MZXHS v Minister for Immigration
[2006] FMCA 1181
•18 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXHS v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1181 |
| MIGRATION – Protection visa – Refugee Review Tribunal – whether jurisdictional error – whether legal advisors negligent in failure to forward information claimed to be relevant by the Applicant to the Tribunal – relevance of additional material – whether Tribunal failed to address claims made by applicant – whether Tribunal failed to refer to relevant material – inference that Tribunal had regard to material relied upon by applicant. |
| SZGTE v Minister for Immigration & Multicultural Affairs (2006) FCA 443 Re Commonwealth of Australia Ex parte Marks (2000) 177 ALR 491 |
| Applicant: | MZXHS |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | MLG 309 of 2006 |
| Judgment of: | McInnis FM |
| Hearing date: | 29 June 2006 |
| Date of last submission: | 12 July 2006 |
| Delivered at: | Sydney (by video link to Melbourne) |
| Delivered on: | 18 August 2006 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Mr E. Latif |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
Leave to amend the application be refused.
The Application be dismissed.
The Applicant shall pay the First Respondent’s cots fixed in the sum of $6,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 309 of 2006
| MZXHS |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
In this application the Applicant seeks judicial review of a decision of the Refugee Review Tribunal ("the Tribunal') dated 31 January 2006. The Tribunal affirmed a decision of the delegate of the first Respondent to refuse to grant to the Applicant a protection visa.
The background to this application has been accurately set out in the first Respondent's contentions of fact and law. The Applicant is a 37‑year‑old citizen from the People's Republic of China ("the PRC"). He was educated to a tertiary level and worked as an accountant in China.
The Applicant arrived in Australia on a tourist short‑stay visa on 25 September 2004. That visa expired on 13 October 2004. The Applicant absconded from a tour group just prior to the time when the visa was due to expire. On 15 September 2005 the Applicant was located working in a Chinese restaurant and taken into immigration detention.
On 4 October 2005 the Applicant made application for a protection visa. On 10 October 2005 a delegate of the first Respondent refused to grant the protection visa and the Applicant then applied to the Tribunal for review of that decision.
As indicated earlier, the Tribunal made a decision on 31 January 2006, affirming the delegate's decision. The Applicant then filed an application in this court on 27 February 2006. At the time of the hearing before this court the Applicant remained in detention and was self‑represented with the assistance of an interpreter.
The application
In the application filed 27 February 2006 the grounds are:-
“1. The Tribunal failed to deal with a claim advanced by the Applicant namely that he feared persecution by reason of his imputed political opinion due to exposing the corruption of his employers and thereby failed to exercise its jurisdiction.
2. The Tribunal failed to deal with a claim advanced by the Applicant namely that he feared persecution by reason of the Chinese government's inability or unwillingness to protect him from persecution and thereby failed to exercise its jurisdiction.”
The Tribunal's decision
The Tribunal in its decision referred to the claims made by the Applicant for a protection visa. It noted the Applicant gave oral evidence to the Tribunal on 6 December 2005. After reciting the background details set out earlier in this judgment and the contents of the Applicant's application the Tribunal then summarised the claims for protection made by the Applicant at Court Book page 106 as follows:
• He was supportive of the views and aims of student demonstrators in 1989 and wanted to travel to Tiananmen Square on 3 July 1989 to support students, but did not do so on the advice of family and friends.
• The PRC government’s treatment of student demonstrators caused him to realise the true nature of the political situation in the PRC and led to him no longer support the communist regime.
• His employer regarded his support for the student demonstrators to be reactionary and the company communist party secretary instructed him to provide written confirmation that he would not support demonstrations in the future, but he refused to provide any such guarantee.
• He suffered discrimination in his employment; he was required to work in the workshop for 5 years instead of working as an accountant and then another 5 years as a record keeper at a warehouse. After the retirement of the company’s party secretary he was allowed to work as an accountant but only at an entry level.
• He was working in the finance department and had information about bribery and corruption activity by company leaders and he reported this activity to a higher authority in 2002. No action was taken against the leaders; instead he was threatened by the company leaders.
• He threatened to take his complaint to a higher level. Five months later the windows of his house were smashed and he continued to be threatened; he felt unable to seek the assistance of anyone in authority and resigned from his employment.
• He fled the PRC because he feared he would be harmed by his company superiors. Before he left he submitted a report to a higher authority, he had been advised by his family in the PRC that the company leader remains in power and that they have received telephone calls from persons seeking his whereabouts.
• He fears harm in the PRC from the company leadership and states that he will not be able to seek the protection of the PRC authorities because of his past support for the 1989 demonstrations.”
Further, in its decision the Tribunal noted that during the hearing the Applicant "clarified" the evidence relating to his claims about why he fears persecution on return to the PRC. Relevantly, the Tribunal then states at Court Book page 107 the following:
“In response to questions about his employment history he stated that he was paid from 1988 onwards and was allocated a job in the plastics factory, but he did not really have a proper job there. He was only employed from 1998 onwards as an accountant. He started in the finance department where he was given a job that he did not like. His classmates had all been allocated good jobs, but he was not given a good job because he participated in the Tiananmen Square protest. He came to Australia as he feared persecution because he had been an informant:. He had informed on his boss in the workplace because his boss was involved in corruption and breached company regulations. On 20 January 2003 an unidentified person threw a block through his window and it landed on his bed. He also received an anonymous phone call. He assumed that it was triggered by him dobbing in his boss. From that time onwards he could not go out because he was terrified. He continued to work at the factory in his position, as did the person who he informed on. He is not sure what action the management took as a result of the information he provided.”
Under the heading "Findings and Reasons" the Tribunal refers again to the chronology of events and otherwise refers to relevant authorities when considering the question of a protection visa. It made the following relevant findings at Court Book pages 108-109:
“The Tribunal accepted the Applicant’s evidence at the hearing relating to his claims. The Tribunal considered the Applicant’s claim that he was involved in the 1989 pro-democracy movement. The Tribunal accepts that the Applicant was a supporter of the pro-democracy movement. It accepts that he was supportive of the views and aims of the student demonstrations during that period and that he may have suffered some discriminations during that period and that he may have suffered some discrimination in his workplace on account of these views. Even of the Applicant’s classmates were allocated better jobs, this does not constitute serious harm as defined by s.91R(1) of the Act. On his own evidence, he completed his tertiary education in account in 1988 and was employed as an accountant from 1989 onwards. Moreover, no further action was taken against him, as a result of his involvement during this period and the country information indicates that participants in the 1989 pro-democracy movement have long ceased to be targets for punishment.
…
There is no evidence to indicate that the Applicant was involved in any political activity after 1989 either in the PRC or in Australia. In the circumstances, the Tribunal finds that there is no real chance that he will face persecution as a result of his support for the pro-democracy movement should he return to the PRC.
The Tribunal considered the Applicant’s claim that he feared persecution because he had been an informant in his workplace. The Tribunal accepts that the Applicant informed on his boss to higher authorities because his boss was involved in corruption and breached company regulations. It accepts that this may have resulted in a brick being thrown through his window in January 2003, however, this does not constitute serious harm as defined by s.91R(1) of the Act. There were no further repercussions and on his own evidence he continued in his employment at the factory, as did the person he informed on. He does not know what action, if any, was taken by management as a result of the information he provided. There is no evidence to support the Applicant’s claim that he would suffer serious harm in the event that he returns to the PRC. Accordingly, the Tribunal does not accept that the Applicant would be harmed by underground societies employed by his former boss if he returned to the PRC. The Tribunal also finds that there is no evidence to indicate that the treatment by his former boss was motivated by a Convention reason - it did not discriminate against the Applicant because of his race, religion, nationality, political opinion or membership of a particular group. The Applicant’s evidence is that this action was triggered by him reporting his boss to management for financial irregularity.”
After making those significant findings the Tribunal then found the Applicant did not have a well-founded fear of persecution for reasons of his political opinion. It concluded therefore that it was appropriate to affirm the decision not to grant a protection visa.
The Applicant's submissions
At the hearing before this Court the Applicant claimed that a further factor had been raised by him and provided to his former advisers who had made submissions on his behalf to the Tribunal. Specifically the Applicant claimed that he had forwarded a facsimile transmission to his former advisers setting out material which was not referred to by the Tribunal. I shall refer to that additional material presently.
It is clear that the Applicant, who is self‑represented, had some difficulty in providing appropriate submissions to the court concerning his grounds in support of the application for judicial review. As mentioned, he did provide a copy of a facsimile transmission report dated 14 October 2005, which I was satisfied was addressed to his former advisers who appear on record as providing further submissions for and on behalf of the Applicant. The document, which became exhibit A1, was translated for the court by the interpreter and the transcript reveals the contents of that document are as follows:
“On February 2004 I was live in the city of Tianjin, China. Where I live, have a urban renew project undertaking for the old city area, and the Chinese Communist Party, without any consultation with local resident, make the decision in the matter of the money or currency and then demolish all the houses. Because special reason with my working unit and with the suppress from the Chinese Communist Party, they cancel all my qualifications for welfare allotment of the new house. I was live in this 10 square metre old house before. Due to the exchange rate decided by the Communist Party, the old house demolish and then exchange money (indistinct) approximately 48,000 Chinese dollars. At that time it was almost impossible to buy a new house and the Chinese Communist Party derived my privilege to buy a new residential house. Those people who perform the demolish works are so bureaucratic …(reads) … and all my energy, my physical strength and my financial strength has come to the very extreme end.”
It is clear that that document though not translated completely appears to raise what the Applicant asserts to be a further factual issue which would provide a basis upon which he could support a claim for a protection visa. Essentially it is suggested that in February 2004 the Applicant's house had been demolished as part of an urban renewal program. When I asked the Applicant whether that related to his own premises, for which he apparently was offered what he described as inadequate compensation by the relevant authorities, he claimed that a number of houses were demolished and in fact referred to approximately 1000 houses being demolished.
The Applicant argued that in the circumstances his legal advisers should have forwarded that information to the Tribunal prior to the Tribunal delivering its decision. During the course of the hearing an issue arose as to whether or not the supplementary material in the facsimile transmission ought to have been raised by the Applicant's then advisers with the Tribunal and/or, if so, whether that constitutes negligence on the part of the Applicant's then advisers. A further question was raised as to whether that negligence, that is, alleged failure to present relevant material could be then visited upon the Applicant, could be determined by the court.
First Respondent’s Submissions
The First Respondent submitted that in this application there is no reasonable cause of action demonstrated in the grounds sought to be relied upon by the Applicant. The First Respondent specifically submitted that the Tribunal in its findings, referred to earlier in this judgment, demonstrated that the Tribunal addressed the claims made by the Applicant. In doing so, it made a decision clearly adverse to the Applicant.
It was submitted that the critical elements of the claim were properly characterised as including an allegation of corruption against the Applicant's employer, an allegation that his employer bribed state agents, that his employer was well‑connected and could use connections to harm the Applicant, that the employer himself or through non‑government agents poses a threat to the Applicant and the Applicant considers that the police would not help him.
Those ingredients or essential parts of the claim, it was submitted, were considered and determined by the Tribunal. It determined, as it was entitled to determine, that that harm alleged by the Applicant was not the product of any imputed political opinion but rather the product of a company leader's personal enmity toward the Applicant. So much can be inferred by the Tribunal's finding that the harm visited upon the Applicant was triggered by his report of financial irregularity.
It was submitted in the alternative, in relation to the second ground raised by the Applicant where he alleges the Tribunal failed to deal with his claim on the ground that he feared persecution by reason of the government's inability or unwillingness to protect him, that that allegation misstates the relevance of the issue of state protection. In this instance the Tribunal, having found that the Applicant was not the subject of convention based persecution, was not required to consider state protection.
The first Respondent, in the discharge of the model litigant obligations, raised a further matter, namely that the Tribunal did not expressly refer to the Applicant's statutory declaration and submissions in reaching its decision. It was conceded that the failure to refer to material presented by an Applicant may in certain circumstances constitute jurisdictional error.
In the present case however it was submitted that it could be inferred that the Tribunal did have regard to the materials relied upon by the Applicant, including his statutory declaration and other submissions. So much is clear from the summary of the claims of the Tribunal set out earlier in this judgment. It was submitted that that confirms the source of information was the visa application and that that application included the statutory declaration of the Applicant.
The First Respondent argued that submissions made by the Applicant also generated reference by the Tribunal to relevant country information, which was specifically referred to and which ultimately was preferred over the information provided in the submissions supplied to the Tribunal by the Applicant's representative. Accordingly, it was submitted, no jurisdictional error arises in relation to the manner in which the Tribunal dealt with the Applicant's submissions and statutory declaration.
The first Respondent was granted the opportunity to file and serve further submissions in relation to any alleged failure by the Applicant's advisers to provide to the Tribunal the supplementary information concerning the demolition of the Applicant's dwelling. In the supplementary submissions filed on 3 July 2006 objection was taken to the Applicant’s late request for leave to amend his application for judicial review to include a ground concerning the demolition of the Applicant’s dwelling. It was submitted that the Court should have regard to the surrounding circumstance of the case including whether an adequate explanation for the delay in seeking to amend the application has been offered. It was noted that the dictates of justice are the paramount consideration (see SZGTE v Minister for Immigration & Multicultural Affairs (2006) FCA 443 per Graham J at [34]). In this case any alleged error by the Applicant’s former representative it was submitted does not infect the Tribunal’s decision with error. It was argued that the Applicant’s proposed new ground relying upon the failure of the solicitor to forward information concerning the demolition of the Applicant’s house is simply a fresh basis for attack on the Tribunal’s decision. It was submitted there should be an end to the litigation about the efficacy of the Acts or decisions of public bodies (see Re Commonwealth of Australia Ex parte Marks (2000) 177 ALR 491 at [15]). In any event it was submitted that without necessarily addressing the merits of the Applicant’s claim, it does not appear to be one capable of supporting a finding that the Applicant is a person to whom Australia has protection.
Reasoning
In my view the application and the grounds relied upon by the Applicant do not reveal any or any proper basis upon which this court may conclude the Tribunal has committed jurisdictional error in reaching its decision.
I am satisfied the Tribunal has dealt with each of the claims put by the Applicant clearly and has otherwise addressed, although not expressly referring to, those matters raised by the Applicant in his statutory declaration and in the submissions by his then representative. Those matters have clearly been the subject of significant adverse findings after the Tribunal has accurately summarised the claims as set out earlier in this judgment.
I can see no jurisdictional error in the manner in which the Tribunal has considered this application. In my view, neither of the grounds relied upon by the Applicant can be sustained. The Tribunal specifically considered the conduct of the Applicant's employers and, having found that there was not a convention reason for the treatment, it was not then required to consider state protection.
Further, I am satisfied that the supplementary material sought to be relied upon by the Applicant would not in any event be sufficient to raise any issue of persecution against the Applicant, given that, on the Applicant's own statement before this court, the demolition of houses applied to some 1000 houses in a district and could properly be regarded as an urban renewal program for which compensation was offered.
The mere fact that this occurred and that the compensation was claimed by the Applicant to be inadequate does not of itself provide any or any proper basis upon which it could be concluded that the supplementary information would be relevant to this application. Hence whether or not the solicitors provided the information to the Tribunal is likewise irrelevant as it is my conclusion that that information could not conceivably be relevant to the application before the Tribunal. I am not prepared to conclude that the Applicant's former advisers were therefore negligent in failing to provide that information.
If the advisers had been negligent in providing what I regard as irrelevant information, then there cannot be any practical injustice. If, on the other hand, the information was clearly relevant then that may raise another issue, which I am not required to determine, namely whether that negligence should be visited upon an Applicant. In my view it is not in the interests of justice to permit the Applicant to amend the application to raise the new ground now sought to be relied upon.
It will be noted in this instance that I have given the Applicant the benefit of providing information without supporting affidavit material. I have deliberately permitted that to occur, so that I could understand the grievance of the Applicant relating to this additional material which he claims was not forwarded to the Tribunal by his then advisers.
However, having given him that advantage, it was also appropriate that I should ask further questions of the Applicant to put into context the question of the demolition of his house. Having done that, then the court, in my view, is entitled to rely upon what the Applicant states in relation to that issue and to draw the conclusion that I have drawn, that in any event that material would not have been relevant to the outcome of this application for a protection visa. I do not accept that there has been any denial of procedural fairness in this instance.
In any event, it is difficult to conclude that the Tribunal has denied the Applicant procedural fairness, when failure to forward the supplementary material was a failure on the part of the solicitors. As I have indicated, it is not necessary for me to draw a conclusion about the consequences of a negligent act by solicitors previously acting for an Applicant when in the circumstances of the case I am satisfied the information the Applicant believed relevant was not, in my view, relevant to the application and the solicitors were not required to forward it to the Tribunal in any event.
Conclusion
The Applicant further relied upon supplementary written submissions which the First Respondent’s solicitors acting as a model litigant arranged to translate. The submissions dated 12 July 2006 from the Applicant effectively seek to raise the Applicant’s concerns which may well be genuine if he were to return to PRC. They raise specific concerns about the difficulties the Applicant will face upon return to China from Chinese officials and it is noted that the Applicant expresses concern that as an informer he will not be protected. He asserts, “If I return to China I may vanish”. He asks the Court to pay attention to that point and others made in the written submissions. In my view those written submissions do not advance the matter any further for the Applicant as they recite matters which in substance were considered by the Tribunal in its reasoning process which I have found to be free of jurisdictional error.
It follows for those reasons that leave to amend the application should be refused and the application should be dismissed with costs.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 18 August 2006
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