SZKUN v Minister for Immigration
[2007] FMCA 2087
•12 December 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKUN v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 2087 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Tribunal complied with s.4242A(1) of the Migration Act 1958 (Cth) – whether the Tribunal complied with s.425 of the Migration Act 1958 (Cth) – whether the Tribunal properly and fairly considered the applicant’s claims. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 424A; 424A(1); 425; 474; pt.8 div.2 |
| SZBEL v Minister for Immigration and Multicultural Affairs (2006) CLR 152 SZBYR and the Minister for Immigration and Citizenship (2007) 235ALR 609 Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 |
| Applicant: | SZKUN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1945 of 2007 |
| Judgment of: | Emmett FM |
| Hearing date: | 12 December 2007 |
| Date of last submission: | 12 December 2007 |
| Delivered at: | Sydney |
| Delivered on: | 12 December 2007 |
REPRESENTATION
| Applicant appeared in person with Mandarin interpreter |
| Counsel for the Respondent: | Ms L. Clegg |
| Solicitors for the Respondent: | Ms B. Syles, Clayton Utz |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1945 of 2007
| SZKUN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
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) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 17 May 2007 and handed down on 29 May 2007.
The applicant claims to be entitled to a protection visa by reason of a fear of persecution from the People’s Republic of China (“PRC”) by reason of her political opinion or imputed political opinion.
The applicant arrived in Australia on 28 October 2006 having departed legally from Beijing on a passport issued in her own name.
On 3 November 2006, the applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs under the Act.
On 27 November 2006, a delegate of the first respondent refused the applicant’s application for a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
On 22 December 2006, the applicant lodged an application for review of the delegate’s decision by the Tribunal. The applicant provided no further material in support of the review application. On 17 May 2007, the Tribunal affirmed the decision of the delegate not to grant a protection visa.
On 22 June 2007, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
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.
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 political 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 persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The applicant’s claims and Tribunal decision
The applicant attended a hearing before the Tribunal on 4 April 2007 and gave oral evidence, during which the applicant expanded upon her written claims.
The applicant’s claims and the Tribunal’s decision are accurately summarised by counsel for the first respondent, Ms Clegg, in her written submissions as follows:
“Applicant’s claims
10. The applicant set out her claims to be a refugee in a statutory declaration attached to her protection visa application.[1]
[1] CB 27 - 31.
11. In short, the applicant who claimed to be married with one child, said that she and her husband were made redundant in 2003 and 2005 respectively due to their respective workplaces closing down. She and her family had to spend a lot of money on her mother’s illnesses and her mother passed away in 2005. In 2005 the family also had to pay expensive tuition fees for her son’s university course. These combined things led the applicant to contemplate ‘what the government had done for our ordinary people’. As a result of her ‘resentful opinions’, in November 2005 she joined protests against the government.
12. The applicant claimed that in January 2006 she and two friends (Ms Bai and Ms Li) decided to distribute anti-government petitions to government agencies and people in Beijing and beyond. They made about 200 pamphlets and distributed the pamphlets. From January to October 2006 they and others who joined them distributed thousands of the pamphlets more widely throughout China. In particular, on 30 September 2006 Ms Bai, Ms Li and the applicant organised 3 others to distribute copies of the pamphlets at Beijing train station after a major public holiday, so that the pamphlets would be distributed back to ‘all part [sic] of the country’.
13. In July 2006 the applicant and her friends were informed through a PSB contact that an investigation had been launched by the PSB into the material they had distributed. As a result of this, the applicant made arrangements to obtain her passport and to go overseas.
14. In October 2006 a cousin of Ms Bai’s who had joined the group in the middle of 2006 was arrested by the PSB. A few days later Ms Bai was arrested. As soon as the applicant had news of this, she hid at a friend’s place. Afterwards, she escaped China ‘with a tourism group’.
15 The applicant also claimed that since leaving China her home has been searched by PSB. The PSB have told the applicant’s husband that he must report to them if he has any news of her. Also, Ms Li and three or four others have been arrested by the PSB.
16. The applicant claimed that she would be persecuted in China if she returned.
The Tribunal’s decision
17. The Tribunal:
a) set out the claims made by the applicant in the statutory declaration attached to her protection visa application;[2]
b) referred to independent country information concerning exit and emigration procedures in China;[3]
c) referred to the oral evidence of the applicant at the hearing, which evidence was largely consistent with the written evidence contained in her protection visa application;[4]
d) addressed and rejected[5] the applicant’s factual claims, noting that ‘[w]ith only the applicant’s own evidence it is difficult for the Tribunal to find that this claim [being the primary factual claims] has been established’;[6]
e) noted that it would have expected some evidence from other participants and that ‘the lack of such evidence undermines the applicant’s credibility and the truthfulness of her evidence’;[7]
f) noted that the oral evidence about some of the claimed events was ‘uncertain’ and that the Tribunal would have expected the applicant to have sought more information about identified matters, including an absence of evidence from her husband or son about the claimed house searching by the PSB;[8]
g) found that the applicant had not come to the attention of Chinese authorities prior to coming to Australia;[9]
h)concluded that the applicant was not a person to whom Australia owed protection obligations.[10]”
[2] CB 80 - 81.
[3] CB 81.
[4] CB 82 - 83.
[5] The rejection occurs at CB 84.1.
[6] CB 83.9.
[7] CB 84.1.
[8] CB 84.2 -84.4.
[9] CB 84.5.
[10] CB 84.8.
The proceeding before this Court
The applicant was unrepresented before this Court although had the assistance of a Mandarin interpreter.
The applicant confirmed that she relied on the grounds identified in her application filed in this Court on 22 June 2007.
The grounds of the application are expressed to be as follows:
“1. The Tribunal failed to comply with its obligations under s.424A(1) of the Act.
2. The Tribunal failed to comply with its obligations under s.425 of the Act.
3. The Tribunal failed to consider my claims properly and fairly.”
Ground 1 – breach of s.424A
Ground 1 is supported by particulars that purport to identify the obligations of s.424A(1) of the Act.
When the applicant was asked by me what was the information that she says the Tribunal should have provided to her, she responded that the Tribunal should tell her what kind of evidence she needed to provide and that the Tribunal had failed to obtain evidence from her family or friends that would have supported her claims. The applicant submitted that the Tribunal did not give her an indication about what may be right or wrong in her evidence.
A fair reading of the Tribunal’s decision discloses that the Tribunal accurately summarised the claims made by the applicant in support of her protection visa application; identified with particularity country information to which it had regard in relation to the departure from the PRC of Chinese citizens subject to arrest warrants or under investigation by authorities in the PRC; and, identified with specificity the applicant’s oral evidence before the Tribunal in support of her claims.
The Tribunal found the applicant to be a citizen of the PRC. However, the Tribunal did not find the applicant to be a truthful witness and rejected the totality of her claims in respect of her alleged anti-government activities in the PRC.
The Tribunal found the applicant’s evidence in relation to the alleged detention of her friends “very uncertain and lacking in detail.”
The Tribunal noted that the applicant had not sought corroborative evidence in support of her claims from family members in support of her allegation that her house in the PRC had been searched and her son questioned. Accordingly, the Tribunal did not accept the applicant’s claim in this regard.
Having rejected the applicant’s claims in their entirety, the Tribunal was not satisfied that “there is a real chance of convention-related serious harm occurring to her in the reasonably foreseeable future if she returned to China”, and, therefore, was not satisfied that the applicant has a well-founded fear of persecution for a Convention-related reason.
The findings and conclusions of the Tribunal were open to it on the evidence and material before it and for which it provided reasons, including the Tribunal’s adverse credibility findings. Evaluation of the applicant’s credibility is a matter par excellence for the Tribunal.
There was no information, other than the applicant’s own oral evidence, which formed part of the Tribunal’s reason for affirming the decision under review. The Tribunal was entitled, indeed, obliged, to evaluate the adequacy of the evidence in considering whether it was satisfied that the applicant met the criteria for being a refugee.
The Tribunal’s conclusions about the adequacy of the applicant’s evidence are no more than the Tribunal’s subjective appraisals or subjective thought processes about the evidence. Such deliberations on the part of the Tribunal do not give rise to information that enlivens the obligations of s.424A(1) of the Act (SZBYR and the Minister for Immigration and Citizenship (2007) 235ALR 609). As counsel for the first respondent stated in her written submissions:
“In essence, the ‘information’ which the appellant says invoked s 424A obligations is not ‘information’ at all. The Tribunal’s lack of satisfaction and adverse factual findings were not the result of any particular information before the Tribunal, but due to a lack of it: SZEEU at [182], [207] - [235]; SZBYR at [18].”
Accordingly, ground 1 is not made out.
Ground 2 – breach of s.425
The particulars in support of ground 2 appear to allege that the Tribunal should have informed the applicant about its concerns relating to her evidence. However, the Tribunal is not required to inform the applicant of its thought processes in relation to the evaluation of the applicant’s evidence on matters in issue before it and of which the applicant was aware (SZBEL v Minister for Immigration and Multicultural Affairs (2006) CLR 152 at [43]).
The central and determinative question on the review was the nature and extent of the applicant’s political activities (SZBEL v Minister for Immigration and Multicultural Affairs (2006) CLR 152). Ultimately the Tribunal was not satisfied about the applicant’s claims in respect of these activities because of the inadequacy of the evidence and lack of corroborative material before it. In the proceeding before this Court, the Tribunal wrote to the applicant on 26 February 2007 informing her that the Tribunal had considered the material before it but was unable to make a favourable decision on that information alone. The applicant provided no further information in support of her grounds.
It is for the applicant to satisfy the Tribunal that she meets the criteria required for a protection visa. The applicant was invited on two occasions by the Tribunal to send any documents, information or other evidence she wished the Tribunal to consider. Further, the applicant was invited to nominate persons from whom she wished the Tribunal to obtain evidence. No witness was identified by the applicant. The applicant attended the Tribunal hearing. The Tribunal is not obliged to obtain evidence to support the applicant’s claims or to establish her case for her (Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596).
A fair reading of the Tribunal decision does not suggest that the applicant was not given a fair opportunity to give evidence and present arguments. The applicant has filed no evidence in support of her application to this Court, despite having been directed on 26 July 2007 to file any such evidence, including a transcript of the Tribunal hearing.
Accordingly, ground 2 is not made out.
Ground 3 – failure to consider claims properly and fairly
Ground 3 appears to make a complaint similar to that addressed in ground 2 above in these Reasons. The particulars appear to suggest that the applicant should have been informed that her own evidence required corroboration. To that extent these allegations are dealt with above in these Reasons in ground 2.
A fair reading of the Tribunal’s decision does not disclose that the Tribunal failed to consider the applicant’s claims “properly and fairly”. The Tribunal accurately identified the claims made by the applicant; provided the applicant with an opportunity to attend a hearing and give oral evidence and present arguments; made findings that were open to it on the evidence and material before it and for which it provided reasons; applied the correct law to its findings; and made conclusions based on those findings.
In the circumstances, the Tribunal complied with the statutory regime in the making of its decision, including the conduct of its review.
Conclusion
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 proceeding before this Court is dismissed with costs.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: E. Maconachie
Date: 12 December 2007
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