SZOXP v Minister for Immigration
[2011] FMCA 352
•16 May 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOXP v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 352 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in China – applicant disbelieved in key respects – no reviewable error found – application dismissed. |
| Applicant: | SZOXP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 27 of 2011 |
| Judgment of: | Driver FM |
| Hearing date: | 16 May 2011 |
| Delivered at: | Sydney |
| Delivered on: | 16 May 2011 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondents: | Mr J D Smith |
| Solicitors for the Respondents: | DLA Piper Australia |
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 $7,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 27 of 2011
| SZOXP |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was made on 7 December 2010. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa. The applicant is from China and had made claims of political persecution arising out of corrupt business activity. The factual claims made by the applicant are both detailed and complex. Background facts are summarised in both narrative and tabular form in the Minister’s outline of submissions filed on 9 May 2011. The following statement of background facts is derived from those written submissions.
The applicant is a businessman from the People’s Republic of China. He claims that he was forced to become involved in bribery and corruption in China by Department Two, part of the People’s Liberation Army responsible for the collection and dissemination of military intelligence, and that he will now be killed or imprisoned in order to protect those involved in the illegal activity. The salient facts are set out below in tabular, rather than narrative, format both for ease of reference and because the chronology is important to one of the issues in the proceedings.
Date Event Court Book (CB)
Ref
4.7.97 Applicant starts Hainan Excellent Skill Wooden Products Co. Ltd (“HESP”) with Yan Zhongmin (“Yan”) as investor. 108 1.1.01 HESP comes under the control of Department Twp of the People’s Liberation Army – applicant told by Yan that he could not quit and was threatened. 110 1.7.01 Applicant instructed to increase borrowings of HESP and to bribe the responsible people. 118 1.1.02 Applicant bribes Qin Zhixin, Vice President of Hainan Branch of Bank of China in order to obtain loans. 122 20.9.02 HESP acquired rubber plantation company in Cambodia, Kam-Chin International Co-operation (“KCIC”). Applicant and Yan hold shares on behalf of Department Two. 119 1.1.03 Applicant tries to escape Department Two by suggesting that he should go to Cambodia. 129 1.7.04 Applicant divorces his first wife in order to protect her and their daughter. 138 1.6.05 Applicant left China for Cambodia. Looks for way to escape. 149
26.12.05 Applicant marries second wife. 150
25.3.06 Applicant leaves China for Cambodia; pretends to be in Singapore, but travels to Malaysia, Vietnam and Thailand. 152-3
22.10.06 Applicant first arrives in Australia, examines possibility of timber business and reports to Yan. 165
24.12.06 Applicant arrives for the second time in Australia, inspects timber business and visits east coast. 166 1.1.07 Australian Perfect Craft Holdings Pty Ltd (“APCH”) incorporated by applicant. 167 8.8.07 Red Notice issued by Interpol concerning the applicant’s involvement in bribery in China 12 20.8.07 The applicant applies for a Temporary Business (Long Stay) visa 1 1.10.07 Applicant completely breaks with Department Two, no longer takes its orders and hides in Australia.
Applicant asks Li Peng to obtain police clearance certificates from Hainan and learns that Department Two is focusing blame on him.147
171
1.7.08 Applicant divorces second wife. 173 8.11.08 E-mail correspondence between Smith Lee and Smith Chinpeng. 386 8.4.09 Applicant given a notice of intention to consider refusal of visa based on Interpol Red Notice. 15 22.6.09 Applicant lodges protection visa application.
29 4.9.09 Applicant interviewed by the Department in connection with protection visa application. 778 23.9.09 Applicant seeks to withdraw application for business visa. 20
4.6.10 Delegate decides to refuse to grant the applicant a visa. 825
15.6.10 Applicant applies to the Tribunal for review. 841
29.7.10 First Tribunal hearing 917
23.8.10 Second Tribunal hearing 930
2.9.10 Tribunal invites the applicant to comment on information. 941 5.10.10 The applicant responds to the invitation. 963
7.12.10 The Tribunal affirms the decision to refuse to grant a protection visa. 1117 Tribunal’s decision
The Tribunal accepted that the applicant had bribed the Vice President of the Hainan Branch of the Bank of China and that he was not aware of the Red Notice from Interpol until notified by the Department of Immigration in April 2009. On this basis, it found that he faced a possible jail sentence of five years and that he had been involved in other corrupt business practices. It did not accept any of his other claims. Rather, it found that the applicant had manufactured these claims in order to create a claim for protection.
The Tribunal’s reasons for these conclusions are lengthy. The critical reasons are as follows:
a)
the applicant’s senior positions and travel history were not consistent with his claim to have been suspected of thwarting deals, not trusted and continually persecuted since 2001:
CB 1160-61 [99]-[101];
b)
the fact that he re-married after a year was inconsistent with the claim to have divorced in order to protect his wife and child:
CB 1161 [101];
c)the setting up of the business in Australia, with personal details given to ASIC, clear links to KCIC, and involvement in the timber industry did not indicate any fear of persecution or any real attempt to conceal his presence in Australia: CB 1161-2 [102]-[104];
d)the long delay in applying for a protection visa, and the fact that it was done only after notification of the Red Notice were inconsistent with a fear of harm: CB 1163 [106];
e)the applicant’s frequent trips throughout Asia did not support his claim to have been in hiding: CB 1164 [108];
f)the documents relied on by the applicant did not establish the involvement of Department 2 or his claim to have been coerced by it into illegal activities: CB 1168 [119].
The Tribunal then considered whether prosecution for bribery would bring him within the definition of a refugee in the Convention.
It concluded that the law was not discriminatory in nature, would not be enforced against him in a discriminatory way and was adapted to the prevention of corruption. Similarly, the Red Notice was not persecutory in either its nature or intent: CB 1172 [130]. For those reasons, the Tribunal concluded that there was no real chance that the applicant would be persecuted for any Convention reason on return to China and affirmed the decision under review.
These proceedings began with a show cause application filed on
10 January 2011. The applicant now relies upon an amended application filed on 21 April 2011. The grounds of that application are:
1. The Tribunal fell into jurisdictional error when it took into account the irrelevant consideration of its mistake about the chronology and date of the e-mails extracted at Court Book 386.
Particulars
a. The Tribunal accepted that the applicant was not alerted to the existence of the Interpol Red Notice when he departed and entered Australia in November 2007. The Tribunal accepted the applicant’s evidence that he did not know about the Red Notice until he received the Notice of Intention to Refuse his application for a subclass 457 visa dated 8 April 2009: RRT decision para 96, Court Book 1159.
b. The Tribunal considered the applicant to be “an untruthful witness who has manufactured a complex and convoluted set of claims in an attempt to establish that there is a political motivation for the issuance of the arrest warrant and the Interpol Red Notice against him: RRT para 97, CB 1159.
c. The Tribunal was not satisfied that the said e-mail, “dated several months after the applicant claimed to have been involved with Department Two, establishes that the applicant was involved with Department Two as an unofficial agent who was forced to engage in bribes”: at RRT para 117, CB 116[7].
d. The Tribunal made a mistake of fact in that the e-mails were dated 9 November 2008, several months before the date the Tribunal accepted the applicant was aware of the Red Notice (ie April 2009) and several months before the date when the applicant claimed to have been involved with Department Two.
e. The mistake of fact was material in that the correct date of the e-mails undermined a major premise of the Tribunal’s reasoning, that is that the applicant’s claims were fabricated following and in response to the applicant’s knowledge of the Red Notice and for the purposes of the application for a protection visa.
f. The mistake of fact was material in that the e-mails were the best direct evidence of the position of Yan Zhongmin in Kamchin International Cooreration Limited (Kamchin), the relationship of Yan Zhongmin to the PLA General Staff Headquarters, the beneficial interest of the PLA General Staff Headquarters in the Kamchin, the financial relationship between the applicant and Yan Zhongmin, and the confidential relationship between the applicant and the author of the e-mail Peng.
g. As direct evidence of these matters the e-mails were corroborative of the applicant’s account of persecution.
2. The Tribunal fell into jurisdictional error when it failed to take into account a relevant consideration, ie the correct chronology of the e-mails and the date the applicant was aware of the Red Notice.
Particulars
a. See particulars to 1. Above
3. The Tribunal fell into jurisdictional error when it failed to determine whether Department Two exists [RRT decision para 129, Court Book] given the fact that Department Two is well known to the world.
The applicant was, at an earlier stage, legally represented but his solicitors withdrew by notice filed on the same date as the amended application was filed.
The only evidence before me is the court book in three volumes filed on 3 March 2011.
Only the Minister filed written submissions. Both parties took the opportunity to make oral submissions.
The applicant’s submissions centre upon an alleged mistake made by the Tribunal in relation to an e-mail purportedly dated 9 November 2008. The Chinese language version of the e-mail and a purported e-mail which preceded it on 8 November 2008 are reproduced at CB 387. An English translation of the two e-mails appears at CB 386. Page 385 of the court book is a cover page establishing that the e-mails were an attachment to the protection visa application made by the applicant on 22 June 2009 and further that the e-mails were intended to support the applicant’s claim of involvement in corrupt business dealings with the Chinese government. In particular, the e-mail was intended by the applicant to establish that a particular government official referred to in the e-mail purportedly dated 9 November 2008 held shares on behalf of the People’s Liberation Army in a company with which the applicant was associated.
The Tribunal summarises its adverse credibility conclusions concerning the applicant’s claims at [97] of its reasons (CB 1159 to 1160):
The Tribunal does not accept any of the applicant’s other claims. The Tribunal considers that the applicant is an untruthful witness who has manufactured a complex and convoluted set of claims in an attempt to establish that there is a political motivation for the issuance of the arrest warrant and the Interpol Red Notice against him. The Tribunal is strongly of the view that the applicant was a senior businessman in China who became involved in corrupt business dealings, which on his own evidence, is not an uncommon practise in China. The Tribunal considers that the applicant’s involvement in bribing of the Vice President of the Bank of China was discovered as part of investigations into a series of bribes taken by the Vice President of the Hainan Branch and the applicant is now being sought for prosecution in relation to that matter. The Tribunal considers that since 2006 the applicant has resided in Australia on temporary business visas and that he did so for the purposes of establishing business interest and pursuing those interests in Singapore, Cambodia and Papua New Guinea and not, as he had claimed, because he was in hiding in Australia to escape from Department Two. The Tribunal considers that following the receipt of the Department’s NOICR, the applicant manufactured a set of lengthy, detailed and elaborate claims relating to his involvement with ‘Department Two’ and attempted to rely on numerous documents relating to commercial business matters and other unrelated matters in an attempt to create a political dimension to his claims. In the Tribunal’s view, the applicant’s motivation in lodging the application for protection is to avoid the penalty of 5 years imprisonment for his involvement in bribing the Vice President of the Hainan branch of the Bank of China. The Tribunal’s consideration and reasons for reaching these conclusions follow.
In the preceding paragraph, [96], (CB 1159), the Tribunal accepted the applicant’s evidence that he learned of the Interpol Red Notice when he received from the Minister’s Department a Notice of Intention to Refuse his subclass 457 visa:
Although the applicant’s representative initially disputed the existence of the Interpol Red Notice, the Tribunal is satisfied that the applicant has since conceded that the Interpol Red Notice is in existence and a notice for his arrest has been issued. The applicant has also not denied his involvement in that offence, although he has claimed that he was coerced into engaging in that conduct. Accordingly, the Tribunal finds that the applicant bribed the vice President of the Hainan Branch of the Bank of China and that an Interpol Red Notice has been issued for his arrest in China. The Tribunal accepts the applicant’s evidence that he did not know about that notice until he received the Department’s Notice of Intention to Refuse his Subclass 457 visa and he was not alerted of its existence when he departed and entered Australia in November 2007. The Tribunal accepts, therefore, that the applicant is facing charges of Bribery for a breach of Article 393 of the Criminal Law of China and a possible jail sentence of 5 years for his involvement in that offence. The Tribunal also accepts that the applicant has previously been involved in various corrupt business enterprises and other dealings in China.
That NOICR was issued on 8 April 2009 by the Minister’s Department. The Tribunal dealt with the e-mail correspondence in question as well as with other documents relied upon by the applicant at [117] of its reasons (CB 1167-1168):
The Tribunal also considers that much of the documentation has been prepared by the applicant and is not official documentation. This includes documents such as the “Introduction to Department Two of PLA General Staff Headquarters”; organisational charts stating that Yan Zhongmin and Chen Yan are official agents and special military agents of Department Two; personnel tables relating to Department Two; the list of Bribes undertaken by the applicant allegedly at the direction of Department Two; the list of payments made by Department Two; and an Introduction to Fourway (HK) which states that it is another company controlled by Chen Yan and refers to the “Nanjing Real Estate businessman” who allegedly disappeared and “Little Fan” who was also allegedly a member of Department Two. The Tribunal considers that these documents have all been prepared by the applicant and are not official documents. The Tribunal is not satisfied that this documentation corroborates the applicant’s claims. Nor does the Tribunal accept that other documentation such as newspaper reports relating to the trial of the Vice President of the Bank of China or the disappearance of a person named Zhu Ming establishes the applicant’s involvement in Department Two. Nor does the Tribunal accept that the fact that the applicant has the business card of Director General Dai Xiofeng, who is allegedly employed by the CPC Central Committee of the Taiwan Affairs Office, establishes that the applicant was an unofficial member of Department Two and considers that there are many reasons why the applicant, who was a senior business person in China, would have the card of such a person. The Tribunal further considers that correspondence between Yan Zhongmin and his eldest son relating to payments to his son could be for any number of reasons and does not accept that it establishes the truthfulness of the applicant’s claims. The Tribunal also considers that the e‑mail, dated 9 November 2008, although referring to “Dai” and the PLA General Staff Headquarters, the content and source of the author of the e-mail is otherwise unclear. The Tribunal is not satisfied that this e-mail, dated several months after the applicant claimed to have been involved with Department Two, establishes that the applicant was involved with Department Two as an unofficial agent who was forced to engage in bribes. (emphasis added)
The last sentence in that paragraph is critical to the applicant’s case before this Court. The applicant asserts that the Tribunal erred in stating that the e-mail relied upon by the applicant was dated several months after he claimed to have been involved with Department Two. The Tribunal’s statement in that regard is ambiguous. It is not clear whether the Tribunal was saying that the e-mail was dated several months after the time when the applicant claimed to have been involved with Department Two, or that the e-mail was dated several months after the applicant made his protection visa claim of involvement with Department Two, or that the e-mail was dated several months after the applicant claimed to have ceased to have been involved with Department Two, or something else.
One possibility occurred to me on examination of the Chinese language original of the e-mails at CB 387. At the bottom of that page is a string of letters and figures which indicates that on a particular day, the applicant’s Gmail account was accessed in order to obtain the printed
e-mails reproduced. That date is expressed to be 4/8/2009. It is possible that, on seeing that date, the Tribunal considered that the e-mail account was accessed to obtain the two e-mails on 4 August 2009 which was several months after the applicant made his protection visa application. That, of course, would not make sense because the e-mail was included with the documents submitted on 22 June 2009. The applicant explained to me that the date 4/8/2009 is recorded in accordance with the American system so the date was actually 8 April 2009. He confirmed that he accessed his Gmail account in order to obtain the e-mails on the day he received notice from the Minister’s Department of its intention to refuse his business visa application. In other words, he accessed the e-mail account and obtained the two e-mails on becoming aware of the Interpol Red Notice. It is also possible that the Tribunal, seeing that, was suspicious of the provenance of the e-mails and suspected that the
e-mails might have been fabricated after the purported dates of them. However, that is not clear from the Tribunal’s reasons. Even if the Tribunal was in some sense mistaken either as to the dates or purported dates of the two e-mails reproduced, or the date on which the e-mail account was accessed to obtain those e-mails, I agree with the Minister that such mistake does not amount to a jurisdictional error.
First, the Tribunal accepted that the individual referred to in the second and more recent e-mail may well hold shares in the company referred to on behalf of the Chinese government. This is made clear at [116] of the Tribunal’s reasons: CB 1167:
The Tribunal accepts that as a senior businessman the applicant was involved in the establishment of several companies and that he may also have been involved in disputes with other companies for which he acted as the legal representative and that his association and involvement at times may have been questioned and investigated, as indicated in the media report relating to ST Zhong and the “mysterious Number Two shareholder”. The Tribunal accepts that the documentation establishes that Yan Zhongmin was a major shareholder of several companies and also accepts that the Chinese government may have at some point acquired shares in some of those companies and have become a major shareholder. However, the Tribunal does not accept that there is anything unusual about the Chinese government holding shares in companies such as those in which the applicant and Yan Zhongmin were involved, particularly given that many were associated with timber, a primary industry.[1] The Tribunal considers that much of the documentation relates to contractual arrangements, the establishment of the applicant’s companies and basic information relating to those companies and business dealings conducted by those companies. The Tribunal is not satisfied that any of this documentation establishes that the applicant and Yan Zhongmin and their associates were involved in collaborating with Department Two and were official or unofficial agents of Department Two.
[1] For a detailed discussion of corporate ownership in China and the changes regarding ownership and privatisation see for example, ‘Garnaut, Ross, Song, Ligang, Tenev, Stoyan and Yao, Yang, 2005, ‘China’s Ownership Transformation: Process, Outcomes, Prospects’, The International Financie (sic) Corporation and the International Bank for reconstruction and Development/The World Bank’. See also Price, Alan H., Brightbill, Timothy C., Weld, Christopher B., Nance, Scott D. ‘Government ownership and Control of China’s “Private” Steel Producers, Wiley Rein, October. See also Walsh, Lynn, ‘China’s Hybrid Economy’, 2008, Socialism Today, Issue 122, October.
To that extent, the Tribunal accepted what the e-mails were claimed by the applicant to establish.
Secondly, the Tribunal’s adverse credibility conclusions against the applicant were not dependant upon any particular view as to the date of the e-mails in question or the date of access to the Gmail account. There were many reasons for the Tribunal’s adverse credibility conclusions. For present purposes, the Tribunal simply observed that the e-mails relied upon by the applicant did not support his contention that he was engaged in corrupt activity with Chinese government officials against his will.
It follows that I accept the Minister’s contention that any view the Tribunal may have had about the date of the e-mails in question or, for that matter, the date on which the Gmail account was accessed, was not determinative of the outcome of the review by the Tribunal and does not constitute a jurisdictional error if, indeed, the Tribunal was in error, on which I do not think it is necessary to make any finding.
In other respects, I agree with and adopt the Minister’s submissions in relation to the grounds set out in the amended application.
The applicant also argues that its “error” led the Tribunal to ignore a relevant consideration, namely, the correct chronology. The “correct chronology”, whatever that be, is a question of fact and is not one that the Migration Act 1958 (Cth) requires the Tribunal to consider. On that basis, this ground does not add anything to the first ground.
For those reasons, even if there was a factual error made by the Tribunal, which has not been proven, it would not justify the grant of relief.
The third ground again takes issue with a question of fact, namely, whether Department Two exists. The applicant complains that the Tribunal should have found that Department Two did exist because that fact is well-known. That complaint does not rise above an argument on the merits of the decision. However, even if it did, the Tribunal’s failure to make a finding in this respect did not have any impact on its decision: it stated that “even if there is such an agency or department within the PLA” it did not accept that the applicant was a member of it in an official or unofficial capacity and that he left or fled China in order to avoid any further involvement with it: CB 1171-1172 [129]. For that reason, the Tribunal made no jurisdictional error in failing to determine whether Department Two existed.
The applicant is concerned that he may be killed if he is required to return to China to face the corruption charge against him. It is well known that China employs the death penalty for some offences, including some corruption offences. The Court’s decision on the Tribunal’s affirmation of the delegate’s decision should not be seen as carrying any implication as to what view the Australian government should take in relation to any extradition request for the applicant which may be made by China, or in relation to the question of whether it would be desirable or appropriate for the applicant to be deported to China in the circumstances he faces.
I will order that the application to review the decision of the Tribunal be dismissed on the basis that the Tribunal decision is free from jurisdictional error.
In consequence of the dismissal of the application, the Minister seeks an order for costs. The Minister seeks costs fixed in the sum of $8,500. The Minister’s solicitor and client costs are in the order of $11,000. The applicant seeks a reduced cost order on the basis of his financial difficulties. The issue for me is what costs have been reasonably and properly incurred. I am satisfied that, when considered on a party and party basis, costs of not less than $7,500 have been reasonably and properly incurred on behalf of the Minister. I will order that the applicant pay the first respondent’s costs and disbursements of an incidental to the application, fixed in the sum of $7,500.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 19 May 2011
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