SZEPX v Minister for Immigration - [2005] FMCA 46

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEPX v MINISTER FOR IMMIGRATION

[2005] FMCA 46

MIGRATION – RRT decision – Chinese son of landlord – entered Australia unlawfully in 1981 – no error found.

Migration Act 1958 (Cth), ss.474, 477(1A), 483A
Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), Sch.1 cl.8(2)(b)

Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476

Applicant:

SZEPX

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG3179 of 2004

Judgment of:

Smith FM

Hearing date:

25 January 2005

Last Submission:

25 January 2005

Delivered at:

Sydney

Delivered on:

25 January 2005

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the Respondent:

Mr G T Johnson

Solicitors for the Respondent:

Sparke Helmore

ORDERS

Objection to competency upheld.
Application dismissed.
Applicant to pay the respondent’s costs in the sum of $4500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3179 of 2004

SZEPX

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed on 26 October 2004 under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”), which seeks review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 17 December 1998 and posted to the applicant on 18 December 1998. The Tribunal affirmed a decision of a delegate made on 11 August 1997 refusing a protection visa. The applicant had applied for that visa on 11 December 1996.
The applicant has not, on the evidence before me, previously sought judicial review of the 1998 Tribunal decision, and his application therefore falls within the transitional provisions of Sch.1 cl.8(2)(b) of the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) which introduced the current provisions of Part 8 of the Migration Act. This requires me to apply the current provisions to this application.
Under Part 8 the Court’s jurisdiction to give judicial review remedies is excluded in relation to privative clause decisions. As interpreted by the High Court Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476, a decision of the Tribunal is a privative clause decision unless the Court is satisfied that the proceedings or reasoning of the Tribunal are vitiated by jurisdictional error. In short, I am unable to set aside the Tribunal’s decision and send the matter back to the Tribunal, unless I am satisfied that there was a jurisdictional error in relation to the decision.
Underlying the present applicant’s application for a protection visa, and also his submissions to the Tribunal and to this Court, is a significant compassionate plea for continued residence in Australia. However, it seems to me that the applicant did not present the Tribunal with a substantial claim for protection under the Refugee Convention.
The application for a protection visa and the appeal to the Tribunal were presented with the assistance of a migration agent. In my view, the Tribunal accurately set out the history and claims which were put forward:
The Applicant was born in a coastal area of Guangdong province and remained there for the first fifteen or sixteen years of his life.
In a submission from his representative, dated 15 December 1998, it was claimed:
In the late 1950’s, he became discontented with the Communist and voiced his dissent. He then became the subject of harassment and to avoid political persecution, he left for Hong Kong illegally in 1960.
At the Tribunal hearing I asked the Applicant what this meant. He said that when the communists took over in 1949 his father’s property was confiscated and he was recognised as a “Landlord”. The Applicant therefore was recognised as the son of a landlord and bore the stigma of his father’s class.
He said that he was critical of what had happened to his father and he did not like Chairman Mao Tse Tung and spoke out in school when he was in year three or four.
I asked him what had happened as a consequence and he said, “nothing much”.
The submission of 15 December 1998 stated that the Applicant had gone to Hong Kong in the early sixties.
At the hearing he said that he left his mother, father, a sister and a brother in China and went with other boys to Hong Kong. He remained in Hong Kong from then on working in various jobs. He obtained a temporary ID in Hong Kong.
I asked if he had maintained contact with his family in China. He said he had been in contact with them from time to time. He said his father died many years ago and his mother died about five years ago and he didn’t contact his brother and sister very much.
I asked when he had last had contact with his family and he said it was before his mother died.
I asked what his brother and sister had done for work in China and he said that they had worked in rice farms when he was in Hong Kong.
In 1981 he was working on a boat which came to Australia and he got off the boat in Sydney and has remained ever since (CB 55‑6).
The Tribunal records the applicant as having acknowledged that changes in policy in China since 1978 had changed insofar as “bad class” labels had been removed from those previously stigmatised by them. He told the Tribunal that he believed that this had happened so that his father’s label of “landlord” had been removed. The Tribunal also says:
I asked what, if anything, he believed would happen if he returned to Guangdong at this time. He initially said he wouldn’t go back and I asked him to imagine what would happen if he did.
He said nothing much would happen and that he was not at risk of any harm (CB 57).
It appears that at the time of the Tribunal hearing the applicant had applied for entry to Hong Kong, and that his application had been referred by the local consulate to Hong Kong authorities. However, the applicant’s representative told the Tribunal that the chance of him being accepted in Hong Kong was slim, since the applicant did not have residency status there. As I understand the Tribunal’s reasons, it accepted this prediction, and assessed the applicant’s claims on the basis that if he can be sent anywhere from Australia it would be to mainland China. The Tribunal’s assessment was as follows:
The Applicant was an honest and forthright person who provided a credible account.
As a youth he was critical of the Chinese authorities for what they had done to his father’s family.
However, there had been a passage of thirty‑eight years since he left China and, with the end of the brutal and discriminatory practices of the Cultural Revolution in 1978 the label of “Landlord’s son” would no longer be applied to the Applicant. This was the only significant discriminatory issue in his case prior to his departure from China thirty‑nine years ago.
He gave no indication that his siblings have faced treatment amounting to persecution in more recent years since 1978 and there is no independent evidence which would indicate that the Applicant would do so.
The purpose of the Convention is to provide protection from prospective harm and the Applicant, by his own account, does not believe that he would come to harm for a Convention reason if he returned to China now or in the reasonably foreseeable future.
This being the case, he is not a refugee.
The applicant has been in Australia for seventeen years and away from Guangdong for thirty‑eight years.
I accept that the Applicant probably has many understandable reasons for wanting to remain in Australia. I also accept that he may not be able to return to Hong Kong but find that he would be able to return to China, albeit with some delays in processing. I can understand his reluctance to return to China having been absent for so long. However, I am limited in my mandate to considering his claims within the ambit of the Convention. I am not satisfied that there is any basis for a well-founded fear of persecution for a Convention reason in this case (CB 57‑8).
The applicant has been held in detention in Villawood since 2002 and has brought his present application without apparent assistance. He has filed an application listing five unparticularised grounds for review and an amended application listing five similar grounds. He has not developed any of these grounds in a written submission to assist the Court, nor has he been able to orally today. Today he tendered two documents: first, one in Chinese which he said confirmed that he had been refused Hong Kong residency; and secondly, a recent submission to the Minister by a friend seeking the Minister’s discretionary intervention. Neither of these documents assists him in the present proceedings.
His submissions to me both in chief and in response to the Minister’s submissions were an affirmation of the hardship he faces if he is now returned to the Chinese mainland, that being a country which he left at the age of 16, he now being 60 years old.
With the assistance of counsel for the Minister I have, however, endeavoured to examine the Tribunal proceedings closely and have tried to understand the points raised in the applicant’s application and amended application. I think apart from his humanitarian plea there are four criticisms made of the Tribunal proceedings.
First, that the Tribunal relied on advice from the Department of Foreign Affairs and Trade “crucially” and “contrary” to submissions made by his adviser at the hearing. However, I find it impossible to identify any such advice relied upon by the Tribunal from the material in evidence before me. No reference is made to it in the Tribunal’s reasons which have, in substance, relied upon the applicant’s own words to the Tribunal. The Tribunal reached the conclusion that he was not a refugee based upon its interpretation of what it was told by the applicant, accepting the truth of everything he said.
The only piece of country information which is referred to by the Tribunal was the fact, which the Tribunal confirmed from the Encyclopaedia Britannica, that persecution based on perceived politics of or connection with the landlord class had ended in China. This appears to have been put to the applicant, and he has responded to it in the course of the hearing.
A second point raised by the application drew attention to the last paragraph which I have extracted above from the Tribunal’s reasons, with the implicit suggestion that the Tribunal’s conclusion was inconsistent with its acceptance and understanding of the applicant’s subjective desire to remain in Australia. I consider that this point misunderstands the Tribunal’s reasoning. It was the Tribunal’s task to decide whether the applicant’s fears of return were based on a Refugee Convention ground, and having decided that they were not, it was unable to give effect to its understanding that the applicant had other good reasons for not wishing to return to China. The Tribunal’s reasons show no inconsistency revealing an error of law.
A third point raised in the applicant’s application and amended application was that the Tribunal ignored facts and evidence put forward by him. The applicant has never identified what evidence is suggested to have been ignored by the Tribunal, and I have not been able to identify any.
A fourth point raised in the amended application as ground 1 was that:
The Tribunal failed to consider and properly exercise its discretionary powers provided under s.427(1)(b) of the Migration Act 1958.
Although this ground has not been elaborated on by the applicant, it may be referring to correspondence in the Court Book at pages 39 and 41. In a letter dated 10 November 1998, the applicant responded to a request that he inform the Tribunal whether he wanted to attend a hearing, and said “I have decided to attend the hearing”. He also said:
However, I hope the Tribunal can defer the hearing as I have tried on a number of occasions to apply for my return to Hong Kong. Only last week, the application was accepted by the Chinese Consulate General.
As I have no relative or friend in Hong Kong, they told me that I may have difficulties to grant a return permit to Hong Kong. In addition, as I have stayed in Hong Kong for only two years as permanent resident, again it is also a ground that my application will be refused. …
The letter left it unclear why the applicant felt that this required an adjournment of the hearing. In my view, the Tribunal assessed the request for an adjournment properly, by considering whether the applicant would be prejudiced if the hearing proceeded before a response had been received from the Hong Kong authorities. Moreover the applicant cannot point to any prejudice from the refusal of an adjournment until this outcome was known, since, as I have indicated above, the Tribunal assessed his claims on the anticipated basis that he would not be allowed to return to Hong Kong.
The Tribunal’s response to his letter suggested an added reason for not delaying the hearing. In a letter dated 16 November 1998, the applicant was told:
If, as you claim, you moved to Hong Kong illegally then, any refusal to grant permission to reenter Hong Kong, can not be considered, of itself, as evidence of persecution for a Convention reason. Therefore, the Member advises that he will not wait until the PRC authorities consider your application before conducting a hearing.
I think the Tribunal was correct in considering that the outcome of the Hong Kong residency application would not provide evidence in support of the applicant’s refugee claim, whichever way it went. Moreover, I note that the applicant did not press his request for an adjournment, either in the four page submission subsequently prepared and lodged by his agent nor, on the evidence before me, at the hearing.
I am not persuaded that the Tribunal made an error when refusing the adjournment application, or that its refusal of the adjournment application was a denial of procedural fairness in the circumstances of the case.
The other paragraphs in the amended application raise matters which I have already dealt with above.
I consider no jurisdictional error has been established, and that the Tribunal decision must therefore be regarded as a privative clause decision under s.474 of the Migration Act so that it is not open to be reviewed by the Court. The further consequence is that it is incompetent because it has been brought in this Court outside the 28 day period required under s.477(1A).
For the above reasons, I uphold the respondent’s notice of objection to competency and dismiss the application.
I should note that the respondent in her counsel’s outline of submissions raised for the Court’s consideration the lengthy delay between December 1998, when the applicant received the Tribunal decision, and October 2004, when the applicant sought judicial review of that decision. The applicant has not explained that delay to the Court, and if I had not dealt with the application on its merits adversely to the applicant I would have been disposed to refuse relief on the basis of unwarranted delay.
RECORDED : NOT TRANSCRIBED
I order the applicant to pay the respondent’s costs in the sum of $4500.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 9 February 2005