SZIXI v Minister for Immigration
[2006] FMCA 1610
•17 October 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIXI v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1610 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant the applicant a protection visa – applicant is a citizen of the People's Republic of China – applicant claims fear of persecution for practising Falun Gong – credibility – no jurisdictional error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.36(2), 91R, 474(2), 476, 477 |
| Minister for Immigration & Multicultural & Indigenous Affairs v VBAO of 2002 [2004] FCA 1495 |
| Applicant: | SZIXI |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1603 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 17 October 2006 |
| Date of Last Submission: | 17 October 2006 |
| Delivered at: | Sydney |
| Delivered on: | 17 October 2006 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Counsel for the Respondents: | Mr Jordan |
| Solicitors for the Respondents: | Blake Dawson Waldron |
ORDERS
The application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $3,700.00 and I will allow four (4) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1603 of 2006
| SZIXI |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Application
This is an application for review of a decision of the Refugee Review Tribunal. The decision was signed on 5th April, and handed down on 27th April 2006. The Tribunal affirmed the decision of the delegate of the Minister not to grant the applicant a protection visa. The applicant seeks writs of certiorari, mandamus and prohibition so as to have the Tribunal decision set aside and to have his application sent back to the Tribunal for determination according to law. He seeks writ of prohibition to prevent the Minister from acting on the Tribunal’s decision.
The applicant is a citizen of the People’s Republic of China, who arrived in Australia on 20th November 2005 and applied for a protection (Class XA) visa on 2nd December. The original application claimed a well founded fear of persecution on the ground of being a Falun Gong practitioner, but the applicant told the Tribunal that was not in fact the case. He told the Tribunal, and the Tribunal accepted, that his migration agent had advised him to make this false claim.
The applicant’s real claim for protection is as a result of heavy fines imposed upon him for breach of China’s one child policy.
A delegate of the Minister refused the applicant’s visa on
20th December 2005, and on 16th January 2006 the applicant applied to the Tribunal for a review of that decision. The Tribunal invited the applicant to attend a hearing and to give oral evidence, which he did on Tuesday, 25th February. It was at that stage that the Tribunal discovered that the account of being a Falun Gong practitioner was not correct, and that the applicant sought protection on the basis of the heavy fines imposed on him for breach of the one child policy. He told the Tribunal, and the Tribunal accepted that he in fact had five children. The Tribunal asked the applicant about his work history, and about the number of his children. The applicant told the Tribunal the eldest child was born in 1983, and the youngest of the five was born in 1990.
He was not fined for the second child, but was fined for the third and fourth children.
The Tribunal’s findings and reasons are set out on pages 73 through to 75 of the court book. The Tribunal accepted the applicant’s claim that he had been advised by his migration agent to make a full statement relating to his association with Falun Gong. The Tribunal decided to ignore or disregard those claims, and decided the application on the basis of the applicant’s oral evidence to the Tribunal, including the fundamental claim that he has five children. The Tribunal considered it to be extraordinary that the applicant did not mention on his application for a protection visa that he had five children, but noted the applicant’s explanation that he had followed the instructions of his migration agent and did not mention the children. The Tribunal commented at page 73:
The applicant seemed genuine in his claim that he had simply followed the instructions of his agent, however foolishly.
The Tribunal found that it was more probable than not that the applicant may have five children, in spite of the one child policy.
The Tribunal then went on to consider the question of whether or not the applicant was subject to persecution, but found there was no evidence that the applicant was subject to any specific discriminatory measures that would constitute persecution in the sense envisaged under the Act. The Tribunal considered the definition of persecution under s.91R(1)(b) of the Act that the persecution involve serious harm for the person, and considered in s.91R(2) a non-exhaustive list of the type and level of harm that would meet the serious harm test.
That includes under s.91R(2)(d) significant economic hardship that threatens the person’s capacity to subsist.
The Tribunal referred to the definition of serious harm and Marshall J’s comments on it in Minister for Immigration & Multicultural & Indigenous Affairs v VBAO of 2002 [2004] FCA 1495 at [41]. I am told by counsel for the respondent Minister that the decision in VBAO of 2002 (supra) is the subject of an application for special leave in the High Court of Australia, and in fact special leave was granted but no decision has been handed down. In my view nothing would appear to turn on that, and I do not consider it appropriate to wait until the High Court hands down its decision.
The Tribunal was not satisfied that the applicant was subject to persecution because of his breaches of the one child policy.
The Tribunal found on the evidence that the applicant did not face a real likelihood of persecution on his return to China for breaches of the policy. The Tribunal based this on the fact that the evidence led the Tribunal to conclude that while the applicant may well have breached the policy; he had not been subject to any measures that would constitute persecution under the Act. The Tribunal noted that fines had been levied against the applicant that they were unpaid and the birth of the applicant’s last child was 15 years ago.
The Tribunal also noted that the applicant had submitted a certificate of baptism in the Catholic Church, but made no claims relating to religion. The Tribunal at page 75 invited the applicant to make any submission he may have regarding the baptism certificate, but the applicant did not respond to the invitation.
The Tribunal was not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol, and therefore did not satisfy the criterion set out in s.36(2) of the Act for a protection visa.
The applicant commenced proceedings for judicial review by means of an application filed in this court on 5th June 2006. He set out in his application that he had received notification of the Tribunal decision on 8th May 2006. He applied for an extension of time under s.477 of the Migration Act in order to make the application. It is my view, however, that his application was within time and he requires no extension. Counsel for the first respondent Minister concurred in that view.
Two other preliminary points have been brought to my attention, and quite properly so. First of all, the ground of the application says, and I quote:
The respondent’s delegate committed a jurisdictional error by relying on invalid evidence in determining the protection visa criteria.
Quite clearly the Court has no jurisdiction under s.476 of the Migration Act to review a decision by a delegate. The Court has no jurisdiction in respect of a primary decision. It was not opposed by counsel for the respondent that I should permit the applicant to rely not on any claim of jurisdictional error by the delegate, but on a claim of jurisdictional error by the Tribunal. It is quite clear from the balance of the application that that is what the applicant intended.
The application at times refers to the Migration Review Tribunal rather than the Refugee Review Tribunal. That was corrected in one instance, but remained uncorrected in another. It is my view that the applicant at all times intended to refer to the Refugee Review Tribunal and not the Migration Review Tribunal.
The applicant did not file any written submissions, but in oral submissions told the Court that he and his wife had five children and feared persecution because of heavy fines imposed on people who breach the one child policy. He said that the government in China has been very stringent in respect of people who breach the policy. In my view that amounts to a challenge to the Tribunal’s factual conclusions, and is in fact a restatement of his factual claims. The Court has no power on judicial review to conduct what is in effect a merits review of the Tribunal’s factual findings.
It is submitted on behalf of the respondent Minister that the Tribunal’s findings were open on the evidence, and the decision does not disclose any jurisdictional error.
In my view there is evidence upon which the Tribunal’s finding is firmly based. I would comment that the Tribunal appears to have given the applicant the benefit of the doubt as far as his claim for fear of persecution because of breach of the one child policy is concerned. This claim only emerged at the Tribunal hearing after the applicant admitted that he had followed the agent’s erroneous advice to make a false claim of persecution on the ground of being a Falun Gong practitioner. The Tribunal accepted his explanation and has made no adverse credibility findings against the applicant. What the Tribunal has done is consider that the applicant may well have five children and has been subject to fines in respect to the birth of some of them, but on the basis of the last child having been born some 15 years before the applicant left China, the applicant and his family have managed to survive without significant economic hardship that threatens their capacity to subsist.
As the Tribunal said:
The applicant has not been able to persuade the Tribunal that his life in China for the last decade and a half has been one marked by persecution and for which reason he is unable or unwilling to return to the country.
In my view there is strong evidence to support the Tribunal’s conclusion.
The Tribunal also noted, as I said, that the applicant had submitted a certificate of baptism in the Catholic Church, but had made no claims relating to fear of persecution because of his religion. The Tribunal in fact invited the applicant to make any submissions that he might have regarding the baptism certificate, but the applicant did not respond to that invitation.
There is no jurisdictional error. I am mindful of the fact that the applicant is not legally represented. I have read through the decision independently in order to ascertain whether any jurisdictional error might be disclosed that the applicant has not brought to my attention. There is none.
I would comment that the Tribunal appears to have gone out of its way to extend to the applicant every chance to establish fear of persecution for a convention reason. Whilst it is well established that the common law natural justice hearing rule does not apply in respect of Tribunal hearings, the Tribunal certainly could not have been accused of any breach of natural justice. It appears to have conducted this particular hearing with exemplary fairness and consideration.
There is no jurisdictional error. The application will be dismissed because the Tribunal decision is a privative clause decision as defined under s.474(2) of the Migration Act. Consequently the decision is not subject to certiorari, mandamus or prohibition. I will dismiss the application.
There is an application for costs on behalf of the first respondent Minister. The applicant has been wholly unsuccessful in his claim, and there is no reason why I should not make a costs order in favour of the Minister. The amount sought is $3,700.00 which includes counsel’s fees. It is a very reasonable figure in the circumstances and is quite appropriate. The applicant says that he does not have the money to meet that amount, and I have no reason to disbelieve that. That is not however a reason not to make a costs order, but I will take it into account in assessing time to pay.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 26 October 2006
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