SZHAN v Minister for Immigration
[2007] FMCA 549
•19 April 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHAN v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 549 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision –status – refugee status – refusal – visa – protection visa – no Convention-related harm identified by applicant – application dismissed. |
| Migration Act 1958, s.91X |
| Applicant: | SZHAN |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2391 of 2005 |
| Judgment of: | Cameron FM |
| Hearing date: | 4 April 2007 |
| Date of Last Submission: | 4 April 2007 |
| Delivered at: | Sydney |
| Delivered on: | 19 April 2007 |
REPRESENTATION
The applicant appeared in person.
| Counsel for the Respondents: | Ms. R. Francois |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2391 of 2005
| SZHAN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an amended application dated 29 November 2005, the applicant seeks review of the decision of the Refugee Review Tribunal (“Tribunal”) signed on 30 June 2005 which affirmed an earlier decision of the delegate of the Minister for Immigration and Multicultural Affairs (“Minister”) dated 23 February 2005 refusing the applicant’s application for a protection visa.
Section 91X Migration Act 1958 (Cth) (“Act”) provides that the Court must not publish the applicant’s name.
Background facts
The Tribunal described the applicant as follows:
… the applicant is a 42 year old married woman and a PRC national. She states that she completed six years of education in 1979 and worked as a housewife and casual labourer from 1983 until 2004. (Court Book (“CB”) page 64).
The applicant claims to fear that if she returns to China she will be in trouble.
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 - 7 of the Tribunal’s decision (CB 64 - 67). Relevantly, they are in summary:
a)the applicant and her husband were farmers in China and did some casual labour to support themselves and her mother-in-law;
b)from 2002 until 2003, the applicant and her husband worked for a company which was contracted to assist with the construction of the Shenyang-Dalian Highway but received no payment;
c)the applicant and her husband were owed RMB 25,000;
d)the couple and other workers who were also owed money went to the company to try to obtain payment on a number of occasions but were unsuccessful;
e)they appealed to the Shenyang municipal government;
f)other workers sought to petition the local government but the police moved them on;
g)when the workers refused to move they were taken to the police station;
h)one month later, the applicant, her husband and other workers went to visit the Liaoning provincial government about their pay but they were confronted by a group of armed police;
i)some of the labourers, including her husband, were beaten by the police;
j)since the applicant has left China, she has learnt from her husband that the police are aware of her overseas travel. They sent an officer to her home to investigate her travel; and
k)the applicant fears that she will be in trouble if she returns to China.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
… The applicant’s evidence about the nature of her duties as a labourer on a construction site near Shenyang City is vague and generally unconvincing. The Tribunal does not accept that the applicant was employed on the construction site as she has claimed and does not accept her claim that wages were not paid by the employer for one year. The Tribunal finds it implausible that the applicant would have continued to work without income and no guarantee of income for one year as she has claimed. The applicant, when questioned about the alleged visit of the police to her home to investigate her overseas travel said that she had forgotten what her husband had told her about the visit. The Tribunal concludes that the police made no such visit to investigate the applicant’s overseas travel.
The applicant’s claims relate to the non payment of wages by her former employer. Whilst the Tribunal rejects this aspect of the applicant’s claims it also notes that she does not claim to have suffered Convention related harm as a result of this matter or the incidents which she claims to have followed. The Tribunal discussed the Convention grounds with the applicant in some detail. The applicant said on a number of occasions that her motivation in coming to Australia was to find work and earn money. Apart from the claim that she was not paid wages due to her, a claim which has been dismissed by the Tribunal the applicant does not claim to have suffered any other Convention related harm in China in the past. (CB 68)
In essence:
The Tribunal is of the view that the applicant came to Australia for reasons unrelated to the Convention. Indeed she told the Tribunal that she wished to [stay] in Australia so that she can earn some money and then go back to China. (CB 68)
Proceedings in this Court
The grounds of the application are as follows:
1. The Tribunal, on page 8 of the decision record, concluded that the applicant had not suffered any Convention related harm in China. This finding is incorrect as the applicant claims to have suffered mistreatment such as being beaten by the Chinese police.
The applicant claims that her husband was once beaten by the Chinese police when they participated in a protest in the city of Shenyang.
2. The Tribunal misinterpreted the applicant’s claim that “she wished to stay in Australia and earn as much money as she can”. But on page 8 of the decision the Tribunal states that “indeed she told the Tribunal that she wished to stay in Australia so that she can earn some money and then GO BACK TO CHINA”. The applicant has never said that she wants to go back to China. Thus the tribunal’s finding was based on [an] incorrect assumption.
3. The Tribunal did not consider all the documents, which were submitted by the applicant with any [sic] reasons, a jurisdictional error was occurred by the Tribunal.
The Tribunal ignored the applicant’s claims that the Chinese government did not do anything to protect the applicant’s interests. Instead the government prohibited the applicant from participating in any protest and demonstrations. Prohibiting the applicant’s legitimate right amounts to persecution under the Human Right Convention.
Dealing with each of these grounds in turn:
The Tribunal incorrectly concluded that the applicant has not suffered any convention-related harm in China
The applicant’s application submits that this finding was incorrect because the applicant had suffered mistreatment by being beaten by the Chinese police. However, this assertion in the application is not correct. The applicant did not submit any evidence to the Tribunal to this effect. Indeed, the Tribunal records her as having told it that she had suffered no harm other than economic disadvantage (CB 67). Therefore, to that extent, the foundation for this asserted ground of review does not exist.
In relation to the broader claim of having suffered Convention-related harm in China, this ground seeks to re-agitate in this court the merits of the applicant’s claim. In proceedings for judicial review such as these, the court is concerned with the procedures adopted and applied by the Tribunal, not with the finding which the Tribunal reached. Unless a factual error by the Tribunal relates to a jurisdictional fact or is a manifestation of some error of law constituting jurisdictional error, then that error will not ground judicial review. In the circumstances of this case the Tribunal’s finding was a conclusion based on the evidence before it, and which was open to it, and no jurisdictional error is demonstrated. Consequently, this ground is not made out.
The Tribunal misinterpreted the applicant’s claim that she wished to stay in Australia and earn as much money as she could and relied on an incorrect finding that she intended thereafter to return to China
It is unclear what the applicant means when she alleges that the Tribunal misinterpreted her claim. The Tribunal’s decision sets out the evidence supplied by the applicant both to the department and to the Tribunal but no criticism has been made by the applicant of any particular part of that record, with one exception. That exception is that the applicant disputes that she ever said that she intended to return to China. The relevant portion of the Tribunal’s recounting of the evidence is at CB 67 where the following appears:
The Tribunal asked the applicant whether there was anything further she wished to say. She replied that she wants to stay in Australia for a few more years so that she can earn some money and then go back to China. The Tribunal asked whether she wants to go back to China to which the applicant said that she wants to stay and earn as much money as she can.
Although the accuracy of that passage is disputed by the applicant, no evidence has been adduced by her to support her challenge to its accuracy. It would have been appropriate that a transcript be prepared in order that consideration is given to the precise words which were used by the applicant at the Tribunal hearing. However, no documentary or oral evidence was adduced by the applicant on this question, and consequently this ground is not made out.
The Tribunal did not consider (with any reasons) all the documents submitted by the applicant
The applicant has not identified what documents she says were submitted by her which were not considered. In its decision the Tribunal refers to the applicant’s protection visa application (CB 64), the statement which accompanied the protection visa application
(CB 64) and the department’s file (CB 64). The Court Book filed on 21 September 2005 contains no other documents of relevance submitted by the applicant other than two photocopied pages of the applicant’s passport (CB 29, 30). This photocopy (or at least the first of the two pages of it) was referred to by the Tribunal at CB 68.
This ground appears to have no real relationship to the decision of the Tribunal the subject of these proceedings and no jurisdictional error has been demonstrated in connection with it.
The Tribunal ignored the applicant’s claims that the Chinese government did not protect the applicant’s interests and prohibited her from participating in protests and demonstrations
The assertion that the Tribunal ignored the applicant’s claims in question requires, as its foundation, that those claims had been accepted or the facts underlying them had been made out. That is not the case here. The Tribunal did not accept the applicant’s assertions that she had been employed at a construction site without payment. Consequently, it is implicit that the Tribunal rejected her claims to have sought assistance from her municipal and provincial governments with the resultant police attentions. Therefore, what the applicant seeks by this ground of review is to re-open the Tribunal’s findings on these issues. For the reasons already expressed, that is not a course available in these proceedings and, as a result, this ground is not made out.
Conclusion
No jurisdictional error on the part of the Tribunal has been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 19 April 2007
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