SZGXS v Minister for Immigration
[2006] FMCA 1237
•21 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGXS v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1237 |
| MIGRATION – Protection visa – Refugee Review Tribunal – whether jurisdictional error. |
| VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 |
| Applicant: | SZGXS |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG2119 of 2005 |
| Judgment of: | McInnis FM |
| Hearing date: | 21 August 2006 |
| Delivered at: | Sydney |
| Delivered on: | 21 August 2006 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Mr S Lloyd |
| Solicitors for the First Respondent: | Blake Dawson Waldron |
ORDERS
The First Respondent’s name be changed by deleting the words ‘and Indigenous’.
The Application as amended be dismissed.
The Applicant shall pay the First Respondent’s costs fixed in the sum of $4,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2119 of 2005
| SZGXS |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) dated 28 June 2005. In its decision the Tribunal affirmed a decision of a delegate of the first respondent to refuse to grant to the applicant a protection visa. The applicant before this court is self-represented, though appears with the assistance of an interpreter. He relies upon an amended application filed 24 November 2005.
The applicant by way of background is a citizen of China. He arrived in Australia on 12 December 2004. On 24 January 2005 he lodged an application for a protection visa. He claimed to have left China because of what he refers to as the “endless mistreatment” to his family and himself under what is known as and referred to as the one‑child policy.
On 15 February 2005 a delegate of the first respondent made a decision refusing to grant a protection visa. The applicant then lodged the application for review with the Refugee Review Tribunal and did so on 16 March 2005. The applicant attended a hearing before the Tribunal on 8 June 2005. Under the heading ‘Claims and Evidence’ (Court Book page 57) the Tribunal sets out in some detail the background of the applicant. The Tribunal relevantly states, after referring to the family situation of the applicant, the following:
“In a brief typed statement the Applicant claimed to have left China because of the endless mistreatment of himself and his family for breaching the One‑Child Policy (OCP). He explained that as a peasant he wanted a second child to help the family in the future; a second son was born in violation of the OCP. The applicant wrote that everything bad happened after the birth of his second child (elsewhere stated to be September 2002). The Family Planning Committee fined him 5000 yuan (about $A800 at current exchange rates) to be paid within a month and the Committee confiscated their rice ‘for paying the penalty’ because they couldn’t pay on time. Supplies such as water and power to the land they were working were also restricted and when working at night the electricity was suddenly cut; they had ‘no way to go but gave it up’. Also Family Planning officers came to his house, took everything of value and demolished his home. They used a tractor to pull the steel rope that surrounded his home and this caused his family a huge loss; the family had nowhere to live and nothing to live on. In China the Applicant won’t be able to evade their inhuman treatment so he borrowed money from relatives and friends and bought an Australian visa to avoid endless mistreatment.”
That extract from the Tribunal’s decisions, which appears under the heading “Claims and Evidence”, I am satisfied is a reasonably accurate reflection upon the claim made by the applicant in the material before this court, in the Court Book, and in particular material in support of the application.
The Tribunal thereafter, at the hearing, raised a number of issues with the applicant. In particular the Tribunal directly questioned the applicant about what might happen to him should he return to China. The following relevant extract appears at Court Book page 58:-
“Asked what he thought would happen to him if he returned to China the Applicant said his family is poor so he can’t return; he can’t live there as the government wants more payments of the social maintenance fee (the fee to have more than one child). When he was asked to pay the fee he told them that he could not afford it so they took everything from his house, this was in 2003. Asked more about the demands for and payment of the fee, he said he paid the first time but later they asked for a second and third instalment; when he couldn’t pay they took away things. Friends and family collected some money to help him pay the first time, he paid 6000RMB; he doesn’t know why they asked for a second or third instalment, or how much they were, and he didn’t ask. The Tribunal noted that in written evidence he claimed that the fee was 5000; the Applicant said this was an error of his friend who assisted him and produced a photocopy of a receipt. The hearing interpreter translated it during the hearing as “special receipt for administrative fees” issued to the Applicant and his wife on 22 January 2003 by the Fujian Provincial Financial Bureau for 6000yuan cash as first instalment of social maintenance fee for an extra child.”
The Tribunal then went on to ask further questions of the applicant in relation to matters which I regard as relevant in consideration of the application. It further considered independent country information, which I am satisfied it was entitled to consider in the circumstances. Significantly, under the heading “Findings and Reasons” it is noted that the Tribunal accepted the applicant as a citizen of the Peoples’ Republic of China as claimed and as supported by the applicant’s PRC passport. However, the Tribunal then went on to state relevantly the following, at page 62 of the Court Book:
“The Tribunal has concerns about the Applicant’s credibility because as can be seen from the detail set out above of his oral evidence, it was often contradictory or vague and confused and it was very difficult for the Tribunal to get a straight answer. Also, at times, his oral and written evidence differed, for example about the amount he paid, about whether his home was demolished or damaged, and new claims were made at the Tribunal hearing, such as that he has to pay a second and third instalment. Furthermore, the Tribunal has concerns about the Applicant’s credibility because as it tried to explain, his claims are at odds with independent country information about the implementation of the OCP in Fujian Province.
Having considered the Applicant’s evidence the Tribunal accepts that the Applicant and his wife had a second child in September 2002 without seeking prior permission and thus they breached the OCP. However, the Tribunal has difficulty with the Applicant’s evidence about the repercussions of this as his evidence was so inconsistent and did not impress the Tribunal as a reliable witness. …”
The Tribunal then goes on to consider in some detail the concerns it raised and had in relation to the applicant’s evidence and ultimately rejected other significant claims made by the applicant.
Significantly, the Tribunal then, in its “Findings and Reasons” proceeds to draw the following conclusion, at page 63 of the Court Book:
“Even if the Applicant’s claims about the fee, and the damage to his home and livelihood are true, and even if the Applicant thinks he can’t return to China because his family is poor and/or because further payments of the social maintenance fee for the second child are still required, the Tribunal is not satisfied that the Applicant suffered persecution for a Convention reason or that he has a well‑founded fear of persecution within the meaning of the Convention if he returns to China now. …”
In the amended application relied upon by the applicant and filed on 24 November 2005 it is clear to me that the applicant’s concern with the Tribunal decision relies upon what could only be described as reference to the Tribunal not considering his claim and/or simply supporting what he refers to as DIMIAs arbitrary argument. The applicant otherwise in his application seeks to argue that he was not allowed sufficient time to collect and present favourable evidence and further seeks to assert an error on the part of the Tribunal in relation to what is described as unprofessional services provided.
The applicant otherwise seeks to argue, in his amended application, that the Tribunal failed to consider whether Chinese law on the one‑child policy were fair, noting they were against the norms of Australia’s democratic system. The first respondent has submitted that in the circumstances the amended application on the grounds sought to be relied upon, when considered against the claim and the findings referred to in some detail earlier in this judgment, do not constitute jurisdictional error and that accordingly the application should be dismissed with costs.
In considering the issue of jurisdictional error I adopt and apply the following passage from the Full Court of the Federal Court decision in VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255 where the Court states:-
“16 It is not disputed by the appellants that in order to find jurisdictional error this Court should rely on the description of what constitutes jurisdictional error as it appears in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 and in particular on the statement in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] citing Craig v State of South Australia (1995) 184 CLR 163. That requires the appellants to establish that the Tribunal fell into error of law by identifying a wrong issue, asking itself a wrong question, ignoring relevant material, relying on irrelevant material or, at least in some circumstances, making an erroneous finding or reaching a mistaken conclusion. To this may be added denial of procedural fairness: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 per Gummow and Hayne JJ at [49], footnote 26 referring to Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 and Re Minister for Immigration & Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57.”
Any jurisdictional error detected must affect the exercise or purported exercise of power in order to provide a proper basis upon which the Court should intervene by way of judicial review. A failure to take into account a relevant consideration would not of itself constitute an error unless it was a consideration that the Tribunal was bound to take into account (see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24).
In the present case, whilst making due allowance for the fact that the applicant is self‑represented and has obvious difficulty in appreciating the concept of jurisdictional error I am satisfied applying the relevant principles of law that there is indeed no jurisdictional error revealed in the Tribunal’s decision. In my view the Tribunal has properly considered the claims made by the applicant and indeed properly addressed those claims which are relevant, which in this instance are clearly dependent to a large extent upon the one‑child policy which was of significant concern to the applicant.
The Tribunal, in fact, made a finding in favour of the applicant in relation to the birth of the second child, but it otherwise then, in an appropriate manner, free of jurisdictional error, having assessed the evidence, reached a conclusion adverse to the applicant’s credibility in relation to key claims made by the applicant both in support of his application for a protection visa and in answer to questions raised by the Tribunal at the hearing conducted in the presence of the applicant. Those findings, and indeed the exploration of the claims made by the applicant, at the hearing, were matters entirely within the power and jurisdiction of the Tribunal. I do not see any error in its approach and/or in the manner in which it dealt with the claims raised by the applicant.
Further, I am satisfied that the Tribunal has correctly concluded that even if it accepted key claims made by the applicant in relation to the fees charged, the damage to his home, the effect upon is livelihood, then it correctly concluded that in any event those matters would not, as required, satisfy the requirements of establishing persecution for a convention reason, or that the applicant had a well‑founded fear of persecution within the meaning of the convention, if he were to China. That conclusion, in my view, is also free of any jurisdictional error.
Accordingly, it follows that the application should be dismissed with costs.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 21 August 2006
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