SZKFE v Minister for Immigration
[2007] FMCA 680
•8 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKFE v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 680 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision Visa – protection visa – refusal – “real chance” test. |
| Migration Act 1958, ss.91R, 91X, 424A |
| Applicants: | SZKFE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 497 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 8 May 2007 |
| Date of Last Submission: | 8 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 8 May 2007 |
REPRESENTATION
The applicant appeared in person.
| Counsel for the Respondents: | Mr. J. D. Smith |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $4,200.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 497 of 2007
| SZKFE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an amended application dated 2 April 2007, the applicant seeks review of the decision of the Refugee Review Tribunal (“Tribunal”) which was signed on 14 December 2006 and which affirmed an earlier decision of the delegate of the Minister for Immigration
& Multicultural Affairs (“Minister”) dated 26 July 2006 refusing the applicant’s application for a protection visa.
Section 91X Migration Act 1958 (Cth) (“Act”) provides that the Court must not publish the applicant’s name.
Background facts
The Tribunal described the applicant as follows:
… the applicant is a forty year old woman. She says that she was born in Fujian and lived in Yingtan City in Jiangxi Province from 1996 until May 2006. The applicant says that she is married and has a daughter who is studying in Australia. (Court Book (“CB”) page 63).
The applicant claims to fear persecution in China because of her husband's involvement in what she says the Chinese government perceives to be anti-government activities. She claimed at the Tribunal hearing to be afraid that she will be blamed for having worked together with her husband in his so-called anti-government activities. The Tribunal stated that the applicant did not claim to have been imputed with a political opinion which was considered by the authorities to be anti-government but this might not be correct.
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-10 of the Tribunal’s decision (CB 63-69). Relevantly, they are in summary:
a)the applicant’s husband ran a petrol station in Yingtan. The business was reasonable but they were bullied by local officials from the Public Security Bureau (“PSB”) and from the industrial and commercial bureaux;
b)
in September 2005 a local tyrant and his gang broke into the petrol station and destroyed everything. The applicant’s husband was seriously injured and the premises were destroyed.
Her husband said that the leader of the attack was in collusion with the police and he had already told her that he had had to pay protection money to that leader to ensure his safety. When the applicant’s husband reported these demands for payment to the police they took no action;
c)after the attack the applicant’s husband felt compelled to contact people who had suffered similarly at the hands of this particular tyrant. He wanted to arrange an organised response to these attacks and arranged meetings at his home. At these meetings they had discussions about setting up an organisation to protect their human rights;
d)in October 2005, without asking her husband’s opinion, the applicant went to the PSB in Yingtan City to report the whole event and to seek help. She even told the police that her husband would organise his own organisation to fix matters if the PSB refused to help him and provide protection. The police gave the impression that they were kind and understanding of the applicant’s situation and they promised to investigate, saying it was their responsibility to protect basic human rights. The same evening, the police surrounded the applicant’s home and her husband was arrested. He was denounced for organising an anti-government organisation and was taken away by the police;
e)the applicant’s husband was detained from October 2005 until December 2005;
f)when he was released in December 2005 the applicant’s husband had been badly beaten and sustained injuries which confined him to his bed for a month. Thereafter, the police came continually to their petrol station and their home on the excuse of investigating anti-government activities;
g)the applicant’s husband had to close the business in March 2006 but even after this the applicant and her husband were still regarded by the police as troublemakers with strong anti-government opinions. The applicant claims that they were sometimes taken by the police for interrogation and sometimes the police would come to their home at midnight to search the premises; and
h)to escape persecution, the applicant’s husband arranged for her to leave for overseas. Her husband continued to be subjected to persecution and has been unable to leave China because he has been denied a passport owing to his “black” record in the past.
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, 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 found the applicant to be a credible and truthful witness. However, the Tribunal found that the applicant had never actually been detained or otherwise suffered physical harm herself. The Tribunal found no evidence that the applicant had been imputed with a political opinion which was considered by the authorities to be anti-government, either in her own right or because of her husband;
b)the Tribunal found that the harassment of her husband, although frightening, did not amount to persecution. Further, although the option was open to the applicant to leave the family home for temporary respite in another province in order to avoid the stress of these problems, she chose not to do so;
c)the fact that the applicant remained at her home for five months after her husband’s arrest, notwithstanding other options, supported a finding that the treatment of her husband and the campaign by local authorities against him did not represent harm to the applicant which could be described as serious harm; and
d)because the applicant obtained a passport and departed China without incident, the Tribunal found that the authorities had no serious ongoing interest in her because of her husband’s matter as she claimed. The Tribunal did not accept that she was labelled or found to be anti-government because of her husband’s matter.
Proceedings in this Court
The grounds of the application can be summarised as follows:
a)the Tribunal misapplied the “real chance” test by:
i)failing to consider what would happen to the applicant if she returned to China;
ii)[the second paragraph is an allegation of fact, not a particular of the asserted ground of review];
iii)failing to consider that the totality of facts alleged by the applicant might justify a well-founded fear of persecution; and
iv)failing to consider how what happened to her husband might justify a well-founded fear of persecution on the part of the applicant;
b)the Tribunal breached s.424A of the Act in relation to:
i)the applicant’s passport;
ii)independent country information; and
iii)its finding that she may not suffer serious harm as contemplated by s.91R of the Act;
c)the Tribunal misstated or misunderstood s.91R of the Act, the applicant having suffered serious harm as contemplated by the section; and
d)in her oral submissions to the Court the applicant made submissions in relation to two of the grounds raised in her amended application and also raised in her reply a particular matter of fact.
Dealing with each of these grounds in turn:
Misapplication of the “real chance” test
Failure to consider what would happen to the applicant if she returned to China
In relation to the asserted misapplication of the “real chance” test and the assertion that the Tribunal failed to consider what would happen to the applicant if she returned to China, it is apparent that the applicant's fear is based on concerns that the events which happened in the past may be repeated in the future. The Tribunal's approach to the applicant's claim indicates that the potential for repetition of prior acts is implicit in its consideration of what might happen in the future. Consequently, it is not correct to say that the Tribunal failed to consider what would happen to the applicant were she to return to China.
It is also important to note, if only in passing at this point, that even if the Tribunal had failed to consider what would have happened to the applicant were she to return to China, the Tribunal's conclusion was that the events which had happened in the past did not amount to persecution and it also held that the applicant was of no serious ongoing interest to the authorities. No jurisdictional error is demonstrated in relation to this aspect of this asserted ground of review.
The second particular
The second particular of this ground is pleaded in the following terms:
As a matter of fact, before I came to Australia, the policemen never stopped making us into troubles. They regarded us as troublemakers with strong "anti-government" opinions, and frequently came to my home for "investigation". Sometimes, they took us to the PSB for interrogation; or sometimes, they suddenly came to my home in the midnight, searching everywhere in the room; and sometimes, they rang us in the early morning, seeing whether or not we were in the home …
This particular is not a particular of the alleged jurisdictional error and is, in reality, no more than an assertion of fact. As such it raises no ground of review. However, it does raise the issue of whether the applicant claimed to have been imputed with an anti-government opinion and reflects an assertion by her recorded at Court Book
page 64 that the applicant and her husband were regarded by the police as troublemakers with strong anti-government opinions.
To the extent that the Tribunal has concluded that the applicant did not make a claim to having had a political opinion imputed against her, it appears to have been incorrect. Notwithstanding this, the Tribunal's conclusion was that whatever harm had been meted out to the applicant and her husband, it did not satisfy the test laid out in s.91R of the Act and thus did not amount to persecution regardless of its motivation.
Failure to consider that the totality of facts alleged by the applicant might justify a well-founded fear of persecution
In relation to the assertion that the “real chance” test was misapplied because the Tribunal failed to consider that the totality of facts alleged by the applicant might justify a well-founded fear of persecution, it should be observed that the Tribunal did consider the totality of the facts.
Under the heading “Claims and Evidence” found at pages 4 to 10 of its decision record, the Tribunal comprehensively sets out the claims raised by the applicant. In that section of its decision record the Tribunal discusses those facts and it is clear that the totality of them were considered by the Tribunal. This is not a case where the Tribunal disbelieved the applicant's version of events. Rather, it found her to be a truthful and credible witness. But the facts which it was willing to accept had to be considered in the context of three primary issues which the Tribunal had to determine. In relation to the past; had the applicant suffered harm which amounted to persecution? In answer to this question the Tribunal concluded that she had not.
Secondly, was any fear that the applicant had based on fear of
a Convention related harm? Although the Tribunal did not recognise that the applicant had made a claim of having political opinion imputed to her, it concluded on the evidence and in particular the evidence that she was able to depart China on her own passport without incident, that the applicant had no well-founded fear of persecution for a Convention related reason.
The third issue that the Tribunal had to decide was whether the applicant would be persecuted in the future. It considered this issue in the light of the facts which it accepted and concluded that she would not. In her amended application, the applicant also refers to other issues, namely discrimination in different forms and the general atmosphere of insecurity under the communist form of government in China, and suggested that these should have been but were not considered by the Tribunal. However, there is nothing in the Tribunal's decision to indicate that these issues were raised with it by the applicant and for this reason it was not in error in not considering them. No jurisdictional error has been made out in relation to this aspect of this asserted ground of review.
Failure to consider how what happened to her husband might justify a well-founded fear of persecution on the part of the applicant
As to the asserted misapplication of the “real chance” test in the context of the asserted failure to consider how what happened to her husband might justify a well-founded fear of persecution on the part of the applicant, it must be observed that the Tribunal did consider the applicant's fear in the context of the authorities’ behaviour to her husband. In the course of its determination the Tribunal considered the applicant's specific claims which were based on the treatment meted out to her husband by the authorities. It accepted that the applicant's husband had been mistreated and it accepted that these events would have been frightening to the applicant. But it concluded that these events did not amount to serious harm as required by s.91R. Because they did not amount to serious harm they could not amount to persecution as that concept is understood by the Act.
The Tribunal also had regard to whether the applicant had a political opinion imputed to her by reason of her husband's activities. Although, as has already been noted in these reasons, the Tribunal appears not to have recognised that the applicant was making a claim along these lines, it nevertheless considered the potentiality of this issue and concluded that no such opinion had been imputed to her. It essentially concluded that the authorities were interested in the applicant's husband and not in her and the applicant's departure from China on her own passport without incident was essential to this conclusion.
Overall it can be seen that although what happened to the applicant's husband was accepted and considered in detail, it was not found to justify a well-founded fear of persecution on the applicant's part.
Breaches of Section.424A of the Act
The applicant’s passport
As to the asserted breaches of s.424A of the Act, the applicant says that the Tribunal should have, in relation to her passport, taken the steps set out in s.424A(1). However, the Tribunal's record makes it clear at
page 5 of its decision that the applicant brought her passport to the Tribunal hearing where it was examined by the Tribunal member. Because of this, the information which the passport contained is information which the applicant gave to the Tribunal for the purposes of her application and thus falls within the exception contained in s.424A(3)(b).
Independent country information
The applicant has also submitted that there were s.424A obligations in relation to independent country information which, it appears from her submissions today and from an inference available to be drawn from the decision record, is a reference to the applicant's ability to travel through Chinese border controls without incident and the conclusion that this meant that she was of no interest to the Chinese authorities or, more generally expressed, this is information relating to the significance of people being able to move in and out of China on Chinese passports without interference by the authorities. This sort of information is information that is not specifically about the applicant but about a class of people, namely Chinese passport holders who are able to pass in and out of China without interference by the authorities. As such it is information which falls within the exclusion contained in s.424A(3)(a).
Finding that the applicant may not suffer serious harm as contemplated by Section.91R of the Act
Finally, in relation to s.424A, the applicant has suggested that there was a breach by reason of the Tribunal's finding that the applicant may not suffer serious harm as contemplated by s.91R of the Act. However, as a conclusion, this is not something which falls within the concept of information as that is understood by s.424A. As it is not “information” no s.424A obligations arise in relation to it.
For these reasons, no jurisdictional error on the part of the tribunal has been demonstrated in relation to its obligations under s.424A of the Act.
The Tribunal misstated or misunderstood s.91R, the applicant having suffered serious harm as contemplated by the section.
The final pleaded ground of review is that the Tribunal misstated or misunderstood s.91R, the applicant having suffered serious harm as contemplated by the section. The Tribunal at page 3 of its decision paraphrases the substance of s.91R and does so without error. It is apparent, not only from the paraphrasing at page 3 of its decision that it understood what s.91R provided and how it operated but so also from its considerations under the heading “Findings and Reasons”.
A consideration of the Tribunal's decision demonstrates that it did not misstate or misunderstand s.91R.
As to the assertion in this ground of review that the applicant had already suffered serious harm as contemplated by that section in the past, this is a finding of fact which is not reviewable in judicial review proceedings such as these.
Oral submissions
In her oral submissions to the Court, the applicant also submitted that she had only been able to leave China without incident because she had been fast enough to do so and were she to return it would be a changed situation. The applicant submitted that the situation is more severe now that the authorities are looking for her. These are matters which were not before the Tribunal, based on what is contained in the Tribunal's decision record, and for that reason cannot be taken into account in these proceedings. But, in any event, even if they had been taken into account by the Tribunal, they are matters of fact which this Court cannot re-open in judicial review proceedings. Consequently, no jurisdictional error has been demonstrated in relation to that asserted ground of review.
Conclusion
For these reasons, jurisdictional error on the part of the Tribunal has not been demonstrated and the application will be dismissed.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Cameron FM.
Associate:
Date: 24 May 2007
0
0
1