SBZF v Minister for Immigration
[2008] FMCA 176
•22 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SBZF v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 176 |
| MIGRATION – Judicial review of Refugee Review Tribunal decision – Uigher Chinese – alleged jurisdictional error arising from failure to consider persecution on account of religion as constituted by constraints against public worship – further alleged jurisdictional error arose from failure to consider persecution on account of political opinion imputed arising from son’s activities – applicant’s son succeeds in review. |
| Migration Act 1958, ss.91R, 474 and 476 The Constitution, para. 75(v) |
| Plaintiff S157/2002 v The Commonwealth of Australia (2003) 195 ALR 24 Craig v State of South Australia (1995) 184 CLR 163 Wang v Minister for Immigration and Multicultural Affairs [2000] FCA 1599 Applicant S395/2002 v Minister for Multicultural and Indigenous Affairs (2003) 216 CLR 473 NABE v Minister for Immigration (2004) 144 FCR 1 Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 |
| Applicant: | SBZF |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | ADG 61 of 2007 |
| Judgment of: | Lindsay FM |
| Hearing date: | 11 October 2007 |
| Date of Last Submission: | 11 October 2007 |
| Delivered at: | Adelaide |
| Delivered on: | 22 February 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Ower |
| Solicitors for the Applicant: | McDonald Steed McGrath |
| Counsel for the Respondents: | Mr Tredrea |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The Application for judicial review filed on 6 May 2007 do stand dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADG 61 of 2007
| SBZF |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
These proceedings relate to an application pursuant to s.476 of the Migration Act 1958 (the “Act”). The applicant seeks orders by way of judicial review. This Court has the same original jurisdiction in relation to judicial review of migration decisions as the High Court of Australia has under paragraph 75(v) of the Constitution of the Commonwealth of Australia. None of the provisions of s.476 of the Act, which deals with the circumstances in which the Court cannot exercise the jurisdiction, apply. In particular the decision is not a primary decision.
Section 474 of the Act however does apply. The decision, the subject of this application, is a privative clause decision and must be regarded as final and conclusive unless the decision can be demonstrated to have been vitiated by jurisdictional error as that concept was explained in relation to the provisions of the Act relating to migration decision in Plaintiff S157/2002 v The Commonwealth of Australia (2003) 195 ALR 24 and more generally as the concept was explained in cases such as Craig v State of South Australia (1995) 184 CLR 163.
The applicant is a citizen of China of the Uigher race. She arrived in Australia on the 2 August 2006 and lodged an application for a protection visa on the 17 August 2006. The Minister’s delegate refused to grant the visa on the 23 October 2006. Her subsequent application for review to the Refugee Review Tribunal (the “Tribunal”) was unsuccessful. The Tribunal affirmed the decision not to grant the protection visa.
A daughter of the applicant emigrated to Australia in 1995 as the spouse of an Australian citizen. Her husband, the applicant’s son in law, provided a statutory declaration to the Tribunal about his experiences in China in 1997.
A son of the applicant namely Ainiwaer Mahemuti (referred to by the applicant as “Mahmut”) arrived in Australia on the 2 August 2006. He applied for a protection visa which was also refused by the delegate to the Minister but notification of his successful review of that refusal by the Tribunal was given to the applicant and to the Tribunal constituted for this matter in a post- hearing letter. The circumstances of her son’s entitlement to a protection visa form a significant part of the argument advanced before me on the applicant’s behalf and I will deal with it hereunder.
The application raised four grounds for review but Mr Ower, for the applicant expressly abandoned grounds one and two before me. The remaining grounds as developed by Mr Ower essentially put three propositions to me. Firstly, that the Tribunal fell into jurisdictional error by failing to consider or asking the wrong question in relation to the applicant’s case as it relied upon persecution relating to the applicant’s religion; secondly, that the jurisdictional error was comprised of a failure to consider or to make findings in relation to the applicant’s claim as it related to a fear of being persecuted due to her association with her son; and finally that it asked the wrong question and fell into jurisdictional error in that it evaluated the applicant’s case on persecution without considering whether there was a real chance of future persecution even if it were to find that there was an absence of past persecution.
The Minister will have protection obligations under the Convention and Protocol if he is satisfied that the applicant has a well founded fear of being persecuted for reasons of religion. The applicant’s case as to religious persecution was that she was an adherent of Islam. The submissions made on her behalf in writing by her agent included the contention that when she worked as a teacher in China (her husband was also a teacher) in East Turkistan from the early 1960s until November 1991 and then, following her retirement, when she received a pension, she was not permitted to practice her religion or any religious rituals. The authorities would regularly check houses to see if adherents were praying or fasting and that she was not permitted to wear the hijab which is a requirement of her religion. Furthermore, she was obliged to care for pigs, which is also contrary to her religion. The submission also contended that she was not permitted to attend the mosque and not permitted to fast during ramadhan. It was contended that Muslims in East Turkistan are regarded as separatists. Muslims in China generally are tightly controlled by the authorities. They cannot choose their own imam. Government employees who are Muslims are sacked. Uighers are forced to eat during ramadhan.
The applicant also provided a statutory declaration to the Tribunal dated the 1 December 2006 which expanded upon questions of religious persecution. The statutory declaration is included in the court book but was not expressly referred to at any stage of the Tribunal decision. Nevertheless, an occasion referred to in the statutory declaration when the applicant was visited by an official whilst praying in the house and pretended to be cleaning in the house is referred to in the findings of the Tribunal.
A quantity of country information was also relied upon in support of this aspect of the applicant’s claim.
Material was also provided indicating that the applicant regularly attends a mosque in Adelaide.
The Tribunal deals with this aspect of the claim at CB 331 in a somewhat summary fashion. Here is what it has to say:
The applicant has also made claims about being discriminated against as a Muslim. She said that people in government positions, such as teachers and those on pensions, as she was, are not allowed to practice their religion. On one occasion she was visited by an official while she was praying and she pretended to be cleaning the house. At the hearing the applicant said ‘they’ did not allow her to pray and fast. When asked ‘how did they stop you?’ she did not answer.
She said she spent Ramadan 2006 in Australia and for Ramadan 2005 she was in hospital in China.
Country information indicates that the government recognized five main religions, Islam among them. The government tried to control and regulate religious groups, especially groups that were unregistered, to prevent the rise of sources of authority outside the control of the government and the party. Freedom to participate in officially sanctioned religious activity continued to increase in most arrears although there were crackdowns against Muslim Uighurs, among others.
The applicant has not claimed that she lost her teaching position because of her religion or that she was effectively prevented from practising her religion in private. She ahs made no claim that she suffered persecution or came to the attention of the authorities on the basis of her religion. There is no evidence before the Tribunal that the applicant has come to the attention of the authorities because of her religious practices or that she has been treated any differently from the population at large in regard to her religion.
The Tribunal finds that the applicant has not suffered persecution on the basis of her religion.
The Tribunal finds that the applicant has not suffered persecution on the basis of her ethnicity.
Mr Ower’s first complaint is that it was inadequate for the Tribunal to deal with the applicant’s claim about restriction on public practice of her religion to simply say that she did not claim she was practising her religion in private. The applicant was entitled, he says, to have her claim evaluated on the basis of her desire to practice her religion by way of public manifestation of her beliefs. He relied upon the decision of Wang v The Minister for Immigration and Multicultural Affairs [2000] FCA 1599 in support of his submission that there are two elements to the concept of religion as expressed in the Convention, the manifestation of personal faith and the practice of faith in a congregation or like minded community. It is said the Tribunal failed to even consider her claim as to restriction on public expression of her faith and that such constitutes a jurisdictional error.
However, when regard is had to the statutory declaration and to the submissions made in respect of religion one does not find an especially focused reference to the denial of public worship.
Moreover, the case the applicant put on religious persecution was one of general repression - including restrictions on dress, forced performance of tasks inconsistent with religious tenets, disadvantage in employment and invigilation of private prayer. It did not include a great deal of information about specific instances of persecution relating to the applicant personally. That does not mean that it did not have to be given proper consideration but it does have an impact on our evaluation of the way the Tribunal went about its task. The one very specific occasion referred to in the statutory declaration is identified in the Tribunal’s findings (the visit by an official to her house during prayer). The reference to the fact that her employment has not been lost and as to the applicant not being the focus of specific attention by the authorities are unsurprising observations in a decision of this kind. It is a matter of the Tribunal putting the allegations in some perspective rather than an indication that the Tribunal was suggesting that such allegations were a necessary part of an allegation of religious persecution.
In other words, I think that the Tribunal is here principally engaged in the task of the evaluation of “serious harm” as that expression is used in s.91R of the Act rather than trying to apply an inappropriate test as to what constitutes religious persecution.
Of course, it is literally incorrect for the Tribunal to claim, as it does at CB 331 that “she has made no claim that she suffered persecution … on the basis of her religion”. The submissions of the agent, the statutory declaration and the country information provided demonstrate that the applicant was making such a claim. Indeed, aspects of the claim made (although not many of them) are in fact set out by the Tribunal a few paragraphs above the passage to which I have just referred.
It would certainly have been helpful if the Tribunal had specifically dealt with more aspects of the claim rather than contenting itself with the summary that “those on pensions, as she was, are not allowed to practice their religion” but if we bear in mind the generalised nature of the applicant’s claim - the absence of applicant-specific persecutory acts - I think that the effect of the Tribunal’s somewhat summary approach is mitigated. Similar considerations apply to the Tribunal’s failure in this context to delineate its “serious harm” evaluation from the actual identification of the applicant’s claims.
It is also to be borne in mind that the Tribunal did not receive a response from its inquiry of the applicant during her evidence as to how the authorities prevented her from praying or fasting (CB 331).
I agree with Mr Tredrea, for the Minister, that the passage in which the Tribunal deals with the applicant’s religious beliefs do not contain any error of the type referred to by the High Court in Applicant S395/2002 v Minister for Multicultural and Indigenous Affairs (2003) 216 CLR 473 (see especially the Judgment of McHugh and Kirby JJ at [58] - [60]). I do not understand the Tribunal to be positing the existence of a specific ‘private-prayer’ Muslim group who are immune from persecution in a way in which ‘public-ritual’ Muslim groups are not. I have already indicated that this discussion arose, in my view, in the context of an evaluation of the serious harm issue. There is nothing to indicate the Tribunal did not consider the specific and personal circumstances of the applicant although I readily acknowledge that the discussion of such matters could usefully have been more expansive.
Taking all of these matters into account, I do not consider the Tribunal fell into jurisdictional error in the way in which it dealt with persecution on the basis of the applicant’s religion.
The applicant’s husband had a history of being persecuted by the Chinese authorities on account of his political activities as a Uigher. He was arrested in 1990 and died in detention in 1993. During their marriage the applicant and her husband had been dispersed to work on farms. The Tribunal appears to have little difficulty in accepting the applicant’s account of her husband’s activities and of the difficulties she and her husband experienced at the hands of the Chinese authorities.
The husband’s activity was referred to by the applicant’s agent in the submission made on behalf of the applicant to the Tribunal as was the activities of the applicant’s son Mahmut. When that submission was made the applicant’s son, it was said, had been asked to act as a spy for the Chinese in the East Turkistan community in Australia and had been actively involved in the East Turkistan’s activities in Australia (CB 185). The combined effect of her family history and her own association with East Turkistan activities, so her agent said on the applicant’s behalf, gave rise to a serious chance of persecution if the applicant was returned to China. The submission was augmented by a letter forwarded by the agent to the Tribunal after the hearing in which the Tribunal was advised that Mahmut had been successful in his review from the Minister’s refusal to grant him a protection visa.
Mr Ower asked me to infer that the Tribunal had access to the file held by the Tribunal differently constituted in relation to Mahmut and I was provided with a copy of that Tribunal’s reasons for decision.
For the purposes of this application I am prepared to draw that inference.
Mr Ower says that all of these matters give rise to a claim for a well grounded fear of persecution on the basis of imputed political opinion. In other words, the Tribunal should have asked the question of itself as to whether the applicant may be persecuted by Chinese authorities not for what she herself believes but for what they perceive her to believe based on her association with her son (and taking into account the history relating to her husband).
To the extent that this aspect of the claim is not expressly advanced Mr Ower says that the Tribunal was obliged to consider the issue even if it was unarticulated because it was raised clearly on the material available to the Tribunal which it had a statutory duty to consider. The imputed political opinion argument was said to arise clearly on the materials before the Tribunal. Reliance was placed on the discussion of this issue by the Full Court of the Federal Court in NABE v The Minister for Immigration (2004) 144 FCR 1 at [58] - [63], especially at [63]:
It is plain enough, in the light of Dranichnikov, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error.
The error is manifest according to Mr Ower in the following passage of the findings:
The Tribunal did not pursue the question of what happened to the applicant’s son because the present matter and hearing were not about his claims: his claims were dealt with independently by another member. In any case, the Tribunal has already noted that the applicant’s son, despite his alleged arrest and mistreatment, did not have his passport confiscated or cancelled and was able to leave China legally at a time of his own choosing. The Tribunal has since been advised by the agent that the applicant’s son has had his protection visa review application remitted by the Tribunal (differently constituted). The fact does not support that the applicant is herself a person to whom Australia has protection obligations under the Refugees Convention.
Criticism is also made of the Tribunal’s finding (at CB 330) that:
… on the evidence discussed, the Tribunal is not satisfied that the Applicant and her surviving family members are of any adverse interest to the Chinese authorities.
That finding, as it relates to Mahmut, was said to be incorrect, or at least inconsistent with the findings of the Tribunal that dealt with his review.
We enter into difficult waters if we try to compare differently constituted Tribunals’ findings as to the status or experience of persons not the subject of these proceedings. It is not factually incorrect for the Tribunal to assert that Mahmut did not have his passport cancelled and was able to leave China legally at the time of his own choosing, although it is unclear which departure from China is being referred to (see pp. 8 and 9 of the findings of the Tribunal in case number 060825771, which appears as the annexure to the affidavit of Jane McGrath filed on 2 October 2007 and before me on this review). The finding that Mahmut is not of “adverse interest” to the Chinese authorities is more contentious certainly if one looks at the materials before his Tribunal, especially Mahmut’s statutory declaration which that Tribunal, despite some lack of reference to it in his evidence (see p.9 of those same findings) before that Tribunal, accepted. But the Tribunal in this case had noted his “alleged arrest and mistreatment” (see CB 329) in coming to that view. This Tribunal did not have the findings of the Tribunal which reviewed Mahmut’s decision, of course, only advice to what the outcome was. It would not in any relevant sense have been bound by specific findings of that Tribunal in any event. Mahmut did not give evidence before this Tribunal.
To be fair to Mr Ower, he recognised that the only relevance of Mahmut’s experience was with respect to the evaluation of this applicant’s claims to how a well-founded fear of persecution on account of political opinion could be imputed to her on account of her filial association with her son. The Tribunal was obliged to ask itself: could this applicant be at risk of persecution because the authorities will impute her son’s political opinions to her? The political activities of her son were principally those he carried out in Australia, rather than China, though his Tribunal was satisfied that they survived the necessary evaluations of their genesis pursuant to s.91R(3) of the Act. It was Mr Ower’s complaint that no such question was asked and that the Tribunal thereby fell into jurisdictional error.
But I think that a fair reading of the Tribunal’s decision indicates that such a consideration was properly evaluated. The Tribunal knew of, and noted, the experiences of both the applicant’s husband and son (and son-in-law, less significantly). The husband had, after all, died in detention. What was significant for the Tribunal, and, I may say, understandably significant, was that, notwithstanding these issues, the applicant had not suffered convention-related harm herself. The Tribunal found (and it was not disputed) that she was not a political activist herself (CB 332). Her claim for refugee status on account of political activity (bound up with Uigher ethnicity) was always to be evaluated on family association criteria. Apart from the fact of her ethnicity, it did not otherwise arise on the facts of this case. I am satisfied the Tribunal did give proper consideration to the political opinion that might be imputed from her son’s Australian East-Turkistan activities, just as it did to that which might have been imputed from her deceased husband’s activities.
That discussion takes us to Mr Ower’s related, but ultimately discrete, point, that the Tribunal failed to properly evaluate the risk of future persecution, but instead constrained itself to findings in relation to past incidents of religious, ethnics and imputed political persecution. He relied upon the statement of principal elaborated by Gummow and Hayne JJ in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (supra) at [73] - [74]:
73. The objective element requires the decision-maker to decide what may happen if the applicant returns to the country of nationality. That is an inquiry which requires close consideration of the situation of the particular applicant. It requires identification of the relevant Convention reasons that the applicant has for fearing persecution. It is necessary, therefore, to identify the “reasons for race, religion, nationality, membership of a particular social group or political opinion” that are engaged.
74. Because the question requires prediction of what may happen, it is often instructive to examine what has happened to an applicant when living in the country of nationality. If an applicant has been persecuted for a Convention reason, these will be cases in which it will be possible, even easy, to conclude that there is a real chance of repetition of that persecution if the applicant returns to that country. Yet absence of past persecution does not deny that there is a real chance of future persecution.
That description of the task is contrasted by Mr Ower with the Tribunal’s findings as to future persecution set out at CB 332:
The Tribunal does not accept that the applicant has been a victim of persecution on the basis of her ethnicity or by association with family members who may themselves have experienced discrimination by the authorities, as claimed, or on the basis of her religion.
The Tribunal is not satisfied that the applicant has been seriously harmed in the past. The Tribunal does not accept that the applicant faces a real chance of serious harm amounting to persecution in the reasonably foreseeable future.
I agree that the way in which the risk of future persecution is dealt with in the Reasons can certainly be described as summary. It is a base finding.
But as the majority of the High Court pointed out in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 575:
In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.
The Tribunal was not given any evidence or other material which involved an express indication of how the applicant would behave in the future, with respect to either religious observance or political/ethnic-related activity (imputed or otherwise). It would reasonably have assumed that she will behave in the future as she behaved in the past, unless it was given a basis for considering otherwise (or, alternatively, some evidence was available on the topic of a possible change in the attitude adopted by the relevant authorities to certain practices). It would in those circumstances be an otiose exercise, having reached conclusions about past activities not having led to persecution, for the Tribunal to expressly posit such activities happening in the future and then make findings - based upon a prognostication of future events – when it was given no basis for considering that future activities would be any different or the response of the authorities any more persecutory. In these circumstances, the Tribunal can only find, as here, that no chance of serious harm on account of such activities will occur in the reasonably foreseeable future.
Each case will be different. Some cases will require a more detailed prognostication of risk of persecution. I do not think that the Tribunal fell into jurisdictional error in this case by not embarking upon such an exercise.
The application for judicial review should be dismissed. I so order.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Lindsay FM
Associate: Ms N. Julius
Date: 22 February 2008
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