SZHOW v Minister for Immigration
[2006] FMCA 1182
•27 July 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHOW v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1182 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – applicant is a citizen of China claiming fear of persecution from police – no reviewable error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424,424A |
| Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 NABC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235 VWST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 286 WAJQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 79 |
| Applicant: | SZHOW |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3318 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 15 May 2006 |
| Date of Last Submission: | 15 May 2006 |
| Delivered at: | Sydney |
| Delivered on: | 27 July 2006 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Respondents: | Australian government Solicitor |
ORDERS
The title of the First Respondent is changed to Minister for Immigration & Multicultural Affairs.
The application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $4,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3318 of 2005
| SZHOW |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Application
This is an application for review of a decision of the Refugee Review Tribunal that was signed on 28th September and handed down on
18th October 2005. The Tribunal affirmed the decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is a citizen of the People's Republic of China. He arrived in Australia on 11th July 2004 and on 20th August 2004 he applied for a Protection (Class XA) visa. That visa was refused by a delegate of the Minister on 11th July 2005.
The applicant then sought a review of that decision by the Refugee Review Tribunal. He lodged an application on 22nd July 2005.
The applicant did not provide any material with his application.
The Tribunal wrote to the applicant on 2nd September 2005 advising him that it had considered the material before it in relation to his application but was unable to make a decision in his favour based on that information alone. The applicant was invited to attend a hearing of the Tribunal on Wednesday, 28th September 2005. The applicant replied indicating that he did wish to attend and would require an interpreter in the Mandarin language.
The applicant attended the hearing of the Tribunal and gave oral evidence. He told the Tribunal that he arrived in Australia on a passport issued by the Republic of China in a different name from the name he gave the Tribunal. He originally said that he was born in Taiwan but provided information to say that he was born in Fujian in the People's Republic of China in 1969. The applicant was the director of a stone mine from April in 2002 up till May 2004. The applicant said that he operated that mine profitably but suffered extortion from a local ruffian who was a relative of the vice-governor of the province.
He refused to transfer the mine to the person before his contract expired, but the local government in collusion with the man sent the police to try to close the mine. The applicant engaged in an altercation with the police and alleged that a policeman was struck. The applicant denied to the Court today that he had in fact struck anyone.
The applicant told the Tribunal that after that altercation the police came looking for him and so he fled the area and managed to leave China using a Taiwanese passport.
He claimed the fear that if he returned to China he would be prosecuted because he knows the officials have occupied his mine by force and now it is open to profit from it. The applicant told the Tribunal that in defending himself he struck the policeman. He told the Tribunal that his fears were that he would be arrested if he returned to China.
The Tribunal considered this material and its findings and reasons are set out in the fourth paragraph on page 70 of the Court book.
The Tribunal found that the applicant was a generally straight-forward and credible witness and accepted that his experience was as he said. The Tribunal went on to find, however, that there was nothing in the evidence given to the Tribunal which suggested that the action taken to resume the mine and the ensuing physical clash with the police, or the consequences of that clash, occurred for any Convention reason.
It included imputed political opinion or membership of a particular social group.
The Tribunal was not satisfied that there was anything involved beyond opportunistic greed and corruption in seeking to seize a successful enterprise. Accordingly, the Tribunal was not satisfied that the applicant would be pursued by the authorities if he returned to China for any other reason than in connection with his clash with the police. In any event, the Tribunal was not satisfied that any penalty would be disproportionate or would be for any Convention reason. The Tribunal affirmed the decision not to grant a protection visa.
The applicant sought a review of this decision by means of an application filed in this Court on 14th November 2005. His claims are set out in an amended application filed on 24th February 2006. At the commencement of the hearing today the applicant sought an adjournment on the basis that he wished to obtain legal representation. This was opposed by the solicitor for the respondent Minister on the basis that the applicant had had sufficient time to obtain any representation which he desired.
I refused the application for an adjournment and I noted that these proceedings were commenced by the applicant in November 2005 and that it was too late to seek an adjournment to obtain legal representation on the afternoon of the hearing, namely, 27th July 2006. The only explanation given by the applicant was that he did not have money then but has money available to him now. I am not satisfied that the proceedings should be adjourned and I refused the application for an adjournment.
The applicant made brief oral submissions in support of his amended application. In the amended application he seeks writs of prohibition, certiorari and mandamus and sets out six grounds. The first ground was that the Tribunal failed to consider his claims. He stated that the Tribunal believed that he was a straight-forward and credible witness and accepted that his experience was as stated. However, the Tribunal was not satisfied that his claims were Convention related and he believed that the Tribunal had misunderstood those claims.
In my view a reading of the Tribunal's decision indicates that the Tribunal did consider the applicant's claims. It accepted his version of events but on the version of events given by the applicant, the Tribunal was not satisfied that the events that he related gave rise to a convention based fear of persecution. The applicant has provided no evidence that the Tribunal misunderstood his claims which appear to be quite straight-forward. A challenge to the Tribunal's finding that his claim was not convention related to my mind appears to be akin to merits review which is not available.
Ground four of the application alleges that the Tribunal failed to consider the claims the applicant put forward at his hearing. It is no more than a repeat or a restatement of ground one. The second ground given by the applicant is that the Tribunal did not observe the Migration Act (1958) properly in making the decision because of the Tribunal's misunderstanding of his claims. I asked the applicant as to why he said that the Tribunal did not observe the Migration Act properly. He said that he had made an application for refugee status but it had been refused.
The Migration Act did not provide that any application for refugee status must automatically lead to the granting of a visa. Under s.65 of the Act, the applicant must satisfy the decision-maker of the Tribunal standing in the shoes of the Minister that the criteria for a visa have been met. If the Tribunal is not so satisfied then the visa should not be granted. The third ground alleged by the applicant is that the Tribunal did not provide him with adequate particulars of the independent information.
The applicant was unable to tell the Court what information he was referring to and it is apparent on the face of the decision that the Tribunal did not refer to, let alone rely on, any independent information in reaching its decision. That ground must fail. Ground four I have already dealt with. Ground five alleges that the Tribunal was wrong to believe that the applicant's claims were not Convention related.
The solicitor for the respondent submits the Tribunal's decision shows that the Tribunal considered all of the evidence and reached a finding with which the applicant now disagrees. In this regard it is submitted the applicant is seeking merits review.
I am satisfied that this ground does no more than seeks merit review which is impermissible on judicial review and I refer to Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. The sixth and final ground alleges that the Tribunal's satisfaction was not based upon reasoning which provided a rational or logical foundation for the belief. The Minister submits that it's
well-established but neither illogicality nor irrationality would have themselves be sufficient to show jurisdictional error. One would need to go further and show that the wrong test had been applied or that there was a misconception of the legal criteria for the granting of a visa.
I am referred to NABC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235, VWST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 286, and WAJQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 79. The Tribunal's findings were open to it on the evidence given by the applicant. The Tribunal accepted the applicant's evidence. The Tribunal found the applicant to be a credible witness. This would suggest, at the very least, that the Tribunal's reasoning was rational and logical.
The decision by the Tribunal that the grounds advanced by the applicant at his hearing did not show a Convention related basis for a fear of persecution, or in this case a fear of prosecution by the police,
is to my mind patently obvious from the text of the Tribunal's decision. The circumstances as set out by the applicant, whilst I refer to corruption and perhaps improper behaviour by the police, do not go anywhere towards establishing a well-founded fear of persecution or one of the Convention reasons, race, religion, nationality, membership of a social group, or political opinion.
The Tribunal considered that situation as appears as page 70 of the Court book. In my view, the Tribunal's findings were based fairly and squarely upon the evidence given to the Tribunal and for no other reason. The applicant has not made out any ground to show jurisdictional error. It must be clear that a person claiming a fear of prosecution by the police in respect of a civil crime in his country of origin will normally be unsuccessful in establishing a convention based reason which would entitle him to refugee status. Refugee status does not apply to people who are doing nothing more than seeking refuge from the criminal justice system in their own country.
I am mindful of the fact that the applicant was not legally represented at the hearing today. I read through the decision myself in detail and I am unable to discern any jurisdictional error to which the applicant has not referred. In my view there is no reviewable error. The decision is a privative clause decision as defined by sub-s.474(2) of the Migration Act. Accordingly, under sub-s.(1) of that section the decision is not subject to review in a Court and the Constitutional writs of certiorari and mandamus and prohibition sought by the applicant do not lie.
The application must be dismissed. I will make a formal order changing the title of the first respondent to Minister for Immigration & Multicultural Affairs.
The applicant has been wholly unsuccessful in his claim. There is an application for costs on behalf of the first respondent Minister and in my view it is appropriate for the Court to make a costs order in favour of the first respondent. I note that this is a matter that has had more than the usual number of Court appearances. This was brought about by the fact that this was one of a number of matters that was transferred into my docket from a Registrar's callover list and there were two mentions for directions before a Registrar and then there was one directions hearing before me on 15th May 2006.
In my view the sum of $4,000.00 that is sought by the solicitor for the first respondent is an appropriate figure and well within the scale.
I propose to order that the applicant pay the first respondent's costs in the sum of $4,000.00.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 10 August 2006
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