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MIGRATION - Application to review decision of Refugee Review Tribunal - whether Tribunal failed to have regard to relevant considerations - whether Tribunal reached a decision that could not reasonably have been reached.

NAYH v Minister for Immigration [2004] FMCA 698 (6 October 2004)

NAYH v Minister for Immigration [2004] FMCA 698 (6 October 2004)
Last Updated: 8 November 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAYH v MINISTER FOR IMMIGRATION
[2004] FMCA 698



MIGRATION - Application to review decision of Refugee Review Tribunal - whether Tribunal failed to have regard to relevant considerations - whether Tribunal reached a decision that could not reasonably have been reached.



Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323

Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 197 ALR 389

Applicant:
NAYH



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SYG1469 of 2004



Delivered on:


6 October 2004



Delivered at:


Sydney



Hearing date:


6 October 2004



Judgment of:


Barnes FM



REPRESENTATION

Counsel for the Applicant:


Nil



Solicitors for the Applicant:


Nil



Counsel for the Respondent:


Mr R Bromwich



Solicitors for the Respondent:


Blake Dawson Waldron



ORDERS

(1) That the application is dismissed.

(2) That the applicant pay the respondent's costs set in the amount of $3,750.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SYG1469 of 2004

NAYH


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal handed down on 11 November 2003 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa. The applicant, a citizen of the Peoples Republic of China, visited Australia in June 2002 and then August 2002 and most recently came to Australia on 11 September 2002. On 24 September 2002 he lodged an application for a protection visa.

2. He claimed to fear that he would be harmed and mistreated by the Chinese Government due to his political dissent, opinions and actions. In a statement accompanying his application for a protection visa he explained that his claims were based on political activities, including his involvement in what he described as a democratic information centre. He referred in particular to activities of a friend of his, a Mr Lei, who had been arrested in May 1993 and imprisoned until 1998 and subsequently had involved the applicant in a plan to set up a pro- democracy information centre starting in March 2000.

3. The applicant provided details in relation to that organisation and its role and his involvement in obtaining and disseminating pro-democracy propaganda. He also described the circumstances in which he had uncovered a corrupt loan at the bank at which he worked. He described his visits to Australia and his dismissal from his employment. He claimed that in September 2002 he went to Mr Lei's company for a special meeting. He found a lot of police cars there, realised something might happen to them, returned home, asked his wife to destroy everything relating to the organisation and left the country. He claimed that immediately thereafter his wife had been detained by the Public Security Bureau (PSB) for investigation for two days. She had told him that his house had been searched by the police and that he had become the target of the government.

4. On 9 December 2002 a delegate of the respondent refused the application for a protection visa. The applicant sought review by the Tribunal. In connection with the review application he provided the Tribunal, through his migration agent, a signed statement. That statement, dated 8 January 2003, set out his claims in some detail and provided an explanation for his failure to provide documentary evidence in support of his claim. It took issue generally with the refusal of the delegate of the respondent to refuse to accept his claims.

5. The Tribunal held a hearing which the applicant attended. In its reasons for decision, the Tribunal sets out in some detail the applicant's claims and the evidence before it, including his original claims to the Department, the reiteration of those claims in the written submission to the Tribunal and the Tribunal account of what occurred in the Tribunal hearing. In particular the reasons provide an account of a discussion in the hearing of the absence of supporting evidence in which the Tribunal suggested that the applicant could have provided particular supporting documentation from a named person and he responded that he could not provide any written evidence. The Tribunal reasons for the decision also indicate that the Tribunal raised with the applicant some of the problems that the Tribunal was having with his claims, including concerns the Tribunal had about the credibility of some aspects of his claims.

6. The Tribunal accepted that the applicant was, as he described himself, a patriot who complained about the extent of corruption in China, in particular to business people with whom he came into contact as part of his work with the bank. The Tribunal noted that this was consistent with the independent evidence about the widespread nature of corruption in China, and that the authorities were making an attempt to fight it.

7. However, the Tribunal did not accept the applicant's claim that he was a key member of a dissident group in China. It had regard to a number of factors in reaching this conclusion, including the nature of his claimed activities (being to give printed information to people who shared his views), and his lack of knowledge as to the sources of such information. The Tribunal inferred that he did not, as he had claimed, read the information. The Tribunal also had regard to his apparent lack of familiarity with human rights or pro-democracy organisations and his failure to express concerns about political matters (except corruption) despite his claim to have been involved with the group for over two years. The Tribunal expressed doubts about his only other activity (his claim that he had brought various publications back to China which he had not read but had given to Mr Lei) but went on to say that even if he had done so, he did not claim that he was at any risk of harm as a result of so doing. The Tribunal found that the Chinese authorities did not know that the applicant had brought this material into China, hence the chance was remote in the extreme that he was at any risk of harm as a result.

8. The Tribunal also considered the applicant's claims that the Public Security Bureau (PSB) was interested in his activities and those of his friends. It concluded that it was unable to place any weight on the claim that the PSB had shown continuing interest in the applicant's whereabouts through his friends, in part because if the PSB had wished to monitor his activities it would have questioned his wife at some point in the year preceding the Tribunal decision. The applicant had claimed that the PSB had questioned his wife about him in September 2002 but not that she had been questioned since that time or that the PSB had come to his home in that time. The Tribunal considered that whatever the reason for Mr Lei's detention and the police inquiries at that time, the failure of the PSB to contact the applicant's wife for over a year or to visit the applicant's home, illustrated a lack of interest in his whereabouts and activities. This was consistent with the applicant's assumption that Mr Lei had given no incriminating information to the authorities about anyone else in the group.

9. The Tribunal found no objective basis for the applicant's fears. The sole basis for the applicant's claimed fear of arrest was that the police had questioned employees at the firms with which he did business prior to 2002, but he did not claim that he had become aware of any such questioning and there was no apparent basis for assuming that the police might have made such extensive inquiries about him. The Tribunal found there was no evidence before it that, even if the applicant had given information of a `political' nature to such people, the PSB was aware of this or that it intended to make any inquiries which might reveal it.

10. The Tribunal had regard to the fact that the applicant did not claim to have participated in any other anti-government activities in China during his life apart from those arising from his contact with Mr Lei from 2000 to 2002. Nor did he claim to have become involved in any activities of a political nature since arriving in Australia or claim that he wished or intended to express any criticism of the Chinese authorities in the future. The Tribunal was satisfied that he did not. It had regard to the relatively low level of political activity and to the fact Mr Lei was no longer in a position to give him the means to continue to distribute any printed materials. The Tribunal found that if he returned to China the applicant would not express views critical of the authorities in any manner which might give rise to a real chance of his being persecuted. The Tribunal concluded that the applicant did not have a well-founded fear of Convention-related persecution in the Peoples Republic of China.

11. The applicant filed an application in the Federal Court on 11 December 2003 and the matter was transferred to this Court on 10 February 2004. In his application he contended generally, without particularisation, that the Tribunal ignored parts of his claims in the statement attached to the application for the visa and that in doing so the Tribunal ignored relevant material or reached a decision that could not reasonably have been reached or reached a decision without reasonable or rational foundation amounting to jurisdictional error.

12. The applicant did not file written submissions, but repeated his claims in oral submissions, in particular, the claims set out in the written submission made to the Tribunal on 8 January 2003. However, in essence, as summarised by the respondent, the applicant's real complaint is not that his claims were not considered by the Tribunal, but rather that they were not accepted. He stated more than once that he wanted the Court to fully consider his situation. As was explained to him, this is not a re-hearing and as was put very clearly in the respondent's oral submissions, merits review is not available in this Court.

13. When asked to clarify the way in which the Tribunal failed to take into account parts of his claims, the applicant took issue with the Tribunal's conclusion that he did not face a real chance of harm in the future in China. He submitted generally that the Tribunal did not take into account all of his claims and referred to the particular issue of his wife having been detained by the police for two days in September 2002. This claim again takes issue with the Tribunal factual findings. It does not establish jurisdictional error.

14. The applicant is self represented and I have considered all of the material before me to determine whether any jurisdictional error is apparent. However, on the material before me I am not satisfied that there is any factual basis for the applicant's claim that some parts of his claims were overlooked.

15. The Tribunal is not obliged to set out word for word each and every factual claim by an applicant in its reasons. (See MIMA v Yusuf (2001) 206 CLR 323 at [68]-[69]). The Tribunal has set out and dealt with facts that it considered material in making its decision. In particular it set out the applicant's claims about what occurred to his wife, that he was unable to contact her until 15 September 2002 because she was detained for two days by the police, that she told him their home had been searched by the police and that he had become the target of the government. It is also apparent from the Tribunal reasons for decision that in the Tribunal hearing the issue of his wife was discussed with the applicant. The reasons record that he said that during his last couple of days in China his wife was called into the PSB for two days. She was asked where he was and had said that she did not know but that he had gone travelling in China looking for work. The Tribunal accepted the applicant's claims that the PSB questioned his wife about him in September 2002 but found it possible that if Mr Lei was detained at that time the PSB might have wished to question various people associated with him. This addresses this aspect of the claims in so far as material. The applicant had also told the Tribunal that his wife had not been questioned again. It was the absence of any further contact between the PSB and the applicant's wife that the Tribunal relied upon in considering the well-foundedness of the applicant's fear of persecution. The Tribunal found that the failure of the PSB to contact the applicant's wife for over a year or to visit his home again, illustrated a lack of interest in his whereabouts and activities. It cannot be said that the Tribunal failed to take into account this aspect of the applicant's claim.

16. For the applicant to succeed in these proceedings on the basis contended, he must establish that something was overlooked and that it was something more than a mere factual assertion, the ignoring of which would amount to no more than a factual error, such that what had been overlooked extended to the point of affecting the nature of the claim that he made: Dranichnikov v MIMIA (2003) 197 ALR 389. This has not been established. On the evidence before me I am not satisfied that the Tribunal has failed to take into account the integers or elements of the applicant's claim. In this respect I note that the applicant described his earlier activities, such as caring for Mr Lei's father during Mr Lei's imprisonment. However the claimed basis for his fear of persecution was his activities with Mr Lei and in connection with the pro-democracy organisation from 2000 to 2002 and the Tribunal dealt with these claims in its consideration of whether or not it accepted that he was a key member of a dissident group in China.

17. The applicant also took issue with the Tribunal's reliance on his failure to provide written evidence. The applicant had provided some explanation for the absence of written evidence in his written submission to the Tribunal. In the course of the hearing the Tribunal raised its concern about the absence of written evidence, given the potential availability of a particular person who had visited Australia. It gave the applicant an opportunity to address the Tribunal concerns in this respect as well as the broader issue of the absence of supporting documentation. The Tribunal did note that it had drawn to the applicant's attention that it found it difficult to understand why, if his friend who had visited Australia before the hearing had been questioned by the police, his friend might not have provided documentary evidence in support of his application and found that this was a factor that led it to conclude that it was unable to place any weight on the claim that the authorities had shown any continuing interest, through his friends, in the applicant's whereabouts. No jurisdictional error is apparent in the Tribunal findings in this respect.

18. Moreover, it is apparent from the Tribunal reasons for decision that the absence of supporting documentation was not the sole reason for the Tribunal rejection of the applicant's claims to fear persecution as a key member of a dissident group in China. The Tribunal also had regard to factors such as the fact that his wife had not been questioned at some point in the past year. The Tribunal's findings in relation to the credibility of the applicant's claims are matters for the Tribunal, par excellence. Provided those findings are open to the Tribunal on the material before it, no error is demonstrated. The fact that the applicant takes issue with the conclusions of the Tribunal, does not establish that the Tribunal fell into jurisdictional error. Nor am I satisfied that it did so.

19. It has not been established that the Tribunal reached a decision that could not reasonably have been reached. Even if such an error is capable of amounting to a jurisdictional error, something which it is not necessary for me to determine in these proceedings, I am not satisfied that the ultimate decision is not one that could not reasonably have been reached having regard to the factual findings of the Tribunal and the material before it. Similarly, there is no basis for the general claim that the Tribunal reached its decision without reasonable or rational foundation.

20. The applicant also claimed generally in oral submissions that the Tribunal was not familiar with how things were in China. He described something of his view of the situation in China. However, it is for the applicant to establish his case before the Tribunal. His claim that the situation in China is not as understood by the Tribunal does not establish that the Tribunal made a jurisdictional error on the material before it. There was no suggestion that the Tribunal failed to take into account any material put to the Tribunal by the applicant or his migration agent about the situation in China.

21. Finally, the applicant claimed generally that he was denied procedural fairness, as the Tribunal had not thoroughly and fairly considered his application. The applicant's complaint in this regard is a complaint that his claims were not accepted. The factual assessment of his case is a matter for the Tribunal. There is nothing in the material before me to suggest any lack of procedural fairness. I am not satisfied that any jurisdictional error has been established and the application must be dismissed.


RECORDED : NOT TRANSCRIBED

22. The applicant has been unsuccessful and the respondent seeks that he meet the costs of these proceedings. There is nothing in the material before me to warrant a departure from the normal rule that an unsuccessful applicant should meet the costs of the respondent. In light of the nature of this and similar matters I consider that the amount of $3,750 is appropriate.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 29 October 2004.
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