SZKPD v Minister for Immigration
[2008] FMCA 137
•15 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKPD v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 137 |
| MIGRATION – Review of decision of refugee review Tribunal – whether jurisdictional error – whether applicant had a well-founded fear of persecution for a Convention reason – no obligation on Tribunal to conduct investigations. |
| Judiciary Act 1903 (Cth) s.39B Migration Act 1958 (Cth) ss.5, 36, 65, 91, 424, 426, 427 |
| Minister for Immigration & Multicultural & Indigenous Affairs v VSAFof 2003 [2005] FCAFC 73 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 WAGJ & Minister for Immigration & Mulitcultural & Indigenous Affairs [2002] FCAFC 277 SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90 Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 Abebe v Commonwealth (1999) 197 CLR 510 WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 |
| Applicant: | SZKPD |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1439 of 2007 |
| Judgment of: | Orchiston FM |
| Hearing date: | 14 December 2007 |
| Date of last submission: | 14 December 2007 |
| Delivered at: | Sydney |
| Delivered on: | 15 February 2008 |
REPRESENTATION
| Applicant appeared in person |
| Counsel for the Respondents: | Mr J Mitchell |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application filed on 4 May 2007 is dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $5000 payable within five (5) months of the date of these Orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1439 of 2007
| SZKPD |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Application
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth), as amended, (“the Act”) seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 6 March 2007 which affirmed the decision of the delegate of the respondent Minister (“the delegate”) to refuse to grant a protection visa to the applicant.
Background
The applicant was born on 24 September 1971 and was aged 34 years at the time of his application for a protection visa.
The applicant claims to be a national of the People's Republic of China (China).
The applicant arrived in Australia on 7 August 2006 on a Chinese passport issued in his name holding a subclass 676 visa, which was valid for 13 days.
The applicant lodged an application for a protection visa on 18 August 2006 on the basis that he had witnessed a lot of corrupt behaviour by Chinese officials and that he feared for his safety if he returned to China as some officials wanted to kill him. (Court Book (CB) 36).
On 17 October 2006 the delegate (CB 36-39) refused to grant the applicant’s protection visa on the basis that the applicant was not a person to whom Australia had protection obligations under the Refugees Convention (see Legislative framework).
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or particular opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Section 91R and s.91S of the Act refer to the persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Tribunal proceedings
On 20 November 2006, the applicant applied to the Tribunal for review of the delegate’s decision (CB 40-44).
On 4 December 2006 the Tribunal sent a letter to the applicant inviting him to appear before the Tribunal on 14 February 2007 to give oral evidence and present arguments (CB 47-48).
On 14 February 2007 the applicant appeared before the Tribunal to give evidence and present arguments, with the assistance of a Mandarin interpreter.
The applicant’s claims and evidence (CB 81-82)
The Tribunal summarised the applicant’s claims in the protection visa application (CB.81-82). The applicant claimed that he was a businessman working for two Taiwanese companies in Fuqing City, Fujian Province in China. As part of his work, he had witnessed a lot of "under the table" business, including bribery of corrupt high level officials. The applicant claimed that in October 2004 two of his Taiwanese friends returned to Taiwan because they were in trouble. They suggested that he also leave China. The applicant subsequently moved to Shanghai. In February 2006 the applicant heard that his "boss" from one of the companies that he worked for had gone missing. The applicant contacted his Taiwanese friends who claimed that they had been threatened. Weeks later the applicant spoke with his brother who told him that an official from the Fujian Provincial People's Government wanted to see him. He subsequently left China. He feared for his safety because some officials wanted to kill him.
At the Tribunal hearing, the applicant claimed that the companies that he had worked for were complicit in a tax evasion scheme and had co-operated with corrupt officials. The companies had smuggled cargo to evade taxes and thereby avoid obstructions imposed by corrupt officials on the conduct of their trade with Taiwan (CB 84–85).
The Tribunal’s findings and reasons (CB 87-90)
On 6 March 2007 The Tribunal handed down its decision.
I accept that the first respondent has accurately summarised the Tribunal’s findings and reasons, namely that there was no evidence that the applicant was targeted for his political opinion or that he was perceived to be a member of some vulnerable particular social group. Rather, any harm the applicant feared was attributable to his being complicit in corruption.
For these reasons, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason if he were to return to China, and affirmed the decision under review.
The proceedings before this Court
The applicant filed the application in this Court on 4 May 2007, setting out two grounds for review of the Tribunal’s decision.
On 24 May 2007, the Federal Magistrates Court dismissed the application on the basis that the applicant had been notified of the Tribunal decision by document dated 6 March 2007 and that it was not satisfied that it was in the interests of justice to extend the time for making the application.
On 13 July 2007 the Federal Court made consent orders setting aside the orders made by the Federal Magistrates Court and remitted the matter for determination according to law.
The applicant appeared in person before this Court on 14 December 2007 with the assistance of a Mandarin interpreter. Mr Mitchell of counsel appeared for the first respondent.
Grounds of application
The two grounds of the application are:
1. The Member of RRT did not fully understand the nature of my involvement with corrupt officials when I conducted business back in China. My life and freedom would be in great danger if I return to China
2. In accordance with this conclusion, without proper investigation, the Member concluded that I have no well-founded fears according to the Convention.
Ground 1 of the application
I note that the applicant has not provided particulars of this ground, nor has it placed the transcript of the Tribunal proceedings before the Court.
In any event, contrary to the applicant’s assertion, I consider that the Tribunal, in its findings and reasons (CB 87–90), closely considered the applicant's claims concerning the nature of his business affairs in China, his involvement with corrupt officials in conducting that business, and the evidence in support of those claims.
In this regard, the Tribunal observed that:
…there was no evidence that the applicant was targeted for his actual or imputed political opinion or that he was perceived to be a member of some vulnerable particular social group (CB 88)
and
[T]here is no evidence in this case that the applicant has expressed a political opinion against official corruption and has been targeted as a consequence (CB 89–90).
Rather, it held that:
…any fear that [the applicant] perceives of harm upon return to the People's Republic of China is attributable to him being complicit in corruption, i.e. tax evasion and the smuggling of cargo to avoid the payment of taxes (CB 90).
I consider that it was open to the Tribunal, on all the evidence before it, to reach the conclusion that it was not satisfied that there was a causal connection between the applicant’s fears in this regard and one or more of the Convention grounds and hence it was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason. I consider that it performed the task required of in accordance with law.
Accordingly, Ground 1 of the application is rejected.
Ground 2 of the application
The second ground of the application is to the effect that, without proper investigation, the Tribunal concluded that the applicant did not have a well-founded fear according to the Convention.
As already stated under ground 1 above, the applicant has not provided particulars of the ground, nor the transcript of the Tribunal proceedings before the Court.
The Tribunal has the power under s.424 of the Act to "get any information that it considers relevant". This provision, however, is permissive not prescriptive. As recognised by the Full Federal Court in Minister for Immigration & Multicultural & Indigenous Affairs v VSAFof 2003 [2005] FCAFC 73 at [20]:
If his Honour meant that the Tribunal should have sought information from other sources available to it under s.424, the existence of such an obligation is denied by a substantial body of authority. See Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (with whom Gleeson CJ agreed) and at [124] per Callinan J; Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553 at 561 and SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90 at [8]; SJSB at [16].
Further, whilst the Tribunal may summons a person in Australia to give evidence on oath or affirmation or to produce documents: s.427(3),(4), again these are discretionary provisions.
An applicant may also request the Tribunal to call one or more persons as a witness to give oral evidence under s.426(2) of the Act. However, whilst the Tribunal must have regard to the applicant’s wishes, it has no statutory obligation to obtain any evidence (orally or otherwise) from that person or persons: s.426(3). As stated by the High Court in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43]:
…s.426 provides that, even if an applicant requests that the Tribunal take oral or written evidence from a witness …the Tribunal is not required to obtain such evidence. Thus, the Tribunal is under no duty to inquire.
In any event, in the present case the applicant stated that he did not wish to call anyone as a witness (as indicated by the applicant ticking the "No" box to questions 2c and 2d, concerning an applicant calling witnesses or bringing someone to the hearing, on the Response to Hearing Invitation form: CB 53).
The Tribunal also has the power to require the Secretary of the Department to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination: s.427(1)(d). It is clear that s.427(1)(d) does not impose any legal obligation on the Tribunal. As stated by the Full Federal Court in WAGJ & Minister for Immigration & Mulitcultural & Indigenous Affairs [2002] FCAFC 277 (29 August 2002) at [24]:
It is not a procedure “required by the Act” within the meaning of s.476(1)(a).
The Tribunal further has the power to summons a person in Australia to give evidence on oath or affirmation and/or to produce documents: s.427(3)(4). Again, however, these are discretionary provisions and do not impose any duty on the Tribunal to do so.
It is well settled that a decision-maker is not required to make the applicant’s case for him or her: Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 at 169-70. Indeed, an applicant will have to supply the relevant facts of his or her case in as much detail as is necessary to enable the Tribunal to establish the relevant facts. As observed by the High Court in Abebe v Commonwealth (1999) 197 CLR 510 at [187]:
It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.
The Tribunal therefore was under no obligation, either statutory or otherwise, to conduct inquiries or to undertake investigations of the applicant’s claims in this case. As relevantly observed by the Full Federal Court in WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 at [73]:
As to the claim that the Tribunal was under a duty to make inquiries as to the contents of the Emergency Provision Ordinance, we agree with the primary judge that there was no evidence of those provisions before the Tribunal. The Tribunal was not under a duty to make inquiries in relation thereto (WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 277). It was for the appellant to make his case before the Tribunal. It was open to the appellant to have produced evidence before the Tribunal as to the content of the Emergency Provision Ordinance.
Having properly considered the evidence before it, the Tribunal was under no obligation to conduct any further investigation before concluding that the applicant did not have a well-founded fear for a Convention reason.
Accordingly, Ground 2 of the application is rejected.
Conclusion
The Court finds that the Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act this Court has no jurisdiction to interfere.
The application before this Court is dismissed.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Orchiston FM
Associate: Duncan Maconachie
Date: 15 February 2008
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