SZHGS v Minister for Immigration

[2007] FMCA 1512

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHGS v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1512

MIGRATION – review of decision of Refugee Review Tribunal – open to the Tribunal to find that the level of harm suffered by the applicant did not amount to persecution – no denial of natural justice at general law – no absolute obligation on the Tribunal to make enquiries – no jurisdictional error – application dismissed.

Migration Act 1958, ss.91R, 422B, 425, 424A, 65, 36, 417

Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1
Prahastono v Minister for Immigration and Multicultural Affairs (1997) 77 FCR 260

Applicant: SZHGS

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2974 of 2006

Judgment of: Nicholls FM

Hearing date: 4 September 2007

Date of Last Submission: 4 September 2007

Delivered at: Sydney

Delivered on: 4 September 2007

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondents: Ms B K Nolan

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. The reference to the first respondent be amended to read “Minister for Immigration and Citizenship.”

2. The application made on 16 October 2006 is dismissed.

3. The applicant pay the first respondent’s costs set in the amount of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2974 of 2006

SZHGS

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; revised from Transcript)

1. I have before me an application filed in this Court on 16 October 2006 seeking review of a decision of the Refugee Review Tribunal (“the Tribunal), signed on 25 August 2006 and notified to the applicant on 19 September 2006, which affirmed the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.

2. By way of background, I note that the applicant is a national of the People’s Republic of China who arrived in Australia on 14 February 1995 and applied for a protection visa on 2 March 1995.  (The application for protection visa is reproduced in the Court Book (“CB”) at CB 1 to CB 36, with annexures.)  On 26 May 1995, a delegate of the respondent Minister refused the application for protection visa.  I note that the applicant was re-notified of the delegate’s decision on 8 April 2005.

3. The applicant sought review of the delegate’s decision on 2 May 2005.  (The application and attachments are reproduced at CB 54 to CB 61.)  The application for review includes the applicant’s wife and the applicant’s daughter, both of whom are nationals of the People’s Republic of China, although the daughter was born in Australia. 

4. On 25 August 2005, the Tribunal (“the earlier constituted Tribunal”) handed down its decision on that application for review.  That decision was the subject of judicial review and, ultimately, on 9 May 2006, consent orders were made by Madgwick J in the Federal Court, quashing an earlier decision of the Federal Magistrates Court and remitting the applicant’s matter to the Tribunal for reconsideration according to law (orders of Madgwick J reproduced at CB 113 to CB 114).  I should just note, for the sake of clarity, that the applicant’s wife and the applicant’s daughter had separately applied for protection visas.

5. Upon the matter being remitted to the Tribunal, the Tribunal, by letter dated 8 June 2006, invited the applicant to a hearing before it.  This letter was sent to the applicant’s then authorised recipient for correspondence (his former migration adviser) who then notified the Tribunal that they were no longer acting for the applicant.  In any event the applicant subsequently notified the Tribunal that he intended to attend the hearing before the Tribunal and he also sent the Tribunal documents in support of the application for review (reproduced at CB 120 to CB 160).  I also note from the relevant material that by letter dated 27 July 2006, the Tribunal invited the applicant to comment on certain information which the Tribunal said would, subject to any comments made by the applicant, be the reason, or part of the reason, for deciding that he was not entitled to a protection visa.  (This letter is reproduced at CB 161 to CB 163.)  By letter dated 4 August 2006, the applicant responded.  (This response is reproduced at CB 174 to CB 175.)

6. The applicant’s claims to protection arise from a variety of claims made by the applicant.  First, the applicant claimed to have been involved in political protests in China, that is, in the 1989 pro-democracy movement, and claimed that, as a consequence of this, he lost his job and was detained and abused by police.  Second, the applicant claimed that he had an active role in an underground church in China and claimed that if he were to return to China he would continue to practice his Christian faith and that he feared persecution on the basis that he was at risk of being gaoled if he continued to practice his faith on return to China.  Third, that he and his family would be “treated badly” because they had violated the one child policy in existence in that country.

7. The Tribunal made the following findings:

   1)That it had no jurisdiction to review the decisions that were made by the Minister’s delegates to refuse protection visas to the applicant’s wife and the applicant’s daughter, on the basis that the relevant delegate’s decisions had separately been the subject of review by the Tribunal and as the wife and daughter had originally applied separately from the husband for protection visas (CB 186.8 and CB 199.1).

   2)The applicant had departed the People’s Republic of China under his own identity and that authorities allowed the applicant to depart as he was of no relevant concern to them (CB 196.8).  It found that the applicant’s use of a Malaysian passport to enter Australia was not an indication that the applicant feared persecution of a Convention related nature (CB 196.9).

   3)The applicant was not persecuted for reasons of political opinion and had suffered no harm other than he was sacked from his job with a high school.  It noted that the applicant continued to live in China for a further six years after being sacked from his job and found generally, in this regard, that some of the applicant’s claims were far fetched, marred by revision and could not be considered reliable (CB 197.3).

   4)It accepted that the applicant came from a Christian background but was unimpressed by the disparity between the applicant’s claim to leadership within the underground church and his evidence at the hearing before it on this issue.  It therefore did not accept that the applicant had been involved with such a church, “let alone as integrally and significantly as claimed” (CB 197.5).

   5)The applicant had fathered two children, with the elder remaining in China (CB 197.7).

   6)It noted that the child in Australia would be regarded as, to use the Tribunal’s phrase, the “excess child” but that this child was not the subject of an application before the Tribunal and as such, it did not have jurisdiction to consider those claims on behalf of the child (CB 197.8).

   7)In relation to the applicant’s claim that he would be imprisoned for having fathered an “excess child,” the Tribunal found this claim to be unreliable and a “far-fetched and unsupported claim” (CB 197.9).

   8)It did not accept that the applicant would be treated more harshly for having fathered an “excess child” and for his membership of an underground church on the basis that it did not accept that the applicant was so involved with an underground church (CB 197.10).

   9)It accepted that the applicant would be “disadvantaged” for having fathered an “excess child” but did not consider that such hardship amounted to “persecution” for reason of the applicant’s membership of any particular social group identifiable by the presence of an excess child in the family (CB 198.4).

   In all, therefore, the Tribunal was not satisfied that the applicant had a well founded fear of persecution for a Convention reason, and, in turn, was not satisfied that the applicant was a person to whom Australia had protection obligations.  It therefore affirmed the delegate’s decision.

8. The application to this Court puts forward two grounds.  They are as follows:

   “1.  The Tribunal constructively failed to exercise it is jurisdiction to afford the applicant natural justice in circumstances where the Tribunal applied the incorrect test of persecution convention purposes.

   2.  The Tribunal misinterpreted and misapplied to law to the facts as found by it a criteria for protection visa.” (Errors in original)

9. Before the Court today, the applicant appeared in person with the assistance of an interpreter in the Mandarin language.  Ms B K Nolan of Counsel appeared for the first respondent.  I also have before me Ms Nolan’s written submissions filed 1 May 2007.

10. The applicant was unable to assist the Court on the relevant issue of whether the Tribunal’s decision was infected with error and, in particular, jurisdictional error.  The applicant stated to the Court that he could not go back to China and wanted a fair decision.  He stated that he had been in Australia for 12 years and his wife had been in Australia for 10 years.  He stated that, in addition to having no property and no money in China, he was not able to go back because he would be persecuted because of his involvement with an underground church.  The applicant further stated that he would be persecuted in China because he has two children and that police notified relatives that he is being investigated.  In short, the applicant was unable to assist the Court with matters relevant to the Court’s consideration, in spite of the Court’s attempt to explain the difference between the role and powers of the Tribunal and the Court.  The applicant was only able to put before the Court the matters that more properly fall within the province of the Tribunal’s consideration.

11. I should just note that there was an issue before the Court today that the applicant had not received the Minister’s written submissions filed in this matter.  I marked as “Respondent’s Exhibit 1” a letter dated 2 May 2007 from the Minister’s solicitors to the applicant sent to his address for service and to his home address enclosing a copy of the Minister’s submissions.

12. At best, the first ground in the application to the Court can be understood as a complaint by the applicant that the Tribunal failed to afford him natural justice in that it applied the wrong test for persecution. This is not particularised, but in all the circumstances before the Court, it appears this is a complaint that the Tribunal found he would suffer disadvantage for reason of being the parent of an “excess child,” but that it found that such a difficulty would not amount to persecution. The term “persecution” which is found in Article 1A(2) of the Refugee Convention (“the Convention”) is qualified by s.91R of the Migration Act 1958 (“the Act”), which provides that Article 1A(2) does not apply in relation to persecution “unless one of the following applies,” and those matters are set out in s.91R(1)(a) to (c) of the Act. But I note that s.91R(1)(b) of the Act provides that Article 1A(2) of the Convention does not apply in relation to persecution unless “the persecution involves serious harm to the person.”

13. Section 91R(2) of the Act sets out examples of what may constitute serious harm for the purposes of that section. In this regard, I note what McHugh J said in the matter of Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1 at [55]:

    “The Convention protects persons from persecution, not discrimination.  Nor does the infliction of harm for a Convention reason always involve persecution.  Much will depend on the form and extent of the harm.  Torture, beatings or unjustifiable imprisonment, if carried out for a Convention reason, will invariably constitute persecution for the purpose of the Convention.  But the infliction of many forms of economic harm and the interference with many civil rights may not reach the standard of persecution.  Similarly, while persecution always involves the notion of selective harassment or pursuit, selective harassment or pursuit may not be so intensive, repetitive or prolonged that it can be described as persecution.”

14. Whether the applicant complains by way of the first ground in the application about the Tribunal’s finding in relation to the “excess child,” or whether he complains more generally, I agree with Ms Nolan that this is not an issue that this Court is entitled to review.  I note and agree with what Hill J said in Prahastono v Minister for Immigration and Multicultural Affairs (1997) 77 FCR 260 (“Haji Ibrahim”) at 271, which is set out at paragraph 14 of Ms Nolan’s written submissions. In any event, it seems to me that the Tribunal’s approach is consistent with what McHugh J said in Haji Ibrahim, particularly in light of what the Tribunal states in its decision record at CB 198:

    “[I]t is a separate matter how ‘big’ the ‘problem’ might be; it is a separate matter whether the difficulty potentially faced by the Applicant would amount to persecution.”

    On what was before it, it was open to the Tribunal to find that the level of harm suffered by the applicant did not amount to persecution.

15. Further, and again with reference to the words in the applicant’s first ground in the application, I also cannot see that the applicant was more generally denied natural justice. The application for review was originally made in 2005 and as such, s.422B of the Act applies to make the matters set out in Division 4 of Part 7 of the Act the exhaustive statement of the natural justice hearing rule, absent bias. In this regard, I cannot see that there was any failure by the Tribunal in regard to its obligations pursuant to that Division of that Part of the Act. The applicant was invited to a hearing pursuant to s.425 of the Act and was given in writing the opportunity to comment on information that the Tribunal considered would be the reason, or part of the reason, for its decision to affirm the delegate’s decision such that it complied with its obligations to provide such information to the applicant for comment, as information that may have fallen within the obligation set out in s.424A of the Act.

16. Even when the principles of procedural fairness and natural justice at general law are considered, I cannot see that the Tribunal failed in any of its relevant obligations.  Having regard to the Tribunal’s account of what occurred at the hearing on 27 July 2006 (noting also that the applicant had appeared before the earlier constituted Tribunal), which is the only evidence before the Court of what occurred at these hearings, in my view, the determinative issues were discussed at the hearing and the applicant was given the opportunity to respond both at the hearing and then in response to the Tribunal’s letter, and the applicant exercised these opportunities.  In all, therefore, I cannot see that the applicant’s first ground reveals jurisdictional error on the part of the Tribunal.

17. The second ground in the application alleges that the Tribunal misapplied the law to the facts, and the only particularity which perhaps could be said to be provided by the applicant in this regard, is a reference to the Tribunal’s “Findings and Reasons.”  This appears to be again a reference to the “big problem” that the applicant would face in China and the applicant complains that the Tribunal made no effort to find out more or ask for more evidence.

18. A number of matters arise from this. First, it is for the applicant to put his claims before the Tribunal and it is for the Tribunal to either reach or not reach a requisite level of satisfaction such that the protection visa must be granted or not granted. I say that with reference to ss.65 and 36(2) of the Act. It is not for the Tribunal to seek out the evidence to make out an applicant’s claims. It is for an applicant to put whatever evidence he feels would support his claims. Beyond that, the applicant has not said what further evidence or what further efforts the Tribunal should have made. Nor is there anything to show that the Tribunal ignored any evidence put forward by the applicant or that the applicant was not provided with the opportunity to provide any such further evidence.

19. Simply, the Tribunal accepted that the applicant would face some difficulty in relation to having two children in China. But based on the applicant’s own evidence and circumstances, and based on the independent country information available to it, the Tribunal found that any difficulty faced by the applicant would not, in all the applicant’s circumstances and in light of the independent country information, amount to “persecution” as that term is understood by the Convention and s.91R of the Act. This finding was open to the Tribunal on what was before it. Beyond that, I can only agree with Ms Nolan that no instance of a misapplication of the law is identifiable in the Tribunal’s decision.

20. I should also just note in relation to the Tribunal’s findings that it did not have jurisdiction to review the application in relation to the applicant’s wife and the applicant’s daughter.  Again, based on the material before the Court, I cannot see error in the Tribunal’s finding that it lacked jurisdiction on the application in relation to those two persons.  In my view, therefore, the Tribunal was correct to proceed to consider the application for review on the basis of the applicant’s claims alone.

21. In all, therefore, I cannot see jurisdictional error in the Tribunal’s decision, either by way of the grounds put forward by the application or otherwise.  The application to the Court is accordingly dismissed.

22. I should just note that during the course of the hearing today I did alert the applicant to the provisions of s.417 of the Act, given that, as he said, he had been in Australia for 12 years and that is wife had been in Australia for 10 years, and that these factors, together with his wife having no property or money back in China, may be matters that more properly he should seek to put before the Minister for Immigration. But that is not a situation where this Court can assist the applicant any further beyond alerting him to this avenue in circumstances where he has been in Australia for some years, but noting for the applicant’s benefit that the Minister cannot be compelled to exercise the power available to him pursuant to that section. In all, and in any event, the application to this Court is dismissed.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  A Douglas-Baker

Date:  12 September 2007