SZJOF v Minister for Immigration
[2007] FMCA 1896
•19 November 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJOF v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1896 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal failed to consider that a chance of persecution could be well below 50 percent and still be well-founded. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424A; 424A(1); 424A(3); 474 |
| Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 Abebe v Commonwealth of Australia (1999) 162 ALR 1 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 |
| Applicant: | SZJOF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3084 of 2006 |
| Judgment of: | Emmett FM |
| Hearing date: | 9 November 2007 |
| Date of last submission: | 9 November 2007 |
| Delivered at: | Sydney |
| Delivered on: | 19 November 2007 |
REPRESENTATION
| Applicant appearing on his own behalf |
| Counsel for the Respondent: | Mr T. Reilly |
| Solicitors for the Respondent: | Mr P. d’Assumpcao, Australian Government Solicitor |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3084 of 2006
| SZJOF |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant claims to be entitled to a protection visa on the basis of a fear of persecution from the Public Security Bureau (“the PSB”) in the People’s Republic of China (“the PRC”) by reason of imputed political opinion.
The Applicant is a citizen of the PRC who entered Australia on a false Portuguese passport in a false name on 4 January 2006.
The Applicant’s Protection Visa Application
On 7 February 2006, the Applicant lodged an application for a protection visa. In support of the protection visa application the Applicant’s migration agent provided a summary of the Applicant’s claims.
The Applicant claimed that in late 2006 he and his partner decided to open a restaurant in Dongzhoukeng in the province of Guangdong. The Applicant stated that, when he and his partner went to Dongzhoukeng on 2 December 2006, they observed disputes between the villagers and the village leaders regarding land compensation and many villagers were protesting against the land confiscation.
The Applicant stated that on 6 December 2006 the PSB sent staff to the village to disperse a protest. However, the villagers stood firm and two villagers were arrested. Later during the day, the Applicant stated that armed police and military tanks entered the village. The Applicant and his partner remained with the crowd. The Applicant stated that night the crowd was shot at and one villager was killed and one injured.
The Applicant stated that he was allowed to proceed home after the police had sighted his identification card and written down the numbers.
The Applicant claimed to have had conversations with one of the leaders of the protest who rang him several hours after the protest and told him that armed police had come to that leader’s home and asked the Applicant’s whereabouts. The Applicant stated that he then telephoned his home and was told that the local police had come to his home twice and asked where he went. The Applicant stated that he then decided to leave and travel overseas. He stated that a friend assisted him to obtain a Portuguese passport and enter Australia on a visitor’s visa.
The Delegate’s decision
On 8 May 2006, a delegate of the then Department of Immigration and Multicultural Affairs refused the Applicant a protection visa on the basis that he is not a person to whom Australia has protection obligations. The delegate found that the Applicant did not have a profile that would make him of adverse interest to authorities and therefore his fear was not well-founded.
The Review by Refugee Review Tribunal
On 8 June 2006, the Applicant lodged an application for review of the delegate’s decision with the Refugee Review Tribunal (“the Tribunal”). In support of his application the Applicant provided a photocopy of a Chinese passport issued on 21 September 2004 issued in Guangdong and an original Chinese identification card. He also provided two copies of reports of the incident in which he claimed to have participated.
The Applicant attended a hearing before the Tribunal at which he expanded upon his claims. The Tribunal noted the Applicant’s written claims in support of his protection visa application and cited part of the Applicant’s evidence in its decision.
The Tribunal’s record of its exchanges with the Applicant disclose that the Applicant believed that the police were looking for scapegoats and that, if he was to return to the PRC, he would be used as a scapegoat and charged with inciting to riot. The Applicant told the Tribunal he believed he would be charged because he had been told that the PSB was looking for him. The Tribunal noted that it put to the Applicant that it was normal police practice after such events for police to seek to establish who was present at the time of an incident. The Tribunal noted the Applicant’s response “in China the officials are always on top and ordinary people have no say. If you are accused of a crime then that is what they will say.” The Tribunal noted the statement from the Applicant’s migration agent that he had learned on the internet that some people in Dongzhoukeng had been charged and sentenced to 2 to 5 years for disturbing the public order.
In accordance with the Applicant’s evidence, the Tribunal found that the Applicant was not in Dongzhoukeng on 6 December 2005 for any political reason.
However, the Tribunal noted that it must consider whether in the minds of the PSB the Applicant’s presence at the riot would make him a person of interest by reason of an imputed political opinion.
The Tribunal accepted that the PSB, allowed the Applicant and his business partner to leave and recorded their identification numbers and sought to contact the Applicant after he had left the village. The Tribunal did not accept as credible the Applicant’s claim that he was wanted by the PSB for inciting the riot in circumstances where the Applicant’s evidence was that neither he nor his business partner had any direct contact with the PSB.
The Tribunal did not accept as credible the Applicant’s claim of being a scapegoat in that there had already been arrests arising out of the riot.
The Tribunal accepted that the Applicant may have a subjective fear of the authorities in the aftermath of the riot, however, the Tribunal found that there was no Convention nexus in respect of the Applicant’s fears. In particular, the Tribunal noted the Applicant’s evidence that he and his business partner had been allowed to leave the village after having been stopped at a police road block, even though their details had been taken.
The Tribunal concluded that at no time was the Applicant regarded as a suspect even though the riot was barely over and the police were rounding up suspects. The Tribunal found that the Applicant was therefore not a person of interest to the authorities for suspected involvement in the riot.
The Tribunal accepted that the Applicant departed the PRC using a false passport. The Tribunal noted that, if the Applicant were to return to the PRC, he may well be arrested for breaking the PRC’s immigration laws. However, the Tribunal found that these were laws of general application and did not accept that an arrest for that reason led to an inference that the Applicant left the PRC because of his political opinions. Applicant A & Anor v Minister for Immigration and Ethnic Affairs & Anor (1997) 190 CLR 225 per McHugh J at 258 referring to Yang v Carrol (1994) 852 F Supp 460 at 467:
“…The feared persecution must be discriminatory… it must be “for reasons of” one of the proscribed categories. This qualification excludes persecution which is no more than punishment of a non-discriminatory kind for contravention of a criminal law of general application. Such laws are not discriminatory and punishment that is non-discriminatory cannot stamp the contravener with the mark of “refugee”.”
The Tribunal was not satisfied that the Applicant had a well-founded fear of persecution if he were to return to the PRC “now or in the foreseeable future”. The Tribunal affirmed the decision under review.
The proceeding before this Court
On 23 October 2006, the Applicant filed an application in this Court for judicial review of the Tribunal’s decision pursuant to s.39B of the Judiciary Act 1903 (Cth). The grounds are identified as followed:
“1. The Tribunal’s finding that the applicant does not have a “well founded fear” containes (sic) judicial error.
Particulars:
The Tribunal accepted that the applicant could have had a subjective fear of the authorities in the aftermath of the Dongzhou indident (sic) as they have a reputation for heavy handed action in riot situation. However, the Tribunal did not accept that such fear was well founded. By reaching such finding the Tribunal failed to follow the rulling (sic) that a person can have a well-founded fear of persecution even though the possibility of the persecution is well below 50 percent.
2. The RRT failed to afford the applicant procedural fairness as it failed to invite the applicant to comment on information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision under review. By failing to invite the applicant to comment the Tribunal acted in breach of the S424A of the Act.”
The Applicant appeared at a hearing before this Court without representation, however, had the assistance of an interpreter. The Applicant confirmed that he relied upon the grounds identified in his application. The grounds were interpreted for the Applicant’s assistance and he was invited to make submissions in support of the grounds and in support of his application generally. The Applicant declined to make any meaningful submission.
The Court also asked the Applicant what was the information to which he referred in ground 2 and of which he claimed the Tribunal was bound to give him notice, in accordance with s.424A. The Applicant had no response.
Ground 1 appears to contend that the Tribunal failed to have regard to the fact that a person’s fear of persecution can be well-founded even though the possibility of persecution is “well below 50 percent”. However, the Tribunal clearly referred to that possibility in its decision where the Tribunal considered what a well-founded fear of persecution involved from a legal perspective. In particular, the Tribunal said as follows:
“… an applicant’s fear of persecution for a Convention reason must be a “well-founded” fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a “well-founded fear” of persecution under the Convention if they have genuine fear founded upon a “real chance” of persecution for a Convention stipulated reason. A fear is well-founded where there is a real substantial basis for it but not if it is merely assumed or based on mere speculation. A “real chance” is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.”
This reference by the Tribunal to the law is consistent with the High Court in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 429 and Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 571-572.
A fair reading of the Tribunal’s decision does not suggest that it did not apply the law to which it referred.
The Tribunal identified with particularity all the claims made by the Applicant.
The Tribunal gave careful consideration to the oral evidence of the Applicant. The Applicant’s evidence led the Tribunal to conclude that the Applicant was in the wrong place at the wrong time, rather than participating in the riot because of any political opinion held by the Applicant. The Tribunal found that the PSB allowed the Applicant to leave the village following the riot although recorded his details. The Tribunal found that such action on the part of the PSB did not suggest that the Applicant was a person of interest to the PSB in relation to the riot. This was particularly so, in circumstances where the Tribunal was arresting people during the night whom it believed to have been involved in the riot.
The Tribunal was not satisfied that there was any political opinion imputed to the Applicant that would lead to the Applicant’s persecution by the PSB for that reason.
The Tribunal was otherwise unable to find any Convention nexus between the Applicant’s fear of harm and the fact that inquiries had been made about the Applicant’s whereabouts.
The Tribunal had regard to the fact that the Applicant had left the PRC on a false passport. The Tribunal found that, if the Applicant were to return to the PRC, any charges arising out of that event would arise by general application of the immigration laws rather than any discriminatory conduct on the part of the authorities for a Convention related reason.
The Tribunal’s findings and conclusions were open to it on the material before it and for which it provided reasons.
Otherwise, ground 1 is no more than a disagreement with the factual finding of the Tribunal that the Applicant’s fear was not well-founded. Such a complaint invites merits review which this Court cannot undertake (Abebe v Commonwealth of Australia (1999) 162 ALR 1; NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 (“NAHI”) at [10]).
Accordingly ground 1 is not made out.
Ground 2 is a bare assertion of a breach of s.424A of the Act. As referred to above in these Reasons, despite being invited to identify what was the information that the Applicant asserted gave rise to an obligation under s.424A(1) of the Act, the Applicant was unable to do so.
A fair reading of the Tribunal’s decision makes it clear that the information relied upon by the Tribunal in affirming the decision under review was information provided by the Applicant to the Tribunal for the purposes of his review and is therefore information that is excluded from the obligations of s.424A(1) of the Act by reason of s.424A(3) of the Act.
Accordingly ground 2 is not made.
Conclusion
A fair reading of the Tribunal’s decision makes it clear that the Tribunal complied with the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act this Court has no jurisdiction to interfere.
The proceeding before this Court commenced by way of application filed on 23 October 2006 is dismissed with costs.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 19 November 2007
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