SZGLJ v Minister for Immigration - [2005] FMCA 1481

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGLJ v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1481

MIGRATION – RRT decision – Chinese person fearing persecution for political opinion and activities – no error found.

Judiciary Act 1903 (Cth), s.39B

Migration Act 1958 (Cth), ss.417, 424A, 474, 483A, Pt.8
Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), Sch.1 Pt.2 cl.8

Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12
Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24

Applicant:

SZGLJ

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG1421 of 2005

Judgment of:

Smith FM

Hearing date:

29 September 2005

Delivered at:

Sydney

Delivered on:

29 September 2005

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Mr D Jordan

Solicitors for the Respondents:

Blake Dawson Waldron

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 $5,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1421 of 2005

SZGLJ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed on 31 May 2005 under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which seeks orders by way of judicial review of a decision by the Refugee Review Tribunal (“the Tribunal”) dated 10 March 1999 and handed down on 11 March 1999. The Tribunal affirmed the decision of a delegate made on 27 February 1998 which refused to grant a protection visa to the applicant.
The Court’s jurisdiction under s.483A gives the Court “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. The relevant jurisdiction in the present matter is under s.39B of the Judiciary Act 1903 (Cth) but subject to limitations under Part 8 of the Migration Act. These apply due to the transitional provisions in the amending legislation which introduced them, since the applicant made no previous application for judicial review (see cl.8 of Sch.1 of the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth)). As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476, the limitations have the effect that I do not have power to set aside the Tribunal decision and order the Tribunal to reconsider the matter 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 should be believed about her refugee claims, and I do not have power to decide whether she qualifies for a protection visa or for any other permission to stay in Australia.
The applicant arrived in Australia on a one month business visa in July 1997 and applied for a protection visa assisted by a migration agent on 11 November 1997. The delegate refused the application on 27 February 1998, and the applicant then applied for review by the Tribunal on 19 March 1998 assisted by the same agent. She later employed another agent to help her in her application. She submitted statements in support of her case with her original visa application and with her review application, and she attended a hearing before the Tribunal on 9 March 1999. As I have indicated, the Tribunal handed down its decision two days later.
The Minister in the present proceeding has filed a notice of objection to competency and evidence opposing the granting of relief to the applicant due to the delay after March 1999 before the applicant commenced the present Court proceeding on 31 May 2005. The Minister argues that, even if the Tribunal’s decision was affected by jurisdictional error, relief should be refused because of unwarranted delay.
During the delay, there was what appears to have been a conscious decision by the applicant not to challenge the legality of the Tribunal’s decision. On the evidence before me the applicant, soon after the Tribunal’s decision, applied to the Minister for a discretionary reconsideration under s.417 but was told by letter dated 10 August 1999 that that reconsideration would not be performed. The applicant has told the Court that she was then advised by her migration agent “that there would be no further legal procedure that could be taken regarding my case”. She says that she thought she had no alternatives but to take that advice, and only decided to lodge an application after she was taken into detention in February 2005.
These circumstances do raise a real issue as to whether relief should be refused under discretionary considerations (see SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 at [80]). However, I have decided that I should address the substantive merits of the applicant’s application before deciding that issue, and in view of my opinions set out below I do not find it necessary to decide it.
The Tribunal’s reasons in the present case correctly, in my view, identified all of the elements raised by the applicant’s written statements and, so far as it appears, by her oral claims in the course of the hearing. The Tribunal then dealt with each of those elements in the manner that I shall describe shortly.
The applicant’s claims were that she came from a family which had suffered during the Cultural Revolution, that she herself had suffered by being obliged to work in the country between 1972 to 1977, and that in the mid‑1990s while working in a garments factory she had incurred unfavourable attention due to her involvement in workers’ demonstrations and activities. She claimed that she had political opinions for which she would be persecuted, and that she also faced persecution for having applied for refugee status in Australia. At the hearing she also, it seems, related her fears to difficulties encountered by her husband with the authorities.
The Tribunal addressed each of these elements and assessed them by reference to information obtained from an encyclopaedia, foreign affairs cablegrams and other sources. It made the following findings.
First, that the applicant:
has not continued to suffer consequences amounting to judgments that were made about her family during the time of the Cultural Revolution.
Secondly, although the applicant may have gone to the countryside unwillingly when obliged to undertake work there:
the program had wide application to young people and was predicated on economic motives. There is no basis for finding that the applicant was chosen for any reason other than that she met the main selection criteria at a time when rustication of young people was very common in order to deal with economic and labour supply problems.
Thirdly, the Tribunal accepted that there were significant problems in the applicant’s industry, that the applicant had publicly represented workers’ interests in demonstrations and in letter‑writing, and that “she was occasionally at logger‑heads with factory leaders”. However, the Tribunal did not accept claims that the applicant’s colleagues were arrested for a Convention reason, nor that her own complaints against the system disclosed her political opinion. It also said:
In any event, her own capacity to depart China legally indicates that any problems faced by her friends prior to her departure do not hold a real chance of persecution of the applicant herself for any Convention reason. Similarly, even if other colleagues have been arrested since her departure there is no basis for a conclusion of the applicant, having herself satisfied the authorities that she was not of interest to them, would now or in the foreseeable future face a real chance of persecution for any Convention reason.
The Tribunal, in support of its rejection of this element in the applicant’s claims, referred to country information indicating that Chinese authorities “take complaints of corruption seriously”.
Fourthly, in relation to its conclusions on the granting of a passport to the applicant and her ability to use it, the Tribunal referred to country information supporting its opinions, including some information which was referred to by the delegate in his original decision.
Fifthly, the Tribunal addressed the applicant’s concerns that she would be persecuted due to her support of the pro‑democracy movement or other expressions of views contrary to the official line. It referred to country information indicating that some people may risk persecution for their political opinions, but said:
There is no material that would indicate, however, that persons having a profile or history of activity or expression of opinion such as the applicant’s would now or in the foreseeable future face a real chance of persecution at the hands of the Chinese authorities.
In assessing the information available to it, in the light of the applicant’s own profile, the Tribunal finds there is not a real chance that she would encounter serious harm in China due to holding views that are different from those of the CCP or for supporting pro‑democracy activists in 1989 in the ways she had claimed.
Sixthly, the Tribunal addressed the consequences for Chinese nationals applying for refugee status if they returned. It referred to DFAT cablegrams and concluded:
On the basis of the above information, the Tribunal finds that the act of applying for refugee status does not, of itself, lead to adverse consequences beyond questioning and criticism. The seriousness of that criticism and any prospect of more adverse treatment would appear to be contingent upon the past occurrence of any serious illegal acts or significant dissident political activity. The Tribunal has found that the applicant in this case has not been involved in illegal acts or in significant politically dissident activity.
The prospect of her encountering serious harm if her application for refugee status were to become known to the Chinese authorities is remote, and the Tribunal finds accordingly. In making that finding the Tribunal also notes an absence of any information of returning students and others with a prolonged absence from China (that may give rise to a suspicion of there having been an application for refugee status) being persecuted upon return.
Finally, the Tribunal considered the applicant’s claims based on difficulties faced by her husband. It considered that this was “a belated claim”, and found that it was not credible.
The Tribunal concluded:
In considering all the circumstances of this case, including cumulatively, the Tribunal finds that the applicant does not have a well‑founded fear of persecution for any Convention reason.
I have considered the reasoning of the Tribunal, and I am not satisfied that it made any error amounting to jurisdictional error, and in particular that it did not fail to understand either the applicant’s claims or the law to apply in relation to them.
The applicant has filed a number of applications seeking to raise grounds of jurisdictional error. Her original application claimed that the Tribunal “failed to deal with the applicant’s sur place claim of persecution by reason of my political opinions”. However, there is no substance to that complaint, in my opinion. As I pointed out above, the Tribunal did address the applicant’s risk of persecution based on her current political opinions, and also assessed what would be her situation as a refugee claimant. The other contentions in the application are not framed in terms raising jurisdictional error.
An amended application filed on 25 July 2005 is not easily understood. One criticism is “the Tribunal make a decision from the delegate’s conclusion without any foundation in evidence”. I do not accept that contention. In my view, the Tribunal has carefully considered the material before it and arrived at its own conclusion.
This morning a three‑page further amended application was forwarded to the Court, and this was addressed by the applicant in her oral submissions. Counsel for the Minister did not object to its filing, and I have considered the three grounds raised by it.
The first is that the Tribunal “failed to apply the “real chance test” adequately as prescribed in the High Court case of Chan v Minister for Immigration and Ethnic Affairs (1989)”. I accept the submission of counsel for the Minister that there is no basis for that contention shown in the statement of reasons for the Tribunal. The Tribunal cited relevant passages from Chan’s case in its general discussion of the law. As it indicated in the extracts I have set out above, it then expressly applied its attention to that test when addressing the applicant’s fears on return to China.
A subsidiary contention under this ground, which was not addressed orally by the applicant, was that the Tribunal “misinformed the applicant about the test”. However, there is no evidence that this happened.
The second ground is that the Tribunal failed to afford procedural fairness to the applicant in relation to country information relied upon by the Tribunal. In the present case, the Tribunal’s obligations in that respect should be assessed against common law requirements, since the provisions of s.424A did not apply to the matter.
However, the difficulty facing the applicant is that there is no evidence before me as to what happened in the course of the Tribunal’s hearing as to its canvassing of country information with the applicant. As I have indicated above, some country information had been cited by the delegate, in particular concerning the critical issue of what implications could be drawn from the obtaining of the passport and departure from China. In relation to that matter, the applicant plainly was under notice from the inception of her appeal that the Tribunal might rely on such information.
Other conclusions reached by the Tribunal showed that it also drew on country information in relation to other issues. Under common law obligations, I accept that some of this material would have been required to have been put to the applicant, at least as to its gist. However, in her oral submissions the applicant accepted that there had been discussion of country information during the Tribunal’s hearing, and she did not identify any particular piece of information relied upon by the Tribunal as not having been canvassed with her during the hearing.
Her only complaint was that the Tribunal made its decision shortly after the hearing without allowing her an opportunity to make further written submissions with the assistance of her agent. However, there is no sworn evidence concerning this from herself or her agent. Given the lapse of time, it may be difficult for the applicant now to present evidence sufficient to make out a contention of unfairness. I am certainly not prepared to reach a conclusion on the material before me and in the absence of a transcript of the hearing that the Tribunal unfairly denied the applicant an opportunity to make further submissions. The Tribunal does not give any description of what happened at the hearing in its reasons, and it is unclear to me whether the applicant sought or should have been offered further time to give comments additional to whatever she was able to say in the course of the hearing. I therefore do not accept this ground.
The third ground attacks the Tribunal’s ultimate conclusion on three bases. The first is that it was “irrational, illogical and not based on findings or inferences of fact supported by logical grounds” (citing Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at [38]). However, I do not accept that there is anything in the Tribunal’s reasoning that could give a foundation for this contention.
Secondly, the Tribunal’s ultimate conclusion is criticised as “based on a balance of probabilities approach”. However as I have indicated above, the Tribunal did not follow that approach so far as I can detect, but properly understood and applied the “real chance test”.
Thirdly, the ground criticised the Tribunal for “ignoring relevant material”, and the document and the applicant’s oral submissions to me identified areas of fact which she complained had not been accepted by the Tribunal as showing her refugee status. However, I consider her criticisms did no more than dispute the merits of the Tribunal’s assessments on these areas. In my opinion, the Tribunal did not ignore nor fail to weigh the evidence relevant to those issues.
For the above reasons I have not found the Tribunal decision to be affected by jurisdictional error. The Tribunal decision is therefore a privative clause decision within s.474 of the Migration Act, and I must dismiss the application.
RECORDED : NOT TRANSCRIBED

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 10 October 2005