SZJJP v Minister for Immigration
[2007] FMCA 1510
•12 September 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJJP v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1510 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – applicant is a citizen of China claiming fear of persecution because of her activities as a trade union member - no jurisdictional error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424A, 474 |
| NAJT v Minister for Immigration & Multicultural Affairs (2005) 147 FCR 51 NABE v Minister for Immigration & Multicultural Affairs [2004] FCAFC 263 ReMinister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 |
| Applicant: | SZJJP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2662 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 13 February 2007 |
| Date of last submission: | 13 February 2007 |
| Delivered at: | Sydney |
| Delivered on: | 12 September 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr Zipser |
| Solicitors for the Applicant: | Nil (direct brief) |
| Counsel for the Respondent: | Ms McNaughton |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The title of the First Respondent is changed to Minister for Immigration & Citizenship.
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $4,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2662 of 2006
| SZJJP |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision by the Refugee Review Tribunal affirming a decision of a Delegate of the Minister not to grant the Applicant a protection visa. The decision was signed on 2nd August 2006, and handed down on 15th August 2006.
Background
The Applicant is a Citizen of the People's Republic of China who arrived in Australia on 16th November 2005. She applied to the Department of Immigration & Multicultural Affairs for a Protection (Class XA) visa on 16 December 2005.
On 16th March 2006 a Delegate of the Minister refused to grant the Applicant a visa. The Applicant applied to the Refugee Review Tribunal on 21st April 2006 seeking a review of the Delegate's decision. On that date the Applicant's Migration agent wrote to the Tribunal providing the Applicant's application for review. The application for review was not accompanied by any supporting material.
The Applicant husband has lodged no specific Convention-related claims of his own, and he was an Applicant on the basis that the fate of his application depended on the outcome of the Applicant wife's application.
The Tribunal wrote to the Applicant's Migration agent on 29th April 2006 acknowledging receipt of the application and advising her that she may be invited to attend a hearing at the Tribunal.
On 23rd June 2006 the Tribunal wrote to the Applicant's Migration agent inviting the Applicant to attend a hearing at 2:00 pm on 14th July 2006. The letter also advised the Applicant that she should inform her husband about the letter, and that any reply would be regarded as a joint response. On 26th June 2006 the Applicant responded to the invitation in writing saying that she wished to attend the hearing and that she would require a Mandarin interpreter. The Applicant attended the hearing along with her husband.
On 18th July 2006 the Tribunal wrote to the Applicant's Migration agent inviting the Applicant to comment on certain information. It appears that this letter was written to comply with the requirements of s.424A of the Migration Act. The letter began:
The Tribunal has information that would, subject to any comments you make, be the reason, or part of the reason, for deciding that you are not entitled to a protection visa.
The letter then set out six items of information upon which comment was sought.
a)The first item concerned the evidence of the Applicant's husband to the Tribunal on 14th July 2006.
b)The second item concerned the evidence that the Applicant gave to the Department of Immigration & Multicultural Affairs about the length of time that she stayed at her apartment.
c)The third item was a claim made by the Applicant's husband about selling and moving out of the apartment, which appeared to contradict the Applicant's information to the Department.
d)The fourth item related to a response given as part of the Applicant's evidence at the hearing on 14th July 2006.
e)The fifth item was a claim made by the Applicant's husband about his business having been damaged.
f)The sixth item concerned the Applicant's evidence of having begun an affiliation with the Jehovah's Witnesses.
The Tribunal's letter set out in each case why the Tribunal considered the information to be relevant, and the Tribunal also drew the attention of the Applicant to the provisions of s.91R of the Migration Act. Section 91R(3) of the Act states:
(3) For the purposes of the application of this Act and the regulations to a particular person:
(a) in determining whether the person has a well‑founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;
disregard any conduct engaged in by the person in Australia unless:
(b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.
The Tribunal's letter invited the Applicant to comment in writing on that information by 1st August 2006.[1]
[1] See Court Book pages 80-82.
On 1st August 2006, the Applicant, through her Migration agent, replied to the Invitation to Comment with a statutory declaration by the Applicant and some photos in relation to the Applicant's activities with the Jehovah's Witnesses.
On 14th July 2006, the Applicant and her husband attended a hearing before the Tribunal. A copy of the Tribunal decision record can be found at pages 94 through to 109 of the Court Book. The Applicant told the Tribunal that she claimed fear of persecution in China because of her political opinion and religion. The Applicant identified herself as a Christian in her visa application but made no claims as to her religion.
The Tribunal noted that on 1st August 2006, the Applicant had responded to a s.424A letter from the Tribunal confirming that her claim was mainly based on her political opinion and political actions. The Tribunal noted that the Applicant's claims related to a dispute in which she became involved in her former workplace. The Applicant informed the Tribunal that her former employer told her to take on the position of Deputy Secretary of the Worksites Workers Union. She said she was forced to take on this position by her employer. The Applicant told the Tribunal that she was ordered by the company to handle the issue of compensation for retrenched workers, and said that her employer persecuted her when she did so.
The Applicant told the Tribunal that she undertook her duties reluctantly. The Applicant claimed that due to a colleague's suicide she changed her view about the unwanted role and decided to demand a better compensation package for her retrenched colleagues. As a result of her demand the Applicant claimed that she was sacked from her job. The applicant told the Tribunal that because of her sacking, a group of work colleagues organised a public demonstration without her knowledge demanding that she be reinstated as their union Deputy Secretary. The Applicant claimed that she was gaoled for two months as a result of the demonstration.
The Applicant and her husband claim that in November of 2005 the husband was forced to close his company because of the Applicant's stance in relation to her retrenched colleagues. The Applicant’s husband also gave evidence at the hearing. The Tribunal noted that he gave his evidence in the presence of the Applicant, and the purposes of this was so that later in the hearing if the Applicant wished, the Applicant could comment on his evidence.
The Tribunal’s Findings and Reasons
The Tribunal's findings and reasons can be found in the Court Book at pages 107 through to 109. The Tribunal considered the evidence and found there was no credible evidence that supported the Applicant's claim that:
She played any real, active integral part in negotiating workers' severance conditions in the PRC, let alone that this led to her sacking, or her arrest or her husband's destruction in business.[2]
[2] See Court Book at page 107
The Tribunal did not accept the Applicant's evidence that she changed her approach to her unwanted position because of the suicide of a colleague. The Tribunal found the Applicant's evidence to be vague and implausible. Again, the Tribunal was not satisfied that the Applicant had explained why she was involved with the Jehovah's Witnesses group.
The Tribunal found that it was left with evidence from the Applicant that she was associated with the group for reasons that the Applicant could not credibly maintain. As a result, the Tribunal concluded that the Applicant associated with the group purely to strengthen her claim for a protection visa.
Certainly, the Tribunal accepted, on the basis of the Applicant's passport presented at the hearing, that the Applicant was a national of the People's Republic of China, and addressed her claim in respect of that basis. The Tribunal was prepared to accept that the Applicant and her husband were unemployed for a period of time, certainly by the time they applied for their Australian visas, but all in all, the Tribunal was not satisfied that the Applicants faced a real chance of Convention-related persecution in the People's Republic of China, and was not satisfied that the Applicants' fears of persecution which they claimed were well-founded, and found they were not refugees.
The Tribunal affirmed the decision not to grant the Applicants' Protection (Class XA) visas.
Application for Judicial Review
The Applicant filed an application for review in this Court on 20th September 2006 supported by an affidavit. In that application the Applicant, who was the wife, seeks the following orders:
a)that the decision of the Tribunal be quashed;
b)that the matter be remitted to the Tribunal for determination according to law; and
c)costs.
The application contains a number of grounds which I will summarise as follows:
i)The Applicant was detained by the PSB for nearly two months and was denounced for spreading anti-Government ideologies and organising anti-Government protests. In order to save her, her husband spent a lot of money in order to seek some contacts with the PSB so she could be released. The Tribunal did not refuse her claims. The Tribunal fell into jurisdictional error in making the finding.
ii)The Applicant claimed to have produced evidence of having begun an affiliation with the Jehovah's Witnesses, and claimed in her protection visa application to the Department of Immigration & Multicultural Affairs that she was a Christian. The Tribunal said that that claim may lead the Tribunal to conclude that the Applicant's claims about being a Christian were either exaggerated or misleading, or of no significance to her protection prospects in the PRC. The Tribunal fell into jurisdictional error in making the finding.
The Applicant was represented at the hearing by Mr Zipser of counsel. The Applicant submitted that she had two complaints about the Tribunal's decision. First, the Applicant's husband gave evidence that in order for the Applicant and her husband to get passports to leave China the Applicant's husband's friend was an officer of the police who helped them to obtain clean police records. The Tribunal did not make an adverse credibility finding in relation to the husband, nor did the Tribunal reject this evidence from the husband. Accordingly, it appears that the Tribunal accepted that evidence.
Mr Zipser submitted that the Tribunal found:
On the evidence before it that the Applicants had no difficulty obtaining the authorisation from the PSB and the Ministry of Foreign Affairs to travel out of the PRC.[3]
The fact that the Applicant and her husband had no difficulty obtaining their authorisation from the PSB and the Ministry of Foreign Affairs to travel out of the PRC was relevant to the Tribunal's subsequent findings that it did not believe the Applicant's claims.
[3] See Court Book at page 107
It was submitted on behalf of the Applicant that the husband's evidence, which the Tribunal did not reject, that his friend who was a police officer helped the Applicant obtain a clean police record in order to leave China was relevant to the Tribunal's findings concerning the ability of the Applicant and her husband to obtain their authorisation from the PSB and the Ministry of Foreign Affairs to travel out of the People's Republic of China, yet the Tribunal gave no consideration to this evidence in its findings concerning the ability of the Applicant and her husband to depart China lawfully.
In the circumstances the Tribunal failed to have regard to relevant considerations giving rise to jurisdictional error. The Applicant referred the Court to the decision in NAJT v Minister for Immigration & Multicultural Affairs[4].
[4] (2005) 147 FCR 51 at [205]-[213]
The Applicant's second complaint about the Tribunal's decision was that the Applicant gave evidence that she was ‘continually harassed by the police after release in December 2004.’[5] The Tribunal, while rejecting the Applicant's claims that she was sacked or arrested, failed to deal with the Applicant's claim that she was continually harassed by the police after release. Where the Tribunal fails to deal with a claim advanced by an applicant, there is jurisdictional error.[6]
[5] See Court Book at page 85
[6] NABE v Minister for Immigration & Multicultural Affairs [2004] FCAFC 263 at [55]-[68]
On behalf of the First Respondent, the Minister, Ms McNaughton of counsel submitted that the Tribunal had found the Applicant's claims based on her political opinion to be the product of fabrication.[7] It set out detailed reasons for coming to this conclusion under its findings and reasons at pages 106 to 108. In particular, the Tribunal noted inconsistencies in the Applicant's evidence and the evidence of the husband which was the subject of the s.424A letter to which I have previously referred. It also found that the Applicant's evidence relating to the detail of the actions taken as a union officer were vague and implausible.
[7] Court Book page 107
As to the claim relating to the Applicant's religious affiliation, the Tribunal did not accept the Applicant's account of why she became involved with the Jehovah's Witnesses in Australia, and invoked the provisions of sub-section 91R(3) of the Act in giving no weight to the evidence that the Applicant gave on that topic. In any event, the Tribunal noted that the Applicant, herself, attached little significance to her claim.[8]
[8] Court Book page 108
As to the grounds in the Applicant's application, Ms McNaughton submitted that ground 1 appeared to be seeking to review the merits of the Tribunal decision, and this is not an available basis for review in this Court. She submitted that the Tribunal's approach and the conclusions it made were properly open to it on the material before it, and referred the Court to ReMinister for Immigration & Multicultural Affairs; Ex parte Durairajasingham[9] and Kopalapillai v Minister for Immigration & Multicultural Affairs[10].
[9] (2000) 168 ALR 407 at [67]
[10] (1998) 86 FCR 547 at 558-559
As to ground 2, Ms McNaughton submitted that it was not immediately apparent what the Applicant was claiming in that ground, but it appeared to refer to the s.424A letter. She submitted that when the portion of the letter referring to the Applicant's affiliation with the Jehovah's Witnesses is read in full it is clear that the Tribunal is seeking the Applicant's comments on various aspects of this part of the claim, and no error is shown in the Tribunal's approach.
At the hearing before me Mr Zipser submitted that a perusal of page 85 of the Court Book, where the Applicant's statutory declaration appears in response to the s.424A letter, shows that the Applicant had made a further claim. She said at paragraph 2 of the statutory declaration:
As I have mentioned above I have continually been harassed by the PSB even if I was released in December 2004. That was the main reason why my husband to decide to try every means for arranging me to go to the overseas.
Mr Zipser submitted that the Tribunal rejected the evidence of the Applicant's sacking and arrest, but did not refer to the claim of harassment by the police, and this appears at page 107 of the Court Book.
In reply, Ms McNaughton submitted that the Tribunal's decision relating to the Applicant's evidence shows at pages 100 and 101 that the Tribunal did not accept the full import of the husband's evidence. The Tribunal found that the Applicant's evidence was not consistent. Thus, it was submitted that the Tribunal in its findings and reasons reject, in effect, parts of the husband's evidence, and that the Tribunal did not accept the husband's evidence about the destruction of his business as well as the Tribunal did not accept the wife's evidence.
As to the post-hearing submission, being the Applicant's statutory declaration in reply to the s.424A letter, Ms McNaughton submitted that the Tribunal's findings and reasons at page 107 of the Court Book contained a global rejection of the evidence of both parties where the Tribunal had referred to the evidence elsewhere in the decision, but not in the findings and reasons. The Court should be loathe to find that the Tribunal has not considered the Applicant's evidence in respect of a particular point.
In considering the decision, it is clear that the Tribunal did not accept the key parts of the Applicant's claim. It did not accept that the Applicant played any real active integral part in negotiating workers' severance conditions, let alone that this led to her sacking or her arrest, or the destruction of the husband's business.
The Tribunal did not accept the Applicant's claim that she was reluctantly drafted into the role of union focal point, and that she then worked unilaterally as she claimed. The Tribunal stated that it was not impressed by the suggestion that the suicide of the Applicant's colleague changed her whole approach to her unwanted role, and the Tribunal described the Applicant's evidence as to relevant processes and structures as vague and implausible, and described her evidence of reactions to proposals and protests as also vague and implausible. The Tribunal found:
It follows that the Tribunal cannot accept that the Applicants gained a relevant profile with the PSB, let alone one that they had to take unusual measures to neutralise so that they could escape persecution in the PRC. The Tribunal finds that the Applicants’ ‘political opinion’ claims the production of fabrication and it also finds that they do not sit with general country information about the retrenchment debate in the PRC.[11]
[11] See Court Book at page 107
In my view, that particular quoted piece of evidence is a clear indication that the Tribunal rejected the totality of the Applicant's claims about persecution by the PSB, whether it be arrest or detention or harassment post-release, and consequently, I am not satisfied that the Tribunal had failed to deal with a claim advanced by an applicant, and I am not satisfied that the Tribunal fell into jurisdictional error on that account.
I am not satisfied also that the Tribunal failed to consider the evidence of the husband about the Applicant's ability and that of her husband to leave China lawfully. In my view, the Tribunal considered and rejected that evidence. I am satisfied, therefore, that no jurisdictional error has been made out. It follows that the Tribunal decision is a privative clause decision, and is not therefore subject to orders in the nature of certiorari or mandamus as the Applicant claims. I propose to dismiss the application.
I note that I have previously made an order that the title of the Minister was to be changed from the Minister for Immigration & Multicultural & Indigenous Affairs to Minister for Immigration & Multicultural Affairs. I made that order on 16th October 2006. The title of the Minister has changed since then. I propose, therefore, to order that the title of the Minister be changed to reflect the Minister's current title; namely Minister for Immigration & Citizenship.
I also order that the application is to be dismissed. I will also consider the question of costs. I note that both parties were legally represented, and I will hear submissions as to costs.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 6 September 2007
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