SZFDX v Minister for Immigration
[2005] FMCA 910
•21 June 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFDX v MINISTER FOR IMMIGRATION | [2005] FMCA 910 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the applicant a protection visa – applicant a citizen of the People’s Republic of China – no reviewable error. |
| Migration Act 1958 (Cth), ss.422B, 424, 424A |
| VHAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 82 WAID v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 220 |
| Applicant: | SZFDX |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 3541 of 2004 |
| Judgment of: | Scarlett FM |
| Hearing date: | 21 June 2005 |
| Date of Last Submission: | 21 June 2005 |
| Delivered at: | Sydney |
| Delivered on: | 21 June 2005 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Respondent: | Ms Alex Phillips Fox Lawyers |
ORDERS
The application is dismissed.
The Applicant is to pay the Respondent’s costs fixed in the sum of $3,000.00 and I allow one (1) month to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3541 of 2004
| SZFDX |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of the Refugee Review Tribunal.
The decision was made on 14 October 2004 and handed down on the
4 November 2004.
The decision affirmed a decision of a delegate of the Minister not to grant a Protection Visa to the applicant. The applicant is a citizen of the People's Republic of China. He arrived in Australia on
24 February 2004 and applied for a Protection Visa on the 4 March.
In his application the applicant claimed to have a well-founded fear of persecution arising from industrial action, including a strike, at his place of employment. He had become the Deputy Chairman of the Worker's Union at his factory.
On 23 May 2002 there was an accident at the factory which involved one of the workshops being burnt down. The fire was very serious. Five workers were killed and another 20 workers were injured.
The fire and the deaths and injuries on 23 May were later referred to as the 523 events.
The applicant said that the main reason for the fire was due to a poor system of safety at the factory and poor equipment. The president of the factory and the people responsible were able to escape punishment. Unfortunately, the families of those people who were killed only received 2000 Yuan as compensation. Those employees who were injured only received 800 Yuan. The workers at the factory were very distressed about the 523 incident and what they saw as very poor compensation for those people who had suffered. They asked the applicant to help them. The applicant decided to do so, although he was threatened by a number of senior people at the factory.
The applicant even wrote an open letter to the whole factory which was placed on a big notice board. In that letter he called on the factory workers to unite and to struggle for their basic human rights.
This letter was highly influential. The workers met every day for a week afterwards and called on the administration of the factory to:
a)Pay more compensation to the victims of the 523 event.
b)Set up a better safety system for employees and
c)Respect the workers' basic human rights.
The factory did not respond well to these meetings. The applicant was dismissed from his employment. As a result the workers went on strike and remained out for almost a week. Afterwards, because of his part in the activities in the factory, the applicant came under notice from the Public Security Bureau. He was questioned on about ten occasions. But the Public Security Bureau could not find any evidence that the applicant had organised any anti-government activities.
Because he had been dismissed from his employment, the applicant tried to get another job. He was unsuccessful. He decided to go overseas. He obtained a passport but was not able to get a visa at that time.
In April 2003 several ex employees of the factory organised a demonstration in protest against their unfair treatment. The applicant became actively involved in the protest. Even though he was not the leader of the protests, the applicant again came under notice from the Public Security Bureau. He was interrogated yet again and required to submit an ideological report once a month because the public security bureau regarded him as a "black hand behind the screen" as far as the demonstrations were concerned. Eventually the applicant was able to leave the country lawfully and travel to Australia.
A delegate of the Minister rejected his application for a Protection Visa so he sought a review by the Refugee Review Tribunal. The Tribunal invited him to attend a hearing and give evidence which he did.
The Tribunal asked the applicant a number of questions and he gave evidence with the assistance of an interpreter.
In its decision the Refugee Review Tribunal found against him.
The Tribunal was not satisfied that the essential and significant reason that the applicant had been dismissed from his employment was attributable to a Convention related reason. The Tribunal did not accept the applicant's evidence that the applicant had become a political activist and had lost his job as a result. The Tribunal noted that the applicant had limited education and had no interest in political involvement.
The Tribunal stated that whatever the actual nature of the applicant's experiences, they were not of such magnitude to influence his former employer to deny him a passport or prevent him from travelling outside China. The Tribunal noted that the applicant said he was dismissed in October 2002 but he managed to be issued with a passport on
19 November of that year.
The Tribunal noted that the applicant had to obtain a letter from his employer confirming his employment for a passport to be issued.
The Tribunal said that it gave the benefit of the doubt to the applicant on a number of occasions but would not accept his evidence, noting that the applicant had not elaborated on his claims despite being given the opportunity to do so.
The Tribunal noted that the applicant did not claim to have been subjected to any abuse during the interrogations by the PSB.
The Tribunal was not of the view that being asked to attend the office of the PSB and be subject to interrogation was of itself serious harm amounting to persecution.
The Tribunal was not satisfied that the applicant would have been able to obtain a passport to leave China if he was regarded as a political activist. As a result, the Refugee Review Tribunal was not satisfied that the applicant would face serious harm for a Convention based reason should he return to China.
The applicant filed an application to this Court seeking a review of the decision on 3 December 2004. He has filed no other documentation. In his application the applicant claimed the decision of the Refugee Review Tribunal:
i)Was absolutely incorrect.
ii)Showed a failure by the Tribunal to assess his application in accordance with statutory requirements.
The applicant relied on two main grounds:
i)There was an error of law in the Tribunal's decision constituting the jurisdictional error.
ii)There was procedural error in the Tribunal's decision which constituted a denial of natural justice.
The applicant set out six reasons; being particulars, in support of those two grounds. The applicant attended the hearing before this Court accompanied by an interpreter. He did not provide any written submissions but he made oral submissions.
The solicitor for the respondent, Ms Alex, filed written submissions.
During the course of the hearing I asked the applicant a number of questions about the grounds of his application. The particulars given related to each of the two grounds of the application. There were three sets of particulars that related to the first ground, namely an error of law constituting a jurisdictional error. The particulars may be paraphrased in this way:
a)The Tribunal is based on independent country information that the Tribunal failed to provide the applicant with copies of that information.
b)The Tribunal failed to tell the applicant that country information would play an important role in its decision.
c)The Tribunal should have provided him with copies of the country information before the hearing.
d)In respect of the other ground, namely procedural error constituting a denial of natural justice, the applicant provided three sets of particulars.
(a)That the Tribunal did not give him a fair hearing because during his evidence he was interrupted by the Tribunal on a number of occasions.
(b)The Tribunal failed to comply with its obligations under
s. 424 of the Migration Act.
(c)In summary, that the Tribunal did not assess the applicant's application fairly and carefully.
The applicant's main cause for complaint appears to rely on his claim that he should have received copies of country information before the hearing. It is not a requirement that the Tribunal should do so.
The respondent points to s.422B of the Act which says that division 4 is to be taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
The provision applies to applications made to the Tribunal after the
4 July 2002 so that it includes the applicant's application.
The respondent referred me to the decisions of WAID v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 220 and VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82. It is clear from the decision in WAID (supra) that if the Tribunal complies with the provisions of
s.424A that s.422B would cover any remaining breach of natural justice.
There is, I note, no evidence or any allegation of a breach of s.424A in this case. In VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (supra), the Full Court held that there is no general proposition that the failure to put adverse country information to an applicant on its own amounts to a breach of natural justice. The primary issue to be addressed relates to the question of fairness.
The applicant says that he should have received copies of the independent country information prior to the hearing but there is no authority to support that proposition. It does not appear to me to have been necessary for this to have taken place and the applicant did attend the hearing and give oral evidence about his case. I am not satisfied that the evidence shows any breach of s.424. The applicant was not invited to give additional information to the Tribunal but s.424 does not make it mandatory for the Tribunal to do so. The section certainly allows the Tribunal to obtain any information it considers relevant provided that it has regard to that information when making a decision on the hearing.
Having regard to the information does not mean accepting that information without question. The applicant claims that the Tribunal interrupted him and cut him off whilst he was giving oral evidence.
It is often necessary for a decision maker to ask questions of the party. The Tribunal has an obligation to ask questions to ascertain information or clarify the applicant's evidence. No transcript of the proceedings has been provided to me so that I do not have any evidence to show that the application - show that the interruptions by the Tribunal member were unwarranted or intimidatory.
The applicant did agree during the course of the hearing that he was able to tell his whole story at the Refugee Review Tribunal hearing.
There is no evidence to show that the Tribunal failed to grant to the applicant procedural fairness during the course of the hearing.
It appears from the decision of the Refugee Review Tribunal, which is quite lengthy, that the applicant's difficulties in China arose as a result of his participation in an industrial dispute at his place of employment.
This brought about the loss of his job and several interrogations by the Public Security Bureau. The applicant's case did not establish a well founded fear of persecution for a convention reason and the Tribunal member was not satisfied with the applicant's credibility on a number of issues. In my view there was sufficient evidence for the Tribunal to arrive at the conclusions which it did. Whilst it is true that the applicant did not receive copies of the country information prior to the hearing, there was no requirement on the Tribunal to provide that information.
There is no evidence of procedural unfairness or a denial of natural justice. There is no error of law amounting to jurisdictional error. There is no reviewable error and the application will be dismissed.
This is a matter where, as the applicant has been unsuccessful, the Court would normally make an order that he pay the respondent's party and party costs. The fact that he does not have the funds at this stage is not of itself a ground for declining to make the order.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 29 June 2005
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