SZHVB v Minister for Immigration & Multicultural Affairs

[2006] FCA 1231

FEDERAL COURT OF AUSTRALIA

SZHVB v Minister for Immigration & Multicultural Affairs
[2006] FCA 1231

SZHVB v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS AND ANOR
NSD 768 OF 2006

RARES J
15 AUGUST 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 768 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHVB
Appellant

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES J
DATE OF ORDER:	15 AUGUST 2006
WHERE MADE:	SYDNEY

THE COURT:

1.Orders that the Refugee Review Tribunal be added as the second respondent to the appeal.

2.Grants leave to the second respondent to file in court a notice of appearance submitting to any order except as to costs.

3.Orders that the appeal be dismissed.

4.Orders that the appellant pay the first respondent’s costs fixed in the sum of $4,000.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 768 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHVB
Appellant

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES J
DATE:	15 AUGUST 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1. This is an appeal from the Federal Magistrates Court (SZHVB v Minister for Immigration [2006] FMCA 491). That court refused to grant the appellant’s application for constitutional and prerogative writs to issue to quashing the decision of the Refugee Review Tribunal given on 24 October 2005 and handed down on 15 November 2005 in which the Tribunal affirmed the decision of the delegate of the minister not to grant a protection visa.

2. The appellant had claimed that in China he had been a merchant involved in the wholesale clothing business and that because of government corruption he had had to change the location of the business but had still had difficulties.  There he claimed that he had ended up in having to leave China so as to gain protection.  The way in which he asserted the corruption was expanded upon in his evidence before the Tribunal.  He gave evidence to the Tribunal that the taxation authorities had wanted him to pay more in taxes than what he had paid.

3. The second basis of his claim for protection was that in 2004 when he was with some Falun Gong practitioners in Wenzhou he had been accused of being a Falun Gong practitioner and had been detained for four days.  He claimed he had to pay a large sum of money to secure his release and had applied for a passport in that emergency.

4. The third basis of his claim was that when his wife gave birth to their second child they were heavily penalised and were unable to register the child’s birth. He claimed that his wife had been forcibly sterilised following the birth.  He said that he was worried about his safety and had come to Australia for protection.

5. The Tribunal questioned the appellant at a hearing it conducted eliciting from him his responses to questions it raised seeking elaboration of and exploring the nature of his claims. 

6. In its reasons the Tribunal expressed concern about the veracity of the appellant’s claims. It said that in the course of the hearing, and despite being given the opportunity to do so, he was vague and unable to provide important details about the claims that he made of being harassed by the authorities. In the end, the Tribunal said that it was not satisfied that he had been harassed by the authorities or that he had suffered serious harm on that basis within the meaning of s 91R of the Migration Act 1958 (Cth).

7. The Tribunal also found that it was not satisfied that there was a real chance of any such harm occurring to the appellant in the reasonably foreseeable future.  Accordingly, the Tribunal was not satisfied that the claim of harassment in relation to excessive taxation by local authorities or government corruption was made out.

8. Next, the Tribunal addressed the evidence given by the appellant of his claim to fear persecution by reason of his being accused of being a Falun Gong practitioner.  The Tribunal acknowledged that he was not claiming to be a practitioner himself but claimed to have been involved with those who were.  It noted that it had tested the appellant’s knowledge of Falun Gong and found that apart from knowing who its founder was he had ‘no idea about basic matters relating to Falun Gong’.  The Tribunal, accordingly, concluded that it did not accept that the appellant had ever been arrested or detained or that he had been accused of being a Falun Gong practitioner or had had to pay a large sum of money for his release or had had to arrange for a passport in an emergency situation or that his child’s education would be adversely affected because of the Falun Gong accusations.  The Tribunal said that it was not satisfied that there was a real chance of any harm occurring to the appellant on that basis in the reasonably foreseeable future.

9. Finally, the Tribunal turned to the appellant’s claim to have suffered harm as a result of the one-child policy.  The Tribunal accepted that it was plausible that the appellant had two children, which would be in breach of China’s one-child policy and that it was entirely plausible that he had to pay money as a penalty.  While it had doubts about the claim of forcible sterilisation of the appellant’s wife, the Tribunal gave him the benefit of the doubt on this claim but found that since she had already been sterilised there was no chance of any further harm to the appellant’s wife of the undoubtedly serious nature which forcible sterilisation involves.

10. The Tribunal observed that the financial penalties that the appellant had suffered were as a consequence of the Chinese law and government policy which applied indifferently to all citizens and nationals of China and since there was no evidence before the Tribunal of the Chinese authorities selectively enforcing that law in relation to the appellant or his family the treatment which the appellant claimed in relation to the application of the one-child policy did not amount to persecution:  Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225.

11. At the conclusion of its reasons the Tribunal expressed itself as having looked at the evidence as a whole and being satisfied that there was nothing in the appellant’s profile that would result in his being persecuted within the meaning of the Refugee Convention were he to return to China and be subjected to the one-child policy.  The Tribunal also said it was satisfied that in his circumstances any harm which the appellant would suffer would not amount to persecution within the meaning of the Convention. It said that it was satisfied that the appellant would not receive disproportionate ill treatment amounting to persecution.

12. Although those statements were expressed in a positive form, I am satisfied that a fair reading of the Tribunal’s reasoning is that this was merely a different way of drawing together the findings of non satisfaction which the Tribunal had arrived at after considering the appellant’s claims and the evidence which he gave to the Tribunal in support of those claims.   I am of opinion that the positive statements by the Tribunal, having regard to the context of its reasons, fairly read as a whole, were not intended to do anything more than summarise the Tribunal’s overall lack of satisfaction in respect of the appellant’s claims to which these statements were addressed:  see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. As their Honours said:

    ‘… the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.’ 

    Their Honours continued:

    ‘… any court reviewing the decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.’

13. Before the Federal Magistrate and before me the appellant has in lage part sought to embark upon a merits review of the decision of the Tribunal.  The appellant told me that he had no knowledge of the law and that he should have been provided with guidance by the Tribunal in relation to the evidence he needed to put before it.  The function of the Tribunal was to assess his claim.  It was not obliged to undertake or provide the assistance which the appellant asserted before me that it should have given him. 

14. The Tribunal appears to have used the hearing to explore with the appellant his claims and to have him elaborate, if he could, upon the evidence which he might be able to give in support of it.  At the end of the day I see no error in the approach of the Tribunal in questioning the appellant about his claims and forming the view which it did, which was adverse to him, that it was not satisfied that he had made out any of those claims.    Indeed, the Tribunal had written to the appellant prior to the hearing informing him that it was unable to make a decision in his favour on the information in the files of the Tribunal and the Department. Thus, the Tribunal invited him to the hearing so, as it informed him, it could obtain oral evidence from him concerning his claims.

15. Next, the appellant argued that because of his involvement with Falun Gong, if he were returned to China the consequences to him would be of great seriousness.  However, that was a matter as to the merits of his claim which it was the Tribunal’s function to assess.  The Court is not able to perform a review on the merits of that claim.  The appellant, likewise, sought to review the merits of the Tribunal’s decision in relation to his claims concerning the one-child policy in the appeal and, for similar reasons, that claim was outside the scope of the court’s function of judicial review.

16. The appellant then said that the Tribunal should have given him a notice in writing pursuant to s 424A of the Migration Act 1958 (Cth) which, in effect, set out in advance any lack of satisfaction that the Tribunal had with his evidence so as to give him a further opportunity to deal with that issue. That is not the function of s 424A. The section is structured in a way that recognises that an applicant (for review of a protection visa decision which refuses the visa) can voluntarily give information to the Tribunal for the purposes of his or her application for review which the Tribunal does not have to refer to him or her in writing for their further comment.

17. Rather, the function of s 424A as identified by the decision of the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 and in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 is to give to applicants for review before the Tribunal notice of information which the Tribunal considers would be the reason or part of the reason for affirming the decision that is under review. The requirement excludes information that is generally about persons in the class of persons of which the applicant or another person is a member within the country or region from which the applicant claims his need for protection arises. If the applicant has already provided the information to the Tribunal for the purposes of its conduct of the review, it need not give him or her notice of it under s 424A(3)(b).

18. The appellant could point to nothing in the Tribunal’s reasons which indicated that the Tribunal had used any information as the reason for affirming the decision that was under review which s 424A required he be given notice of in writing. The fact that the Tribunal questioned the appellant about his claims during the course of the hearing did not enliven any obligation on the Tribunal to give him notice in writing of the subject matter of those questions or their answers prior to it arriving at a decision.

19. As Allsop J said in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR at 264 [227] (Weinberg J agreeing at 252 [155]):

    ‘There may, in any given case be a relevant distinction to be drawn between using information as part of the reason, the information simply being the context or platform for questioning, the answers to which questioning the Tribunal does not believe that such answers (and not the information) being a part of the reason.’

20. I am of opinion that in the present case a fair reading of the Tribunal’s decision reveals that the Tribunal simply explored with the appellant in his oral evidence his claims and was not satisfied by what he said that any of the claims had been established.  The Tribunal’s function under s 65 of the Act was to consider the appellant’s application for review.  Only if it were satisfied that the appellant had made out a claim for protection under the Convention was the Tribunal required to grant a visa.  Section 65(1)(b) makes quite clear, that if the Tribunal, standing in the shoes of the Minister for the present purpose, were not so satisfied, its obligation was to refuse to grant the visa.

21. I am of opinion that that is the way in which the Tribunal approached its function and that was undoubtedly correct.  Additionally, in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR at 259-260 [204]-[207] Allsop J discussed the distinction between information which he said was that of which one is told or apprised and that it was knowledge communicated concerning some particular fact, subject or event. He said that, in that context, the word ‘information’ has been taken as referring to knowledge of relevant facts or circumstances communicated to or received by the Tribunal or knowledge which has come to or been gained by it (150 FCR at 259 [205]).

22. The Tribunal formed a view that it was not satisfied by the appellant’s evidence. It explained the basis upon which he had failed to satisfy and it revealed its reasoning and thought processes in accordance with the obligation imposed under s 430 of the Act. Those reasons did not reveal that the Tribunal had used information contrary to s 424A so as to establish a jurisdictional error on its part.

23. I can see no error in the way in which the learned trial judge came to his decision to dismiss the application.  For these reasons I am of opinion that the appeal should be dismissed.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Associate:

Dated:        13 September 2006

Appellant:	In person
Counsel for the Respondent:	Mr GT Johnson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	15 August 2006
Date of Judgment:	15 August 2006