SZIIS v Minister for Immigration
[2008] FMCA 470
•24 April 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIIS & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 470 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – jurisdictional error by Tribunal not proven – no breach by Tribunal of its natural justice hearing obligations – review of Tribunal’s fact finding unavailable in judicial review proceedings except in limited circumstances not present in this case – merits review not available in judicial review proceedings – no basis to conclude that the applicants were overborne at the Tribunal hearing or prevented from exercising their s.425 rights. |
| Migration Act 1958, ss.422B, 424A, 425, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 SZCIJ v Minster for Immigration & Multicultural Affairs [2006] FCAFC 62 Minister for Immigration & Multicultural Affairs v Lat (2006) 151 FCR 214 |
| First Applicant: | SZIIS |
| Second Applicant: | SZIIT |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3164 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 8 April 2008 |
| Date of Last Submission: | 8 April 2008 |
| Delivered at: | Sydney |
| Delivered on: | 24 April 2008 |
REPRESENTATION
| The Applicants appeared in person |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3164 of 2007
| SZIIS |
First Applicant
| SZIIT |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicants are citizens of China where, the first applicant claims, he and his wife breached the one-child policy and were Falun Gong practitioners. He alleges that while in China he and his wife had three daughters and one son and that this led to them being fined and discriminated against. The first applicant was also detained by police because of his practice of Falun Gong. The applicants arrived in Australia on 1 May 2005.
The first applicant’s wife is the second applicant in these proceedings and her claim is linked with that of her husband.
The first applicant claims to fear persecution in China because of his breach of the one-child policy and his practice of Falun Gong.
After their arrival in Australia, the applicants lodged an application for a protection visa. This was refused by the Minister’s delegate on 13 August 2005. The applicants then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicants were unsuccessful before the Tribunal and have applied to this Court for judicial review of the Tribunal’s decision.
The Tribunal decision the subject of these proceedings is the second such decision relating to the applicants. There was a previous Tribunal decision signed on 22 December 2005 which was quashed by order of this Court dated 16 April 2007 (Court Book (“CB”) page 93).
In these judicial review proceedings the Court cannot rehear the applicants’ application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow the application will be dismissed.
Background facts
The facts alleged in support of the applicants’ claim for a protection visa are set out on pages 4 – 20 of the Tribunal’s decision (CB 214 – 230).
Protection visa application
In the applicants’ protection visa application, the first applicant made the following claims:
a)his firstborn was a daughter. His family put pressure on him to try for a son;
b)a second daughter was born on 27 February 1983. He was unable to register her at the local police station;
c)when the applicants were found to be in breach of the one-child policy, the first applicant lost his housing entitlements and his wife lost her job;
d)after the birth of his third child, another daughter, on 27 November 1985, the first applicant’s employment was terminated and he and his wife were both unemployed;
e)the Neighbourhood Committee urged the second applicant to undergo a sterilisation operation. When she refused, they forced her to go with them to their office. She was locked up while the village head went to town to find a doctor to perform the operation. During this time, the applicant and his relatives broke into the office and escaped with the second applicant. She went into hiding at the home of a distant relative;
f)on 30 October 1987, the second applicant gave birth to a son. For this, they were fined $20,000. They had to fight the local government for education and registration rights for their children. Two of their children were not registered and were only able to go to school for Year 1 at the age of ten. The two children were psychologically traumatised because of this;
g)the applicants began to practise Falun Gong in order to cope with their stress and psychological pressures. The first applicant learnt of Falun Gong in 1999 and formally became a member by the end of 2000. The applicants practised in a group of five in their home; and
h)one morning, two policemen took the first applicant to the Public Security Bureau (“PSB”). He was accused of carrying out “anti-party, anti-socialist activities” and breaching family planning laws. He was coerced into writing a letter of repentance. He was released under surveillance and had to report to the police from time to time.
First Tribunal hearing
At the first Tribunal hearing on 31 October 2005 the first applicant made the following additional claims:
a)he has had to pay fines for all but his first child. He produced a receipt issued on 15 March 1990 for the sum of 42,500RMB;
b)he had other receipts to prove that he had been subject to penalties but because of his involvement with Falun Gong, the authorities had confiscated many of his documents and the receipts were now lost as they had been kept in books which have been seized by police;
c)after the birth of his third and fourth children he went to stay in the mountains. His children were not allowed to go to school and were not registered;
d)after he became a member of Falun Gong, he was detained on two separate occasions in 2002. On the first occasion he denied any involvement with Falun Gong; on the second, he could not deny the claim and the authorities confiscated his books;
e)in 2000 the PSB searched his home and caused him a lot of distress and anxiety;
f)at school, his children were subject to taunts. They would come home and encourage their father not to practise Falun Gong any longer;
g)he experienced difficulties with schooling for his children because the government did not provide scholarships and his children were not allowed “to join any competitions”;
h)he could not get any “government business” or any work as such and he had “to work for others” because of his family planning circumstances. He could not engage in any serious business because he could not meet the family planning criteria and was therefore compelled to do lowly paid and difficult jobs;
i)he was starved when he was placed in detention for being a Falun Gong practitioner. He managed to escape from detention when he noticed that there were no guards. Following his escape, agents from the PSB came and looked for him at his home. As a consequence, the applicant began “moving around” to avoid detection while his relatives looked after his children. However, PSB agents kept him under surveillance; and
j)he secured a visa months before he travelled to Australia but did not leave straight away as it was a long process and because his parents died.
Letter to the second Tribunal dated 25 July 2007
The first applicant submitted a letter to the second-constituted Tribunal in which he claimed the following:
a)his children missed out on basic medical welfare and could not be treated in the public hospital because they did not have an official identity;
b)the children could not attend public schools. In order to make a living, the applicant set up an illegal business by the side of the road. Police and city administrative staff often made trouble for the applicant. They would kick the stall and knock goods onto the ground;
c)the second applicant was forced to have a sterilisation operation after the birth of the fourth child. Every year she was forced to attend a hospital for a check-up which caused her great pain; and
d)his first two daughters have struggled to find work because of their parents’ breach of the one-child policy. The applicant’s other two children are not registered and the applicant is concerned that his future grandchildren will also experience similar problems with registration.
Second Tribunal hearing
At the second Tribunal hearing on 30 July 2007 the first applicant made the following additional claims:
a)the applicants were fined after the birth of their second child as they breached the government policy which stipulated that they had to wait five years before having a second child;
b)after the birth of their third child the applicants were fined 20,000RMB. They escaped to a hilly place away from the village so that they would not have to pay the fine. Sometimes the authorities chased after them and sometimes he sneaked out to visit his children;
c)the authorities continued to chase after them. They wanted the second applicant to have a sterilisation operation. Other villagers would warn them when the authorities were nearby so that they could escape or hide;
d)he lost his job in a state-owned company because of his breach of family planning laws;
e)as he lived in a hilly area he was not aware of a government policy enacted in 2000 which provided that children previously not registered could now be registered;
f)he also had to pay 20,000RMB after the birth of his son so in total he has had to pay fines of 40,000RMB;
g)his eldest daughter found work but not in a good unit;
h)he became interested in Falun Gong as people at the street stalls would talk about it. He and his wife practised at home when they had free time once a week; and
i)in Australia the applicants practised Falun Gong at home every day but did not join any Falun Gong groups.
Response to s.424A letter
In response to the Tribunal’s s.424A letter, the first applicant submitted that the second applicant’s sterilisation procedure and annual check-ups were not mentioned in the protection visa application as the applicants did not think that that was a reason for her to be protected by the Australian government.
The Tribunal’s decision and reasons
After discussing the claims made by the applicants and the evidence before it, the Tribunal found that it was not satisfied that the applicants were persons to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal did not accept that the first applicant’s level of knowledge of Falun Gong principles was commensurate with that of a Falun Gong practitioner with seven years’ experience, noting that:
i)he described his practice of Falun Gong as “breathing in and sitting”;
ii)he did not know how many exercises there were or which ones were performed standing up or sitting down;
iii)his demonstration of Falun Gong did not resemble any of the Falun Gong exercises;
iv)he was unable to discuss Falun Gong concepts; and
v)he could not explain what “Falun” meant;
b)the Tribunal was not satisfied that the applicants were Falun Gong practitioners during the previous seven years given that the first applicant was not familiar with basic Falun Gong principles and practices. The Tribunal did not accept the first applicant’s explanation that they were not very good at socialising since they would have learnt at least some of the basic principles and exercises if they had a true commitment to Falun Gong;
c)the Tribunal did not accept that the applicants practised Falun Gong every day in Australia, noting that:
i)there was no independent evidence that the applicants were Falun Gong practitioners; and
ii)the first applicant was not familiar with basic Falun Gong principles and practices;
d)consequently, the Tribunal did not accept that the applicants were arrested by authorities in China because of their Falun Gong practice or that the first applicant was required to write a repentance letter, finding that:
i)the applicants did not suffer any harm because of their practice of Falun Gong in the five years before they left China despite their continued practice; and
ii)the first applicant gave inconsistent evidence about whether he escaped from his detention or whether he was released after he signed a letter of repentance;
e)the Tribunal accepted that the applicants were not allocated housing, lost job opportunities, could not obtain a licence for their business and had to pay fines because they had had four children as this accorded generally with independent country information on families who had breached the one-child policy;
f)the Tribunal had concerns about the second applicant’s sterilisation procedure and subsequent check-ups, noting that:
i)the applicants did not raise this issue either in their protection visa application or with the previous Tribunal;
ii)it found it difficult to believe their explanation that they did not tell the first Tribunal about these matters on the basis that it was a painful period in their lives, given that they had discussed other traumatic events in their application and at the first hearing;
iii)the Tribunal queried whether the authorities would be interested in giving the second applicant this procedure since she had had no children since the 1980s and was now 45 years old; and
iv)it also questioned why annual check-ups were required given that the authorities would only need one check-up to ensure that the second applicant could no longer bear children;
g)nonetheless, the Tribunal accepted that the second applicant had the sterilisation operation and was required in the past to have gynaecological check-ups to ensure that she could no longer have children;
h)the Tribunal accepted that it was possible that the applicants could be members of several particular social groups namely:
parents in China subject to the family-planning laws; or parents in China who have had more than one child; or (in the case of the second-named applicant), women in China who have had sterilisation operations. (CB 244)
i)however, the Tribunal was satisfied that any harm which the second applicant suffered was not for reasons of her membership of any such group but as a consequence of China’s one-child policy which applied to all Chinese nationals and was a non-discriminatory law of general application;
j)consequently, the Tribunal was satisfied that any harm suffered by the applicants would not amount to persecution as stipulated by the Convention; and
k)it also found that there was no evidence that the applicants or their children would suffer any other kind of harm on the applicants’ return to China.
Proceedings in this Court
The grounds of the application were pleaded as follows:
1. There was an error of law in the Tribunal’s decision constituting a jurisdictional error.
2. There was procedural error in the Tribunal’s decision constituting an absence of natural justice.
At the hearing the applicants raised the following additional matters:
a)the second applicant did not agree with the decision of the Tribunal;
b)the first applicant said:
i)the Tribunal’s decision was not reasonable;
ii)he had been telling the truth about his commitment to Falun Gong; and
iii)the Tribunal’s “interrogation” was unfair and unreasonably lengthy.
Jurisdictional error
This ground of review is not particularised and nothing raised in oral submissions at the hearing gave it any particular substance.
It is apparent that the Tribunal’s decision was based on a factual analysis of the claims made by the applicants which led to the conclusion that, in many respects, those claims could not be accepted. Notwithstanding that the Tribunal gave the applicants the benefit of the doubt or otherwise accepted them in relation to the discrimination which they alleged they suffered as a result of their breach of the one-child policy, including losing housing and job opportunities and forced sterilisation of the second applicant, it did not accept that they had been persecuted by reason of the first applicant’s adherence to Falun Gong or, on the facts, that the treatment meted out to them by the Chinese authorities because they breached the one child policy amounted to anything other than the application to them of a law of general application in China.
The factual findings which the Tribunal made were reasonably open to it.
Further, the Tribunal understood the tests which it had to apply to determine whether the applicants met the criteria for being given protection visas. At pp.2 – 4 of its decision (CB 212 – 214), the Tribunal discussed the relevant law without error. Moreover, of specific relevance to the claims made by these applicants, the Tribunal discussed, without error, the law relating to whether the treatment of the applicants by the Chinese authorities because they breached the one-child policy amounted to persecution for the purposes of the Convention. The Tribunal correctly applied those authorities when reaching its conclusion that that treatment did not amount to persecution.
Consequently, the first asserted ground of review does not disclose jurisdictional error on the part of the Tribunal.
Absence of natural justice
As with the first asserted ground of review, this ground is not particularised and nothing was said in submissions to give it any particular substance.
For the purposes of the Tribunal, the natural justice hearing rule is codified in div.4 of pt.7 of the Act: s.422B; SZCIJ v Minster for Immigration & Multicultural Affairs [2006] FCAFC 62; Minister for Immigration & Multicultural Affairs v Lat (2006) 151 FCR 214. Of all the sections in div.4 of pt.7 of the Act, the ones most usually raised in the context of an allegation such as this are s.424A and s.425. As to s.424A, the Tribunal did serve a s.424A(1) notice on the applicants to which they responded. Even so, the Tribunal’s findings concerning the claim that they were subject to persecution because of the first applicant’s adherence to Falun Gong were rejected because of the conclusions which the Tribunal drew from the evidence which the applicants had supplied to the Tribunal at the two hearings which they attended. Information contained in such evidence falls within the exception found in s.424A(3)(b) and thus no a.424A(1) obligations arose in respect of it. Consequently, no breach of that section is apparent.
As to s.425, it has not been submitted that the applicants were not given notice of, or were rendered unable to give evidence or present arguments in respect of, the issues arising in relation to the decision under review. Indeed, from a review of the Tribunal’s decision record, it is not apparent that such a claim is available to the applicants.
As to the remaining sections in div.4 of pt.7 of the Act, no breach of any of them is apparent from a consideration of the Tribunal’s decision record. As a consequence, the second asserted ground of review is not made out.
Submissions at the Hearing
The first three points raised by the applicants amount to a challenge to the Tribunal’s findings of fact in, and its conclusion on the merits of, the application for review which was brought to it. However, these matters are ones which fall within the jurisdiction of the Tribunal and, except in limited circumstances which do not exist in this case, the Court is unable to review such findings. It is for the Tribunal to make factual findings and decisions on the merits of an application brought to it and it is for the Court to determine whether the Tribunal has applied the law correctly and has applied correct procedures. If it has, as is the situation in this case, the Court cannot substitute its own findings of fact or views on the merits of the application, even were it to have a view different from that of the Tribunal. As a result, the first three points raised by the applicants at the hearing do not amount to a basis on which the Tribunal’s decision might be set aside.
The fourth and final point raised by the applicants relates to the fairness of the hearing, in that the first applicant submitted that he was “interrogated” to an extent where he was unable to endure the procedure, which affected the quality of the responses he gave. Certainly, the hearing of the second Tribunal took three and a half hours, but it is also apparent that the applicants’ claim was one which presented a considerable degree of detail including varying versions of particular facts and allegations. The fact that the Tribunal’s enquiries of the applicants were searching does not amount to unfairness, nor does the decision record suggest that the applicants were prevented from giving the evidence or making the arguments which they wished to give or to make. Additionally, at the end of the hearing the Tribunal asked the applicants if there was anything further they wished to tell it (CB 228) and no complaint about the conduct of the Tribunal hearing was made in the applicants’ responses, as recorded in the Tribunal’s decision record. Moreover, the Tribunal also told the applicants that they could provide any documents they wished it to receive within two weeks following its hearing and there is no suggestion that any compliant was made to the Tribunal about the conduct of the hearing during that period. In the circumstances, there is no basis to conclude that the applicants were overborne or prevented from exercising their s.425 rights because of what the first applicant described as their “interrogation” by the Tribunal.
Conclusion
As jurisdictional error on the part of the Tribunal has not been demonstrated, the application will be dismissed.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 24 April 2008
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