SZCHG v Minister for Immigration
[2006] FMCA 346
•14 March 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCHG v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 346 |
| MIGRATION – Review of decision by Refugee Review Tribunal – refusal to grant protection visa – claim of failure to properly consider claim and evidence. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 422B; 424A; 425 474; 483 |
| Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 |
| Applicant: | SZCHG |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG2874 of 2003 |
| Judgment of: | Emmett FM |
| Hearing date: | 23 February 2006 |
| Date of Last Submission: | 23 February 2006 |
| Delivered at: | Sydney |
| Delivered on: | 14 March 2006 |
REPRESENTATION
| The Applicant appearing on his own behalf |
| Solicitors for the Respondent: | Ms D. Watson, Australian Government Solicitor |
ORDERS
That the Applicant be granted leave to add as a Second Respondent nunc pro tunc the Refugee Review Tribunal.
That the Refugee Review Tribunal be joined as Second Respondent.
The application before this Court is dismissed.
That the Applicant pay the First Respondent’s costs in an amount of $3,900.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2874 of 2003
| SZCHG |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and s.483 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 25 November 2003, to affirm the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Delegate”) not to grant a protection visa to the applicants.
The applicant is a 63 year old male who claims to be a citizen of the People’s Republic of China (“the PRC”) and of Han ethnicity (“the Applicant”).
The Applicant arrived in Australia on 3 October 2002, having legally departed from Pudong Airport in Shanghai on a passport issued in his own name.
On 11 October 2002, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.
The Applicant claimed that he feared persecution by the PRC authorities by reason of his “political opinions and activities against the PRC authorities.”
On 22 October 2002, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol.
On 15 November 2002, the Applicant filed an application for review of the Delegate’s decision by the Tribunal. On 30 October 2003, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 23 December 2003, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
Section 65(1) of the Act authorises the decision maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Australia owes protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
Tribunal proceeding
The Tribunal noted that it had before it the Department’s file relating to the Applicant and that the Applicant appeared before and gave oral evidence on 22 August 2003. The Applicant was represented before the Tribunal by his migration agent.
The relevant claims of the Applicant and the Tribunal’s findings are accurately summarised in the First Respondent’s written submissions as follows:
“3. The applicant had claimed that there was an accident on a building site where he worked as a team manager. He was told by the manager to keep quiet about it, but he nevertheless organised a petition complaining about the safety of the site, which also implicated Fanhui MENG, an official who helped the building company obtain the contract. He also organised a demonstration on 1 May 2001 which was broken up by the police, and claimed that the next day, members of the Public Security Bureau, led by the husband of Ms MENG, came to his house and detained him without charge until the end of the year. He was released after he signed a statement admitting that he had organised anti-government demonstrations. During his detention, he claimed that he was tortured. He claimed that since his release he was perceived to be a political dissident by the authorities, and he eventually left China on a visitor’s visa in October 2002 and arrived in Australia.
4. The applicant’s claim that he was regarded by the Chinese authorities as a political dissident was rejected by the RRT for a number of reasons. The RRT noted that the applicant claimed that he had flouted the General Manager’s direction to keep quiet about the incident and had organised a petition implicating Ms MENG and the General Manager, yet continued to be employed by the company without repercussions up to the time he claimed to be detained. The RRT also noted that the applicant claimed to have organised a demonstration on 1 May 2001 yet he was not charged with any offence despite his claim that he had signed a confession that he had disturbed the normal social order, which was crime in China. Furthermore, despite the applicant’s claims that he was viewed as a political dissident by the authorities and would be gaoled if he returned to China, he also claimed that he was never formally arrested by authorities prior to his departure. Rather the detention he claimed to have occurred was the unauthorised act of the husband of the person against whom he was protesting, who was a Public Security Bureau officer – CB p. 85 – 86.
5. The RRT also noted that the applicant had left China using a passport in his own name and that the applicant claimed that he was able to do this by paying money to a friend to bribe officials in order to bypass the usual security checks. However, the RRT noted and discussed country information that it would, in the circumstances, have been easier for the applicant to obtain a forged passport than pay a large sum of money to exit the country using his own passport.
6. The RRT considered the medical evidence advanced by the applicant that he was suffering from post traumatic stress disorder – see CB 62-3 for a copy of the report. The RRT did not dispute the diagnosis of post traumatic stress disorder, but noted that the conclusion as to its cause was based on the history provided by the applicant – CB 86. As the RRT did not accept the applicant’s principle claims, it further did not accept the consequences that the applicant claimed would occur should he return to China.”
The hearing before this Court
The Applicant was unrepresented before this Court, although had the assistance of an interpreter.
The Applicant relied on an application filed on 23 December 2003, and upon written submissions filed on 17 February 2006. The Applicant’s submissions, filed 17 February 2006, are more in the nature of an accumulation of an amended application and written submissions.
The Tribunal had difficulties with the Applicant’s claims insofar as he claimed that he was viewed as a political dissident. However, the Tribunal accepted that he may have been unlawfully detained, although he was never charged with any offence. The Tribunal did not accept that the Applicant suffered any significant repercussions, after the detention. The Tribunal also noted that the Applicant could leave the PRC under his own passport. The Tribunal noted that it put to the Applicant that it did not accept the Applicant’s claim of leaving the PRC by bribing officials in circumstances where the independent country information indicated that it was easier for the Applicant, had he been of interest to authorities, to obtain a passport in another person’s name.
For these reasons this is not a case where the Tribunal has accepted parts of the Applicant’s claim and rejected others. The Tribunal rejected the totality of claims made both in respect of the detention made for 8 months and that the Applicant was viewed as a political dissident.
To the extent that the grounds referred to in the application are taken up in the Applicant’s written submissions, I shall follow the format of the Applicant’s submissions in addressing each of the grounds.
Ground 1 – Applicant’s claim that the Tribunal failed to consider the following claims:
(a) That the Applicant had been warned by authorities and his team had been transferred to a new place eventually.
This ground appears to refer to the claim made by the Applicant in his statutory declaration in support of his application for a protection visa dated 10 October 2002, where he refers to the incident on
16 November 2000, where scaffolding of a construction building site collapsed causing the death of six workers an injuring others. The Applicant asserted that, on 20 November 2000, he stopped work on those sites and took more than 80 workers “to have a protest at HEXI People’s Government.” The Applicant claimed that he blamed Ms M, the Head of the Personnel Department of Hexi People’s Government and who helped the building company obtain the contract, and the General Manager.
He stated that, following the accident, he required the open punishment of Ms M and that she be sent to jail. He claims that he also sought that the conduct of the General Manager be investigated.
The Applicant stated that, following his demands, an officer of the government came to talk to him at his office and requested that he submit a report in accordance with legal process, but not to conduct any demonstration. The Applicant asserted that the government officer “guaranteed that the government would not give me troubles” and that the government officer would organise a special investigation team to find the truth of the accident. On that basis, the Applicant stated that he”took my team back” to work. However, the Applicant stated that he still refused to work on the buildings, the subject of the accident.
The Applicant stated that the construction company, for which he worked, and the HEXI District Government established a joint investigation group to investigate the accident. The Applicant stated that, 1 week later, he and his team were transferred to a new construction site in the Nankai district. The Applicant claimed that he heard nothing further about the result of the investigation and was told that “that accident fizzled out for lack of conclusive evidences.”
The Tribunal noted the assertions referred to above and had particular regard to the fact that the Applicant had continued to be employed by the same company until May 2001. The Tribunal further noted that there was nothing in the Applicant’s statement to suggest that anything happened to him as a result of his conduct, on 20 November 2000, in stopping work at the construction site with 80 other workers. The Tribunal also noted that, even though the Applicant claimed to have demanded that the General Manager be investigated, he had continued to be employed by the same company.
It is clear the Tribunal did have regard to the Applicant’s claims that he had been warned by authorities and his team had been transferred to a new place.
Accordingly, this ground is rejected.
Ground 1(b) – Applicant’s claim that the Tribunal failed to consider that from March to April 2001, the Applicant sent many petitions to the local government in Tianjin and the central government in Beijing.
In its decision, the Tribunal noted that “the Applicant said that he had not been able to forget the deaths six innocent workers and the 11 wounded workers and in March and April 2001 he had sent many petitions to Tianjin and even the central government in Beijing but had never received any response.”
Ultimately, the Tribunal did not accept these claims noting the difficulty it had with the Applicant’s evidence in this regard where he claimed to have done “all these things before he left China yet they did not gaol him.” The Tribunal noted that the Applicant’s evidence that he was released without being charged with any offence. The Tribunal stated that it did not consider it credible that the Applicant would not have suffered repercussions, or that he would have continued to be employed by the same company, if he had organised a petition to the Hexi District Government seeking that Ms M and the General Manager be punished by law. The Tribunal did not accept that the Applicant “sent many petitions to the Tianjin government and even the central government in Beijing in March and April 2001.”
It is clear that the Tribunal considered the Applicant’s claims that he sent the petition to the Tianjin government and the central government in Beijing in March and April 2001.
Accordingly, this ground is rejected.
Ground 1(c) – Applicant’s claim that the Tribunal failed to consider the demonstration that the Applicant claimed to have organised was held on “a very sensitive day” (International Labour day).
The Tribunal noted that the Applicant “said that he had therefore decided to organise the families of the victims and his workers to hold a demonstration on 1 May 2000 which was International Labour Day.”
It is clear the Tribunal had regard to the Applicant’s claim that the demonstration, he claimed to have organised, was on International Labour Day.
Accordingly, this ground is rejected.
Ground 1(d) – Applicant’s claim that the Tribunal failed to consider that, from 2 May to 30 December 2001, he was detained for eight months and subjected to physical torture.
Ultimately, the Tribunal rejected the Applicant’s claim that he organised a demonstration on 1 May 2001, and also rejected his claim that he was arrested the following day, detained for eight months beaten and tortured
It is clear from the Tribunal’s decision, that it understood that those claims were at the heart of the Applicant’s claim of persecution. They were carefully considered by the Tribunal and ultimately rejected. They are findings of fact that were open to the Tribunal on the material and evidence before it.
Accordingly, this ground is rejected.
Ground 1(e) – Applicant’s claim that the Tribunal failed to consider that “owing to inhuman torture that I had to sign on a statement in which I admit that I organised anti government demonstrations and I had disturbed normal social orders.”
This ground is largely addressed in the reasons relating to the ground above, in that the Tribunal rejected the Applicant’s claim that he had organised anti-government demonstrations and that he had been subjected to any torture.
Again, those are findings of fact open to the Tribunal on the material and evidence before it.
Accordingly, this ground is rejected.
Ground 1(f) – Applicant’s claim that the Tribunal failed to consider that he had been subjected to “on-going persecution since I was released.”
The Tribunal noted that it asked the Applicant if he had had any problems with the authorities between December 2001, when he claimed to have been released from detention, and when he left the PRC at the end of September 2002. The Tribunal noted that the Applicant replied that, after he had been released, he had been instructed to report to the neighbourhood committee every week and to the local police every month.
The Tribunal concluded that, because it did not accept that the Applicant was detained as claimed, therefore, it could not accept that he was dismissed from his work as claimed, nor that he was required to report to the naval committee every week and to the local police every month after his release.
Those are findings of fact that were open to the Tribunal on the evidence and material before it.
Accordingly, this ground is rejected.
Ground 1(g) – Applicant claimed that Tribunal failed to consider evidence that Mr C felt sympathy with the Applicant, that Mr C’s girlfriend worked at the Exit and Entrance Administration Bureau of Tianjin city and that the Chinese government is one of the most corrupt in the world.
The Tribunal notes that “the Applicant said that fortunately Mr C thought he had been treated wrongly and Mr C’s girlfriend had worked at the Exit and Entrance Administration Bureau in Tianjin City.” The Tribunal also noted that “the Applicant said that the prevalence of corruption in China was well known.”
The Tribunal noted that it considered it significant that the Applicant left the PRC travelling on a passport in his own name. The Tribunal noted that the Applicant had stated this was possible because of Mr C’s girlfriend who worked for Exit and Entrance Administration Bureau in Tianjin City. The Applicant also stated that he gave Mr C most of his savings to bribe corrupt officers so he could bypass the “strict political examination” and get the necessary documents to leave the PRC. The Tribunal noted that it put to the Applicant that independent information before it indicated it would be difficult, risky and expensive for someone of interest to the authorities to obtain a passport in their own name and that it would be easier to obtain a passport in someone else’s identity. The Tribunal noted that the Applicant responded that the prevalence of corruption in the PRC was well known.
The Tribunal did not regard the Applicant’s evidence on this point as credible. The Tribunal found that the effect of the Applicant’s claims on this point, were that “although he claims to have been regarded by the Chinese authorities as a political criminal, he spent his life savings to obtain a passport in his own name rather than taking the easier course and obtaining a passport in someone else’s identity.”
The Tribunal did not accept that the Applicant was regarded by the Chinese authorities as a political dissident or a political criminal. It found that, if he had been regarded as such, the Chinese authorities could have arrested him and charged with disrupting the social order immediately after the demonstration which he claims to have organised on 1 May 2001.
The Tribunal then goes on to provide other reasons why it rejected the totality of the Applicant’s claims.
Those are findings of fact that were open to the Tribunal on the material and evidence before it.
Accordingly, this ground is rejected.
Ground 2 – The Applicant claims that the Tribunal failed to consider his case as a whole, rather, dealt with it in “small independent pieces”.
This claim would appear to be misconceived. The Tribunal considered in detail the claims made by the Applicant and gave reasons for the rejection by the Tribunal of those claims. It made findings of fact arising out of the evidence and material, as it was obliged to do. It then made findings and conclusions based on the facts and reason for those conclusions and findings. In light of those conclusions and findings it considered, as was its statutory duty, whether or not it was satisfied that the Applicant had a well founded fear of persecution for a Convention related reason. If it was not so satisfied, s.65(1) of the Act requires the Tribunal to refuse a protection visa. It was necessary for the Tribunal to consider “small independent pieces” of information in considering this question.
Accordingly, this ground is rejected.
Ground 3 – Applicant’s claim that the Tribunal omitted his evidence that he had claimed to have had to sign a statement that in which he admitted he organised anti government demonstrations and had disturbed normal social orders.
The Applicant was represented at the hearing before the Tribunal.
There is no claim in terms that being made to sign such a statement was persecution for the purposes of s.91R of the Act.
The Tribunal, noted that, following the Applicant’s alleged release from detention at the end of December 2001, it asked the Applicant if he had any problems with authorities between then and when he left the PRC at the end of September 2002 and noted that he had been required to report to the naval committee every week and to the local police every month. There is no transcript before me to suggest that that is an inaccurate summary of the Applicant’s claims on this point.
In the statement, lodged in support of his protection visa application, the Applicant stated that he eventually had to sign a statement in which he had to admit that he organised anti government demonstrations and had disturbed normal social orders. He stated that he was released on condition he promised not to engage in any further activities against the government. The Applicant appears to claim in that statement that, from that point in time, he was regarded as “a political dissident who had strong dissident opinions against the government.”
However, the Tribunal rejected in total, the Applicant’s claims of detention. Whilst the Tribunal may not have made a specific finding in relation to the Applicant’s claim that he was made to sign a statement in which he admitted to demonstration, it does not appear to have been a matter that was taken up by the Applicant’s representative before the Tribunal, beyond being part of the claims before the Tribunal in respect of his assertion of unlawful detention and ultimate release.
The Tribunal is not obliged to deal with every factual assertion by an Applicant. It is required however to deal with the Applicant’s claims giving rise to a well founded fear of persecution for a Convention reason. The Tribunal considered those claims and rejected them. Those were finding of fact open to the Tribunal on the material and evidence before it. In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at 641, their Honours stated that:
“It is plainly not necessary for the Tribunal refer to every piece of evidence and every contention made by an applicant in its written reasons. …there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf MIMIA v Yusef (2001) 206 CLR 323; 62 ALD 225; 180 ALR at [87] to [97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well founded fear of persecution for a Convention reason. The Tribunal is not a Court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. …Its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”
It is not jurisdictional error to omit to refer to the Applicant’s assertion that he was made to sign a statement omitting something that he had done. To the extent that the Applicant claims that being made to sign such a document was inhuman torture, the Tribunal rejected that he was tortured, and that he organised the demonstrations.
Accordingly, the ground is rejected.
Ground 4 – Applicant’s claim that the he was not accorded procedural fairness.
This claim is not particularised. However, in oral submissions before this Court, the Applicant claimed that the Tribunal had been biased against him and did not make a fair decision in his case. The Applicant also submitted that the Tribunal did not ask him questions fairly and did not consider his claims.
There are no particulars of the bias alleged. Certainly there is nothing on the face of the Tribunal’s decision that would give rise to such a contention. At the heart of the Applicant’s complaint is his disagreement with the findings of the Tribunal in rejecting his claims and the conclusions made by the Tribunal as a result of those findings of fact. However, as referred to above, the findings of fact were open to the Tribunal on the material and evidence before it.
Pursuant to s.422B of the Act the rules of natural justice, with which the Tribunal is obliged to comply, are those contained in Part 7 of the Act. Essential to the Tribunal’s discharge of its obligation under Part 7 is compliance with s.425 and s.424A of the Act. Relevantly, s.425 of the Act requires the Tribunal to invite the Applicant to attend a hearing and s.424A requires the Tribunal to give certain information to the Applicant prior to the hearing in certain circumstances.
The Applicant was invited in accordance with s.425 of the Act to attend a hearing of the Tribunal on 22 August 2003, which he did, and at which he gave oral evidence, and made submissions. Further, as stated above, the Applicant was represented by his migration agent before the Tribunal.
There is not a claim of a breach of s.424A of the Act and none arises on the face of the Tribunal’s decision.
Accordingly, there has been no denial of procedural fairness.
Accordingly, this ground is rejected.
Ground 5 – Applicant complained that Tribunal failed to “fairly and carefully consider the medical report provided by Doctor L, a consultant psychiatrist.”
Doctor L provided a letter to the Tribunal in which he purported to diagnose the Applicant as suffering from post traumatic stress disorder. However, the Tribunal concluded that the diagnosis was based on information provided to the doctor by the Applicant and, which largely comprised claims which the Tribunal had, in the exercise of its fact finding function, rejected.
It is a matter for the Tribunal the weight it gives to the material and evidence before it. In this instance, the Tribunal made it clear why it placed little weight on Dr L’s diagnosis. These findings were open to it on the material and evidence before it.
Accordingly, this ground is rejected.
Conclusion
There being no jurisdictional error, the Tribunal’s decision is a privative clause decision and, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
Accordingly, the application before this Court is dismissed with costs.
I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S Kwong
Date: 14 March 2006
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