NBGF v Minister for Immigration - [2005] FMCA 932

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NBGF v MINISTER FOR IMMIGRATION

[2005] FMCA 932

MIGRATION – Application for review of a decision of the Refugee Review Tribunal – no reasonable cause of action disclosed – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.91R(1), 91R(1)(b), 91R(2)(f)

Applicant:

NBGF

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 1748 of 2004

Judgment of:

Pascoe CFM

Hearing date:

4 July 2005

Delivered at:

Sydney

Delivered on:

14 July 2005

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Australian Government Solicitor

Counsel for the Respondent:

Nil

Solicitors for the Respondent:

Nil

ORDERS

That the Refugee Review Tribunal be joined as a party.
That the applications be dismissed.
That the applicant pay the respondent’s costs fixed in the sum of $4200.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1748 of 2004

NBGF

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 26 March 2004 and handed down on 20 April 2004 affirming a decision of the Minister’s delegate not to grant a protection visa to the applicant.
The applicant, who is a citizen of the People’s Republic of China, arrived in Australia on 16 September 2003. On 22 September 2003, the applicant lodged an application for a protection (class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs. On 9 October 2003, a delegate of the Minister refused to grant the applicant a protection visa and on 6 November 2003 the applicant sought review of that decision.
On 13 May 2004, the applicant filed an application in the Federal Court of Australia seeking review of the Tribunal’s decision and on 31 May 2004 consent orders were made, including an order that the applicant file and serve an amended application. On 1 June 2004 Hely J transferred the matter to this Court. An amended application was filed with this on 30 August 2004 which states:
I am a Chinese citizen. I arrived in Australia on 16 September 2003. I applied for a protection visa on 22 September 2003 with DIMIA. DIMIA refused to grant me a protection visa on 9 October 2003. I applied for a review of decision. RRT decided that I was still not a refugee on 26 March 2004.
I studied for 9 years in primary and secondary school, after which I did unspecified work for several years. I was successively employed as a chef in three restaurants in Shanghai until May 2003. I was employed as top chef in three restaurants in Lao Feng Ge, a famous Shanghai seafood restaurant. In May 2003, I cooked for some seven to eight local governors who were in Shanghai to inspect the SARS epidemic situation. After the meal, they fell will with food poisoning and were hospitalized for several days. It was my manager that insisted on saving food for longer period, given the fall-off in business during the SARS outbreak. I opposed the manager’s idea but I was blamed because I handled the food.
As a result, my chef’s license was cancelled. I was detained without charge for an unspecified period and forced to eat spoilt food. My family’s appeal to the court against the cancellation of my license but we were unsuccessful.
On 8 February 2005 the respondent filed a Notice of Motion seeking to summarily dismiss the substantive application for failing to identify any reasonable cause of action. That application was listed with the substantive application.
At the hearing I felt it appropriate to give the applicant every opportunity to outline his grounds for seeking a review of the Tribunal decision. I elected not to deal with the summary dismissal application. Insofar as I could illicit from the applicant, he claimed firstly that the Tribunal had erred in not taking into account all of the substantive claims made by him in relation to the incident with the health inspectors. Secondly, that the Tribunal had erred in its finding that he did not fall within s.91R(1)(b) of the Migration Act 1958 (Cth) (“the Act”) in that he could no longer earn a living of any kind in China, even at subsistence level.
In the material provided to the Tribunal the applicant responded to some of the matters raised in the delegate’s decision. He claimed that in the context of the SARS epidemic, food poisoning was a political incident and the governors, having interpreted it that way, were intent on pursuing the applicant, that the cancellation of his license constituted political persecution rather than private revenge or an appropriate response to the incident which had occurred. He explained his lack of documentary evidence as attributable to the circumstances in which he had to leave China, and claimed he would not have forsaken his career as a chef in Shanghai had he not been forced to do so as a result of political persecution.
At the hearing the Tribunal noted the applicant’s claim that the officials taken ill with food poisoning were high ranking Shanghai public health inspectors (not governors who were visiting Shanghai from elsewhere), who were checking restaurants on a daily basis in light of the SARS epidemic. Apparently, they came back each day to eat free of charge at the restaurant because it was one of the best. The day after the incident the applicant learned that they had all been hospitalised with food poisoning for about 3 days and that the documentation relating to the source of the food poisoning had been confiscated by Chinese officials. The day after they left hospital, some of the inspectors came to his restaurant and blamed him for poisoning them. He was detained and interrogated by police for a period of less than 18 hours (which was permissible without laying charges) and therefore, there was no documentation. Two weeks later he was dismissed by the restaurant owner. The applicant sought legal advice and filed a claim for violation of human rights, but the claim was dismissed and not supported by Chinese law. From May 2003 until his departure in September 2003 the applicant lived off his savings. He claimed that since his departure from China his family have been regularly harassed by officials. The applicant also claimed that officials have said that they will sue him but at present there is no claim. The Tribunal put to the applicant that the country information suggested that if there had been legal action pending against him he would not have been in a position to leave Beijing Airport lawfully. He claimed however to fear continuing harassment if he returned to China and further that he will be denied any future capacity to earn a living in the restaurant/catering industry in that country.
At its hearing the Tribunal put to the applicant some of its doubts about the truth of his claims, particularly in relation to the hospitalisation of key health officials including that they would seek to link him to public order issues, and that they would have the resources and motivation to pursue him to the extent claimed, even after his license had been cancelled. The Tribunal also put to the applicant that the officials’ reaction and his problems appear to have arisen out of his employment relationship, the role of the public health inspectors and possibly their anger at having been poisoned, rather than for any political reasons. The Tribunal also put to the applicant that his dismissal by his employer and cancellation of his chef’s license did not amount to a loss of the right to subsist, given his age and level of education and his capacity to find employment as a chef in another city.
In its reasons for decision the Tribunal found that the applicant had exaggerated some aspects of his claims to strengthen his case. However it accepted that he was a chef in Shanghai, and that he lost his license as a result of a food poisoning incident. It also accepted that officials called in for free meals and that this may have raised the prospect of conflict of interest and corruption. The Tribunal noted the difference in the applicant’s description of the officials in his protection visa application as compared to his description at the hearing. It accepted the account given at the hearing – that is the officials were health inspectors. It also accepted that they had more power in the context of the SARS epidemic. It accepted that a food poisoning incident occurred but, in the absence of any supporting evidence, it found that the claim that the officials were hospitalised was a fabrication to strengthen the applicant’s claims. The Tribunal however accepted that the restaurant manager would have blamed the applicant to deflect blame from himself and that the officials were angered by having been poisoned. The Tribunal also accepted that the cancellation of the applicant’s license meant that the applicant could no longer work as a Chef in Shanghai.
In its reasons for decision the Tribunal found that although the above incidents were unfair to the applicant they were not matters which constituted serious harm within the meaning of s.91R(1)(b) of the Act nor were they matters that fell within the meaning of “the denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist” (s.91R(2)(f)). The Tribunal noted the applicant’s concession that he could have relocated to another city to find employment and accept a lower paid position. The Tribunal also found that the applicant may have to draw on his savings to some extent in order to maintain his lifestyle but this did not amount to a loss of the capacity to subsist.
The applicant contended before the Tribunal that he had been denied due legal process in China. The Tribunal found that the applicant had not been denied due legal process. The Tribunal found that the officials cancelled his license as a result of their conclusion that he had breached health regulations. The Tribunal accepted that they may have been partly motivated by personal anger at having suffered food poisoning, or embarrassment at the possibility of having their corrupt practice of dining free of charge revealed. They may also have acted more boldly in the context of the SARS epidemic. However, the Tribunal was not satisfied that an essential and significant reason for the cancellation of the license was the applicant’s political opinion, actual or imputed within the meaning of s.91R(1) of the Act.
Accordingly, the Tribunal was not satisfied that the applicant had suffered persecution on Convention-related grounds and it found no reason to believe that if he were to return to China he would face a well founded fear of persecution.
I can see no apparent error that would bring the Tribunal findings either in relation to the incident with the health inspectors and its possible consequences for the applicant in terms of s.91R(1)(b) or in relation to the applicant’s capacity to earn a living (especially given his own admissions) into jurisdictional error. Nor can I see any other error in the Tribunal’s reasoning in relation to this matter, let alone jurisdictional error. I note further that the amended application did not assert any jurisdictional error. It merely restates the factual claims. The decision of the Tribunal is a privative clause decision. Accordingly, the applicant’s amended application is dismissed
As the applicant has been wholly unsuccessful it is appropriate that costs follow the event. The respondent has sought a fixed sum of $3500 and I am satisfied that this is a proper amount.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Pascoe CFM

Legal Associate: Peter Smith

Date: 14 July 2005