SZNUX v Minister for Immigration
[2009] FMCA 1182
•18 November 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNUX v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 1182 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.91R, 424A, 425 |
| Abebe v The Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14 Minister for Immigration and Citizenship v MZXPA and Another (2008) 100 ALD 312; [2008] FCA 185 Minister for Immigration and Citizenship v SZLFX (2009) 83 ALJR 1029; [2009] HCA 31 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26 |
| Applicant: | SZNUX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1870 of 2009 |
| Judgment of: | Barnes FM |
| Hearing date: | 18 November 2009 |
| Delivered at: | Sydney |
| Delivered on: | 18 November 2009 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondents: | Ms L Clegg |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $4,400.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1870 of 2009
| SZNUX |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal dated 8 July 2009 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa. The applicant, a citizen of China, arrived in Australia in November 2008 and applied for a protection visa in December 2008. He was invited to and attended an interview with a delegate of the first respondent, but his application was refused and the applicant sought review by the Tribunal. He attended hearings conducted by the Tribunal in June and also in July 2009.
In connection with his protection visa application, the applicant claimed that he had lived in a particular city in China for all of his life, and that from 1980 to 2008 he had worked in a particular state-owned restaurant that in June 2008 was suddenly contracted to a private operator who brought in his own employees and that as a result, some 60 former restaurant employees including the applicant became unemployed and did not receive compensation.
The applicant claimed that in June and July 2008 the former employees approached the “leaders of higher level” to lodge their grievance on many occasions, but that their complaints were ignored. He claimed that in August 2008 they gathered at what he described as “the place of city government building” to request compensation and to demand re-employment, but that instead of addressing the grievance, the “leaders of higher level” accused the applicant and two others of being the “chief troublemakers”. He claimed that they were detained and sent to a detention centre where they were tortured and interrogated and forced to make admissions. He claimed that they were released after some 10 days, having admitted that they were “chief troublemakers” and being “warned not to make any further troubles”. However the applicant claimed that after his release he “revenged certain individual leaders” and that for this reason he was currently “being chased” by Chinese authorities.
In its reasons for decision the Tribunal set out the claims made by the applicant in connection with his protection visa application and the evidence given by him at the two Tribunal hearings, including his elaboration on his claims. It recorded that he claimed that the restaurant had been under the auspices of the company that ran state-owned restaurants in the city. He was not able at the hearings to name the department to which he had complained at the city government offices, or the person seen by the workers.
The Tribunal also recorded that the applicant claimed that after he was released from the detention centre he went to the home of a PSB officer who had beaten him while he was in detention to seek revenge and smashed his windows. The applicant claimed that thereafter he ran away some 500 kilometres to stay with friends and relatives, but that he left China through his home town with the assistance of a friend who obtained a sponsored business visa on his behalf. He claimed that although the PSB wanted him arrested he was not on the wanted list and hence was able to leave China legally.
The Tribunal also recorded that it raised various difficulties that it had with the applicant’s evidence with him, including inconsistencies between his oral evidence and the evidence he had given in his statement or at the departmental interview. It discussed with the applicant independent country information about the ownership of restaurants in his home town, the processes in China for the lodgement of complaints and grievances, and the procedures available for former employees to seek compensation on redundancy.
In its findings and reasons the Tribunal summarised the applicant’s claims. It was prepared to accept that he “may have at some time been employed as a chef in a restaurant in China and he was dismissed from that employment”. However, it did not accept that the applicant was dismissed in the circumstances he claimed and did not accept that he had “given a truthful account of his reasons for leaving China”. The Tribunal gave a number of detailed reasons for reaching these conclusions. In particular, it considered that the applicant’s claims lacked credibility in a number of respects which it detailed.
First, the Tribunal considered that it was “not credible that there would not at least be some discussions and negotiations with either the state owned company responsible for administering the restaurant or the new contractors regarding any severance pay or other entitlements” in relation to the dismissal of 50 to 60 workers. It had regard to the applicant’s evidence about what occurred, to independent evidence that indicated that employers may ignore workplace laws and that local governments do not always implement those laws, but also to independent information that there are processes in place in China to enable workers to seek redress in relation to workplace grievances and entitlements for those dismissed.
The Tribunal also considered that the claimed actions taken by the applicant and his co-workers lacked credibility. In particular, it did not find it credible that the applicant and the other 50 – 60 workers did not seek advice or make enquiries of lawyers or other persons or governmental officers about their rights and entitlements. The Tribunal considered that it was not credible that a group of 50 or 60 workers “would not at some point have considered initiating inquiries regarding their legal entitlements, rather than simply voicing their complaints on a number of occasions without seeking advice as to how to resolve the dispute”. Nor did the Tribunal find credible the applicant’s claim that “the 50 or 60 workers were permitted to go to the office of Mr [named person], the leader of the Food and Beverage Company, some 5 or 6 times, without being stopped by security guards or other persons”.
The Tribunal found “the applicant’s account at the Tribunal hearing of what he and other workers did when they went to the Municipal Government to be somewhat vague, despite being asked several times what they actually did or said to the particular person at the Municipal Government office”. It had regard to the applicant’s inability to identify the particular part of the municipal government where they went to make complaints and to the fact that while he claimed in his statement that they had lodged grievances, his oral evidence was that they only ever orally made complaints and did not put things in writing to seek to redress their dismissal.
The Tribunal considered it “problematic that the applicant was unable to provide a street number for the restaurant” he claimed he had worked in for some 20 years. It did not accept his explanation that “it was high up and he could not see the nameplate with the number” as a reason why the applicant would not have known the street number of his employment.
The Tribunal also found aspects of the applicant’s evidence about the identity of the person whose windows he damaged to be inconsistent and not credible. The Tribunal referred to the fact that the applicant’s oral evidence and his statement to the Department that he “revenged certain leaders”, but that his claim at the Tribunal hearing was that “it was a PSB officer whose windows he damaged”. The Tribunal also recorded his explanation for the difference in his oral evidence at the hearing about how he came to find out where the PSB officer lived.
The Tribunal did accept that there may have been some confusion, given the absence of singular or plural in the Chinese language, as to whether the applicant had referred to “leaders” rather than “a leader”. It made no adverse finding in that respect. It had regard to the fact that the applicant denied at the hearing that he had told the Department that it was a leader of the company whose windows he damaged and the Tribunal accepted that there may have been some confusion in this respect, and that he referred only to “a leader” when the issue was discussed during the Department’s interview.
However the Tribunal considered it “highly adverse that the applicant did not at any time claim to the Department that it was a PSB officer whose windows he damaged”. The Tribunal did not accept that the applicant would not have specifically mentioned a PSB officer in either his oral evidence or written statement to the Department if he had vandalised the windows of such a person. It was of the view that there was “a significant difference between damaging the widows (sic) of a PSB officer who had assaulted him during the detention and damaging the windows of some other leader”, and did not accept “that the applicant would have neglected to include this claim to the Department, in either his oral evidence or his written submission, if it had occurred”.
The Tribunal was of the view that the applicant’s evidence in relation to state ownership of restaurants in his hometown was “problematic” having regard to independent country information. In particular it was not satisfied that the applicant’s initial evidence that all restaurants were under the auspices of a particular state owned company responsible for the administration of such restaurants was consistent with independent evidence. The Tribunal was of the view that the applicant “altered his evidence on this issue” in an attempt to address concerns the Tribunal had raised in light of the independent information.
The Tribunal summarised its conclusions on all the evidence that “much of the applicant’s evidence [was] not credible”, that the applicant was “vague and unable to provide details in relation to certain important issues” outlined, and that his evidence was inconsistent in specified respects. Hence, it did not accept that the applicant had given a truthful account of his experiences in China, that he was dismissed in the circumstances claimed and not given compensation, that he and others undertook action as claimed, or that he and two other workers were detained or subjected to mistreatment. Nor did it accept that the applicant sought revenge on any leader or leaders as a result, that he went into hiding, or that he was wanted by the PSB or any other authorities in China or that he would be jailed or otherwise subject to adverse attention or treatment on return to China.
The Tribunal did accept that the applicant was “unemployed and may have been unemployed prior to his departure from China”, and that he was concerned about his prospects of employment on return, particularly given his age and the possible effect on his family. However while it referred to such problems as “unfortunate”, it did not accept that they were in any way related to the claims he had made for refugee status. The Tribunal did not accept the applicant had ever suffered harm in China for the reasons claimed and was not satisfied there was a real chance that he would suffer serious harm for a Convention reason on return to China. As the Tribunal found that the applicant did not have a well-founded fear of persecution now or in the reasonably foreseeable future, it affirmed the decision of the delegate.
The applicant sought review by application filed in this court on 4 August 2009. He relies on the two grounds in that application. He did not file an amended application or written submissions, but was given the opportunity to address the grounds in oral submissions.
The first ground in the application is that the “Tribunal had bias against [the applicant] and failed to consider [his] application according to S91R of the Migration Act 1958”.
However, neither actual or apprehended bias in the sense considered in the Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 and Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28 is made out. It is a rare and exceptional case in which actual bias will be established on the decision of the Tribunal alone and this is not such a case. There is nothing in the material before the court to indicate that the Tribunal had a closed mind. Nor is the decision such as to indicate, from the perspective of the appropriately informed fair-minded lay observer, an apprehension of bias or a closed mind.
In fact, the Tribunal’s reasoning indicates that in some respects it gave the applicant the benefit of the doubt (for example, in relation to whether he referred to a leader or leaders and whether he referred to a leader of the restaurant or some other leader) and that it considered the extent to which independent country information was in some respects not entirely clear or relevant to the applicant’s claims. The fact that the Tribunal did not accept the truthfulness of the applicant’s claims about what occurred to him in China is not such as to establish either actual or apprehended bias. This is not a case in which the fact finding has been shown to have been conducted in a manner which could result in a reasonable apprehension of bias.
Nor is the applicant’s unparticularised contention that the Tribunal failed to consider his application according to s.91R of the Migration Act 1958 (Cth) made out. As the Tribunal rejected the applicant’s claims it was not necessary for it to go on to consider whether, had it accepted that these events had occurred, they would have constituted serious harm within s.91R of the Migration Act.
Insofar as the applicant took issue, either in his application or in his oral submissions, with the Tribunal’s failure to accept his claims about having been detained and mistreated, the Tribunal understood that the applicant made such claims and considered such claims, but, for reasons which it gave, rejected those claims. Its findings were open to it for the reasons that it gave on the material before it. Ground one is not made out.
I note generally that insofar as the applicant disagrees with the outcome of the Tribunal decision, fact-finding is a matter for the Tribunal and merits review is not available in this court.
The second ground in the application is that the Tribunal failed to comply with s.424A of the Migration Act. The applicant contended that he was not given an opportunity to explain his case.
First, there is nothing in the material before the court to indicate that the Tribunal failed to comply with s.424A of the Act by failing to put to the applicant for comment information that was information in the sense considered in SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26 (and also see Minister for Immigration and Citizenship v SZLFX (2009) 83 ALJR 1029; [2009] HCA 31) and that was not within any of the exceptions within s.424A(3) of the Act (Minister for Immigration and Citizenship v MZXPA and Another (2008) 100 ALD 312; [2008] FCA 185).
In particular, while the Tribunal obtained information from the Department of Foreign Affairs and Trade in relation to the nature of restaurant ownership in the town from which the applicant came, such information would fall within the exception in s.424A(3)(a) of the Act. I note that such information was raised with the applicant at the hearing (see s.425).
The general contention that the applicant was not given an opportunity to explain his case does not establish any failure to comply with s.424A of the Act which does not oblige the Tribunal to put its preliminary reasoning to the applicant.
More generally, it is apparent that the applicant was invited to, and attended two hearings which lasted, in total, something of the order of four and a half hours. The Tribunal’s account of the hearings, which is the only evidence before the court of what occurred in those hearings, indicates that the applicant’s claims were discussed in some considerable detail, and that the Tribunal raised with the applicant the particular difficulties that it had with his claims. There is nothing to suggest that dispositive issues were not raised with the applicant (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63) or that he was not given an opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review, as required under s.425 of the Act.
In oral submissions, the applicant suggested, that the Tribunal did not ask him any questions about certain matters and so he could not reply. It is for an applicant to put material before the Tribunal in support of his claims and for the Tribunal to determine whether it is satisfied that he meets the criteria for the class of visa for which he has applied (see generally Abebe v The Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14). In any event, in the particular circumstances of this case there is nothing to indicate that the applicant did not have ample opportunity to put information in support of his claims before the Tribunal, in particular, in the context of the extensive Tribunal hearings. This ground is not made out.
As the grounds relied on by the applicant are not made out and no jurisdictional error is apparent on the material before the court, the application must be dismissed.
RECORDED: NOT TRANSCRIBED
The applicant has been unsuccessful in these proceedings and there is nothing in the circumstances to warrant a departure from the normal principle that the unsuccessful applicant should meet the costs of the first respondent.
The applicant has told the court that he has no money. However, his lack of funds is not, in the circumstances of this case, a reason for departing from the normal principle, although it may be a matter to be taken into account by the Minister in determining when and how to seek to recover such costs. The amount sought is appropriate in light of the nature of this and other similar matters.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 27 November 2009
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