SZIPC v Minister for Immigration
[2007] FMCA 1485
•23 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIPC v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1485 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision. Visa – protection visa – refusal – particular social groups are identified by characteristics which set them apart, rather than by persecution – no s.424A duty to alert the applicant to the law – discriminatory punishment is not persecution unless it is for a Convention reason. |
| Migration Act 1958, s.91X, 424A, |
| SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 SZHCH v Minister for Immigration & Citizenship [2007] FCA 679 Applicant A v Minister for Immigration & Ethnic Affairs [1997] 190 CLR 225 |
| Applicant: | SZIPC |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1427 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 23 August 2007 |
| Date of Last Submission: | 23 August 2007 |
| Delivered at: | Sydney |
| Delivered on: | 23 August 2007 |
REPRESENTATION
The applicant appeared in person
| Counsel for the Respondents: | Mr Mitchell |
| Solicitors for the Respondents: | Blake Dawson Waldron |
ORDERS
The application be dismissed.
The applicant pay the first respondent's costs fixed in the amount of $4750.
In the Court record the name of the first respondent be amended to read “Minister for Immigration & Citizenship”.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1427 of 2007
| SZIPC |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application dated 28 April 2007 the applicant seeks review of a decision of the Refugee Review Tribunal signed on 9 March 2007 which affirmed an earlier decision of the delegate of the Minister for Immigration & Multicultural & Indigenous Affairs dated 4 October 2005 refusing the applicant's application for a protection visa.
Section 91X of the Migration Act provides that the Court not publish the applicant's name.
Background facts
The Tribunal described the applicant as follows:
The applicant, who claims to be a citizen of China, (PRC), arrived in Australia on 31 August 2005 and applied to the Department of Immigration & Citizenship for a protection (class XA) visa on 3 September 2005 (Court Book (“CB”) page 139).
The applicant claims to fear persecution in China because of his breach of that country's one child policy.
The facts alleged in support of the applicant's claim for a protection visa are set out at pages 4 to 6 of the Tribunal's reasons. (CB 93-95)
In a statement supporting the applicant's claim for a protection visa he claimed that:
· He married his wife . . . on 1 January 1995 in their hometown Fuqing. They did not meet the legitimate age requirement, which requires a man to be at least 22 years old to be able to get married. After his son was born on 4 September, his wife was detained by the local government and in October 1995 she was forced to undergo a birth control operation. He paid the requested fine of RMB 15,000 in order to register his son.
·
In spite of the birth control operation, four years later his wife fell pregnant again and gave birth to their daughter on
7 March, 1999. They paid a fine of RMB 10,000 voluntarily to avoid further problems.
· The authorities required that either the applicant or his wife undergo a birth control operation. As his wife already had an unsuccessful operation, they worried that the second operation would not be good for her health. The applicant did not want to have such an operation so he left his hometown for a couple of weeks to avoid the operation. . . . They tried various means to stop that by offering bribes, running away and "sometimes we even fight with them." . . .
· . . . His wife is still in China and is planning to travel to a foreign country where she can live peacefully. (CB 93)
The second constituted Tribunal also had regard to the marriage certificate and notice by the Chinese government, which the applicant supplied to the Tribunal after the first hearing, and it also had regard to the evidence given by the applicant at the first Tribunal hearing.
At the second hearing by the Tribunal on 5 March 2007 the applicant claimed that:
a)prior to his wife's sterilisation operation, he was detained for one night in June 2006;
b)the family planning movement kept on visiting him between 2000 and 2003 and even broke his door;
c)the hospital where the applicant's wife underwent the sterilisation procedure "defamed him" by accusing him of bribing the doctor who performed the operation in an attempt to account for its failure, given that his wife later fell pregnant; and
d)on 15 August 2006 the applicant's wife told him that he had been accused of being involved in the disappearance of 200,000 RMB from his ex-employer's account. The applicant noted that the other accused employee was a relative of the mayor.
At the second Tribunal hearing the applicant also submitted that after his son was born his wife was gaoled for two months in April 1996. When queried further, the applicant said it was:
Not a real gaol -
but punishment by the authorities for breaching family planning policy.
When asked by the Tribunal what he meant by:
Not a real gaol -
the applicant said that his wife had been:
put inside -
a temporary detention place.
When asked why he had earlier stated that his wife was gaoled he responded that it was because the Tribunal was now asking him a direct question.
The Tribunal’s decision and reasons
After discussing the application made by the applicant and the evidence before it the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees (1951) as amended by the Protocol relating to the Status of Refugees (1967) (“Convention”).
The Tribunal's decision was based on the following findings and reasons.
Although the Tribunal gave the applicant the benefit of the doubt and accepted that
a)the applicant may have had to pay fines as a result of breaches of China's one child policy;
b)the authorities may have harassed his family and broken his door; and
c)
it was plausible that he was detained for one night at the end of
June 1996,
it did not accept that his wife was gaoled for two months, noting that the applicant's evidence at the Tribunal hearing was internally inconsistent.
The Tribunal also did not accept that the applicant's wife was forced to undergo a sterilisation procedure, noting that the applicant was unable to tell the Tribunal much about the alleged procedure in order for the Tribunal to understand how she could have fallen pregnant again. Accordingly, the Tribunal was not satisfied that the applicant was defamed or that he was accused of bribing the doctor who allegedly performed the procedure.
The Tribunal did not accept that the applicant had been accused of stealing money from his ex-employer, noting that it was odd that his ex-colleague did not tell him about this, telling his wife instead, and that his wife only found out about this accusation in August 2006.
The Tribunal further found that even if the applicant was accused of stealing, there was nothing before it to suggest that any harm feared on this basis was convention related.
The Tribunal was not satisfied that any potential investigations by the authorities or action by the employer would be conducted in a discriminatory manner against the applicant because of the postulated political connection or any other Convention reason.
Although the applicant may have suffered harm as a result of the application of China's one child policy, the Tribunal was satisfied that any harm suffered by the applicant was as a result of a law of general application and nothing in the applicant's profile would result in him being persecuted within the meaning of the Convention if he were to return to China and be subjected to the one child policy.
In essence the Tribunal found:
The Tribunal is satisfied that in the applicant's circumstances, any harm suffered or would be suffered by the applicant does not/would not amount to persecution as stipulated by the convention. The Tribunal is satisfied that the applicant would not receive disproportionate ill treatment amounting to persecution. (CB 97)
Proceedings in this Court
The grounds set out in the application were pleaded as follows:
(1)The RRT decision was affected by jurisdictional error in that the applicant was denied procedural fairness.
(2)The RRT decision was affected by jurisdictional error as the Tribunal incorrectly applied the law.
At the hearing today the applicant made various submissions of which one suggested an additional ground for review, namely that the Tribunal did not consider the applicant's position in 2006.
Dealing with each of these grounds in turn.
Procedural Fairness
The applicant particularises this ground by reference to s.424A(1) of the Act, saying this:
The applicant claims that he suffered persecution due to his breach of one-child policy and the Tribunal found that persons fearing punishment for failure to comply with the one-child policy are not covered by virtue of that alone, refugees. The Tribunal failed to invite the applicant to comment on this information.
In SZBYR v Minister for Immigration & Citizenship [2007] HCA 26, “information” was defined by Gleeson CJ and Gummow, Callinan, Heydon and Crennan JJ at [18] in the following terms:
However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence.
Conclusions are not “information”. This was made clear by their Honours earlier in the passage quoted from SZBYR's case where their Honours quoted with approval the judgment of Finn and Stone JJ in VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471.
Here the applicant appears to be complaining that the Tribunal did not notify him that it had reached the conclusion that persons fearing punishment for failure to comply with the one-child policy were not refugees. To the extent that the ground raises a complaint that the Tribunal did not put the applicant on notice of its thought processes or the conclusion that it reached, no such obligation existed and no breach of the section is disclosed.
Perhaps the applicant may be asserting that the Tribunal ought to have served on him details of the legal position upon which it relied, which is to say it ought to have alerted to him to the status of the law or the authorities which it used to reach its conclusion. However, the authority of SZHCH v Minister for Immigration & Citizenship [2007] FCA 679 at [23] is to the effect that there is no obligation under s.424A to put case law to the applicant.
Otherwise in respect of the Tribunal's decision, the information upon which it relied was information which was supplied by the applicant during the course of the Tribunal hearing - this information falls within the exception found in s.424A(3)(b), or independent country information which falls within the exception found in s.424A(3)(a). No obligation to serve a s.424A(1) notice applied to that information and thus no error is disclosed by the fact that the Tribunal did not do so.
Consequently, jurisdictional error has not been demonstrated in relation to the first asserted ground of review.
The Tribunal incorrectly applied the law
In the second ground the applicant suggests that the punishment or enforcement measures directed towards him by the Chinese authorities were outside the range of normal punishments prescribed by the Chinese birth control law with the consequence that they amounted to discrimination by persecution and the Tribunal erred by not considering that conduct in that context.
The basis for the Tribunal's conclusion that the applicant did not have a well founded fear of persecution in relation to his breach of the one-child policy in China turned on the fact that whatever punishment or ill-treatment he might fear was not a fear arising out of one of the reasons specified in the Convention because he was not a member of a particular social group. So much is made clear by the decision of the High Court in Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225 where Dawson J said at 241:
A particular social group, therefore, is a collection of persons who share a certain characteristic or element which unites them and enables them to be set aside from society at large. That is to say, not only must such persons exhibit some common element, the element must unite them, making those who share it a cognisable group within their society.
It is important to keep in mind that the fear of persecution is not what defines a particular social group. They must be otherwise recognisable or identifiable as a social unit. This was also made clear by McHugh J in Applicant A's case where his Honour said at 263:
. . . Persons who seek to fall within the definition of 'refugee' in article 1A(2) of the convention must demonstrate that the form of persecution that they fear is not a defining characteristic of the "particular social group" of which they claim membership. If it were otherwise, article 1A(2) would be rendered illogical and nonsensical. It would mean that persons who had a well-founded fear of persecution were members of a particular social group because they feared persecution. The only persecution that is relevant is persecution for reasons of membership of the group, which means that the group must exist independently of, and not be defined by, the persecution.
The applicant's assertion that he was to suffer punishment outside the normal range prescribed by the Chinese legislation overlooks the important point that it is only persecution for a Convention reason which activates Australia's protection obligations under the Convention and the Act.
In relation to this issue, McHugh J said in Applicant A's case at 256:
The first respondent has conceded that sterilisation could be the basis of a well-founded fear of persecution by the appellants. But that does not mean that the words "well-founded fear of being persecuted" should be ignored when construing that part of the phrase which is in dispute. The phrase "a well-founded fear of being persecuted for reasons of . . . membership of a particular social group" is a compound conception. It is therefore a mistake to isolate the elements of the definition, interpret them, and then ask whether the facts of the instant case are covered by the sum of those individual interpretations. Indeed, to ignore the totality of the words that define a refugee for the purposes of the convention and the Act would be an error of law by virtue of a failure to construe the definition as a whole.
A passage in the reasons for judgment of Dawson J at page 244 of Applicant A's case is also relevant to the application before the Court today. His Honour there said:
What the appellants in truth object to is not the one-child policy per se, but its enforcement by officials in their area by forcible sterilisation.
For my part, however, I do not see how those considerations assist the appellants, since they merely suggest that the persecution which they fear is serious and may infringe internationally recognised human rights.
That is not the issue in this appeal. The issue here is whether the persecution is for one of the five Convention reasons. Consequently, were it to be accepted that the punishment or ill-treatment which might be meted out to the applicant were he to return to China would be beyond the range of normal punishment prescribed by the Chinese birth control law, that would not be of significance unless the punishment itself was for a Convention reason. Consequently, even had the Tribunal failed to consider the seriousness of the punishment the applicant claims to fear, that would not demonstrate jurisdictional error on its part.
As to the finding itself, namely:
The Tribunal is satisfied that the applicant would not receive disproportionate ill-treatment amounting to persecution,
this is a finding which is sufficiently supported by the evidence so as to have been open to the Tribunal.
I initially had concerns in relation to that element of the applicant's claim relating to his fear of forced sterilisation, but although it does not appear to be information contained in the independent country information cited by the Tribunal in its findings and reasons, it is referred to in a quotation from Applicant A's case appearing in the Tribunal's decision record. As the passages from Applicant A's case quoted in these reasons demonstrate, sterilisation is, or has in the past been, asserted to be one of the consequences of breaches of China's one child policy. For that reason I am satisfied in relation to that element of the finding that there was sufficient basis for it to be made.
2006 events
The applicant asserted that the Tribunal had failed to give consideration to events which he said had occurred in 2006. However, a consideration of the Tribunal's decision record reproduced at CB 95 and 96 demonstrates that the matters referred to by the applicant today were cited by the Tribunal in its recitation of the evidence which the applicant gave and were also specifically considered by the Tribunal in that section of its decision under the heading “Findings and Reasons”.
Consequently, on the facts, this ground is not made out.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 9 October 2007
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