SZGWJ v Minister for Immigration and Citizenship

[2007] FCA 661

FEDERAL COURT OF AUSTRALIA

SZGWJ v Minister for Immigration and Citizenship
[2007] FCA 661

Migration Act 1958 (Cth), ss 424A(1), 424(A)(3)(b)

Applicant S301/2003 v Minister for Immigration and Multicultural Affairs [2006] FCAFC 155 followed
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 cited

SZGWJ v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND  ANOR
NSD 268 OF 2007

RARES J
1 MAY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 268 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZGWJ
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES J
DATE OF ORDER:	1 MAY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant pay the first respondent’s costs, fixed in the sum of $3,000.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 268 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZGWJ
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES J
DATE:	1 MAY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1. This is an appeal from the Federal Magistrates Court which refused to grant constitutional writ relief to the appellant against a decision of the Refugee Review Tribunal to refuse to issue a protection visa to her by a decision made on 8 February 2006 and handed down on 21 February 2006 (SZGWJ v Minister for Immigration [2007] FMCA 90).

2. The appellant claimed in her application for a protection visa made to the Minister that she was a citizen of the People’s Republic of China involved in the enforcement of China’s ‘one child’ policy.  She claimed that she had been appointed chief of the women’s welfare group in her village and she claimed that her role had been to lead the people in that group and go to individual households to make sure that families were sterilised after they had had more than one child.  She claimed that she had been required to report to the authorities in her village identifying the people who had to be sterilised, and that although she had not been trained she had learned her role through regular meetings of officials in her group.

3. The tribunal found that the appellant had limited education.  It accepted her account that, other than household duties, the only jobs she had ever held in China were as a farmer and as chief of the group between, as she had claimed, 1992 and 1995.  It also found that after late 1995 until she came to Australia in June 2002, the appellant had been a domestic worker.  

4. Essentially, the appellant claimed that as a result of performing her duties with the group she had gone to three separate families and identified husbands or wives as being persons who ought to be sterilised, and that they were sterilised.  The tribunal then found that the appellant was only a low-level person in the village, with menial and limited duties, who was for a few years involved in the Chinese family planning program, but without any substantive authority or position.  It found she was not involved in the identification of people to be sterilised.  It said that when she had been asked who performed the sterilisations she claimed that they were done in the hospital and that her role was simply to summons the people to go to the hospital for that purpose:  a claim which the tribunal accepted.

5. The tribunal then found:

   ‘And while claiming in her protection visa application that “My role was to lead this group of people and go to individual households and make sure that the families were sterilised after having one child.  I was also required to report to the authorities in [her village] the people who had to be sterilised.  I was not trained but learnt my role through the regular meetings of the officials of the [village] group,” this claim was not repeated at the second hearing, and given her low level of education and its earlier finding about her limited and low level involvement in the village in the Chinese family planning program, the Tribunal does not accept these claims and finds that she has embellished her claims in order to enhance her claims for a protection visa.’

6. Nothing appeared in the record of the tribunal or elsewhere as to why the second hearing was required, other than that an earlier application to the Federal Magistrates Court had been the subject of consent orders remitting the matter to the tribunal for further hearing.

7. The tribunal accepted the appellant’s evidence that she had summonsed three households only for the purposes of obtaining sterilisations of persons in those households.

8. The tribunal also accepted that over the years since 1992 the appellant and her family had been the victims of several incidents of vandalism and, in the case of her daughter, assault.  The vandalism which the tribunal accepted was that persons went to the appellant’s house in a group, sometimes individually, and that it had been attacked on several occasions.  On one occasion four windows were broken in the house and the door was banged on;  on another, a brick was thrown.  On another occasion the house was vandalised and local officials did not assist her in protecting her property.  She said that in 1994, which the tribunal accepted, some unrecognised people drove around her house beeping their horns and that she was terrified for her life.  In early 1995 she quit her role with the women’s welfare group because of the attacks, and moved away, going to stay with her sister and sending her children to a friend’s house.

9. The tribunal accepted that the appellant’s daughter had been physically assaulted, harassed and abused as she walked home from school to a friend’s house and that in 1996 an orchard of over an acre, which the appellant owned with her husband, had been destroyed and the house again vandalised.  The tribunal accepted that the appellant dare not return to her house; it also accepted that two of her pigs had been killed in 1997.  The tribunal also found that the appellant had been subjected to an assault by being stabbed in the hand in 2000 by the husband in a family in which, following the appellant’s role in the wife being sterilised, a son had later died.

10. In a number of respects, however, the tribunal found the appellant not to have been a satisfactory witness. Critically, the tribunal found that it had not been satisfied that the essential and significant reason why the appellant suffered these various incidents, and feared their continuation and repetition, was related to a Convention reason for the purposes of s 91R(1)(a) of the Migration Act 1958 (Cth).

11. The appellant had been represented before the tribunal by the Refugee Advice and Casework Service (RACS).  On her behalf, it articulated a claim that the appellant had been responsible in her position in the women’s welfare group for implementing the political and social agenda of the Government of China and that she had been targeted by several families precisely because of those policies and her political and social action in enforcing them.  RACS made the claim for the appellant that she would not have suffered any harm had she not been perceived as an agent of government policy, and as having the view that sterilisation, as a form of contraception, was necessary.  This imputation of political opinion to her was argued as being a sufficient Convention nexus.  When the appellant sought protection from authorities within China she was not offered it and, indeed, suffered on a number of occasions the personally confronting and abusive conduct which the tribunal found had been occasioned to her.

12. The appellant was represented by counsel before his Honour, but unfortunately before me she has appeared without representation or assistance, other than from an interpreter.  Essentially the same grounds as were put forward to his Honour are contained in the notice of appeal.  They are, in substance:

    1.The appellant as a citizen of China would be at risk of suffering persecution within the meaning of the Convention were she returned to that country.

    2.His Honour failed to understand the appellant’s claims and failed to consider relevant matters;  in particular, he failed to understand that the tribunal had committed a jurisdictional error by not explaining adverse information on her protection claims [sic].

    3.Relief should be granted under s 39B of the Judiciary Act 1903 (Cth) because the tribunal had failed to observe s 424 (which I understand to be a reference to s 424A) of the Act and that it had not exercised its jurisdiction in accordance with law because it had failed to grant a protection visa and otherwise failed to afford natural justice to the appellant.

    4.        The tribunal had prejudged the appellant’s case.

13. I will consider the last two grounds first.

    DID THE TRIBUNAL FAIL TO GIVE A NOTICE UNDER S 424A?

14. Before his Honour, and I think counsel for the Minister accepted before me, an amendment had been made to the application for review so that the third ground also raised a failure to give particulars under s 424A of the Act, in respect of the quoted passage from the application for a protection visa set out in the passage of the tribunal’s reasons which I have quoted above.

15. His Honour held that the appellant had provided that information, being the claim in her protection visa application, for the purposes of her application for review within the meaning of s 424A(3)(b).  This was because RACS wrote to the tribunal member who first constituted the tribunal in April 2005, saying that the appellant had explained her claims in a statement to the Department which had accompanied her protection visa application.  It was from that statement that the claim quoted by the tribunal in the passage above was taken.  Moreover, in the same letter RACS summarised the appellant’s claim as being one in which in 1992 she had been appointed chief of the women’s welfare group in the village, an official government representative, by a higher official in the village and had had to regulate the number of children the families in the area had.  RACS said that her role had been to go to individual households and make sure that families were sterilised after having one child, and that she had then been required to report to authorities in the village the people who had to be sterilised.

16. Where an applicant before the tribunal explicitly adopts what he or she put to the Minister in support of the initial application for a protection visa, including adding qualifications or amendments to that claim, the applicant for review can be seen properly to have ‘given’ the initial material to the tribunal for the purpose of his or her application for review:  Applicant S301/2003 v Minister for Immigration and Multicultural Affairs [2006] FCAFC 155 at [17] per Heerey, Mansfield and Emmett JJ. I am of opinion that in the circumstances of this case the tribunal was entitled to proceed on the basis that the appellant had given it the information in her protection visa application in the form of the claim which she had earlier made. It was entitled to have regard to that information without serving any notice under s 424A(1). The submission made by RACS in April 2005, in my opinion, expressly republished the original claim in the protection visa application for the purposes of the application for review: see also SZGGT v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 435 at [36]-[51].

    ALLEGATION OF BIAS

17. The appellant put forward no material to suggest why the tribunal could be seen to have acted in a way that was either biased or gave the appearance of bias.  I reject that ground.  I have considered the tribunal’s reasons for myself and have not seen any basis on which prejudgment either appeared or could be suggested.  Rather, the tribunal appears to have considered the appellant’s claims on its merits.  While s 422B indicates qualification of the natural justice hearing rule, it does not qualify any obligation of the tribunal to identify the claims made by an applicant for review and to determine those claims.

    DID THE TRIBUNAL MAKE ANY JURISDICTIONAL ERROR?

18. I now return to the first two grounds raised by the appeal.

19. The passage from the tribunal’s reasons, which I have quoted above, could on one view raise a question as to whether the tribunal had proceeded by asking itself the wrong question and therefore failed to discharge its statutory obligation of determining the claim for a protection visa.  That is because the way in which the tribunal has phrased its reasoning in that passage suggests that if the appellant had not repeated the claim she had put forward for a visa during the original or the second hearing, she could be seen to have abandoned or not supported it.  However, proceedings before the tribunal are not adversarial and it is for the tribunal to exercise its statutory functions to determine the claims.

20. The reasons of an administrative decision-maker, such as the tribunal, are not to be scrutinised minutely and finely with an eye keenly attuned to perception of error.  Rather their function is to express in the decision-maker’s own language the findings and reasons which s 430(1) of the Act requires him or her to give:  see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ and Toohey, McHugh and Gummow JJ. I am of opinion that read in have regard its context, the passage which I have extracted reveals that the tribunal gave consideration to the way in which the appellant had explained her role and found that it was not as significant as her earlier claim had asserted. By saying that she had failed to repeat her earlier claim at the second hearing, the tribunal was doing no more than saying that she had not satisfied it that the claim as originally framed had been made out.

21. The tribunal ultimately was satisfied that although the appellant had had what it described, with justification if not understatement, as ‘some unpleasant non‑Convention related experiences in the past in her village’, she was not a refugee.  It found that if for any reason the appellant has subjective fear of returning to her village more than 11 years after she ceased to occupy her position in the women’s welfare group, it would be reasonable for her to go elsewhere in the province in which she lived in China, or to some other location in that country, to live, and that in those other places there was no real chance of her experiencing serious harm amounting to persecution for any Convention-related reason.

22. The tribunal did not accept that the appellant would not be able to obtain the protection of the authorities if she needed it.  Although that is a factual finding that seems to be in the teeth of the evidence, which it did accept, of the substantial number of instances of harm which had befallen the appellant, nonetheless I am unable to see how the tribunal committed a jurisdictional error in its assessment that the appellant could relocate within China to a place away from any danger that might have been occasioned to her from any activity she had undertaken in her village.

23. While persecution is selective harassment, and in appropriate cases can include single acts of oppression or measures in disregard of human dignity (Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 570 per Brennan CJ and Dawson, Toohey, Gaudron, McHugh and Gummow JJ, approving what McHugh J had said in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 429-430), the activities of the individuals, which the tribunal accepted had affected the appellant and her family in her village, were not found to be activities which had a real risk of repetition elsewhere in China away from the appellant’s home area.

24. Unfortunate and terrifying as the assaults and intimidating behaviour found by the tribunal to have been suffered by the appellant were, I am not able to detect any jurisdictional error in the way in which the tribunal characterised that activity as not having been suffered by her for a Convention reason.

    CONCLUSION

25. In those circumstances I am unable to perceive a basis upon which the tribunal committed a jurisdictional error, or it could be said that his Honour failed to identify one.  It follows that the appeal must be dismissed with costs.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Associate:

Dated:        4 May 2007

The Appellant:	In person
Counsel for the Respondent:	T Reilly
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	1 May 2007
Date of Judgment:	1 May 2007