SZSEY v Minister for Immigration and Border Protection

[2014] FCA 266

FEDERAL COURT OF AUSTRALIA

SZSEY v Minster for Immigration and Border Protection [2014] FCA 266

Citation:	SZSEY v Minister for Immigration and Border Protection [2014] FCA 266
Appeal from:	SZSEY v Minister for Immigration & Anor [2013] FCCA 1838
Parties:	SZSEY v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL
File number(s):	NSD 2434 of 2013
Judge(s):	YATES J
Date of judgment:	27 March 2014
Catchwords:	MIGRATION – application for protection visa – whether error demonstrated in judgment of Federal Circuit Court dismissing application for judicial review
Legislation:	Migration Act 1958 (Cth) ss 65, 36
Cases cited:	Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575 Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429
Date of hearing:	3 March 2014
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	25
Counsel for the Appellant:	The Appellant appeared in person through an interpreter
Solicitor for the Respondents:	Ms M Stone, DLA Piper Australia

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 2434 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZSEY
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	YATES J
DATE OF ORDER:	27 MARCH 2014
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 2434 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZSEY
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	YATES J
DATE:	27 MARCH 2014
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of the Federal Circuit Court of Australia (the Federal Circuit Court) given on 15 November 2013.

2. The Federal Circuit Court dismissed an application for judicial review of a decision made on 17 October 2012 by the second respondent, the Refugee Review Tribunal (the Tribunal).  This decision affirmed the decision of a delegate of the Minister for Immigration and Border Protection (the Minister), not to grant the appellant a Protection (Class XA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

   Background

3. The appellant is a citizen of the People’s Republic of China, who was born on 2 September 1963.  The appellant arrived in Australia on 17 August 2011.  He applied for a Protection (Class XA) visa on 8 November 2011.  His application was refused on 7 March 2012.

4. The appellant’s claims were summarised by the primary judge (at [7]):

   The applicant claimed to fear harm in China as the result of his association with an Uighur activist and because he had been imputed with a political opinion supportive of Uighurs by the Chinese authorities.  The applicant’s claims were as follows:

   a.He was friends with a man named Mr Wang who was an activist in support of Uighurs and was wanted by the police for this reason. In July 2010 the applicant assisted Mr Wang to hide from the police by letting him stay at a placed owned by a friend of the applicant called “Cotton Hill Resort”(CB 127 at [27]);

   b.On 21 July 2010 two police came and took the applicant to Shibei Public Security Bureau where he was questioned about the Uighur person staying at Cotton Hill Resort. The police accused the applicant of being a collaborator with Mr Wang, and tortured him for two days before he was sent to No. 1 Detention Centre. The applicant was ultimately released on bail on 28 July 2010 after paying a security bond (CB 128 at [27]);

   c.After this, the applicant was required to report to the local police station each week and he lost his job because his employer found out about his political difficulties (CB 128 at [27]); and

   d.After arriving in Australia, the applicant’s wife told him that the police had visited their house on three occasions, seized his computer and some work-related information, and warned his wife that he had committed a serious offence by fleeing overseas while on bail (CB 128 at [27]).

5. The appellant has not challenged the correctness or adequacy of this summary. 

6. The primary judge noted that the appellant had submitted the following documents in support of his claim:

   ·a Decision Notice of Release on Bail for Trial said to have been issued by the Public Security Bureau (the PSB) of Hanshou County on 28 July 2010;

   ·a Detention Notice issued by the PSB of Hanshou County on 21 July 2010;

   ·a receipt for payment of bail security bond issued by the PSB of Qingdao City, Shibei Division on 28 July 2010, and

   ·a FedEx envelope shown to the Tribunal at the hearing which the applicant claimed had been used to send the above documents to him from China.

7. The primary judge noted that the FedEx envelope was marked as having arrived in Australia on 28 October 2011, but was otherwise in Chinese.  No copy of the document was taken by the Tribunal.  The appellant was advised by the Tribunal that if he wanted to submit the envelope, he needed to obtain a translation.  Nothing further was received by the Tribunal in this regard.

   The Tribunal decision

8. The Tribunal found that the appellant was not a truthful witness.  It was satisfied that the appellant had fabricated his claims to Australia’s protection and that he fabricated, or obtained fabricated, documents to support his claims.

9. Further, the Tribunal did not accept that the appellant had been associated with Uighur activists in China, or had given Uighur activists assistance and aid in their evasion of Chinese authorities, or had been detained for that reason.

10. The Tribunal gave detailed reasons for those findings.  It recited aspects of the evidence before it and noted what it found to be a number of implausibilities and significant contradictions and illogicalities in some of the appellant’s claims, as presented by him.  It raised these matters for the appellant’s comment, but found his explanations to be unconvincing.

11. The Tribunal also put independent information to the appellant which indicated that if he were of adverse interest to Chinese authorities – to the extent of having been arrested, detained, released on bail for trial and put on weekly reporting conditions for 13 months – he would have had difficulty obtaining travel documentation, such as a passport renewal and an exit visa.  Indeed, he would also have had difficulty departing China on documents in his own name.  The Tribunal noted that, in response, the appellant raised a new claim that had not previously been mentioned in his protection visa application or in two written statements, namely that some of his friends knew someone in the PSB, who said that his case would not be put in the national system and that his name was not in the national network.

12. At [86]-[89], the Tribunal commented on the documents provided by the appellant:

    There are problems with the documentation which the applicant presented to corroborate his claims which, together with the independent information available to the Tribunal about the ease with which fake documents can be obtained in China, cause the Tribunal to place no weight on those documents as corroborating the applicant’s claims.

    The contradictions between the “detention notice” and the applicant’s own evidence are set out above, including the fact that the notice states he was detained for investigation yet in his protection visa application the applicant states he was never the subject of criminal investigation.

    The “decision notice for release on bail for trial” contains the oddity of the applicant having been released on bail specifically “for trial” yet also stating that he is released “due to lack of evidence and facts”.

    The independent information set out above, and which was put to the applicant at the hearing for comment or response, is independent, from several sources, comprehensive, and compelling.  The sources all agree that document fraud in China is widespread and that consular officials in China assume documents to be fraudulent unless proven otherwise.  The peculiarities and contradictions evident in the documents provided by the applicant are such that the Tribunal relies on the independent information in preference to the applicant’s evidence, and, for the reasons given in that information the Tribunal declines to undertake its own investigations into the authenticity of the documents provided by the applicant.

13. The Tribunal then turned to the question of the FedEx envelope, finding (at [90]):

    The FedEx envelope which the applicant produced at the hearing does not indicate the contents of that envelope.  The applicant has not provided an accredited translation of the sender details on that envelope to corroborate his claim that it was sent by his company in China on behalf of his wife, despite having been informed by the Tribunal at the hearing that if he wished to submit it as evidence he would have to do so.  Further, the applicant did not produce this envelope until the Tribunal hearing, despite having provided its alleged contents (the documents about his arrest and release) at the time of lodging his protection visa application.

14. The Tribunal concluded (at [91]):

    For all these reasons, the Tribunal is satisfied that the applicant has fabricated his claims and has fabricated (or obtained fabricated) documents to support those claims.  The Tribunal finds that the applicant was not in China of adverse interest to the Chinese authorities as a suspected collaborator or sympathiser to Uighur activists or that he was imputed with a political opinion critical of the Chinse Communist Party or the Chinese government, or for any other reason.  The Tribunal finds that he was not arrested and detained as claimed nor subjected to any other form of harm by reason of being of adverse interest to the Chinese authorities.

15. The Tribunal was satisfied that the appellant did not have a genuine fear of persecution for his political opinion, actual or imputed, if he were to return to China.  It was satisfied that there was no real chance that the appellant would face Convention-related persecution in the reasonably foreseeable future if he were to return to China.

16. Having concluded that the appellant did not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal considered the complementary protection criterion in s 36(2)(aa). However, for the same reasons it gave for rejecting his application based on s 36(2)(a) of the Act, the Tribunal also rejected his application based on s 36(2)(aa).

    The Federal Circuit Court judgment

17. The primary judge noted that the grounds for review in the application filed in the Federal Circuit Court were in the form of submissions, and appeared as follows:

    1.Mr Wang was my business acquaintance & friend who was an anti-CCP traitor in Xinjiang and was on the police wanted list.  I became quite sympathetic with the dilemma of people like Mr Wang.  I tried to help him.  In the middle of July 2010, Mr Wang came to Qingdao to hire.  I helped him stay at my friends place for which I was arrested and tortured for two days by the PSB.  I was released with the help of my family and friends after paying of a security bond, but was told to report to the local police station every Thursday.

    2.The Tribunal member said that the applicant had fabricated (or obtained fabricated) documents to support those claims.  The fact is all the documents were issued by the CCP authorities.  I strongly request the Federal Magistrates Court [sic] to send the documents to Australian authoritative government department to carry on strict examination.  The fair examination result will prove the documents [sic] are true.

    3.The Tribunal member didn’t take all my documents and claims into account according to S91R of the Migration Act 1958 for the Tribunal’s bias against me.

18. The primary judge noted the adverse findings made by the Tribunal with respect to the appellant’s credit and the authenticity of the documents he had produced.  The primary judge concluded (at [36]):

    Given that the applicant is a self-represented litigant with little experience or knowledge, if any, of the legal process that he is attempting to undertake before this Court, in a language he does not speak, requiring an interpreter service to participate, I have undertaken a fair reading on the material contained in the Court Book and, in particular, the Decision Record itself. There is nothing to indicate that the Tribunal ignored or overlooked the material, nor is there any suggestion that the Tribunal misinterpreted the material before it. The grounds of review do not identify any jurisdictional error and it is not apparent from a reading and consideration of the material before the Court that such an error exists. Consequently, the Application should be dismissed with costs.

    The appeal

19. The notice of appeal filed in this Court on 29 November 2013 states the following grounds of appeal (errors in original):

    1.I helped my friend, Mr Wang who is in the police wanted list by providing a residence for him for which I was arrested ant tortured for two days.  After releasing, I was forced to report to the local police station every Thursday.  The Tribunal said that I had fabricated documents to support my claims.  The fact is that my documents were issued by the PRC authorities.  I strongly request the Federal Circuit Court to investigate and check my documents.  I am sure that the outcomes will certify that my documents are true.

    2.The Tribunal member made jurisdictional error while making hid decidion.

    3.The Federal Circuit Court didn’t point the jurisdictional error.

20. The first ground simply disputes the Tribunal’s findings of fact concerning the authenticity of the documents relied upon by the appellant.  It does not raise any arguable ground of appeal.  The second and third grounds assert the existence of jurisdictional error, but do not identify that error. 

21. The appellant appeared in person at the hearing of the appeal, assisted by an interpreter.  He had not prepared written submissions, as directed by orders made on 5 December 2013.  I asked the appellant to identify the error on which he relied.  The substance of his response, which was brief, was that he did not understand why the Tribunal was not satisfied with the authenticity of the documents.  He asked the Court to “assess his case” in a “fair way”.  It can be seen that, by grounds 2 and 3 of his notice of appeal, the appellant simply seeks to agitate the question of the authenticity of the documents, when that question had been decided adversely to him by the Tribunal.

22. The Minister submitted:

    ·The appellant really seeks impermissible merits review of the Tribunal’s decision.  It is not the role of a court undertaking judicial review to examine the authenticity of documents, such as is sought in the present case.  The Tribunal’s findings, in this regard, were open to it on the material before it.

    ·The Tribunal is not under a general obligation to undertake inquiries:  Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575 at 586 and 589. To establish jurisdictional error on the basis of a failure to make inquiries, the appellant must show that there was an obvious inquiry that the Tribunal could have made about a critical fact, the existence of which was easily ascertained: Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at 434-436. Further, and importantly, there must be some evidence that an inquiry by the Tribunal would have yielded a useful result.

    ·In this connection, the Tribunal stated that it did not make inquiries into the appellant’s documents because it considered that document fraud in China was so widespread that it was impossible to reliably check the authenticity of documents.  Therefore, the authenticity of the documents was not something that was easily ascertained.  In the circumstances, the Tribunal was under no duty to conduct inquiries to verify the documents.

    ·Importantly, there is no evidence that any inquiry made by the Tribunal would have yielded a useful result.  To the contrary, the country information before the Tribunal indicated that any inquiry would be unable to verify the authenticity of the documents.

23. In general, I accept these submissions.  The central matter is that, for reasons that were open to it, the Tribunal found that the appellant had not been truthful.  This finding, coupled with contradictions on the face of the documents and reliable objective information that document fraud was prevalent in China, led the Tribunal to conclude that the documents on which the appellant relied were not authentic.  Once again, this finding was open to the Tribunal.  In this appeal, the appellant has simply advocated the authenticity of the documents, when that question of fact has been decided against him.  This Court cannot go behind the Tribunal’s finding on the question of the authenticity of the documents and supplant that finding with its own finding on that question, based on its own assessment of the evidence or, indeed, its own inquiries.

24. The appellant has not demonstrated any appealable error in the judgment of the Federal Circuit Court which dismissed his application for judicial review.  No jurisdictional error in the Tribunal’s decision has been shown.

    Disposition

25. The appeal should be dismissed, with costs.

I certify that the preceding twenty‑five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates.

Associate:

Dated:       26 March 2014