SZFSX v Minister for Immigration
[2005] FMCA 1362
•30 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFSX v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1362 |
| MIGRATION – RRT – Chinese claimed persecution under ‘one child policy’ and due to political activities – Tribunal found no serious harm and disbelieved political claims – no error found. |
| Migration Act 1958 (Cth), ss.474(1), 483A, Part 8 Judiciary Act 1903 (Cth), s.39B |
| Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 |
| Applicant: | SZFSX |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 423 of 2005 |
| Judgment of: | Smith FM |
| Hearing date: | 30 August 2005 |
| Delivered at: | Sydney |
| Delivered on: | 30 August 2005 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Ms L Clegg |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The Tribunal be included as second respondent, and note the undertaking by the solicitor for the first respondent to file a submitting appearance by the second respondent.
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $3,900.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 423 of 2005
| SZFSX |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application under s.483A of the Migration Act 1958 (Cth) which seeks judicial review remedies in relation to a decision of the Refugee Review Tribunal dated 22 December 2004 and handed down on 19 January 2005. The Tribunal affirmed a decision of a delegate refusing to grant a protection visa to the applicant.
The Court's jurisdiction under s.483A is “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. That jurisdiction includes powers under s.39B of the Judiciary Act 1903 (Cth), but subject to limitations under Part 8 of the Migration Act. As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, the limitations have the effect that I cannot set aside the Tribunal decision and send the matter back to the Tribunal unless I am satisfied that the Tribunal's decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant qualifies for a refugee visa nor for any other permission to stay in Australia.
The present applicant arrived in Australia in June 2004, and on
24 June 2004 applied for a protection visa. A statement attached to his application referred to a family history, in which his grandfather had been sentenced to death in 1957 due to his political opinions against the Chinese Communist Party. This continued:
From 1957 to 1976, my father was often forced to stand on the stage, putting a high hat on his head for criticism and beaten by political team of the Chinese Communist Party. Since 1977, as a landlord's son I was often persecuted, looked down by people around. I could not enjoy my normal life in China. After getting married in China, my wife and I had three children, my wife had to hide here and there, could not go out where she lived for about two years to have my second and third child born. My other children could not get register for their births, we were also heavily penalised.
…
The sufferings of my grandparent and my parent have deeply influenced me. It is in my memory, can not be washed away. Therefore, I have been involved with democratic activities in China to strive for freedom and democratic political system for the Chinese people in China.
He said that if he went back, “I think the government of the People's Republic of China may harm/mistreat me”. He did not give any details of any political activities in China.
A delegate refused the application on 10 August 2004, and the applicant appealed to the Refugee Review Tribunal on 14 September 2004. He did not give more details to the Tribunal until he attended a hearing on 17 November 2004.
The Tribunal, in its reasons, described what he told it in relation to the matters I have referred to above. In relation to his problems under the one child policy:
The applicant told the Tribunal that his main problem arose when his wife had a third child. Under the “One Child Policy” being a farming family they were allowed two children only. However, owing to a mistake, his wife became pregnant with a third child. She hid most of the time in her house and did not emerge until after its birth in 2004. The authorities immediately applied a fine of RMB 30,000 which they were unable to pay, consequently, the birth control authorities come to their home and damaged and stole property.
In relation to his political activities:
The applicant said that he had no religious convictions and although he desired the right to speak freely and hold his own opinions in China, rights which were denied by the Communist Party, he was not a member of any organised group working against the government for change.
He claimed to have suffered one incident in June 2002, where he had been briefly detained “for criticising the government for not building homes for the poor and imposing fines”. He said that on that occasion he was physically abused by the officials and publicly humiliated.
The Tribunal recorded the following being said at the end of the hearing:
The applicant confirmed that he did not expect to be persecuted if he returned to China and the land he farmed would be returned to him by the collective. He was concerned there was no social security in China, and everyone had to pay for education and health services. He didn't have enough land to live on and he still had to pay the fine for the third child.
The Tribunal set out country information which it had from the Department of Foreign Affairs and Trade, and also a research report from the Canadian Embassy in Beijing concerning the effects of the one child policy in the region from which the applicant came.
Under the heading "Findings and Reasons", the Tribunal accepted “as plausible” the applicant's claims about his family background and experiences as a youth. However, it concluded:
while those past experience could have been classified as persecution at that time, the Tribunal does not accept that current Chinese government policy supports such persecutory behaviour.
In relation to his political claims, the Tribunal said that it “does not accept the applicant's claim that he had a history of involvement in local democratic activities over a period of 10 years”. It thought that if this was true, he would have come to the attention of the local Public Security Bureau and been detained, which he had not claimed to have happened. It also did not “accept as credible the applicant's claim that he was briefly detained, on one occasion”.
The Tribunal noted that the applicant had had no difficulty obtaining a valid passport, and said that it was satisfied “that the applicant does not have an adverse political profile and (the Tribunal) has no reason to believe that on his return to China he would be likely to initiate action which would change this situation.” The Tribunal said:
The Tribunal has no compelling evidence which would lead it to conclude that the Chinese authorities have targeted the applicant, and that there would be a real chance of persecution on his return to China now or in the foreseeable future.
The Tribunal's reference to “no compelling evidence” in this sentence may appear unfortunate. However, the end of the sentence shows that it was alive to the real chance test, and I consider that its reference to "no compelling evidence" should be understood as meaning no more than that it was not satisfied by the evidence which was before it to arrive at a favourable conclusion when applying that test.
The Tribunal then addressed the applicant's claims in relation to Chinese family planning policies in his province. It concluded, contrary to the applicant's evidence, that he would have been entitled to have two children as a farmer. It then asked itself:
whether or not the applicant is able to maintain his family at a subsistence level, and pay the 30,000 RMB fine on his current income, and if not, does this constitute grounds under the Convention?
It appears to have answered the first question: ‘yes’, and the second: ‘no’, based on findings that there would be flexibility in the application of the policy in relation to the applicant. It concluded:
Consequently, the Tribunal believes that Chinese policy does not apply “serious harm” to the applicant and his family by denying them access to “basic services” which are, according to the applicant, no longer given freely to anyone, or to cause significant “economic hardship that threatens the persons capacity to subsist” in the context of s 91R(2).
The Tribunal is satisfied that the applicant will be able to subsist economically on his return to China and that he will not face persecution. On the basis of the evidence before the Tribunal none of his claims would qualify as adequate grounds under the Convention.
Some aspects of this reasoning are not entirely clear, but I am not persuaded that the Tribunal has failed to address the claims made by the applicant, nor that it failed to apply a correct appreciation of the Refugee Convention definition of "refugee" when assessing those claims.
The application filed in this Court criticised the Tribunal because:
He used the wrong independent information for the consideration of my application. As a matter of fact some applicants succeeded to get protection under this ground. I believe that the Tribunal made jurisdiction mistakes.
Similar points were made by the applicant orally to me today. He said that he was aware of other refugee claimants who had successfully obtained protection visas in circumstances which he thought were the same as his, both in relation to the one child policy and the holding of political opinions. In relation to the latter he said:
I have similar views, why did I not get the visa?
Unfortunately, this is a question which I cannot answer, due to not knowing the details of the other decisions to which he referred. Moreover, as I tried to explain to the applicant, it is not possible for the Court to conduct a general review of successful applications for protection visa to discover whether there has been any inconsistency in the decision-making in the Department of Immigration or the Tribunal. I can only assess the material in the present case and consider the legality of the present decision of the Tribunal.
In relation to the applicant's concern about the Tribunal using the wrong information to inform itself, I do not consider that this gives rise to jurisdictional error by the Tribunal. The applicant was entitled to put before the Tribunal general information that he believed would support his case, and he did not do so. The Tribunal has made use of such sources available to it for information, and it was entitled to do so.
I can find no error in the Tribunal's use of the information it relied on such as would give rise to jurisdictional error.
A second point made in the applicant's application essentially made further assertions about his qualification to be a refugee, and did not identify a ground of jurisdictional error.
An amended application filed by the applicant on 28 April 2005 contains a jumble of grounds of judicial review. Some of these repeat points that I have already addressed above.
There are also some criticisms of the Tribunal for not asking further questions about the applicant's political opinions. However, in the absence of a transcript of the hearing, I am unable to find any evidence that the Tribunal did not properly conduct its hearing. Other points made in the amended application are in such generality that I cannot find any basis for them.
Taking into account all the submissions of the applicant made in his documents and orally to me today, I have not been able to find that the Tribunal's decision was affected by jurisdictional error. The decision is therefore a privative clause decision for which relief is barred under s.474(1) of the Migration Act and I am obliged to dismiss the application.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Iliya Marovich-Old
Date: 28 September 2005
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