FEDERAL COURT OF AUSTRALIA

SZOXP v Minister for Immigration and Citizenship [2011] FCA 923

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1    This is an appeal from the decision of the Federal Magistrates Court refusing the appellant constitutional writ relief in respect of a decision of the Refugee Review Tribunal given on 7 December 2010 that affirmed a decision of the delegate of the Minister not to grant the appellant a protection visa: SZOXP v Minister for Immigration [2011] FMCA 352.

The appellant’s claims

2    The appellant, who is a citizen of the People’s Republic of China, claimed to have been a businessman who became associated with an entity described as Department Two of the General Staff Headquarters of the People’s Liberation Army of the Republic of China in 2001. He claimed that Department Two acquired shares in one of the companies that he and another person, Yan Zhongmin, had established and from that time, his company “was officially under the leadership of Department Two”. He claimed that the role of Department Two was military intelligence gathering, which required cover provided by businesses and funding from different sources. He claimed that that explained why unofficial staff members, such as he claimed to be, were mainly chairpersons or directors or legal representatives of boards of companies in which Department Two had an interest.

3    The appellant claimed that Mr Yan became an official member of Department Two, but that he, the appellant, was forced to become an unofficial member. He claimed that unofficial members of Department Two were persecuted by it using the pretext of commercial disputes or the punishment of crimes. The appellant claimed that he had been threatened with death, punishment and imprisonment and that threats had been made towards himself, his former wife and child. He claimed that although he was, at times, able to thwart the corrupt practices of Department Two, as a result of his fear of it, he had no choice but to “bow down” to it and to bribe several persons. He claimed that in this way he was also forced to be involved in various illegitimate dealings in order to acquire assets and money for the benefit of Department Two.

4    Central to these claims was the appellant’s assertion that he had been coerced and threatened by Department Two to bribe a vice president of the Hainan branch of the Bank of China with USD200,000 for which he is now wanted on a warrant issued by the Chinese authorities through Interpol. The appellant claimed that since 2001, he had been threatened by, and forced to follow the instructions of, Department Two and had been persecuted by its operatives in a manner that was planned, organised and targeted. He claimed that these threats and the coercive actions had occurred because of his repeated defiance of the instructions from Department Two and his different political views. The appellant claimed that he had fled to Australia to escape the persecution of Department Two and in order to do so, he had used the ostensible purpose of establishing a timber business. He claimed that he had been hiding in Australia and his intention was to remain here on business visas, but that those plans only changed in early April 2009 when he discovered that an Interpol red notice had been issued for his arrest on a charge of bribing the bank vice president.

5    He claimed that although he had travelled frequently throughout Asia and Papua New Guinea since his arrival in Australia, his purpose in doing so was to renew his temporary business visas, to obtain documentation and to escape the persecution of Department Two. He claimed that the Interpol red notice had been issued in an attempt to have him removed to China and to hide conduct of Department Two from the international community. He claimed that Department Two was concerned that his knowledge of information about its corrupt and immoral dealings posed a direct threat to senior persons and leaders. The appellant claimed that those persons in Department Two wanted to ensure that he would be reindoctrinated and made an example to others who might dare to escape from Department Two. He claimed that he was a scapegoat for Department Two and if forced to return to China, he would be punished extra-judicially and executed because he knew the truth about illegal and corrupt dealings by Department Two.

The tribunal’s findings

6    The tribunal accepted that the appellant only became aware of the Interpol red notice published on 8 August 2007 when the department sent him a notice on 8 April 2009 of its intention to consider refusing his application for a subclass 457 visa.

7    The Interpol red notice referred to the appellant having been the subject of a warrant issued by the judicial authorities in China on 1 June 2007 for his arrest in respect of an alleged offence of bribery under Article 393 of the Criminal Law of China and that the maximum penalty for the offence was five years imprisonment. The notice indicated that the appellant’s extradition to China would be requested from any country with which it was linked by bilateral extradition treaty. The notice alleged that the appellant bribed the director general of the Hainan branch of Bank of China with USD200,000 in order to obtain a loan of CNY123 million, (the equivalent of about 12.3 million euros) of which about CNY117 million was still owed to the bank.

8    The appellant’s claims were, I think it fair to say, comprehensively disbelieved by the tribunal. It did not accept any of them and found that he was an untruthful witness who had manufactured a complex and convoluted set of claims in an attempt to establish that there was a political motivation for the issue of the arrest warrant and the Interpol red notice against him. The tribunal said at [97] that it was:

“… strongly of the view that the [appellant] was a senior businessman in China who became involved in corrupt business dealings, which on his own evidence, is not an uncommon practice in China. The Tribunal considers that the [appellant’s] involvement in bribing the Vice President [of the Bank of China] was discovered as part of investigations into a series of bribes taken by [that person] and the [appellant] is now being sought for prosecution in relation to his role in that [bribery].”

9    The tribunal found that the appellant had resided in Australia since 2006 on temporary business visas for the purpose of establishing business interests and pursuing those interests in Singapore, Cambodia and Papua New Guinea. It rejected his claim to have resided here because he was in hiding in Australia to escape from Department Two.

10    The tribunal found that following the receipt of the department’s notice of intention to consider refusing his visa application in April 2009, the appellant had manufactured a set of lengthy, detailed and elaborate claims relating to his involvement with Department Two and had attempted to rely on numerous documents related to commercial business and other matters in an attempt to create a political dimension to his claims. It found that:

“… the [appellant’s] motivation in lodging the application for protection is to avoid the penalty of five years imprisonment for his involvement in bribing the Vice President of the Hainan branch of the Bank of China.”

11    The tribunal set out lengthy and detailed findings and reasons for coming to those conclusions. These included its findings that:

“The Tribunal is strongly of the view that the [appellant] has constructed a highly fictitious account of his business dealings and circumstances in China in an attempt to create a profile for himself as an unofficial member of Department Two who is sought by the Chinese Government. … The Tribunal is strongly of the view that the [appellant] has attempted to create a profile of himself as an “unofficial agent” of “Department Two” because his real circumstances disclose that he was in fact a senior businessman who was given positions of considerable seniority and responsibility who was travelling extensively throughout Europe and Asia conducting business on behalf of companies he had established with Yan Zhongmin and others, and that his personal circumstances did not in any way indicate that he was in hiding in Australia.

In the context of the highly adverse findings above, the Tribunal does not accept that the [appellant] was forced to undertake corrupt business transactions, including bribing the Bank of China for USD200,000 [sic] and considers that he did so in order to advance his own personal interests and the business interests of the companies with which he was associated. The Tribunal does not therefore accept that the [appellant] bribed the Vice President of the Bank of China because he was coerced to do so and considers that he did so only because it advanced his own interests and those of the companies in which he was involved.”

12    The tribunal then said that it was unable to determine whether Department Two existed or whether it was fictitious and created by the appellant as part of an elaborate attempt to create a political profile for himself. It observed that it was unnecessary for it to reach a definitive finding in relation to that issue. This was on the basis that, even if such an agency or department existed within the People’s Liberation Army, the tribunal did not accept that the appellant was a member of Department Two in an official or unofficial capacity and that, as he claimed, he left or fled China because he was seeking to avoid any further involvement with Department Two or persons whom he claimed to be associated with it. It said that it:

“… is satisfied therefore that the [appellant] was not a member of a ‘particular social group’ of official or unofficial agents of Department Two. The Tribunal does not accept any of the [appellant’s] claims relating to the manner or reasons for the issuing of the Interpol Red Notice.”

13    The tribunal concluded that the arrest warrant and Interpol red notice had been issued simply because the appellant was alleged to have breached the criminal laws of China and not because of any supposed involvement he had with Department Two. The tribunal also rejected the appellant’s claim that if he were in prison he would be specifically targeted by persons connected to Department Two or the General Staff Headquarters. It was satisfied that he was sought in China only because he was wanted for prosecution in relation to a criminal matter, being the offence of bribery, and that the sole reason for the Interpol red notice was to alert authorities here of this alleged criminal conduct, to ensure that appropriate action was taken. It was satisfied that the notice had not been issued for a Convention reason. Also, it was not satisfied of the appellant’s claim that the notice had been issued in a manner that was persecutory in either its application or intent. The tribunal found that it was not satisfied that the appellant had suffered harm in China for reasons of his actual or imputed political opinion or membership of a particular social group or for any other Convention reason.

14    The Tribunal was not satisfied that there was a real chance that the appellant would face harm in China for reasons of his political opinion or imputed political opinion or the membership of a particular social group or for any other Convention reason if he returned to China now or in the reasonably foreseeable future. Thus, it rejected his application on the basis that it was not satisfied that he had a well-founded fear of persecution.

The November 2008 emails

15    In arriving at those findings, the tribunal, among other things, considered emails that the appellant had attached to his documentation in support of his claim. These included attachment 18 that, in his description, was “evidence of Yan Zhongmin holding shares on behalf of the General Staff Headquarters.” The attachment consisted of two emails in Chinese characters and their English translation that had been sent on 8 and 9 November 2008, about six months before the appellant learned of the Interpol red notice.

16    The appellant claimed to have been the author of the email of 8 November 2008. It was in somewhat cryptic language, but referred to communications with “Big Brother Yan.” The tribunal inferred that that was a reference to Yan Zhongmin. The reply dated 9 November 2008 came from “younger brother Peng”. It asserted that Mr Yan was passing a message on to the appellant that concerned one of the companies in the timber businesses in which the tribunal found both Mr Yan and the appellant were involved. The email asserted that the People’s Liberation Army General Staff Headquarters had held its interest in this company through Mr Yan.

17    In its reasons at [117] the tribunal referred to this email, saying that while the email referred to the surname of the appellant and the General Staff Headquarters:

“… [its] content and the source of the author is otherwise unclear. The Tribunal is not satisfied that this email, dated several months after the [appellant] claimed to have been involved with Department Two, establishes that the [appellant] was involved with Department Two as an unofficial agent who was forced to engage in bribes.” (emphasis added)

The emphasised part of this reasoning of the tribunal formed the basis of one of the appellant’s grounds for relief before the trial judge and on this appeal.

The proceedings before the trial judge

18    The trial judge dealt with the essential arguments put in support of the amended application which had been prepared by the appellant’s legal advisers who had acted for him prior to their withdrawing in advance of the hearing. That asserted that the tribunal made two jurisdictional errors centred around the chronology and dates of emails that the appellant had relied on in support of his claim to be involved with Department Two and that this entity, in fact, existed. This arose in the context that the tribunal’s findings included a finding that it did not accept that the appellant feared harm in China as a result of any involvement with Department Two and considered that he had manufactured the entirety of those claims.

19    The central issues before his Honour were whether the 9 November 2008 email established the appellant’s involvement with Department Two and whether the tribunal had made jurisdictional errors because it mistakenly treated this email as having been created or dated after, rather than before, the appellant became aware of the Interpol red notice and warrant. The other issue before the trial judge was whether the tribunal committed a jurisdictional error when it failed to determine whether Department Two existed at all.

20    The trial judge found, and I agree, that the emphasised statement in the critical sentence in [117] of its reasons quoted above was ambiguous. He said:

“It was not clear whether the tribunal was asserting that the email had been dated before or after the appellant claimed to have been involved with department or had made his claim for a protection visa.”

21    His Honour noted that in the Chinese language original of the emails, a date of 4/8/2009 (meaning 8 April 2009 using the United States method of dating) appeared at the bottom of the page, indicating when the emails were printed out, being the day on which the appellant received the department’s notice indicating its intention to consider refusing his business visa application. Ultimately, his Honour concluded that even if the tribunal was in some sense mistaken about the dates, or purported dates, of the emails that were reproduced in the material before it, that mistake did not amount to a jurisdictional error. He found that the tribunal accepted that Mr Yan might have held shares in the company referred to in the email of 9 November 2008 on behalf of the Chinese Government. In that sense, the tribunal had accepted at least part of what the appellant claimed the emails established. Nonetheless, his Honour observed that the tribunal’s adverse credibility findings against the appellant were not dependent upon any particular view as to the date of the emails in question or when he had accessed them for the purposes of making his claim to protection.

22    Next, his Honour dealt with the other ground that complained of the tribunal’s failure to make a finding as to the existence or otherwise of Department Two. The trial judge held that even if Department Two had existed, the tribunal’s failure to find that as a fact had no impact on its decision. This was because the tribunal made clear findings that, even if such an agency existed, the appellant was not a member of it in an official or unofficial capacity or that he had left or fled China in order to avoid any further involvement with it. Accordingly, his Honour dismissed the application.

This appeal

23    The appellant represented himself before the trial judge but has been represented before me by counsel. Although his notice of appeal departs somewhat from the grounds argued before the trial judge, the Minister has not objected to the notice of appeal being dealt with on its merits, and I will do so. The appellant’s notice of appeal states four grounds, that in essence come to this: the trial judge erred in failing to find that the tribunal had made a jurisdictional error because:

    it failed to deal with the appellant’s claims that Department Two existed and that he was a member of a particular social group, being an unofficial member of Department Two at risk of harm because he had fled from it or failed to follow its directives (grounds 1, 2 and 3); and

    it had taken into account an irrelevant consideration relating to its misconstruction of the timing of the 9 November 2008 email in relation to the appellant’s becoming aware of the Interpol red notice.

The asserted error relating to the existence or non-existence Department Two

24    The appellant argued that the tribunal was obliged to make a finding about the existence of Department Two in all of the circumstances because he had made a substantial and clearly articulated argument relying upon established facts that it existed: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at 394 [24] per Gummow and Callinan JJ. I invited counsel for the appellant to identify any facts that dealt with the existence of Department Two that were before the tribunal on which this ground was founded. Apart from referring to the appellant’s claims in support of his application for a protection visa and statements that he made to the Minister’s delegate in his interview, counsel was not able to identify any such material. The appellant’s counsel accepted that there was no country information that dealt with Department Two at all. The appellant argued that the absence of any evidence other than his own assertions was due to the fact that Department Two was a secretive organisation.

25    I am unable to perceive how, in the circumstances of this matter, the mere assertion by the appellant of his being involved with Department Two required the tribunal to make a finding one way or another as to whether it existed. This is because the tribunal comprehensively disbelieved the appellant’s claims to have had any involvement with Department Two at all. The tribunal found expressly that the appellant constructed a highly fictitious account of his business dealings and circumstances in China in an attempt to create for himself a profile as an unofficial member of Department Two sought by the Chinese Government. In other words, the tribunal’s reasoning process was substantively that the appellant had fictitiously asserted that he was involved with Department Two. It gave detailed reasons for arriving at that conclusion.

26    A finding on credibility is a function of a primary decision-maker par excellence: Re Minister for Immigration and Multicultural Affairs: Ex Parte Durairajasingham (2000) 74 ALJR 405 at 423 [67] per McHugh J. The tribunal’s consideration of the appellant’s claims involved it assessing whether or not it accepted his version of events that underpinned his claims to be recognised as a person entitled to a protection visa. Here, the tribunal found that the appellant’s account of the reason for his presence in this country was not to be believed. It found, in effect, that he was here to hide in order to escape from the consequence of the Interpol red notice and being returned to China to be dealt with according to its criminal law in respect of the allegation that he had been involved with the offence of bribery.

27    I am of opinion that the trial judge was correct in his conclusion that the tribunal’s comprehensive rejection of the appellant’s claims of involvement with Department Two relieved the tribunal of any need to make a finding as to whether or not Department Two existed. I am unable to perceive a basis upon which it could be established, in the circumstances of this matter, that the tribunal was required to make such a finding in order properly to exercise the jurisdiction that it had. The matter can be tested in this way: suppose that the appellant had asserted that he did all that he did, not as a member of Department Two but as a member of the People’s Liberation Army, the existence of which was an undisputed fact on the material before the tribunal. If the tribunal concluded that the appellant was not a member of the People’s Liberation Army, such a conclusion would not require any finding as to the existence of the People’s Liberation Army. The tribunal was not required to embark on such a factual inquiry once it had come to the conclusion that, in effect, it did not believe a word the appellant said about his involvement with Department Two and did not accept that he feared harm in China as a result of that supposed involvement, because it considered “that he has manufactured the entirety of these claims”.

28    The appellant also argued that the tribunal failed to assess the evidence as a whole or to ask itself about the consequences if it were wrong about the appellant’s involvement with Department Two. This is not a basis that in the circumstances could support any finding of jurisdictional error. The tribunal’s comprehensive rejection of the appellant’s credibility and claims meant that it would be an exercise in futility for it to consider whether or not it might be wrong. There was no possibility that, in light of its comprehensive disbelief of his claims, it would still have been able to find that the appellant had satisfied it that he faced a real chance of persecution or harm for a Convention reason if he were to return to China or would face harm in China for reasons of being either a member of the particular social group of Department Two unofficial officers who no longer complied with its directives, or otherwise because of his political or imputed political opinions.

29    I reject grounds 1, 2 and 3 of the notice of appeal as being without substance.

The 9 November 2008 email

30    The other ground of appeal related to the tribunal’s treatment of the email of 9 November 2008. In my opinion no error has been shown in the way that the trial judge dealt with this matter. There is no error of law simply in making a wrong finding of fact: Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at 153-154 [44] per Gleeson CJ, Gummow, Kirby and Hayne JJ; Waterford v The Commonwealth (1987) 163 CLR 54 at 77 per Brennan J. There was no jurisdictional fact involved in the tribunal’s reasoning in or around its ambiguous sentence in [117] of its reasons that dealt with the timing of this email.

31    Moreover, the tribunal did not make more of the email or its timing than to say that it was not satisfied that the email established that the appellant was involved with Department Two as an unofficial agent who was forced to engage in bribes. The email itself said nothing about Department Two at all, nor did it say anything about bribes. At best, it was a piece of evidence that was capable of being used as the appellant sought to use it, but was also capable of being put to one side as the tribunal did. Whatever the meaning of the ambiguous interpolative phrase in the final sentence of [117] in the tribunal’s reasons is, I am not satisfied that its inclusion in those reasons demonstrates any error, let alone a jurisdictional error, with which the Court could become concerned. This sentence suffered from a lack of clarity. However, the tribunal’s findings and reasons extended over 15 pages in a 57 page, closely typed decision record. This particular ambiguous sentence does not demonstrate any jurisdictional error by the tribunal.

32    The reasons of an administrative decision-maker must be understood as being given by him or her in order to inform. Such reasons should not be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which they are expressed and as Brennan CJ, Toohey, McHugh and Gummow JJ went on to say in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272:

“In the present context, any court reviewing a decision upon refugee status must be aware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. “

33    For these reasons I am of the opinion that ground 4 also fails.

Conclusion

34    In my opinion the appeal should be dismissed with costs.

Associate:

Dated:    12 August 2011