FEDERAL COURT OF AUSTRALIA

SZECH v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 246

MIGRATION – judicial review – whether detention of appellant amounted to persecution for a Convention-related reason – whether appellant’s fear of persecution was well-founded – whether Refugee Review Tribunal required to notify appellant of country information – Migration Act 1958 (Cth) s 424A(3)(a)

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth) ss 91R, 422B, 424A, 441A

Minister for Immigration and Multicultural Affairs v Singh (2002) 209 CLR 533 cited

Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 applied

WAJW v Minister for Immigration and Indigenous and Multicultural Affairs [2004] FCAFC 330 cited

SZECH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 17 of 2005

SACKVILLE J

SYDNEY

15 MARCH 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

the appeal

1                     This is an appeal from a judgment of the Federal Magistrates Court delivered on 9 December 2004.  In that judgment, the learned Magistrate dismissed an application under s 39B of the Judiciary Act 1903 (Cth) seeking to challenge a decision of the Refugee Review Tribunal (‘RRT’) handed down on 28 June 2004.  The RRT had refused the appellant’s application for a protection visa.

2                     The appellant, who is a citizen of the Peoples Republic of China (‘PRC’), was apparently assisted by a migration agent in his application to the RRT.  However, the appellant was unrepresented at the hearing before the Magistrate.  He also appeared on his own behalf on the hearing of the appeal, although he seems to have received some assistance in connection with the preparation of the notice of appeal.  The appellant did not file any written submissions.

background

3                     The appellant arrived in Australia on 24 February 2004 on a visitor’s visa.  On 3 March 2004, the appellant lodged an application for a protection visa.  That application was rejected by a delegate of the respondent (‘the Minister’) on 10 March 2004. 

4                     The appellant sought review of the delegate’s decision in the RRT.  On 27 May 2004, the appellant attended a hearing before the RRT.  As I have noted, the RRT affirmed the delegate’s decision.  The appellant’s subsequent application to the Magistrates Court was dismissed.

5                     The appellant is an ethnic Chinese who was 48 years of age at the time of the RRT’s decision.  He claimed to fear persecution in the PRC by reason of his actual or imputed political opinion.

6                     The appellant claimed that he had been unemployed from September 1973 until December 2002.  He said that in the latter month he signed a labour contract with the Kaifeng Municipal Construction Corporation (‘the Corporation’) as a labourer to build a new highway.  He said that the working conditions were difficult and dangerous.  According to the appellant, on 31 March 2003 he and his fellow labourers were informed that their jobs had been completed and that a professional construction team would be taking over.  Despite repeated requests, they were denied the payments due to them. 

7                     The appellant claimed that on 8 May 2003, following a meeting at his home, about one hundred labourers surrounded the Corporation’s offices demanding payment of the moneys owing.  The senior managers of the Corporation refused to negotiate with the protestors.  This refusal caused the protestors to lose control and they ‘rushed into the office of the General Manager and also had big fighting with [security personnel]’. 

8                     The appellant said that these actions prompted the Corporation to negotiate and in mid-May 2003 an agreement was reached for the payment of overdue salaries in three instalments.

9                     The appellant said that in mid-July 2003 two of the organisers of the demonstration, Mr Liu and Mr Li, were arrested for organising an illegal gathering and demonstration.  He later heard that they had been apprehended as a result of collusion between the Corporation and the authorities and had confessed under inhumane torture. 

10                  The appellant claimed that he decided to organise a demonstration to protest about the treatment of Mr Liu and Mr Li.  Accordingly, on 1 August 2003, he led more than one hundred labourers in the main street of Kaifeng City in front of the Public Security Bureau (‘PSB’) building and demanded their release.  According to the appellant, he was arrested the next morning by the police and detained by the PSB until 30 September 2003.  He refused to make a confession even though he was physically and mentally tortured.  He obtained his release through the intervention of a friend and his wife, and subsequently continued his efforts to secure payment of the amounts due from the Corporation. 

11                  The appellant said that he was told that the PSB would set a new trap for him and that he managed to leave the country before being arrested. The appellant claimed that he feared he would be arrested if he returned to the PRC and sentenced to many years imprisonment by reason of his political opinions.

the rrt’s decision

12                  The RRT noted that the applicant’s evidence at the hearing was inconsistent with the statement in his visa application that he had been unemployed between 1973 and 2002.  The RRT considered that the inconsistencies indicated that the appellant’s evidence was unreliable and adversely affected his credibility. 

13                  Nonetheless, the RRT accepted that the appellant had been involved in the events that he described, specifically that he participated in a demonstration and forceful invasion of the Corporation’s office and in an attack on security guards.  The RRT also accepted that as a result of this violent incident, the appellant was held for two months ‘for his participation in these events, including the attack on the security guards’.  The RRT, however, was not satisfied that this detention for nearly two months was ‘serious harm amounting to persecution for a Convention related reason’.

14                  In support of this finding, the RRT observed that although the appellant had claimed in his original application that he had been physically and mentally tortured while in detention, he did not repeat those claims at the hearing despite being given the opportunity to do so.  This was so even though he had made a point of claiming that Mr Li had been tortured in detention and had died shortly after his release because he had become ill during his detention.  Nor had the appellant provided any medical evidence of physical or mental abuse such as a doctor’s certificate or even letters from relatives or friends.  While the appellant had claimed that he was unable to provide any documents because he had been treated as a political dissident, the RRT was satisfied that if he had been subjected to serious harm amounting to persecution for a Convention-related reason, he would have been able to produce some corroborative material.

15                  The RRT recorded that it had put to the appellant a number of matters, including the fact that he had been a construction worker for most of his life with no leadership experience or qualifications, and that he had been detained for his involvement in a demonstration that had turned violent.  The RRT said to the appellant that in view of these matters it did not accept that he had been persecuted and asked him why he claimed to fear persecution upon his return to the PRC.  The appellant replied that he would be arrested by the PSB in relation to the same case. 

16                  The RRT also recorded that it had stated at the hearing that the fact that the appellant was able to leave the PRC lawfully only five months after being released from detention using a passport in his own name, indicated that he was of no interest to the authorities.  The RRT put to the appellant country information that indicated that there had been many labour demonstrations involving thousands of people and legal reforms over recent years, but only high profile leaders had experienced difficulties.  The appellant was also asked to comment on the fact that the Constitution of the PRC had been amended in March 2004 to stipulate respect and safeguards for human rights.  The appellant had responded that there was a difference in the PRC between what people said and what they did.  He believed he had been released just in time and otherwise would have been charged and sentenced.

17                  The RRT accepted independent country information about exit procedures and Chinese passports.  This information indicated that those whose departure from the PRC  would be harmful to state security would not have been able to leave, given the stringent border checking in that country.  Further, the RRT did not accept, as the appellant claimed, that the position was different for somebody whose activities were local to Kaifeng City.  It was satisfied that if the appellant was of any interest to the authorities in the PRC (including the police and the PSB) they would have cancelled his passport, put him on their alert lists at all airports, and not allowed him to leave the country.  Even if the appellant’s release from detention had been arranged by his friend or had been effected by a bribe, the fact of his having been held in detention because of perceived anti-government activities would have been known to the authorities.  In those circumstances, they would have taken steps to prevent him leaving the PRC. 

18                  The RRT concluded as follows:

‘In short, while accepting that the [appellant] was involved in a violent demonstration and spent some time in detention because of it, the [RRT] is satisfied that this was not serious harm amounting to persecution for a Convention reason or that the [appellant] is of any interest to the authorities in China for a Convention related reason and so is satisfied that [he] does not have a well-founded fear of serious harm amounting to persecution for a Convention reason if he returns to China’.

the magistrates court’S decision

19                  The Magistrate delivered an ex tempore judgment, which was revised from the transcript. 

20                  The Magistrate expressed concerns about the RRT’s finding that the appellant had not suffered serious harm amounting to persecution for a Convention related reason.  His Honour expressed the view that the RRT would have misunderstood the effect of the Convention relating to the Status of Refugees if it had characterised the appellant’s detention without charge for a period of two months as incapable of amounting to ‘persecution’.  The Magistrate said that the mere fact that the detention was not attended by physical or mental torture (as the RRT had found) could not prevent the deprivation of liberty constituting ‘serious harm’ for the purposes of s 91R(2) of the Migration Act 1958 (Cth) (‘Migration Act’).  If the RRT had based its decision on such an assumption, his Honour considered that it would have made a serious error of law.

21                  The Magistrate accepted that there was an ambiguity in the RRT’s reasons.  The RRT might not have intended to convey that the appellant had not suffered persecution.  Rather, it may have intended to distinguish between detention for political reasons and detention by reason of the appellant’s participation in a violent attack on the Corporation and its security personnel.  In his Honour’s opinion there was still a difficulty in discovering why the RRT had excluded a political reason as explaining the appellant’s conduct and the response by the Chinese authorities.  If the RRT had thought that it was enough to characterise the detention as justified under the general criminal laws of the PRC, without addressing whether there was a political motivation on the part of the appellant or whether the response of the authorities was politically motivated, the RRT would have erred.  The RRT pointed out that the Convention itself recognises that protection might be afforded to someone who has committed non-serious ‘political’ crimes, citing Minister for Immigration and Multicultural Affairs v Singh (2002) 209 CLR 533 (a case concerned with Art 1F(b) of the Convention).

22                  The Magistrate considered that he did not have to decide whether the RRT had made these errors.  This was because the RRT’s reasoning demonstrated that it had proceeded on the assumption that the events accepted by it did have a political flavour and thus any persecution in respect of the appellant’s conduct could have been for a Convention reason.

23                  In the Magistrate’s opinion, the RRT had addressed the appellant’s claim to fear persecution on the assumption that his actions had a political flavour.  The RRT, however, had not been satisfied that any of the appellant’s fears were well-founded.  It reached this conclusion on the basis of the independent country information and the ease with which the appellant had left the PRC, using his own passport so soon after his release from detention.  Thus, even if the past events had involved some political element, the RRT had concluded that the appellant’s claimed fear of persecution was not well-founded.  The Magistrate held that by giving a second reason for affirming the delegate’s decision, the RRT had exercised its jurisdiction according to law.

24                  The Magistrate referred to other arguments that had either been raised by the appellant or had been identified in the particulars or at the hearing.  These fell into three categories.

(i)                  The first complained about the RRT’s failure to give weight to various factual matters.  The Magistrate held that these were merely complaints about the merits of the RRT’s decision and did not go to its legality.

(ii)                The appellant had contended that there was a failure to comply with the requirements of s 424A(1) of the Migration Act in relation to the country information relied on by the RRT, in particular concerning its procedures for Chinese citizens leaving the PRC.  The appellant complained that he had not been shown the information and had not been given an opportunity to comment on it before the RRT reached its decision.  The answer to this contention was that the information was excluded from the RRT’s obligation to invite comment by reason of s 424A(3)(a) – that is, the information was ‘not specifically about the [appellant] or another person and [was] just about a class of persons of which the [appellant] or other person [was] a member’.

(iii)               The RRT had failed to follow practices advised in several paragraphs of the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status.  None of those contentions had been made out.

the notice of appeal

25                  At the hearing of the appeal, the appellant did not elaborate on the grounds stated in the notice of appeal.  The notice of appeal appears to raise three grounds, as follows:

(i)                  The Magistrate had failed to give appropriate weight to the fact that the RRT had ‘distorted’ the appellant’s claims.  He had never been involved in any violent activities; rather, his activities had been political in character.

(ii)                The RRT had failed to provide the appellant with the complete country information upon which it ultimately relied, either before or at the hearing.  The RRT had given the appellant some country information at the hearing, but it was impossible for him to understand this clearly because the interpreter could not understand it himself.  Accordingly, the appellant had been denied the opportunity to comment on the RRT information.

(iii)               The RRT had failed to provide the appellant with the country information by one of the methods specified in s 441A of the Migration Act.

reasoning

26                  I do not understand the RRT’s reasons in quite the same way as the Magistrate.  On a fair reading of the reasons, I do not think that the RRT took the view that detention without charge for a period of time is incapable of amounting to persecution.  Nor was the RRT suggesting that the absence of physical or mental torture necessarily takes detention outside ‘serious harm to the person’ within the meaning of s 91R(1)(b) of the Migration Act.

27                  In my view, the RRT was merely making a factual finding that in the circumstances of the case the detention of the appellant did not constitute ‘persecution’ in the relevant sense.  The appellant’s case, at least as presented in his application, was that he had been detained in consequence of a political protest at the offices of the Corporation and that he had been tortured while in detention.  It is clear that the RRT did not accept that the appellant had been tortured while in detention.  It made this finding not only because it thought the appellant’s evidence to be unreliable, but because the appellant had not repeated his claims of torture at the hearing despite being given the opportunity to do so.

28                  It also seems clear enough that the RRT took the view that the appellant had been detained because (consistently with his own claims) he had participated in a violent invasion of the Corporation’s office and in an attack on security guards.  The reasons are not free from ambiguity, but a reading not ‘finely attuned to the perception of error’ suggests that the RRT intended to find that the detention was by reason of violent criminal conduct, rather than in consequence of a perception by the authorities that the appellant held a particular political opinion or had participated in a political protest.  This reading is confirmed by the following passage in the reasons:

‘Notwithstanding these claims, the Tribunal is satisfied that if he had been subjected to serious harm amounting to persecution for a Convention related reason (his actual or imputed political opinion because of his involvement in the demonstrations as opposed for example to being held in detention for involvement in a violent attack of a company office and its security personnel), the [appellant] would have been able to either bring out some corroborative documents or even have had them sent to him after his arrival in Australia, but accepts that he has not done so.’ (emphasis added)

This passage explicitly distinguishes between detention by reason of actual or imputed political opinion and detention by reason of the appellant’s involvement in a violent attack on the offices of his employer.

29                  I do not think that the RRT, in reaching this conclusion, was ruling out the possibility that a person might engage in ‘criminal’ conduct for political reasons or that he or she could suffer serious harm through sanctions imposed for that conduct.  I interpret the RRT’s reasons as finding that the appellant’s detention was not imposed as a sanction for his actual or imputed political opinion, but for his participation in violence directed at the Corporation and its security officers.  The RRT was influenced by the fact that the appellant had no leadership experience or qualifications and had only been previously involved in a few relatively small demonstrations.  The references to these matters suggest that the RRT considered that the detention was not punishment inflicted by reason of the appellant’s political opinions.

30                  This is not to say that the RRT’s reasons are necessarily convincing in every respect.  In particular, it seems odd to place such emphasis on the absence of corroborating documents when the appellant claims to have suffered detention and torture for reasons of political opinion (although this is far from the only RRT decision placing such weight on corroborative documents).  But this is a matter going to the merits of the RRT’s fact-finding and cannot constitute a jurisdictional error justifying the grant of relief pursuant to s 39B of the Judiciary Act.

31                  In any event, I think that the Magistrate was correct to understand the RRT’s reasons as making findings that provided an independent basis for affirming the delegate’s decision.  The RRT explicitly stated that it was not satisfied that the appellant’s asserted fear of persecution in the PRC was well-founded.  In my opinion, the Magistrate correctly understood the RRT to have proceeded on the basis that if the appellant was truly of interest to the authorities because of his political activities or any other reason, he would not have been permitted to leave the PRC.  Since he was permitted to leave under his own name, the RRT was not satisfied that the authorities had any continuing interest in him.  Accordingly, it was not satisfied that there was an objective basis for his asserted fear of persecution on his return to the PRC.  It follows that even if there was an error in the RRT’s refusal to characterise the appellant’s period of detention as persecution, it was immaterial to the RRT’s decision.

32                  The appellant’s reliance on s 424A of the Migration Act presupposed that that provision applied to the country information relating to exit procedures in the PRC and the attitude of the authorities to political dissidents.  Section 424A provides as follows:

‘(1)      Subject to subsection (3), the Tribunal must:

(a)          give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)         ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and

(c)          invite the applicant to comment on it.

(2)       The information and invitation must be given to the applicant:

(a)     except where paragraph (b) applies—by one of the methods specified in section 441A; or

(b)          if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

(3)       This section does not apply to information:

(a)     that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b)     ...

(c)     ...’.

33                  In Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264, a Full Court held that the exception in s 424A(3)(a) contains only one criterion, namely that the information is not specifically about the applicant or another person.  The reference to ‘a class of persons of which the applicant or other person is a member’ is merely intended to:

‘underline the specificity required by precluding any argument that reference to a class could be taken as a reference to all individuals (including for example, an applicant), falling within it’:

at [138], per Merkel and Hely JJ; at [67]-[71], per Beaumont J; see also WAJW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 330, at [44]-[45], per curiam.  On the reasoning in NAMW, s 424A(1) of the Migration Act does not apply to the country information on which the RRT relied, which was not specifically about the appellant or another person.

34                  No further issue concerning procedural fairness arises.  As the Magistrate pointed out, s 422B states that s 424A:

‘is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.’

In any event, the RRT’s reasons show that it explicitly put the relevant country information to the appellant and invited his comments.  Although his notice of appeal asserts that he did not fully understand what was being said and had insufficient opportunity to respond, there was no evidence of these matters before the Magistrate and no finding to that effect made.  In particular, there was no evidence that the translation was imperfect, nor that there was any material the appellant wished to produce or could have produced to counter the country information relied on by the RRT.  Moreover, the substance of the country information relied on by the RRT had also been relied on by the delegate, whose written reasons for refusing to grant a visa had been provided to the appellant.

35                  Any other criticisms by the appellant of the RRT’s decision went only to the merits of its findings of fact.  No jurisdictional error has been shown.

conclusion

36                  The appeal must be dismissed.  The appellant must pay the respondent’s costs.

Associate:

Dated:              15 March 2005