SZHAL v Minister for Immigration
[2006] FMCA 22
•25 January 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHAL v MINISTER FOR IMMIGRATION | [2006] FMCA 22 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no jurisdictional error – application dismissed. |
Migration Act 1958 (Cth), ss.91X, 422B, 474
Judiciary Act 1903 (Cth), s.39B
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 [2003] HCA 1
Craig v South Australia (1995) 184 CLR 163
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26
Applicant A & Anor v Minister for Immigration & Ethnic Affairs & Anor (1997) 190 CLR 225
Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379
SGBB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 709
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) [2004] FCAFC 263
WAID v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 220
NAQF v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 781
Ratumaiwai v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 311
Yo Han Chung v University of Sydney & Ors [2002] FCA 186
| Applicant: | SZHAL |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG2382 of 2005 |
| Delivered on: | 25 January 2006 |
| Delivered at: | Sydney |
| Hearing date: | 13 December 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of an interpreter.
| Counsel for the Respondent: | Mr P Carr |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2382 of 2005
| SZHAL |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth), filed in the Sydney Registry of the Federal Magistrates Court of Australia on 26 August 2005 for a judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 16 August 2005, affirming the decision of the delegate of the first respondent (“the delegate”) made on 30 June 2005 to refuse to grant the applicant a protection (Class XA) visa. The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal.
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “SZHAL”.
Background
The applicant, who claims to be a citizen of the People’s Republic of China, arrived in Australia on 2 March 2002. On 27 June 2005 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act (Court Book pp.2-31) (“CB”). On 30 June 2005 the delegate refused to grant a protection visa (CB pp.37-45) and on 7 July 2005 the applicant applied to the Tribunal for a review of the delegate’s decision (CB pp.47-49).
The applicant’s visa application was completed with the assistance of a registered migration agent and interpreter. The applicant indicated he was born in 1956 and is a married man from Jilin Province. He has a wife and two daughters who remain in China. The applicant lived at the one address until he came to Australia and he worked for the Railway from 1980 until January 2002. From 1988 to 1990 he was a deputy station master and from 1990 to 2002 he was a railway cargo worker. He is in receipt of a pension. The applicant obtained a passport in April 2001 without difficulty and was issued with an Australian visitor’s visa in February 2002 (CB p.74).
Applicant’s claim
The applicant started work for the Railway in 1981. The Party Secretary at his work unit approved his own relative’s application to join the Party and denied the applicant’s application as he wanted his relative to have more power and a better job. When the station master’s job became available the relative was appointed and the applicant remained as deputy. In 1990 a passenger was accidentally killed. If the passenger had a ticket the government had to pay compensation and the station workers lost their annual bonus. The applicant saw that the victim had a ticket but the Party Secretary’s relative took the ticket and told the applicant not to get involved. Six months later there was a similar incident involving the station master’s elderly relative, who did not have a ticket. The station master put a ticket in the victim’s pocket and therefore the workers were denied a bonus and were upset at the station master’s actions and the compensation paid to his relative, the victim. The station master thought the applicant, who also knew about his actions in the first incident, knew too much and he began to pressure him. As a result, the applicant obtained a transfer to the cargo section at less money (although information on the protection visa application form shows that the pay was the same but there was no eligibility for an annual bonus). The Party Secretary retired and the station master became Party Secretary. The applicant claimed that because he knew too much about the activities of the Party Secretary, he was identified on a list of persons to be made redundant. The applicant claimed that if he returned to China he would have no job and it would be hard for him to get another. The applicant feared that this man would interfere with the applicant’s daughter wanting to go to University, so he did not tell anyone when she was accepted for University. The applicant claimed that he decided to leave China so this man would not pressure him anymore or interfere with his daughter’s study (CB pp.74-75).
The Tribunal’s findings and reasons
A convenient summary of the Tribunal’s reasons were contained in the respondent’s written submissions prepared by Mr Carr and I adopt paragraphs 12-13 for the purpose of this judgment:
[12]The RRT accepted the applicant was a citizen of China.
[13]The RRT was not satisfied that the applicant’s stated fears were well founded and found that he was not a person to whom Australia had protection obligations for the following reasons:
(a)Although the RRT accepted the applicant’s accounts of his difficulties with the station master in about 1990 and the reasons for his transfer within the railway it did not accept that he had been retrenched for these difficulties having regard to oral evidence (at the RRT hearing) that he had applied for early retirement.
(b)The applicant’s problems with the station master / party secretary were not so serious as to amount to persecution within the meaning of the Act because he continued to work for the railway for another decade, never looked for another job and there was nothing to suggest the station master / party secretary had interfered with the applicant’s daughter’s studies.
(c)The applicant obtained a passport without difficulty whilst employed with the railway which necessarily required the approval of his work unit.
(d)The applicant obtained his passport in April of 2001 but did not leave until his retirement in February 2002 which was indicative that he was not being persecuted.
(e)Although fearing he may be harmed upon his return by the station master / party secretary, the applicant gave oral evidence about a number of matters which may occur after he returns to China but did not mention the station master / party secretary.
(f)The applicant had no difficulties with the station master / party secretary for the five years prior to him leaving China and that his family had not had any “serious problems in (at least) the last few years”.
Application for review of the Tribunal’s decision
On 26 August 2005 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth) setting out the following grounds:
1.If I go back to my country, I will be risk of suffering persecution. With the meaning of the 1951 Convention relating to the status of Refugees and the 1967 protect relating to the Status Refugees.
2.Member of RRT failed to understand my claim and failed to consider relevant matters. Further particulars to be provided.
3.The respondent refused to grand my protection visa application without any proper grounds and proper investigation.
4.I seek relief under s.38B of the Judiciary Act 1903 (Cth) on the grounds that the tribunal; a exceeded jurisdiction in the decision not to grant me a protection visa in that it; I was not accorded natural justice. Further particulars to be provided. (Errors included)
The law
The present application is affected by the privative clause contained in s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia (“Plaintiff S157/2002”) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (“Applicant S134/2002”), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: Plaintiff S157/2002 at [76] and Applicant S134/2002 at [15].
An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal’s power: Craig v South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs.
Submissions
The applicant appeared self represented with the aid of a Korean interpreter. The applicant attended a directions hearing before me on 21 September 2005 and orders were made at that time which included the filing and serving of an amended application and any evidence upon which he proposed to rely at the hearing. Also at that directions hearing, the applicant was offered the opportunity to participate in the Pilot RRT Legal Advice Scheme (NSW) and the applicant confirmed that he had been visited in detention by a member of the advisory panel.
The applicant failed to comply with the original orders made at the directions hearing and failed to file an amended application or submissions in support of his original application. At the final hearing, when the applicant was invited to make oral submissions in support of his application he declined to do so. However, in reply he did make a number of brief statements concerning his financial circumstances and his desire not to be forced to return to China.
Mr Carr of Counsel, appearing for the respondent, filed written submissions prior to the hearing which he indicated he would rely upon.
Reasons
The applicant confirmed that he would rely upon his original application filed on 26 August 2005 and did not wish to make any further submissions in respect of those grounds. The grounds of the applicant’s claim can be effectively summarised as:
(a)if the applicant returned to China, he will be at risk of suffering persecution;
(b)the Tribunal failed to understand the applicant’s claim or to consider relevant matters;
(c)the first respondent refused to grant protection without proper grounds and without proper investigation; and
(d)the Tribunal exceeded its jurisdiction in that it did not accord the applicant natural justice.
This is a clarification and simplification of the grounds pleaded. None of the grounds were particularised and there was no supporting affidavit evidence, written or oral submissions.
In respect of ground 1, the Tribunal accepted that the applicant left China to avoid pressure from the person who became Party Secretary and that person’s possible interference with the applicant’s daughter’s university studies. As a result of the problems, the applicant sought a transfer within the Railway and continued with that organisation for a further twelve years. The Tribunal noted the circumstances in which the applicant was able to obtain a passport which would have been subject to the approval of his work unit. The Tribunal acknowledged the applicant may face difficulties in obtaining suitable employment upon his return to China, however, it noted that the applicant had considerable experience in the operation of the Railway and now had the added skills of a tiler being the occupation that he pursued during his stay in Australia. The Tribunal also acknowledged that the loss of savings he had accumulated during his time in Australia would disadvantage him on his return as he had plans to use these funds to buy a house and complete the payment of his daughter’s education. The Tribunal made the following observation:
“This means that persons whose sole reason for migration is the desire to leave generalised, difficult economic conditions, or to achieve a better economic standard of living are generally excluded from protection under the Convention.” (CB p.78)
The Tribunal relied upon the decision of Applicant A & Anor v Minister for Immigration & Ethnic Affairs & Anor per Gummow J at 283. There His Honour considered the humanitarian objectives of the Convention and the limits placed by the Convention upon achieving such objectives:
“Moreover, par (2) of s A contains two cumulative conditions which must be satisfied for classification thereunder as a refugee. The first condition contains several elements and the second contains alternatives, one of which refers back to the first condition.
The first condition is that a person be outside the country of nationality by reason of (owing to) a fear of persecution which is well founded both in an objective and subjective sense. This means that persons who are outside the country of nationality by reason of such causes as natural disasters, war and economic misfortune cannot answer the requirements of par (2).”
At the Tribunal hearing, the applicant explained to the Tribunal member the difficulty he had arising from the loss of his savings when he was taken into detention and his inability to recover that loss. He stated it was his intention to not leave the country until he got his money back. On the advice of fellow detainees at the detention centre he had decided to pursue a protection visa application as a method of extending his stay in order to advance his financial position. The applicant made a similar statement to the Court during his reply but this did not affect the Tribunal’s reasoning. At the hearing, the applicant then outlined his claimed fears of returning to China. During this explanation the applicant made numerous concessions that although he expressed fear of persecution by the station master / Party Secretary this had not occurred prior to his departure.
In the absence of any contrary evidence, the Tribunal has correctly considered the statements made by the applicant and has satisfied itself that the applicant does not have a well founded fear of persecution within the meaning of the Convention if he returns to China. Ground 1 cannot be sustained.
In the second ground, the applicant claimed the Tribunal failed to understand his claim and failed to take into consideration the relevant matters in respect of that claim. This ground was not particularised and there was no evidence or submissions by the applicant to indicate where the Tribunal made these errors. The respondent submitted, and I accept the submission, that the statement of principle identified in the findings and reasons of the Tribunal correctly identified the matters it is required to consider in its decision making process. The Tribunal was entitled to make its findings, in particular that the applicant did not have a well founded fear of persecution: Minister for Immigration & Ethnic Affairs v Guo & Anor. The Tribunal did not commit any jurisdictional error by identifying the wrong issue, ignoring relevant material or relying upon irrelevant material: Minister for Immigration & Multicultural Affairs v Yusuf. Ground 2 cannot be sustained.
In respect of ground 3, the applicant claimed the Tribunal refused to grant protection without proper grounds and proper investigation. The Tribunal concluded that it was not satisfied that the applicant had a well founded fear of persecution within the meaning of the Convention if he returned to China. The High Court held that an applicant for refugee status must demonstrate a well founded fear of persecution. There must be a real and substantive basis as to their fear, not merely assumed or based on speculation: Chan Yee Kin v Minister for Immigration & Multicultural & Indigenous Affairs at 389, 398, 406-407: see SGBB v Minister for Immigration & Multicultural & Indigenous Affairs at [17] and NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) at [60]. The Tribunal is not required to undertake its own investigations. Ground 3 cannot be sustained.
In ground 4, the applicant claimed the Tribunal exceeded its jurisdiction and that it did not accord him natural justice. Again, this claim was unparticularised and not supported by any evidence or submission. With the introduction of the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth) which became operative on 4 July 2002, s.422B provides:
(1)This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
(2)…
The extent and operation of this provision has been considered in a number of decisions including WAID v Minister for Immigration & Multicultural & Indigenous Affairs per French J at [57]:
“Section 422B, as appears from the Explanatory Memorandum and the Minister's Second Reading Speech, was enacted specifically to overcome the effect of the decision in Miah not just in relation to the part of the Act with which that decision was concerned, but other parts of the Act containing like procedural requirements. The section is not entirely without difficulty in its application. It is a statement of legislative intention about the effect of Div 4 of Pt 7 of the Act as "... an exhaustive statement of the requirements of the natural justice hearing rule in relation to matters it deals with". That is to say the procedural requirements set out in Div 4 so far as they are referable to the requirements of procedural fairness in relation to the right to be heard are to be treated as exhaustive. They are to be treated as exhaustive in relation to the matters with which Div 4 deals. Division 4 is concerned generally with conduct of a review by the Tribunal. One of the matters with which it deals, under that rubric, is the provision to an applicant of information that "... the Tribunal considers would be the reason or a part of the reason, for affirming the decision that is under review...". That is to say it deals with the provision to the applicant of information, known to the Tribunal, which would be adverse to the applicant's application. When read with s 422B, in my opinion, s 424A is now to be treated as exhaustive of the requirements of procedural fairness relating to the applicant's right to comment on adverse material which is known to and is to be relied upon by the Tribunal. I am bound by WAAJ to conclude that the latter section does not extend to the provision of country information of the kind complained about in this case. Such information is "... not specifically about the applicant or another person". And to the extent that, in this case, it concerns the approach of the Vietnamese Government to persons who are members of official and unofficial religions it may also be said to be "... just about a class of persons of which the applicant or other person is a member.”
Also see NAQF v Minister for Immigration & Multicultural & Indigenous Affairs and Ratumaiwai v Minister for Immigration & Multicultural & Indigenous Affairs.
In the absence of any contrary evidence, it was not apparent from the face of the decision that the Tribunal did not comply with its statutory obligation of procedural fairness under the Act. On 22 July 2005 the Tribunal wrote to the applicant indicating it had considered the material before it in relation to his application but was unable to make a favourable decision on the information alone. The applicant was invited to attend a hearing on 11 August 2005. He was invited to provide to the Tribunal prior to the hearing any new documents or written arguments that he wished the Tribunal to consider and the invitation to hearing was extended to any witnesses the applicant wished to bring with him to provide oral evidence in support of his claims. The letter also advised that if any of the witnesses happened to be detained in immigration or criminal detention that the Tribunal was to be advised at an early date to enable arrangements to be put in place for the applicant to attend the hearing. That letter was forwarded to the applicant’s migration agent. Subsequently, the migration agent, on the applicant’s behalf, advised the Tribunal that it was the applicant’s intention to attend the hearing, that he required a Mandarin interpreter and that the migration agent was also going to attend the hearing. The migration agent also prepared written submissions for the hearing which were provided to the Tribunal on 9 August 2005. There was no attempt to tender the Tribunal hearing tapes or a transcript nor was there any submission or affidavit evidence to suggest that the Tribunal hearing was conducted in any way other than is required under the Act and meeting the statutory obligation of procedural fairness under the Act. The migration agent, previously retained by the applicant, made no submissions to this hearing. The face of the Tribunal’s decision does not disclose any issue that would raise the suspicion that the Tribunal hearing and the subsequent deliberation were undertaken in any manner other than the following the appropriate procedures as required. Ground 4 cannot be sustained.
Where an applicant is self represented, the Court must independently consider whether an arguable case based on the material could be made out: Yo Han Chung v University of Sydney & Ors. In order to fulfil this requirement, I have considered all the material contained in the Court Book and reconsidered the Tribunal’s decision to determine whether it is possible to identify any aspect of the Tribunal’s decision making that would give rise to a jurisdictional error. Regrettably, there was nothing apparent in that process that would lead to a decision that the Tribunal failed to exercise its decision making responsibility in accordance with the Act. There is nothing recorded on the face of the documents available to indicate that the Tribunal has not complied with its obligations in this respect.
Conclusion
In all the circumstances, I am satisfied that no jurisdictional error has been identified. Consequently, the application must be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 25 January 2006
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