SZKLW v Minister for Immigration
[2007] FMCA 1718
•3 September 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKLW v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1718 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – weight to be given to evidence is a matter for the Tribunal – Tribunal did not need evidence contradictory of the claim in order to affirm delegate’s decision – Tribunal has no duty to make enquiries. |
| Applicant: | SZKLW |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1121 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 3 September 2007 |
| Date of Last Submission: | 3 September 2007 |
| Delivered at: | Sydney |
| Delivered on: | 3 September 2007 |
REPRESENTATION
The applicant appeared in person.
| Counsel for the Respondents: | Mr. Mitchell |
| Solicitors for the Respondents: | Blake Dawson Waldron |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1121 of 2007
| SZKLW |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application dated 2 April 2007, the applicant seeks review of the decision of the Refugee Review Tribunal (“Tribunal”) signed on
26 February 2007 which affirmed an earlier decision of the delegate of the Minister for Immigration & Multicultural Affairs (“Minister”) dated 23 January 2004 refusing the applicant’s application for a protection visa.
The Tribunal decision the subject of these proceedings is the second such decision relating to the applicant. The first decision made on
26 May 2004 was quashed by order of the Federal Court dated
16 November 2006, a copy which order is found at Court Book (“CB”) page 69.
Background facts
The Tribunal described the applicant as follows:
He was born in Gaocheng in China in 1965 and is Chinese. He indicates “N/A” at the place that he is asked for his religion in the application form. He states that he was married in Gaocheng in 1985 and that his wife, son (born 1987) and daughter (born in 1991) reside in China. He indicates that he owned a business as a restaurant manager in China from 1980 until 2004 and then from January 2004 he was unemployed. He stated that he arrived in Australia in January 2004 but states that his passport is “unavailable”; he indicates that it was kept by the “sponsoring school”. He indicates that he left the country legally through Shanghai and had no difficulties obtaining his travel documents. He indicates that he lived at the same address in China from 1983 until January 2004 and that in China he was educated in Hebei. (CB 90).
The applicant claims to fear persecution in China because of the dangers he faces from people to whom he owes money, previous trouble from people from government organisations and because of his practice of Christianity.
The facts alleged in support of the applicant’s claim for a protection visa are found at pages 4 – 7 of the Tribunal’s decision (CB 90 – 93) and, in their detail, take various forms. The various allegations may be summarised as follows:
a)at the outset and with his application for a protection visa, the applicant says that at the restaurant which he operated after he graduated from school, and which was at first successful, people from government organisations ate there without paying. When he began to suffer financial hardship he asked for payment. They then became angry with him, created trouble by imposing higher taxes and fines and threatening to suspend his licence. When he asked the government for help, his business licence was suspended and he was accused of tax evasion. He was detained until his family paid the fines and bailed him;
b)at the hearing of the first Tribunal on 21 May 2004 the applicant claimed to fear to return to China because he would be harmed by a “loan shark” who wanted to collect a debt from him. He also claimed that he feared harm because of his Christian religion;
c)on 15 February 2007, when the applicant appeared before the Tribunal as constituted on the second occasion, he gave quite a different life history, which is set out in the following terms at page 5 of the Tribunal's decision:
Before he came to Australia he worked managing a restaurant before 1996. For a long time after 1996 he was jobless but then worked in a printing factory. This job started at the beginning of 1997 and he worked there for
18 months. Later, in the spring of 2002 he worked in a school driving a bus. He did the job at the school for about a year and a half. He also worked as a taxi driver for
15 days during the period after 1996. He was unemployed for about 6 or 7 months prior to coming to Australia.
(CB 91)d)at the second Tribunal hearing, the applicant emphasised the financial difficulties in which he had been put in respect of the restaurant. It appears that when the restaurant was established it was done so with borrowed money and after it failed to be a success, he applied to buy land, which also needed a loan. As a result of all this, he got into financial difficulties and was being pursued to repay the loan;
e)the applicant also asserted that the Christian church of which he was a member was checked by the police and he was arrested and detained. Significantly, at the second Tribunal hearing, the applicant said that the trouble that he was in in relation to money and his business all happened before 1996;
f)the applicant also told the Tribunal as constituted on the second occasion that in China he did not regularly attend church. He also said initially that in Australia he had been to church three to four times, but when pressed by the Tribunal, said that he had attended church ten times in a two‑week period; and
g)the applicant told the Tribunal as constituted on the second occasion that the police and hooligans were working together and this was one of the reasons why he feared returning to China, notwithstanding that the police had helped him get compensation for the harassment he had suffered many years before.
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 accept that the applicant left China in 2004 and fears to return there for the reasons he claims. In this connection, the Tribunal observed that the mistreatment the applicant claims to have suffered occurred in about 1996 and although the applicant lived at the same address from that period until he left for Australia, and his family still lives there, he nevertheless took approximately eight years from the occurrence of the events in question to depart for Australia;
b)the Tribunal did not accept as true that the applicant was approached by those to whom he owed money and from whom he feared harm twenty days prior to leaving Australia, namely, eight years after it could be considered that the debts became due or became bad debts in the minds of the lenders; and
c)the Tribunal did not accept that the applicant was a genuine Christian. In the Tribunal's view, the applicant’s evidence about his attendance at, and relationship with, the church did not support a conclusion that he was a genuine adherent, from which it followed that the Tribunal did not accept as true that he was arrested and / or detained in China because of his Christian activities there.
Proceedings in this Court
In his application to the Court, the applicant raised two grounds which were pleaded as follows:
(1) I do not agree in [sic] the decision record of RRT that I invented this claim to assist my application for protection visa and my application for review.
(2) I will face a real chance of persecution if I return to the PRC now, or in the foreseeable future.
In his submissions today, the applicant raised two additional matters, namely:
a)the Tribunal did not have evidence to say that what the applicant said was not true; and
b)the Tribunal should have accepted the harassment which the applicant says he suffered because it should have accepted the scars he bears as being evidence of that persecution or harassment.
Dealing with each of these grounds in turn:
The Tribunal’s conclusion that the applicant “invented his claim”
The ground referring to the Tribunal's conclusion that the applicant “invented this claim” relates to the Tribunal's finding in relation to the applicant's profession of Christianity.
This ground is, in essence, a challenge to the Tribunal's factual conclusions. The applicant does not suggest that the Tribunal failed to consider evidence which was before it. He does not suggest that evidence has been overlooked. Indeed, in the absence of a transcript of the hearing, the only evidence of what occurred at the various Tribunal hearings is what appears in the decision record found in Exhibit “A”. The applicant has not contested the accuracy or the account of the evidence which appears there. That being so, the applicant's challenge to the Tribunal's decision is really one based on the conclusions which the Tribunal drew from the evidence which was before it. However, the weight which the Tribunal chooses to give to evidence which it receives – that is to say, which evidence it considers persuasive and which evidence it does not consider to be persuasive – is purely a matter for the Tribunal.
On this occasion, the Tribunal's conclusion was that the evidence did not support a finding that the applicant was a committed Christian. It further concluded that the claim of Christianity was one which had been invented in order to bolster the applicant's claim for a protection visa.
The reasoning of the Tribunal which led it to this conclusion is set out with adequate clarity in the Tribunal's decision record. The finding was open to the Tribunal on the evidence before it. As the Tribunal is the finder of fact and, in this circumstance it was a finding of fact within jurisdiction, no jurisdictional error has been demonstrated in respect of this asserted ground of review.
The applicant will face persecution in China
Turning to the second ground in the application, in this asserted ground of review the applicant seeks an outcome different to that which the Tribunal reached. However, these are proceedings for judicial review and are not a rehearing of the review before the Tribunal. The question for this Court is whether the Tribunal observed the law in the way it undertook its review. If it did observe the law, then the findings of fact which it reached cannot be overturned by this Court. What the applicant is seeking to do in this asserted ground of review is to overturn the Tribunal's conclusion that it was not satisfied that the applicant had a well‑founded fear of persecution for a Convention reason were he to return to China. For these reasons, no jurisdictional error has been demonstrated in respect of this asserted ground of review.
The Tribunal did not have evidence to say that what the applicant said was not true
Turning to the next ground, which was made in argument today, it is understandable that the applicant articulates his claim in an adversarial sense in that he says that while he has put evidence before the Tribunal in support of his claim, the Tribunal has not put forward evidence to contradict his claim and, therefore, he asks on what basis could the Tribunal reach the decision which it did. However, that approach is a misunderstanding of the procedures of the Tribunal. In proceedings before the Tribunal, it is the obligation of the applicant to put before the Tribunal information sufficient that the Tribunal can reach a level of satisfaction that the applicant is entitled to a protection visa. The Tribunal is not an investigator and has no duty to make inquiries; nor is it the Tribunal's task to elicit from the applicant evidence which the applicant chooses not to give of his own accord. Therefore, to say that the Tribunal did not have evidence to disprove the applicant's case is to raise a ground which is misconceived. It was the task of the applicant to convince the Tribunal to the requisite level, but on this occasion, he did not. Consequently, this ground does not disclose a reviewable error on the part of the Tribunal.
The Tribunal should have accepted the harassment which the applicant says he suffered because it should have accepted the scars he bears as being evidence of that persecution or harassment
The next to final matter for consideration today turns on the scars borne by the applicant. In his regard, it should be noted that the Tribunal accepted that the applicant had been harassed and harmed in about 1996. In fact, the Tribunal accepted certain elements of the factual allegations which were made by the applicant. However, that notwithstanding, the Tribunal did not accept that the applicant had a well‑founded fear of persecution, even though it did accept that the applicant owed money, borrowed by him for his business, and that he had been harassed and harmed in about 1996. Having referred to those matters and having taken them into account, no error is demonstrated by the fact that the Tribunal was not satisfied that the applicant met the criteria for a protection visa.
Generally
As a final point, the applicant said today that he had not received the written submissions prepared by the Minister and filed in Court. The applicant, in discussions, concedes that he had changed addresses and that this change of address had not been advised. The Minister tendered a letter from his solicitor dated 20 August 2007 with a related courier slip recording that the Minister's solicitors had sent his written submissions to the applicant by courier on 20 August 2007 at his address for service. I am satisfied that the Minister complied with his obligations under directions previously made in these proceedings.
Conclusion
For these reasons, jurisdictional error on the part of the Tribunal has not been demonstrated. Consequently, the application will be dismissed.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 23 October 2007
0
0
0