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[2007] FCA 1481
Federal Court of Australia
2007-09-21
Siopis J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 The appellant was born in the People's Republic of China (China). He arrived in Australia on 12 August 2002 on a passport in his own name and applied for a protection visa on 30 August 2002. 2 The appellant claimed in a written statement forming part of his initial protection visa application that he had been an active member of the Chinese Labor Party in Henan Province of China. He said the Chinese Labor Party was the "voice of the workers" and had acted to expose the corruption and the dictatorship of the Communist Party. He referred to the corrupt activities of a secretary of the Communist Party in relation to the Kaifeng Chemical Fertiliser Group and said that the Chinese Labor Party had called on workers to participate in a demonstration against corruption at the Group's building on 5 April 2002. He went on to say that, to intensify the fight against corrupt officials, "a decision was made to block the Long Hai Railway Line" on 28 May 2002 and many demonstrators were taken away, with several key members being arrested. The appellant said that he was warned by the Government that he would be put in jail for two years if he continued his activities. He said that he was thereafter watched and followed by "the Government Authority" as it wanted to gather evidence of the activities of his organisation. He said that if he returned to China, the Chinese authorities would arrest him and "give [him] a heavy penalty". He also said that he arrived in Sydney on 12 August 2002 in the company of Mr Dong Sheng Liu, a fellow member of the Chinese Labor Party. He said that he and Mr Dong Sheng Liu had both joined the Chinese Labor Party on 1 May 2001. 3 The visa application also disclosed that the appellant had been employed as a sales manager and then a marketing manager in two different wine companies. He had been employed as a marketing manager from June 2001 to the date of his departure from China in August 2002. He said that amongst the documents that he was not providing but would be providing later was "evidence of my membership of the Chinese Labor Party". 4 The appellant's visa application form was completed by a migration agent, Ms Helen Zheng. 5 The appellant did not say in this statement that he had been arrested. 6 A delegate of the first respondent refused the appellant's visa application on 10 December 2002. The delegate did not regard the warning, which the appellant claimed to have received from the Chinese government, as being sufficient to constitute persecution of the appellant - particularly given that he was able to continue to live in China for the next three months and to continue working with the wine company until his departure for Australia in August 2002, without ever being questioned by the authorities. The delegate was not satisfied that the appellant "was regarded as a political activist by the Chinese authorities". The delegate found that the appellant's claims were uncorroborated. He said that he would have expected the appellant to have "provided more detailed information and some evidence to support his claims if he had been actively involved in any political activity". The delegate said that the appellant had failed to provide any details of the Chinese Labor Party and he had failed to provide any details of his claims that the Party was involved in exposing the corruption of the Communist Party. The delegate found that the fact that the appellant's passport was issued to him in his own name counted against the appellant having a profile that would attract the adverse attention of the authorities if he were to return to China. The Tribunal 7 On 6 January 2003, the appellant applied to the Tribunal for a review of the delegate's decision. The appellant supported the application by a letter dated 7 January 2003. In this letter, he said that in May 2001 he had joined the Chinese Social Democratic Party which he said was also known as the Chinese Labor Party. He also said that he was arrested along with some other members after they took part in a demonstration to protest workers' conditions and that he was detained for 23 days and charged with organising "illegal demonstrations". He said he was beaten in the "chest and eyes and on the whole body" and on release he was threatened and harassed by the police. The appellant said that he obtained a visa through a friend at the passport office and that he had falsely stated in his visa application that his purpose was to "visit" Australia. He said that the real reason he came to Australia was to report to the head office of the Party to fulfil his "duties for the group of workers". 8 The appellant said that he feared going back to China as he had been "summonsed to be imprisoned" and his family had been jailed and threatened. The appellant also said that "three of our pro‑democracy activists", being Mr Wang Bingzhang, Mr Zhang Qi and Mr Yue Wu, had disappeared. He said one, Mr Wang Bingzhang, had subsequently been charged by the Chinese authorities with being a "spy". The letter had a number of attachments comprising reports on the treatment in China of dissident pro‑democracy and labour activists, including the three persons mentioned. 9 In July and August 2003, the appellant submitted further documentation to the Tribunal. The documents included a certificate of election to membership of the Central Committee of the Chinese Labor Party, signed by Mr Fang Yuan as Chairman of the Central Committee of the Chinese Labor Party, a report made by the appellant at the Chinese Labor Party Conference in Canberra, translations of a letter from his wife dated 17 June 2003 and of a letter from his sister dated 19 September 2002. There were also photographs of the appellant attending the first national conference of the Chinese Labor Party in Canberra in which the appellant appeared wearing a mask. In addition, there was a videotape of the appellant being interviewed for television whilst he wore a mask. The material signed by Mr Fang Yuan on behalf of the Chinese Labor Party emanated from Australia. 10 On 3 October 2003, the Tribunal received further documentation from the appellant's agent in support of his application. This included a certificate signed by Mr Fang Yuan stating that the appellant had joined the Chinese Labor Party on 1 May 2001 and that he acted as "Dean Member for the Chinese Labor Party Heneng Province Branch Committee". It was said that he was elected to represent the North Eastern China area in the first national conference of the Party. In addition, there were translations of two letters said to be from the appellant's wife dated 14 July 2003 and 30 July 2003 respectively. In the letters, the appellant's wife wrote that the Public Security Bureau (the PSB) had been inquiring about the appellant and had shown her a picture of a person wearing a mask, which she recognized as the appellant, but she had not advised the PSB to that effect. 11 On 12 November 2003, the Tribunal received a letter from Mr Fang Yuan as Chairman of the Chinese Labor Party, which said that the appellant had been instrumental in the establishment of the Chinese Labor Party since 1996 and was a "secret key leader of the Chinese Labor Party". Mr Fang Yuan said he knew the appellant through his friendship with the appellant's father and he had had previous dealings with the appellant and Mr Dong Sheng Liu. Mr Dong Sheng Liu worked for the party in Liaoyang. The letter went on to say that in June 2002 "spies" from the "Chinese Communist Authorities" "hijacked" three people including Mr Wang Bingzhang, and that Mr Fang Yuan was nearly "hijacked" also. He said that on his safe return to Australia he notified the appellant and Mr Dong Sheng Liu that they should come to Australia because they were the only two members who had met Mr Wang Bingzhang. He did this because he felt that if they had fallen into the hands of the Chinese authorities, the Chinese Labor Party organisations in Liaoyang and Henan Province would have been "damaged greatly". 12 Mr Fang Yuan went on to say in his letter, that the appellant had been unable to explain "these matters" in his original protection visa application because, at the time that he applied for protection, the Chinese authorities had not admitted publicly the detention of Mr Wang Bingzhang and others. Attached to the letter were two photographs of the appellant ‑ one of which showed the appellant holding a poster at Parliament Square in Canberra demanding the release of Chinese activists. 13 At the Tribunal hearing, the appellant gave evidence. Amongst other things, the appellant said that he and Mr Dong Sheng Liu were members of the Chinese Workers Party and had participated in the same demonstrations in February 2001, April 2002, 1 May 2002 and 28 May 2002 in Kaifeng City. He also said in evidence that he had been involved in "commanding secretly" persons in relation to a demonstration involving 50,000 people in Zhengzhou Province. Mr Dong Sheng Liu also gave evidence at the hearing. 14 In a decision dated 22 December 2003, the Tribunal affirmed the delegate's decision. The Tribunal said that several of the matters now relied upon by the appellant had not been mentioned in the appellant's initial visa application. In particular, there had been no mention of his arrest and beating, nor his involvement with the demonstration in Zhenghou Province, nor his meeting with Mr Wang Bingzhang. The Tribunal did not accept that the appellant and Mr Dong Sheng Liu were witnesses of truth. 15 The Tribunal's decision was set aside by consent orders made by the Federal Magistrate on 9 March 2006 and the matter was remitted to the Tribunal to be determined according to law. 16 On 9 May 2006, a differently constituted Tribunal invited the appellant to attend a hearing, to be held on 26 June 2006. 17 On 19 May 2006, the Tribunal received another letter from Mr Fang Yuan, as Chairman of the Central Committee of the Chinese Labor Party. He said that from 1996 the appellant had worked "for the founding of the Chinese Democratic Party and the Chinese Labor Party". Mr Fang Yuan said that in 1998 the Chinese Labor Party was a major part of the Chinese Democratic Party. He said that the founding of the Chinese Labor Party was announced in New York on 17 November 2000. The letter also stated that the appellant was from the working class in China who received limited education and who lacked "the capacity of expression in language because they had been exploited and oppressed by the Chinese Communist Party". Attached to Mr Fang Yuan's letter was an article from a newspaper published in Hong Kong, reporting that a banner of the Chinese Labor Party was among those in a May Day demonstration held in Hong Kong. There was also attached a declaration from Mr Xizhe Wang, a resident of San Francisco, saying that Mr Wang Bingzhang had reported to him that he had met with the appellant and Mr Dong Sheng Liu in Shanghai in 1998, to discuss the establishment of the Democratic Party of China and the Chinese Labor Party. 18 The appellant attended the hearing and provided oral evidence through a Mandarin interpreter. Mr Fang Yuan also gave evidence at the hearing. 19 During the hearing, the Tribunal asked the appellant about a report in the "Epoch Times" newspaper which indicated that the Chinese Labor Party had taken part in a demonstration in Sydney on 23 April 2005. The appellant said that he did not know about this event. 20 The Tribunal put to the appellant that a number of his claims about participating in demonstrations, being arrested, detained and tortured and about having met Mr Wang Bingzhang were not mentioned in his initial visa application or in his statement of 7 January 2003. The Tribunal said that one interpretation of this was that the claims were invented to strengthen his refugee claim after the delegate had found that there was no evidence of his political activity in China. The appellant said he could not refer to the meeting with Mr Wang Bingzhang in his initial visa application, because of personal safety issues, and otherwise blamed his migration agent for omitting to include his subsequent claims in his initial visa application. 21 Two days after that hearing, the Tribunal sent the appellant a letter pursuant to s 424A of the Migration Act 1958 (Cth) (the Act), referring to these same concerns and calling for the appellant's comments. The letter also referred to the inconsistency between the appellant's claim in the initial visa application that he joined the Chinese Labor Party in May 2001, and his evidence, wherein he said that he joined in 2003. 22 The appellant responded to the letter from the Tribunal by a letter dated 9 July 2006. Attached to this letter were translations of printouts from the website of the Chinese Labor Party which described the history of the formation, and the goals, of the Chinese Labor Party. One of the printouts refers to "the Chinese Democratic party (also known as Chinese Labor Party)".
23 The Tribunal did not believe the appellant's evidence. It rejected the appellant's explanation that his failure to mention in his initial visa application, the matters subsequently relied upon, was the fault of the migration agent. 24 The Tribunal found that the appellant's evidence that the Chinese Labor Party was formed in 2003 was inconsistent with the claim in his initial visa application that it had been formed by 2001. The Tribunal did not accept that the Chinese Labor Party was active in China itself. The Tribunal did not place any weight on the statements contained in the web pages as comprising independent evidence to that effect, because those statements had been prepared in Australia by Mr Fang Yuan, and the newspaper article referred only to Hong Kong and not mainland China. 25 Further, the Tribunal placed no weight on the letters purportedly sent by the appellant's wife because of the general credibility findings made against the appellant, and the fact that they were in almost identical terms to letters which had been purportedly sent by Mr Dong Sheng Liu's wife in support of Mr Dong Sheng Liu's application for a protection visa. 26 The Tribunal summarised its position as follows: Given my lack of satisfaction as to the accuracy of a number of significant claims advanced by the [appellant] I am not satisfied that he is a witness of truth or that his claims in general can be relied on. Specifically, I am not satisfied that he was ever a member of an organization in China known as the Chinese Labor Party. I am not satisfied that he was ever involved in political protest activity in China at any stage, or that he ever met the Chinese dissident Wang Bingzhang. I am not satisfied that he ever suffered harm at the hands of the Chinese authorities as a consequence of political protest activity or for any other reason. I accept that in Australia he participated in a meeting of the Chinese Labor Party in Canberra in 2003 and at a demonstration outside Parliament House in Canberra in the same year. I am not satisfied that he has come to the adverse attention of the Chinese authorities for these reasons or for any other political activity in Australia. 27 The Tribunal was not satisfied that there was a real chance that the appellant would suffer harm in China because of his alleged political activities in China or in Australia, and it dismissed the claims of the appellant. The Federal Magistrates Court 28 The appellant lodged an application for judicial review in the Federal Magistrates Court on 11 September 2006. In an amended application, the appellant relied upon the following three grounds: (a) the Tribunal failed to take relevant material into account, in particular, it failed to take into account the contents of the Chinese Labor Party website; (b) the Tribunal based its decision on irrelevant material, particularly the finding that the appellant had been assisted by a registered migration agent, which he denied; and (c) the Tribunal applied illogical reasoning in dismissing letters from the family of the appellant. 29 The Federal Magistrate found that it was open to the Tribunal to reject the evidence comprised by printouts from the Chinese Labor Party website, and that the assessment of the accuracy and independence of the information was a matter for the Tribunal. 30 The Federal Magistrate rejected the second ground, as the appellant had himself said in his letter of 9 July 2006, that he had used a migration agent. 31 As to the third ground, the Federal Magistrate found that the Tribunal had explained that it was not prepared to place weight on the letters provided by the appellant's wife, because the letters were in almost identical terms to those purportedly written by Mrs Liu, and that it was not satisfied as to the general credibility of the appellant. That approach, said the Federal Magistrate, was within the powers of the Tribunal. 32 The appellant raised other matters in his oral submissions before the Federal Magistrate. The Federal Magistrate rejected the claim of bias because there was "no evidence of bias by the Tribunal whether actual or apprehended" before the Court. 33 The appellant also complained that there was no reference to the letter from his sister in the Tribunal's reasons. The Federal Magistrate found that the letter did not support the appellant's claim that he feared persecution for political reasons. Therefore, there was no jurisdictional error by the Tribunal in not referring to the letter. 34 The Federal Magistrate also rejected the appellant's complaint that the Tribunal had overlooked his submission blaming his migration agent for the failure to mention in his initial visa application, the crucial matters subsequently relied upon. The Federal Magistrate said that the Tribunal had dealt with and rejected the submission. 35 Further, the Federal Magistrate rejected the appellant's complaints that jurisdictional error attended the Tribunal's findings that there was no evidence the Chinese Labor Party was active in China, that his claims to be a leader of the Party were not consistent with his ignorance of the Party's participation in the Sydney demonstration on 23 April 2005, and that the Tribunal was not satisfied that the appellant had met Mr Wang Bingzhang in 1992. The appeal 36 The appellant filed a notice of appeal in this Court on 12 March 2007. There is one ground of appeal, namely, that the Tribunal failed to take important claims of the appellant into account. The particulars are as follows: a) The Tribunal, in forming its decision, focuses on whether the [appellant] engaged in activities as he has claimed that would make him subject to the Chinese Government's persecution. The [appellant] also claims his activities in Australia will make him subject to persecution if he returns to China. The Tribunal failed to consider this claim. Nor did the Tribunal rely on S91R(3) to dismiss such claims. 37 At the hearing of the appeal before me, the appellant did not address submissions to the particularised ground of appeal. 38 The appellant made a number of other submissions. First, he submitted that the Tribunal's rejection of the letters sent by his wife was unjustified as there was no finding of forgery. Secondly, it was said that the Federal Magistrate did not refer to the letter from the appellant's sister. Thirdly, he said that the Tribunal's finding as to the absence of Chinese Labor Party activity in China was based on "assumptions not evidence". The appellant submitted that the Tribunal should have carried out its own investigations to establish the existence of the activities of the Party within China. Fourthly, the appellant submitted that the Tribunal had not stated why it had rejected the declaration of Mr Xizhe Wang, which said that Mr Wang Bingzhang had told him he had met the appellant. Fifthly, the appellant contended that the Tribunal's finding that his claim to be a leader of the Chinese Labor Party was inconsistent with his ignorance of the demonstration in Sydney in April 2005, was unfair and not warranted. 39 The only particularised ground of appeal did not allege any error by the Federal Magistrate but rather raised an allegation of error by the Tribunal ‑ which had not been raised before the Federal Magistrate. The appellant is only able to raise by way of appeal a matter which was not raised below, in exceptional circumstances. The appellant did not identify such exceptional circumstances. Accordingly, I do not permit the appellant to raise this point on appeal for the first time. 40 In any event, there is no substance in the ground of appeal because the Tribunal made findings of fact that the conduct in which the appellant had engaged in Australia, had not come to the attention of the Chinese authorities. Had I given leave to the appellant to raise this matter, I would have dismissed the appeal on that ground. 41 The other matters raised by the appellant orally were not particularised in the notice of appeal. However, these are matters which were raised and dealt with before the Federal Magistrate, and in my view, the appellant should be permitted to raise them in this appeal. 42 As to the appellant's submission that the Tribunal should have accepted the evidence of the appellant's wife's letters in the absence of any finding of "forgery", there was in my view, no jurisdictional error by the Tribunal in the way that it dealt with this issue. The Tribunal found that the similarity of the letters to those purportedly written by Mr Liu's wife and the appellant's general credibility problems, meant little weight could be placed on the letters from the appellant's wife. It was open to the Tribunal to adopt that approach. It was not necessary for the Tribunal to find that the letters were a forgery, before concluding that no weight was to be placed on them (WAKK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 225). There was no error in the conclusions of the Federal Magistrate. 43 The Federal Magistrate did not err in the manner in which he dealt with the complaint about the failure of the Tribunal to refer to the appellant's sister's letter. There was nothing on the face of the sister's letter which supported the appellant's contention that he would be persecuted if he were to return to China. It is not necessary for the Tribunal to deal with every item of evidence in its reasons (WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 at [46]). 44 The appellant's criticism of the Tribunal's finding that it was not satisfied that the Chinese Labor Party had a material existence in China itself, was in essence a challenge to the fact‑finding processes of the Tribunal. The Tribunal said that the newspaper article relied upon only referred to the Chinese Labor Party's banner appearing in a demonstration in Hong Kong and not mainland China. Also, the Tribunal found that there were no independent reports that the Chinese Labor Party operated in China. The Tribunal placed no weight on the website pages because they were from the Chinese Labor Party's website and were not independent reports. As the Federal Magistrate said, the assessment of the accuracy and independence of the evidence was a matter for the Tribunal. In addition, there is no obligation on the Tribunal to make its own inquiries, as contended by the appellant (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12). Nor was there anything in the particular circumstances of this case which would have required the Tribunal to make inquiries. Here, the appellant was able to, and did on a number of occasions, place information before the Tribunal relating to circumstances prevailing in China, and the treatment by Chinese authorities of dissidents. There was no jurisdictional error by the Tribunal and no error by the Federal Magistrate. 45 As to the appellant's complaint that the Tribunal ought not to have rejected his claim to have met with Mr Wang Bingzhang, without having expressly rejected the declaration from Mr Xizhe Wang, in my view, this complaint is also an impermissible complaint about the fact‑finding of the Tribunal. The Tribunal was aware of the declaration of Mr Xizhe Wang and referred to it in its decision. However, it is plain, in light of the strong credibility findings it made in respect of the appellant, that it placed no weight on that evidence. As already mentioned, it is not necessary for the Tribunal to deal with every item of evidence in its reasons. There was no jurisdictional error in the Tribunal failing to record this aspect of its fact‑finding process expressly. The Federal Magistrate did not err. 46 The appellant's criticism of the Tribunal's finding that the appellant's claim to hold a senior position in the Chinese Labor Party was inconsistent with his ignorance of the party's participation in the Sydney demonstration, is also, in my view, an impermissible criticism of the Tribunal's fact‑finding process. The complaint does not, therefore, identify jurisdictional error. In any event, the Tribunal's finding was plainly open to it on the evidence. There was no error by the Federal Magistrate. 47 It follows, therefore, that the appeal is dismissed with costs. I certify that the preceding forty‑seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.
Counsel for the Appellant: The appellant appeared in person.
Solicitor for the Respondent: Australian Government Solicitor
SZJII
Minister for Immigration and Citizenship