SZKRC v Minister for Immigration
[2007] FMCA 1284
•26 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKRC v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1284 |
| MIGRATION – RRT decision – Chinese applicant – imprisonment in Australia – fears of further prosecution and retribution if returned to China – claims also based on religion and political opinion – no jurisdictional error identified in Tribunal proceedings – application dismissed. |
Migration Act 1958 (Cth), ss.424A, 476
| Applicant: | SZKRC |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1604 of 2007 |
| Judgment of: | Smith FM |
| Hearing date: | 26 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 26 July 2007 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Mr S Lloyd |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1604 of 2007
| SZKRC |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application filed on 21 May 2007 in which the applicant seeks relief under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”) in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 20 April 2007 and handed down on that day. The Tribunal affirmed a decision of a delegate dated 19 December 2006, refusing to grant the applicant a protection visa.
The applicant has been held in immigration detention throughout the processing of his visa application and currently, and I therefore set his application down for a final hearing today, notwithstanding that it did not appear to raise an arguable case for relief. I did so at a first court date on 12 June 2007, where the applicant had the assistance of a Mandarin interpreter.
The applicant has been given an opportunity to amend his application after receiving a bundle of relevant documents and advice from a lawyer under the free legal advice scheme. However, he has not filed an amended application, nor any additional evidence or written submissions. At the start of today’s hearing he applied for an adjournment on the grounds that he was awaiting further documents to be produced by the Department of Immigration under the Freedom of Information Act, that he wanted more time to look for a lawyer to present his case to the Court, and that he wanted an opportunity to present the Court with a transcript of the tapes of the hearing before the Tribunal.
However, I declined to adjourn the case. I did not consider that there was a prospect that the Freedom of Information Act request would produce material which would have relevance to the present proceeding. I considered that the applicant had been given sufficient opportunity to obtain assistance from a lawyer, and that he had had sufficient time to obtain a transcript of the hearing. In the latter respect, I was informed that the tapes of the hearing had been sent to the solicitor who assisted the applicant before the Tribunal in February 2007, and had also been sent to the barrister appointed under the free advice scheme.
The Court’s jurisdiction under s.476 is “the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution”, but the Court’s powers are confined so that I do not have power to send the matter back to the Tribunal, unless I am satisfied that its decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant qualifies for a protection visa or any other permission to stay in Australia.
The applicant came to Australia on a student visa in 1989. Some months after his arrival, he was charged with a serious crime for which he was convicted and sentenced to a lengthy period of imprisonment. When he was released he initially wished to return to China, but a desire within the Department of Immigration to investigate his position under Chinese criminal law, and to consider his claims for residence in Australia, caused him to be detained.
The applicant himself then presented fears of returning to China, and sought assistance to make a claim for a protection visa. This was provided to him by the Refugee Advice and Case Work Service who presented both to the Department, and subsequently to the Tribunal, well‑considered submissions supported by statements of the applicant and some evidence which he obtained from China, being two letters from his sister.
I do not propose to describe in detail the applicant’s claims which were initially set out in a statement attached to the protection visa application. In short, he presented five reasons for fearing persecution. The first was that a relative of a victim of the crime for which he was sentenced in Australia might seek revenge, and “the Chinese authorities will not be able to protect me because [that person]’s brother‑in‑law is a high‑ranking police officer”.
The second reason was that the crime in Australia concerned Chinese citizens, and the applicant feared that he would be imprisoned for the same offence if he returned to China. In relation to this claim, the applicant’s solicitor drew attention to provisions in the Chinese criminal laws which permitted prosecution notwithstanding that a person “has been tried in a foreign country”.
The third reason for seeking protection was that “I am a Christian”. The applicant claimed to have been attracted to Christianity in the course of his imprisonment. He presented to the Tribunal evidence that he had been participating in religious services conducted by the Hillsong Church at Villawood, and had recently been baptised there.
The fourth reason for seeking protection was that “I will face persecution because of my real or imputed political opinion”. The applicant referred to some support he had given in China to the pro‑democracy movement before he came to Australia in 1989, to some involvement with Chinese student groups in Australia before he was taken into custody in Australia, and fears that he would be attributed with anti‑Chinese activities arising from his period of residence in Villawood Immigration Detention Centre and his association there with persons practising Falun Gong or who had been involved in anti‑Chinese activities.
The fifth reason for claiming protection was presented after the applicant appealed to the Tribunal. This was that the applicant had commenced practising Falun Gong with other detainees at Villawood, but had been doing so only for the benefit of his health and “his religion remains Christian”.
The submissions from the applicant’s solicitor to the Department and to the Tribunal sought to relate the applicant’s fears of criminal prosecution and retribution to one of the reasons covered by the Convention definition, by submitting that the applicant in China would be a member of several “particular social groups” identified in various ways which I shall refer to further below.
In my opinion, both the delegate and the Tribunal considered all of these claims in a careful and thorough fashion in their statements of reasons. It is unnecessary for me to examine the delegate’s reasoning. On its part, the Tribunal considered the oral evidence given by the applicant, both in an interview held in the Department, and when the applicant attended a hearing before the Tribunal on 31 January 2007. The Tribunal considered the applicant’s responses to a letter sent under s.424A, raising concerns about some inconsistencies in his evidence which had also been raised with him at the hearing. It considered independent evidence bearing upon all of the concerns raised by the applicant.
Under the heading “Findings and Reasons”, the Tribunal first addressed the applicant’s claim that he would be a victim of revenge by a high‑ranking police official related to the victim of his crime. The Tribunal examined the applicant’s evidence about this, in the terms that it had been given at various stages and also in the letters from the sister in China. It noted inconsistencies in his evidence, and rejected some versions of when he had become aware of that person’s activities as implausible and inconsistent. The Tribunal then made findings which, in my opinion, fully and sufficiently addressed the claims in relation to that person:
The Tribunal has considered the applicant’s assertions that the first he heard about the ongoing threats by the brother in law was after he was transferred to Villawood and phoned his family. The Tribunal does not accept that this evidence overcomes the evidence in the sister’s letter dated 1 November 2006 that she had told him of the threats before his release.
In addition, the Tribunal finds it highly implausible that the NSW police would have advised the applicant at his trial that there was a person present who was [the victim’s] brother in law and that if the applicant returned to China he would be shot.
Given the findings above regarding the applicant’s evidence about the brother in law of [the victim], the Tribunal does not accept that the brother in law of [the victim] … is a high ranking police official in [location]. The Tribunal does not accept that [the victim’s] brother in law has played any part in the applicant’s life or the life of his family, and thus does not accept that he will be an agent in instigating any action that might be taken by the authorities against the applicant under Chinese Criminal law. The Tribunal does not accept that the brother in law made threats against the applicant during his trial in Australia or that he made threats to the applicant’s family that he would exact revenge on the applicant if he returned to China, by taking action under the provisions of Chinese criminal law and have him reprosecuted for the [crime on] [the victim].
The Tribunal also does not accept that the brother in law of [the victim] has other information about the applicant’s circumstances, such as his involvement in student activities in Australia in 1990, that he will use to take action through the authorities which would lead to the applicant being mistreated by the authorities. The Tribunal does not accept that he will take action as a private agent resulting in serious harm to the applicant, as revenge for the crime against his relative of which the applicant was convicted.
The Tribunal does not accept that [the victims] …, were well connected to persons in China who might use their positions or influence to instigate action against the applicant under the Chinese Criminal law or action against the applicant resulting in serious harm on a private basis.
The Tribunal then addressed the applicant’s fear of being prosecuted for a second time in relation to events in Australia. When doing so, it accepted submissions from the applicant’s solicitor that he could be identified as a member of a particular social group within the Convention definition, with the group being defined either as “Chinese citizens convicted of crimes overseas”, or “convicted criminals in China”, or “Chinese citizens convicted overseas of high profile crimes”, or “perpetrators of crimes involving well‑connected victims”, or “Chinese citizens subject to Articles 8‑12 of the Chinese Criminal Law”, those being the articles concerning prosecution of crimes committed overseas and by foreigners. It is unnecessary for me to consider whether the Tribunal’s identification of these “social groups” was attended by any misunderstanding of relevant principles, since it only advantaged the applicant.
In respect of the group “perpetrators of crimes involving well‑connected victims”, the Tribunal noted that it did not accept that the applicant fell within that group for reasons previously indicated.
In relation to the other groups, the Tribunal assumed that the applicant might be “dealt with or investigated under Chinese criminal law”, and that he “could be reprosecuted for those crimes”, and might even be subject to a death penalty. However, it considered that the laws in question “are part of China’s national criminal code, and the Tribunal finds that the laws are appropriate and adapted to the legitimate purposes of the State in protecting the safety of its citizens against criminal acts”. It also thought that any prosecution of the applicant would be by reason of his personal activities, and not by reason of his membership of a group.
It also assessed independent information as to the known circumstances when individuals were punished in China for a crime committed overseas for which they had been tried, and noted information which “suggests that the authorities would not take further action against ordinary criminal offences”. It held:
The Tribunal finds on this basis that the chances of action being taken against the applicant under Articles 8‑12 of the Chinese Criminal Law which would result in the applicant being reprosecuted for [the crimes] of which he was convicted in Australia are remote and insubstantial. The Tribunal does not accept that there is a real chance that the applicant would be reprosecuted for those crimes if he returns to China.
The Tribunal also did not accept that if laws were applied to the applicant they would be applied selectively or for a Convention reason. For all those reasons, therefore, the Tribunal did not accept the applicant’s refugee claims in relation to his risks of harm under Chinese criminal laws and their enforcement.
The Tribunal assessed the applicant’s position in relation to having a criminal record, or being known in China to be a person with a criminal record as a convicted criminal. It accepted that he might face difficulties in such matters as “finding employment and in his dealings with government”, but did not accept “there is a real chance that the applicant will face serious harm amounting to persecution in areas such as seeking employment or dealing with government, on the basis of being a convicted criminal in China”.
The Tribunal then addressed the applicant’s claims in relation to his religion. It referred to evidence he had given to it in his interview with the Department. The Tribunal accepted the applicant had converted to Christianity during his imprisonment in Australia, and “that he genuinely practises Christianity. The Tribunal accepts that the applicant was not able to be baptized while he was in prison, but was baptized on [date] at Villawood in a ceremony conducted by the Hillsong Church”.
However, the Tribunal decided, on the applicant’s own evidence, that he did not belong to a specific denomination of the Christian Church, and it did not accept that the applicant would not be able to practise as a Christian in the manner which he wished to practise “within the structures of the registered churches in China”. The Tribunal did not accept that he would practise only in an unregistered evangelical Church in China, and did not consider that there was a real chance “that the applicant’s sharing his Christian experiences with others in China or promoting the benefits of Christianity will bring him to the adverse attention of the authorities”. The Tribunal did not consider that he would wish to do that “in connection with an underground Church”. For those reasons, it did not accept that there was a real chance that he would suffer serious harm amounting to persecution on account of his Christian religion if he returned to China.
Addressing the applicant’s concerns of persecution for imputed political opinions, the Tribunal thought that the applicant’s general support of the student movement in China in June 1989 would not give rise to any adverse interest on the part of authorities if he returned to China. The Tribunal accepted that he had attended some student gatherings in Australia, but thought that this was “at a very general and low profile level”. It did not accept that he was involved in a manner which would have caused him to come to the adverse attention of the Chinese authorities, or be of any interest to them if he returned to China.
The Tribunal noted the long passage of years when making that assessment. It did not accept that the relatives of the victims of his crime had information, or would use it, to cause him to be persecuted. It said that, even if the authorities were aware that the applicant had some involvement in a student movement in 1990, the circumstances concerning this did not show any real chance that he would suffer serious harm amounting to persecution if he returned.
Addressing the applicant’s association with Falun Gong and Falun Gong practitioners at Villawood, the Tribunal accepted that he may have performed some exercises, but found that he was not a practitioner, and would not practice Falun Gong if he returned to China. It did not consider that the fact of his contact with Falun Gong practitioners at Villawood would bring him to the adverse attention of authorities, and it found “there is no real chance that he will suffer serious harm amounting to persecution on this basis”.
The Tribunal finally addressed whether the applicant was at risk of attracting the adverse attention of the authorities as a result of having made a protection visa application in Australia. It referred to country information, and said: “the Tribunal does not accept that the independent evidence establishes that if a rejected asylum seeker is known to the authorities, then persecution is likely”. It thought that the information suggested that the action by the authorities would depend upon the applicant’s behaviour on return. It said that, although the present applicant might be questioned in relation to his circumstances in Australia, including his criminal convictions:
… if the authorities take any action against the applicant as a result of such questioning, it would not be because the applicant has applied for protection in Australia, or for any Convention reason, but because the applicant’s criminal acts of which he was convicted in Australia have brought him within the double jeopardy provisions of the Chinese Criminal Law.
The Tribunal assessed all of the applicant’s circumstances and its findings in relation to particular claims, and concluded:
The Tribunal does not accept, given the findings above, that the applicant’s circumstances taken as a whole give rise to a real chance that he will suffer serious harm amounting to persecution for a Convention reason if he returns to China.
I have carefully considered the reasoning of the Tribunal, and have been unable to identify in its procedures or reasoning any jurisdictional error affecting its decision.
The grounds set out in the application to this Court and in an affidavit are unclear. They appear to question the Tribunal’s conclusions as to the risk to the applicant of further prosecution for offences committed in Australia. No specific argument is presented, nor has been presented by the applicant today.
I have carefully considered the Tribunal’s reasoning on this claim, and consider that it has addressed it with findings which were open to it on the material, and did not show any misunderstanding of the provisions of the Refugees’ Convention which was adverse to the applicant.
The applicant’s affidavit filed in the Court has complaints:
The RRT decision does not affirmed under the China Criminal Act 10.18 that I will not be prosecuted.
The RRT decision does not affirmed that I will not be prosecuted by death or life imprisonment for my return to China.
The RRT decision does not give me assurance for my safety on my return to China.
These concerns were again expressed by the applicant orally to me today, and he made an eloquent speech showing the sincerity of his fears that he would be at risk if he returned to China. He identified a dilemma he faces as a result, since he feels a strong desire to return to China to see his family from whom he had been separated for so many years, but at the same time is not satisfied that he can return safely.
These are concerns which might be considered by the Minister in the Minister’s discretion, but as I have explained to the applicant, they do not provide grounds for this Court to order a further consideration of his case by the Tribunal in the absence of any jurisdictional error affecting its decision.
For the above reasons, I am not satisfied that the Tribunal’s decision was affected by jurisdictional error. It was therefore a privative clause decision, and I must dismiss this application.
I certify that the preceding thirty‑five (35) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 14 August 2007
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