SZKMG v Minister for Immigration
[2007] FMCA 1670
•9 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKMG v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1670 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision. Visa – protection visa – refusal. |
| Migration Act 1958, ss.91S, 91X, 422B, 424A, 425, 477 |
| Minister for Immigration & Citizenship v SZKKC [2007] FCAFC 105 Applicant A & Anor v Minister for Immigration & Ethnic Affairs & Anor (1996) 190 CLR 225 Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 Minister for Immigration & Multicultural Affairs v Sarrazola (No. 2) (2001) 107 FCR 184 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 |
| Applicant: | SZKMG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1149 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 20 July 2007 |
| Date of Last Submission: | 20 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 9 October 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 1149 of 2007
| SZKMG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application dated 3 April 2007 and filed on 10 April 2007, the applicant seeks review of the decision of the Refugee Review Tribunal (“Tribunal”) which was signed on 21 August 2006 and which affirmed an earlier decision of the delegate of the Minister for Immigration and Multicultural Affairs (“Minister”) dated 19 June 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:
… from about 1995 until his departure from China in 2003 he lived at the same address with his parents in Zibo … his mother now lives in Jilin province with her relatives and his father is in the local jail in Zibo … he finished junior high school in 1999 and senior high school in 2002. In Australia he studied high school subjects and language. He had not worked in China, but in Australia he has worked in a variety of different jobs, including as a waiter, a removalist and cleaner. (Court Book (“CB”) page 72).
The applicant claims to fear persecution in China because of political or religious opinions imputed to him and because he is a member of the particular social group that is his father’s family.
The facts alleged in support of the applicant’s claim for a protection visa are set out in the statutory declaration attached to his application form and quoted at pages 4 – 5 of the Tribunal’s decision (CB 71 - 72). Relevantly, the applicant claims:
…
2. In 2001 my father, who is a manager at a state owned telecommunications company, found out that someone named Yu Jing Peng was taking bribes. My father reported Yu Jing Peng’s activities to the authorities.
3. Nothing happened to Yu Jing Peng, but my father started to face problems. People threw stones at our house and on one occasion someone attempted to burn … it down.
4. Because of these problems in China, my father sent me to Australia in April of 2003 to study. He did not tell me about the problems he was facing in China.
5. While I was away, the situation got worse. Yu Jing Peng told the authorities that my father was studying Falun Gong. This was not true, but my father was arrested and imprisoned. My mother lost her job after Yu Jing Peng spoke to the manager of her company.
6. I returned home in December 2004 for a visit. It was only then that I discovered that my father had been in jail. He did not tell me the real reason for this as he did not want me to worry. He is still in jail.
7. Yu Jing Peng also arranged for attacks on me. I was run down by a truck and I had to undergo a number of operations and nearly died. The people who arranged the accident made it look like an accident and the police were not suspicious that anything else was involved and did not investigate thoroughly. Even I was unaware at the time that it was anything but an accident.
8. I returned to Australia to complete my studies, but I was very upset so I gave up studying. Because of this I lost my visa and was put in detention. I told my father that I wanted to return home. It was then that he told me the truth about his problems. He also told me that Yu Jing Peng has very good connections with local politicians and with underground, criminal elements which gives him considerable power. He told me that he feared for my life if I returned to China.
Why I left China
9. My father sent me to study in Australia because he was concerned for my safety. I did not know this at the time.
What I fear may happen if I go back to China
10. I fear that I will be killed or physically harmed, or detained or face other forms of serious discrimination if I return to China because of my father’s activities which have led to him being branded a follower of Falun Gong and viewed as a political opponent of local officials. I believe that I am at risk of being falsely accused of following Falun Gong in Australia and jailed because of this.
Who I think will harm/mistreat me if I am forced to go back to China
11. I fear that Yu Jing Peng will use his power and influence to arrange for me to be harmed by corrupt officials or criminals.
Why I think I will be harmed/mistreated if I go back to China
12. I believed that I will be harmed because I am a member of my father’s family. My father has been targeted by local authorities because he has been imputed with the reputation of being a political opponent and a follower of Falun Gong by his enemies.
Why I think the Chinese authorities will not protect me if I am forced to go to China
13. The Chinese officials will not protect me because they have been influenced by Yu Jing Peng to see my father as an opponent and a Falun Gong follower and will view me in the same light.
At the Tribunal hearing, the applicant also claimed that his family had received threatening phone calls and that he was in a second traffic accident not long after the incident with the truck. He said that this accident had occurred in an area where accidents should not occur.
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)key aspects of the applicant’s claims were expressed in vague and general terms. For example, the applicant did not know:
i)Mr Yu’s position in the company where his father worked;
ii)how his father discovered Mr Yu’s illegal activities;
iii)how the matter was reported to the authorities;
iv)why Mr Yu was pursuing his father and his family all these years;
v)who had thrown bricks at the family house;
vi)who had made phone threats against them; and
vii)who was responsible for the two traffic incidents in which he was involved;
b)based on the applicant’s own evidence that neither he nor his mother were suspicious about the two traffic accidents at the time they occurred, the Tribunal was not satisfied that the accidents were indicative of a deliberate plot by Mr Yu to inflict harm on the applicant;
c)the Tribunal was not satisfied that the applicant was harmed or that there is a real chance that he will be harmed for a Convention reason, noting:
i)the applicant’s father had exposed individual, rather than systemic, corruption;
ii)there was no evidence that his father’s act was a form of opposition to, or defiance of, state authority or governance;
iii)the subsequent acts of harassment and harm alleged to have been suffered by the applicant and his family were caused by Mr Yu’s acts of revenge and intimidation and were not essentially or significantly for the reason of any imputed political opinion or any other Convention reason;
d)the Tribunal considered the applicant’s claim that he would be imputed with political opinions or religious beliefs if he returned to China to be mere assertion;
e)the Tribunal was not satisfied that the applicant’s mother had lost her job as a result of an imputed belief or opinion or because of Mr Yu’s animosity towards her husband, finding that the applicant’s evidence regarding the reasons for the termination to be pure speculation and based on his own assumptions that his mother could not possibly have been retrenched for restructuring reasons;
f)as to the applicant’s fear arising from his membership of the particular social group made up of his family, because the Tribunal found that the essential and significant reason behind the harm directed at the applicant’s father was not for a Convention reason, s.91S of the Act applied to the claim, with the consequence that it found that the applicant did not have a well-founded fear of persecution by reason of his membership of his family.
g)the Tribunal found that it would be reasonable for the applicant to relocate within China as:
i)Mr Yu’s campaign against his father was highly localised in Zibo;
ii)it is reasonable for the applicant to join his mother in Jilin or to relocate somewhere else; and
iii)the applicant is young, has studied English in Australia and has shown a capacity to adapt to new environments.
Proceedings in this Court
An issue which was apparent early in these proceedings was whether the applicant’s application to this Court had been filed out of time. In his application, he said that he received notification of the Tribunal’s decision on 29 December 2006. On 12 July 2007 the Full Court of the Federal Court delivered its judgment in Minister for Immigration & Citizenship v SZKKC [2007] FCAFC 105 which explained the interaction of s.477 with other provisions in the Act dealing with how Tribunal decisions must be notified to applicants. Although the Minister had originally indicated that he would argue that the application in this Court was filed out of time, given the Full Court’s decision in SZKKC’s case he did not press the issue at the hearing and no evidence on this issue was led by any party. Notwithstanding what is contained in the application there is insufficient evidence upon which I can conclude that the Tribunal’s decision was notified to the applicant at any particular time in the manner required by SZKKC’s case. In circumstances where the Minister no longer asserts a failure to comply with s.477 I will proceed to deal with the substantive application.
The grounds of the application are pleaded as follows:
1. The RRT failed to determine the meaning and application of “social group” according to law.
2. The RRT failed to send the applicant a 424A letter as [it] was compelled to do.
At the hearing the applicant also submitted that:
a)the Tribunal dealt with his case in a brash way because it only took two days to deal with it;
b)the applicant’s unfamiliarity with the Tribunal process and his unfamiliarity with the law meant that he ought to be able to put additional information before the Tribunal;
c)if the Tribunal was not satisfied with the applicant’s evidence he should have been given an opportunity to put further material before it.
Dealing with each of these grounds in turn:
The RRT failed to determine the meaning and application of “social group” according to law
In Applicant A & Anor v Minister for Immigration & Ethnic Affairs & Anor (1996) 190 CLR 225, Dawson J said at 241 – 242:
A particular social group, therefore, is a collection of persons who share a certain characteristic or element which unites them and enables them to be set apart from society at large. That is to say, not only must such persons exhibit some common element; the element must unite them, making those who share it a cognisable group within their society … However, one important limitation which is, I think, obvious is that the characteristic or element which unites the group cannot be a common fear of persecution.
In the same case Gummow J said at 285:
… numerous individuals with similar characteristics or aspirations in my view do not comprise a particular social group of which they are members. I agree with the statement in Ram:
There must be a common unifying element binding the members together before there is a social group of that kind. When a member of the social group is being persecuted for reasons of membership of the group, he is being attacked, not for himself alone or for what he owns or has done, but by virtue of his being one of those jointly condemned in the eyes of the persecutors, so that it is a fitting use of language to say that it is “for reasons of” his membership of that group. (footnote omitted).
At page 270 of that report, McHugh J referred to the requirement that there be a social attribute or characteristic linking the individuals in question such that they could be perceived as a particular social group for Convention purposes.
As the Tribunal noted in this review, a family can be a particular social group: Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 at 396 per Dawson J; Minister for Immigration & Multicultural Affairs v Sarrazola (No. 2) (2001) 107 FCR 184. Consequently, the Tribunal did not fail to determine the meaning of “particular social group” according to law.
As to its application of that concept to the circumstances of this case no error is demonstrated by the way it applied s.91S of the Act. Section 91S provides:
For the purposes of the application of this Act and the regulations to a particular person (the first person ), in determining whether the first person has a well‑founded fear of being persecuted for the reason of membership of a particular social group that consists of the first person's family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol; and
(b) disregard any fear of persecution, or any persecution, that:
(i) the first person has ever experienced; or
(ii) any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
The Tribunal identified that the persecution suffered or feared by the applicant’s father was not for a Convention reason. This conclusion reflects the process required by s.91S(a). The Tribunal then proceeded to apply s.91S(b) by disregarding the applicant’s claimed fear of persecution on the basis that it would not exist if it were assumed that his father’s persecution or fear of persecution had never existed. As the Tribunal said:
The Tribunal has already found that the essential and significant reason behind the harm directed at the applicant’s father was not a Convention reason. The applicant fears that he is likely to be harmed by Mr Yu because the conflict between him and his father has not ended and may intensify because of his mother’s efforts towards appealing his father’s case to a higher court. In other words, the applicant’s fear arises from being a relative of a person targeted because of revenge or because he may impart information that could uncover criminal activity. Accordingly, pursuant to s.91S, the Tribunal finds that the applicant does not have a well-founded fear of persecution for the reason of membership of a particular social group, being the applicant’s family. (CB 76).
Based on the findings of fact made by the Tribunal, this is a correct application of s.91S. Consequently, no jurisdictional error is demonstrated in relation to this asserted ground of review.
The RRT failed to send the applicant a s.424A letter as [it] was compelled to do
No particulars of this asserted ground of review have been provided by the applicant. The Tribunal’s decision was based on information provided by the applicant at the hearing, rather than on information from other sources. Certainly, information given at the hearing reflects what the applicant had said in the statutory declaration attached to his application for a protection visa but the repetition of that information at the hearing brings it within the exception found in s.424A(3)(b).
As the information relied upon by the Tribunal in affirming the decision of the delegate was not information requiring a s.424A(1) notice, no jurisdictional error is demonstrated by the fact that the Tribunal did not send such a notice.
The Tribunal was brash
Although at the hearing the applicant was asked more than once what he meant by “brash” he failed to give a clear response.
The fact that the applicant links this alleged conduct with the fact that the Tribunal allegedly reached its decision within two days of the hearing suggests that he means by this claim that the Tribunal failed to give proper consideration to the review application. However, it is apparent from the Tribunal’s decision that it considered the information placed before it by the Minister’s department and by the applicant after having given the applicant an opportunity at the hearing to put his case.
This claim can also be interpreted to be an allegation that the Tribunal had prejudged the review application and that the comparatively short space of time between the hearing and the signing of the decision indicates this. This claim is not made out. The Tribunal invited the applicant to a hearing at which it asked him numerous questions and allowed him to give evidence and advance arguments in support of his application for a protection visa.
The application did not present complex issues of fact or law and the ability of the Tribunal to reach a decision within a short timeframe is a reflection of this reality, rather than of lack of consideration or prejudgment.
In any event, on the subject of bias or prejudgment, the Tribunal’s decision record is the only evidence on the subject before the Court. There is no reason, based on that decision record, to conclude that the Tribunal approached its task with a mind which was not open to persuasion.
Consequently, this asserted ground of review is not made out.
The applicant was unfamiliar with Tribunal process
Whether the applicant was familiar or unfamiliar with the Tribunal process is not grounds for a claim of jurisdictional error. As far as the operation of the Tribunal is concerned, the natural justice hearing rule is codified by s.422B of the Act and there is no basis to conclude that the Tribunal breached any of its obligations in that respect.
The fact that the applicant may have been unfamiliar with the Tribunal process does not entitle him, following the Tribunal’s decision, to put further material before it. Having invited the applicant to a hearing pursuant to s.425 of the Act the Tribunal proceeded to give him a real and meaningful hearing at which he had the opportunity to give evidence and present arguments. In this regard, the Tribunal’s invitation to the applicant to attend the hearing (CB 58 – 59) clearly stated that the applicant was invited to a hearing at the Tribunal “to give oral evidence and present arguments in support of your claims” (CB 58). That was the applicant’s opportunity and it is to be observed that the applicant appeared at the hearing assisted by an adviser. Consequently, there is no basis to conclude that the applicant was not given a full opportunity to put before the Tribunal what he wished it to consider and as a result this asserted ground of review is not made out.
Tribunal should have alerted the applicant to its concerns about his evidence
This ground suggests that the applicant was not given a real and meaningful hearing because he was prevented from addressing certain particular concerns of the Tribunal. The Tribunal’s decision sets out the course of the applicant’s hearing before it which indicates that a number of matters were raised by the Tribunal with the applicant. However, the Tribunal’s reasoning process, which is what the applicant appears to be referring to, does not fall within the Tribunal’s s.425(1) obligations to invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. As the High Court said in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 at [48]:
… Lord Diplock said in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry:
“the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished.”
Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment. (footnotes omitted).
The Tribunal had no obligation to expose its reasoning processes to the applicant in order that he could adduce additional evidence or make further arguments. Consequently, no jurisdictional error is demonstrated in relation to 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 thirty (30) paragraphs are a true copy of the reasons for judgment of Cameron FM.
Associate:
Date: 9 October 2007
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