SZKRA v Minister for Immigration
[2007] FMCA 1013
•28 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKRA v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1013 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China as a Christian and as a person convicted of a criminal offence in Australia – Tribunal disbelieved applicant’s claim to have been a Christian in China and disregarded his conduct in Australia – Tribunal considered risk of double jeopardy in China – no reviewable error found – application dismissed. |
| Migration Act 1958 (Cth), ss.48A, 91R, 422B, 425 |
| Abebe v Commonwealth (1999) 197 CLR 510 Applicant S v Minister for Immigration (2004) 217 CLR 387 NBKT v Minister for Immigration [2006] FCAFC 195 SZBEL v Minister for Immigration (2006) 231 ALR 592 SZCIJ v Minister for Immigration [2006] FCAFC 62 |
| Applicant: | SZKRA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1601 of 2007 |
| Judgment of: | Driver FM |
| Hearing date: | 28 June 2007 |
| Delivered at: | Sydney |
| Delivered on: | 28 June 2007 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondents: | Mr G Kennett |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
SYG1601 of 2007
| SZKRA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was signed on 27 April 2007 and handed down on 2 May 2007. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from China and had made claims of religious persecution as well as the risk of him facing double jeopardy for the commission of a crime in Australia. The background is conveniently set out in written submissions filed on behalf of the Minister on
27 June 2007. I adopt as background for the purposes of this judgment paragraphs 1 through to 6 of those written submissions:
The applicant, who is a national of the Peoples Republic of China, arrived in Australia on 6 April 2000. He was included as a secondary applicant in a protection visa application lodged by his father in October 2000, which was unsuccessful. The applicant lodged his own application for a protection visa on 18 December 2006, and the delegate of the Minister proceeded on the basis that this application was not precluded by s.48A of the Migration Act 1958 (Cth) (“the Migration Act”).[1]
[1] Court Book (CB) 37.
This second application was refused by a delegate of the Minister on 10 January 2007,[2] and on 15 January 2007 the Applicant applied for review of that decision by the Tribunal.[3]
[2] CB 35.
[3] CB 47.
The applicant claimed that he feared persecution in China on two bases. First, he claimed that he was a Christian and would not be permitted to participate freely in worship. In his primary application he claimed to have become a Christian in 2003,[4] but before the Tribunal his claim was that he came from a Christian family and his father had suffered harm from the authorities on religious grounds.[5] He feared a repeat of what had happened to his father.[6]
[4] CB 124.
[5] CB 126.
[6] CB 127.
Secondly, the applicant had been convicted of kidnapping while in Australia and had served a prison term. He said that he had discovered provisions in the Chinese criminal law which exposed him to further prosecution for the same offence in China, and that his victim’s parents (who were rich and powerful) wanted revenge for what had happened.[7]
[7] CB 125-126.
The Tribunal did not believe that the applicant came from a Christian family or had been involved in Christianity since childhood. It set out reasons for reaching this view.[8] It did accept that he had acquired some knowledge of Christianity and had been involved in Christian activities in Australia, but was not satisfied that he had done this for reasons other than to advance a claim for refugee status. It therefore disregarded these activities, in accordance with s.91R of the Migration Act.[9]
As to the issues arising from the applicant’s conviction for kidnapping, the Tribunal reached the following conclusions:
i)It did not accept the claims that the victim’s parents had threatened to take action against the applicant or that they had positions of influence, wealth or connections that would allow them to cause harm to him.[10]
ii)It accepted that the applicant was a member of various “particular social groups”, defined as “Chinese citizens convicted of crimes overseas”, “Chinese citizens convicted overseas of high profile crimes” and “convicted criminals in China”.[11]
iii)A person in the applicant’s position could potentially be dealt with or investigated under Chinese criminal law (even though he had been convicted and served a sentence in Australia); and the potential penalty for kidnapping involved a substantial prison sentence, and in some circumstances the death penalty.[12]
iv)However, the same laws also encompassed persons who had not been tried overseas, and were not limited to Chinese citizens. The Tribunal concluded that these laws did not target any particular segment of the population, and were “appropriate and adapted to the legitimate purposes of the State in protecting the safety of its citizens against criminal acts”.[13]
v)In any event, having regard to independent information about the enforcement of the law, the chance of further action being taken against the applicant in China was “remote and insubstantial”.[14] Nor was there any evidence of the law being enforced in a persecutory manner based on any Convention ground.[15]
vi)The applicant might well be disadvantaged in China by his criminal record in Australia, but this would not rise to the level of persecution.[16]
vii)Conditions in Chinese prisons were harsh, but the applicant did not face a real chance of ending up there; and if he did, any harm that befell him would not be for a Convention reason.[17]
[8] CB 137-138.
[9] CB 139.
[10] CB 140.
[11] CB 140-141.
[12] CB 141-142.
[13] CB 142.
[14] CB 143.
[15] CB 143.
[16] CB 144.
[17] CB 144.
These proceedings began with a show cause application filed on
21 May 2007. I find that the application was filed within time. The application contains three grounds. The first is an allegation that the Tribunal failed to recognise and acknowledge the fact that the applicant faces a real chance of persecution owing to belonging to the Christian faith or being of Christian religion if returned to China. Second is the assertion that the Tribunal did not take into account and consideration the fact that, as a citizen and national of the People’s Republic of China, the applicant had committed a crime against another Chinese national whilst in Australia and that the applicant would be charged again for this crime upon returning to the PRC. The particulars refer to articles 8 to 12 of the Criminal Law of China which, according to the applicant, states that:
A Chinese national or citizen who commits a crime against another in a foreign country regardless of whether he or she has received punishment for that crime in the country in which it was committed shall be liable to receive further punishment for that crime upon return to China.
Thirdly, the application alleges that the Tribunal failed to afford the applicant procedural fairness by ignoring and disregarding evidence put forth by the applicant regarding important documents concerning his case that had been lost at the Villawood Detention Centre. The applicant contends that in the result that he was not able to adequately prepare his case before the Tribunal and hence was at a great disadvantage and that this affected the outcome before the Tribunal. The particulars refer to the evidence provided by the applicant to the Tribunal about his efforts to recover his lost property at the detention centre.
The only evidence I have before me is the applicant’s affidavit filed with his application on 21 May 2007 which provides a basic procedural history of the matter and the court book filed on 14 June 2007. The Minister’s submissions deal with the applicant’s contentions in paragraphs 7 to 20. I incorporate those submissions as follows:
The Application (filed on 21 May 2007) lists three grounds of review.
Ground 1 asserts that the Tribunal “failed to recognise and acknowledge” that the Applicant faced harm in China as a Christian.
To the extent that the Christianity claim was based on a background as an active Christian in China since childhood, the Tribunal simply did not believe it. Ground 1 appears to do no more than take issue with the merits of that conclusion. It does not suggest any basis upon which this Court could set the decision aside.
To the extent that the claim was based on involvement in a Christian church in Australia, the Tribunal reached the view that such involvement had to be disregarded as a result of s.91R. There was no error in that approach, based on the conclusion (which was clearly open) that the Tribunal was not satisfied that the Applicant’s involvement in Christianity had occurred for reasons other than bolstering his claim to refugee status.
Ground 2 asserts that the Tribunal “did not take into account and consideration” the fact that the Applicant “would be charged again” for his crime on returning to China.
The Tribunal dealt in detail with the Applicant’s assertion to that effect. Its key finding in this regard was that the chance of the Applicant actually being “reprosecuted” was “remote and insubstantial”:[18] on that basis, there was not a “real chance” that he would suffer persecution on this account. This was a finding of fact, open to the Tribunal, which was sufficient to deal with the claim. However, the Tribunal also considered the character of the law under which the Applicant might be prosecuted in China, and concluded that it was an element of that country’s general criminal law which did not result in persecution on any Convention ground. No error can be seen in this analysis.[19]
Ground 3 asserts that the Tribunal denied the Applicant procedural fairness by “ignoring and disregarding” his evidence that he had lost important documents at the detention centre.
Before the Tribunal, the Applicant said that he had some documents which supported his claim to have been involved in a Christian church in China, but these had been lost on 27 November 2006 when he was transferred to a different part of the Villawood detention centre[20] (“the missing documents claim”). The hearing took place about 2 months later, in February 2007.
The material before the Court does not suggest that the Applicant asked for any additional time to seek fresh copies of the documents; and the Tribunal appears to have considered the missing documents claim only to the extent that, if true, it might support the Applicant’s broader claim to have been involved in a church in China. In light of the adverse view it had taken on the credibility of that claim (and in particular, that no such claim had been raised in the context of his father’s claim for refugee status), the Tribunal did not accept that the documents existed.[21] This finding was clearly open to the Tribunal on the material before it, and does not raise any issue of procedural fairness. A contrary finding by the Court would not establish any jurisdictional error on the part of the Tribunal.
Conceivably, questions of procedural fairness might arise if the Applicant had been hampered in the preparation and presentation of his case by being deprived of important documents. (An argument along those lines would require findings of fact by the Court as to what occurred, rather than review of the Tribunal’s findings.) However, any such argument faces insuperable difficulties in the present case.
First, the Applicant has not adduced any admissible evidence to establish the relevance of any documents which he may have lost to his case before the Tribunal. The material in the Court Book[22] establishes no more than that the Applicant made a complaint about having lost certain property when he was moved to a different part of the detention centre. The date of the first complaint[23] may indicate the existence of a genuine grievance; but the Applicant’s statements in those documents and to the Tribunal are no more than hearsay, in so far as they describe what was lost.
Secondly, assuming that the Applicant lost documents which were important to his case, there is no suggestion that the Tribunal was responsible in any way for that situation. The Tribunal’s duty was to hear the Applicant’s evidence and consider such documents as he was able to put before it. In an appropriate case the general law principles of procedural fairness (if they applied – as to which see below) might require the Tribunal to adjourn its hearing, or delay its decision, to allow an applicant time to replace important documents that he or she had lost. But in the present case there is no record of a request for such delay. Nor is there any indication of whether the documents could have been replaced if the opportunity were given (or, if they could, whether the time that had elapsed since their loss was insufficient for this purpose).
Thirdly, the Tribunal’s obligations of procedural fairness were limited (by s.422B of the Migration Act) to complying with the particular provisions of Division 4 of Part 7 of the Migration Act.[24] The Minister would not concede that any provision of Part 4 requires the Tribunal to take particular action in a case where the review applicant has lost documentary evidence that might support his claims. In particular, s.425 of the Act requires that the applicant be invited to an oral hearing, and (it would seem)[25] to ensure that all the live issues in the review are canvassed at that hearing. It does not impose any broader obligation to assist in the presentation of a case for refugee status (such as providing assistance in overcoming difficulties that may arise in bringing documentary material before the Tribunal). Fundamentally, it is the task of the applicant to bring before the Tribunal material to satisfy it that he or she is a refugee.[26]
Accordingly, even if it were established that the Applicant had lost documents that were critical to his case in November 2006 (and if this were due to the fault of the detention centre operator), it would not follow that the Tribunal had failed to comply with its statutory duties in any respect.
[18] CB 143.
[19] The conclusion that the law did not single out any section of the population (CB 142) would seem to deny it the discriminatory operation which would require consideration of whether the law was “appropriate and adapted to achieving some legitimate object”: cf. Applicant S v Minister for Immigration (2004) 217 CLR 387, 402.
[20] CB 125. The claim was supported by copies of written complaints that the applicant had made to the operator of the detention centre (CB 103-117).
[21] CB 138.
[22] CB 103-117
[23] 7 December 2006 – CB 116.
[24] SZCIJ v Minister for Immigration [2006] FCAFC 62; NBKT v Minister for Immigration [2006] FCAFC 195 at [85].
[25] In the light of SZBEL v Minister for Immigration (2006) 231 ALR 592.
[26] See e.g. Abebe v Commonwealth (1999) 197 CLR 510, 576 [187].
I also heard oral argument from the parties at the hearing today. In his submissions the applicant stressed the risk that he faced of double jeopardy in China, including the application of the death penalty. He also remains concerned that he has been unable to resolve the question of his lost property at the detention centre.
In my view there is no substance for the first ground of review. The Tribunal gave detailed and thoughtful consideration to the applicant’s claims. The Tribunal did not accept that the applicant had been a Christian in China and disregarded his involvement with a Christian church in Australia pursuant to s.91R(3) of the Migration Act. The Tribunal met its responsibilities to consider and make a decision on the applicant’s claims. It was of course under no obligation to accept those claims. The first ground is in substance an attack upon the merits of the Tribunal decision.
As to the second ground, the Tribunal gave detailed and careful consideration to the issue of double jeopardy. The issue raised by the applicant was an important one that deserved and got serious consideration. The Tribunal was entitled, on the material before it, to find that the Chinese law was a law of general application and, that in any event, the risk of the applicant being prosecuted in China a second time for the same offence was insubstantial. It may not have been necessary to consider whether the applicant faced a risk of harm in China as a member of one or more particular social groups but to the extent that the Tribunal contemplated the possibility that it might have been wrong that consideration was appropriate. I see no error in the Tribunal’s approach.
Ground 3 in the application faces several difficulties. The first is that the applicant did not, according to the available material, seek to engage the discretions available to the Tribunal to adjourn the review or to conduct specific inquiries. If he had there may have been an issue whether the Tribunal’s discretion had miscarried. The applicant had put to the Tribunal that the documents he said had been lost bore upon the credibility of his claim to have been a Christian in China. As the Tribunal was satisfied on the material before it that that claim lacked credibility it was in my view open to the Tribunal to conclude that it was not satisfied that any further documents supporting the applicant’s claims existed. The fact that the company operating the Villawood Detention Centre may have been at fault in the loss of the applicant’s property did not prevent the Tribunal from resolving the application before it on the material before it. I find that no jurisdictional error is established in relation to the third ground of review.
No other jurisdictional error is apparent to me on the basis of the material. I therefore find that the decision of the Tribunal is free from jurisdictional error and that the decision is a privative clause decision. The application therefore must be dismissed. I so order.
The application having been dismissed, costs should follow the event. The Minister seeks an order for costs fixed in the sum of $4,500. Scale costs in the present circumstances would be $5,000. The applicant referred to his impecuniosity but, as has been repeatedly stated, that is not a reason for the Court to refrain from making a costs order.
I accept that costs of not less than $4,500 have been properly and reasonably incurred on behalf of the Minister when assessed on a party and party basis. I order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application fixed in that amount.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 2 July 2007
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