SZJIU v Minister for Immigration
[2007] FMCA 1765
•2 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJIU v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1765 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – applicant not member of a particular social group – allegation of bias and lack of good faith not proven – no need to consider the availability of state protection as applicant had no well-founded fear of persecution for a Convention reason. |
| Migration Act 1958, s.474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Applicant S v Minister for Immigration & Multicultural Affairs (2004) 217 CLR 387 Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 |
| Applicant: | SZJIU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1590 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 2 October 2007 |
| Date of Last Submission: | 2 October 2007 |
| Delivered at: | Sydney |
| Delivered on: | 2 October 2007 |
REPRESENTATION
The applicant appeared in person.
| Counsel for the Respondents: | Mr. J. D. Smith |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
The applicant pay the first respondent's costs fixed in the amount of $4,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1590 of 2007
| SZJIU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of China where, he claims, he is at risk of being hurt by gangsters and senior officers of the Tianjin government. He alleges that while in China he was involved in legal proceedings to sue a company chaired by a criminal and that this subsequently led to him being beaten up and having his life threatened by gangsters and senior officers.
The applicant claims to fear persecution in China because of those legal proceedings which he says makes him a target of gangsters and senior officers of the Tianjin government who want to kill him.
After his arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on
12 April 2006. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
The Tribunal decision the subject of these proceedings is the second decision of the Tribunal in relation to the applicant's protection visa application. A previous decision of the Tribunal was set aside by this Court (Court Book (“CB”) page 51).
In these judicial review proceedings the Court cannot rehear the applicant’s 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 applicant’s claim for a protection visa are set out on pages 4 – 11 of the Tribunal’s decision (CB 87 – 94). Relevantly, they are in summary:
a)the applicant answered a job advertisement which required an investment to be made in a company. The applicant subsequently heard that the chairman of the company was a criminal and also a cousin of Tianjin’s mayor;
b)in an attempt to get his money back the applicant, along with about a hundred other people, joined together and successfully sued the company;
c)when the company refused the pay the group of which the applicant was a member decided to appeal to higher authorities and took their complaint to the special bureau of the PBS which deals with economic problems. It was after this visit that unknown people, whom the applicant believes were sent by the company, beat him up;
d)the applicant then went to Beijing to pursue his complaint;
e)after returning from Beijing to Tianjin an old classmate of his who was a police officer told him he was in trouble and to be careful because important local officials, such as the Tianjin mayor, had become worried that they would be implicated in the case;
f)a week after this warning the applicant was driving his taxi and was fired upon by a cyclist with the bullet penetrating the windscreen and hitting the passenger and back seat; and
g)the applicant claims that after this motorcycle incident the gas tap in the kitchen of his home was fully opened in an attempt to harm him.
The Tribunal’s decision and reasons
After discussing the claims 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:
a)the Tribunal accepted that the applicant was physically assaulted but found that the harm was related to a private grievance about money beyond the scope of the Convention;
b)the applicant claimed that the material he took to Beijing included the results of his further investigations which showed that there were strong “financial connections” between the company and senior Chinese government officials. However the Tribunal found the applicant had provided no further evidence or analysis of these putative corrupt connections and the Tribunal did not accept that the applicant's discussions with the anti-corruption office in Beijing extended beyond that particular financial dispute with the company;
c)the Tribunal considered the applicant's accounts of the shooting and gas incidents and was not satisfied that they could be attributed to agents of the company, the central Chinese government, the local Tianjin government and/or criminal organisations either operating individually or in concert;
d)the Tribunal was not satisfied that the applicant had suffered Convention-related harm in China and was not satisfied that the harm he feared would actually befall him in the reasonably foreseeable future were he to return to China;
e)the Tribunal found that any fears of persecution which the applicant has are not well-founded fears, noting:
i)the applicant's wife and child are living without difficulty in Tianjin;
ii)there are no claims, nor did the evidence suggest, that anyone either official or private had been making enquiries about the applicant since his departure from China;
iii)the other people equally involved with the applicant in the dispute with the company had not been harmed; and
f)the Tribunal also pointed to the fact that the applicant lodged his protection visa application some time after his arrival in Australia and it was of the view that the delay in applying for a protection visa was not by reason of ignorance of the procedures but was more likely to be indicative of the fact that the applicant was not confident that he met the Convention requirements for being considered a refugee.
Proceedings in this Court
In the application filed by the applicant in this Court he alleges that the rules of natural justice have been breached and procedures required by law were not observed. He particularises these allegations by saying:
a)the Tribunal failed to consider the claim made by the applicant and failed to find that he was a member of a particular social group and feared persecution such that he fell within the terms of the Convention;
b)the Tribunal failed to consider the evidence before it and made a finding without evidence when it failed to accept his allegations about the threats on his life;
c)the Tribunal, in any event, wanted to refuse his application; and
d)the reason for the applicant's delay in lodging his protection visa application was either misunderstood or misrepresented by the Tribunal.
At the hearing today the applicant possibly raised a further issue, namely that he was unable to access state protection.
Dealing with each of these grounds in turn:
Failure to consider Convention claim
The test for what amounts to a particular social group was discussed in Applicant S v Minister for Immigration & Multicultural Affairs (2004) 217 CLR 387 at 400 [36] where Gleeson CJ and Gummow, Kirby JJ held that a group would be a particular social group as understood by the Convention if it was identifiable by a characteristic or attribute common to all members of the group which characteristic or attribute was not the shared fear of persecution and which characteristic or attribute distinguished the group from society at large.
In this case the applicant claims persecution because of his own actions and because of the agitation he says he caused as a result of the unfortunately investment which he made in a company in China. The only particular social group which could be the basis of such a claim in the circumstances of these proceedings is one which relates to all the people who pursued the debts owed to them by the company but it is clear that such persecution as the applicant claims is not truly because he is a member of that group but because his actions singled him out for particular attention. As the Tribunal said at page 14 of its decision (CB 97):
The other people equally involved with the applicant in the dispute with the company have not been harmed, even the one man (Mr Yung) with as much information about the dispute as the applicant.
To the extent that the Tribunal essentially found that the applicant was not a member of a particular social group, that was a finding which was open to the Tribunal on the evidence before it but in any event whether the applicant was or was not a member of a particular social group is an issue subsidiary to the question of whether he had a well-founded fear of persecution for a Convention reason. As the Tribunal said at page 14 of its decision (CB 97):
The Tribunal also considers that any fears the applicant may have of being persecuted for his claimed reasons on his return to China are not well-founded fears.
The Tribunal's decision demonstrates that it understood the tests which it was required to apply under the Convention and under the Act. It considered the evidence advanced by the applicant and reached conclusions which demonstrate that it did consider the applicant's particular situation and did so in the context of the tests which it was required to apply.
Consequently, no jurisdictional error is demonstrated in relation to the first asserted ground of review.
Failure of consideration of attempts on life
The first element of this asserted ground of review is that the Tribunal failed to consider the evidence which the applicant placed before it in relation to the attempts on his life which the applicant alleges were made by way of a shot being fired at him when he was driving and the gas being left on at a home he was occupying.
This allegation must fail on the facts given that the Tribunal's recounting of the evidence before it includes adequately detailed references to both those events and at page 14 of its decision (CB 97) the Tribunal expressly states that it had given consideration to the applicant's accounts of those two incidents.
As to the applicant's assertion that the Tribunal made a finding without any evidence, this misunderstands the Tribunal's reasons on this point. What the Tribunal said was that it was not satisfied that the events in question could be attributed to agents of the company or government or criminal organisations operating together or separately. This was not a positive finding but a statement that it had not been convinced by what the applicant had put before it.
Although the applicant does not have an onus of proof in the sense that that term is understood in civil litigation, nevertheless he has to satisfy the Tribunal that he meets the criteria for a protection visa before the Tribunal will vary or set aside the delegate's decision. The Tribunal's finding in relation to the alleged threats on the applicant's life was simply an expression that it failed to be satisfied on that point by the material which had been placed before it. Because of that the second asserted ground of review is not made out.
Bias and lack of good faith
In particular (b) of the application the applicant alleges that the Tribunal refused his application “just because they wanted to refuse it”. He repeated that assertion today in his oral argument. It is unclear from the way the applicant has articulated this allegation whether he alleges bias against the Tribunal in the sense that it had a mind closed to persuasion or whether it failed to make a good faith attempt to exercise the power conferred upon it.
As to whether the Tribunal's mind was closed, the applicant must demonstrate a pre-existing state of mind on the part of the Tribunal which disabled it from undertaking, or rendered it unwilling to undertake, any proper evaluation of the materials before it which were relevant to the decision to be made: Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507.
There is nothing before the Court to support such an allegation and indeed the Tribunal's decision record demonstrates a conscientious attempt on the part of the Tribunal to elicit from the applicant his version of events and the basis of his claims to fear persecution. I find that to the extent that there is an allegation of actual bias on the part of the Tribunal it has not been made out.
To the extent that the applicant alleges that the Tribunal did not undertake a good faith attempt to exercise its power because it simply wanted to refuse his application, the relevant propositions are summarised in SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 at 756 [43] – [46]. The matters which SBBS indicates need to be proven have not been demonstrated on this occasion and I am of the view that the applicant has failed to demonstrate that the Tribunal failed to undertake a good faith attempt to exercise its power.
Delay in lodgement of the protection visa application
The Tribunal found as a matter of fact that the applicant's delay in applying for a protection visa was likely to be indicative of the fact that the applicant has not competently met the requirements for a protection visa. This was a finding of fact which was open to the Tribunal and cannot be reviewed or reversed in this Court in these proceedings. But in any event it was a finding which was not critical to the decision which the Tribunal reached. If anything, it was a conclusion which simply supports the Tribunal's principal conclusion that the applicant did not have a well-founded fear of persecution for a Convention reason. It gave support to that finding but was not the basis of that finding.
State protection
The Tribunal made passing reference at page 14 of its decision
(CB 97), to the fact that Chinese authorities have taken significant steps to reduce the incidence of corrupt practices by state officials. It did not deal in any detail with any need for state protection which the applicant might have claimed he needed but such a consideration was unnecessary given that it found that such fears as he had were not well-founded fears.
Without a well-founded fear of persecution there was no need for the Tribunal to consider whether state protection was available to the applicant. Thus to the extent that the Tribunal did not give close consideration to the question of state protection, no jurisdictional error is demonstrated on account of it.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated and consequently 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: 25 October 2007
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