SZKFN v Minister for Immigration
[2007] FMCA 676
•17 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKFN v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 676 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal considered the applicant’s claims – whether the Refugee Review Tribunal complied with its statutory obligations. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 424A; 424A(1); 424A(3)(a); 474; pt.8 div.2 |
| SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 NADH of 2001 v Minister for Immigration 214 ALR 264 |
| Applicant: | SZKFN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG515 of 2007 |
| Judgment of: | Emmett FM |
| Hearing date: | 2 May 2007 |
| Date of last submission: | 2 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 17 May 2007 |
REPRESENTATION
| Applicant appearing on his own behalf |
| Solicitors for the Respondent: | Mr A. Markus, Australian Government Solicitor |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG515 of 2007
| SYKFN |
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 (“the Tribunal”) dated 20 December 2007 and handed down on 11 January 2007.
The applicant was born on 15 January 1964 (“the Applicant”) and claims to be from the People’s Republic of China (“the PRC”).
The Applicant arrived in Australia on 14 May 2004, having legally departed from Pudong Airport on a passport issued in his own name and a visitor’s visa issued on 13 September 2002.
On 24 August 2006, 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 PRC government due to corruption within the government structure. The Applicant claimed that because he worked for the Road and Traffic Management Bureau he was required to bribe government officials in order to keep his job. The Applicant claimed that he did not earn a high wage, however, he was still required to buy gifts and provide cash gifts to officials. The Applicant further claimed that his family was in serious debt and that, after having an argument with his superior at work, he had to leave his job. The Applicant claimed to be a victim of a corrupt government and was therefore unable to remain in the PRC as he would suffer mental and physical persecution from the government.
On 19 September 2006, 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 20 October 2006, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. The Applicant provided no further written material in support of the review application. On 20 December 2006, the Tribunal affirmed the decision of the Delegate not to grant a protection visa and handed down this decision on 11 January 2007.
On 15 February 2007, 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 2 November 2006, the Tribunal invited the Applicant to come to a hearing on 29 November 2006.
The Tribunal noted that it had before it the Department’s file, material referred to in the Delegate’s decision and other material from a range of sources.
The Applicant gave oral evidence before the Tribunal in which the Applicant expanded upon his written claims regarding bribery in the PRC and his inability to gain employment there.
The Tribunal accepted the claims of the Applicant that he was a Chinese national and that the manager at his workplace would not arrange work for him because the Applicant would not give him money.
The decision of the Tribunal is accurately summarised by the First Respondent in his written submissions as follows:
“6.At the Tribunal hearing, the applicant gave the following evidence:
- he could not go back to China because he did not have a job;
- with the current workplace management, he would have to offer a bribe in order to get a job and he “could not get used to that behaviour”;
- the applicant did not make much money but was still forced to buy “them” presents and give cash;
- this did not leave enough for the applicant to live on particularly as he had a child going to school;
- the fight with the manager was over the fact that he would not be given a job if he did not pay a bribe and the applicant did not like the way that “they” did those things;
- when asked by the Tribunal whether all people in China had to pay bribes, the applicant answered “almost”;
- the applicant stated that his company was state-owned and that it would refuse to give him a job because he had had an argument with management.
7.The Tribunal put to the applicant that his claims may not be Convention-related. The applicant’s replies were unresponsive. When put to him by the Tribunal that the applicant seemed to have jumped to a conclusion that he would not be able to get work, he stated that his friend went back and was unable to find work. The applicant claimed that his friend was from the same area, that he was a worker in a state-owned company and was a security guard. The applicant had given evidence that he builds roads in China. He stated that they all had to offer a bribe but those whose parents were in a high official position did not need to do so.
8.The Tribunal was not satisfied that the applicant had suffered Convention-related harm in the past. It also found the chance of the applicant suffering harm amounting to persecution in the reasonably foreseeable future to be remote.
9.The Tribunal accepted the applicant’s evidence that his manager would not arrange a job for him because the applicant would not give him money. However, irrespectively of the applicant’s evidence that bribery was part of the fabric of Chinese society, the Tribunal found there was no evidence to suggest that a significant and essential reason for the manager’ s behaviour was for one of the reasons provided in the Refugee Convention.
10.The Tribunal noted that after he lost his job, the applicant did not take his grievance with his boss to any kind of government official and concluded that he had therefore not taken measures to seek a course of redress in China.
11.The Tribunal was satisfied that the applicant’s only concern was to secure work and was satisfied that the applicant might be considered, for instance, as an anti-corruption campaigner or that he may be imputed with or has an adverse political opinion in China.
12.The Tribunal further noted that the applicant’s evidence was that his friend, who had returned to China, had been unable to find work, but noted that the friend was in an unrelated field. It also noted that the applicant had not sought to find other employment before coming to Australia, and found the applicant’s submission that he will be unable to find work in China unconvincing. In reaching that conclusion, the Tribunal considered country information which indicates that China has the highest growth rate in the world and where much of the new economy no longer consists of state-owned enterprises.
13.The Tribunal did not think it unreasonable to expect the applicant to find work in his area or in another part of China. It took into account the fact that the applicant was prepared to travel to and work in Australia, a country that is not only culturally but linguistically different. It concluded that it was not satisfied that the applicant would either not be able to find work in China or that even if he was unable to find work, that an essential and significant reason for this inability would be one of the Convention reasons.”
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 on an amended application filed on 5 April 2007 which identified the following grounds:
“1.The Tribunal failed to consider my claims and wrongly believed that my claims were not convention related because of the Tribunal’s bias against me. My application was not considered in accordance with S91R of the Migration Act 1958
2.The Tribunal failed to consider my application in accordance with S424A of the Migration Act 1958. The Tribunal failed to notify me the reason or part of the reasons for affirming the decision.”
The grounds were unsupported by particulars or evidence and were formulaic in their terms and of a nature often seen in this Court.
Each of the grounds was read to the Applicant separately and he was invited to make submissions in support of each of the grounds. The Applicant had nothing to say in respect of any of the grounds.
Ground 1
To the extent that ground 1 alleges bias by the Tribunal against the Applicant, such a claim is serious and requires evidence, such as a transcript of the Tribunal hearing (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668).
The Applicant was directed on 8 March 2007 by this Court to file and serve any affidavit containing additional evidence to be relied upon including the transcript of the hearing, by 12 April 2007. The Order informed the Applicant that evidence of a Tribunal hearing was to be presented as a transcript verified by affidavit and that a tape recording would not be received without leave of the Court obtained prior to the hearing. No evidence was filed by the Applicant.
A fair reading of the Tribunal’s decision does not disclose any prejudgment on the part of the Tribunal in the sense that the Tribunal was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented.” (Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17 at [69], [71]-[72], [127]).
A fair reading of the Tribunal’s decision does not suggest that the Tribunal approached its task other than open with a mind open to persuasion. In particular, in accordance with the submission of the First Respondent, “There is no evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind in determining the application for review (Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 at [27]-[32]; NADH of 2001 v Minister for Immigration 214 ALR 264 at [115])”.
Accordingly, the allegation of bias or apprehended bias is rejected.
Ground 1 also alleges that the Tribunal failed to consider the Applicant’s claims. The Applicant was unable to identify any particular claim or aspect of a claim made that had not been dealt with by the Tribunal.
A fair reading of the decision makes it clear that the Tribunal identified with specificity and understood the Applicant’s claims. The Tribunal accepted the Applicant’s evidence that his manager at work would not arrange a job for him because he would not pay him money as a bribe. However, the Tribunal found that there was no evidence to suggest that a significant and essential reason for the manager’s behaviour was for one of the reasons provided in the Refugees Convention. The Tribunal was satisfied, in accordance with the Applicant’s own evidence, that the Applicant’s only concern was to secure work. The Tribunal was not satisfied that the Applicant might be considered an anti-corruption campaigner or that he may be imputed with or have an adverse political opinion in the PRC.
The Tribunal noted that the Applicant’s mother, child, wife and all his relatives were still in his home town in the PRC. The Tribunal also noted that the Applicant did not seek to find other employment after he lost his job before coming to Australia.
The Tribunal had regard to independent evidence that showed that the PRC has the highest growth rate in the world and much of its new economy no longer consisted of State owned enterprises.
The Tribunal concluded that it was not satisfied that the Applicant would either not be able to find work in the PRC or that, if he was unable to find work, an essential and significant reason for this inability would be one of the reasons in the Refugees Convention. The Tribunal was not satisfied that the Applicant had suffered harm in the past that was Convention related and, was satisfied that the chance of harm amounting to persecution in the reasonably foreseeable future is remote.
It is plain that the Tribunal understood the Applicant’s claims, considered them, made appropriate findings in respect of them from which the Tribunal made its conclusions. Those findings and conclusions were open to the Tribunal on the evidence and material before it and for which it gave reasons.
Ground 1 also claims that the Tribunal did not consider the Applicant’s application in accordance with s.91R of the Act. Such complaint is misconceived.
The Tribunal, in its decision, made specific reference to s.91R of the Act, in its consideration of the notion of “serious harm”. The Tribunal identified various examples of serious harm including “a threat to life or liberty, significant physical harassment and ill treatment, significant economic hardship or denial of access to basic services or denial of capacity to earn a livelihood where such hardship or denial threatens the applicant’s capacity to subsist.” The Tribunal also stated that the persecution feared by an Applicant must be for a Convention related reason. The Tribunal acknowledged that the persecution feared need not be solely attributable to a Convention reason but that the reason must constitute at least the essential and significant motivation for the persecution feared.
As referred to above in these Reasons, the Tribunal was not satisfied that the harm alleged by the Applicant to be suffered by him was for a Convention related reason. As stated above, that finding was open to the Tribunal on the evidence and material before it and for which it gave reasons.
In the circumstances, it is plain that the Tribunal did consider the Applicant’s claims in accordance with s.91R of the Act.
Accordingly, ground 1 is not made out.
Ground 2
Ground 2 alleges a breach by the Tribunal to comply with its obligations under s.424A of the Act in that the Tribunal failed to notify the Applicant of the reason or part of the reasons for affirming the decision under review.
This ground is not supported by any particulars identifying the information that the Applicant alleges the Tribunal was required to give to the Applicant in accordance with s.424A(1) of the Act.
It is not apparent from a fair reading of the decision that there was any information to which the Tribunal had regard which may be part of the reason for affirming the decision under review and which enlivened the obligations of s.424A(1) of the Act. The Tribunal’s findings and conclusions were based on the evidence of the Applicant which was largely accepted by the Tribunal. To the extent that the Tribunal had regard to independent information about the economy in the PRC, such information is specifically excluded from the obligations of s.424A(1) of the Act by reason of s.424A(3)(a) of the Act.
Accordingly, ground 2 is not made out.
Conclusion
At the heart of the Tribunal’s affirming of the decision under review was its lack of satisfaction that the Applicant had a well-founded fear of harm by reason of not being able to find work in the PRC and that, in any event, any such harm was not Convention related.
As referred to above, the findings and conclusions of the Tribunal were open to it on the evidence and material before it and for which it gave reasons. The Tribunal otherwise complied with the statutory regime in the making of its decision, including the conduct of its review.
The decision of the Tribunal 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 15 February 2007, is dismissed.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 14 May 2007
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