SZHQL v Minister for Immigration
[2006] FMCA 513
•3 April 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHQL v MINISTER FOR IMMIGRATION | [2006] FMCA 513 |
| MIGRATION – Review of decision of the RRT – whether expulsion from army constituted persecution on grounds of applicant’s religion and imputed political opinion – whether the Tribunal properly considered all elements of the applicant’s claims – whether the Tribunal deprived the applicant of natural justice – finding that discrimination fear by applicant must arise out of convention based claim for asylum and not out of punishment for breach of law of general application. |
| Migration Act 1958, ss.417, 424A |
| ApplicantA v Minister for Immigration (1997) 142 ALR 331 Aksahin v Minister for Immigration [2000] FCA 1570 Mehenni v Minister for Immigration [1999] FCA 789 SZAOG v Minister for Immigration [2004] FCAFC 316 |
| Applicant: | SZHQL |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG3418 of 2005 |
| Judgment of: | Raphael FM |
| Hearing date: | 3 April 2006 |
| Date of Last Submission: | 3 April 2006 |
| Delivered at: | Sydney |
| Delivered on: | 3 April 2006 |
REPRESENTATION
| For the Applicant: | In Person |
| Counsel for the Respondent: | Mr T Reilly |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $4,750.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3418 of 2005
| SZHQL |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant, who is a citizen of the People's Republic of China, arrived in Australia in March 1996. He applied for a protection visa on 15 October 1996. By an undated letter found at [CB 37] the delegate of the Minister advised the applicant that on 21 November 1997 a decision had been made declining to grant him a protection visa [CB 39-43]. On 13 December 1997 the applicant lodged an application for review with the Refugee Review Tribunal.
On 31 August 1998 the applicant appeared before the Tribunal at a hearing. On 28 December 1998 the Tribunal affirmed the decision not to grant a protection visa. The applicant filed this application in this court on 23 November 2005. The Minister has produced an affidavit of Anthony Carter dated 29 March 2006 setting out a history of the matter in support of a submission that I should refuse to exercise any discretion I may have to grant prerogative writs in this matter on the grounds of the applicant's delay. I accept there was a considerable delay between the applicant being advised on 8 September 1999 that the Minister had refused to exercise his discretionary power under s.417 of the Migration Act 1958 and 23 September 2003 when the applicant was incarcerated for certain offences. I also note that there was no explanation of why the applicant was not removed from the country during that period. Again, there was a delay between the applicant completing his sentence and being detained in Villawood on 13 June 2003 and him lodging a further request on 1 September 2005 for ministerial intervention. I would prefer to make a decision on this matter on the merits.
The applicant's claims to have a well founded fear of persecution expressed as being for the convention reason of religion arose in circumstances where the applicant was also a member of the Chinese Armed Forces which he had joined in December 1992. He claimed that in 1994 he became a practising Buddhist and had been arrested in a crack-down. When it was discovered that he was a soldier he was passed to his army unit. He was sent back to his home in November 1995 with a "black historical record." He was required to report daily to the local security office. He had not returned to the Army. In 1996, with the aid of a relative who had provided him with a false passport, he managed to escape from China.
The Tribunal discussed the applicant's story in some detail as set out in the decision document. The Tribunal relied on independent country information which was put to the applicant [CB 63] to come to the view that whilst soldiers in the People's Liberation Army were officially forbidden to participate in religious activities few PLA military personnel were expelled for this reason. The Tribunal doubted the applicant's story and at [CB 65] said:
“While I accept, therefore, that the applicant may have been detained for some disciplinary offence whilst serving in the army, I do not accept that it is credible that he was detained, as he claims, by reason of his participation in group practising Buddhist religious activities. To the extent of any inconsistency I prefer the independent information available to me that Buddhists enjoy a reasonable degree of religious freedom in China and that, of all the religions in China, Buddhists are the least likely to get into trouble with the authorities. For the same reason I do not accept the applicant's claims that his team leader in the army failed to protect him when he was performing a somersault because he knew the applicant was a Buddhist.”
The Tribunal likewise could not accept some other claims made by the applicant concerning the arrest of a Buddhist in charge of a temple in Zhoushan. The Tribunal accepted that the applicant might have faced punishment if he returned to China for his army desertion and because he procured a passport in a false name. It concluded after reference to ApplicantA v Minister for Immigration (1997) 142 ALR 331, that:
“There is nothing in any evidence available to me to suggest that the applicant will be punished more severely by reason of his Buddhist religion, either for having deserted the Army or for having departed China illegally using a passport in a false name. There is likewise nothing in any information available to me to suggest that the applicant will be imputed with a political opinion adverse to the Chinese government and treated differently or punished more severely for that reason because he deserted the Army and departed the country illegally.” [Reference to independent country information].
It appears to me that the Tribunal in making this finding correctly anticipated decisions such as Aksahin v Minister for Immigration [2000] FCA 1570; Mehenni v Minister for Immigration [1999] FCA 789 and SZAOG v Minister for Immigration [2004] FCAFC 316 in its finding that the discriminatory conduct that the applicant feared would have to arise out of the convention based claim for asylum and not out of the punishment meted out for the breach of a law of general application Because of its findings as to the facts in this case that the applicant had not been arrested because of his Buddhist affiliation, it cannot be said that any punishment he suffered or may suffer on his return was or would be the result of a particular discriminatory act.
The applicant filed a lengthy affidavit and an application but the most coherent articulation of his claims in this matter were provided to the court today when he produced an extract from a piece of legal advice that he had received (presumably pursuant to the Minister's scheme). The first point raised in that advice was a suggestion that:
“You claimed, albeit indirectly, that you were imputed with an adverse political opinion because of your commitment to Buddhism. The claim was particularised by reference to your first participation in re-education in 1995. In my view the Tribunal did not consider such a claim separately and it would be open to you to contend that in failing to do so the Tribunal incurred [sic] in reviewable error.”
In the extract which I have already pointed to from [CB 65] the Tribunal does make a specific finding concerning imputed political opinion. This rests on the same factual matrix as the applicant's claims concerning his religious activity. The Tribunal finding that it is unable to be satisfied that the applicant was indeed arrested and subjected to disciplinary procedures because of his Buddhist activities is equally relevant to the claim in respect of imputed political opinion.
The second point raised by the applicant's legal adviser was:
“I note that you claimed persecution because of your commitment with Buddhism as an active Army soldier. The claim potentially involved a claim of facing persecution as a member of a particular social group. I would suggest that despite its underdeveloped character, that claim was not considered by the Tribunal.”
If the particular social group to which the adviser refers is Buddhists in the Army the Tribunal does deal with that and it refers to in the country report on Human Rights Practices for 1997 by the US State Department, that there is no available evidence indicating whether PLA military personnel are expelled for their religious activities. If the particular social group relates to deserters who are Buddhists this would meet the objection that the Tribunal has found that the applicant was not punished because he was a Buddhist and did not desert for that reason but, in any event, there was nothing on the face of the claim made or the independent country information that Buddhist deserters are a recognisable group who face harm for being members of that group, as opposed to breaking a law of universal application.
Finally, the adviser says:
“It may be possible to contend that the Tribunal ought to have invited your comments in writing after the hearing as to the relevance of adverse documents examined during the determination of your claim. See SAAP v Minister for Immigration.”
He appears to have overlooked the fact that this Tribunal decision was handed down before s.424A become part of the Act in its current form but to the extent that the advice relates to a failure to provide the applicant with natural justice, I would note that at [CB 63] the Tribunal does say:
“I indicated to the applicant that likewise any punishment that he might face for having deserted the army would not bring him within the terms of the Convention definition of a refugee: the penalty of desertion would apply to anyone, irrespective of their motives for deserting.”
It seems to me that this matter was raised squarely with the applicant by the Tribunal and that it could not be said he was denied natural justice in this regard.
In these circumstances I am unable to find that the Tribunal fell into jurisdictional error when it made its decision in this case. I dismiss the application and I order that the applicant pay the respondent's costs which are assessed in the sum of $4,750.00.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Raphael FM
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