SZKFS v Minister for Immigration
[2007] FMCA 1011
•28 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKFS v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1011 |
| 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 |
| Applicant: | SZKFS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG543 of 2007 |
| Judgment of: | Emmett FM |
| Hearing date: | 28 June 2007 |
| Date of last submission: | 28 June 2007 |
| Delivered at: | Sydney |
| Delivered on: | 28 June 2007 |
REPRESENTATION
| Applicant appearing on her own behalf |
| Counsel for the Respondent: | Ms K. Morgan |
| Solicitors for the Respondent: | Ms B. Anniwell, Australian Government Solicitor |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG543 of 2007
| SZKFS |
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 8 January 2007 and handed down on 30 January 2007 (“the Tribunal”).
The Applicant was born on 24 December 1955 and claims to be from the People’s Republic of China (“the PRC”) (“the Applicant”).
On 25 August 2006, the Applicant arrived in Australia, having legally departed from the PRC on a passport issued in her own name and a visa issued on 14 August 2006.
On 31 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 her protection visa application, the Applicant claimed that:
a)
she was employed as a painter by a state-owned company for
28 years during which time she was promoted to team leader;
b)in February 2005, 100 employees of the state owned company were dismissed including herself;
c)the employees dismissed were older workers with 60 percent being female;
d)such a dismissal was a denial of human rights and in August 2005 the Applicant became involved in an independent worker’s union;
e)together with other union leaders, she organised a demonstration on 10 October 2005 in front of a government building protesting the unfair dismissal of the employees from the state-owned company;
f)at the demonstration she was arrested along with two other union leaders and was subsequently sentenced to 4 months detention;
g)on her release from detention, the police warned her not to participate in such activities again or she would face prison; and
h)she is unable to trust the PRC government and for that reason she “decided to escape from China”.
On 25 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 23 October 2006, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. The Applicant provided no further material in support of the review application. On 30 January 2007, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 16 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 7 November 2006, the Tribunal invited the Applicant to come to a hearing on 6 December 2006. The Applicant attended that hearing and gave oral evidence.
The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources as well as the application for review.
The Applicant gave oral evidence before the Tribunal in which the Applicant expanded upon her written claims.
The Tribunal found the Applicant not to be a credible witness.
The Tribunal distilled the Applicant’s claims as follows:
i)She and approximately one hundred other workers were dismissed because they were old and female in violation of their basic human rights;
ii)She and two others were arrested by police and sentenced to four months detention following their formation of an independent worker’s union in August 2005 and their organisation of a demonstration;
iii)During her detention, the police would not allow her family to visit and after her release she was required to report every week to the police station and warned not participate in union activities; and
iv)The health of her son suffered following her detention.
The Tribunal identified with particularity the claims made by the Applicant in her protection visa application and in her oral evidence given at the Tribunal hearing. The Tribunal noted exchanges it had with the Applicant in respect of various issues. The Tribunal also noted that it put to the Applicant that the fact that she did not seek protection, or at least make inquiries, in Kuala Lumpur or Singapore during her visits in March 2006 suggested that she did not have a genuine fear of persecution by the PRC authorities. The Tribunal noted the Applicant’s response that her travel agent told her it would be easier for her to obtain a visa to travel to Australia if she had been overseas before.
The Tribunal also noted that it put to the Applicant that it “had difficulty believing that she was being persecuted in China for her planned activities or that she would be persecuted if she returned”. The Tribunal also noted that it put to the Applicant that she left the PRC because “she believed she would be able to have a better life in Australia and that she did not want to return because she owed some people a lot of money that she might not be able to pay back”. The Tribunal noted the Applicant’s response being a denial and an assertion that she was being persecuted because she stood up for her rights.
The Tribunal noted with particularity the independent country information to which it had regard. In particular, the Tribunal noted that independent country information indicated that many workers were being retrenched because of deteriorating economic conditions, rather than for reasons of gender and age. The Tribunal noted that the Applicant did not claim to have suffered deprivation as a result of her retrenchment, nor that she had sought and was refused employment on the basis of her alleged union organising activities.
The Tribunal rejected the Applicant’s claim of being involved in the organisation of a demonstration, or that she attended the demonstration at all, having regard to the inability of the Applicant to provide other than generalised accounts of the demonstration and no detail, despite repeated questioning, about her own activities in creating the union.
Similarly the Tribunal found the Applicant’s claims of arrest and detention to be “vague and general” and lacking in “any degree of particularity”. The Tribunal rejected for the same reason the Applicant’s claim of being required to report weekly to police.
Because the Tribunal was not satisfied that the Applicant was arrested and detained, it was not satisfied that she had suffered physically and mentally by reason of that detention.
As referred to above, the Tribunal found it implausible that if the Applicant had a genuine fear of persecution she failed even to make inquiries whilst in Malaysia and Singapore about protection.
The Tribunal did not accept that the Applicant fled the PRC to come to Australia because she feared persecution from PRC authorities as a result of her union activity or for any other Convention reason.
The Tribunal concluded that, based on the evidence before it, it was not satisfied that the Applicant had not suffered past persecution or faced a real chance of persecution now or in the reasonably foreseeable future for a Convention related reason and therefore was not a person to whom Australia has protection obligations.
The proceeding before this Court
The Applicant was unrepresented before this Court although had the assistance of an interpreter. I note the Applicant has also participated in the Panel Advice Scheme.
The grounds of the Applicant’s application filed on 16 February 2007, are expressed to be as follows:
“1. The decision had error of law in that procedures that were required by the Act and Regulations to be observed in connection with the making of the decision were not observed.
2. The decision of RRT involved an error of law, being an error involving an incorrect application of the law to the facts as found by the respondent.
3. There was no evidence or the other material for justify the making of the decision.”
Each of the grounds was interpreted for the Applicant. It was pointed out to the Applicant that the grounds were bare assertions of error and were unsupported by any particulars. This same difficulty was pointed out to the Applicant at the directions hearing before this Court on
8 March 2007 and directions made giving the Applicant an opportunity to file and serve any amended application and any further evidence by 3 May 2007. The Applicant confirmed to this Court that no further document had been filed by her or on her behalf.
The Applicant had nothing to say in relation to any of the grounds. She stated that she “came here long ago and had a record kept and if I return to survive.” The Applicant was then invited to say anything further she wished in support of her application. Again, she confirmed that she had nothing further to say.
A fair reading of the decision makes it clear that the Tribunal identified the Applicant’s claims, considered the Applicant’s evidence, made findings on material questions of fact. The Tribunal explored the Applicant’s claims with her at the hearing, raised with the Applicant issues of concern and noted the Applicant’s responses. The findings made and the conclusions reached by the Tribunal were open to it on the evidence and material before it and for which it provided reasons.
The only information which the Tribunal considered as part of its reason for affirming the decision under review was either information given to it by the Applicant at the hearing by way of her oral evidence or independent country information.
The Tribunal complied with its statutory obligations in the making of its decision, including the conduct of its review.
As stated above, the Applicant has not identified any error on the face of the Tribunal’s decision, including the conduct of its review, and none is apparent on the face of the decision record.
Accordingly, the grounds referred to by the Applicant in her application are rejected.
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 16 February 2007, 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: 28 June 2007
0
2