SZOOL v Minister for Immigration

[2010] FMCA 904

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOOL v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 904

MIGRATION – Review of RRT decision – applicant a citizen of China – where Tribunal accepted that applicant had relatives involved in the 2004 Morecambe Bay tragedy but did not accept that he had been attacked as a result or, if he had, that it was for a Convention reason – whether these findings indicated bias – whether Tribunal erred in relying on reports of foreign correspondents – duty to inquire where Tribunal rejected documents as fabrications.

Migration Act 1958 (Cth), s.424A

Minister for Immigration v SZIAI (2009) 259 ALR 429
Minister for Immigration v Dhanoa (2009) 180 FCR 510
SZNBX v Ministerfor Immigration [2009] FCA 1403
SZMJM v Ministerfor Immigration [2010] FCA 309

Applicant: SZOOL

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1762 of 2010

Judgment of: Raphael FM

Hearing date: 12 November 2010

Date of Last Submission: 12 November 2010

Delivered at: Sydney

Delivered on: 12 November 2010

REPRESENTATION

For the Applicant: In person

Counsel for the Respondents: Mr G Johnson

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent’s costs assessed in the sum of $5,850.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1762 of 2010

SZOOL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of China who arrived in Australia on a guardian visa for his son, who had obtained a visa to study in this country, on 20 April 2008.  The applicant applied for a protection (Class XA) visa on 30 September 2009.  On 13 March 2010, the delegate of the Minister refused to grant a protection visa and, on 12 April 2010, the applicant applied for a review of that decision from the Refugee Review Tribunal. 

2. The applicant appeared before the Tribunal, together with his migration agent and a witness. At the conclusion of the Tribunal hearing, the Tribunal wrote the applicant a letter pursuant to s.424A of the Migration Act1958 (Cth) (the “Act”) [CB 89-93] plus two attachments [CB 94-100]. The applicant responded to the s.424A letter by way of a statutory declaration [CB 102-106]. On 16 July 2010 the Tribunal determined to affirm the decision not to grant the protection visa and handed the decision down on 19 July 2010.

3. The grounds upon which the applicant claimed he was a person to whom Australia owed protection obligations rose out of the tragic circumstances in which approximately 23 Chinese nationals were drowned in Morecambe Bay in the United Kingdom on 23 February 2004.  Whilst it is normal procedure for this Court to rehearse in some detail the claims being made by the applicant and the debate between the applicant and the Tribunal concerning them, to my mind, in this particular case to do so in a document that is publicly available will be to risk the identity of the applicant being revealed.  It is for that reason that I shall restrict myself to the most anodyne of facts whilst attempting to give the flavour of the reasons expressed by the Tribunal for its failure to accept the applicant’s claims.

4. The applicant appears to have come from the same village that most or many of the Morecambe Bay deceased came from.  He claims to have been related to three of them.  The problems which he claims to have encountered arose after the deaths were discovered and involve alleged association between himself and reporters, many of whom came from outside of China, and in particular to events surrounding the funeral of those persons he claims are his relatives.  The applicant told that he and his family were aggrieved by the authorities’ lack of respect at the burial of the victims, that officials manhandled his relatives at the grave site, and he lost his temper.  He stated that the police responded by beating him with truncheons and gun butts, and he lost consciousness.  He was hospitalised, receiving 109 stitches in his face.  At the end of a month in hospital, where he was constantly harassed by the PSB and other officials, he was taken into administrative detention, where he remained for two years.  He was pressed to confess that foreign interests had induced him to damage the government’s reputation.  He claims he was denied food and water and after a month made to do forced labour on a farm.  He was released from detention on 31 December 2006 but not allowed to have any contact with foreign organisations and had to submit to investigations.

5. The applicant claimed that notwithstanding these serious administrative actions on the part of the government, he was able to obtain an exit visa for himself and his son to come to Australia in 2008, but he says that after he left, inquiries were being made around his home about his absence and pressure was being placed upon his wife and remaining relatives. 

6. The Tribunal questioned the applicant about his story in some detail and raised with him a number of inconsistencies and concerns that it had.  For example, it raised with him concerns about whether the person he claimed was his son was in fact his son and about inconsistencies between his protection application visa and his evidence, and the application form that he completed for the purposes of the guardianship visa and his son’s study visas.  The Tribunal raised with the applicant concerns it had about the listing of his relations in the various documents that he had completed.  But in particular, the Tribunal was concerned that the applicant had given in evidence a new Chinese identification document that apparently had been issued to him at a time when he claimed he was in detention.  The Tribunal considered this inconsistency as particularly serious.

7. Another matter that concerned the Tribunal was the fact that the story of the Morecambe Bay tragedy was one that was followed with considerable interest by the press in China, but more particularly in other parts of the world, and especially the United Kingdom, where a large sum of money had been raised by the Fujian diaspora to assist the relatives of those killed.  Members of the foreign press corp visited the village from which the applicant came on several occasions and reported upon such things as the relatives’ reaction to the delay in returning the bodies.  The press were also present when the burials took place, and the Tribunal noted that there was no mention of any violence at that time.  This was in contradistinction to the claims put forward by the applicant about his beating at the grave site.

8. The concerns expressed by the Tribunal during the course of the hearing were later reduced to writing in the s.424A letter to which I have referred. It will be seen from the number of pages taken up in the court book that this was a very lengthy document. And it indicates to my mind the thoroughness with which the Tribunal dealt with these claims. I would also note that in its findings and reasons, the Tribunal was prepared to accept, for the purposes of the decision, a number of the applicant’s claims about his connection with the Morecambe Bay tragedy that it clearly had doubts about. It also accepted the relationship between the applicant and the person who he was allegedly a guardian of, even though the applicant had lost contact with the person and the Tribunal’s efforts to communicate with him through the telephone numbers and addresses given failed. I make this point because one of the claims that the applicant makes in his application to this Court is that of bias by the Tribunal. I think the way in which the Tribunal dealt with these matters indicates that it had an open mind.

9. The applicant responded to the s.424A letter with a lengthy statutory declaration that the Tribunal took into account before concluding it could not be satisfied that he had a well-founded fear of persecution arising out of the incidents that he had described, because it did not accept, in particular, that the applicant had been assaulted in the manner described at the grave site or spent the time alleged in administrative or other detention:

   “In summary, the Tribunal accepts that the applicant was a resident of Y and related to three of the victims of the Morecambe Bay tragedy;  it accepts that he and others were dissatisfied with events during 2004, including compensation, the return of the bodies, and some official PRC insensitivity towards the families;  it rejects the applicant’s claims that officials targeted or harmed him in any way, including any assault on the day of the funeral, any detention for two years, and any harassment of him or his family members. 

   The Tribunal does not accept the applicant’s dissatisfaction with the events in 2004 amount to a political opinion or that he had any contact with foreign interests that aroused sensitivities on the part of the PRC officials.  It rejects his claims that he and his family members suffered any physical, mental, or other harm arising from the now-rejected claims, that he unsuccessfully tried to get local lawyers to sue the police over the (now-rejected) attack; and that local officials continue to pursue and threaten anyone in his family.  The Tribunal also rejects the applicant’s claim that he does not know his wife’s or daughter’s whereabouts or that there are any other factors to suggest that he may be at risk if he returns to China.” [119] [CB 101-102].

10. On 13 August 2010, the applicant filed an application with this Court seeking judicial review of the Tribunal’s decision.  The grounds of appeal indicate:

    “...a reasonable apprehension of bias, and the Tribunal made its finding firmly based on unwarranted assumption.”

    These matters were taken up by the applicant at the oral hearing.  Essentially, the applicant was claiming that there was an illogicality in the Tribunal accepting some of his story, but not all of it.  There is no illogicality in this.  It frequently happens, not only in the Tribunal but in courts of law or in life itself, where exaggeration, fabrication, or mere misunderstanding causes histories to be accurate only in part.  It is not a constituent of jurisdictional error that the Tribunal must either believe or disbelieve everything an applicant says to it.  The Tribunal’s duty is to consider the evidence provided by an applicant and to weigh it against its own knowledge, independent country information and make an assessment of the accuracy of the story being told.  Having done that, the Tribunal is obliged to consider whether or not it is satisfied that the applicant is a person to whom Australia owes protection obligations because he or she has a well-founded fear of persecution for a Convention reason.  Many people have well-founded fears of persecution but they may not be for Convention reasons.  It seems to me that even if the Tribunal had accepted all of the applicant’s story, it had its doubts as to the Convention relationship.

11. The applicant complained that the Tribunal had placed too much emphasis on reports of foreign correspondents.  He pointed out that the Chinese press is severely restricted and he maintained that foreign journalists working in China are subject to the same restrictions.  The Tribunal dealt with these matters at some length when it made its decision but did not accept the applicant’s story about being attacked by police officers at the funeral site.  The Tribunal analysed the coverage of the Morecambe Bay tragedy and concluded that the PRC government did not appear to be imposing severe restrictions on reporting of the matter and therefore concluded that if the incident claimed by the applicant had in fact occurred, a report would have been made.

12. Finally, the applicant complained that the Tribunal had rejected documentation without putting it to the test of the document authentication processes that were available to it through the Department.  This is a complaint about a failure of the Tribunal to conduct its own inquiries.  The High Court has accepted in Minister for Immigration v SZIAI (2009) 259 ALR 429 that in certain circumstances a failure to make an inquiry that is an obvious matter concerning a critical factor, the existence of which is easily ascertained, and which could supply a sufficient link to the outcome might constitute a jurisdictional error. But those circumstances are severely limited. The views of the High Court in SZIAI (supra) were reviewed by the Full Bench of the Federal Court in Minister for Immigration v Dhanoa (2009) 180 FCR 510 at [46-51] per Jagot and Foster JJ, and SZNBX v Ministerfor Immigration [2009] FCA 1403 at [30] per Bennett J, and again by Bennett J in SZMJM v Ministerfor Immigration [2010] FCA 309, in particular at [30]-[32], where at [32] her Honour said:

    “The Tribunal has no general duty proactively to gather opinions, assessments and evaluations in weighing material that an applicant has chosen to put before it.  The Tribunal is under no obligation to inquire or seek information not presently available or not put before it by an applicant.”

13. In the instant case, the applicant gave the Tribunal the documents, the Tribunal made it quite plain to the applicant that it had concerns about the documents arising out of independent country information concerning document fabrication from China. It was open to the applicant to obtain his own evidence that the documents were genuine, but he did not do so.  Although Bennett J did say in SZMJM (supra) that:

    “The fact that it may have been reasonable for the Tribunal to make a certain inquiry does not elevate the lack of such inquiry into jurisdictional error…”

    I do not think that it was even reasonable for this Tribunal to make the inquiries suggested by the applicant in the particular circumstances of the case, especially when there was reference to the concerns the Tribunal had about the documents in the s.424A letter [CB 92].

14. To the extent that the applicant maintained before the Court his submissions that the Tribunal was either biased or could have been apprehended to have been biased, these are matters which must be specifically put and proved.  The applicant did not provide the Court with a copy of the tape of the Tribunal hearing or a transcript.  He made some references to the Tribunal hearing being perfunctory, but I note from the Tribunal hearing record at [CB 81] that the hearing commenced at 9 am and did not conclude until 1.05 pm with only a short break of nine minutes between 10.51 and 11 am.  This can hardly be placed in the category of perfunctory.

15. The Tribunal’s decision record indicates a well-reasoned and considered decision.  It may not be what the applicant expected or hoped for but that is not in itself a jurisdictional error.  The application must be dismissed. 

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Raphael FM

Date:  19 November 2010