SZJES v Minister for Immigration
[2006] FMCA 1631
•7 November 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJES v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1631 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – citizen of People’s Republic of China claiming fear of persecution on the ground of political opinion – whether applicant a member of a particular social group – whether Tribunal failed to consider the applicant’s claims – whether Tribunal failed to comply with Migration Act 1958 (Cth) s.424A – whether Tribunal failed to comply with Migration Act 1958 s.425 – relevant independent country information falls within the exclusion contained in s.424A (3)(a) – no reviewable error. |
| Migration Act 1958 (Cth), ss.424A, 425, 474 |
| Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387; [2004] HCA 25 referred to. Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572; [2004] FCAFC 264 followed. SZIWL v Minister for Immigration [2006] FMCA 1416 referred to. SZIUE v Minister for Immigration [2006] FMCA 1551 referred to. SZIHY v Minister for Immigration [2006] FMCA 1599 referred to. |
| Applicant: | SZJES |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2207 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 31 October 2006 |
| Date of Last Submission: | 31 October 2006 |
| Delivered at: | Sydney |
| Delivered on: | 7 November 2006 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Applicant: | Not legally represented |
| Solicitor for the Respondent: | Ms McNamara |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $4,000.00.
I allow six (6) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2207 of 2006
| SZJES |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal signed on 26th June and handed down on 13th July 2006.
The Tribunal affirmed a decision of the delegate of the Minister not to grant the Applicant a protection visa.
The Applicant seeks the following orders:
a)A declaration that the decision is invalid and contrary to law.
b)An order in the nature of certiorari quashing the decision.
c)An order in the nature of mandamus remitting the application for review to the Refugee Review Tribunal for determination in accordance with law.
d)Costs.
Background
The Applicant is a citizen of the People’s Republic of China who arrived in Australia on 23rd October 2005. She applied for a Protection (Class XA) visa on 6th December 2005 but it was refused on 2nd March 2006. On 7th April 2006 the Applicant applied to the Refugee Review Tribunal for review of that decision.
Application for RRT review
The Applicant lodged her application for review at the Sydney registry of the Tribunal on 7th April 2006. She did not supply any documentary evidence with her application. She attended a hearing of the Tribunal on 13th June 2006 and gave evidence with the assistance of a Mandarin interpreter.
The Applicant entered Australia on a Republic of Korea passport using a false name. She claimed to be a citizen of China who left China on 11th October 2005 and travelled to Vanuatu. From there she entered Australia on 23rd October. She claimed to have obtained the false passport from a people smuggler.
The Applicant claimed to be a teacher who had been persecuted because of her political opposition to corrupt officialdom in China. Although she had been a good student and had graduated with distinction, the Applicant found that there was no teaching job available for her when she graduated. She claimed that this was caused by corruption at the Education Bureau, which had a financial deficit, which meant that there were insufficient funds to provide teaching appointments for all the new graduates.
Eventually, after some protests by the students and their parents, the Education Bureau agreed that it would employ all the new graduates within two years. In August 2002, the Education Bureau commenced its promised job allocation. Despite having graduated with distinction, the Applicant found to her dismay that she was not given a preference in the allocation of a teaching appointment. Lesser students who had used their connections to bribe local officials secured appointments to “plum” areas, whilst the Applicant was posted to a remote location.
When the Applicant commenced her teaching career, she found that she was subjected to sexual harassment by local education officials. She and several other young female teachers were invited, or directed, to attend social functions at dance halls where they were plied with alcohol and propositioned. In response to the pressure by corrupt officials, the Applicant claimed that she left China by obtaining a false passport.
At the Tribunal hearing, the Applicant told the Tribunal that her claim for refugee status arose from being a member of a particular social group, but the Tribunal records that she was unable to identify what the group was. The Tribunal Member records this discussion with the Applicant:
I mentioned to the applicant that her claims did not seem to reveal any Convention related matters. I mentioned to the applicant that she was in employment for the time referred to and chose to leave the second school. The problem seemed to be between the applicant and the Education Bureau. The applicant stated that it was not a personal matter as certain people suffer these experiences. I asked the applicant what serious harm she had suffered. She stated that the Education bureau did not keep the promise they made. She stated that the Education Bureau is prone to corruption.
In conclusion the applicant stated that if she continued to live in China, her life and freedom would be “breached”. She stated that the harassment started a long time before she even started her job.[1]
[1] Court Book at page 73
The Tribunal’s findings and reasons
The Tribunal’s findings and reasons are set out on pages 73 and 74 of the Court Book.
The Tribunal accepted that the Applicant is a citizen of The People’s Republic of China and that she was employed as a school teacher. The Tribunal also accepted that the Applicant and many others were disappointed by the delay in finding them teaching appointments and that she expected to secure a position at a different school because of her academic achievement. The Tribunal also accepted that the Applicant was unhappy because of the unwanted attention that she received.
The Tribunal was not satisfied that the Applicant suffered persecution. Also, the Tribunal was not satisfied that the Applicant was a member of a particular social group. The Tribunal referred to the decision of Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387; [2004] HCA 25 where the High Court held at [36] that a “particular social group” would have these characteristics:
a)The group must be identifiable by a characteristic or attribute common to all members of the group.
b)The characteristic or attribute common to all members of the group cannot be the shared fear of persecution.
c)The possession of that characteristic or attribute must distinguish the group from society at large.
The Tribunal referred to country information from the US Department of State, the UK Home Office, Amnesty International and Human Rights Watch, and said:
I should acknowledge that in practice it is not always possible to identify social groups with any confidence. However, based on the country information I have considered…I am not satisfied there is ‘objectively…an identifiable group of persons with a social presence in a country, set apart from other members of that society, and united by a common characteristic, attribute, activity, belief, interest, goal, aim or principle’ or that any such ‘class [of persons targeted] are cognisable objectively as a particular social group.’[2]
[2] Court Book at 74
The Tribunal was not satisfied that any social group that arose from the Applicant’s claims was a particular social group for the purposes of the Refugees Convention. The Tribunal was not satisfied that the Applicant had a well-founded fear of persecution for a Convention reason and affirmed the delegate’s decision.
Application for judicial review
The Applicant commenced proceedings for review on 10th August 2006 and filed an amended application on 6th October 2006. In that amended application the Applicant sets out three grounds of review:
a)The Tribunal failed to consider the Applicant’s claim properly and fairly and made a completely wrong finding. The Applicant claimed that she had also made a claim of persecution because of her political opinion, to which she had referred in her initial statement to the Department of Immigration and Multicultural Affairs.
b)The Tribunal failed to comply with the provisions of s.424A (1) of the Migration Act 1958 by not providing particulars in writing of the country information referred to in the decision to the Applicant for comment, having ensured that the Applicant understood why it was relevant to the review.
c)The Tribunal failed to comply with the provisions of s.425 of the Migration Act by not raising any negative issues with her at the hearing and thereby denying the Applicant the chance to present arguments against those negative issues.
The Applicant did not file a written outline of submissions but made an oral submission to the Court, asserting that the Tribunal should have considered her claim to be a political dissident because of her challenge to corruption and sexual harassment. She also claimed that the Tribunal Member did not tell her whether she accepted her arguments or not. She also expressed the view that if the Tribunal had any doubts about an applicant’s case it should give the applicant an opportunity to argue against those doubts.
The solicitor for the First Respondent Minister, Ms McNamara submitted that the Applicant’s claim in regard to her political opinion was recorded by the Tribunal in its record of claims and evidence at page 69 of the Court Book.[3] The Tribunal recorded that when it asked the Applicant which Convention reason was applicable to her application the Applicant said that she was a member of a particular social group. The Tribunal considered the Applicant’s general claim that she was unhappy about the conduct of the Education Bureau but concluded that the Applicant did not suffer persecution either before she was appointed or during her time at the two schools at which she taught. It is submitted that there is no other construction to be placed on this conclusion other than that it involves a rejection of the Applicant’s claims based on political opinion.
[3] Regrettably, the written submission contains a redundant apostrophe at [13] and [14.1].
Ms McNamara also submitted that, when looking at the Tribunal decision in context, the Tribunal in its findings and reasons dealt implicitly with the broad claims of political opinion and then follows on to consider whether the Applicant was a member of a particular social group.
It is also submitted that the Tribunal did not breach s.424A of the Migration Act, because the independent information to which the Tribunal referred was not about the Applicant and just about a class of persons of which the Applicant is a member. This information is excluded from the operation of s.424A(1) of the act by operation of s.424A(3)(a) (See Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) FCR 572; [2004] FCAFC 264).
Ms McNamara also submitted that there was no breach of s.425 of the Act. The Applicant’s claims of being misled by the Tribunal cannot be sustained.
Conclusions
The Applicant’s claim essentially arises from her dispute with the Education Bureau about her placement as a teacher and about sexual harassment by local officials. Whilst it is clear that the Applicant was treated very badly, it is not difficult to see why the Tribunal was not satisfied that the Applicant had raised any Convention claim.
The Applicant’s first ground, that the Tribunal did not consider her claim “properly and fairly; and particularly the Presiding Member has made a completely wrong finding” is effectively no more than a broad-brush challenge to the Tribunal’s factual findings. The claim that the Tribunal should have considered that the Applicant was claiming persecution as a political dissident cannot be sustained, in my view. The Applicant’s claim in her application for a protection visa that:
I am a refugee because of my political opinions against and my resistance to the corrupted society in China
was not supported by any evidence at all or even argued at the Tribunal hearing. I am not satisfied that it was incumbent upon the Tribunal to follow up that claim when the Applicant herself did not pursue it or even mention it at the hearing. The Tribunal considered the Applicant’s overall factual claims and was not satisfied that a Convention ground arose. Ground 1 does not disclose a jurisdictional error.
There is no breach of s.424A (1) of the Migration Act. The country information referred to by the Tribunal falls squarely within the exception provided by s.424A (3)(a):
(3) This section does not apply to information:
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or another person is a member;
The exclusionary provision of s.424A (3)(a) was considered by the full Court of the Federal Court in Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (supra) where Merkel and Hely JJ held at [138]:
Accordingly, albeit for reasons that differ from those expressed in VHAP and by Beaumont J, we are also of the view that the reference in s.424A(3)(a) to the class of persons is not another criterion to be met but, as is the case with s.5791)(b), is designed to underline the specificity required by precluding any argument that reference to a class could be taken as a reference to all individuals (including, for example, an applicant) falling within it: see VHAP at [14]. It follows that the Magistrate (sic)[4] was in error in failing to find that the relevant country information fell within the exclusion in s.424A (3) (a), and in finding that the RRT failed to comply with s.424A (1).
[4] Their Honours were referring to a Federal Magistrate
The Full Court’s decision in NAMW is, of course, binding on the Federal Magistrates Court. It is clear that the relevant country information referred to by the Tribunal fell within the exclusion in s.424A (3) (a) and there is, consequently, no breach of s.424A (1) and, therefore, no jurisdictional error. The Applicant’s second ground fails.
I might mention in passing that this particular ground alleging a breach of s.424A (1) in relation to independent country information appears to form part of a “standard form” ground that is available to applicants, at least in Sydney. I have had occasion to deal with that same claim in identical terms in a number of cases recently, including SZIWL v Minister for Immigration [2006] FMCA 1416; SZIUE v Minister for Immigration [2006] FMCA 1551; SZIHY v Minister for Immigration [2006] FMCA 1599.
The Applicant’s third ground alleges a breach of s.425 of the Migration Act. The Applicant claims to have been misled because the Tribunal Member did not tell her during the hearing about “negative issues” that the Tribunal had so as to give the Applicant an opportunity to argue against those negative issues. This ground is misconceived. It is no part of the requirement of s.425 that the Tribunal must tell the Applicant that his or her evidence is not persuasive so that the Applicant can then argue with the Tribunal about that situation.
In any event, the Tribunal did raise with the Applicant the fundamental problem with her case, namely that her claims did not seem to reveal any Convention related matters.[5] The Applicant was placed on notice that the Tribunal had this concern.
[5] Court Book at 73
The Tribunal invited the Applicant to attend a hearing and give oral evidence. The Applicant was provided with the services of an interpreter. There is no evidence, or even any claim, that the Applicant was not able to give her evidence or was under any disability which would have prevented her from presenting her case to the Tribunal at the hearing.
There is no breach of s.425 of the Migration Act. The Applicant’s third ground fails.
The Applicant has not made out any jurisdictional error on the part of the Tribunal. I am aware that the Applicant is not legally represented in these proceedings and I have read through the decision and the Court Book with an eye for any suggestion of a jurisdictional error not adverted to by the Applicant. I am unable to discern any jurisdictional error.
The Tribunal decision is a privative clause decision as defined by s.474(2) of the Migration Act. It is final and conclusive and is not subject to the declaration or orders in the nature of certiorari or mandamus that the applicant seeks. The application will be dismissed.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 2 November 2006
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