SZKTB v Minister for Immigration
[2007] FMCA 1953
•29 November 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKTB v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1953 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – Tribunal considered fear of persecution having first considered whether prior events amounted to Convention-related persecution – Tribunal under no duty to enquire or to ask particular questions of the applicant. |
| Migration Act 1958, s.474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 |
| Applicant: | SZKTB |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1810 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 13 November 2007 |
| Date of Last Submission: | 13 November 2007 |
| Delivered at: | Sydney |
| Delivered on: | 29 November 2007 |
REPRESENTATION
The Applicant appeared in person.
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1810 of 2007
| SZKTB |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of China. Initially she claimed she had been a Falun Gong practitioner in China. Later she abandoned that claim and described the harsh treatment she and her family had received following the forced demolition of their home for the construction of a road.
After her arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on 3 February 2007. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-6 of the Tribunal’s decision (Court Book (“CB”) pages 69 - 71).
Protection visa application
In her protection visa application the applicant said:
a)she and her family started practising Falun Gong at the beginning of 1997;
b)officers of the local police station went to their home and locked up her father and brother who were beaten. The officers also abused her mother. The applicant’s father was dismissed by his employer because of his Falun Gong practice;
c)the police went to the applicant’s family’s home and “interrupted” their lives constantly:
They always beat them up and [put?] them in the detention centre, which shamed the family before their friends.
d)on 6 March while overseas studying the applicant found out that her brother had been beaten to death by Public Security Bureau officers;
e)the applicant returned to China to report the death at a local police station but the “bureaucrats shield one another”. She was told that as her brother had practised Falun Gong, his death would not “expiate all his crimes.” The applicant said she could not get a death certificate; they could not appeal to the court;
f)the local police went to the applicant’s family house and threatened the family. The applicant father was forced to write a “promise letter” stating that the family would not ask the officers who killed her brother to take any responsibility; and
g)the applicant could not continue with her studies because of her brother’s death. Her mother’s health was destroyed. The officers who killed her brother continued to “interrupt” the family.
Tribunal hearing
At the hearing the applicant said that that part of her protection visa application relating to Falun Gong was not true. She said, when asked if she considered herself to be a Falun Gong practitioner, that she did not think so. She said that what happened to her family had little connection with Falun Gong and that Falun Gong was not the major reason for those events.
Her evidence continued:
a)in 2003 the local government wanted to demolish the family house to construct a road. The family received inadequate compensation for their house. The applicant said that they tried to appeal the amount, but the authorities sent around police to convince them not to appeal. The house was bulldozed and her father was arrested and her mother was made to sign a relocation agreement;
b)on 5 March 2005 the applicant’s brother, who had a bad temper, argued with security officers. Those officers hit him on the head leading to his hospitalisation. He died one night later; and
c)security officers subsequently “kept on threatening and smashing things”. The applicant said that these events related to the demolition of the house.
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)the Tribunal found that the applicant was not and never had been a Falun Gong practitioner and had not been involved in any Falun Gong activities, noting:
i)the applicant’s overall lack of knowledge about Falun Gong;
ii)her own omission that she did not consider herself to be a Falun Gong practitioner;
b)after having given consideration to the evidence as a whole:
i)the Tribunal was also not satisfied that any member of the applicant’s family had even been a Falun Gong practitioner or had ever been involved in any Falun Gong activities; and
ii)the Tribunal accepted that authorities had demolished the family’s home to enable road construction, that the family was paid an unreasonable amount and that the applicant’s brother died one night after having been hit on the head during an altercation with authorities in March 2005;
c)after noting its concerns regarding the applicant’s credibility, the Tribunal rejected the applicant’s claims that:
i)her family had been threatened or had any difficulties when they wanted to take legal action;
ii)when they tried to appeal, the authorities sent the police around to convince them not to appeal;
iii)any member of the family was forced to write a promise letter about relocation or not asking officers to take responsibility;
iv)the officers continued to interrupt the family;
v)her father was arrested;
vi)in November 2006 they were found when they moved;
vii)the officers destroyed their furniture;
viii)the officers assaulted them;
ix)they could not live a normal life;
x)when the applicant went to the police station to report her brother’s death she was told that because her brother practised Falun Gong his death would not “expiate all his crimes”; and that
xi)as they could not get a death certificate, they could not appeal to the court;
d)the Tribunal was not satisfied that there was any real chance that the applicant would suffer Convention-related harm on the basis of any of the matters she raised notwithstanding the lack of independence of the Chinese judiciary;
e)the Tribunal was not satisfied that any harm suffered by the applicant and any member of her family was essentially and significantly related to any Convention ground;
f)the Tribunal was not satisfied that any harm suffered in the past or which could be suffered in the future by the applicant was essentially and significantly because of membership of any particular social group; and
g)the Tribunal was satisfied that any harm suffered by the applicant was due to a conflict between her family and the authorities, essentially stemming from the amount of compensation paid by the authorities which the family considered to be unreasonable.
The Tribunal summarised its findings as follows:
… in consideration of the evidence as a whole, the Tribunal is not satisfied that the applicant has suffered any harm as contemplated by the Act or that there is a real chance that she would suffer such harm in the reasonably foreseeable future.
(CB 73).
Proceedings in this Court
The grounds of the amended application were pleaded as follows:
1. The Tribunal committed jurisdictional error of law by failing to deal with an integer of the applicant’s claim.
a. The Tribunal found the applicant to belong to a particular social group (“PSG”).
b. The Tribunal further found that the applicant is unlikely to suffer Convention related harm by reason of her membership of the PSG.
c. The Tribunal took into account information that “in practice the judiciary was not independent”;
d. The Tribunal found that the harm suffered is due to a conflict between the family and the authorities.
e.The Tribunal accepted that the authorities demolished the applicant family’s home to enable road construction.
f. The applicant asserted that the authorities have continued with attempts to thwart the family from appealing the decision to demolish.
g. It was incumbent on the Tribunal to make a finding whether the actions of the authorities and the findings about independence of the judiciary in China amounted to Convention based persecution.
At the hearing, the applicant raised two additional issues, namely that:
a)the Tribunal did not consider all the information she supplied; and
b)the Tribunal did not give her enough time to comment.
The Tribunal committed jurisdictional error of law
The applicant’s pleaded claim essentially is that the Tribunal did not consider whether the treatment meted out to her and her family by the Chinese authorities amounted to Convention-based persecution. Expressed in those terms, the application does not address itself to the question which the Tribunal really had to consider which was whether the applicant has a well-founded fear of future persecution for a Convention reason and, for the purposes of this argument, whether that fear is in the context of the applicant’s membership of a particular social group.
Perhaps what the application as pleaded seeks to refer to is the determination of the likelihood of future acts of persecution by reference to previous ones. In this regard in Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ said:
Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.
(at 575)Even though the real issue is a prospective not a retrospective one, unless the Tribunal gives some consideration to what has occurred in the past, it may have no rational basis for determining whether there is a real chance of persecution occurring in the future. But contrary to the allegation in the amended application, that is what the Tribunal did.
Relevantly, the Tribunal’s findings were:
a)it was not satisfied that any harm which was suffered or which might be suffered by the applicant in the future arose essentially and significantly because of the applicant’s membership of a particular social group;
b)the death of the applicant’s brother was unrelated to any Convention ground and thus the less serious harm alleged by the applicant was also unrelated to any Convention harm; and
c)“In summary, in consideration of the evidence as a whole, the Tribunal is not satisfied that the applicant has suffered any harm as contemplated by the Act or that there is a real chance that she would suffer such harm in the reasonably foreseeable future.”
Consequently, not only did the Tribunal deal with the correct question concerning the applicant’s claimed fear of future persecution for a Convention reason, it also examined the historical canvas and concluded that the events surrounding and following the demolition of the applicant’s home did not amount to Convention-related persecution.
Tribunal did not consider all information
When asked by the Court to identify what information it was she said that the Tribunal did not consider, the applicant was unable to provide any details. What she did say was that at the hearing the Tribunal appeared to focus unduly on her abandoned claim to fear persecution because of Falun Gong membership and consequently failed to give adequate attention to her claim to fear persecution by reason of the events surrounding the demolition of the family home. The applicant submitted that the real issue she had taken to the Tribunal was the dispute which existed between her family and the local government authority and although the Tribunal asked a lot of questions about Falun Gong it did not ask sufficient questions regarding what the applicant identified as the real problem confronting her family.
However, the Tribunal has no duty to enquire nor to ask any particular questions of the applicant. It is for the applicant to put such information and arguments before the Tribunal as would lead it to be satisfied that she meets the criteria for a protection visa. Her failure to do so inevitably led to the Tribunal not being satisfied that she had a well-founded fear of persecution for a Convention reason. Moreover, the fact that the Tribunal did not invite the applicant to elaborate on her claims more than it did or did not encourage her to put additional information before it, does not evidence reviewable error on its part.
Insufficient time to comment
In her oral submissions in relation to this asserted ground of review the applicant again focussed on the Tribunal not investigating the facts of the applicant’s claim as fully as she would have liked. Again she referred to the Tribunal asking questions about her Falun Gong practice. She complained that when she told the Tribunal about the real facts grounding her claim, concerning her family’s difficulties, it did not accept those facts, denied them and did not give them “proper thought”.
This asserted ground of review does not disclose reviewable error on the part of the Tribunal either. This is partly so for the reasons expressed in relation to the first ground of review raised at the hearing and considered above at [16] and [17]. It is also because the applicant invites the Court to review the Tribunal’s findings on the merits of her claim or the intermediate findings of fact on which the ultimate conclusion was based. Thirdly, the submission is not well-based factually given that the Tribunal did accept the basic facts surrounding the demolition of the applicant’s family home and the death of her brother. What it did not accept, which was a conclusion drawn from those facts, was that the fear the applicant claimed was a well-founded fear for a Convention reason.
As to the Tribunal not giving “proper thought” to the applicant’s claim, putting aside its consideration of the abandoned claim to fear persecution by reason of adherence to Falun Gong set out in the visa application, a consideration of the Tribunal’s decision record reveals that it did consider what the applicant put to it at its hearing. In its decision record the Tribunal set out the facts alleged by the applicant during the hearing, at which the applicant had an opportunity to put material before it and to answer the Tribunal’s questions, and then it considered that information. It then reached a conclusion which was rational, logical and open to it on the material before it.
Consequently, no jurisdictional error has been disclosed by this asserted ground of review.
Conclusion
As jurisdictional error on the part of the Tribunal has not been demonstrated, the application will be dismissed.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 29 November 2007
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