SZFLB v Minister for Immigration
[2006] FMCA 1525
•12 October 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFLB v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1525 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China by reason of his falsely imputed association with Falun Gong – applicant’s factual claims substantially accepted but RRT finding no real risk of future persecution – no reviewable error found – application dismissed. |
| Migration Act 1958 (Cth), s.91R |
| Minister for Ethnic Affairs v Guo (1997) 191 CLR 559; 144 ALR 567 Minister for Immigration v Kord (2002) 125 FCR 68 Minister for Immigration v SZANS (2005) 141 FCR 586 Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 Prahastono v Minister for Immigration (1997) 77 FCR 260 |
| Applicant: | SZFLB |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG65 of 2005 |
| Judgment of: | Driver FM |
| Hearing date: | 12 October 2006 |
| Delivered at: | Sydney |
| Delivered on: | 12 October 2006 |
REPRESENTATION
The applicant appeared in person
| Solicitors for the Respondent: | Mr J Bird Phillips Fox |
ORDERS
The Refugee Review Tribunal be joined as the second respondent to the application.
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, including any reserved costs, fixed in the sum of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG65 of 2005
| SZFLB |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was handed down on 7 December 2004. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The background to the applicant’s protections visa claims and the Tribunal decision on them is conveniently set out in the Minister’s written submissions filed 6 October 2006. I adopt as background for the purposes of this judgment paragraphs 1 through to 7 of those written submissions with minor amendments:
The applicant is a male citizen of China born on 1 November 1964. He arrived in Australia on 20 March 2004. He applied for a protection visa on 26 March 2004. His claims were set out in a (one paragraph) statement accompanying the application (court book, page 26). He claimed to have been persecuted (detained, interrogated, subjected to weekly reporting requirements) by the Chinese Government on the basis of his association with Falun Gong). He claimed to fear similar persecution upon his return. A delegate of the first respondent refused the application on 25 June 2004 (court book, page 46).
The applicant applied to the Tribunal for review of the delegate's decision on 30 July 2004. He reiterated his primary claims in the review application (court book, page 57). He accepted (court book, page 63) an invitation dated 15 September 2004 (court book, page 64) to give oral evidence to the Tribunal, and attended a hearing on 25 October 2004. The Tribunal handed down its decision on 7 December 2004.
The Decision of the Tribunal
The Tribunal considered that the applicant was a witness of credit, and "a person of some integrity." It was satisfied that the applicant had "emphatically resiled from many of his written assertions" and was satisfied that those written claims had been withdrawn.
The Tribunal found that:
(a)the applicant is a national of the PRC (court book, page 84.9);
(b)an influential head of a government agency, being the Director-General of the Husbandry Bureau for the applicant’s home city, (a Mr B) bears the applicant a grudge for personal reasons (court book, page 85.1);
(c)Falun Gong was banned in 1999 and that many adherents were, and continue to be, the subject of investigation and, in some cases, detention and serious ill treatment (court book, page 85.3);
(d)the applicant had been detained for several days by the PSB in 1999 and had been persecuted on the basis of a suspicion (albeit unfounded) that he was an adherent of Falun Gong (court book, page 85.2);
(e)the PSB released the applicant because they were satisfied that he was not an adherent to Falun Gong (court book, page 85.6);
(f)the applicant has had to report weekly to the local police for several years, and, when he failed to do so, has twice been visited by police officers who were disrespectful to him in front of colleagues (court book, page 87.5);
(g)the applicant would probably have to continue to report weekly to the local PSB if he returns to China, and that during these visits he will be treated with disrespect. It accepted that this would be mentally stressful for the applicant (court book, page 85.8).
The Tribunal then considered whether the applicant has a well founded fear of persecution for a convention reason if he returns to China. The Tribunal found that :
(a)in accordance with s.91R(1)(b), persecution must involve "serious harm" to a person, and considered High Court cases that have interpreted this requirement (court book, pages 85.9-87);
(b)the applicant had not been subject to persecutory treatment since his release from detention in 1999 until his departure from China in 2004 (court book, page 87.3);
(c)the weekly reporting requirements, and the visits by police, considered cumulatively, did not amount to "serious" harm for the purposes of s.91R(1)(b) (court book, page 87.5);
(d)the applicant was not subject to persecutory treatment at the time of his departure to China (court book, page 87.6).
The Tribunal specifically considered whether "circumstances have so changed since then that the harm he faces might escalate." The Tribunal found this chance to be "remote," for the reasons its gives at (court book, pages 87.7 – 88.3)
The Tribunal concluded that the applicant's fear of Convention related persecution was not well-founded.
These proceedings commenced with a judicial review application filed on 11 January 2005. The applicant now relies upon an amended application filed on 10 May 2005. The only evidence before me relating to the application is the court book filed on 7 March 2005.
The applicant appeared in person today and made oral submissions.
It is clear that he strongly disagrees with the Tribunal decision. He is convinced that he is at serious risk of harm if he is required to return to China. There is no doubt, from his oral submissions and from the first ground of review in the amended application, that the applicant takes issue with the merits of the Tribunal decision. As I attempted to explain to him, however, the Court cannot deal with the Tribunal decision on the merits. The applicant has the opportunity to seek the intervention of the Minister if he wishes. That is beyond the scope of this proceeding.
The Minister’s written submissions deal with the grounds advanced in the amended application in paragraphs 9 through to 22. I agree with those submissions and adopt them for the purposes of this judgment:
Ground 1
It is not clear what is being agitated by this complaint. It appears to cavil with the factual findings of the Tribunal. Merits review is not available in this Court: Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259.
Grounds 2-6
These purported grounds are not particularised. It is therefore impossible to provide a meaningful response to these complaints.
Ground 7
This ground appears to manifest a complaint that the Tribunal "failed to have any finding in weather(sic) I would… be subject to more persecution from the Chinese authorities on my return to China."
There is no basis to this complaint.
The Tribunal specifically considered whether the applicant had a well founded fear of harm amounting to persecution under the Convention upon his return to China. The Tribunal expressly found that he did not.
In so finding, the Tribunal clearly considered the circumstances surrounding the past Convention-related harm it had accepted the applicant had suffered in 1999.
The incidence of past harm is not, of itself, determinative as to whether future harm will occur. As Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ explain in Minister for Ethnic Affairs v Guo (1997) 191 CLR 559 at 574; 144 ALR 567:
proof that events have occurred often provides a reliable basis for determining the probability – high or low – of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that new events may distort the cycle of regularity. In many cases, where the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can safely be disregarded. In between these extremes there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person has no basis for determining the chance of an event in that field occurring in the future" [emphasis added].
The Tribunal approached its task of assessing whether the applicant held a well founded fear of persecution in accordance with this test. It considered what was likely to occur in the future and made clear findings that were open on the evidence.
The Tribunal accepted that the applicant had been persecuted on the basis that he had (wrongly) been suspected of being a Falun Gong practitioner. It accepted that he was released once the PSB were satisfied that he was not a Falun Gong practitioner.
It found that he was not again detained or assaulted after the several days of treatment he had suffered in 1999.
The Tribunal accepted that whilst the PSB were satisfied that he was not in fact a Falun Gong adherent, the applicant may nonetheless have to continue to report to the PSB, due mostly to the grudge that Mr B had held against him.
The Tribunal then found that the weekly reporting requirement did not constitute "serious" harm as that term is defined by s.91R.
This was a finding of fact that was open to the Tribunal. The question of whether conduct is sufficiently serious to amount to persecution is entirely a factual matter for the Tribunal: Prahastono v Minister for Immigration (1997) 77 FCR 260, 287, 291; Minister for Immigration v Kord (2002) 125 FCR 68 at [3], [53]-[56]; and Minister for Immigration v SZANS (2005) 141 FCR 586.
The Tribunal further considered whether there was any reason to believe that the harm that the applicant feared upon his return might "escalate." It found that there was not, for the reasons it gives at court book, page 87. These findings were also open on the evidence.
This is a somewhat unusual case. The applicant resiled before the Tribunal from some of his protection visa claims at the hearing conducted by the Tribunal. The outcome of the review application depended entirely on the evidence given by the applicant at that hearing. The applicant was accepted as a man of integrity and his past claims of serious harm at the hands of the Chinese authorities were accepted. However, on the applicant’s own account he had not suffered serious harm following his release from detention in 1999 and it was open to the presiding member to conclude that there was not a real risk that he would suffer serious harm in China in the future.
That is not to say that I agree that the presiding member made the correct or preferable decision. It is, however, a finding that the conclusions reached by the presiding member were legally open to her on the material before her.
I can see no jurisdictional error in the Tribunal decision. It follows that the decision is a privative clause decision and the application must be dismissed. I will so order.
The application having been dismissed, costs should follow the event. The Minister seeks an order for costs fixed in the sum of $4,000.
The applicant did not consider himself in a position to make submissions on costs. I accept that costs of $4,000 have been properly and reasonably incurred on behalf of the Minister. I will order that the applicant pay those costs fixed in that amount. I will further direct that the Refugee Review Tribunal be joined as the second respondent to the application.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 19 October 2006
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