SZJOK v Minister for Immigration - [2007] FMCA 955

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJOK v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 955

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S;474; pt.8 div.2

Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Applicant A & Anor v Minister for Immigration and Ethnic Affairs & Anor (1997) 190 CLR 225
Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 225
Lin v Minister for Immigration and Multicultural Affairs [1999] FCA 573

Applicant:

SZJOK

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG3092 of 2006

Judgment of:

Emmett FM

Hearing date:

4 June 2007

Date of last submission:

4 June 2007

Delivered at:

Sydney

Delivered on:

22 June 2007

REPRESENTATION

Applicant appearing on his own behalf

Counsel for the Respondent:

Ms S. Sirtes

Solicitors for the Respondent:

Mr G. Johnson, DLA Phillips Fox

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3092 of 2006

SZJOK

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated

21 September 2006 and handed down on 3 October 2006 (“the Tribunal”).
The applicant was born on 16 January 1968 and claims to be from the People’s Republic of China (“the PRC”) (“the Applicant”).
The Applicant arrived in Australia on 12 December 2004 having legally departed the PRC on a passport issued in his own name and a temporary business (456) visa issued on 25 November 2004.
On 3 February 2005, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.
In his protection visa application, the Applicant claimed that he feared persecution by the Chinese authorities as a result of his inability to pay money to the government which was owed as a result of refusing to adhere to laws allowing couples in the rural areas of the PRC to have a maximum of two children. He claimed this debt was the result of an order made by the People’s Court of Fuqing City on 9 October 2004 as a result of his having a third child.
The Applicant claimed that he had been threatened with detention by people who visited his work in 2004 and that the same people visited his house and threatened to damage his home as a result of his non-payment of the sum of RMB 32,442. The Applicant claimed that his house was damaged.
The Applicant claimed he was incapable of paying the sum as his monthly income was RMB 500 per month and his wife did not work.
The Applicant provided photographs and documents in Chinese, including a purported translation of a purported official court document from “The People’s Court, Fuqing City, Fujian Province.”
On 10 May 2005, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
On 10 June 2005, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal. The Applicant provided no further material in support of the review application. On 11 October 2005, the Refugee Review Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On a date undisclosed in the Court Book, being exhibit 1R, the Federal Magistrates Court of Australia remitted the matter to the Refugee Review Tribunal to be determined according to law. On 21 September 2006, the Tribunal affirmed the decision of the Delegate not to grant a protection visa and this decision was handed down on 3 October 2006.
On 24 October 2006, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.

The Tribunal proceeding

On 24 August 2006, the Applicant appeared before the Tribunal to give evidence and present arguments.
The decision of the Tribunal is accurately summarised by counsel for the First Respondent in her written submissions as follows:
“7. In relation to the applicant’s claims, the Tribunal:
(a)Accepted that the applicant is a citizen of China (CB 126.3).
(b)Accepted it was plausible that the applicant has three children (CB 126.4).
(c)Found it implausible that the applicant’s wife had been in hiding for about six years (126.7 to 126.8).
(d)Found the applicant’s accounts to the differently constituted Tribunals to be inconsistent in relation to the various residences of the applicant (CB 126.8) and found the applicant’s explanations as to those inconsistencies to be unpersuasive (CB 126.9). Accordingly the Tribunal was satisfied that the applicant has lived at all times with his family, including his elderly parents, in the same house in a small village in Fujian (CB 127.2) and that the applicant has made the claims that his wife had been in hiding to bolster his refugee claims (CB 127.3).
(e) Was not satisfied that the authorities had:
(i)     visited the applicant’s home a few time;
(ii)     demolished a wall in his house (or that the demolition had occurred in the circumstances claimed by the applicant);
(iii)   kept visiting his family on order to ascertain his whereabouts; or
(iv)    gone to the applicant’s work in order to arrest him. (CB 127.3 to 127.6)
(f)Was not satisfied that the applicant’s wife and children were presently in hiding, as claimed (CB 127.4).
(g)On the basis of its previous factual finding and the noted inconsistency, found it difficult to reconcile why it was that the authorities simply didn’t go to the applicant’s house if they had wanted to arrest him (CB 127.6).
(h)Was not satisfied that the applicant had lost his job, gone into hiding or that the applicant’s brother-in-law was a communist party member who had warned the applicant as claimed (CB 127.7).
(i)Found that the Statutory Declarations tendered by the applicant in support of his claims were not reliable evidence (CB 127.70.
(j)Considered at length the application of China’s ‘one child policy’ to the applicant and accepted that its finding that he plausibly had three children would mean that he would be in breach of that policy. The Tribunal considered that the one child policy is a law of general application and discussed legal commentary and the High Court’s decision in Applicant A & Anor v Minister for Immigration and Ethnic Affairs & Anor (1997) 190 CLR 225 per Brennan CJ and McHugh J, Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 225 and Lin v Minister for Immigration and Multicultural Affairs [1999] FCA 573 per Emmett J, in concluding that persons fearing punishment by reason of failing to comply with the one child policy are not (by reason solely of that) refugees (CB 127.8 to 128.9).
(k)The Tribunal found as plausible that the applicant had been made to pay a fine for having breached the one child policy but was satisfied that any harm he may have suffered was as a result of a law of general application (CB 128.8 to 129.1)
(l)Cumulatively the Tribunal was not satisfied that the applicant would be persecuted by the Chinese authorities or that there was a Convention-related reasons as to why he could not return to China (CB 129.2).”

The proceeding before this Court

The Applicant was unrepresented before this Court although had the assistance of an interpreter. The Applicant confirmed that he relied upon the application filed by him on 24 October 2006 which identified the following grounds:
“1. The Refugee Review Tribunal made a jurisdiction error in determining that I was not a refugee.
2. The Tribunal failed to consider whether I would be granted protection if I return to China.”
Each of the grounds was interpreted for the Applicant and he was invited to make whatever submission he wished in support of those grounds or in support of the application generally. The Applicant said he had nothing to say.
Ground 1 makes a bare assertion that the Tribunal erred in determining that the Applicant is not a refugee. There are no further particulars in respect of that ground. It discloses no error capable of review by this Court.
On its face, the ground appears to be no more than a disagreement with the conclusion of the Tribunal that the Applicant was not a person to whom Australia has protection obligations. Such a complaint seeks merits review of the Tribunal’s decision, an exercise this Court cannot undertake (Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272).
Ground 2 asserts that the Tribunal failed to consider whether the Applicant would be granted protection if he were to return to the PRC. However, a fair reading of the Tribunal’s decision makes it clear that the Tribunal did consider whether the Applicant would face persecution if he were to return to the PRC and made the following findings:
“The Tribunal is satisfied that there is nothing in the applicant’s profile that would result in him being persecuted within the Meaning of the Convention if he were to return to China and be subject to the one-child policy…
The Tribunal is satisfied that there is no Convention-related reason as to why the applicant could not return to China…
On the basis of the evidence as a whole, the Tribunal does not accept that the applicant had suffered any. Convention-related harm, nor does the Tribunal accept that there is a real chance of this happening to the applicant in the reasonably foreseeable future.”
In the circumstances, it is clear that the Tribunal did have regard to whether or not there was a real chance that the Applicant would suffer Convention related persecution in the reasonably foreseeable future were he to return to the PRC.
In its decision, the Tribunal identified with particularity the claims and evidence before it. It referred to each of the documents given to the Tribunal by the Applicant for the purposes of his review. Two of the documents were documents created by the Applicant and given in support of his claims. A further letter was a letter from his wife allegedly sent to the Applicant on 25 April 2005. The letter asserts that the wife was in hiding and was suffering from ill health, as were the children. The letter asserted that the police were looking for the Applicant. The Tribunal did not regard the wife’s letter as “reliable evidence” of the Applicant’s claims.
The Applicant also provided three statutory declarations from friends. Again, the letters asserted that the Applicant had been a target because of the PRC birth control policy. However, each of the statutory declarations addressed the Applicant’s skill and value as a worker in Australia and is therefore not supportive of the Applicant’s claim of a fear of persecution for a Convention related reason.
The Tribunal also had regard to a “Notarial Certificate” allegedly issued in Fuqing dated 8 August 2006. That document did no more than list the alleged members of the Applicant’s family.
The Tribunal accepted that the Applicant had three children and had been fined as a result of the third child pursuant to the PRC’s one child policy.
The Tribunal put to the Applicant during the hearing various inconsistencies between the evidence given by the Applicant at an earlier constituted Refugee Review Tribunal hearing and evidence given by the Applicant at the Tribunal hearing, the subject of this proceeding.
In relation to the Applicant’s claim of the authorities having demolished a wall in his home and the photograph provided in support of that claim, the Tribunal did not accept that the wall was demolished in circumstances involving Convention related persecution. The Tribunal noted that it put its concerns about this matter to the Applicant. In the circumstances, that finding was open to the Tribunal on the evidence and material before it and for which provided reasons.
Otherwise, the Tribunal noted that it put to the Applicant that the PRC’s one child policy is a law of general application and that, generally speaking, harm from the laws of general application do not constitute persecution as contemplated by the Convention. The Tribunal noted that, whilst it accepted as being plausible that the Applicant had been fined for breaching the policy, the Tribunal was not satisfied that any consequence from non-payment would constitute persecution as contemplated by the Convention. The Tribunal had regard to the relevant law in relation to the proposition that enforcement of a generally applicable law does not ordinarily constitute persecution for the purposes of the Convention and referred to Applicant A & Anor v Minister for Immigration and Ethnic Affairs & Anor (1997) 190 CLR 225.
The Tribunal also had regard to the fact that authorities have found that non-discriminatory enforcement of the generally applicable law of the one child policy is outside the scope of the Convention and referred to Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 225 and Lin v Minister for Immigration and Multicultural Affairs [1999] FCA 573.
Having regard to the evidence as a whole, the Tribunal was not satisfied that the Applicant had suffered any of the specific harm claimed. In considering the evidence cumulatively, the Tribunal was satisfied that there was nothing in the Applicant’s profile that would result in him being persecuted within the meaning of the Convention if he were to return to the PRC and be subject to the one child policy. The Tribunal was satisfied that the Applicant “would not receive disproportionate ill-treatment amounting to persecution.”
The Tribunal concluded that, on the basis of the evidence as a whole, it did not accept that the Applicant had suffered any Convention related harm, nor that there is a real chance of the Applicant suffering Convention harm in the reasonably foreseeable future if he were to return to the PRC.
The findings and conclusions made by the Tribunal were open to it on the evidence and material before it and for which it gave reasons. The principles of law it applied to these findings and conclusions were relevant and correctly applied. Otherwise, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

Conclusion

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 24 October 2006, is dismissed with costs.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate: S. Kwong

Date: 20 June 2007