SZQCG v Minister for Immigration

[2011] FMCA 441

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQCG v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 441

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 65(1)(b); 91R; 424A; 424A(1); 424A(3); 425; 474; pt.8 div.2

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 152
SZBYR v MIAC (2007) 235 ALR 609
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1986) 162 CLR 24

Applicant: SZQCG

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 596 of 2011

Judgment of: Emmett FM

Hearing date: 7 June 2011

Date of Last Submission: 7 June 2011

Delivered at: Sydney

Delivered on: 7 June 2011

REPRESENTATION

The applicant appeared in person and was assisted by a Mandarin interpreter.

Solicitors for the Respondents: I. Temby (Minter Ellison)

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 596 of 2011

SZQCG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8, division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated

   
   

   14 March 2011 and handed down on 15 March 2011 (“the Tribunal”).

2. The applicant arrived in Australia on 11 May 2010, having departed legally from China on a passport issued in his own name and a visitor’s visa issued on 12 April 2010.  On 2 July 2010, the applicant lodged an application for a protection visa with the Department of Immigration and Citizenship.

Applicant’s claims and Delegate’s decision

1. The applicant is a citizen of the People’s Republic of China and claims to have been persecuted because of the public stance he took against the Chinese Communist Party officials principally arising out of his protests in respect of the acquisition of land owned by his family.

2. On 11 October 2010, a delegate of the first respondent (“the Delegate”) refused the applicant’s application for a protection visa on the basis the applicant was not a person to whom Australia owes protection obligations.

3. The Delegate noted that the applicant had provided limited documentary evidence in support of his claims which the Delegate found to be inadequate to satisfy it of the applicant’s claims in relation to the difficulties he had with his property.

4. Further, the Delegate had regard to two medical certificates supplied by the applicant relating to an alleged assault upon the applicant in June 2008.  However, it was not persuaded by those certificates on the basis of country information that suggested that false or forged documentation in China was readily available.  The Delegate also had regard to the delay by the applicant in leaving China, having obtained a passport two years previously.

5. The Delegate also referred to country information, only to form the view that had the applicant been an outspoken critic of the Chinese government as claimed and had come to adverse notice of the authorities, his departure from China would have been prevented.  The Delegate found the applicant’s claims to be merely uncorroborated assertions and was not satisfied by explanations provided by the applicant at interview.

The Tribunal’s review and decision

1. On 21 October 2010, the applicant lodged an application for a review of the Delegate’s decision with the Refugee Review Tribunal.

2. On 22 October 2010, the Tribunal wrote to the applicant acknowledging receipt of his application and inviting him to provide any further material and written arguments for the Tribunal to consider as soon as possible.

3. On 10 December 2010, the Tribunal wrote to the applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that information alone.  The letter went on to invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in his case.  Again, the letter invited the applicant to send to the Tribunal any new information or additional information that he wished the Tribunal to consider.  The applicant duly attended a hearing before the Tribunal.

4. The Tribunal has summarised the applicant’s written claims made in support of his protection visa application and I am satisfied that that summary is accurate.  The Tribunal has also summarised further claims made before the Delegate and the claims made by the applicant at hearing with the Tribunal.

5. In its decision record, the Tribunal summarised the various exchanges it had with the applicant about his claims and noted matters of concern that it put to the applicant and noted the applicant’s responses.

6. There was no transcript of the Tribunal hearing provided to this Court, nor did the applicant provide any evidence to suggest that the Tribunal’s decision record is not accurate.  At the directions hearing before me on 11 May 2011, the applicant was directed to file and serve evidence in support of his application, including any transcript of the Tribunal hearing.  The applicant was also directed that, if he wished to rely on recordings of the Tribunal hearing, he should give notice to the Court and to the first respondent.  However, no step was taken by the applicant to rely on any such evidence.

7. In the circumstances, the Court accepts as accurate the Tribunal’s summary of the oral evidence given by the applicant and the exchanges the Tribunal had with the applicant at the hearing.

8. The Tribunal’s decision record identified the country information to which it had regard.  In considering the applicant’s claim to have been a member of the China Democratic League and the applicant’s alleged involvement in that league, the Tribunal found the applicant’s evidence to be vague, confused and highly implausible.  The Tribunal found that the applicant’s comments gave no impression of first-hand knowledge.  The Tribunal ultimately found those claims not to be credible.

9. The Tribunal did accept that the applicant was the owner of an apartment.  However, it rejected the further claims of the applicant about the compulsory acquisition of the property without compensation.

10. The Tribunal also rejected the applicant’s claims about his treatment at the hands of local police and government officials.

11. In considering the applicant’s claims of injuries suffered by him at the hands of officials, the Tribunal found the applicant’s evidence to be largely inconsistent with the two medical certificates provided by the applicant.  The Tribunal identified the particular inconsistencies and concerns it had about the reports and referred to independent country information about the ready availability of fraudulent documents in China.  Ultimately, the Tribunal was not satisfied that any significant evidentiary weight should be placed on either of the certificates.

12. The Tribunal was also not satisfied about the applicant’s claim made for the first time before the Tribunal that, following his claimed release, police continued to threaten and monitor him.  It was also not satisfied by the applicant’s explanation for his delay of a month from the time his Australian tourist visa was issued to him until the time he left China.

13. Ultimately, the Tribunal rejected comprehensively all claims made by the applicant other than his citizenship and his ownership of the apartment.

14. In particular, the Tribunal rejected the applicant’s claim of ever having expressed a political opinion critical of corruption among local leaders of the Chinese Communist Party either in public or in meetings of the China Democratic League; that he ever called for an end to rule by the Chinese Communist Party; that his apartment was compulsorily acquired either as an act of revenge by local officials or for any other reason; that he complained to senior levels of government, including the National People’s Congress in Beijing; that he was ever detained and mistreated for any such reason; or, that the applicant had ever been subjected to any other form of harm by local officials or police for the reasons claimed.

15. The Tribunal was not satisfied that the applicant had suffered harm in the past for any Convention-related reason, nor was it satisfied that there is a real chance that the applicant would suffer harm for the reasons claimed if he were to return to China.  The Tribunal noted that the applicant did not claim to fear harm for any reason other than political opinion or imputed political opinion and was satisfied that no other Convention reason was apparent on the face of the information before the Tribunal.  The Tribunal was not satisfied the applicant had a well-founded fear of persecution for any Convention reason.  Accordingly, it affirmed the decision under review.

The proceeding before this Court

1. In the proceeding before this Court, the applicant was unrepresented, although had the assistance of a Mandarin interpreter.

2. As stated earlier, on 11 May 2011, the applicant attended a directions hearing before me.  On that occasion, I explained to the applicant that this Court has no power to interfere with the decision of the Tribunal unless the Court is satisfied that the Tribunal’s decision is affected by a mistake going to the jurisdiction of the Tribunal.  I also explained to the applicant that the grounds of his application made bare assertions that were unsupported by particulars and did not by themselves disclose an error capable of review by this Court.

3. The applicant confirmed that he wished to continue with the application.  For that reason, the applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon together with any further evidence by way of affidavit, including any transcript of the hearing as well as submissions in support.  At the directions hearing, the applicant was referred to the Court’s legal advice scheme for free legal advice and the applicant has participated in that scheme.  The applicant was also provided with the contact details for legal services providers and interpreting and translating services in documents headed in his own language.

4. At the commencement of the hearing this morning, the applicant confirmed that he had not filed any amended application, evidence or submissions in support of his application and that he had no further documents to present to the Court in support of his application. 

   
   

   The applicant confirmed that he relied on the ground contained in his application, filed on 31 March 2011.

5. The ground of the application is as follows:

   “I was persecuted because of my strong sense of justice against corruption, embezzlement and abuse of power by the CCP officials. I suffered brutal mistreatment, both physically and psychologically. But the tribunal member didn’t take my claims into account, making jurisdictional errors.”

6. The ground was interpreted for the assistance of the applicant and the applicant was invited to make submissions in support of the ground and in support of his application generally.

7. In the ground of his application, the applicant asserted that the Tribunal did not take his claims into account, making jurisdictional errors. 

   
   

   I asked the applicant how the Tribunal did not take his claims into account.  The applicant responded that the fact that he was persecuted was not fully considered by the Tribunal and that, in particular, the Tribunal had failed to consider his medical certificates or take them into account.  He also said that the Tribunal thought he was not telling the truth and that in fact he had lost all his teeth and his face was hurt as he had claimed.  The applicant then confirmed that he had nothing further to say in support of the grounds of his application or in support of his application generally.

8. As is clear from the summary of the Tribunal’s decision record, the Tribunal explored in some detail with the applicant the claims he made, including his alleged injuries at the hands of officials.  The Tribunal’s decision record notes particular matters of concern that the applicant put to the Tribunal and noted the applicant’s responses. 

9. Ultimately, the Tribunal was not persuaded by the explanations and responses of the applicant to the concerns it expressed.  Those findings were open to the Tribunal on the evidence and material before it and for the reasons it gave, including the Tribunal’s adverse credibility findings.  Credibility findings are a matter par-excellence for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).

10. There was no issue that arose before the Tribunal in respect of which the applicant could not be said to have been aware having regard to the findings of the Delegate.  Following the Delegate’s decision, the Applicant was aware, or should have been, that his credibility was an issue.  In any event, the Tribunal clearly put to the applicant its concerns about his credibility and independent country information that was inconsistent with his claims.  Both the Delegate’s decision and the Tribunal’s exchanges with the Applicant during the hearing were sufficient to indicate to the Applicant that everything he said in support of his application was in issue (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 152 at [35] and [47]).

11. Further, there was no breach of s.424A of the Act by the Tribunal. There was no material before the Tribunal which may have been part of the reasons for the Tribunal affirming the decision under review other than information that was otherwise excluded from the obligations arising from s.424A of the Act by reason of s.424A(3) of the Act.

12. The only information to which the Tribunal had regard in affirming the decision under review was information provided by the applicant for the purposes of the review and information which was not about the applicant in particular. Rather, it was about a class of persons of which the applicant claimed to be one. That information was excluded from the obligations under s.424A of the Act by ss.424A(3)(b), 424A(3)(ba) and 424A(3)(c) of the Act respectively.

13. Further, there was no information which in its terms amounted to a “rejection, denial or undermining” of the applicant’s claims that would have enlivened any other obligation on the part of the Tribunal pursuant to s.424A of the Act (see SZBYR v MIAC (2007) 235 ALR 609 at [8]).

14. The ground of the application does not identify any jurisdictional error on the part of the Tribunal.  Both the ground and the applicant’s oral submissions appear to be more in the nature of a disagreement with the findings and conclusions of the Tribunal.  Such complaints invite merits review which this court cannot undertake (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [195] per Gummow and Hayne JJ; Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1986) 162 CLR 24 at 40-42 per Mason J).

15. In the circumstances, the ground of the application is not made out.

Conclusion

1. A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the applicant, explored those claims with the applicant at a hearing and had regard to all material provided in support.  The Tribunal put to the applicant matters of concern it had about his evidence and noted the applicant’s responses.  The Tribunal also put to the applicant independent country information before it and invited the applicant to comment upon it.  The Tribunal then made findings based on the evidence and material before it.  As stated above, those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave.  A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.

2. In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision and accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate: 

Date:  23 June 2011