SZHMS v Refugee Review Tribunal

[2007] FMCA 143

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHMS v REFUGEE REVIEW TRIBUNAL & ANOR [2007] FMCA 143

MIGRATION – Decision of delegate July 1997 – applicant notified May 2005 – application for review filed June 2005 – Tribunal decision October 2005 – whether delay between date of delegate’s decision and Tribunal review amounted to a denial of natural justice – whether delay affected capacity of the Tribunal to assess the applicant’s evidence and make a decision – Tribunal to consider the facts at the time of it’s review.

Migration Act 1958, s.422B

NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 223 ALR 171 (considered and distinguished)
Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61 (applied)
Minister for Immigration and Ethnic Affairs v Singh (1997) 142 ALR 191 (applied)
Minister for Immigration and Ethnic Affairs & Anor v Singh (1997) 144 ALR 284
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs v Mayer (1985) 157 CLR 290 (applied)

Applicant: SZHMS

First Respondent: REFUGEE REVIEW TRIBUNAL

Second Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

File Number: SYG 3216 of 2005

Judgment of: Turner FM

Hearing date: 12 December 2006

Date of Last Submission: 12 December 2006

Delivered at: Sydney

Delivered on: 28 February 2007

REPRESENTATION

Solicitor for the Applicant: Mr J. Jiang of Unilegal

Counsel for the Respondents: Mr G. Johnson

Solicitor for the Respondents: Ms J. Pownall of Australian Government Solicitor

ORDERS

1. The application and amended application are dismissed.

2. The applicant is to pay the costs of the second respondent fixed in the amount of $5,200.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3216 of 2005

SZHMS

Applicant

And

REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for judicial review filed on 3 November 2005 and an amended application filed on 17 March 2006 for an order that the respondents show cause why a remedy should not be granted in exercise of the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of the decision of the Refugee Review Tribunal, dated 25 October 2005.

2. The applicant was born on 3 November 1959 and is a citizen of the People’s Republic of China (“PRC”) (“the Applicant”).

3. The Applicant was married in 1981 and had a son in 1982 and a daughter in 1984. The applicant’s family and parents remained living in China at the time the application for a protection visa was lodged.

4. The applicant arrived in Australia on 25 September 1996 on a temporary business visa which had been issued in Shanghai on

   
   

   3 September 1996. He was granted a temporary resident visa on 10 December 1996 which permitted him to remain in Australia until

   
   

   21 January 1997.

5. The applicant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 20 January 1997. In this application he claimed a fear of persecution based on his involvement in the pro-democracy movement. He had also been in breach of the Chinese ‘one-child policy’ and had been fined for having a second child. His wife was forced to undergo a sterilisation procedure after the second child was born. In addition, the family suffered financially as the second child was considered an illegal resident and the family had to pay much more for her schooling than other children. The applicant also stated that to apply for refugee status overseas is to “state the crimes of the motherland”, and he believed he had betrayed his country by doing this, and would be persecuted upon his return to China (CB 26-28).

6. This application was refused by a delegate of the first respondent on

   
   

   31 July 1997. However, the applicant was not properly notified of the decision until 27 May 2005 (CB 68).

7. On 30 June 2005 the applicant filed an application for review of the decision of the Minister’s delegate with the Refugee Review Tribunal. The applicant gave oral evidence before the Tribunal on 27 September 2005, at which time he maintained the claims made in his original protection visa application.

8. On 25 October 2005 the Tribunal handed down its decision, dated

   
   

   30 September 2005, affirming the decision of the Minister’s delegate refusing to grant the applicant a protection visa. In considering the applicant’s claims, the Tribunal found:

   The Tribunal accepts the applicants claim that he is a citizen of China. It also accepts the applicant’s claim that he was punished for having a second child in 1984 and for participating in the protest movement of 1989. The Tribunal accepts the applicant’s claim that he was unfairly dismissed by his work unit in 1994. However, the Tribunal is not satisfied that the applicant will currently or in the reasonably foreseeable future be a person of interest or concern to the authorities in China because of his previous difficulties with the authorities or because he left China illegally and sought asylum in Australia. (CB 76)

   The Tribunal has considered the applicant’s claim that the authorities in China will seek to harm him because he previously participated in political activities against the government. The Tribunal was guided by the Handbook on Procedures and Criteria for Determining Refugee Status (United Nations High Commissioner for Refugees, Geneva, 1992, para 80), which states that holding “political opinions different from those of the Government is not in itself a ground for claiming refugee status” and “an applicant must show that he has a fear of persecution for holding such opinions.”  

   Information from external sources summarised above, which the Tribunal accepts, indicates that only citizens who actively and persistently express views against the PRC government are at risk harm by the authorities. The applicant’s evidence indicates that he stopped participating in political activities before he departed China in 1996 and he has not engaged in political activities while he lived in Australia. The applicant has not expressed an interest or intention to participate in political activities in the future. The Tribunal is satisfied that the applicant’s previous political activities will not attract the adverse interest of the PRC authorities or any other official in the reasonably foreseeable future. (CB 76)

   The Tribunal also considered the applicant’s related claim that he was dismissed by his work unit in 1994 and he found it difficult to support himself and his family. Information from external sources regarding the changing nature of employment in China and the declining relevance of the ‘work unit’ indicates that an increasing number of citizens previously employed by government work units have either been retrenched, or placed on indefinite leave, because those enterprises are no longer economically viable in China’s increasingly capitalist economy. The above reports indicate that the government has been unable and unwilling to provide employment for the entire population as it did previously. PRC citizens increasingly have to compete for employment in the private sector. The Tribunal is satisfied by information from external sources that the private sector is expanding quickly and many former state employees have been able to obtain employment in private companies. The Tribunal is satisfied that such opportunities exist for the applicant and it finds that he would not be prevented by the authorities from seeking employment in the private sector. (CB 76-7)

   The Tribunal considered the applicant’s claim that he will be at risk of persecution in China because he applied for a protection visa in Australia. However, after considering the information from external sources referred to above, the Tribunal finds that the applicant may be reprimanded or briefly detained and questioned by the authorities in China, but he will not be subjected to circumstances amounting to persecution. The Tribunal accepts advice by DFAT that PRC officials take the view that asylum seekers are commonly “seeking to take advantage of an opportunity presented by Western legal systems” and “pay little or no attention to the claims” (DFAT, 1995, Cable BJ501313 – DIEA Information Request CHN3183 – Household Registration/Forced Sterilization, 12 December. CISNET CX12783). The Tribunal finds that the applicant’s fear that he will be subjected to circumstances amounting to persecution because he sought asylum overseas is not well-founded. (CB 77)

   The Tribunal is also not satisfied that the authorities will seek to harm the applicant because he used connections and bribes to facilitate his departure from China in 1996. The applicant claims the authorities will consider these activities as further evidence that he does not support the government. However, the Tribunal finds that information from external sources does not support the applicant’s claim. The Tribunal accepts advice by DFAT that ‘betrayal of the motherland’ is not being applied to illegal departees (DFAT, 1992, Cable BJ50537, ‘Isabella: Boat People’, 19 May. CISNET CX536 and DFAT, 1992, Cable BJ50535, ‘China: Isabella: Boat People (PRC laws on illegal departure), 18 May.  CISNET CX760) and that “attempting illegal migration is not regarded as a threat to the Chinese government” (DFAT, 1995, Cable BJ9066, ‘RRT Request: Consequences of Leaving a PRC Trade Delegation in Australia’, 22 February. CISNET CX 1212792). The Tribunal also accepts DFAT advice that “persons whose only offence has been to depart the PRC illegally have not…been treated harshly on their return” (DFAT, 1992, BJ50537, supra) and that “political repercussions are unlikely” for citizens who attempt “illegal migration” (DFAT, 1995, BJ9066, supra). The Tribunal accepts that the applicant may face a penalty for using connections and bribes to leave the country. However, it is satisfied that in this regard he will not be differentially treated by the authorities and any penalty imposed against him would be the penalty commonly imposed for these offences. Accordingly, the Tribunal finds that the applicant will not be subjected to persecution for a Convention reason because he departed China illegally. (CB 77)

   The Tribunal considered the applicant’s claim that the PRC consulate in Sydney did not give him a new passport. He stated they asked him for evidence of his identity and he was only able to provide them with letters from the Department. The Tribunal is satisfied that the applicant is a citizen of China and he will have access to a PRC travel document. The applicant may have to seek other documentation to verify his identity, before the PRC will grant him those travel documents, but the Tribunal is satisfied that this is just an administrative matter which will be resolved before the applicant leaves Australia.

   After considering all the information provided by the applicant, in conjunction with information from external sources summarised above, the Tribunal finds that the applicant does not have a well-founded fear of persecution in China for a Convention reason…The Tribunal affirms the decision not to grant the applicant a protection visa. (CB 78)

9. The applicant then filed the application in this court, seeking judicial review of the Tribunal’s decision pursuant to Migration Act 1958 (Cth), and on 17 March 2006 filed an amended application.

10. The application for a visa was refused by the delegate of the Minister on 31 July 1997 (CB 36). A letter notifying the applicant of that decision was sent to him at the address stated in his application, on the same day (CB 34). The letter was returned on 23 September 1997 unopened and marked “Return to sender” (CB 41).

11. A further letter of notification was sent to the applicant on 27 May 2005 (CB 42).

12. The applicant filed his application for review on 30 June 2005 (CB 48) and attended the hearing before the Tribunal and gave oral evidence on 27 September 2005 (CB 57). (This was 7 years and 2 months after the decision by the delegate).

13. A major complaint by the applicant is that the delay between the delegate’s decision and the hearing before the Tribunal amounted to a denial of procedural fairness that denied him an opportunity to put his case. In his written submissions at para.29 the applicant quoted from a decision of Chief Justice Gleeson in NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 223 ALR 171 para [10]:

    [10] In a case of failure to give a hearing when a hearing is required, the person complaining of denial of procedural fairness does not have to demonstrate that, if heard, he or she would have been believed. The loss of an opportunity is what makes the case of unfairness. The appellants in this case do not have to demonstrate that the Tribunal’s assessment of them probably would have been more favourable if made reasonably promptly. What they have to demonstrate is that the procedure was flawed; and flawed in a manner that was likely to affect the Tribunal’s capacity to make a proper assessment of their sincerity and reliability. The procedures required by the Act were designed to give the appellants a reasonable opportunity to state their claims and to have those claims competently evaluated. If the Tribunal, by its unreasonable delay, created a real and substantial risk that its own capacity for competent evaluation was diminished, it is not fair that the appellants should bear that risk. The delay on the part of the Tribunal in the present case was so extreme that, in the absence of any countervailing considerations advanced in the reasons of the Tribunal, it should be inferred that there was a real and substantial risk that the Tribunal’s capacity to assess the appellants was impaired. That being so, the appellants did not have a fair hearing of their claims by the Tribunal.

14. The Court notes that the passage quoted refers to a “failure to give a hearing when a hearing is required” and finds that the case is confined to that situation. The Court refers to the following passage from the judgment of Chief Justice Glesson:

    [11] The fact that the impairment resulted from the default of the tribunal is important. Many events, outside the control and influence of the tribunal, might occur to make it more difficult to evaluate the claims of an applicant. That does not make the procedure unfair. On the other hand, when the tribunal, exercising the control over its own procedures given to it by the Act, without explanation or justification, and without any fault of an applicant for review, draws out those procedures to such an extent that its capacity to discharge its statutory obligations is likely to be materially diminished, and there is nothing in the tribunal’s reasons to displace that likelihood, then a case of procedural unfairness arises.

15. The second respondent submitted that NAIS was decided before s.422B was enacted (which applies to all applications after 4 July 2002). The situation in NAIS was totally different from the present case. In NAIS, credit and demeanour were significant issues and there was delay between the date of the Tribunal hearing and the date of its decision. NAIS was not concerned with a delay between the decision of the delegate and the date of review of the Tribunal and credit and demeanour were not in issue. The Court agrees.

16. The court finds that the facts in NAIS are distinguishable from the present case. Section 422B is concerned with stating the requirements of procedural fairness. The Court finds that the delay did not compromise the ability of the applicant to present his case. The delay was not a breach of Division 4 of the Migration Act 1958.

17. The applicant set out another passage from NAIS in para.10 of his further written submissions filed in Court on the day of the hearing per Kirby J as follows:

    [71] Remedying a substantial risk of unfairness: I also agree with Gleeson CJ that, in order to make good a claim of unfairness, it is sufficient to establish that there was a substantial risk that the Tribunal’s capacity to assess fairly the appellant’s evidence, and to carry out its decision-making functions conferred by the Act, was impaired by the procedures adopted by the Tribunal. I do not agree with the opinion of Hayne J that the appellants must demonstrate that the risk that the Tribunal did not fairly assess their evidence actually eventuated. Such an approach falls into the very error that it seeks to avoid because it necessarily involves an impermissible review of the merits of the decision. The concern of a court, in exercising its power of judicial review and evaluating the complaint of unfairness, is with the procedure followed by the Tribunal. The concern is not, as such, with the decision ultimately reached. For this reason, whether or not the Tribunal was in fact disabled from assessing the appellant’s evidence, or whether or not the ultimate outcome was in fact affected, is not determinative.

18. The Court finds that the delay between the decision of the delegate and the hearing before the Tribunal did not affect the Tribunal’s capacity to assess fairly the applicant’s evidence, or to carry out its decision making functions.

19. The second respondent contended that s.422B of the Migration Act 1958 sets out the full extent of the natural justice hearing rule in relation to matters before the Tribunal and that common law principles of natural justice and procedural fairness are excluded. Authority for that proposition is found in Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61 para.66. The Court applies that decision and finds that delay between the decision and hearing did not amount to a denial of natural justice.

20. The next complaint is that the Tribunal should have considered the matter according to the facts at the time of the decision by the delegate, and not at the time of the hearing before the Tribunal.

21. The Court applies the decision of the Full Court of the Federal Court in Minister for Immigration and Ethnic Affairs v Singh (1997) 142 ALR 191 at 195-6, that “refugee status must be determined according to existing circumstances whenever a determination is required.” The Court applies also the decision of Mason CJ, Deane and Dawson JJ in Minister for Immigration and Ethnic Affairs v Mayer (1985) 157 CLR 290, as referred to in Singh at page 196, that

    the reference to a determination that an applicant for an entry permit “has” the status for a refugee is a reference to a contemporaneous determination rather than to some past determination that the applicant had the “status of a refugee” at the time when the past determination was made…the choice to be made is…the facts existing at the date of the determination.

22. This reasoning was approved and applied by the Full Court in Minister for Immigration and Ethnic Affairs & Anor v Singh (1997) 144 ALR 284 at 297 line 10. This Court applies the reasoning to the situation in this case, so that the time for determination by the Tribunal of whether the applicant is a person to whom Australia has protection obligations is the time that the Tribunal makes its determination based on the facts at that time.

23. It is complained “that the Tribunal failed to consider the reliability of the reviewable decision which was based on information and made almost 8 years ago…which the Tribunal was bound to take into account.” The decision in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 was referred to. That decision stands for the proposition that a failure to take into account material which a Tribunal is bound to take into account amounts to a fundamental jurisdictional error. In the present case the Tribunal was not bound to take the delay into account, and there is nothing to show that it did not take into account in any event. The Court does not find a jurisdictional error.

The application

1. The application, filed on 3 November 2005, set out no grounds for review.

2. The amended application, filed on 17 March 2006, set out seven grounds with particulars:

Ground 1

The Tribunal acted without or in excess of its jurisdiction, and erred in identifying the nature of the review.

Particulars:

1.The Tribunal failed to identify that the reviewable decision was made on 31 July 1997 instead of on 27 May 2005 as it asserted.

2.The Tribunal failed to assess whether it had jurisdiction to review the reviewable decision, which was made on 31 July 1997.

3.The Tribunal failed to take into account significance of delay between the making of the reviewable decision and the review, which the Tribunal was bound to take into account.

4.The Tribunal failed to assess whether the delay affected the Tribunal’s capacity to make a proper assessment of demeanour.

5.The Tribunal failed to assess whether there was a real and substantial risk that the Tribunal’s capacity to assess the applicant was impaired.

Ground 2

The Tribunal identified a wrong issue, asked wrong questions, relied on irrelevant material or ignored relevant material.

Particulars:

1.The Tribunal erred in assessing the applicant and circumstances and country information in accordance with what he was and what they were in year 2005 rather than in accordance with what he was and what they were in year 1997.

2.The Tribunal erred in asking the applicant questions regarding to (sic) year 2005 and then relying on asking those questions.

3.The Tribunal erred in relying on irrelevant material such as employment studies and business review of China.

4.The Tribunal erred in ignoring relevant material such as material regarding to the sustained and systemic violation of basic human rights at both state level and local level particular in China.

5.The Tribunal accepted the applicant’s claim that he was punished for having a second child and for participating in the protest movement of 1989 but concluded that the applicant did not have a well-founded fear of persecution in China for a Convention reason.

6.The Tribunal failed to consider “what if it was wrong”.

Ground 3

The Tribunal erred in misstating and misapplying the law.

Particulars:

1.   The Tribunal erred in misstating the law by virtue of holding and propounding views which are contrary to the views of the state or its government is not for a Convention reason.

2.   The Tribunal erred in misapplying the law regarding to a “well founded fear of persecution”.

3.   The Tribunal failed to consider whether the applicant could possibly relocate safely to another part of the country in assessing whether the Applicant’s fear was well founded or not.

Ground 4

The applicant was denied natural justice.

Particulars:

1.   The Tribunal failed to identify and disclose to the applicant well before the hearing whether the 1997 decision or the 2005 decision was the reviewable decision.

2.   The omission by the Tribunal to disclose this information to the applicant was material in the case.

3.   The applicant was not given an opportunity to comment on significance of delay between making of the reviewable decision and the review if the 1997 decision was the reviewable decision.

4.   The Tribunal failed to invite the applicant well before the hearing to make submissions on his claim for the period between 1997 and 2005 if the 2005 decision was the reviewable decision.

5.   The omission and failure by the Tribunal were material in the case.

6.   The applicant refers to and repeats the particulars set out in paragraph 1.

Ground 5

The Tribunal erred in taking irrelevant information account and failed to take into account a consideration which it was bound to take into account in affirming the reviewable decision.

Particulars:

1.   The applicant refers to the particulars set out in paragraphs 1.

Ground 6

The decision was so unreasonable that no reasonable decision-maker could have made it.

Particulars:

1.   The applicant refers to and repeats the particulars set out in paragraphs 1-5.

Ground 7

The Tribunal failed to review and consider the application for the purposes of sections 47, 65, and 414 of the Migration Act 1958.

Particulars:

1.   The applicant refers to and repeats the particulars set out in paragraphs 1-5.

Decision

1. The Court will now consider each ground in the amended application.

Ground 1

1. Ground 1.1: It is alleged that the Tribunal failed to identify that the reviewable decision was made on 31 July 1997, instead of on 27 May 2005.

   This seeks to challenge a finding of fact that is not open to review. In any event the Tribunal found at CB 68 that “the decision was made on 31 July 1997. The applicant was not properly notified of the decision until 27 May 2005.” The reference to 27 May 2005 in para.1 of CB 65 is a reference to the date on which the letter was sent to the applicant notifying him that the delegate had refused his application for a protection visa (CB 42). That letter referred to the decision on 31 July 1997 and enclosed a copy of it (CB 43).

2. The Court finds that the Tribunal did not rely on the date of 27 May 2005 in any way in reaching its decision. The Tribunal reached its decision after assessing the merits of the claim. It concluded that is was

   …not satisfied that the applicant will currently or in the reasonably foreseeable future be a person of interest or concern to the authorities in China because of his previous difficulties with the authorities or because he left China illegally and sought asylum in Australia. (CB 76)

   The Tribunal has considered the applicant’s claim that the authorities in China will seek to harm him because he previously participated in political activities against the government. The Tribunal was guided by the Handbook on Procedures and Criteria for Determining Refugee Status, (United Nations High Commission for Refugees, Geneva, 1992, para.80), which states that holding “political opinions different from those of the Government is not in itself a ground for claiming refugee status” and “an applicant must show that he was a fear of persecution for holding such opinions. (CB 76)

   …The Tribunal is satisfied that the applicant’s previous political activities will not attract the adverse interest of the PRC authorities or any other official in the reasonably foreseeable future.  

   The Tribunal also considered the applicant’s related claim that he was dismissed by his work unit in 1994 and he found it difficult to support himself and his family. Information form external sources regarding the changing nature of employment in China and the declining relevance of the ‘work unit’ indicates that an increasing number of citizens previously employed by the government work units have either been retrenched, or placed on indefinite leave, because those enterprises are no longer economically viable in China’s increasingly capitalist economy…The Tribunal is satisfied by information from external sources that the private sector is expanding quickly and many former state workers have been able to obtain employment in private companies. The Tribunal is satisfied that such opportunities will exist for the applicant and it finds that he will not be prevented by the authorities from seeking employment in the private sector…

   The Tribunal is also not satisfied that the authorities in China will seek to harm the applicant because he used connections and bribes to facilitate his departure from China in 1996…The Tribunal accepts that the applicant may face a penalty for using connections and bribes to leave the county. However, it is satisfied that in this regard he will not be differentially treated by the authorities and any penalty imposed against him will be the penalty commonly imposed for these offences. Accordingly, the Tribunal finds that the applicant will not be subjected to persecution for a Convention reason because he departed China illegally…

   After considering all the information presented by the applicant, in conjunction with information from external sources summarised above, the Tribunal finds that the applicant does not have a well-founded fear of persecution in China for a Convention reason.

   Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the applicant does not satisfy the criterion set out in s.36(2) of the Act for a protection visa. (CB 76-78)

3. The Court finds that no error of law was made and there was no denial of natural justice. The Tribunal did not “err in identifying the nature of the review” and it did not “act without or in excess of jurisdiction.” The Court rejects these grounds.

4. Ground 1.2: It is alleged that the Tribunal failed to assess whether it had jurisdiction to review the decision made on 31 July 1997.

   The Court finds that the Tribunal had jurisdiction to review that decision and did so according to law. The Court rejects this ground.

5. Ground 1.3: It is alleged that the Tribunal failed to take into account the delay between the decision and the review.

   The Court finds that the delay between the decision of the delegate and the review was not a matter which resulted in any error of law or denial of natural justice. The Court rejects this ground.

6. Ground 1.4: It is alleged that the Tribunal failed to assess whether the delay affected the Tribunal’s capacity to make a proper assessment of demeanour.

   The applicant appeared before the Tribunal and so gave the Tribunal a proper opportunity to assess him. The Court finds nothing to support the contention that the Tribunal’s capacity to assess the applicant was impaired. It is clear from its decision that the Tribunal did not rely on issues of credibility or demeanour in reaching its decision. Its decision was based on the material before it including country information, that did not support the applicant’s fears and concerns. The delay did not affect the Tribunal’s capacity to assess the applicant’s claims. The Court rejects this ground.

7. Ground 1.5: It is alleged that the Tribunal failed to assess whether there was a risk that its capacity to assess the applicant was impaired.

   The Court finds that the capacity of the Tribunal to assess the applicant was not impaired. The Court rejects this ground.

Ground 2

1. Ground 2.1: It is complained that the Tribunal erred by assessing the appellants claims according to country information in 2005 instead of in 1997.  

   The Court has set out above its reasons for finding that the Tribunal was correct in assessing the applicant’s claims according to information which was current at the time of the hearing before it. The Court rejects this ground.

2. Ground 2.2: The applicant complains that the Tribunal erred in asking questions regarding 2005.

   The Court repeats its findings as to ground 2.1 and rejects ground 2.2.

3. Ground 2.3: It is alleged that the Tribunal erred in relying on irrelevant material such as employment studies and business review of China.

   Part of the case by the applicant is that he had been dismissed by his work unit in 1994 and found it difficult to support himself and his family (CB 76.8) and that he would have little prospect of finding work if he returned to China. Material relating to employment opportunities in China was therefore relevant and the Tribunal concluded from it that it “is satisfied by information from external sources that the private sector is expanding quickly and many former state workers have been able to obtain employment in private companies. The Tribunal is satisfied that such opportunities will exist for the applicant…” (CB 76/77). The Court rejects this ground.

4. Ground 2.4: The applicant complains that the Tribunal ignored information regarding sustained and systematic violation of basic human rights.

   An examination of the decision shows that this is not so. Rather, the Tribunal considered that contention to be against country information current at the time of the hearing before it. The Court rejects his ground.

5. Ground 2.5:  The applicant complains that the Tribunal accepted that he was punished for having a second child, yet concluded that he does not have a well founded fear of persecution in China for a Convention reason.

   The Court finds that the conclusion about not having a well founded fear of persecution was properly open to the Tribunal on the material before it. The Court rejects this ground.

6. Ground 2.6: It is complained that the Tribunal did not consider “what if it is wrong.”

   The Court adopts the following statement in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 per Sackville J (with whom North J agreed):

   If a Tribunal has no real doubt that events did not occur, it will not be necessary for it to consider the possibility that its findings might be wrong.

   The Court extends this reasoning to include where a Tribunal has no doubts as to the conclusions it has reached on the material before it: It is not necessary for it to consider that is might be wrong. The Tribunal reached its conclusions on the basis of information before it, and not on the basis of credit or demeanour. There is no indication that the Tribunal had any doubts about the conclusions it reached, and therefore it was not necessary for it to consider the possibility that its findings might be wrong. The Court rejects this ground.

Ground 3

1. Ground 3.1: The applicant claims that the Tribunal erred by finding that holding views which are contrary to the views of the state of China or its government, is not for a Convention reason.

   The Tribunal stated that it was guided by the Handbook on Procedures and Criteria for Determining Refugee Status (United Nations High Commission for Refugees, Geneva, 1992, para.80), which states that holding “political opinions different form those of the Government is not in itself a ground for claiming refugee status” and “an applicant must show that he has a fear of persecution for holding such opinions” (CB 76). Section 91R3(a) of the Migration Act 1958 requires that the fear be “well founded”. The Court finds that it was open to the Tribunal to be guided by that Handbook. The Tribunal continued that

   on the material referred to, it was satisfied that the applicant’s previous political activities will not attract the adverse interest of the PRC authorities or any other official in the reasonably foreseeable future. (CB 76)

   The Court finds that those conclusions were properly open to the Tribunal. The Court rejects this ground.

2. Ground 3.2: It is alleged that the Tribunal misapplied the law regarding a well founded fear of persecution.

   Nothing was advanced to the Court to establish that the Tribunal misapplied the law and this ground is rejected.

3. Ground 3.3: It is alleged that the Tribunal, in assessing whether the applicant had a well founded fear or persecution, failed to consider whether the applicant could relocate safely to another part of China.

   The Tribunal set out its reasons for finding that the applicant’s fear is not well founded (CB 76 to 78). The Tribunal’s conclusion was properly open to it on the material before it. Having found that the applicant did not have a well founded fear of persecution should he return to China, the Tribunal was not required to assess whether he could relocate safely to another part of the country. The failure to refer to whether the applicant could relocate safely to another part of China is not an error of law. The Court rejects this ground.

Ground 4

1. Ground 4.1: It is alleged that the Tribunal denied the applicant natural justice because it failed to tell the applicant well before the hearing whether the 1997 decision or the 2005 decision was the reviewable decision.

   The Court finds that there was only one decision, which was reached on 31 July 1997 (CB 36). Notification of that decision was first sent to the applicant’s address on 31 July 1997 (CB 34) (but was returned unopened), and a new notification was sent on 27 May 2005 (CB 42). The Court finds no denial of natural justice. The applicant was invited to attend the hearing (CB 57) and attended and gave oral evidence (CB 67). The Court rejects this ground.

2. Ground 4.2: The applicant alleges that the omission by the Tribunal to disclose to the applicant which decision was under review was material in the case.

   The Court refers to its reasons under grounds 1.1, 1.4, 1.5, 2.1, and 4.1 above, and rejects this ground.

3. Ground 4.3: The applicant complains that he was not given an opportunity to comment on the significance of the delay between the making of the decision and the review hearing.

   The Court finds that the applicant was invited to the hearing and attended and gave oral evidence on 27 September 2005 (CB 67). The applicant therefore had an opportunity to make submissions as to the significance of the delay. The Court rejects this ground.

4. Ground 4.4: The applicant complains that he was not invited to make submissions on the period between 1997 and 2005.

   The Court finds that the applicant had an opportunity to make those submissions. The Court rejects this ground.

5. Ground 4.5: The applicant claims that the omission in grounds 4.1, 4.2, 4.3 and 4.4 were material in the case.

   The Court finds no error of law or denial of natural justice and rejects this ground.

6. Ground 4.6: This ground is a repetition of 4.1 and is rejected for the reasons set out under ground 4.1.

Ground 5

1. Ground 5.1: The applicant alleges that the Tribunal erred by failing to take into account the particulars in paras.1-5.

   There is nothing before the Court to show that the Tribunal so erred and this ground is rejected.

Ground 6

1. Ground 6.1: This ground alleges that no reasonable decision maker could make the decision.

   The Court finds no error of law and finds that the conclusions of the Tribunal were properly open to it on the material before it. The Court rejects this ground.

Ground 7

1. Ground 7.1: This ground alleges a failure by the Tribunal to consider the application for purposes of ss.47, 65 and 414 of the Migration Act 1958.

   Section 47 requires the Minister to consider a valid application for a visa and has no relevance to the conduct of the hearing by the Tribunal. The Court rejects this ground.

2. Section 65 specifies what the Minister is to do after considering a valid application for a visa, and has no relevance to the conduct of the hearing by the Tribunal. The Court rejects this ground.

3. Section 414 requires the Tribunal to conduct a review if a valid application for review is made to it. The Court finds that the Tribunal complied with this section. The Court rejects this ground.

4. The Court refers to and quotes para.31 of the applicant’s affidavit dated 17 March 2006:

   I was however unable to submit “new documents” and make reasonable arguments to RRT as I let friends of mine to throw away most of my personal belongings including materials in relation to the application when I was told that I would be deported back to China in Villawood detention centre and I was unable to remember a lot of things which happened more than eight and half years ago.

   The Court finds that there is nothing to suggest that the failure to produce old records compromised the applicant’s case. The Court rejects this contention.

Conclusion

1. The Court finds that the respondents have shown cause why orders for relief should not be made, and rejects all grounds of review.

2. The Court finds that the Tribunal’s decision is a privative clause decision, and has not been affected by jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.

3. The application and amended application are dismissed.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Turner FM.

Deputy Associate: Mary Giang

Date: 28 February 2007