MZXHP v Minister for Immigration

[2006] FMCA 779

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZXHP v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 779

MIGRATION – Protection visa – Refugee Review Tribunal – summary dismissal.

Federal Magistrates Act 1999, ss.17A, 17A(3)

Dey v Victorian Railways Commissioner (1949) 78 CLR 62

Applicant: MZXHP

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: MLG 288 of 2006

Judgment of: McInnis FM

Hearing date: 22 May y2006

Delivered at: Melbourne

Delivered on: 22 May 2006

REPRESENTATION

Applicant: In person

Counsel for the Respondents: Mr G. Carroll

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application filed 28 February 2006 be dismissed pursuant to Rule 13(10)(a) of the Federal Magistrates Court Rules 2001.

2. The Applicant shall pay the First Respondent's costs fixed in the sum of $2,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 288 of 2006

MZXHP

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application by the First Respondent for summary dismissal of an application filed by the Applicant on 28 February 2006.  The Applicant's application seeks judicial review of a decision of the Refugee Review Tribunal dated 24 January 2006.  The decision of the Tribunal affirmed a decision of a delegate to refuse to grant to the Applicant a protection visa.

2. By way of background, it is noted that the Applicant is a citizen of China who arrived in Australia on 17 September 1999.  On 6 September 2005 he applied for a protection visa which was refused by a delegate of the First Respondent on 23 September 2005.  The Applicant then applied to the Refugee Review Tribunal for review of the delegate's decision and, as indicated, the Tribunal affirmed the delegate's decision in its decision dated 24 January 2006.

3. The application commenced in this court on 28 February 2006.  It was accompanied by an affidavit of the Applicant sworn 27 February 2006.  In the application, the Applicant provided in relation to the grounds a suggestion that the Tribunal had asked themselves the wrong question in deciding that the Applicant did not meet the requirements under the regulations for refugee status and to be granted a protection visa.  It is further claimed that the Tribunal did not consider relevant information provided by the Applicant on the hearing date.

4. The affidavit asserts that the Tribunal had not afforded the Applicant procedural fairness, and again asserted the Tribunal did not take into account, or into consideration, information provided by the Applicant at the hearing, or that it placed "too much consideration on general independent country information in making its decision".  The affidavit further asserts that the Tribunal asked himself the "wrong question as to whether my application fulfilled the criteria under the regulations to be granted the visa."

5. When the matter came before a Registrar on 15 March 2006 the Applicant was granted leave to file and serve further amended particulars of the application by 29 March 2006.  The Applicant, rather than filing further amended particulars in a formal sense has sought to rely upon an undated letter received by the court on 27 March 2006.  It should be noted that the Applicant, who is unrepresented, has had the advantage of the assistance of an interpreter before this court.

6. The undated letter, which I take to be further particulars, refers to in part the Applicant's sense that he was unable to concentrate on the issues before the Tribunal where he had attended hearings on 4 and 9 January 2006.  In part, I take that to be a suggestion that he was then not able to present grounds in support of his application for a protection visa as clearly as he may have wished.  The First Respondent's representative has submitted that the undated letter further appears to seek an adjournment of this application based upon the Applicant's state of mind and also his inability to afford legal representation.  I regard the letter as effectively being an application for adjournment, and so much was made clear by the Applicant before the court this day.

7. However, the letter, as indicated, was at least received on 27 March 2006 and the application itself had been filed on 28 February 2006, relating as it does to a decision of the Tribunal on 24 January 2006.  Whilst the court can understand and appreciate the difficulties the Applicant has in arranging legal representation, particularly since he is unable to work, the court is not satisfied that it would be in the interests of justice to further adjourn the application, as it is not clear from the material before the court that on any foreseeable date that the Applicant's circumstances, both in terms of his own ability to concentrate and present material, and/or capacity to engage the services of a lawyer would alter; that is, I cannot see any basis upon which there would be any change of circumstances in the foreseeable future and, accordingly, in an application of this kind it is not appropriate to further adjourn the matter.

8. Accordingly, I invited the Applicant to consider the submissions made for and on behalf of the First Respondent in support of an application for summary dismissal which had been filed on 3 May 2006.  The Applicant relied upon that application, which essentially seeks to dismiss the substantive application on the grounds that it discloses no reasonable course of action.  The First Respondent relied upon an outline served upon the Applicant and filed with the court, dated 1 May 2006. 

9. In considering the question of summary dismissal, the court accepts that it is now bound by s.17A of the Federal Magistrates Act 1999 (the Act) and it is not necessary in an application of this kind that the application is hopeless or bound to fail for it to have no reasonable prospect of success (see s.17A(3) of the Act). There is, however, still a significant responsibility upon the court in relation to summary dismissal and I incorporate in this decision the relevant extract from the High Court decision of Dixon J in Dey v Victorian Railways Commissioner (1949) 78 CLR 62 as follows:-

   “The principles upon which that jurisdiction is exercisable are well settled.  A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury.  The fact that a transaction is alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious.  But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.”

10. The Applicant's claims before the Tribunal have been accurately set out in the outline of submissions by the First Respondent at [3] to [6] as follows:-

    “3. The applicant claimed that he was subjected to persecution by the government of the People’s Republic of China and his employer, the Overseas Chinese Hotel (Hotel) in Fushan because he expressed views against the government and he accused the managers of his work unit of corruption. The applicant stated that he worked as a chef for the Hotel for almost twenty years. He claimed that he did not get a pay rise when other people got pay rises. He was not allowed to sit the exam for level 1 Chef rating; that he should have had priority to get an apartment, but did not get one; that he was moved from his job in the kitchen in the restaurant in the hotel, to the canteen for the staff. The wage and the allowance was much lower.

    4. The applicant stated that he came to Australia with a tour group and soon after he arrived he began living with a person who previously worked for the Overseas Chinese Hotel. The applicant stated the same person provided him with employment in a restaurant where he worked from September 1999 until March 2005. The applicant claimed that a few months after his arrival in Australia, his employer returned to China and learned that the applicant’s former managers wanted to put him ‘to death’ because he accused them of corruption.

    5. In addition, the applicant claimed that while he lived in Australia, he expressed opinions against the PRC government to his family and friends in China. He stated that he read publications such as The Epoch Times and he sent information from those publications to persons in China. He also claimed that whilst living in Australia, he sent money to his family in China. He claimed that money was taken before it reached its destination.

    6. The applicant’s adviser submitted to the RRT that the applicant had a well founded fear of persecution by the authorities in China because of his political opinion. The adviser repeated the applicant’s claim that he will be persecuted because the applicant expressed opposition to the PRC government when he reported corruption in the workplace, when he supported the Tianamen Square student protests and when he expressed views against the government of China while he lived in Australia. The adviser also submitted that the applicant: will be persecuted by the authorities in China because he lived illegally outside of China for many years. The adviser further submitted that the applicant will have difficulty finding employment in China and those difficulties in themselves will amount to persecution.”

11. I also note that in the same outline the First Respondent appears to have accurately set out, in summary form at [7] to [13] the detailed findings of the Tribunal as follows:-

    “7. The Tribunal accepted the applicant’s claim that he expressed support for the 1989 pro-democracy movement and he reported corruption by his work unit. The Tribunal also accepted the applicant’s claims that two managers at the Overseas Chinese Hotel in Fushan, where he worked for twenty years, were investigated for corruption. The Tribunal accepted that he was demoted by his work unit and he lost income, employment opportunities, and other work related benefits.

    8. The Tribunal did not accept the applicant’s claims relating to his political opinion. It did not accept the applicant’s claim that while in Australia, he sent political literature to his wife in China. In particular, the Tribunal rejected the applicant’s claim that he sent information from newspapers such as The Epoch Times to his wife in China. The Tribunal also rejected the applicant’s claim that his wife was harassed by the PRC authorities in 2001 and that he and his family were subsequently placed under surveillance by the PRC authorities and monitored while he lived in Australia. In relation to the applicant’s claim that some of the money he sent to his wife was stolen by the PRC authorities or postal worker, the Tribunal did not accept that the culprits are known to the applicant or that this matter constitutes persecution for Convention reasons.

    9. The Tribunal considered the applicant’s claim that he has views against the government of China. It was not satisfied that the applicant has views against the government of China. It found that the applicant’s recent involvement in activities of political nature have been undertaken for the sole purpose of enhancing his protection visa application. In addition, the Tribunal considered that the applicant’s delay in seeking protection visa application was due to his lack of interest in seeking protection.

    10. In relation to the applicant’s claim that he supported the 1989 pro-democracy and that he reported corruption in the workplace, the Tribunal accepted the applicant’s claim that he was discriminated against by his work unit in the way he described. Nevertheless, the Tribunal was not satisfied that the applicant was subjected to circumstances amounting to persecution by the government, or his work unit, in China because he supported the 1989 protest movement or because he reported corruption in his work unit. The Tribunal referred to the Handbook of Procedures and Criteria for Determining Refugee Status and stated that it accept that the applicant’s demotion and loss of employment opportunities by his work unit was discriminatory however, it found that he was not subjected to discrimination of such a nature or extent as to constitute persecution. The Tribunal stated that the applicant’s description of his circumstances indicates that he lost employment privileges but he was provided with employment to support himself.

    11. The Tribunal stated that it has considered the applicant’s related claim that his work unit in China will not offer him employment in the future and that he may experience difficulties finding employment in China. The Tribunal stated that it accepted that his former work unit may not offer him employment however, it stated that the applicant had effectively abandoned his work in 1999 when he decided to remain in Australia. The Tribunal stated that denial of government employment or government sponsored employment does not amount to persecution for Convention purposes if other employment options are available.

    12. The Tribunal stated that it has considered the applicant’s claim that he is at risk of persecution by the PRC authorities because he has been away from China without permission and that the authorities in China will seek to harm him because he will be suspected of being a spy for Australia. The Tribunal found that these claims are mere speculation by the applicant. In addition, the Tribunal stated that the applicant’s fear that he will be subjected to circumstances amounting to persecution because he sought asylum in Australia is not well founded.

    13. The Tribunal stated that it has considered the applicant’s claim that PRC authorities have contacted his work unit regarding his return and his former manager will seek to harm him because he accused her of corruption. The Tribunal found that any difficulties of a personal nature which the applicant may have with his former manager, and if indeed his former manager seeks revenge against the applicant, he can seek protection from the State. The Tribunal stated that it was satisfied that the applicant can express any views he had regarding corruption without fearing adverse interest from the authorities. The Tribunal found that the applicant’s fear that he will be subjected to circumstances amounting to persecution by the PRC authorities if he expresses his views against corruption, including corruption by officers of the State, is not well founded.”

12. I note from the Tribunal decision that at the hearing the Applicant was accompanied by his adviser, and although the hearing was conducted by video-link with the Applicant and his adviser in Melbourne, it is further noted that the Tribunal conducted the hearing from Sydney with the advantage of interpreters in Sydney.  Further, the hearing was conducted over two days, on 4 and 9 January 2006.  A proper reading of the Tribunal decision clearly indicates that it had regard to the claims made by the Applicant, set out in summary form earlier in this judgment, and otherwise made significant findings which, likewise, I have set out in summary form based upon the First Respondent's outline earlier in this judgment.

13. Before this court, the Applicant had initially suggested that there may have been material which the Tribunal did not take into account concerning another person and the return of that person to China.  However, that reference was clearly reference to events which occurred after the Tribunal hearing and cannot be relevant in support of this application.  It is clear from the Applicant's submissions that he has a deep concern, and I am prepared to conclude a genuinely held concern, for his own safety should he return to China.

14. However, that concern, along with the other claims, were clearly addressed in the Tribunal's decision and, in my view, the findings made by the Tribunal clearly relate to the claims put by the Applicant, and conclusions that were reached, including issues which by implication would be regarded as findings adverse to the Applicant's credit, were made by the Tribunal free of jurisdictional error.  They were, in my view, findings made open to the Tribunal on the material before it.

15. I cannot see in the material before me any error of law committed by the Tribunal which would in any way constitute jurisdictional error.  In my view, it is proper to conclude that in this instance, on the material before the court, there is indeed no reasonable cause of action and it is clear, therefore, applying the appropriate principles, that the application by the First Respondent for summary dismissal should be granted.

16. I do not regard the present application as being one which has any reasonable prospect of success and in the circumstances, there being further no reasonable cause of action and the result of there being no identifiable jurisdictional error, it follows, for the reasons given, that the application be dismissed.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate: 

Date:  22 May 2006