SZJII v Minister for Immigration and Citizenship [2007] FCA 1481

FEDERAL COURT OF AUSTRALIA

SZJII v Minister for Immigration and Citizenship [2007] FCA 1481 SZJII v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 357 OF 2007

SIOPIS J

21 september 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 357 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZJII

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: SIOPIS J DATE OF ORDER: 21 SEPTEMBER 2007

WHERE MADE: PERTH

THE COURT ORDERS THAT:

1. The name of the first respondent is changed to "Minister for Immigration and Citizenship". 2. The appeal is dismissed. 3. The appellant is to pay the first respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 357 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZJII

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: SIOPIS J

DATE: 21 september 2007

PLACE: SYDNEY

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)".