SZIBJ v Minister for Immigration - [2006] FMCA 1842

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIBJ v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1842

MIGRATION – RRT decision – Chinese applicant claiming persecution for perceived political opinion – history partially accepted by Tribunal – rejection of Convention claims – no jurisdictional error found.

Migration Act 1958 (Cth), ss.91S, 424A, 424A(1), 425, 474(1), 476

Applicant S v Minister for Immigration & Multicultural Affairs (2004) 217 CLR 387
Applicant S v Minister for Immigration & Multicultural Affairs [2001] FCA 1411
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte ApplicantsS134/2002 (2003) 211 CLR 441

Applicant:

SZIBJ

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG63 of 2006

Judgment of:

Smith FM

Hearing date:

27 November 2006

Delivered at:

Sydney

Delivered on:

27 November 2006

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Mr T Reilly

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG63 of 2006

SZIBJ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed on 6 January 2006 under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”), which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 18 November 2005 and handed down on 13 December 2005. The Tribunal affirmed a decision of a delegate dated 20 May 2005, which refused to grant a protection visa to the applicant.
The Court’s jurisdiction under s.476 is “the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution”, but its powers are limited so that I do not have power to set aside the Tribunal’s decision and send the matter back to the Tribunal unless I am satisfied that the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant’s refugee claims should be believed, nor whether he qualifies for a protection visa.
The present matter was set down for final hearing today by orders which I made on 13 June 2006 at a show‑cause hearing. My orders allowed the parties to exchange written submissions. The applicant’s written submissions were filed late, and the written submissions for the Minister were also filed one day late. The applicant complained about receiving the Minister’s submission on 22 November 2006 rather than the 20th, however, he told me that he was able to have it read to him by a friend. In the circumstances, I consider he has been sufficiently allowed to consider what arguments he would make to me today. As I shall indicate, he has filed a series of documents raising arguments prepared by his helpers. He had further submissions to make to me today, including some which he read from a piece of paper.
The applicant arrived in Australia in December 2004. On 24 January 2005 he lodged his application for a protection visa, assisted by a migration agent, Priscilla Yu. The application attached a typed statutory declaration as to the applicant’s history, which explained why he was seeking protection in Australia against return to the People’s Republic of China.
Briefly, he claimed that he and his family had conducted a small family business as chicken farmers. From 2002 a local official required the family to employ people whom they did not wish to employ. He said that this led to the financial failure of the business. Moreover, the official then demanded that sums of money be paid to the employees for their lost employment, and had caused his father, his brother and himself to be arrested in January 2004 when they refused to pay. He claimed that the family members were mistreated in detention, so that his brother became ill and died. Eventually, they obtained their release, when his wife sold their house so as to raise enough money to pay the official’s relatives whom they had been forced to employ. He claimed that his father and he were released at the end of February 2004.
No support for this history was provided to the Department, nor to the Tribunal prior to the applicant attending a hearing on 25 October 2005. Subsequent to the hearing and at the invitation of the Tribunal, the applicant forwarded what was claimed to be a death certificate of his brother, showing death from “acute pneumonia, nausea, dizziness and shock” in January 2004. As I shall indicate, the Tribunal was prepared to accept that part of the applicant’s history.
It did not, however, accept the applicant’s claims as to what happened after he was released in February 2004. The applicant claimed that following his release, he “make my mind to struggle against those corruptive government officials and their families or relatives”. He claimed to have “written many petitions which have sent to the [city] government, [provincial] government, and even central government”. He claimed that in October 2004, this resulted in a second arrest by the PSB, and he was forced to confess distributing anti‑government propaganda material and was beaten and tortured.
The applicant claimed that meanwhile, in May 2004, he had gained the assistance of an official in the People’s Court who, out of sympathy, advised the applicant not to pursue appeals. The official also assisted by spending money to procure a passport and visa for the applicant to come to Australia. The applicant said that initially he did not wish to use the passport, but decided to come to Australia after his release from the detention centre at the end of October 2004.
In a submission which accompanied his application to the Tribunal, the applicant identified this activity in 2004 as establishing a claim that he had a fear of persecution due to “my political opinions and actions against the PRC authorities”.
The transcript of the hearing is not in evidence, but the Tribunal gives a description of the hearing and I have no reason not to accept it. The applicant’s account of what had happened after the release of his father and himself in February 2004 was:
The Tribunal asked the applicant what happened after he was released from detention. He said that he simply remained at the home of his uncle and tried to write letters of appeal to the authorities about their treatment. He said that he wrote to the city, provincial and central government authorities asking for appropriate consideration of his rights. He said that in the letters he outlined all of the events including the circumstances in which the family lost the farm and the events leading to the death of his brother in custody. He told the Tribunal that he despatched all of these letters in the post. He received no response from any of the authorities.
The Tribunal asked whether other residents had experienced problems with [the official], the director of the village committee. He said that he does not know. Asked why his family had been singled out for this treatment the applicant responded that the farm was a good business and relatively prosperous. Asked what other income the director had, the applicant said that he receives a fixed income from the local authorities in his position. The Tribunal asked what has become of the family farm. He said that they lost it and another person is now running the business as a chicken farm.
The Tribunal asked the applicant how he came to meet the contact person whom he earlier said had helped with passport, travel and other arrangements. He said that after he was released from detention he wanted to pursue the matter in the courts. He says that he met this person in the court at [city]; he works there. According to the applicant this person cautioned him not to pursue the matter in the court. He said that he did not believe that the applicant would achieve success or satisfaction. He said that this person showed pity for his situation and suggested that his friend in Australia could assist. According to the applicant he continued to write letters and in October 2004 he was arrested by the PSB. He said that he was at home, at his uncle’s place at the time of his arrest. The Tribunal asked why he was arrested in October 2004. He responded that they had become aware of the petitions and letters he had been writing. The Tribunal observed that this seemed a very long time for his actions to come to notice; he had commenced the letters many months earlier. According to his evidence the police accused him of distributing anti government material. They asked him to sign a search warrant. He was taken away and held for one month. He told the Tribunal that he was beaten and badly treated. Asked why he was subjected to this treatment the applicant replied that he does not know. When questioned he admitted that he had sent the letters and petitions about the family’s problems and the events leading to the death of his brother. The Tribunal asked the applicant how he came to be released after one month. He said that his wife had gone to the friend from the court and he believes that this friend secured his release through his connections. He said that this friend has connections in the PSB. The Tribunal asked how his wife knew about this “friend” and how she knew where to locate him. He said that his wife had previously accompanied him to that place; the court building is about half an hour by car from the detention centre where he was held. The Tribunal asked what happened after his release. The applicant said that his friend came to see him. He cautioned him to cease his activities and his written appeals and instructed him to remain at home. He said that he promised to secure him a passport and assist him to travel overseas. The Tribunal noted that he already had a passport and had held it since June 2004. The applicant said that he remained at his uncle’s place and did not go outside of the house. He said that [the court official] came there to see him sometimes in the evenings.
The Tribunal also indicated that it asked questions of the applicant concerning his fears if he returned to China:
The Tribunal asked the applicant what harm he fears if he returns to China. He said that he would be arrested as before and ill treated as was his brother who was tortured to death. He said that his parents do not want him to return to China. They are pleased that he is safe in Australia. Asked why he believes that he will be arrested again the applicant said that there is no justice in China; no human rights. The Tribunal asked the applicant why exactly he fears that he will be arrested. He replied that his letters have defamed the Communist Party and he was previously arrested for this reason. The Tribunal observed that if the authorities had indeed wanted to arrest him there was ample opportunity for them to so after his release in October and up until his departure from China at the end of December 2004. He had said earlier in his evidence that he stayed at the home of his uncle during this time and the authorities did not seek him. He replied that it is his belief that they did not seek him only because of [the court official’s] connections but [the court official] could not continue to protect him and suggested that he leave China. [The court official] asked him to stay at home after his release in October. The applicant said that he believes that he was under surveillance. The Tribunal said that if the authorities had any interest in him they knew where he was and no action was taken. He said that they had no cause to take him away if he was just sitting at home. The Tribunal asked what cause they would have to apprehend him if he left the house. He said that he had not given this any thought. The Tribunal asked how [the court official] had established the Australian contact. He said that he does not know; he only told the applicant that this is a friend and will help him. The applicant said that he sometimes meets this friend in Australia.
The Tribunal asked whether [the official], having taken the funds and the farm is now satisfied with the current situation. The applicant said that he was satisfied but the applicant is not. He asks why he should give this man RMB800,000 and this is why he wrote the petition. The Tribunal asked the applicant what he will do if he returns to China. He replied that he is unable to go back. He will be arrested. The Tribunal repeated that the question is “what will you do if you go back to China?”. The applicant said that he does not know. He is just frightened.
Under the heading “Findings and Reasons”, the Tribunal identified the claim which had been presented as, essentially, being a claim by the applicant:
… that he was mistreated in China because he expressed an opinion which was considered to be anti government. He fears that he will be arrested on return to China for reason of that political opinion.
The Tribunal referred to the family history involving the actions of the local official, and accepted that:
… the family lost the farm and had subsequently to sell their home and other assets to meet the demands of this official for compensation for workers introduced by him to the business. The Tribunal accepts that the applicant, his father and his brother were detained in [city] for approximately one month in January 2004 and it accepts that they were poorly treated by the police and other inmates. The Tribunal accepts that the applicant and his family were told that they would not be released until they paid the amount of money which was being demanded by [the official]. The Tribunal accepts that the applicant’s brother died as a result of deprivation of food and drink and injuries he sustained at the hands of other prisoners during the detention.
However, the limits of the Tribunal’s acceptance of the applicant’s history is shown in its subsequent paragraph:
The Tribunal accepts that the applicant, upon his release from detention in February 2004 sought justice by seeking to bring the matter to the attention of local officials. Beyond that the Tribunal does not accept that he wrote letters of appeal to the municipal, local and central governments over the period up until October 2004. It does not accept that he was arrested because of his expression of views which were considered anti‑government in October 2004. The Tribunal finds the applicant’s evidence about the events after his release from detention in February 2004 implausible and does not accept that it offers a truthful account. It comes to this finding for the following reasons.
The Tribunal then pointed to a number of difficulties which it had with the applicant’s account of his actions after being released in February 2004. The Tribunal considered it implausible that an official of the Court would risk his livelihood and reputation by assisting the applicant in the circumstances claimed. It said that it was implausible that such an official would be able to use contacts in the PSB to secure the applicant’s release as claimed in October 2004. It also said that the chronology of the events was not explained to the satisfaction of the Tribunal. It essentially disbelieved the whole of this part of the applicant’s claims.
The Tribunal’s concluding reasoning was:
The Tribunal finds that the harm that the applicant suffered in the loss of the family farm and his livelihood in January 2004 is serious harm. It accepts that he was poorly treated whilst in detention and accepts that his brother died as a result of that detention. The Tribunal finds that these events also constitute serious harm amounting to persecution. On the basis of the evidence before it, the Tribunal finds that the essential and significant reason for the harm suffered by the applicant is due to the corrupt actions and practices of a local party official and not for reason of the applicant’s political opinion. His treatment in gaol, likewise was not for a Convention reason but a means of coercing him and his family to pay the money being demanded by this official. For the reasons outlined the Tribunal does not accept that the applicant was subsequently subjected to serious harm for reason of a political opinion, either actual or imputed to him as he has claimed after his release from detention. It does not accept that he was detained in October 2004 or otherwise mistreated for this reason.
The Tribunal acknowledges that the applicant was poorly treated and he resents the actions of the corrupt director of the local village committee and the failure of the state to take appropriate action against him. There is nothing in the applicant’s evidence to suggest that the local authorities failed to protect him because of his political opinion. It is the Tribunal finding that any failure on their part was due to the fact that they were complicit in the corruption which pervaded the village committee. The Tribunal acknowledges that the loss of the family farm means that the applicant will have to seek other work. This may be difficult and his income reduced. He did not state at the hearing before the Tribunal that he would continue a campaign for justice if he returns to China. The Tribunal finds that the harm suffered by the applicant in China in the past, although serious harm is not related to any reason in the Convention. The Tribunal finds that the chance is remote that the applicant will suffer Convention related harm in China in the foreseeable future.
I consider that this reasoning should be understood to show that the Tribunal has addressed the harms which the Tribunal accepted to have occurred to the applicant and his family, and has found them unrelated to actual or perceived political opinions of the applicant, and therefore to have been unrelated to a Convention ground. I consider that such findings and reasoning were open to the Tribunal on the material before it.
In relation to the applicant’s claim to have been subsequently persecuted on the ground of perceived political opinion, the Tribunal has not accepted the history claimed. It has not found evidence suggesting that during the months leading to his coming to Australia, he was subject to any persecution for actual or perceived political opinions, nor that he was involved in any actions which gave rise to a well‑founded fear of persecution for that reason. The Tribunal has therefore found “the chance is remote that the applicant will suffer Convention related harm in China in the foreseeable future”. In my opinion, this was an assessment of the evidence which was open to the Tribunal, and I do not consider that it is affected by jurisdictional error.
The applicant was referred for legal advice under the free advice scheme operating in the Sydney Registry of the Federal Court. The advisor has presented an amended application filed on 5 April 2006 containing three grounds:
1.The second respondent failed to take into account a relevant consideration or failed to correctly apply the law. The second respondent found that “the harm the applicant suffered in the loss of the family farm and his livelihood in January 2004 is serious harm amounting to persecution”. However the second respondent found that the reason for the harm was “corrupt actions practices of a local party official and not for reason of the applicant’s political opinion. The second respondent failed to consider or undertake an analysis of whether the reason for the persecution was the applicant’s membership of a particular social group, being the family of the person who owned the farm.
2.In assessing whether the applicant holds a well‑founded fear of persecution on account of his political opinion the second respondent failed to take into consideration the fact that applicant has made an application for protection against his home country. The second respondent failed to consider whether the applicant’s action of lodging a protection visa in Australia in combination with his previous detention and his previously stated actions against local government officials (which were accepted by the second respondent) would result in the applicant holding a well founded fear of persecution.
3.The second respondent found that the failure of the local authorities to protect the applicant “was due to the fact that they were complicit in the corruption which pervaded the village committee”. Access to law enforcement authorities to secure a measure of protection against violence to the person can be persecution (see MIMIA v Khawar). The second respondent failed to undertake an analysis of the likelihood of such actions of the local authorities on his return, whether such action would be persecution and whether such action would be for any of the Convention reasons.

In relation to the first of these grounds, I accept the submission of counsel for the Minister that the applicant did not present a claim to have suffered persecution in the past, nor to fear further persecution in the future, by reason of his membership of his family unit. The absence in the Tribunal’s reasons of discussion of whether this could provide a Convention nexus is therefore not surprising. Moreover, I do not consider the material before the Tribunal, to the extent that it has been accepted by the Tribunal, raised a “potential” for a Convention claim based on membership of a particular social group (compare Carr J’s decision in Applicant S v Minister for Immigration & Multicultural Affairs [2001] FCA 1411, approved in Applicant S v Minister for Immigration & Multicultural Affairs (2004) 217 CLR 387 at [13], [50]‑[51], [77]).
Moreover, as Counsel for the Minister points out, to the extent that the harms suffered by the applicant which were accepted by the Tribunal were incurred by reason of his membership of his family, and in company with other members of his family, those harms were required to be disregarded by s.91S of the Migration Act, in the absence of any underlying Convention reason for any of the family members being persecuted.
In relation to the second ground presented by the free legal advisor, there is no evidence before me that the applicant or his agent claimed to fear persecution on the ground that he is a person who has sought protection in Australia. I therefore do not think there was any obligation on the Tribunal to address such a claim (c.f. Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte ApplicantsS134/2002 (2003) 211 CLR 441 at [28] and [31]).
The third ground presented by the advisor argues that the Tribunal was required to conduct “an analysis of the likelihood” of the State authorities persecuting the applicant for a Convention reason if he returned. However, the Tribunal did address whether the failure of local authorities to protect the applicant from the harm which occurred to him and his family in January 2004 was itself motivated for a Convention reason or evidenced a failure of protection for a Convention reason. In my opinion, this issue was sufficiently covered by the Tribunal’s finding that:
There is nothing in the applicant’s evidence to suggest that the local authorities failed to protect him because of his political opinion. It is the Tribunal finding that any failure on their part was due to the fact that they were complicit in the corruption which pervaded the village committee.
I consider that the Tribunal has addressed, and excluded, a Convention nexus for the harms revealed in those parts of the history of the applicant which it accepted.
In those circumstances, it did not have to engage in a further analysis as to whether there would be a repetition of non‑Convention‑related persecution of a similar nature if the applicant returned. Moreover, on the evidence of the applicant, the likelihood of repetition appeared remote since it appears that the corrupt official had been fully satisfied. I am not able to infer from the Tribunal’s discussion that there was any aspect of the Refugees Convention which the Tribunal misapprehended or failed to address.
The applicant’s original application filed in the Court contained a number of grounds which were repeated and amplified in a further amended application filed by him on 17 May 2006. Although this contains some legal submissions, it does not appear to have been prepared by a lawyer.
The first and second grounds point to the parts of the applicant’s claims which were accepted by the Tribunal, and contend that “the Tribunal rejected my claims in relation to my protests against the PRC authorities mainly based on unwarranted assumptions”. It is then argued that the Tribunal’s reasoning which rejected the claims about the helpful court official was flawed. In particular, it is contended that there was no reference to country information by the Tribunal, and that “we cannot say that none of officials of the PRC authorities would have the sense of justice, and thus would help the victims like me who have suffered from persecution by the government”.
However, in my opinion the arguments do not transcend beyond criticism of the merits of the Tribunal’s reasoning. I consider that the Tribunal’s reasoning was rational and was open to it.
Ground 3 argues that “the Tribunal ignored important independent country information”, which it is claimed would have provided evidence that “a lot of officials with the PRC authorities … are willing to take risks to protest against the PRC authorities”.
However, there is no evidence before me that the applicant ever presented to the Tribunal such material, and I am not satisfied that there was any evidence which the Tribunal failed to consider which it was bound to take into account.
Ground 4 argues that “the Tribunal ignored important issues”, but the submissions in support raise only an argument on merits.
Ground 5 argues that “the Tribunal failed to comply with its obligations under s.424A(1) of the Act”. The criticism made is that the Tribunal “failed to clearly inform me about issues regarding to [the court official] who is a key person in my claims”.
However, the Tribunal’s obligations under s.424A did not require it to follow the procedure as argued. Section 424A(1) requires only a procedure to be followed in relation to particulars of information about the applicant which would be part of the reasons of the Tribunal, and which were not given by the applicant to the Tribunal. In the present situation, the section did not require the Tribunal to invite the applicant to comment on its assessments of evidence given by him to it at the hearing.
Ground 6 makes the same complaint by reference to the Tribunal’s obligations under s.425. It is argued that the Tribunal misled the applicant by not drawing to his attention “the actual issues which the Tribunal believed they were arising in relation to the decision under the review”, in particular, concerning the helpful court official. In his oral submissions today, the applicant argued that the Tribunal also misled him into thinking that it would decide in his favour if he could present his brother’s death certificate.
However, there is no support for these contentions in the Tribunal’s description of the hearing. In the absence of a transcript, I do not consider that any substance is shown for the claim that he was misled by the Tribunal as to the issues which he was required to address. I therefore do not consider that any argument invoking s.425 or any other source of duties of procedural fairness can succeed.
The applicant’s arguments in his document filed on 20 November 2006 address points which I have already addressed above. I have also addressed above, the submissions made to me today orally by the applicant.
For the above reasons, I have not been able to identify jurisdictional error affecting the decision of the Tribunal. It is therefore a privative clause decision within s.474(1) of the Migration Act, and I must dismiss the application.

I certify that the preceding thirty‑seven (37) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 15 December 2006