SZFQD v Minister for Immigration

[2005] FMCA 955

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFQD v MINISTER FOR IMMIGRATION [2005] FMCA 955

MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal failed to appreciate that the applicant’s claim was based on membership of a particular social group.

Migration Act 1958, s.91R

V v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 355
NACM of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1554
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263
Dranichnikov vMinister for Immigration & Multicultural & Indigenous Affairs (2003) 197 ALR 389
Minister for Immigration & Multicultural Affairs v Khawar (2002) 210 CLR 1
Applicant S vMinister for Immigration & Multicultural Affairs (2004) 206 ALR 242
MIMA v Sarrazola (No 2) (2001) 107 FCR 184

Applicant: SZFQD

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG275 of 2005

Judgment of: Barnes FM

Hearing date: 28 June 2005

Delivered at: Sydney

Delivered on: 28 June 2005

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Nil

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The Refugee Review Tribunal be joined as Second Respondent to the proceedings pursuant to Rule 11.01(2) of the Federal Magistrates Court Rules.

2. That the application is dismissed.

3. That the applicant pay the first respondent's costs fixed in the amount of $3500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG275 of 2005

SZFQD

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) made on 21 January 2005 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa.  The applicant, who is a citizen of the Peoples Republic of China, arrived in Australia on 19 September 2004 as the holder of a business short stay visa.  On 19 November 2004, after being detained by the Department, the applicant lodged an application for a protection visa.  The application was refused and she sought review by the Tribunal.  The applicant attended a Tribunal hearing.

2. In summary the applicant claimed that she had been employed as an office worker in the nursing department of a hospital in China, that she became aware that her boss, the hospital superintendent and a Communist Party official, was receiving “kick-backs” from the purchase of medical equipment and was substituting normal products with sub-standard products.  She claimed that she and a colleague wrote a letter to expose this corruption in line with the government's “anti-corruption” campaign, but that her boss discovered the letter.  He ordered that both she and her colleague write self-criticism reports.  In June 2004 both were fired.  The applicant claimed that she and her friend had received nuisance calls in which they had been threatened and that they had written a second letter. 

3. She claimed to fear that if she returned to China she would be arrested because, according to information given to her on 9 November 2004 by her brother, her fellow letter-writer had been arrested and her family were in hiding as they feared her boss might get triad members to harm them.  She also claimed to fear the Public Security Bureau (the PSB) as her boss had relatives working for it.

4. The Tribunal reasons for decision detail the applicant's claims and what occurred in the Tribunal hearing.  In that account, which is the only account before the court of what occurred in the Tribunal hearing, the Tribunal indicated to the applicant that it was unable to identify a Convention reason for the harm that she feared.  It gave her adviser an opportunity to make a written submission on that issue.  In that submission it was contended that the persecution that the applicant feared as a result of exposing the corruption of her former boss could be seen as constituting persecution based on a Convention reason of “political or imputed political opinion” consistent with the approach taken by the Federal Court in decisions such as V v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 355, and NACM of 2002 vMinister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1554.

5. In the findings and reasons part of its decision the Tribunal expressed considerable doubt about the credibility of the applicant's claims, for reasons including the timing of her application for asylum, the fact that she provided no documentary evidence to support her claims and because it was “surprising” that the chief employee of a hospital known to all its employees as corrupt and in an environment where many state officials had already been punished for corruption, might choose to brazen it out in the way the applicant had claimed.

6. The Tribunal also noted however, that the applicant's claims had been internally consistent, that her account was broadly consistent with independent evidence, and that she had given evidence in a frank, open manner.  It found that it was unable to decide whether the applicant was being truthful or not.  Whilst she may have reported an act or acts of corruption by an individual in her workplace, on balance it was not satisfied that as a result of reporting any act of corruption she faced dismissal, threats or an attempt by people purporting to be the police to locate and detain her as she had claimed.  However it could not reject the possibility that the incidents complained of did occur.  It therefore proceeded on the basis that those events had occurred in considering whether the applicant faced a real chance of persecution for a Convention reason.

7. On that basis the Tribunal accepted, as the applicant had stated, that the sole reason the hospital chief threatened her was to deter her from revealing his corrupt activities.  It found nothing in her evidence from which it might infer that the hospital chief's actions were, or in future might be, motivated by anything other than self-interest.  It was therefore satisfied that the reason for her dismissal and for the threats to her by her ex-boss was not one of those enumerated in the Refugees Convention.

8. It went on, however, to consider the possibility that harm arising from the exposure of corruption could give rise to persecution for reasons of political opinion having regard to the Federal Court authorities in that respect and the claims of the applicant.  It had regard to the fact that her claims were limited to having written two letters to the appropriate official of an investigative body about criminal activities of an individual in her work place and that she had never otherwise participated in activities critical of the government or exposed corruption in any other way, or been suspected of so doing.  It was of the view that her acts would be perceived in a different light to those of individuals whose criticism of official corruption was interpreted as an expression of a political opinion.  The Tribunal was satisfied that the Chinese authorities do not perceive acts such as those taken by the applicant to be a challenge to State authority in any way and, indeed, that they often rely on individuals passing on intelligence in the way she claimed to have done. 

9. The Tribunal also dealt with her specific claims to fear triad members and police acting at the behest of her corrupt employer.  In relation to her claim to fear being harmed by triad members or other criminals associated with her boss it was satisfied that any such harm would be unrelated to the Convention.  As to the claim that she feared being arrested by the PSB and that a trumped up charge could be laid against her which might impute her with a political opinion, the Tribunal considered the chance remote that the applicant might be arrested and face a charge for a number of reasons.  First, while she claimed she had been told that her colleague had been arrested, there was very limited information with regard to that colleague's circumstances and indeed no reliable evidence about such circumstances from any source.  On the applicant's account, the PSB had apparently not confirmed to the colleague's family that they had her in custody and it may be that the men who took her away were not from the PSB at all.  Moreover, if the applicant’s colleague had in fact been taken away by police officers, there was no evidence that any charge had been or might be laid against her.  Further, it would seem very unwise for the ex-boss to use any police contacts to have the colleague or the applicant brought before a court given the damning evidence they have against him and the consequent risk that this might trigger an investigation into his actions. 

10. The Tribunal also addressed the claim that the applicant feared some other harm by police officers based on her assumption that the ex-boss and the local Chief of Police had some arrangement involving mutual favours.  It found that in those circumstances both would be acting in a private capacity for reasons of personal benefit.  The Tribunal was satisfied that the essential and significant reason for any harm the applicant may face as a result would be unrelated to the Convention.  The Tribunal found then that the applicant's fear of Convention-related persecution in the Peoples Republic of China was not well-founded.

11. The applicant sought review by application filed in this court on 31 January 2005.  She now relies on an amended application prepared by a solicitor appointed under the RRT Advice Scheme and filed on 20 April 2005.  That amended application contains one ground of review:  “The Tribunal erred in law in the way it applied the Convention definition of refugee to the claims made by the applicant.”  Particulars are as follows:

    The applicant claimed to have exposed corrupt practices in her place of work.  She claimed that her employer was well- connected both with the Chinese political hierarchy and the criminal networks known as the triads.  She feared that her employer would try to harm her either through corrupt police officials or the triads. 

    The Tribunal did not consider that the applicant's claims came within the scope of protection offered by the Convention.  In doing so the Tribunal failed to appreciate that the applicant's claim was based on her membership of a particular social group, which could be defined as “whistleblowers” and that within the context of a one-Party State such as China, with corruption endemic at all levels of society, she would not be able to obtain State protection because of her membership of that social group. 

12. No written submissions were filed by the applicant and in oral submissions she raised somewhat different claims, all of which were addressed by the legal representative for the respondent. 

13. Considering first the claim made in the amended application, it is clear that on the material before the court the applicant herself and her adviser did not expressly make any claim to the Department or the Tribunal on the basis of a particular social group.  The applicant's claims were expressed generally to relate to her fears arising from exposure of the corruption of her former boss.  In the written submission by her adviser prior to the Tribunal hearing it was claimed that she feared that she would be persecuted by government officials and triad members and would have no access to assistance and protection.  A complaint was also made about the government having a poor human rights record and being unable to prevent human rights abuses.

14. The Tribunal recorded that in the Tribunal hearing it raised with the applicant and her adviser its concerns that it was unable to identify a Convention reason for the harm that she feared in China.  The applicant indicated that she did not wish to comment on this and that she needed some temporary protection.  However her adviser made a further written submission in which it was claimed, as set out above, that the applicant feared persecution by reason of actual or imputed political opinion. 

15. The Tribunal addressed the claims raised by the applicant, which were expressed in her adviser's submission as raising the issue of whether the applicant could be seen as giving expression to an opinion that corrupt official conduct, of the kind engaged in by her ex-boss, should not be allowed to exist and should be stamped out in China and the extent to which such an opinion was a political opinion.

16. The solicitor for the respondent accepted that the Tribunal's role may require it to go beyond the case expressly articulated by an applicant but contended that no issue of particular social group (as is now contended) arose so “obviously” on the material before the Tribunal as to require it to consider it. 

17. In NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 the Full Court of the Federal Court considered the extent to which a Tribunal is required to deal with an express or implied claim made by an applicant and whether a failure to do so would amount to a constructive failure to exercise jurisdiction consistent with the principles established by the High Court in Dranichnikov vMinister for Immigration & Multicultural & Indigenous Affairs (2003) 197 ALR 389. In NABE their Honours pointed out at [58] that:

    The Tribunal is required to deal with the case raised by the material or evidence before it … There is authority for the proposition that the Tribunal is not to limit its determination to the “case” articulated by an applicant if evidence and material which it accepts raise a case not articulated, … It has been suggested that an unarticulated claim must be raised “squarely” on the material available to the Tribunal before it has a statutory duty to consider it.…The use of the adverb "squarely" does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal.  Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal. 

18. Their Honours found cited authorities consistent with the proposition that the Tribunal is not required to consider a case not expressly made or which does not arise clearly on the material before it (at [59]-[63]) but that if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal, the Tribunal may fall into error.  Their Honours concluded, at [68], that:

    A judgment that the Tribunal has failed to consider a claim not expressly advanced is, as already indicated in these reasons, not lightly to be made.  The claim must emerge clearly from the materials before the Tribunal.

19. In this instance the claim that the applicant contends should have been considered does not relate to the facts which she put before the Tribunal but rather to whether or not the Tribunal should have considered another Convention basis, being membership of a particular social group.  I am not satisfied that the Tribunal erred in the manner contended.  No claim was made by or on behalf of the applicant that she belonged to any particular social group (cf MIMA v Sarrazola
    (No 2) (2001) 107 FCR 184 at 196) let alone a particular social group of “whistle-blowers” as is now contended. Nor has it been established that such a claim is supported or raised on the material before the Tribunal. This is not a case in which the material before the Tribunal was such as to require the Tribunal to consider whether the personally-motivated persecution which the applicant claimed to fear from her ex-boss or those acting on his behest was, in effect, converted into persecution for a Convention reason by the toleration or condonation of persecution of a particular social group by the State as considered in Minister for Immigration & Multicultural Affairs v Khawar (2002) 210 CLR 1. The Tribunal found the chance that the applicant would be arrested and charged by the police to be remote. Hence her fear was not well-founded. This finding adequately addressed that aspect of her claims.

20. I am not satisfied that the manner in which the claims were put or the material before the Tribunal is such as to have clearly raised a claim in terms of a particular social group which had to be addressed.  That is particularly so given that the Tribunal raised with the applicant and her adviser its concerns that no Convention reason was apparent.  Her adviser was given an opportunity to address such an issue in writing and did so.  The claim as presented relies solely on a claim of actual or imputed political opinion, consistent with what was considered by the Full Federal Court in V v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 355. The fact that the amended application now suggests a potential social group to which the applicant might have claimed to belong is not sufficient to establish jurisdictional error by the Tribunal.

21. As contended for the respondent, it is not necessary to consider whether the social group which is now posited satisfies the requirements in Applicant S vMinister for Immigration & Multicultural Affairs (2004) 206 ALR 242 at [36]. No claim was made by or on behalf of the applicant that she belonged to a particular group of whistle-blowers nor was such a claim supported by the material before the Tribunal.

22. Turning then to the claims that the applicant made in oral submissions, the applicant understandably has depended on translation of the Tribunal decision and concedes her difficulties in that respect (although I note that she did have the assistance of a solicitor appointed under the RRT Advice Scheme to prepare an amended application).  She raised first a complaint that the Tribunal questioned the genuineness of her claims, in particular because of her delay in applying for a protection visa until after she had been detained. 

23. The Tribunal reasons for decision record that the applicant offered some explanation for this and indeed she also offered an application to the court.  Insofar, however, as she seeks a review of the merits of the Tribunal decision, merits review is not available in this court.  More fundamentally, while the Tribunal expressed considerable doubt about the credibility of the applicant's claims, it proceeded on the basis that the events she claimed had occurred had in fact occurred.  In effect it gave her the benefit of the doubt in relation to the factual claims that she made.  It considered whether she faced a real chance of persecution for a Convention reason on the assumption that the events she complained of had occurred.  However it rejected her application because it found any fear of harm was not Convention related and was not-well founded objectively. 

24. The second claim that the applicant raised orally takes issue with the conclusions of the Tribunal by reference to certain country information about corruption in China referred to in the Tribunal decision.  In particular, the applicant expressed surprise that in light of such information the Tribunal member did not believe that her boss was still corrupt.  In that respect I note first that, in fact, the Tribunal found her account broadly consistent with the independent evidence before the Tribunal in relation to corruption in China and proceeded on the basis, as I have indicated above, that she did report some act or acts of corruption and that her former boss threatened her to deter her from revealing his corrupt activities.  It did so despite having expressed some surprise that her former boss might “brazen it out” as she had claimed.  No error is established in the Tribunal treatment of the credibility of the applicant's claims or the independent country information in the manner contended by the applicant.

1. The applicant also contended that the Tribunal had accepted that she had been fired and could not exclude the possibility that she faced persecution should she return to China.  On that basis it was contended that the Tribunal had fallen into error.  In particular it had found that she could be detained by the police and she contended that this suggested that she would be persecuted by the State.  Her argument is that this would give the official imprimatur to personal action by her former boss and bring her fears within the Convention.  However this submission does not establish a jurisdictional error.  It involves a misunderstanding of the manner in which the Tribunal dealt with the applicant's claims. 

2. As indicated the Tribunal proceeded on the basis that the events claimed by the applicant had occurred but found that there was nothing in her evidence from which it might infer that her ex-boss’ actions were or might be motivated by anything other than self-interest and thus the reasons for her dismissal and the threats to her by her ex-boss were not within those enumerated in the Refugees Convention.  It also dealt with her broader claim that harm arising from exposure of corruption can give rise to persecution for reasons of political opinion but, as indicated above, was satisfied that the authorities did not perceive acts such as those she undertook to be a challenge to state authority anyway.  In other words, the manner in which she presented her claim was not seen to be on all fours with the views expressed by the Federal Court that an attitude of resistance to systemic corruption of and criminality by government officials can fall within the description of political opinion.  (See V v MIMA (1999) 92 FCR355.)

3. The Tribunal also addressed the other ways in which the applicant claimed to fear harm, in particular, from triad members and from the police.  The applicant raised no issue in relation to the Tribunal findings as to the applicant's claimed fear of harm from triad members at the behest of the corrupt employer and its finding that any such harm would be unrelated to the Convention.  Critically, it found her claimed fear of arrest by the PSB on a trumped-up charge to be remote for reasons which it gave.  In other words, contrary to what the applicant appears to have contended in oral submissions, it did not find that she could be detained by the police, but rather that such a chance was remote.  The Tribunal made the appropriate inquiry as to what might occur in the future in determining whether the applicant's fear of persecution was well-founded but concluded that the chance of arrest and charge was remote and ultimately that her fear of persecution was not well-founded. 

4. It also dealt with the applicant's claim to fear other unspecified harm from police officers apparently acting in a private capacity by virtue of an arrangement involving mutual favours with her former boss and for personal benefit. The Tribunal was satisfied that if such harm occurred, the essential and significant reason for any harm she may face as a result would be unrelated to the Convention (consistent with the requirements in s.91R(1) of the Migration Act 1958 that the reason be the essential and significant reason for the persecution).  Contrary to the applicant's claim that the Tribunal rejected out of hand her claimed fear in this respect, it rather found that this particular aspect of her fear was unrelated to the Refugees Convention.

5. The applicant's complaints seek merits review or misunderstand the basis for the Tribunal findings, being essentially that there was no Convention basis for her fear and that aspects of her fear were not well-founded. 

6. No jurisdictional error has been established and the application must be dismissed.  I will hear submissions in relation to costs.

RECORDED   :   NOT TRANSCRIBED

1. The applicant has been unsuccessful and the respondent seeks that she meet the costs of these proceedings. There is nothing in the circumstances before me to warrant a departure from the normal rule that the unsuccessful applicant should meet the costs of the respondent.  I consider the amount sought is appropriate in light of the nature of this and other similar matters. 

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  14 July 2005