SZKNT v Minister for Immigration

[2007] FMCA 1725

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKNT v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1725

MIGRATION – Review of a Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91X, 476

Applicant: SZKNT

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG1292 of 2007

Judgment of: Lloyd-Jones FM

Hearing date: 22 August 2007

Delivered at: Sydney

Delivered on: 25 October 2007

REPRESENTATION

Advocate for the Applicant: The applicant appeared in person with the assistance of a Mandarin interpreter

Counsel for the Respondents: Mr J Smith

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application filed on 23 April 2007 is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1292 of 2007

SZKNT

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Proceedings

1. The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZKNT”.

2. These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.476 of the Migration Act filed in the Sydney Registry of the Federal Magistrates Court of Australia on 23 April 2007 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 12 March 2007 and notified to the applicant by letter on 3 April 2007, affirming a decision of a delegate of the first respondent made on 4 November 2006, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal.

3. A Court Book (“CB”) prepared by the first respondent's solicitors was filed and served on 25 May 2007. I have marked it Exhibit “A” and it was read into evidence.

Background

1. The Tribunal decision of S Norman, reference 061016662, provides the following background information:

   The applicant, who claims to be a citizen of the People’s Republic of China arrived in Australia on 7 October 2006 and applied to the Department of Immigration and Multicultural Affairs for a Protection (Class XA) visa on 24 October 2006.  The delegate decided to refuse to grant the visa on 4 November 2006 and the applicant applied to the Tribunal on 8 December 2006 for review of the delegate’s decision.

   (CB 59)

2. The Tribunal decision sets out the applicant’s claims under the heading “Claims and Evidence”:

   He claimed to be a national of The People’s Republic of China (PRC).  He claimed to have fled the PRC due to ‘suffering the endless persecution and molestation from the Chinese Government”.

   The applicant claimed to have been a farmer and in 1995 to have moved to Qianjian City where he commenced a business at the Laoxin Fruit Market.  He claimed this market was operated by government department so he ‘became a government employee’.  He claimed that the PRC ‘being a government employee meant that you never worried about your living problem’.  However, since 2003 the government department had raised the ‘management fees up to 30% every year which resulted in one third of the market farmers withdrew their stalls and had to try other unfamiliar business field’.  Many of the farmers found themselves in straitened financial circumstances.  The applicant then claimed that as a former farmer himself he ‘felt very sorry about these farmers…To help them as a collector, [he] usually delayed to collect the fees and refused to enforce the order from the head office.’  The applicant claimed he even suggested to the farmer they sue to government administrator.

   In July 2005, the farmers lodged a suit at a named court.  The applicant claimed the court did not accept the suit as ‘the jurisdiction in China is not independent but well controlled by the government and the Communist Party’.  The farmers sought the applicant’s advice.  He then claimed that ‘on the first day of August 2005 a farmer’s union was established in Laoxin Town and [the applicant] was elected to be a leader.’  In August and September 2005, the ‘union members [repeatedly] disclosed the evil doings in the public place in Qianjian City.’  Many farmers subsequently joined the union.  The applicant’s role in the union was ‘discovered as Qianjian TV broadcasted one of [the unions] assemblies and union members [including the applicant] appeared on the TV.’  The applicant claimed he had previously been warned by the government administration of the market when he had been refused to collect the fees from the farmers but that after he was seen on TV he had been dismissed from his job (on 30 December 2005).  He claimed his superannuation had been forfeited.  The applicant was angered by this and he and the union members ‘since December 20005…made calls to the National Appeal Bureau and posted the appeal letters.’

   In the evening of 9 January 2006, two men ‘who looked like cadres’ visited the applicant at his home and showed him the copies of the appeal letters.  One of the men told the applicant they had been ‘secretly authorised by the National Appeal Bureau to investigate the whole things the letter mentioned.’  The man asked the applicant and the other four ‘main members of the union’ to meet at a named place.  The applicant and the other four ‘main members of the union’ attended the address and were arrested, the police in attendance at the meeting, and charged with ‘slandering the Qianjing Government and threatening public security.’  The applicant claimed the National Appeal Bureau had transferred the appeal letters to the local government (Mayor), who had become very angry.

   (CB 61)

3. A summary of the Tribunal decision is contained in the written submissions prepared by Mr Smith for the respondents; I adopt paragraphs four to nine of those submissions:

   4.  The Tribunal accepted that the applicant was involved in protests with a farmers’ union and that, as a consequence lost his job and superannuation.  However, it did not accept that he was arrested and detained because of this involvement.  The Tribunal accepted that the applicant was threatened once to cease his union activities but found that neither he nor any member of his family was later harmed, questioned, or even approached by anyone in China.  It accepted that this may have been because the applicant suppressed his opinion on account of the threat, but in his circumstances, the suppression did not amount to persecution.

   5.  The Tribunal then considered what would happen if the applicant were to return to China.  In this respect, it found that there was no real chance that the applicant would give voice to his political opinions again and come to the adverse attention of the authorities.  Further, it found that he would be able to find a job commensurate with his skill and would not be denied employment for any Convention reason.

   6.  The Tribunal’s findings concerning the suppression of the applicant’s political views give rise to questions similar to those dealt with by the High Court in Appellant s395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473.

   7.  In s395/2002 the majority found that the Tribunal must consider why an applicant will act in a particular way and, in particular, whether it is because of the threat of harm: per McHugh and Kirby JJ at [43] and Cummow and Hayne JJ at [88]. The next question that logically arises is whether the threat of harm itself constitutes persecutory conduct: McHugh and Kirby JJ at [43]. To fail to ask these questions is to be distracted from considering whether an applicant has a well-founded fear of persecution.

   8.  In this case, the Tribunal did deal with the question raised in s395/2002.  First, it accepted that the appellant had changed his conduct because of the threats he had received: CB 64.8.  It also considered the second question and found that the threat resulting in the suppression would not constitute serious harm in the applicant’s circumstances and so was not persecution.

   9.  For these reasons the Tribunal found that the applicant was not a person to whom Australia owed protection obligations and affirmed the decision under review.

Application for review of the Tribunal decision

1. On 23 April 2007, the applicant filed an application for review in this Court under s.39B of the Judiciary Act, which contained the following grounds:

   1.  The RRT had jurisdictional errors in their decision, they did not consider all the evidence before they make their decision.

   2.  The RRT has failed to carry out their responsibilities and I face real danger if I go back to my country.

2. On the first Court date, the applicant indicated that he wished to participate in the Court’s free legal advice scheme. The Court file shows that he was subsequently allocated a panel adviser and that the advice was prepared and sent to him because the adviser was unable to contact him to arrange a conference. The applicant was also granted leave to file an amended application giving complete particulars of each ground of review relied upon by 13 July 2007. The applicant confirmed at the final hearing that he had not filed an amended application. Also on the first Court date, the applicant was given leave to file written submissions 14 days prior to the final hearing. He also confirmed that this order had not been complied with.

Submissions and reasons

1. The applicant is a self-represented litigant who appeared with the assistance of a Mandarin interpreter. The applicant also declined to make oral submissions in support of his application.

2. Mr Smith filed written submissions in response to the only ground in the application – that the Tribunal failed to consider all of the evidence. Mr Smith submits that the evidence before the Tribunal consisted of the Department file (including the original protection visa application and supporting statement), independent source evidence about the political situation in China and the applicant’s oral evidence at the Tribunal hearing. It is submitted that the Tribunal considered each of these categories of information and its consideration is set out in the decision (CB 61, 62-64).

3. In the absence of any particulars in the original pleadings and any written or oral submissions identifying which parts of the evidence were ignored or not considered, it is not apparent from a reading of the Tribunal decision that this allegation can be sustained.

4. It is clearly established that any evidence which the Tribunal relies upon must be recorded in the decision. Evidence which the Tribunal considers has no bearing on its decision does not need to be identified, recorded or explained by the Tribunal. On a fair reading of the Tribunal decision, it is not apparent that any material it relied upon in making its decision was not referred to.

5. The applicant acknowledged that he had received a copy of the first respondent’s written submissions. He declined to make any submissions in response to those written submissions.

6. I have read the contents of the Court Book and the Tribunal decision and it is not apparent from the face of those documents that the Tribunal has made any jurisdictional error in its decision-making process. In the circumstances, I am satisfied that no jurisdictional error exists in the Tribunal decision.

Conclusion

1. I am satisfied that neither of the grounds contained in the application filed in these proceedings can be sustained, nor is it apparent from a fair reading of the Tribunal decision that it contains any jurisdictional error. The application should be dismissed.

2. I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate: 

Date:  25 October 2007