SZKJN v Minister for Immigration - [2007] FMCA 1322

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKJN v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1322

MIGRATION – Persecution – review of Refugee Review Tribunal decision.
Visa – protection visa – refusal – material ignored by the Tribunal was not relevant to the issues before it and did not affect the exercise of its power.

Migration Act 1958, ss.91X, 424A

Applicant WAEE v Minister for Immigration & Multicultural Indigenous Affairs (2003) 75 ALD 630
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225

Applicant:

SZKJN

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 908 of 2007

Judgment of:

Cameron FM

Hearing date:

28 June 2007

Date of Last Submission:

5 July 2007

Delivered at:

Sydney

Delivered on:

16 August 2007

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents:

Ms A. Mitchelmore

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 908 of 2007

SZKJN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

By an amended application dated 18 May 2007, the applicant seeks review of the decision of the Refugee Review Tribunal (“Tribunal”) which was signed on 19 January 2007 and which affirmed an earlier decision of the delegate of the Minister for Immigration and Multicultural Affairs (“Minister”) dated 12 October 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:
… his family were rural people in Fujian. After leaving school, he helped his father with farm work. The applicant married in 1991 at the age of 23. His wife was from a similar rural background. Their first child (a daughter) was born in 1992; their second child (another daughter) in 1994. The applicant said that after the birth of their second child, the local authorities notified them, warning them against having any more children. However, the applicant and his wife wanted to have a son. The applicant stressed that, in his rural culture, it was very important to have a son. (Court Book (“CB”) page 67)
The applicant claims to fear persecution in China because of his breach of China’s one-child policy, leaving a work site thus leaving a fine not paid and for participating in a strike at the work site.
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-7 of the Tribunal’s decision (CB 67-70). Relevantly, in addition to the facts quoted above at [3], they are in summary:
a)in order to conceal their third pregnancy, the applicant and his wife moved to a neighbouring county. Their third child, another daughter, was born in 1996. The local authorities heard of this birth and went to their house. The applicant and his wife were not found and the officials destroyed some household items;
b)the applicant and his wife tried again to have a son. Again, they left their own village and the fourth child was born in 1998 in a private clinic in a neighbouring county. Once again, the child was a girl. The applicant’s wife put the baby in a basket and left it on the street as they departed the town;
c)after abandoning the fourth daughter, the applicant and his wife continued to move around Fujian with the applicant doing casual work to support them. The applicant’s wife became pregnant again. The fifth child was another girl. However, before the applicant and his wife could put into action their plan to abandon that baby, the authorities caught up with them;
d)the authorities insisted that the applicant’s wife be sterilised and that the applicant regularise the registration of his children. The second, third and fifth daughters were duly registered;
e)the applicant’s father convinced him to adopt a son and a suitable child was found in 2000. The applicant went to the local authorities to register his adopted son and was told that he would have to pay a fine of 100,000 renminbi. The applicant could not afford to pay the fine and at the end of 2000 the authorities arrested him for non-payment. He was detained for over a month and then released when the authorities told him that he could work off his fine by working on government projects as required. Over the next few years, the applicant worked from time to time on various projects, all of which were near his village. He was able to live at home and to keep his farm going;
f)in the middle of 2005, the applicant was sent to a construction site which, for the first time, was away from home. In February 2006, there was discontent among the workers over the long hours they were required to work. The workers went on strike. The police were called and a violent mêlée followed. The applicant was not involved in the violence. One of his fellow construction workers advised the applicant to flee and gave him a lift out of the construction site and to a railway station;
g)the applicant did not go home but went to Wuhuan in Hebei Province, where he had a friend. The applicant learned that the police had come to his place, saying that he had left the construction site without permission. They also said that the applicant had to work as directed because he owed the local authorities 100,000 RMB;
h)the applicant’s siblings contributed to the cost of him buying a false passport (complete with visa) and an airfare to Australia.

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 did not find any evidence to support the applicant’s views about his possible imprisonment for reasons connected with the strike and the violence at the construction camp because there was no evidence that management regarded the applicant as the workers’ leader;
b)the Tribunal was of the view that the “social compensation fee” levied against the applicant should rightly be regarded as prosecution rather than persecution noting that the applicant was well aware of the one-child policy, deliberately broke it and intended to keep breaking it until he had a son. The Tribunal also observed that when the authorities finally caught up with the applicant and his wife at the time of the wife’s confinement in 1999 for the birth of their fifth daughter he was treated leniently: that is, his remaining out-of-plan daughters were registered and he was not fined;
c)it was only when the applicant breached the family policy yet again, with the informal adoption of a son in 2000, that the social compensation fee – levied to pay for the provision of services such as the education of registered children – was imposed and has not yet been discharged.
In essence the Tribunal found:
If the applicant were to return to China, the local authorities could demand payment of the social compensation fee. The amount still owing might be in dispute, but not the principle that the applicant has incurred this debt and should pay it. A large amount of money was raised by the applicant’s family in 2006. However, rather than paying off the fine, this money was spent on purchasing false travel documents and air fares for the applicant to come to Australia. The local authorities might reconsider their view that the applicant cannot afford to pay the fine, and demand payment from him when he returns. If he cannot pay, he can be jailed. In the circumstances, this is legitimate prosecution rather than persecution. (CB 73)

Proceedings in this Court

The grounds of the application can be summarised as follows:
a)the Tribunal based its findings on information which was wrong or misunderstood;
b)the Tribunal breached s.424A.
Dealing with each of these grounds in turn:

The Tribunal based its findings on information which was wrong or misunderstood

The applicant particularised this breach in several ways. The first was that the Tribunal incorrectly characterised the amount which the applicant was required to pay as a “social compensation fee” rather than as a penalty, which is what the applicant submitted it was. In support of this submission the applicant, in his application to this Court, quoted from the statutory declaration he submitted with his application for a protection visa in which he described the amount required as a “huge penalty”. It is to be noted that in the Tribunal’s recounting of the applicant’s evidence at CB 68 it described the amount the authorities required the applicant to pay as a “fine”, apparently based on the way the applicant described it in his evidence to the Tribunal. In respect of this fine, the Tribunal said this:
At the time of registering these out-of-plan children, the authorities did not impose any fine for the extra children – or “social compensation fee”, as the Chinese government calls it. The authorities did, however, ensure that the applicant’s wife was sterilised to prevent any further children. (CB 70-71)
It is apparent that the Tribunal was of the opinion that the amount which the applicant was required to pay could be described as a fine or, euphemistically, as a social compensation fee. Whichever term was chosen, however, it remained an amount of money which was levied on the applicant by government authorities and which he was required to pay. The issue here is not how the obligation is described but what the obligation was and no error is demonstrated by the Tribunal choosing to describe it as a “social compensation fee” rather than using the nomenclature preferred by the applicant.
The applicant’s next complaint is that the Tribunal said that the applicant had been “treated leniently” whereas in his statutory declaration submitted with his visa application the applicant said that he had been punished owing to his “‘bad’ records in the past”. The passage in the Tribunal’s decision where it says “he was treated leniently” refers not to the way he was treated at the work site but the approach taken by the Chinese authorities to the occasion when the applicant registered his out-of-plan daughters but was not fined. Consequently, this particular in this ground is misconceived and jurisdictional error is not made out.
In the next particular the applicant complains that the Tribunal said that:
The Tribunal does not find that there is any evidence to support the applicant’s views about his possible imprisonment for reasons connected to the strike and the violence at the construction camp. There is no evidence that management regarded him as the workers’ leader; rather, they used him as a more mature person to convey their views to the workers. It is clear that he was not involved in the violence against the police, nor was he questioned and charged in relation to the violence, because he had already left the scene. He left as soon as the violence started. There is no evidence that the police have subsequently indicated that they have any questions for the applicant in regard to the incident at the camp (CB 73)
whereas in his statutory declaration he had said:
In February 2006, two of members in the construction team were seriously injured during the work, because they were too tired to concentrate on their jobs. One of them lost his leg. We all were scared, and afraid that we might be the next victims owing to such hard jobs. I was the only one among them without any record of being detained or jailed by the authorities in the past. So, I was recommended by those construction labourers to be a representative for negating [sic] with the authorities, requiring not more than 8 working hours a day. (CB 32)
The Tribunal’s finding that there was no evidence to support the applicant’s views that he might be imprisoned for reasons connected with the strike and associated violence was based on a finding that there was “no evidence that management regarded him as the workers’ leader; rather, they used him as a more mature person to convey their views to the workers”. (CB 73)
In concluding that there was no evidence to support the conclusion, that the applicant was a leader of the workers in question, the Tribunal did not misstate the evidence before it:
a)although the Tribunal did not, in terms, say that it had been provided with the department’s file, its description of the applicant’s claims to the Minister’s department indicate that, at least, it did have before it the applicant’s statutory declaration of 21 August 2006 which accompanied his protection visa application. Paragraphs 16-19 of the applicant’s statutory declaration accompanying his protection visa application do contain information that the applicant was, in fact, a leader of the workers and that he counselled the construction labourers to unite and have a strike, which suggestion was accepted by most of them;
b)as identified by the applicant and recorded in the Tribunal’s decision at CB 69-70, one of the two reasons the applicant claimed he had for getting out of China was:
… that he would be regarded as a leader of the workers at the construction site. That meant he could be blamed for the strike and the subsequent violence between the workers and the police, which apparently was quite serious. (CB 69-70)
c)when the Tribunal put to the applicant that there was no evidence that he was the workers’ leader he responded that “at an earlier stage, the workers had chosen him as their representative to put their grievances about the long hours to the management”. (CB 70) Clearly then the applicant is saying there, and also directing attention to the relevant passages in the statutory declaration, that he was their leader, although not saying, in terms, that management also regarded him as such.
Therefore, although there was evidence of the applicant’s leadership role, that evidence does not extend to evidence of management’s attitude on this question and consequently the Tribunal was not incorrect when it said that there was no evidence that management regarded the applicant as the workers’ leader, even if, in fact, that is what he was.
The Tribunal also found:
There is no evidence that the police have subsequently indicated that they have any questions for the applicant in regard to the incident at the camp. (CB 73)
It is true to say that no evidence adduced by the applicant was expressed in terms that the police had questions for him in relation to the incident at the camp. However, this seems to be the clear implication in para.20 of the applicant’s statutory declaration where he said:
During that period, I was informed that the policemen came to my home many times, because I was denounced as the main leader who had “incited” and organised anti-government strike. (CB 33)
In considering this issue the Tribunal appears to have relied solely on the evidence given by the applicant at the Tribunal hearing, where he said that there were no warrants or other documents awaiting him, and failed to have regard to what was contained in his statutory declaration submitted with his protection visa application. In determining the application before it, the Tribunal was required to consider:
… the application which is the subject of review in light of the information, evidence and arguments which are relevant to the application and which are provided to it or which it obtains for itself.
(Applicant WAEE v Minister for Immigration & Multicultural Indigenous Affairs (2003) 75 ALD 630 at 640 [44] per French, Sackville and Hely JJ.)
In Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 [82] McHugh, Gummow and Hayne JJ said that ignoring relevant material in a way that affects the exercise of power is to make an error of law and results in the Tribunal exceeding the authority and powers given by the statute and thereby amounts to jurisdictional error.
I conclude that the Tribunal did ignore material which had been submitted to it by the applicant but I am not of the view that the material in question was relevant to the issues before it or affected the Tribunal’s exercise of its power. The material was not relevant because the applicant’s non-payment of the social compensation fee, and all the events which flowed from it were not instances of persecution for a Convention reason. The High Court held in Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225 that individuals subjected to the enforcement of China’s one child policy could not bring themselves within the scope of the Convention on the basis that they were thereby members of a particular social group which is the subject of persecution. There is nothing in this case which suggests that Applicant A’s case does not apply to it. As the Tribunal found here, the social compensation tax levied on the applicant should be regarded as prosecution rather than persecution and the failure of the applicant to meet his obligations to the Chinese authorities led to state action which should be characterised not as persecution for a Convention reason but enforcement of a penalty. Consequently, without more, pursuit of the applicant by the Chinese authorities for non-fulfilment of his obligations would not amount to persecution. Consequently, to the extent that the Tribunal failed to take such conduct into account, it was not overlooking conduct of relevance to its enquiry.
Because the conduct in question was not relevant to its enquiry, its failure to take it into account did not affect the exercise of its power and did not amount to jurisdictional error.
The applicant also submitted that the Tribunal erred by concluding that the applicant had left the worksite earlier than he was permitted to and, as a result, his debt had not been paid. This was a finding of fact open to the Tribunal on the information before it and does not disclose jurisdictional error.

The Tribunal breached s.424A

The applicant submits that information from his statutory declaration had been used by the Tribunal in arriving at its decision but the relevant information was not served on him in accordance with s.424A(1). Although the information in question from the statutory declaration may not have been the subject of a s.424A(1) notice, it is also apparent from the Tribunal’s reasons that the information it relied on when affirming the delegate’s decision was the evidence which the applicant gave at the Tribunal hearing together with some country information provided by the Department of Foreign Affairs and Trade.
Indeed, the information which the applicant says was not served on him pursuant to s.424A(1) was the same information which he says was ignored or misunderstood by the Tribunal. Clearly, the information cannot be both relied on by the Tribunal and ignored by it. In these proceedings, the information in the statutory declaration was not relied upon by the Tribunal in reaching its conclusion and thus does not amount to information falling within the scope of s.424A(1). The information which was relied upon, as already noted, was information given at the Tribunal hearing or was country information. Both of these categories of information fall within the exceptions found in s.424A(3).

No jurisdictional error is demonstrated in respect of this asserted ground of review.

Conclusion

Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, 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: 16 August 2007