SZAON v Minister for Immigration
[2004] FMCA 216
•16 April 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAON v MINISTER FOR IMMIGRATION | [2004] FMCA 216 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of protection visas – principal applicant claiming political persecution in China and ethnic persecution in Indonesia – applicant claiming to be stateless – other family members making claims through the principal applicant – principal applicant found to be a Chinese national – other family members found to be Indonesian nationals – principal applicant found not to have a well founded fear of persecution in relation to China and other family members found not to have a well-founded fear of persecution in relation to Indonesia – whether the RRT erred in failing to consider whether the separation of the family members constituted persecution considered – whether the RRT needed to consider the principal applicant’s claims in relation to Indonesia considered – no reviewable error found – application dismissed. |
Migration Act 1958 (Cth), ss.91R, 417, 430, 476
Abebe v Commonwealthof Australia (1999) 197 CLR 510
Buljeta v Minister for Immigration (Federal Court of Australia, Katz J,
4 December 1998)
Calado v Minister for Immigration (Federal Court of Australia, Moore, Mansfield and Emmett JJ, 2 December 1998)
Daniel v Minsiter for Immigration [2004] FCA 21
Minister for Immigration v Sarrazola (No 2) (2001) 107 fcr 184
Minister for Immigration v Sameh [2000] FCA 578
Minister for Immigration v Yusuf (2001) 206 CLR 323
Plaintiff S157 of 2003 v Commonwealth (2003) 195 ALR 24
Re Commonwealth of Australia; ex parte Marks (2000) 177 ALR 491
Re Minister for Immigration; ex parte Applicants S134/2002 (2003) 211 CLR 441
Sellamuthu v Minister for Immigration [1999] FCA 247
SZAJA v Minister for Immigration [2004] FMCA 73
Thevendram v Minister for Immigration [1999] FCA 182
| Applicant: | SZAON |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ795 of 2003 |
| Delivered on: | 16 April 2004 |
| Delivered at: | Sydney |
| Hearing date: | 5 April 2004 |
| Judgment of: | Driver FM |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp |
| Solicitors for the Applicant: | Parish Patience Immigration Lawyers |
| Counsel for the Respondent: | Mr T Reilly |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application is dismissed.
The first applicant is to pay the Minister’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ795 of 2004
| SZAON |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 28 May 2001 and handed down on 19 June 2001. The RRT affirmed a decision of a delegate of the Minister not to grant the applicants protection visas. The applicants are a man and his wife and her two children by a previous marriage, constituting a family unit. The applicant wife and her two children were found to be Indonesian nationals. The principal applicant (the husband) was found to be a national of China. The applicant husband arrived in Australia on 5 June 1981. The applicant wife arrived in Australia with her children on 16 December 1994. On 23 September 1996 the applicants lodged an application for protection visas with the Minister’s Department. On 19 August 1997 a delegate of the Minister refused to grant protection visas to the applicants and on 18 September 1997 the applicants applied for review of that decision to the RRT. The applicants were represented before the RRT by their present solicitors.
The principal applicant (the applicant husband) was born in Indonesia about 1950 but his parents were nationals of China who migrated to Indonesia. They never became Indonesian citizens. The principal applicant was raised in Indonesia but went to China in 1967. He stayed there for approximately three years. From there he went to Hong Kong, where he stayed for five years before returning to Indonesia. The principal applicant made claims of ethnic persecution in Indonesia and political persecution in China. His wife and children made claims through him as members of the same family unit, however it is clear they feared ethnic persecution in Indonesia. The principal applicant asserted that he is stateless. However, in his submissions to the RRT, prepared by his solicitors, he referred to the possibility that he is a Chinese national.
The RRT found that the principal applicant was not and had never been a national of Indonesia and that he was not stateless. The RRT found that he was a national of China. The RRT found that the remaining members of the family unit were nationals of Indonesia. The RRT then proceeded to consider the principal applicant’s claims in relation to China and the claims of the other members of the family in relation to Indonesia. On page 24 of the decision (court book, page 545) the presiding member stated:
Taking all these things together, the Tribunal is satisfied that the Applicant is not stateless but that he has always been and has been recognised as and remains a Chinese national. Nor is there any evidence before the Tribunal to suggest that the Applicant would not be permitted to re-enter China.
It follows that the Tribunal must consider any claims the Applicant may have against his country of nationality, China, and not against Indonesia. The relevant question is whether the Applicant has a well-founded fear of persecution for a Convention reason should he return to China.
The Tribunal is satisfied that for the purposes of Article 1 of the Convention the Applicant wife and her children are nationals of Indonesia.
The RRT found that the principal applicant did not have a well-founded fear of persecution in relation to China and that the remaining applicants did not have a well-founded fear of persecution in relation to Indonesia.
On page 31 of the decision (court book, page 552) the presiding member considered the potential separation of the family and stated:
Humanitarian Consideration
Submissions have been advanced by or on behalf of the Applicant, his wife and her children of an essentially humanitarian or compassionate nature, particularly in the 30 April post-hearing statements by the Applicant and his wife. These relate primarily to the dislocation occasioned by re-establishment overseas after such a long period in Australia and (in the case of the children) difficulties of language and cultural adjustment. The prospect of a break-up of the family unit, with the Applicant and his wife and her children possibly having to return to different countries, has also been raised.
Although there is on the face of it some substance in these expressed concerns, the Tribunal’s role is limited to determining whether the Applicants satisfy the criteria for the grant of protection visas. A consideration of their circumstances on other grounds is a matter solely within the Minister’s discretion.
The applicant proceed on the basis of a further amended application filed by leave on 16 April 2004. In that application, the following grounds of review are advanced:
(1)The Tribunal committed jurisdictional error of law in that it failed to ask itself the right question, being whether the separation of members of the applicant’s family could be persecution in terms of s.91R of the Migration Act 1958 (Cth) (“the Migration Act”) for reason of their membership of a particular social group, being that family, or by reason of the children’s nationality.
(2)The Tribunal committed jurisdictional error of law in that it failed to ask itself the right question, being whether the applicant’s Chinese nationality would be effective, in the sense that he would be permitted to enter and reside in China.
Particulars
b)The Tribunal found that there is no evidence to suggest that the applicant would not be permitted to re-enter China, which is not equivalent to a finding as to satisfaction that he would be able to re-enter China, and
c)Not being satisfied that the applicant could re-enter China, the Tribunal failed to ask itself whether he could re-enter Indonesia (his country of former habitual residence) and if not whether that was itself persecution for reason of his perceived Chinese nationality.
The legislation
(1) Section 91R of the Migration Act provides as follows:
For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
(a)that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and
(b)the persecution involves serious harm to the person; and
(c)the persecution involves systematic and discriminatory conduct.
(2) Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:
(a a threat to the person's life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill-treatment of the person;
(d)significant economic hardship that threatens the person's capacity to subsist;
(e)denial of access to basic services, where the denial threatens the person's capacity to subsist;
(f)denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.
(3)For the purposes of the application of this Act and the regulations to a particular person:
(a)in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;
disregard any conduct engaged in by the person in Australia unless:
(b)the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.
Reasoning
I accept paragraphs 15-19 of Mr Karp’s written submissions on behalf of the applicants in relation to the first ground of review and adopt them for the purposes of this judgment:
It has been held many times that the procedure of the RRT is inquisitorial, not adversarial. It is for the RRT to find the facts and apply the law. In Abebe v Commonwealth of Australia (1999) 197 CLR 510, 576-7, Gummow and Hayne JJ said:
The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.
Consistently with the above, it has also been held many times that it is not for the RRT to make the applicant’s case for him or her. If an applicant does not put forward factual claims, then the RRT cannot be criticised for failing to uncover and address these claims.
The same does not, indeed cannot apply to the RRT’s reasoning as to the legal consequences of the facts that it finds. The RRT would be acting in an adversarial fashion if it were able to ignore legal issues that were not put to it. The Full Court of the Federal Court summarised the position in Minister for Immigration v Sameh [2000] FCA 578 by reference to the Court’s jurisprudence:
In Thevendram v Minister for Immigration and Multicultural Affairs [1999] FCA 182 (Spender, North and Merkel JJ, 9 March 1999) the Full Court observed that:
"... the inquisitorial and non-adversarial function of the RRT and the combined effect of the provisions governing the exercise of its inquisitorial powers (ss 414(1), 420, 425, 426, 427, 428 and 430) are such that the RRT is required to determine the merits of the case and in doing so each of the material issues raised by the material and evidence before it. That duty, in our view, is a fundamental incident of the statutory function of the RRT. In determining those issues the RRT must make findings on the questions which are central to the case raised on the material and evidence before it: see also Calado v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, Moore, Mansfield and Emmett JJ, 2 December 1998) at 21-22; Buljeta v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, Katz J, 4 December 1998) at 13-14; and Logenthiran at 13 per Wilcox and Lindgren JJ and 1-2 per Merkel J. The cumulative effect of the statutory provisions to which we have referred is that the RRT is under a duty to review the decision of the delegate on the merits and in doing so must have regard to all of the material and evidence before it and make findings on all of the material questions of fact raised by that material and evidence.
Similar views were expressed in Sellamuthu v Minister for Immigration & Multicultural Affairs [1999] FCA 247 (Wilcox, Hill and Madgwick JJ, 19 March 1999) and the cases discussed at pars 21-23 of their Honours' reasons. As that consideration indicates, the failure to address all the substantial matters which might bear on whether an applicant for a protection visa meets the Convention requirements of a refugee amounts to a constructive failure to exercise its jurisdiction. Such a decision will be one "not authorised by the Act" within the meaning of s 476(1)(c) of the Act, and may involve an error of law involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found within the meaning of s 476(1)(e) of the Act.
That case was of course decided under the now repealed Part 8 of the Migration Act, and the finding of error in failing to comply with the requirements of s.430 of the Migration Act was itself erroneous in law (see Minister for Immigration v Yusuf (2001) 206 CLR 323)). Nonetheless, the failure to “review” a decision by failing “…to address all the substantial matters which might bear on whether an applicant … meets the Convention requirements of a refugee amounts to a constructive failure to exercise its jurisdiction.
… the RRT would commit a jurisdictional error of law were it to address erroneously the legal consequences of the claims made to it, whether or not those consequences had been correctly addressed by the applicant’s advisors. That is a consequence of the inquisitorial nature of the RRT’s task (cf Minister for Immigration v Sarrazola (No 2) (2001) 107 FCR 184, 196 at [42]).
However, I reject Mr Karp’s submission that the RRT erred in failing to consider whether the separation or potential separation of the family in consequence of the RRT’s decision constituted persecution. Mr Karp himself concedes in paragraph 20 of his written submissions that if the principal applicant is forced to return to China his wife will probably be able to join him (see Article 7(1) of the Nationality Law of the People’s Republic of China: court book, pages 557-8). It is not clear whether the children would be able to join the husband and wife in China or, if they could join them, how long that would take.
As the RRT noted, the separation of the family raises humanitarian considerations that are properly matters for the Minister to consider. However, the RRT was not bound to consider that separation, or potential separation, as an issue of persecution. Quite apart from the fact that the issue of persecution by separation was not raised by any of the applicants, the outcome of such a consideration was inevitable. Persecution could only arise by reason of application of the Nationality Law of China. That is a law of general application. The principal applicant had made claims of political persecution in China, which, if they had been accepted, might have formed some basis for consideration of potential differential treatment of members of the applicant’s family by the Chinese authorities under the Nationality Law. But those claims by the principal applicant were rejected by the RRT. There were reasonable grounds for the RRT to reject the principal applicant’s claims on the material before it. Having rejected those claims there was nothing before the RRT which could have led to any conclusion of a persecutory application of the Law of Nationality by the Chinese authorities. In the circumstances, any consideration of the issue by the RRT would have been futile.
The second ground of review also fails. I accept Mr Karp’s submission that although the RRT cannot consider claims in relation to a country of habitual residence where the applicant is a national of another country (see the terms of Article 1A(2) of the Convention: court book, page 523) nationality must be considered in the context of effective nationality. In other words, to be effective, it must be open to an applicant to avail himself or herself of the protections of his or her country of nationality. Hypothetically, therefore, if the principal applicant could not gain entry to China his nationality may not be effective and the RRT would have been required to consider his claims in relation to Indonesia, his country of habitual residence. However, for these applicants there was no indication in the material before the RRT that the principal applicant would not be able to avail himself of his Chinese nationality. In that regard I accept in part and adopt for the purposes of this judgment paragraph 4 of Mr Reilly’s written submissions:
The [applicants] claim that the RRT committed a jurisdictional error by not considering “what would happen if the PRC authorities refused to allow the applicant to enter the PRC, or whether or not he would be permitted to do so without a PRC passport or travel document”. … these issues were considered by the Tribunal on the basis of the information before it at court book, pages 543-545, and it concluded that there was no evidence to suggest that the Applicant would not be permitted to re-enter China: court book, page 545.7. The RRT does not need to consider a claim not made: Re Minister for Immigration; Ex parte Applicants S134/2002 (2003) 211 CLR 441 at [30-32].
I find that there is no jurisdictional error in the decision of the RRT. It follows that the RRT decision is a privative clause decision and the application must be dismissed.
Mr Reilly also submits that I should, in any event, refuse relief in the exercise of the Court’s discretion on the basis of delay:
Even if the Court is of the view that the RRT’s decision is not a privative clause decision, the application should be dismissed because of the applicant’s delay in bringing the application. The application was not filed until 8 May 2003, almost two years after the RRT’s decision. In all but very exceptional cases a delay of more than a year warrants refusal of relief: Re Commonwealth of Australia; ex parte Marks (2000) 177 ALR 491 (HCA/McHugh J) at [16]. The applicant has not attempted to explain the delay. The applicant’s delay in bringing the application should lead the Court to refuse relief in its discretion: SZAJA v Minister for Immigration [2004] FMCA 73 (Driver FM).
In opposition to that submission, Mr Karp read the affidavit of the principal applicant made on 30 March 2004. I accept, based on that affidavit, that the principal applicant has not sat upon his rights but has actively pursued them, in particular by instituting proceedings in the High Court challenging the privative clause in s.474 of the Migration Act, so as to permit an application for judicial review of the decision of the RRT. It was unnecessary for the applicant to continue those proceedings following the decision of the High Court in Plaintiff S157 of 2003v Commonwealth (2003) 195 ALR 24 in February 2003. Having regard to the legal proceedings instituted by the principal applicant I would distinguish this case from the decision of the Federal Court in Daniel v Minister for Immigration [2004] FCA 21 at [12]-[14]. Although the principal applicant also sought the intervention of the Minister under s.417 of the Migration Act he could not be taken to have given any indication that he would not pursue rights of judicial review. If I were wrong on the question of jurisdictional error in the decision of the RRT I would not refuse relief in the case by reason of delay on the parts of the applicants.
Costs should follow the event. The Minister has had to deal with an application which has been amended twice. Issues of substance were raised in the second and third applications and the applicants’ written submissions. Counsel was reasonably required by the Minister in order to deal with the application. I will order that the first applicant pay the Minister’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 16 April 2004
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