were required to file an outline of submissions, but only the Minister did so. The applicant had prepared a written statement in the Chinese language which was read by the interpreter. That statement did not address the ground in the amended application but, rather, asserted that the Tribunal process was unfair and the Tribunal was biased in dealing with his claims which were dealt with by the Tribunal.
The applicant asserts that the Tribunal showed bias in dealing with his central claims concerning his association with Yu Chao Qin, and he also asserts that the Tribunal hearing was unfair in that he did not have a sufficient opportunity to respond to the Tribunal’s doubts and, indeed, did not understand that the Tribunal doubted his claims. I take that to be an assertion that the Tribunal had not met its obligations under s.425 of the Migration Act 1958 (Cth) (“the Migration Act”).
The only evidence I have before me about what occurred at the Tribunal hearing is set out in the court book. The applicant was invited to attend that hearing on the basis that the Tribunal was unable to make a favourable decision on the papers. The applicant attended a hearing before the Tribunal and gave evidence and answered questions. The Tribunal’s record of what occurred at the hearing is set out at [28] to [58] of its reasons (CB 75-80). It appears from the administrative hearing record (CB 62-63) that the hearing was a reasonably lengthy one between 10.00am and 1.43pm. It also appears that the applicant was questioned extensively about his claims and in particular about his claims concerning Mr Yu. It also appears from [50] of the Tribunal’s reasons (CB 78-79), that the Tribunal took the trouble to summarise the account given by the applicant:
I summarised the account the Applicant had given of the help which Mr Yu Chao Qin had given him:
· Mr Yu, a Christian and a distant relative, had turned up out of the blue in his house on 1 May 2008;
· Although he lived forty minutes away he persuaded the Applicant to become a Christian;
· He was able to warn the Applicant that the PSB was after him, having learned this from a friend in the PSB who happened to hear that some people had been arrested in Beijing and knew the reason for this was that the Applicant had divulged the secret information that the PSB had killed Mr Huang;
· He helped the Applicant leave China including by obtaining a passport in another person’s name which happened to include an Australian visa;
· He helped raise a large sum of money for the Applicant, contributing a significant amount himself;
· In order to hand-deliver the passport he made the risky journey to the village where the Applicant was hiding, taking with him the Applicant’s wife and using his own car;
· His services did not even end there, as he made a telephone call to his friend in Australia to introduce the Applicant to a migration agent.
· Mr Yu had been able to do all these things despite the fact that he was simply a brick layer living in a rural village.
At [51] of its reasons (CB 79), the Tribunal put its doubts about those claims to the applicant directly:
I put to the Applicant that these things did not seem likely. Putting them together it seemed more likely that Mr Yu, rather than being a simple brick layer and a Christian was in the business of arranging for people to leave China and travel to other countries like Australia, and that he was in fact a snakehead. The Applicant said this was not possible. I put to him that it seemed hard to believe Mr Yu, as a rural bricklayer, could know so much about smuggling people out of China under a false identity. He said it was through contacts. I put to him that it was hard to understand how Yu would happen to know people such as a passport forger, a person in the PSB and a person in Australia who could put him in touch with his agent. He said it was very easy to get a false passport in Fuqing. Asked how he would know this he said ‘he’ heard about this from other people. I asked if he meant that Mr Yu had, in fact, told him something about how he had obtained the false passport. The Applicant denied this.
The applicant was asked further questions and the Tribunal expressed further doubt at [54] (CB 79 and 80). At [55] (CB 80), it appears that the Tribunal purported to go through a process of disclosure pursuant to s.424AA of the Migration Act, although it does not appear to me that that process was compelled by the section, given that s.424A does not appear to have been engaged (because the decision turned on the applicant’s own evidence). I am satisfied on the basis of the record of the hearing and the Tribunal’s decision that the process was a fair one. In particular, the applicant was put on notice that the credibility of his claims was in issue. Specifically, he was put on notice that the credibility of his central claim concerning Mr Yu was doubted. I do not accept the applicant’s contention made from the bar table that he was left at the hearing with the impression that he was believed.
I also agree with paragraphs 16 and 17 of the Minister’s submissions which I also incorporate in this judgment:
Ground two alleges a breach of s.425 in relation to the Tribunal’s finding that it was not convinced that Mr Yu’s PSB friend had provided a warning of the applicant’s imminent arrest: CB 82[69]. This ground has no basis. The Tribunal clearly put the applicant on notice of its doubts about this claim, which is apparent from the particulars the applicant has provided in his application. It is apparent that the Tribunal, questioned the applicant at length about this claim, raised its doubts with the applicant and specifically asked him ‘how such a person, as a PSB police officer in Fuqing, would have learned about the arrest of some people in Beijing’: CB 79[52]. Accordingly the applicant was clearly on notice that the Tribunal’s acceptance of his evidence on this matter was in issue.[2]
Moreover, it is also apparent that the applicant was put on notice by both the delegate’s decision and the Tribunal’s questions during the hearing that everything he said in support of his application was in issue.[3] The delegate rejected the applicant’s claims on adverse credibility grounds and similarly, during the hearing the Tribunal questioned the applicant about the doubts it had about the truth of his claims and afforded him an opportunity to comment: 79[51] and [54]-[55]. The applicant could not have been in any doubt that the Tribunal was having difficulties accepting him as a witness of truth and accordingly, there was no obligation upon the Tribunal to put to the applicant for comment each and every aspect of the applicant's claims that were not accepted by the Tribunal.[4] No breach of s.425 can be established and ground two should be dismissed.
[2] SZBEL v Minister for Immigration (2006) 231 ALR 592 at [42]-[44].
[3] SZBEL v Minister for Immigration (2006) 231 ALR 592 at [47].
[4] SZBEL v Minister for Immigration (2006) 231 ALR 592 at [47].
There is no substance to the allegation of bias. There is nothing in the available material which supports the contention of bias either apprehended or actual. That ground was ventilated in the original show cause application and the Minister deals with that allegation in paragraph 14 of his submissions. I agree with those submissions and adopt them for the purposes of this judgment:
The Tribunal’s rejection of the applicant’s claims in relation Mr Yu did not give rise to a reasonable apprehension of bias on the part of the Tribunal. The applicant has placed no evidence before the Tribunal to support this serious allegation and nor do the particulars outlined in this ground support any inference of bias. Moreover there is nothing in the Tribunal’s decision as a whole that suggests a hypothetical fair-minded lay person who was properly informed as to the nature of the proceedings, the matters in issue and the conduct concerned might reasonably apprehend that the Tribunal did not bring an impartial mind to the resolution of the questions to be decided in this case.[5] The applicant’s allegation of apprehended bias is without basis and must fail.
[5] Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982.
In terms of the ground raised in the amended application, I accept that the applicant claimed to be an underground Christian in China, but his claims of a fear of serious harm related to his experiences with Mr Yu and the PSB. Those claims were dealt with by the Tribunal. At [74] of its reasons (CB 83), having dealt with those claims, the Tribunal stated that the applicant did not claim to fear harm for any other reason in China including his claimed Christian belief and activities as a member of a secret underground church and no other reason was apparent on the face of the information before the Tribunal.
That conclusion is supported both by the applicant’s protection visa claims (CB 19) which raised specific issues of fact concerning Mr Yu rather than a claim of a fear of harm generally by reason of the applicant’s asserted faith. Further, the Tribunal records that at the hearing the applicant was asked whether there was any other reason he feared harm and he said that his factual allegations were the only reason the police were looking for him and he did not fear harm for any other reason (CB 75 at [29]).
It follows, in my view, that there was no claim articulated by the applicant or clearly arising from the material which was overlooked by the Tribunal. I reject that assertion.
I conclude that the Tribunal decision is free from jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I so order.
Costs should follow the event in this case. The Minister seeks costs of $3,300. The applicant did not wish to be heard on costs. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,300.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 28 August 2009
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