SZJQL v Minister for Immigration - [2008] FMCA 335

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJQL v MINISTER FOR IMMIGRATION

[2008] FMCA 335

MIGRATION – Review of Refugee Tribunal decision – Tribunal not bound to find an objective fear of persecution merely because there may be a subjective fear – Tribunal correctly identified relevant principles and calculated relevant possibility of persecution – no jurisdictional error – application dismissed.

Migration Act 1958 ss.422B, 425, 424A

Chan v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) CLR 259
M66 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 112
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152

Applicant:

SZJQL

Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

File Number:

SYG 3248 of 2006

Judgment of:

Nicholls FM

Hearing date:

13 March 2008

Date of Last Submission:

13 March 2008

Delivered at:

Sydney

Delivered on:

13 March 2008

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Counsel for the Respondent:

Mr Free

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The reference to the first respondent be amended to read Minister for Immigration & Citizenship;
The application made on 7 November 2006 is dismissed;
The applicant pay the first respondent’s costs set in the amount of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3248 of 2006

SZJQL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

This is an application under the Migration Act 1958 (“the Act”) made on 7 November 2006, seeking review of the decision of the Refugee Review Tribunal signed on 27 September 2006 and handed down on 10 October 2006 which affirmed the decision of a delegate of the first respondent to refuse a protection visa to the applicant.
The first respondent has put before the Court a bundle of relevant documents (Court Book – “CB”) from which the following background can be discerned. The applicant is a national of the People’s Republic of China who arrived in Australia in January 2006 using a Portuguese passport. The applicant applied for a protection visa on 10 February 2006 (application reproduced at CB 1 to CB 28). The applicant was assisted at that time by a migration agent who made written submissions on behalf of the applicant in support of the application (at CB 29 to CB 31).
The application was refused by a delegate of the first respondent (delegate’s decision record at CB 37 to CB 44). The applicant then sought review by the Tribunal (application reproduced at CB 45 to CB 48). I note that the applicant was again represented by a migration agent before the Tribunal. Material in support of the application was provided to the Tribunal (at CB 49 to CB 61). The applicant was invited to a hearing before the Tribunal (letter of invitation reproduced at CB 64 and CB 65) and the applicant ultimately did attend the hearing before the Tribunal and gave evidence.
The only record of what occurred at that hearing that is before the Court is that contained in the Tribunal’s own decision record (at CB 93 to CB 97). I also note that by letter dated 28 August 2006 the Tribunal wrote to the applicant inviting him to comment on certain information (CB 79 and CB 80). The applicant’s agent provided a response (at CB 82 to CB 84). I have said, the Tribunal affirmed the delegate’s decision to refuse a protection visa to the applicant.

Applicant’s claims to protection

The applicant’s claims to protection in Australia are that he and a friend went to Shanwei, in China, to pursue a business enterprise, namely, the opening of a restaurant. At this place, land had been resumed for the building of a power station. The applicant and his friend dealt with the local Council, which consisted of village leaders, to obtain the necessary licence in order to open a restaurant.
The applicant claimed that at some point this was refused and they were: “kicked out by the Council.” In the meantime, riots broke out between villagers whose land had been confiscated, or whose use of land had been restricted, and the village leaders who had not passed on compensation to them for this resumption of land, which, it appears, included the use of explosives. It appears that this resumption of land took place in connection with the proposed power plant.
The reaction of the local authorities, the police and the security bureau was severe. Local people were injured, and even killed, during these riots. The applicant and his friend sought to escape, but on the way they were stopped by police who obtained their personal identity details. The applicant ultimately left this area, but was told that police had visited his house. Fearing the police, the applicant claimed, he and his friend obtained Portuguese passports and left China.

The Tribunal

In its reasons, the Tribunal gave the applicant the benefit of the doubt and accepted he was in this particular village at the time of the riots. It accepted that he and his friend had not been involved. It also accepted that he and his friend had been stopped at a police barrier and that personal details had been recorded.
The Tribunal regarded, and it used the phrase “with scepticism” (CB 98.5) the applicant’s claim that if he were to return to China he and his friend would be treated as scapegoats by the authorities and that the authorities would claim that they had started the riot. The Tribunal gave reasons for its scepticism, noting that the authorities had already dealt with those held to be responsible for the riots and that, based on country information available to it, the authorities viewed incidents such as the one put forward by the applicant as extremely embarrassing, given that the incident highlighted social dislocation and corruption in China.
The Tribunal found that it would be most unlikely now, or in the foreseeable future, that the authorities would make the political judgment to reopen the whole Dongzhou incident to further domestic and international press coverage by holding additional trials which would only add further embarrassment to the government over the growing number of civil disturbances occurring in China, many over land related issues and the corruption of officials.
The Tribunal concluded that the applicant would not face a risk of persecution by reason of being imputed with a political opinion because of claimed association with someone involved in the riots. This was with reference to “Mr Wang” who, the applicant had claimed, had been with him and his colleague but subsequently, at the time of the rioting, “went missing” (CB 98.8).
The Tribunal accepted that in the aftermath of the rioting and the deaths of some of the villagers, the applicant could have had a subjective fear of persecution emanating from the police and that as a stranger to the village he may be accused of involvement in the rioting. But the Tribunal found as not credible the claim that because he and his friend were foreign to the area it would be easy for police to accuse them of “fomenting the trouble” and the Tribunal gave reasons for this (at CB 99).
The Tribunal found also that the treatment of the applicant by the police at the time of the riots involved the non-discriminatory application of laws of general application. The Tribunal also found that given country information available to it, it was highly unlikely that the Chinese authorities would wish to “reopen” the case (at CB 99.3) which, in context, I understood to mean as it was unlikely that the authorities would wish to revisit, or reopen, the incidents that had occurred, the local overreaction by the authorities, and the subsequent conviction of some of the rioters. The Tribunal also found that nor would the authorities apply laws in a discriminatory manner against the applicant by reopening the case on his return to China.
The Tribunal also considered the implications of the applicant returning to China after using what it described as an “illegal travel document” to depart. While it found that the applicant may be arrested for breaking China’s immigration laws, this would not be inconsistent with what it said were China’s laws of general application in this regard. Ultimately, the Tribunal’s reasoning was as follows (at CB101.2):
“Although it accepts that the applicant may have a subjective fear of persecution, such a fear would not be well‑founded. The Tribunal does not accept that in the event of him being arrested for breaching China’s immigration laws that there is a real chance that he would be discriminated against on political grounds and subjected to serious harm or mistreatment which would amount to persecution under the Convention now or in the foreseeable future.”

Application to the Court

The application to the Court contains one ground with particulars as follows:
“1. The Tribunal’s finding that the applicant does not have a ‘well‑founded fear’ contains judicial(sic) error.”
I understand this to mean jurisdictional error. The particulars were:
“Particulars.
The Tribunal accepted that the applicant could have had a subjective fear of the authorities in the aftermath of the Dongzhou incident 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 that a person can have a well‑founded fear of persecution even though the possibility of the persecution is well below 50 per cent.”
[Errors in original]
I also have before me the applicant’s affidavit of 6 November 2006 which annexes and puts before the Court the decision record of the Tribunal. I note that the affidavit asserts error on the part of the Tribunal but provides no particularity.

Hearing before the Court

The applicant appeared before the Court in person and was assisted by an interpreter in the Cantonese language. Mr Free of Counsel appeared for the first respondent. In addition to the Court Book, I also have before me the response to the application by the first respondent and written submissions filed on behalf of the first respondent and prepared by Mr Free.
Before the Court the applicant stated that he wished to obtain a correct judgment, but had nothing further to put to the Court beyond stating that he wished to rely on what was stated in his application. The applicant told the Court that he had been assisted by a lawyer in the making of his application, but this was subsequently clarified to be a reference to the migration agent who had assisted the applicant both before the Minister’s department and the Tribunal.
The applicant’s complaint appears to be that having found that the applicant had a subjective fear, the Tribunal should have found that the applicant did have a well‑founded fear of persecution, and this is said to be so because of the ruling:
“That a person can have a well‑founded fear even though the possibility of persecution is well below 50 per cent.”
Article 1A(2) of the United Nations Refugees Convention, that is, the Convention Relating to the Status of Refugees, in effect, articulates the relevant test to be applied in determining whether a person is a refugee. In Chan v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 (“Chan”)the High Court set out the test for determining a well‑founded fear and in particular, I note the following from Dawson J (at 396):
“The phrase “well-founded fear of being persecuted” has occasioned some difference of opinion in the interpretation of the relevant Article of the Convention. Upon any view, the phrase contains both a subjective and an objective requirement. There must be a state of mind - fear of being persecuted - and a basis – well-founded - for that fear. Whilst there must be fear of being persecuted, it must not all be in the mind; there must be a sufficient foundation for that fear.”
His Honour went on to say in something that is particularly relevant to the claim as put forward by the applicant in the sole ground of the application:
“The differences which have arisen have largely stemmed from a desire to place a greater emphasis upon either the subjective or the objective element of the phrase.”
I also note what was said by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) CLR 259 In particular,I note the following (per Brennan CJ and Toohey, McHugh and Gummow JJ at [3]):
“Chan established two propositions as to the steps by which refugee status was to be "determined" under s 6A(1)(c) of the Act.”
I note that section is no longer in force, but that the principle that is annunciated is relevant for the purposes of the application currently before the Court. Their Honours continued:
“First, the definition of refugee involved a mixed subjective and objective test. Second, the definition would be satisfied if an applicant could show genuine fear founded upon a "real chance" of persecution for a Convention stipulated reason.”
The subjective element of a well‑founded fear plainly involves an applicant’s state of mind, but it alone is not sufficient to satisfy the relevant test. To the extent, therefore, that the application currently before the Court infers that the Tribunal’s finding that the applicant may have a subjective fear was sufficient to satisfy the relevant test, this must be rejected. Nor is the Tribunal bound to find that the fear of persecution is objectively made out simply on the basis that there may be a subjective fear.
The situation is that the phrase “well‑founded” that appears in Article 1A(2) of the Refugee’s Convention adds an objective element to the requirement that the applicant must hold a fear. I should just note that to the extent that the Tribunal in one part of its decision record that I quoted previously said that the applicant may have a subjective fear of persecution that the Tribunal had accepted that the applicant did have such a subjective fear.
The Tribunal was plainly required in the circumstances to go on and consider whether this applicant objectively had a well‑founded fear of persecution. Plainly, for a fear to be well‑founded there has to be some factual basis for that fear be well‑founded, there has to be some factual basis for that fear.
I note, in that regard, what was said in Chan by McHugh J (at 429) and Dawson J (at 396) in support of the proposition that the necessity for the Tribunal to determine whether there was an objective basis. I also note and agree with Mr Free’s reference to M66 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 112. As was said in Chan, a fear of being persecuted is well‑founded if there is a real chance of being persecuted. This has been the subject of considerable judicial consideration. What I draw from relevant authorities is that a real chance is a substantial chance. It is to be distinguished from a remote or a farfetched possibility and with reference to what is stated in the particulars to the applicant’s ground it may indeed be below a 50 per cent chance.
I note what was said in Chan by Mason CJ (at 398), Dawson J (at 397) and I note that McHugh J said that it could even be a 10 per cent chance (at 429), but I agree with submissions made by Mr Free that in the current case, the Tribunal correctly identified the relevant principles and that this included the calculation of the relevant possibility of persecution. Mr Free has referred the Court to what the Tribunal has set out in what can be described as unexceptional terms of its decision record (at CB 91).
I also agree with submissions that, given the correct formulation of the relevant test, the Court should not take the view that the Tribunal did not apply it unless this appears from what is written in the decision record. But in any event, I cannot see that the Tribunal erred in its application of the relevant principles to the facts found in this case. The Tribunal made various findings of fact in relation to the applicant’s claims, and I have already referred to these. In my view, these were open to the Tribunal on what was before it, noting that the Tribunal’s findings were derived from the applicant’s own evidence and country information available to it.
I cannot discern jurisdictional error in how the Tribunal approached its task in this regard, or indeed jurisdictional error revealed through, or by, its reasoning. The applicant’s stated ground as particularised does not succeed. I note further that the applicant put forward his claims on what is before the Court. I cannot see that the Tribunal failed to consider any aspect of the applicant’s claims.
I note further that this is a case to which s.422B of the Act applies, making the matters set out in Division 4 of Part 7 the exhaustive statement of the natural justice hearing rule. In this regard, I note that for the purposes of s.425, the applicant was given the opportunity to give evidence before the Tribunal. The applicant did give evidence. The only account of what occurred at that hearing is the extract of what appears to be a transcript reproduced in the Tribunal’s decision record. This reveals that the applicant was given the opportunity of addressing what were the determinative issues in affirming the Delegate’s decision (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152)
First, while the applicant may have a subjective fear of persecution, such a fear was not, in the Tribunal’s view, objectively well‑founded (in this regard, see CB 96.5). Further, that the Tribunal could find no Convention nexus in the applicant’s claims, that is, as it was perhaps considered to arise out of an imputed political opinion. The Tribunal put the applicant on notice at the hearing of this issue (see, in particular, CB 96.4 and CB 96.9).
For the purposes of s.424A of the Act, the Tribunal’s decision, as I said earlier, relied on information provided by the applicant to the Tribunal, that is, his evidence at the hearing and independent country information available to it. On what is before the Court, both fall within the exceptions contained in s.424A(3) from the obligation in s.424A(1). I note that, in any event, the Tribunal did write to the applicant in what it described as the s.424A letter, and provided the applicant with an opportunity to comment on what had been said by the applicant’s friend at another Tribunal hearing.
I cannot see that the Tribunal relied on this in its subsequent reasoning, the reasoning that led to its decision, but in any event, as I have said, this was the subject of a letter which would satisfy the obligations set out in s.424A(1).

Conclusion

I cannot see error in relation to any other part of Div.4. Unfortunately, the applicant was unable to assist the Court with anything further beyond what had been put in his application, which had been drafted with the assistance of his migration agent. I cannot discern jurisdictional error as it is said to arise by way of the applicant’s stated ground, nor can I otherwise discern jurisdictional error. In those circumstances, I dismiss the application made to the Court.
As to whether I should make the costs order, in my view, it is appropriate that an order be made. Despite opportunity, the applicant has not put anything before the Court of such nature as to argue against the making of such an order, nor can I otherwise discern any such reason from what is before me today.
As to the amount that the Minister seeks, I note it is an amount provided for in the relevant Schedule to the Rules of this Court. I take the view that I am not bound by what is set out in the Schedule, but regard it as a useful guide as to what may assist in determining what is reasonable in the circumstances.

In my view, with regard to the work that has been done by the Minister’s legal representatives in responding to the application made by the applicant, and noting various attendances at Court, preparation of multiple copies of the Court Book, the filing of the Minister’s response, the briefing of Counsel, the drafting and provision of written submissions, and the attendance by Counsel at the final hearing of the matter. In all the circumstances, I find that the amount of $5,000 is a reasonable amount and I will make an order in that amount.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: C Darcy

Date: 18 March 2008