SZKLM v Minister for Immigration
[2007] FMCA 1264
•26 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKLM v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1264 |
| MIGRATION– Visa – protection visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – applicant is a citizen of People's Republic of China who claimed to have left China due to his inability to find employment – claim that Chinese government discriminates against rural residents - whether Tribunal failed to comply with Migration Act 1958 (Cth) s.424A – particular social group – whether Tribunal failed to identify the particular social group to which the applicant belonged – no review able error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.91R, 424A,425, 474 |
| Applicant A & Anor v Minister for Immigration & Ethnic Affairs & Anor (1997) 190 CLR 225 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263 |
| Applicant: | SZKLM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1098 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 26 July 2007 |
| Date of last submission: | 26 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 26 July 2007 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Mr Mitchell |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent's costs fixed in the sum of $5,000.00.
I allow three (3) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1098 of 2007
| SZKLM |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of the Refugee Review Tribunal. The Tribunal signed its decision on 6th February and handed that decision down on 27th February 2007. The Tribunal affirmed the decision of a delegate of the Minister not to grant the Applicant a Protection (Class XA) visa.
The Applicant filed an application on 3rd April 2007 seeking judicial review of that decision. He claimed in that application a writ of certiorari quashing the Tribunal decision and a writ of mandamus requiring the Tribunal to redetermine his application according to law.
He has since filed an amended application which was outside the time prescribed for filing an amended application which was 5th July 2007. I have granted leave for that amended application to be filed in Court. In that amended application he also seeks orders in the nature of certiorari and mandamus.
Background
The background to this matter is that the Applicant is a citizen of the People's Republic of China. He arrived in Australia on 19th October 2006 and applied for a protection visa on 15th November in that year. He claimed that he left China because he did not have access to regular income to support his family and could not find a job due to the Chinese government's discrimination and the government's failure to protect unemployed workers from the rural area. He claimed that the Chinese government mistreats and persecutes all unemployed rural residents.
He claimed that he came to Australia with a group of tourists and left the tour group. He claimed to fear that if he were to return to China the government would question his behaviour overseas. He said that the government would bar him from getting a good job and employers would discriminate against him because of his previous unemployment record. He said that he would continue to suffer from the Chinese government's discriminatory policy on rural residents. He doubted that the Chinese government would protect him because the government has not done anything to protect him before.
A delegate of the Minister refused the application for a visa on 18th November 2006. The Applicant then on 21st December applied to the Refugee Review Tribunal for a review of the delegate's decision. The Applicant did not provide any additional information with his application for review.
The Tribunal wrote to the Applicant and invited him to attend a hearing which took place on 5th February 2007. The Applicant attended that hearing. He confirmed that his passport had been taken away by the travel agent but prior to the hearing he presented a travel document issued by the Chinese Consulate-General in Sydney in January 2007.
The Tribunal noted at page 41 of the Court Book that the Applicant stated that when he applied for this document he had to show his Chinese ID card and nothing else. He stated that the consulate authorities did not question the Applicant about his passport. The Tribunal asked the Applicant a number of questions. The Applicant said that there was nothing else that he would like to add as all his claims were set out in the written statement. The Tribunal asked the Applicant if he thought he was treated differently from the rest of the Chinese population and he said that they treated people in the same way. When officials are promoted to a higher rank there is significant nepotism among the promotion of other officials.
The Tribunal at page 42 of the Court Book asked the Applicant why he applied for the travel document. The Applicant said that he did not have any documents and he needed one to use as an ID. The Tribunal asked the Applicant why he would approach the Chinese authorities if he feared they would persecute him. The Applicant said that he did not have any ID with him so he needed to approach the Chinese government to get one.
A copy of the Tribunal decision record can be found at pages 37 through to 45 of the Court Book. The Tribunal's findings and reasons appear at pages 42 to 45 of the Court Book.
The Tribunal’s Findings and Reasons
The Tribunal noted that the Applicant travelled from China on a valid Chinese passport and claimed to be a national of China. The Tribunal accepted that the Applicant was a national of China and assessed his claims against the People's Republic of China as his country of nationality. The Tribunal considered the Applicant's claim that it was difficult to find employment in a rural area and accepted that claim. However, the Tribunal considered that the lack of employment in rural areas does not amount to persecution within the meaning of s.91R of the Migration Act.
The Tribunal examined the Applicant's claim of his inability to make a good living and of the various economic hardships that he suffered. However, the Tribunal made this finding:
Accordingly, the Tribunal finds that the applicant's claimed denial of employment opportunities in China did not give rise to a significant economic hardship that threatened the applicant's capacity to subsist or to earn a livelihood. The Tribunal finds that any difficulties the applicant had in finding employment in rural China did not amount to serious harm for the purpose of s.91R of the Act and did not amount to persecution within the meaning of the Convention.[1]
[1] See Court Book at pages 42 and 43
The Tribunal accepted that land belonging to the Applicant's family was taken away by the authorities for small compensation and accepted that he did not have the necessary residence permit that allowed him to reside in an urban area and was fined by the authorities as a result. The Tribunal did not accept that the Applicant was targeted for any of the Convention reasons.
The Tribunal noted that the Applicant did not suggest any element of discrimination on the part of the officials in taking land from his family or from issuing a fine to the Applicant for not holding an appropriate residential permit. The Tribunal went on to find:
The Tribunal finds that there was no discriminatory conduct in the actions of the officials whereby the applicant was selected by reference to one of the Convention based categories of discrimination. The Tribunal finds that none of the Convention grounds formed an essential and significant reason for the conduct with respect to the applicant.[2]
[2] See Court Book at page 43
The Tribunal noted the Applicant's claim that he had been beaten by an employer when he demanded payment for work which he had performed but found that this conduct was not for a Convention reason and there was no suggestion by the Applicant that the authorities withheld protection for a Convention reason. The Tribunal noted the Applicant's claim that the authorities in China are corrupt and that as an ordinary person he was prevented from running a business, pursuing business opportunities or making a living in China.
The Tribunal accepted these matters but did not accept that any harm which the Applicant may have suffered as a result of being a rural resident or not having connections or being an ordinary person which perpetrated for any Convention reason. The Tribunal found:
The Tribunal finds that ‘ordinary people’ or any other group identified by the applicant cannot form a particular social group as it is not an identifiable group with common characteristics, attributes, activities, beliefs, interests, goals, aims or principles (Applicant S v Minister for Immigration & Multicultural Affairs (2004) 217 CLR 387 at [69]).[3]
[3] See Court Book at page 43
The Tribunal found that there was no link between any of the grounds identified in the Convention including membership of a particular social group and the harm suffered or feared. The Tribunal also found that none of the Convention grounds formed an essential and significant reason for conduct with respect to the Applicant. The Tribunal did not accept that the conduct with respect to the Applicant amounted to persecution within the meaning of s.91R.
The Tribunal went on to find that the Applicant did not have a genuine well-founded fear of persecution if he were to return to China at the time of the hearing or in the reasonably foreseeable future. The Tribunal said:
The Tribunal makes this finding because in January 2007 the applicant voluntarily approached the Chinese authorities in Sydney in order to obtain a travel document. The Tribunal is of the view that the applicant's conduct in doing so is inconsistent with his claimed fear of persecution by the authorities.[4]
[4] See Court Book at page 44
The Tribunal noted that the Applicant's core complaint appeared to be the lack of opportunities and corruption in China but took the view that this did not attract the attention of the Refugee's Convention. The Tribunal noted the reasoning of Brennan CJ in Applicant A & Anor v Minister for Immigration & Ethnic Affairs & Anor (1997) 190 CLR 225 at 232 - 233 where is Honour said:
…the object and purpose of the Convention is not simply the protection of those who suffer a denial of enjoyment of their fundamental rights and freedoms; they must suffer that denial by prescribed kinds of persecution, that is, persecution ‘for reasons of race, religion, nationality, membership of a particular social group or political opinion’.
The Tribunal stated that it considered the Applicant's claims individually and on a cumulative basis and found that none of the Applicant's claims amounted to persecution for a Convention reason within the meaning of s.91R of the Act.
The Tribunal affirmed the decision of the delegate not to grant the Applicant a Protection (Class XA) visa.
Application for Judicial Review
In his amended application the Applicant sets out four grounds of review:
a)The Refugee Review Tribunal (RRT) failed to attain, or failed to exercise, jurisdiction, by reason that it failed to comply with the Migration Act (1958), s.424A, in relation to information that the Applicant had voluntarily approached the Chinese authorities in Sydney and in January 2007 in order to obtain a travel document.
b)The RRT failed to obtain, or failed to exercise, jurisdiction, by reason it failed to consider and/or find that the Applicant was a member of a particular social group under the Refugee's Convention and then set out five suggested social groups.
c)The RRT failed to attain, or failed to exercise, jurisdiction, by reason that it failed to consider or properly consider the Applicant's claim in the context of the Applicant being a member of a particular social group under the Refugee's Convention as particularised under paragraph 2 above, that he was persecuted. It then sets out three reasons.
d)The RRT failed to attain, or failed to exercise, jurisdiction, by reason that it misconstrued the provision of the Migration Act s.91R, when it found that the Applicant had not suffered persecution within the meaning of s.91R in relation to the matters referred to in paragraph 3a), 3b) and 3c) above.
The Applicant attended Court and told the Court that he relied on the documentary material filed and said that if he were to return to China he would definitely receive some sort of treatment, presumably adverse treatment. He also told the Court that even though he did not have any strong grounds he hoped that the Minister for Immigration would reconsider his claim because he thought Australia is a good country.
Whilst counsel for the Respondent had filed a written outline of submissions, these were filed before the Applicant had attempted to file his amended application. Consequently counsel for the Respondent Minister made oral submissions to the extent that there was no breach of s.424A because the information referred to about the Applicant's travel document had been information provided by the Applicant in his evidence at the hearing and that the reason used by the Tribunal was the Tribunal's appraisal of the circumstances in which the Applicant obtained the travel document and that this is not information for the purpose of s.424A, sub-s.(1).
As to the two grounds relating to the claim that the membership of a social group and persecution arising as a result thereof which in my view are effectively the same ground. Mr Mitchell of counsel referred me to the decision in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263 where the Tribunal was not required to speculate about unparticularised grounds. He pointed out there was no claim that the applicant had suffered by reason of his membership of a social group and indeed it claimed that he was treated in the same way as other people in China. There was no evidence that he had suffered by reason of his membership of any social group and noted that the Tribunal did in fact consider whether the Applicant was a member of a social group.
Counsel for the Applicant also noted that the Tribunal was not satisfied that the harm the Applicant claimed to have suffered, the amount of persecution, or that it was caused by his membership of a particular social group.
Dealing with the four grounds raised, I am satisfied that it was the Applicant who gave information to the Tribunal about the circumstances in which he approached the Chinese consulate in Sydney in January 2007 in order to obtain the travel document because he did not have his passport. This is information that comes under sub‑s.424A(3)(b) being information the Applicant gave for the purpose of the application.
I am satisfied that the reason given by the Tribunal at page 44 of the Court Book that the Applicant's conduct in approaching the Chinese consulate to obtain a travel document was inconsistent with his claimed fear of persecution by the authorities. There is, as Mr Mitchell submitted, the Tribunal's appraisal of evidence given by the Applicant. It does not in any way breach s.424A of the Migration Act and the first ground fails.
As to the second and third grounds relating to membership of a particular social group, I am satisfied that the Tribunal did consider the question of whether the Applicant was a member of a social group. However, the Applicant said that he was just an ordinary person and that he was treated the same as other ordinary persons. The Tribunal's approach in deciding whether the Applicant was a member of a particular social group was amply supported by the authorities to which the Tribunal referred, and based on the Applicant's own evidence to the Tribunal.
In any event, it is not sufficient to claim that one is a member of a particular social group. In order to attract the protection of the Refugees Convention an applicant must show that he or she is not only a member of a particular social group but has suffered persecution and that the persecution so suffered was as a result of membership of a particular social group or any other Convention ground for that matter. In this case the Tribunal assessed whether the various kinds of harm claimed by the Applicant as an unemployed rural resident in China amounted to persecution and is satisfied that it did not.
The Tribunal did consider whether the Applicant was a member of the social group and is satisfied that he was not. If certainly followed that the Tribunal could not have been satisfied that the Applicant had suffered persecution which he did not, the membership of the particular social group of which he was not. I am of the view that the Applicant's second, third and the fourth ground all fail.
I am mindful of the fact that the Applicant was not legally represented in these proceedings, although his amended application was certainly prepared for him by a lawyer on the RRT Legal Advice Panel. I have read through the grounds in the Applicant's original application which involves a claim of a denial of procedural fairness. There is no evidence of that. The original application contains a claim of a breach of s.424A of the Migration Act and I have dealt with that. The original application claims again that the Tribunal wrongly found that the mistreatment that he claimed did not amount to persecution within the meaning of s.91R of the Act. I have dealt with that.
I have also considered the Tribunal decision and supporting material independently of the Applicant's claims. It is necessary to consider whether there is any breach of s.425 of the Migration Act. The Tribunal wrote to the applicant advising him that it was not able to make a decision in his favour after having considered the information before it in relation to his application. The Tribunal invited the Applicant to attend the hearing which he did and gave him the opportunity to give evidence.
The Tribunal noted that the Applicant had not provided any additional information to the Tribunal but asserted that he relied on his original statement in support of his application for a protection visa. The Tribunal asked him questions about that statement and put to him its concerns, particularly about his claim to approach the Chinese authorities in Sydney to obtain a travel document. That issue was clearly canvassed by the Tribunal with the Applicant. As to the Applicant's claim of persecution and the Tribunal's finding that the treatment about which the Applicant complained did not amount to persecution for the purpose of s.91R. I note that that was an issue dealt with in the delegate's decision and in particulars referred to at page 19 of the Court Book.
The delegate found at page 20 of the Court Book that the harm feared by the Applicant did not relate to the Refugees Convention and that his fear was not well-founded. The Applicant therefore was on notice this was an issue or would be an issue before the Tribunal and should certainly not have been taken by surprise when this was an issue before the Tribunal. There was no breach of s.425 of the Migration Act. I am not able to discern any jurisdictional error and I am satisfied that there is none.
It follows that the Tribunal decision is a privative clause decision as defined by sub-s.474(2) of the Migration Act. A privative clause decision is final and conclusive and is not subject to orders in the nature of certiorari or mandamus. It follows that the application will be dismissed.
There is an application for costs on behalf of the First Respondent Minister. The Applicant has been wholly unsuccessful in his claim and I am satisfied that this is an appropriate matter for an order for costs. The amount sought, inclusive of counsel's fees, on a party and party basis is $5,000.00. I am satisfied that that is an appropriate figure and within the scale envisaged by the Federal Magistrates Court Rules. The Applicant has said that he does not have the finances to meet that and I will take that into account when assessing time to pay.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 2 August 2007
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