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Federal Court of Australia |
Last Updated: 14 May 2007
FEDERAL COURT OF AUSTRALIA
SZHFH v Minister for Immigration and Citizenship [2007] FCA 699
SZHFH
v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW
TRIBUNAL
NSD 215 OF 2007
SIOPIS J
11 MAY
2007
SYDNEY
ON APPEAL FROM THE
FEDERAL MAGISTRATES COURT OF AUSTRALIA
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AND:
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THE COURT ORDERS THAT:
1. The name of the first respondent is varied to "Minister for Immigration and Citizenship".
2. The appeal is dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the
Federal Court Rules.
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF
AUSTRALIA
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BETWEEN:
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SZHFH
Appellant |
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AND:
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MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent |
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JUDGE:
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SIOPIS J
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DATE:
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11 MAY 2007
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PLACE:
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SYDNEY
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REASONS FOR JUDGMENT
1 This is an appeal against the judgment of a Federal Magistrate of 25 January 2007, which dismissed an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal). The Tribunal’s decision was made on 27 July 2006 and handed down on 17 August 2006. It affirmed the decision of a delegate of the first respondent (the delegate) to refuse to grant the appellant a protection visa. This was the second Tribunal decision made in respect of the appellant. A previously constituted Tribunal had on 11 August 2005 affirmed the decision of the delegate. However, that decision had been set aside, and the appellant’s claim for review was sent back for reconsideration by the Tribunal.
Background
2 The appellant is a 34 year old male who was born in the People’s Republic of China (China). He arrived in Australia in December 2004 and applied for a protection visa on 24 January 2005. The appellant sought a protection visa on the Convention ground of political opinion. He claimed his participation in political activities had brought him to the adverse attention of Chinese authorities and he would suffer persecution if he were to return to China. The appellant is in the construction industry. The appellant said he had asked a lawyer, Mr Chen, to assist him in recovering payment from the mistress of a government official who had refused to pay him for building work carried out for her. Mr Chen had then been detained by the authorities. The appellant claimed he had in early August 2004 been involved in a week long protest, in front of the offices of the Public Security Bureau (the PSB), against the detention of Mr Chen. The appellant said that the police did not arrest him whilst the protests were in progress. However, he said that he was arrested a short time thereafter, and he was detained by the police between 16 August and 31 August 2004. He was beaten, and only released because he signed a confession. After his release from detention he learned in September 2004 that the lawyer had been sent to a labour camp and he organised the distribution of anti-government petitions. The appellant claimed that these activities brought him to the attention of the PSB and he was advised in November 2004 that he was on a list of persons who the PSB wanted to investigate. He relocated to Shenzen City to avoid detection by the authorities, and departed soon after for Australia.
3 The delegate did not accept the appellant’s claims. The delegate observed:
Country information indicates that the Chinese authorities are swift and severe in retaliating against activities that are perceived to be against the government. In this context I find the [appellant’s] profile and departure to be at odds with his claimed political actions.
4 The delegate also observed:
It is highly unlikely that the [appellant] could have conducted his propaganda campaign for so long undetected, considering that he was only recently detained for two weeks and was known to have participated in demonstrations and organised petitions to the government for the release of the solicitor. Nor is it likely under the circumstances that the PSB would not have suspected him until late November 2004. The [appellant] appears to have been the only demonstrator or petition signer to have been arrested, questioned and detained. If the [appellant] had been of adverse interest to the authorities as claimed, country information cited below indicates that he would have been located and questioned, and possibly arrested and barred from departing the country, depending on the authorities’ level of interest.
The Tribunal
5 The appellant attended a hearing before the Tribunal on 19 July 2006 and gave oral evidence.
6 In its decision the Tribunal accepted that the appellant is a national of China but did not accept any of his claims for the following reasons. Firstly, the appellant’s claim that he participated in a week long demonstration in front of the offices of the PSB was found to be implausible; being inconsistent with independent country information to the effect that Chinese authorities would not tolerate such an extended protest. The Tribunal found it implausible that he was not arrested on the first or second day of the protest.
7 Further, the Tribunal did not accept the claims of the appellant that up to 50 people had risked their liberty to demonstrate over "a commercial deal gone sour" for the appellant. As the claim that the appellant organised and participated in demonstrations was rejected, and as the appellant’s description of his detention lacked detail and was not plausible, his claims to have been arrested and detained in August 2004 were also rejected.
8 The appellant’s account of organising and distributing petitions was also found to be implausible. The Tribunal observed that in accordance with country information, persons distributing petitions face harassment and detention. The Tribunal did not accept the appellant’s claims that he was able to engage in this activity because the Chinese authorities were unaware of the appellant’s involvement until November 2004. The Tribunal observed:
If the [appellant] had led demonstrations in front of PSB offices in Hong Lu for a week demanding Mr Chen’s release, if he had distributed petitions outlining his concerns during these demonstrations, if he had been arrested directly as a result of his actions and if he had signed a confession that he was involved in the activities he has described, the authorities would have been able to easily identify him as the organiser behind any petition linked to Mr Chen. Having regard to the Chinese authorities’ intolerance towards anti-government petitions and protests, lack of evidence directly linking the [appellant] to the petition would not have deterred the security agency from taking strong action. Indeed, it is reasonable to assume that a shrewd and far-reaching agency like PSB had ample opportunity and reason to find evidence of the [appellant’s] involvement and punish him in the two months between September and November 2004 that he remained in his hometown.
9 The Tribunal also found the appellant’s account of his ability to exit from China implausible. It did not accept that the appellant would have been able to obtain approval to leave China from the "neighbourhood committee", if he "was suspected and was being investigated by PSB after November 2004".
The decision of the Federal Magistrate
10 The appellant filed an application for review in the Federal Magistrates Court on 21 September 2006 and an amended application on 6 December 2006. The first ground of the amended application was that the Tribunal failed to comply with s 424A(1) of the Migration Act 1958 (Cth) (the Act). The second ground was that the Tribunal failed to comply with s 425 of the Act. The final ground was that the Tribunal acted with bias and failed to consider independent country information properly and fairly.
11 In relation to the first ground, the Federal Magistrate held that there had not been any information which formed a part of the reasons of the Tribunal, which fell within the ambit of s 424A(1) of the Act. The Tribunal’s reliance on independent country information came within the exception in s 424A(3)(a).
12 In relation to the second ground, the Federal Magistrate referred to the decision in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592 (SZBEL). The Federal Magistrate observed that he did not understand the High Court in SZBEL "to be retreating from previous statements in the High Court which emphasised that it is not a duty on the Tribunal to put to an applicant perceived flaws in an applicant’s case in a manner which in adversarial litigation would be required by the rule in Browne v Dunn". The Federal Magistrate referred to Re Ruddock (in his capacity as Minister for Immigration and Multicultural Affairs) and Another; Ex parte APPLICANT S154/2002 (2003) 201 ALR 437.
13 The Federal Magistrate observed that the Tribunal put critical aspects of this information to the appellant in the course of the hearing. The Federal Magistrate found that in the circumstances of this case the appellant had been made aware that the Tribunal had difficulty in accepting the history he recounted to support his application. The appellant had not pointed to any significant issue on which he was not "on notice", nor was he misled in relation to any issue.
14 In relation to the third ground of review, the Federal Magistrate observed that the appellant had not pointed to any evidence to support his allegation of bias. Further, the Federal Magistrate held that, contrary to the appellant’s submission, the Tribunal’s use of independent country information did not in any way establish jurisdictional error.
The appeal
15 The appellant lodged a notice of appeal in this Court on 15 February 2007. There are two general grounds of appeal. The first is that the Federal Magistrate erred in law, and the second is that he erred in finding that the Tribunal acted properly. The particulars of the appeal grounds contain the substance of the appellant’s complaint, namely, that the Federal Magistrate "erroneously ignored":
(a) the Tribunal’s errors in identifying the wrong issue, ignoring relevant material and relying on irrelevant material and making erroneous findings;
(b) the Tribunal’s failure to comply with its obligations under s 424A(1) of the Act; and
(c) the Tribunal’s failure to comply with its obligations under s 425 of the Act.
16 The appellant filed written submissions in support of the ground of appeal that the Federal Magistrate erred in failing to find that the Tribunal had not complied with s 424A of the Act. In those submissions, the appellant also referred to a US Department of State Country Report on Human Rights Practices to the effect that "defense lawyers" have been arrested and mistreated in China.
17 As to the ground of appeal relating to s 424A of the Act, the appellant’s complaint was in essence that the Tribunal had found that the appellant’s account was inconsistent with the country information, but had not provided the appellant with this "information" as it was obliged to do under s 424A. This "information", contended the appellant, did not fall within one of the exceptions to s 424A. In my view, by reason of s 424A(3)(a), there was no obligation on the Tribunal to provide the appellant with the country information it referred to in its reasons. The country information was general information about a class of persons and was not information which related directly to the appellant. Further, there was no obligation on the Tribunal under s 424A to advise the appellant that the Tribunal regarded the appellant’s version as "implausible" because it was inconsistent with the country information. There is no obligation on the Tribunal to advise the appellant of its thought processes or determinations (SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2; (2006) 150 FCR 214).
18 The fact that there was in existence country information, which reported the detention of "defense lawyers" in China does not assist the appellant. The Tribunal’s concern was with other aspects of country information which were inconsistent with the appellant’s version of events; namely, the propensity of the PSB to act swiftly and decisively to suppress dissent. In any event, the assessment of country information is a factual matter for the Tribunal and it is not open to the Federal Magistrate to review the merits of the decision of the Tribunal. The Federal Magistrate did not err in his assessment of the appellant’s claims for review in relation to s 424A of the Act.
19 As to the ground brought in respect of s 425 of the Act, the Federal Magistrate did not err. This case is distinguishable from SZBEL, because the delegate has also relied upon the inconsistency between the appellant’s version of events and country information in dismissing the visa application. In any event, the Federal Magistrate referred at [9] of his reasons, to passages where the Tribunal expressed its view that it was having some difficulty in accepting parts of the appellant’s evidence. The Tribunal also raised directly with the appellant the difficulty that the Tribunal had with the appellant’s version of events in light of the country information. At [AB 78] the following extract from the transcript of the Tribunal hearing appears:
MR ROUSHAN: The Chinese government does not tolerate demonstrations. This is the information that I have. This information is considered to be credible and reliable and is from an independent source. The tolerance is low particular[ly] if the demonstrations are political in nature. So why was it that you demonstrated in front of a police station on two occasions with 20 people and more yet you were not arrested immediately but you say that you were arrested a week later? Why would the police not arrest you immediately but wait until you go home after a week and then come and arrest you?
THE INTERPRETER: As I said, we went to the PSB just for a while, for half an hour and then we left just because we were afraid that we will be arrested.
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The Federal Magistrate did not err in finding that there was no failure by the Tribunal to comply with s 425 of the Act.
21 As to the ground of bias on the part of the Tribunal, no submission supporting this ground was advanced. The Federal Magistrate did not err in rejecting the appellant’s claim made on this ground.
22 As to the other grounds, set out in the particulars, namely, failure to take into account relevant considerations and taking into account irrelevant considerations, and making erroneous findings – these matters do not appear to have been raised before the Federal Magistrate. The first respondent objected to the raising of the grounds in this appeal. At the hearing, the appellant did not advance any argument in support of the grounds. In any event, in my view, the Tribunal dismissed the appellant’s claims on the basis of factual findings made by it, which were neither irrational nor illogical. Leave to raise those grounds in this appeal is refused because there are no exceptional circumstances justifying the raising of the grounds.
23 The appeal is dismissed.
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Counsel for the First Respondent:
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Solicitor for the First Respondent:
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Date of Hearing:
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Date of Judgment:
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