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SZMXN & Anor v Minister for Immigration & Anor [2009] FMCA 509 (28 May 2009)

Last Updated: 24 June 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMXN & ANOR v MINISTER FOR IMMIGRATION & ANOR

MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – failure to comply with s.424A of the Migration Act 1958 not proved – information in question was supportive of applicants’ case and did not have to be notified under s.424A(1) – Tribunal’s reasoning process does not have to be notified under s.424A(1) – s.424A does not require notification of inconsistencies arising out of reply to an earlier s.424A notice – information in question had been supplied to Tribunal as part of a psychologist’s report – information thus supplied was not restricted to the professional’s conclusions but included a patient history particularised in the report – all that information was governed by s.424A(3)(b).


SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 81 ALJR 1190
SZEWL v Minister for Immigration & Citizenship [2009] FCA 209

First Applicant:
SZMXN

Second Applicant:
SZMXO

First Respondent:
MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:
REFUGEE REVIEW TRIBUNAL

File Number:
SYG 2901 of 2008

Judgment of:
Cameron FM

Hearing date:
19 May 2009

Date of Last Submission:
19 May 2009

Delivered at:
Sydney

Delivered on:
28 May 2009

REPRESENTATION

Counsel for the Applicant:
Mr M. Seymour

Counsel for the Respondents:
Ms A. Mitchelmore

Solicitors for the Respondents:
Australian Government Solicitor

ORDERS

(1) The application be dismissed.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2901 of 2008

SZMXN

First Applicant


SZMXO

Second Applicant


And


MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent


REASONS FOR JUDGMENT

Introduction

  1. The applicants are citizens of China where the first-named applicant claims that he antagonised his supervisor in 1989 and that subsequently this man was demoted to a less powerful position.
  2. The first applicant claims to fear persecution in China on the grounds of imputed political opinion and he further claims that since his supervisor was demoted, this person’s son has been pursuing him for revenge. The first applicant alleges that he has been unable to get police protection.
  3. The applicants arrived in Australia on 30 April 2008. After their arrival in Australia, they lodged an application for protection visas. This was refused by the Minister’s delegate on 7 June 2008. The applicants then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicants were unsuccessful before the Tribunal and have applied to this Court for judicial review of the Tribunal’s decision.
  4. For the reasons which follow, the application will be dismissed.

Background facts

  1. The facts alleged in support of the applicants’ claim for protection visas are set out on pages 4 – 25 of the Tribunal’s decision (Court Book (“CB”) pages 115 – 136).
  2. In a statement attached to his application for a protection visa, the first applicant claimed that:
    1. after he was discharged from the army in 1980 he was sent to work as a transmission operator at Zhengzhou Railway branch, however, because of his good work he was recruited to join another branch;
    2. his supervisor (“Mr L”) was not happy about this recruitment and as a result the applicant was demoted to carriage guardian and his pay decreased. He reported Mr L who himself was demoted;
    1. Mr L’s son was the secretary of the city government and retaliated against the applicant. This person had connections with a gang and the applicant was beaten many times in 1989;
    1. in about 1989 the first applicant had left the railways and started his own business. However, at the instigation of Mr L’s son, from March 1991, it experienced problems with the Bureau of Industry and Commerce and the Bureau of Taxation and he and his family received telephone threats;
    2. on 21 July 1991, about 13 to 15 people broke into his home, beat and seriously injured him. He was hospitalised, suffering a serious cerebral concussion;
    3. he reported the incident to the police, however, Mr L’s son prevented the police from helping him and when he asked the police how his case was progressing, he was imprisoned for 36 hours and beaten;
    4. after this the first applicant did not pursue the matter, but the two bureaux continued to make trouble for him and his business. Subsequently he and he first wife divorced and he closed his business;
    5. after his divorce he worked as a taxi driver for two years and in 2001 he opened a kitchenware factory in Zhenzhou and while running the factory met his current wife, the second applicant;
    6. Mr L’s son found out about his factory in April 2002 and on 10 August 2002 his delivery van was intentionally burnt. He continued to receive threats and he feared for the safety of himself and his factory;
    7. on 27 April 2006 he was attacked by people associated with Mr L’s son and his waist and nose seriously hurt; and
    8. out of concern for his safety, he closed his business and came to Australia.
  3. On 3 June 2008 the first applicant and his migration agent attended an interview with the Minister’s delegate, during which the latter noted that in 2008 the first applicant had been able to carry on a business, get married and obtain a passport, indicating that he had no problems with the authorities.
  4. On 19 August 2008 both applicants appeared before the Tribunal to give evidence and present arguments. The second applicant appeared as a member of the first applicant’s family unit and did not wish to present her own claims. The first applicant claimed that:
    1. he did not give a detailed statement or present “all the information” during the interview with the delegate, because:
      1. he did not dare to, but said now that he has a better understanding of Australia law he would give details on his persecution in China;
      2. his migration agent had told him that the interview was not important, it was only a meeting. He had therefore not presented the entirety of his case because he believed the interview was only “minor” and “informal”; and
      3. he had been agitated and his brain was injured;
    2. he said that he had experienced internal bleeding in his brain and that his memory was severely affected and had deteriorated;
    1. he had submitted material to the “People’s Appealing Office” in China on the last occasion that he was hit, however, Mr L’s son had contacts there and he was threatened and his material taken away;
    1. when asked by the Tribunal when he closed his business, the first applicant:
      1. first said he sold it in 2006, because he was under assassination attempts and tried to go into hiding;
      2. and then said that he had had two businesses, one a factory which made utensils and the other a shop for the sale of utensils. He said he sold the shop within two months of the “hit” in 2006 and sold the factory on 30 June 2006. The second applicant stated that the shop was closed at the end of 2004 and the first applicant agreed with her;
    2. from June 2006 he and his wife went to work in Zhoukou, where Mr L’s son could not find them. He later said that he had not been in hiding since June 2006, but was “temporarily” in hiding in Zhoukou until the end of January 2007;
    3. after January 2007, neither he nor his wife worked. They borrowed money and lived in a village on the outskirts of Nancau, not far from his factory. The Tribunal noted that he had earlier given evidence that he had sold the factory at this time and he agreed;
    4. the first applicant made new and additional claims concerning attacks on him by Mr L’s son, including:
      1. after he went into hiding, Mr L’s son told people that the applicant had cheated him and claimed RMB200,000 in return for not pursuing him;
      2. he had been attacked four or five times, first, six months after Mr L was demoted, secondly, the attack in 1991 from his written statement and, thirdly, in April 2006. He had not been hospitalised as a result of the attacks;
      3. he was attacked by administrative staff when he was working as a taxi driver and on another occasion his car had been badly damaged by staff members of the administration who were instructed by Mr L’s son. The applicant knew Mr L’s son was behind the latter incident because this had happened before and he was told in public that it was because he had reported Mr L;
      4. on one occasion his car was hijacked during a trip to Kaifeng and was told to pay RMB50,000 to Mr L’s son. He reported this to police and two people were arrested, but were released on the same day because of connections of Mr L’s son; and
      5. during his detention by the local PSB following the attack in 1991, he was made to hold a knife and was told it had been used in homicides and that, if he continued appealing, he would be listed as a suspect in the crimes as they had his fingerprints; and
    5. the Tribunal noted the report provided to the Department by the tour operator, which outlined the circumstances surrounding the disappearance of both applicants from the tour group after their arrival at Sydney airport on 20 April 2008. The report also provided details of the tour operator’s inquiries into the applicants’ employment and stated that the first applicant was the vice general manager of a property company and the legal person at a cupboard factory. In response, the applicant confirmed that he was the legal person at the cupboard factory but the factory was transferred. He also claimed that he and his wife had difficulty applying for visas when they gave the true information, so he paid RMB50,000 for people to create fraudulent information concerning his position at the property company so that he could leave China “safe and sound”.
  5. On 21 August 2008 the Tribunal wrote to the applicants inviting them to comment on information considered relevant to the review, noting the first applicant’s various inconsistent claims, evidence and information given in the protection visa application, the accompanying written statement at the interview with the delegate and at the Tribunal hearing. Specifically, the Tribunal noted the first applicant’s failure to present all his claims at the interview with the delegate, the report provided by the tour operator and its concerns as to his credibility generally.
  6. The applicants provided a response to the Tribunal on 12 September 2008, which reiterated many of the claims previously made by the first applicant and added the following:
    1. the first applicant had misunderstood the meaning of the word “interview” and thought that it was to be a meeting conducted at a very basic level and only verifying some of the information submitted to the Department;
    2. concerning the inconsistent information about employment and residential circumstances, the first applicant said that his agent told him to keep his personal details as simple as possible so as not to complicate the case officers assessing the application and he did this for his protection visa application;
    1. he provided his migration agent with a “massive amount of information” concerning his persecution in China but his agent only gave a brief summary of his claims in the protection visa application, saying that it was “too much and too fuzzy” and that he would be given the chance to provide further information later;
    1. in April 1997, while working as a taxi driver at the international airport, he was approached by two unknown persons claiming to be from the taxi administration. He was invited into a van where there were three people on board, driven to a place under a bridge and then beaten. They then took his number plates. As a result, his car was seized by airport police. This was all done under the instruction of Mr L’s son;
    2. on 27 April 2006 he was assaulted by a group of people working under the instructions of Mr L’s son; and
    3. he invented and has the “prescription” for a “higher flushing board” which took him three and a half years of study. He has never released the principle or mechanism of its chemistry and hopes to “convert this technology into production” in Australia.
  7. To their written response to the Tribunal’s s.424A notice of 21 August 2008, the applicants attached a report from Andrew Szemenyei, psychologist, dated 9 September 2008 concerning both of them. This report reiterated many of the claims previously made by the first applicant concerning the attacks made on him and his wife and stated that both applicants reported symptoms consistent with post-traumatic stress.

The Tribunal’s decision and reasons

  1. After discussing the claims made by the applicants and the evidence before it, the Tribunal found that it was not satisfied that they are persons to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
    1. although the first applicant said he had “serious amnesia” and a bad memory after an attack to his head, the Tribunal found he responded to questions at the hearing in a direct and forthcoming manner, indicating he did not have the problems with his memory as claimed;
    2. the psychologist’s report did not support the first applicant’s claim of memory loss noting that it was only based on what the first applicant had told the psychologist;
    1. the Tribunal did not accept that the applicant would have been able to invent a high flushing board, involving three and a half years of study, when he claims to have been subjected to relentless persecution involving chasing, threatening, blackmail and threats to his life;
    1. the first applicant claimed that he did not give all the details of his claims during his interview with the delegate because his migration agent told him the interview was “minor” or “unimportant” and also because he did not “dare” to, but made a statement at the Tribunal hearing about how he had been persecuted as he had gained more knowledge of Australia law. The Tribunal had difficulties with these explanations and suggested he should have known that the interview was an important opportunity for him to present his claims, noting that:
      1. at the beginning of the interview, the delegate explained the purpose of the interview and told the first applicant that the interview was being recorded and was confidential;
      2. the migration agent attended the interview with the first applicant, which suggested there was some importance to it; and
      3. the first applicant was inconsistent later in the hearing when he said that he had not included all the details in the written statement because his agent had told him that he could supply the details in the interview;
    2. in his post-hearing written response, the first applicant claimed that he misunderstood the meaning of “interview” and had not expected a detailed investigation or realised that he could give evidence other than answering the questions of the delegate. The Tribunal found this explanation disingenuous and noted that the letter inviting attendance at the interview stated the purpose of the interview and, as already noted, the delegate specifically explained the purpose of the interview at its commencement;
    3. although the first applicant blamed his former migration agent for not including all of his claims in his protection visa application, the Tribunal observed that it was clear from the protection visa application that he was invited to state his claims and that he had made quite specific claims in his statement attached to his application. The Tribunal found that the first applicant was aware that the delegate was of the view that his claims were not within one of the Convention grounds and that as a result he added allegations during the Tribunal hearing to strengthen his claims to be a refugee.
    4. at the hearing the first applicant claimed that during his detention in 1991 he was instructed to hold a knife, told that it had been used in a homicide and threatened that if he did not stop “appealing” he could be held as a suspect because the police now had his fingerprints on it. The Tribunal considered this was a significant claim and although the first applicant blamed the agent for its non-inclusion, it considered that if such events had occurred, he would have included them in his application;
    5. the Tribunal noted inconsistencies in the evidence given by the first applicant concerning his employment circumstances and residences, including that:
      1. on his protection visa application he claimed to have worked for the Zhengzhou Railway from December 1980 until “present”, in his accompanying statement he claimed to have operated a kitchenware factory from 2001 until he had to close it and come to Australia and, at the hearing, he claimed to have had two businesses, one a factory which made utensils and the other a shop which sold utensils. When asked when he closed the shop, he initially said two months after the attack in April 2006 and later, after prompting by the second applicant, that it was in 2004. Further, on his application he claimed to have lived at the same address from November 2002 until March 2008, however, at the hearing claimed that he and the second applicant went into hiding in a different place between June 2006 and January 2007 when they moved to a third location. In response, the first applicant said that he had been advised to keep his personal details as simple as possible so as not to confuse the case officers and followed the same approach when he applied for the protection visa. The Tribunal did not consider this to be a legitimate explanation for the inconsistencies; and
      1. at the hearing he claimed to have been in hiding in Zhoukou working as a driver from June 2006 to January 2007. However, this was inconsistent with the report provided by the applicants’ tour operator, which stated that they had confirmed the first applicant was the vice general manager of a named property development company as claimed in his application for a tourist visa and that the second applicant was an accountant at a named cupboard factory. In addition, the report stated that the tour operator had been informed that the applicants were on marriage leave and were visiting Australia on their honeymoon;
    1. the Tribunal noted the inconsistent evidence given by the first applicant concerning the seriousness of the claimed attacks on him. In his statement accompanying his protection visa application he claimed that in July 1991 he was attacked by 13 to 15 people and hospitalised, while at the hearing he claimed he was attacked four or five times but had not been hospitalised. Further, the psychologist’s report submitted by the applicant stated that he had lost consciousness in one attack and had been hospitalised for three days;
    1. the Tribunal also noted inconsistent evidence given by the first applicant about hiding from Mr L’s son. He initially stated that he and his wife went into hiding from 2006 – 2007 and were not found but later stated that he tried many times to attempt to hide in different villages but Mr L’s son would somehow find him;
    2. the Tribunal found that if the first applicant had been pursued and targeted by a person who was well-connected to the local PSB as claimed, he would have experienced difficulties in obtaining a passport and leaving China. Although the first applicant claimed that Mr L’s son was not aware of his intended departure, the Tribunal considered that if this person was as powerful and single-minded in his pursuit of the first applicant as claimed, this person would have had the contacts to find out if and when a passport was issued to him; and
    1. in light of its stated evidentiary concerns and in consideration of the evidence as a whole, the Tribunal found the first applicant was not a credible witness and that he had fabricated claims to support his application for a protection visa.

Proceedings in this Court

  1. Only one ground of review was asserted in the amended application, namely:
  2. This allegation was particularised as follows:
  3. Section 424A relevantly provides:
  4. The applicants submitted that this matter essentially presented two issues for resolution, namely:

The applicants submitted that there should be an affirmative answer to the first question and a negative answer to the second.

  1. The applicants submitted that the relevant information was to be found in the following passage from p.2 of the psychologist’s report:
  2. The applicants submitted that resolution of the first question was primarily to be answered by determining whether the information contained in the psychologist’s report was used by the Tribunal as a reason for affirming the decision under the review. As the summary set out above at [12(i)] reveals, the Tribunal observed that the personal history contained in the psychologist’s report contradicted some of the evidence the applicant had given at earlier times. It can only be concluded that that history was taken into account when the Tribunal found, with stated reference to its stated evidentiary concerns, that the applicant was not a credible witness and that he had fabricated his claims to support his application for a protection visa. However, that does not answer the question posed.
  3. The psychologist’s report could not be said to contain “a rejection, denial or undermining” of the applicant’s claim for protection: SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 81 ALJR 1190 at 1196 [17]. Rather, it contained information which purported to support the applicants’ claims and was clearly submitted to the Tribunal for that purpose. It did not, therefore, contain information which s.424A(1) required be notified to the applicants. Its significance for the Tribunal’s decision was that it contained claims which were at variance with allegations the first applicant had made on other occasions. Noting the fact that the first applicant had advanced various versions of his claim the Tribunal took this, together with other information, into account when concluding that he was not to be believed. It is now well understood that the process of reasoning by which the Tribunal reaches such a conclusion does not need to be notified to an applicant by virtue of s.424A(1).
  4. What the applicants complain of in this case is that, having presented yet one more version of relevant events, they should have been invited to comment on the inconsistencies which thereby arose. Section 424A does not operate in this fashion. As was said in SZBYR’s case:
  5. For these reasons, I conclude that the information referred to by the applicants in [17] above was not information which s.424A(1) required be notified to them.
  6. However, in case I am wrong in this conclusion, attention should turn to whether s.424A(3)(b) nevertheless excluded that information from the ambit of s.424A(1). In this regard, the applicants submitted that the information in question was in the nature of a patient’s medical history provided to the psychologist for the purpose of allowing him to make medical recommendations and/or a diagnosis, rather than being given to the Tribunal for the purpose of the review. It was submitted that as far as the psychologist’s report was concerned. it was the recommendations and/or diagnosis which it contained which was the information provided for the purpose of the review, not the basal facts set out in the medical history.
  7. The applicants also identified a further distinction they found in para.119 of the Tribunal’s decision where the following passage appears:

They submitted that this represented two levels of information, the underlying fact, being the applicants’ assertions to the psychologist, and an ancillary fact, being that the applicants told the psychologist that information. For the reasons set out below, that is a distinction of no significance for the outcome of this case.

  1. The essence of the applicants’ case is that information contained in a document given to the Tribunal for the purposes of the review is not information falling within s.424A(3)(b) if that information is not contained in a communication directly from the applicants but, rather, is a report of something they have said. That argument misconstrues the nature of “information” as the term is understood for the purposes of s.424A. The nature of such information was discussed by Rares J in SZEWL v Minister for Immigration & Citizenship [2009] FCA 209 where his Honour said:
  2. It is fallacious to submit, as the applicants have, that the psychologist’s diagnosis and recommendations were the only information submitted to the Tribunal when his report was supplied to it. The fact is that the information in question, namely the applicants’ factual allegations made to the psychologist, was conveyed by them to the Tribunal when they sent the Tribunal a copy of the report in response to its s.424A notice. All the information in that report, including the first applicant’s history, was information which was supplied to the Tribunal. That being so, the information in question falls within the exception found in s.424A(3)(b) and thus did not have to be re-notified to the applicants.
  3. In any event, the applicants’ submission that the information was supplied to the psychologist rather than to the Tribunal does not paint a completely accurate picture. In this regard, it is convenient to quote from the Minister’s written submissions on this point, with which I agree:
  4. It might also be noted that the psychologist’s final recommendation was expressed as follows:
  5. I find that even if the information in question was “information” for the purposes of s.424A(1), it was governed by the exception to the operation of that subsection found in s.424A(3)(b). As a result, the Tribunal was not required to notify it to the applicants.

Conclusion

  1. For these reasons, jurisdictional error on the part of the Tribunal has not been demonstrated.
  2. Consequently, the application will be dismissed.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Cameron FM


Associate:


Date: 28 May 2009


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