SZIGC v Minister for Immigration
[2007] FMCA 815
•1 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIGC v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 815 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 424A(1); 424A(3)(b); 474; pt.8 div.2 |
| Applicant: | SZIGC |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG330 of 2006 |
| Judgment of: | Emmett FM |
| Hearing date: | 22 May 2007 |
| Date of last submission: | 22 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 1 June 2007 |
REPRESENTATION
| Applicant appearing on his own behalf |
| Solicitors for the Respondent: | Mr P. Reynolds, Clayton Utz |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG330 of 2006
| SZIGC |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 14 December 2005 and handed down on 3 January 2006.
The Applicant was born on 18 September 1959 and claims to be from the People’s Republic of China (“the PRC”) (“the Applicant”).
The Applicant arrived in Australia on 20 March 2005 having legally departed from the PRC on a passport issued in his own name and a visa issued on 22 February 2005.
On 14 April 2005, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.
In his protection visa application, the Applicant claimed that he feared persecution due to his involvement in anti-government political movements and due to his association with Falun Gong members. The Applicant claimed that he was an active supporter of the pro-democracy movement in the PRC in 1989 and was subsequently questioned by local police. The Applicant claimed that, in 1999 he was detained for 10 days by authorities because he was accused of being a Falun Gong member as he had been spending time with members because he was interested in the practice Falun Gong.
On 6 July 2005, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
On 8 August 2005, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. The Applicant provided no further material in support of the review application. On 14 December 2005, the Tribunal affirmed the decision of the Delegate not to grant a protection visa and this decision was handed down on 3 January 2006.
On 2 February 2006, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Tribunal proceeding
On 9 September 2005, the Tribunal invited the Applicant to come to a hearing on 6 October 2005. The Applicant attended that hearing and gave oral evidence.
The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources as well as the application for review.
The Applicant’s claims before the Tribunal and its decision are accurately summarised by the First Respondent in his written submissions as follows:
“7. The Applicant made the following claims:
(a) his parent suffered from the Cultural Revolution in China;
(b)when he finished school, he started work at a factory where he worked for approximately 14 years. He stopped working at the factory in 1989 and commenced work as a carpenter. Just before he came to Australia, he worked for an advertisement and renovations company;
(c)he was arrested in 1989 for supporting students’ demonstrations;
(d)as a result of his association with Falun Gong practitioners the authorities detained him for 10 days;
(e)because of his bad record, his family was denied regular welfare payments or allowances paid by the Government of China;
(f)the legal system in China was not good and his parents were sent to the countryside and he was forced to work in a labour camp; and
(g)his family was not paid the daily or monthly allowance to which most Chinese people were entitled.
8. The Tribunal determined that the Applicant’s claims did not disclose any evidence of persecution in the context of the Convention and did not provide the basis for any well-founded fear of such persecution. The Tribunal made the following findings and comments:
(a)whilst it is possible that the Applicant’s parents suffered during the Cultural Revolution and that the Applicant may have had a poor education in that period, there was no suggestion that the Applicant faced any form of persecution in recent times because of the events of the Cultural Revolution. Further, the Tribunal noted that the Applicant did not make any specific claims in relation to persecution because of the Cultural Revolution and the problems suffered by his parents during the revolution;
(b)the Applicant’s arrest for supporting the student’s demonstration occurred in 1989 and it had been 16 years since that alleged arrest and the Applicant’s subsequent release in 1989. The Applicant’s ability to continue living in China for the 16 years since his alleged arrest and subsequent release in 1989 undermined his claim that he faced persecution in China;
(c)although the Applicant claimed that the authorities detained him for 10 days after 1999 because of his association with Falun Gong, he was not subject to any persecution after his release and, in both his oral and written testimony, was not able to point to any other specific instances of persecution apart from his claim that the government authorities had refused to pay his family subsistence allowance; and
(d)the Applicant did not provide any specific information in support of his claim that his family was denied subsistence allowances because of his alleged bad political record. Even assuming the Applicant’s family had not been provided with these payments, this did not constitute persecution within the meaning of the Convention. On the evidence, the Applicant’s circumstances did not meet the serious harm test. There was no evidence that the denial of government payments threatened the Applicant’s capacity to exist in China. By his own admission, he was a timber tradesman who was gainfully employed with an advertisement and renovation company before he left China to come to Australia.”
The proceeding before this Court
The Applicant was unrepresented before this Court although had the assistance of an interpreter.
The Applicant confirmed that he relied upon the amended application filed by him on 3 April 2006.
The grounds of the amended application are as follows:
“ 1. The Tribunal failed to carry out its statutory duty”
“2. The Tribunal failed to consider my claims and had bias against me The Tribunal’s satisfaction that I am not a refugee was not based upon reasoning which provided a rational or logical foundation for this belief.”
These grounds are formulaic and are in terms that are regularly seen by this Court. They contain no relevant particulars or identification of information said to enliven s.424A(1) of the Act beyond bare assertions in the particulars. Otherwise the particulars are rambling and refer to passages of authorities of the High Court of Australia and the Federal Court of Australia.
Ground 1
As stated above ground 1 is not particularised in any relevant sense. The Applicant was invited to make whatever submission he wished in support of this ground after it was interpreted him. He said no more than that he believed he was a genuine victim and a refugee.
A fair reading of the decision makes it clear that the Tribunal’s findings were based on an assessment of evidence provided by the Applicant.
The Tribunal’s rejection of the Applicant’s claims was not based on independent country information.
The Tribunal accepted the Applicant’s claims. However, the Tribunal had particular regard to the fact that the Applicant’s detention in 1999 because of his association with Falun Gong had not resulted in any further persecution after his release. The only claim made by the Applicant subsequent to his release in respect of any conduct by the authorities was that they had refused to pay his family subsistence allowances. The Tribunal noted that the Applicant claimed that his family was denied these payments because of the Applicant’s “bad political record”. The Tribunal stated that the Applicant did not provide any specific information to support those claims. The Tribunal, however, gave the Applicant the benefit of the doubt in respect of that claim and found that it did not assist the Applicant’s claims of a well-founded fear of persecution. The Tribunal found that the denial of such payments did not constitute persecution in the terms of s.91R of the Act and therefore was not Convention related persecution.
The Tribunal noted the Applicant is a carpenter by trade and was a timber tradesman gainfully employed with an advertisement and renovations company before he left China to come to Australia.
The Tribunal further found that there was no evidence to suggest that any denial by the government to his family of subsistence allowances threatened the Applicant’s capacity to exist in the PRC. That is a finding of fact entirely within the province of the Tribunal. The Tribunal’s findings were open to it on the evidence and material before it and for which it provided reasons.
There is nothing in the information to which the Tribunal had regard in affirming the decision under review that enlivened the obligations of s.424A(1) of the Act. There was no inconsistency in any claim made in the Applicant’s statement in support of his protection visa application that the Tribunal identified.
The Tribunal noted in the Claims and Evidence section of its decision that the Applicant had repeated the claim in his written statement that because he was associated with Falun Gong practitioners the authorities thought he was a Falun Gong member himself. That claim related to his claim of detention in 1999 for 10 days because of his association with Falun Gong. The Tribunal’s finding in relation to that claim is referred to in paragraph 24 above in these Reasons.
The Tribunal also had regard to the Applicant’s claim of arrest in 1989 for supporting student demonstrations. The Tribunal noted that the Applicant was subsequently released and that it has been 16 years since the alleged arrest during which time the Applicant was able to live in the PRC after his release.
The Tribunal’s findings in respect of the Applicant’s claims were open to it on the evidence and material before it and for which it provided reasons.
The Applicant provided the information to which the Tribunal had regard in making those findings to the Tribunal for the purposes of his review. That information is excluded from the obligations of s.424A(1) of the Act by reason of s.424A(3)(b) of the Act.
Accordingly, there is no enlivenment of the obligations of s.424A(1) of the Act.
Otherwise, the Tribunal complied with the statutory regime in the making of its decision, including the conduct of its review.
Accordingly, Ground 1 is not made out.
Ground 2
Ground 2 is entirely unparticularised and makes serious allegations. Such allegations plainly require evidence. The Applicant has not provided any evidence in support of such allegations. At least a copy of the transcript would have been required. The Applicant was directed to file and serve any evidence upon which he intended to rely by 3 April 2006. No evidence has been filed by or on behalf of the Applicant since that date.
A fair reading of the Tribunal’s decision does not disclose any suggestion that the Tribunal approached its task other than with a mind open to persuasion or had in any way prejudged the matter. Further, on the face of the Tribunal’s decision, there is no irrationality or illogicality in any of the findings or conclusions made by the Tribunal.
Accordingly, Ground 2 is rejected.
Conclusion
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court, commenced by way of application filed on 2 February 2006, is dismissed.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 29 May 2007
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