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SZMWE & SZMWF v Minister for Immigration & Anor [2009] FMCA 86 (20 March 2009)

Last Updated: 24 March 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMWE & SZMWF v MINISTER FOR IMMIGRATION & ANOR

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicants claiming political persecution in China – applicants not believed – whether the Tribunal breached ss.424A or 425 of the Migration Act 1958 (Cth) considered – no reviewable error found – application dismissed.


SXRB v Minister for Immigration [2006] FCAFC 14


Applicants:
SZMWE & SZMWF

First Respondent:
MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:
REFUGEE REVIEW TRIBUNAL

File Numbers:
SYG 2713 of 2008
SYG 2714 of 2008

Judgment of:
Driver FM

Hearing date:
11 February 2009

Delivered at:
Sydney

Delivered on:
20 March 2009

REPRESENTATION

Counsel for the Applicant:
Mr J Gormly

Counsel for the Respondents:
Mr H Bevan

Solicitors for the Respondents:
Australian Government Solicitor

ORDERS

(1) The applications are dismissed.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2713 of 2008

SYG 2714 of 2008

SZMWE & SZMWF

Applicants


And


MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent


REFUGEE REVIEW TRIBUNAL

Second Respondent


REASONS FOR JUDGMENT

Introduction and background

  1. Applicant SZMWF is the brother of applicant SZMWE. Applicant SZMWE is his sister. They seek review of two separate but related decisions of the Refugee Review Tribunal (“the Tribunal”) made by the same presiding member and handed down on 23 September 2008. The Tribunal affirmed decisions of a delegate of the Minister not to grant the applicants protection visas.
  2. The following statement of background facts is derived from the Minister’s written submissions filed on 4 February 2009. I have also had regard to the applicants’ written submissions filed on 28 January 2009 in both cases.
  3. The applicants are citizens of China and arrived in Australia on 7 March 2008. They applied for protection visas on 14 March 2008 (Relevant Documents (Brother) (RD(B)) at 1-35; Relevant Documents (Sister) (RD(S)) at 1-35).

Applicant-Brother’s Claims

  1. The applicant-brother’s claims to protection were set out in a statutory declaration attached to his application for a protection visa (RD(B) at 26-28). His claims were based on his political opinion.
  2. Relevantly, he claimed that he regained contact with his sister in May 2007, after several years during which they had not been in touch, and they planned to travel overseas. At that time, he was a student at the Jiangxi Province Public Security Police Training School. This status as a student rendered him ineligible for a passport. He claimed that his sister helped him obtain a passport in late July 2007, although they did not travel overseas at that time.
  3. The applicant-brother started work in September 2007 at the Public Security Bureau (PSB) in Yichun City. He claimed that he witnessed the torture of suspects during interrogations and that this effected a great change in him. He claimed that he, together with two other students, began distributing pamphlets in December 2007 urging authorities to stop police violence. He also claimed that, in mid-January 2008, this group of three also “saved” a Falun Gong practitioner after her arrest by the PSB.
  4. The applicant-brother claimed that an investigation was launched on 28 January 2008 into the source of the leaflets. On 26 February 2008, he claimed that he learned suddenly that the Falun Gong practitioner had been arrested with her boyfriend. He left to join his sister in Beijing, leaving China on 3 March 2008. His police associates also left Yichun, one of whom was subsequently arrested on 8 March 2008.

Applicant-Sister’s Claims

  1. The applicant-sister’s claims to protection were also set out in a statutory declaration attached to her application for a protection visa (RD(S) at 26-28).
  2. In broad terms, the applicant-sister’s claims mirror those of her brother – that she regained contact with him in May 2007 after many years apart, that she illegally obtained a passport for him in July 2007 and that her brother distributed anti-Communist material and saved a Falun Gong practitioner.
  3. She claimed that, when she heard about the investigation formed in January 2008 into the source of the pamphlets, she began making arrangements for their travel overseas. These arrangements were used to leave China after the re-arrest of the Falun Gong practitioner.
  4. The applicant-sister claimed that her brother had become the target of persecution because of his political opinion and, as she helped him, she too would be targeted.

Before the delegate

  1. On 17 May 2008, the Minister’s delegate refused to grant the applicants protection visas (RD(B) at 48-57; RD(S) at 48-56).
  2. Relevantly, with respect to the applicant-brother, the delegate:
    1. was not satisfied that he is targeted by the Chinese authorities because of his political activities;
    2. found that there were a number of factors which cast serious doubts on the credibility of his claims and the genuineness of his claimed fear of persecution;
    1. found that the information given by him was “broad, vague and lacking in relevant detail”, as well as being inconsistent with other information;
    1. considered that he would have provided more detailed evidence and some evidence to support his claims if he had been actively involved in political activity, referring specifically to his claim to have organised the publication and distribution of leaflets;
    2. noted that the information regarding his family background or life in China is “very vague and sketchy” and that the absence of verifiable detail led the delegate to believe that his situation “is not as claimed”;
    3. found, on the basis of information provided by him, that he was able to obtain, in his hometown of Hubei, a valid passport in his own name, which he used to leave China legally without any difficulty.
  3. Relevantly, with respect to the applicant-sister, the delegate, similarly:
    1. was not satisfied that she is targeted by the Chinese authorities because of her imputed political opinion due to having assisted her brother obtain his passport illegally;
    2. found that there were a number of factors which cast serious doubts on the credibility of her claims and the genuineness of her claimed fear of persecution;
    1. found that the information given by her was “broad, vague and lacking in relevant detail”, as well as being inconsistent with other information;
    1. considered that she would have provided more detailed evidence and some evidence to support her claims if she had been actively involved in assisting her brother to depart China unlawfully, referring specifically to her claim to have obtained her brother’s passport illegally and to her brother’s political activities;
    2. found, on the basis of information provided by her, that she was able to obtain, in her hometown of Hubei, a valid passport in her own name, which she used to leave China legally without any difficulty.

Before the Tribunal

  1. On 13 June 2008, the applicants applied to the Tribunal for review of the delegate’s decisions (RD(B) at 58-62; RD(S) at 57-61).
  2. The applicants attended a hearing before the Tribunal on 24 July 2008 (RD(B) at 70-71; RD(S) at 69-70; Annexure A to the affidavits of Sue Archer sworn 22 December 2008 and filed 28 January 2009 in each proceeding).
  3. The Tribunal questioned each of the applicants separately, particularly in relation to the inconsistency between their claims (including those concerning the circumstances of their departure from China) and information given to the Australian Embassy by the travel company that had organised their travel to Australia.
  4. On 25 July 2008, the Tribunal wrote to each of the applicants, pursuant to s.424A of the Migration Act (RD(B) at 80-82; RD(S) at 76-78). The applicants each responded on 13 August 2008 (RD(B) at 91-94; RD(S) at 87-90).

Tribunal’s findings and reasons

  1. The Tribunal accepted that the applicants were each citizens of China but rejected the rest of their claims (RD(B) at 111 [34]-[35]; RD(S) at 106 [36]-[37]).
  2. The Tribunal found each of the applicants’ evidence “not credible”. The Tribunal did not accept the Applicants’ explanations for the discrepancies between:
    1. their respective evidence;
    2. their claims and the statement from the travel company (RD(B) at 111 [38]; RD(S) at 106 [38]).
  3. The presiding member referred to other reasons for rejecting the applicants’ accounts. He described these reasons as “other, more fundamental” with respect to the applicant-brother (RD(B) at 111 [39]) and as “additional” with respect to the applicant-sister (RD(S) at 111 [39]).
  4. Referring to the claim that the applicant-brother’s passport was obtained illegally, the Tribunal did not believe that a police trainee would risk his career (or his liberty (RD(S) at 106 [39]) for a short overseas trip.
  5. The Tribunal did not find it credible that, after years of training with the police, the applicant-brother would be so shocked by what he saw during interrogations that he, together with two colleagues, would start distributing pamphlets urging authorities to stop police violence (RD(B) at 113 [40]; RD(S) at 106 [40]).
  6. The Tribunal rejected each of the applicants’ claims (RD(B) at 113 [41]; RD(S) at 107 [41]). The Tribunal found that the applicants did not have a well-founded fear of persecution in China for a Convention reason (RD(B) at 113 [43]-[44]; RD(S) at 107 [43]-[44).
  7. The applications were heard concurrently before this Court. The applicants made separate, although related, protection visa claims and in each case, the findings and reasons of both the delegate and the Tribunal are, to a very large extent, the same. The applicants also advance similar grounds of judicial review.

The applications and evidence

  1. These proceedings began with show cause applications filed on 21 October 2008. The applicants now rely upon amended applications filed on 12 January 2009 and 19 January 2009 (in the case of SZMWE). The applicant-brother raises the following grounds of review:
  2. The applicant-sister raises the following single ground:
  3. In each case I received the affidavit of Sue Archer made on 22 December 2008 to which is annexed a transcript of the hearing conducted by the Tribunal on 24 July 2008. I also received as evidence the books of relevant documents filed on 27 November 2008 (in SZMWF) and 2 December 2008 (in SZMWE).

Submissions

  1. In the case of the applicant-brother, he alleges breaches of both s.425 and s.424A of the Migration Act. The applicant-brother submits:
  2. The applicant-sister’s submissions in relation to the asserted breach of s.425 of the Migration Act are similar, but not identical, to those of her brother. She submits:
  3. In both cases, the Minister relevantly submits as follows:

Reasoning

  1. In respect of the claim of breach of s.425 of the Migration Act, the Tribunal’s obligation was to ensure that the applicants understood the essential and significant issues upon which the review would turn. Where the delegate dealt with the applicants’ claim in a particular way, they were entitled to assume that the issues on review would be the same unless informed otherwise by the Tribunal. The delegate made the following findings in relation to the applicant brother’s claims[8]:
  2. It must follow from the above reasoning that the applicant brother was on notice that the general credibility of his claims was wholly in issue. Specifically, his claims about the distribution of leaflets hostile to the Chinese Communist Party was not accepted and an important issue was that the applicant left China on a passport issued to him in his own name well before he left China. Further, he left China legally and without difficulty. Also apparent from the delegate’s decision was the significance the delegate saw of inconsistencies between the applicant’s claims and other material.
  3. The Tribunal dealt with the applicant brother’s claims in the following terms[9]:
  4. In relation to the applicant sister, the delegate found[10]:
  5. The Tribunal found in relation to the applicant sister’s claims[11]:
  6. I accept the Minister’s submission that the applicants should have been on notice from the delegate’s decision that the issue of the brother’s passport was a significant one and (subject to anything the Tribunal might say about it) would be an essential and significant issue for the purposes of the review. Likewise, they should have identified the issue of the applicant brother’s asserted political activities as an essential and significant issue from the delegate’s decision.
  7. Further, I accept the Minister’s submissions that, in any event, the Tribunal did enough to raise these matters with the applicants at the hearing conducted by the Tribunal. The transcript of the Tribunal hearing discloses the following:
    1. early in the hearing the presiding member identified the particulars in the information received from the travel agent that were inconsistent with the information provided by the applicants[12]:
      • TRIBUNAL MEMBER: Now, I have some other information which I need to discuss with you. The company that organised your trip is called the China International Travel Service clinic /TKO*U and they have written a letter to the Australian embassy about you and your brother. And they say your applications were referred to them by a travel agency in Hunan and this occurred on 15 January. On the application form was your mobile telephone number and they telephoned you and you told them that you were helping your mother with seafood business in Fujian and you gave them your mother’s telephone number.
      • You were asked why your mother was in Fujian since the family came from Hubei and you told them that your parents worked in Hubei previously between 1999 and 2003 but that your parents had then moved to Fujian province where your mother was involved with her seafood business and your father worked in a company in Fujian city. And you gave the travel agency your father’s telephone number, or the telephone number of the company where your father worked.
      • They asked you whether there was anyone else in the family and you told them about another sister. They then asked you about your brother and you said that he had just graduated from the Police Academy in Jiangxi province and because this was the time of Spring Festival vacation he was at home waiting for a job.
      • They then telephoned your mother at the number that you had given them and she confirmed everything that you had told them. She then called the company where your father works and spoke to the manager who confirmed that your father worked there. They then asked to speak to him which they did and he confirmed also what you and your mother had told them.
      • Your father also said that he was looking forward to some time for the whole family to travel overseas together.
      • Now, all this is very different from what you have just told me and from what is in your application.
    2. the issue of the travel agent information and the passport information was raised again with the applicant sister by the presiding member on page 10 of the transcript at about point 7, on page 12 of the transcript at about point 3 and point 5, at page 13 of the transcript at about point 7, on page 16 of the transcript at about point 5 and the applicant sister had a further opportunity to respond on page 17 of the transcript at about point 4;
    1. the presiding member further questioned the applicant brother’s credibility in relation to the alleged overseas holiday on pages 18 of the transcript at about point 7 and on page 19 of the transcript at about point 4;
    1. on page 21 of the transcript at about point 3 the Tribunal member expresses general disbelief at the applicant brother’s attempts to explain the inconsistency between his evidence and that of his sister covering the information from the travel agency and again (with both applicants present) in relation to the claims generally at page 25 of the transcript.
  8. In my view, the combination of the delegate’s reasons in each case and the doubts and concerns raised orally by the presiding member during the course of the Tribunal hearing could have left the applicants in no doubt that the credibility of all of their claims was in issue and that, in particular, the credibility of their claims about obtaining a passport illegally in order to take a holiday and the applicant brother distributing anti-Communist leaflets was in issue. I reject the first ground of review.
  9. As to the asserted breach of s.424A in relation to the applicant brother, the letter written pursuant to that section is reproduced at RD(B) 80-82 and relevantly states:
  10. Once again, I accept the Minister’s submissions. The five dot points in the quote from the letter reproduced above adequately particularise the information from the travel agent’s letter, which the Tribunal viewed as significant. The Tribunal did not have to provide a copy of the letter or quote from it[13]. The Tribunal also explained how that information conflicted with the evidence of both the applicant brother and the applicant sister. Further, the eight dot points reproduced in the quoted portion of the letter above were sufficient for the Tribunal to ensure that the applicant brother understood the relevance of the information obtained from the travel agent. It is true that the letter was also directed towards the Tribunal’s doubts about the relationship between the applicant brother and applicant sister but that does not detract from the force of the letter in drawing attention in writing to the Tribunal’s doubts about the applicant’s claims of having obtained passports illegally and that the claims in their entirety had been concocted.
  11. I reject the second ground of review in the applicant brother’s application.
  12. I conclude that the Tribunal decisions are free from jurisdictional error and are thus privative clause decisions. The applications must be dismissed.
  13. I will hear the parties as to costs.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Driver FM


Associate:


Date: 20 March 2009

[1] SZBEL v MIMIA [2006] HCA 63; (2006) 228 CLR 152 at 165 , [42]
[2] Commissioner for ACT Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576 at 590-591 as approved in SZBEL at 162, [32], and SZBEL 165, [43]
[3] SZBEL 165, [44]
[4] Changes introduced by the Migration Amendment (Review Provisions) Act 2007, No.100 of 2007, commenced 28 June 2007.
[5] SZBEL v MIMIA [2006] HCA 63; (2006) 228 CLR 152 at 165 , [42]
[6] Commissioner for ACT Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576 at 590-591 as approved in SZBEL at 162, [32], and SZBEL 165, [43]
[7] SZBEL 165, [44]
[8] RD(B) 54-56
[9] RD(B) 111-112
[10] RD(S) 53-55
[11] RD(S) 106-107
[12] transcript, pp7-8
[13] SXRB v Minister for Immigration [2006] FCAFC 14 at [9]

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