SZLKH v Minister for Immigration

[2007] FMCA 2140

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLKH & ANOR v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 2140

MIGRATION – RRT decision – Chinese applicants from Hong Kong – non‑Convention concerns, and claimed persecution for trade union activities – disbelieved by Tribunal – no arguable case – application dismissed at show‑cause hearing.

Federal Magistrates Court Rules 2001 (Cth), r.44.12(1)(a)

First Applicant: SZLKH

Second Applicant: SZLKI

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3028 of 2007

Judgment of: Smith FM

Hearing date: 18 December 2007

Delivered at: Sydney

Delivered on: 18 December 2007

REPRESENTATION

Counsel for the Applicants: Applicants in person

Counsel for the First Respondent: Ms A Crittenden

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application is dismissed under Rule 44.12(1)(a) on the ground that it does not raise an arguable case for the relief claimed. 

2. The applicants must pay the first respondent’s costs in the sum of $2,500. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3028 of 2007

SZLKH

First Applicant

SZLKI

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant husband came to Australia in March 2007, and made an application for a protection visa with his wife. Their claims to fear persecution if they return to the People’s Republic of China were set out in a statement by the applicant husband, who I shall refer to as “the applicant”. This referred generally to his dissatisfaction with the Chinese Administration of Hong Kong, where the applicant had lived and worked for many years. It said: “I would not like to return to Hong Kong to suffer from persecution by the Hong Kong government”. 

2. His claims were not explained to the Department of Immigration by reference to the applicant’s personal situation, but were explored by the Refugee Review Tribunal at a hearing attended by the applicant husband on 4 September 2007. He repeated his complaints that there was no free speech in Hong Kong, that people had to work long hours for poor wages, and that rents were too high. When pressed by the Tribunal to find reasons for fearing to return which related to the Refugees’ Convention, the applicant made some claims that he had been blacklisted in employment for participating in trade union activities.

3. The Tribunal gave a decision at the end of the hearing, which affirmed the decision of a delegate made on 15 June 2007, refusing to grant protection visas. The Tribunal subsequently published its statement of reasons.

4. The Tribunal concluded that the applicant’s concerns about general political security and economic conditions in Hong Kong did not, “without more establish persecution, as they fail to meet the requirements set out in section 91R(1) of the Act, in particular because they do not entail discriminatory conduct”.

5. The Tribunal assessed the applicant’s political opinions, and found that the applicant had not acted on them in the past nor that he would do so in the future. It said:

   It was plain from both the content and tenor of his answers that his concerns lie with economic and employment factors, and not with the pursuit of any political interests, except in the context of his claimed trade union activities. 

6. The Tribunal assessed his evidence about these, and did not accept that he was “a trade unionist who has taken a leadership role, howsoever defined, or otherwise campaigned actively for labour rights”. It was also not satisfied that he had been “denied employment for reasons of any such activity, or for any reason at all”. It identified reasons for these conclusions, referring to the manner of giving his evidence and its content. It found positively that: “he has not been involved in labour disputes or actions, that he has not acted on any political opinion (actual or imputed) or that he has been targeted for any reason, by the Hong Kong authorities, employers, and anyone”.

7. The Tribunal found that “there is no real chance that the applicant husband will face harm, let alone persecution, if he returns to Hong Kong”.

8. I have considered the procedures followed by the Tribunal and its reasoning, and can see no arguable ground of jurisdictional error.

9. The application before the Court seeks an order that the Tribunal’s decision should be set aside, and that it reconsider the applicants’ claims. The application has been listed today to consider whether it raises an arguable case for the making of these orders. The applicants have been given an opportunity to amend the grounds of the application and to file further evidence, after receiving a bundle of relevant documents and a referral for free legal advice.

10. The applicant husband attended today, and claims not to have received legal advice, but I am satisfied that he has had the opportunity to do so if he really wanted it.

11. The application has two grounds:

    1.The Refugee Review Tribunal committed jurisdictional errors of law in that it failed to comply with the Migration Act 1958.

    2.The Refugee Review Tribunal denied the applicants a fairness when affirming the decision not to grant the applicants a protection visa by the Department of Immigration. 

12. The generality of these grounds has not been developed by any argument put to the Court by or on behalf of the applicants, and I can find no arguable substance in them.

13. I am not satisfied that the application raises an arguable ground for the relief claimed, and I consider it appropriate to dismiss the application under Rule 44.12(1)(a).

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  14 January 2008