SZLZU v Minister for Immigration
[2008] FMCA 831
•4 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLZU v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 831 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China on various bases – Tribunal finding no Convention nexus with the harm experienced by the applicant – no reviewable error found – application dismissed. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.36, 48A, 91R, 424AA |
| SZBJH v Minister for Immigration & Citizenship [2008] FCA 501 |
| Applicant: | SZLZU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 424 of 2008 |
| Judgment of: | Driver FM |
| Hearing date: | 20 June 2008 |
| Delivered at: | Sydney |
| Delivered on: | 4 July 2008 |
REPRESENTATION
| Counsel for the Applicant: | Dr J Azzi, appearing pro bono publico |
| Counsel for the Respondents: | Mr M Cleary |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 424 of 2008
| SZLZU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was signed on 4 February 2008 and was notified to the applicant by letter the following day. The decision was a statement of reasons for a decision made orally on 24 January 2008. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The following statement of background facts is derived from the Minister’s written submissions filed on 16 June 2008 and the applicant’s written submissions filed on 7 May 2008.
The applicant, a citizen of China born on 19 May 1969, arrived in Australia on 12 August 1997. On 29 August 1997 he lodged an application for a protection visa under s.36 of the Migration Act 1958 (“the Migration Act”). The Minister’s delegate refused the protection visa on 20 October 1997.
On 15 July 1998 the applicant lodged a further protection visa application, which was refused under s.48A of the Migration Act.
It became apparent that the applicant was not originally notified of the original delegate’s decision until 23 November 2007. Accordingly, on 9 December 2007 the applicant applied for review of the delegate’s decision[1].
[1] Court Book (“CB”) at 93
The applicant was invited to, and attended, a hearing before the Tribunal on 24 January 2008[2].
The applicant’s refugee claims
[2] CB 103-104
In his original protection visa application, the applicant made the following claims in summary[3]:
a)as a result of his father being detained by Chinese authorities for 15 years he was not able to secure a normal job;
b)he was forced to undergo re-education for two years after attending school;
c)he could not find work when he returned;
d)in 1989 the applicant joined the Chinese Democratic Party (“the CDP”);
e)he was involved in the 1989 protests in Beijing, as well as 1994 protests against Chinese occupation in Tibet;
f)he escaped China twice, and the last time he returned to China he was interviewed by the authorities and warned about his pro-democracy activities;
g)he faced persecution because he was religious.
[3] CB 24-27
At the hearing before the Tribunal, these claims changed significantly[4]. He conceded his migration agent concocted many of the claims made in his protection visa application. He admitted coming to Australia on a temporary business visa in 1997.
[4] CB 119-125
He claimed that:
a)he joined the CDP in 1991 or 1993, and his claims about the CDP were true;
b)up until 1997 he was required to inform a neighbourhood committee of his movements because of tattoos on his arms, people thought he was a member of a criminal gang;
c)he came to Australia in 1997 then returned to China in 2003. He was fined on his return to China and ordered to pay an amount of RMB 5,000;
d)the next time he entered Australia he did so on a South Korean passport ‘irregularly obtained’, so he could enter Australia without drawing attention to his migration record;
e)he was unable to find adequate employment in China, and he would be unable to find a job if he returned to China.
The Tribunal’s decision
In its decision, the Tribunal reviewed at length the claims and evidence. First, it reviewed the applicable law. It then set out the claims and evidence. Finally, it set out its findings and reasons.
The Tribunal considered the applicant's claims. Those claims included the following:
a)the past treatment of the applicant’s father;
b)the treatment over his tattoos;
c)his treatment by the authorities at Beijing airport in 2003;
d)that he was religious and a member of the CDP.
The Tribunal accepted the applicant was an ethnic Korean national of the Peoples Republic of China (PRC), of Jilin Province in PRC.
The Tribunal further accepted that:
a)the applicant’s family, and in particular his father, had an unfavourable profile during the Cultural Revolution and that the applicant “has not been a fortunate participant in the transition”;
b)the past treatment of his father (who had connections to Kuo Ming Tang (National Party) and was detained for 15 years) “caused a disruption in his life as to impede his own development and education, leaving him less employable in the modern Chinese economy” but that such treatment did not amount to Convention-related persecution (CB 125.9);
c)the applicant was able to travel freely to Australia in 1997 on a genuine passport issued in his own name (CB 126.1);
d)the applicant was the subject of local monitoring over the years before and after his last return to the PRC but this did not amount to Convention-related persecution (CB 126.2);
e)the applicant suffered some prejudices before he removed his tattoos but this had no bearing on the claims overall (CB 126.6);
f)the applicant returned to PRC in 2003 when he was deported from Australia on an interim travel document from the PRC mission in Australia (which the applicant called a “return certificate” (CB 123.3)) after his passport had expired and that he was “questioned and monitored over a period after he returned to PRC from Australia, for reasons of having been away so long, and that he might be again” – but that such treatment, “even cumulatively”, does not amount to Convention-related persecution (CB 126.8);
g)upon arriving at Beijing airport in 2003 the applicant had to pay a fine (for RMB 5,000 – CB 123.5) but the Tribunal found that the fine was for the applicant letting his passport lapse, albeit the applicant resisted that idea for some time (CB 126.9) and notwithstanding the Tribunal going on to find (CB 126.9) that while the “penalty seems harsh, it was evidently a one-off fine, isolated to being a response to the discrete act of re-entering the PRC on an interim travel document and … is [not] indicative of a real chance of Convention-related persecution” (CB 126.10);
h)the applicant’s evidence that between 2003 (when he was deported back to PRC from Australia) and his last departure to Australia from PRC in 2005 the applicant was unable to find a job, that nothing good happened for him during that period and that the local authorities subjected him to a degree of monitoring[5] but did not accept the applicant had identified “any relevant, Convention-related event (or harm) or critical mass of relevant, Convention-related conditions triggering his second departure from the PRC” (CB 124.8)
i)the next time the applicant entered Australia in 2005 he did so on a Korean passport irregularly obtained (CB 124.7);
j)the applicant faced socio-economic hardship by reason of not finding work between 2003 (when he was returned to PRC) and 2005 (when he next departed to Australia[6]) but that such hardship “did not appear to be Convention-related” despite the applicant reiterating at the hearing that if he goes back to PRC “there will be ‘nothing for the three of us’[i.e., himself, his wife and daughter]” (CB 125.2);
k)there may be case “to the effect that ‘persons who return to the PRC after remaining abroad for extended periods’ might perhaps be argued to be a ‘particular social group’ for the purposes of the Convention but that “the Tribunal does not accept on the evidence before it that the applicant being regarded as a person who was away from the PRC, even for two long periods, will lead to Convention-related persecution” (CB 126.8);
l)there is not a real chance of the applicant being persecuted for reasons of religion in the PRC because the Tribunal found “on his evidence that the applicant is not religious” (CB 127.3);
m)the claim about membership of the Chinese Democratic party was fabricated (CB 127.7); and
n)“[the applicant’s] evidence is overwhelmingly about wanting to get a job and about the problem of making enough money to help his family” (CB 127.9).
[5] The applicant gave evidence that said that upon his return to PRC he could not find work, that for about six months he received visits, once a fortnight, or once a month or every 20 days, from local authorities who asked him what he was doing and with whom he was mixing (CB 124.5).
[6] The Tribunal also appears to accept that the applicant’s daughter who lives in PRC is sick with a kidney condition that requires treatment (CB 124.10).
The Tribunal did not accept the applicant had any Convention based claims, and found that the applicant’s reason for leaving China and for trying to stay away were economic reasons that are not related to the Convention.
The Tribunal was not satisfied that the applicant was a refugee and found that he did not face a real chance of persecution in China for a Convention related reason[7].
[7] CB 128
The application
These proceedings began with a show cause application filed on 22 February 2008. The application has been amended several times since then. The applicant ultimately relied upon a second further amended application filed in court by leave at the trial of this matter on 20 June 2008. Counsel for the Minister expressed concern about the late amendment of the grounds of the application. I permitted the amendment on the basis that the Minister had had notice of the grounds in the applicant’s outline of written submissions filed on 7 May 2008. Even so, it became apparent during oral argument that not all of the grounds set out in the applicant’s submissions were properly reflected in the second further amended application. That is unsatisfactory, especially where an applicant is legally represented. The Minister is entitled to know, upon reading an application, at least in general terms, the case that the Minister needs to meet.
The grounds in the second further amended application are:
1. The Tribunal committed jurisdictional error of law by failing to consider an integer of the applicant’s claim.
Particulars
a. The Tribunal accepted that the applicant returned to china in 2003 with an Australian bridging visa in his passport.
b. The Tribunal found that the applicant travelled to PRC in 2003 from Australia on “an interim travel document from PRC mission in Australia” (CB 123.3 and 126.9).
c. The applicant told the Tribunal that “the next time he entered Australia he did so on a South Korean passport, irregularly obtained”.
d. The Tribunal considered the possibility that the PRC authorities might intimidate persons returning to the PRC with Australian bridging visas and found that the harsh penalty imposed on the applicant “was evidently a one-off fine, isolated to being a response to the discrete act of re-entering the PRC on an interim travel document” (CB 126.9).
e. The Tribunal did not consider whether the authorities might seek to persecute the applicant if he returns to PRC for the second time with an Australian bridging visa in his passport.
2. The Tribunal constructively failed to exercise jurisdiction when applying the legal test of persecution by not correctly identifying the particular social group the applicant belongs to.
Particulars
a. The Tribunal found that a “case might be made to the effect that ‘persons who return to the PRC after remaining abroad for extended periods’ might perhaps be argued to be a ‘particular social group’ for the purposes of the Convention” (CB 126.8).
b. The Tribunal did not accept that being regarded as a person who was away from the PRC, even for two long periods, will lead to Convention-related persecution.
c. In construing the particular social group the applicant belongs to the Tribunal failed to attribute any significance or take into account the fact that the applicant is a returnee with special characteristics apart from long absences from the PRC.
d. The applicant relies on and repeats particulars to Ground 1 above.
e. The Tribunal also failed to consider whether the Applicant had a well-founded fear of persecution because he would likely be required to pay a fine upon re-entry into China and whether his fear of persecution was well-founded in the event he was unable to pay such fine.
In addition, in his outline of submissions at [32]-[33] counsel for the applicant raises the following further ground:
Toward the preceding end, the Tribunal’s finding (at CB 125.10) about the applicant “being able to pick up unskilled work” only applies to the pre-1997 period, before the applicant left the PRC for the first time.
However, it is submitted the Tribunal committed jurisdictional error of law in dismissing the claimed fear of economic hardship on the ground that such hardship “did not appear to be Convention-related” (CB 125.2). Such a conclusion completely ignores section 91R of the Act, in particular section 91R(2)(d) which provides that serious harm includes “significant economic hardship that threatens the person’s capacity to subsist”.
The applicant filed two affidavits in support of the application on 22 February 2008 and on 21 April 2008. Neither of those affidavits were read. The only evidence before me is that contained in the court book filed on 7 April 2008.
Submissions
Counsel for the applicant submits that the Tribunal erred in constructing too narrowly the particular social group to which the applicant is said to belong for the purposes of consideration of the applicant’s claims as a particular social group claim. Counsel submits that the Tribunal erred in identifying the characteristics of the group based on the length of time the applicant had been away from China rather than the circumstances of his departure and return.
Secondly, counsel submits that the Tribunal erred in its consideration of the applicant’s economic circumstances in China and whether those might amount to persecution. Counsel submits that the Tribunal needed to consider the tolerability of the economic hardship faced by the applicant and his ability to overcome the dire economic situation he was likely to face if he returned to China. Counsel further suggested that the Tribunal needed to consider the applicant’s capacity to pay a further fine that might be imposed if the applicant returns to China in the same manner as he was returned previously.
Counsel for the Minister makes the following submissions:
Ground One
In Ground One the applicant asserts the Tribunal failed to “accurately” identify the particular social group to which the applicant belonged. The applicant asserts the particular social group to which the applicant belonged was:
…persons who have sought asylum abroad more than once and who have used irregular means to do so (see applicant’s written submissions paragraph 25)
It is contended the Tribunal committed jurisdictional error by not considering whether the applicant belonged to this group, and whether the applicant faced a real chance of persecution for his membership of this group.
This argument is without merit for the reasons that follow.
In Dranichnikov v MIMIA (2003) 197 ALR 389 Gummow and Callinan JJ (with whom Hayne J agreed making up the majority) made this observation about the task of the Tribunal in assessing claims by a refugee applicant where there is also a claim of membership of a particular social group (at [26]):
At the outset it should be pointed out that the task of the Tribunal involves a number of steps. First the Tribunal needs to determine whether the group or class to which an applicant claims to belong is capable of constituting a social group for the purposes of the Convention. That determination in part at least involves a question of law. If that question is answered affirmatively, the next question, one of fact, is whether the applicant is a member of that class. There then follow the questions whether the applicant has a fear, whether the fear is well founded, and if it is, whether it is for a Convention reason.
In NABE v MIMIA (2004) 144 FCR 1(“NABE”) the Full Court held at [60] that the Tribunal in considering the claims made only has to consider the claims “raised by the material and evidence before it”. In NABE the Full Court was dealing with the argument of a failure to consider whether the applicant was a member of a particular social group. The Full Court in NABE held at [63]:
It is plain enough, in the light of Dranichnikov, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error.
In NABE the Full Court said that in order for jurisdictional error to be established on the basis of a failure to consider (or understand) a claim, the claim must be “a substantial clearly articulated argument relying upon established facts’ in the sense in which that term was used in Dranichnikov”. In other words, the contention that the Tribunal did not consider or understand a claim that the applicant was a member of a particular social group must have been supported by “probative material”: Applicant WAEE v MIMIA (2003) 75 ALD 630.
In WAEE, the appellant, who was an Iranian citizen, put to the Tribunal that the marriage of his son to a Muslim woman in Iran had ramifications for him and his family. The Tribunal made no express reference in its discussion and findings to the claimed fears of persecution, which arose out of the marriage by the appellant’s son to a Muslim woman although it made reference to the claim in its overview of the appellant’s case. The Court held that the Tribunal had failed to consider an issue going directly to the question whether the criterion under s.36 of the Act was satisfied.
Thus the question ultimately is whether the case put by the applicant has sufficiently raised the relevant issue that the Tribunal should have dealt with it: see SGBB v MIMIA (2003) 199 ALR 364 at [18].
Finally, in NABD of 2002 v MIMIA (2005) 216 ALR 1 (“NABD of 2002”), McHugh J dealt with the issue of in what circumstances a Tribunal may fall into error when classifying an applicant as a member of a particular social group. At [34]-[35] his Honour said:
34.Not all classification in refugee cases automatically leads to error. In some cases, classification may be an appropriate method for assessing claims for refugee status. One appropriate case is the classification of the applicant for the purpose of identifying the Refugees Convention reason for which he or she may face persecution. Such cases often raise the question: of which "particular social group" is this applicant a member? The identification of the group may be very broad, such as "Jehovah's Witnesses in Ukraine" or it may be refined according to additional circumstances giving rise to the exposure to persecution, such as "married Pakistani women without a close male relative” or "young, able-bodied Afghan men". The refinement of the category may occur according to place of residence, age, family circumstance, a confessional sub-group within a religion (such as Shi'a or Sunni Muslim), a recognized status within a group and so on. Where such classifications occur, they will aid rather than misdirect the process of assessment. To take an example closer to this case, if there was evidence that, among Christians in Iran, only priests and other ordained persons were ever the subject of mistreatment by the authorities, the only question for the Tribunal would be whether the appellant had such a status within the Christian population, or may be perceived to have that status by those known to persecute.
35.The inquiry in such "sub-group" cases focuses on a quality of the applicant that is susceptible of distinction. The categorization is according to a feature of the applicant that makes him or her distinguishable from other persons. Subject to the evidence, the classification is one that can readily be affirmed or denied. And, of course, such classification will only be relevant and appropriate if there is evidence that the potential persecutors also make that distinction. If persecution of Christians is generally focused on priests, however, it is of no assistance in determining whether this appellant faces a real chance of persecution to know that he is not a priest. The issue will be whether there is anything in the circumstances of this appellant to take him outside the "general" situation.
Based on these authorities, the applicant’s argument that the Tribunal misunderstood his claim to be a member of the particular social group he identifies should be rejected.
The applicant never advanced any claim of the type alleged: persons who have sought asylum abroad more than once and who have used irregular means to do so. Nor does such a claim arise on any of the materials that were before the Tribunal.
At the Tribunal hearing, the applicant claimed that in 2003 he was removed from Australia back to China, after his passport had expired. On his arrival at Beijing airport he was taken aside by Chinese officials and fined RMB 5,000. At the hearing the applicant conceded that he was fined because he had let his passport lapse[8].
[8] CB123
In its reasons for decision, the Tribunal Member considered the claims by the applicant including the available claims of membership to a particular social group.
First, it rejected the oral claims of membership of a particular social group because of the existence of his tattoos, before the applicant had them removed. The Tribunal rejected that claim on the basis that it did not give the claim any weight[9]. This was a factual finding not open to challenge.
[9] CB126
Second, the Tribunal then considered the only other claim that was raised by the material: that the applicant belonged to a particular social group, namely, persons who return to China after remaining abroad for extended periods. Consistent with the observations in the authorities above, the Tribunal considered this may be a basis (as a matter of law) for an asylum[10], however, it ultimately determined (as a question of fact on the evidence) that it did not accept that the applicant himself fell into that particular group[11]. In other words, the Tribunal determined that the applicant was not a member of the class: cf. Dranichnikov at [26].
[10]CB126
[11] CB126
In view of the evidence of the applicant given to the Tribunal, as his concession regarding why he was fined on his return to China, no other clearly articulated particular social claim was available other than those considered by the Tribunal Member (outlined above). There was simply no evidence “raised by the material and evidence before it” (NABE) that the applicant was persecuted by reason of his membership of a group of persons who have sought asylum abroad more than once and who have used irregular means to do so. There was no probative material to support such a claim, and the Tribunal made a finding of fact that the applicant was not a member of the only available class on the material presented to it. Further, there was no error in the classification adopted by the Tribunal of the kind discussed in NABD of 2002 given the available evidence and concession made by the applicant at the hearing.
Ground One must be rejected.
Ground Two
In Ground Two, the applicant asserts the Tribunal committed jurisdictional error by failing to apply the correct legal test under s. 91R(2) of the Act.
This argument cannot be sustained.
In order for s. 91R(2) to apply, the Tribunal must first be satisfied that the Applicant fears persecution for reasons of race, religion, nationality, or membership of a particular social group or political opinion. The Tribunal in the present case was not satisfied the applicant feared persecution for a Convention related reason. This was a primary finding of fact made by the Tribunal. It cannot be challenged in this Court on an application for judicial review under the Act: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
The Tribunal found that the reason why the applicant left China was for economic reasons (and not for a Convention related reason). This was a finding open to the Tribunal on the evidence.
The Tribunal then noted that the applicant "had disowned the bulk of the claims made in, or attached to, his protection visa application" and accepted that he went to a migration agent asking for help so that he could work legally in a Korean factory in Australia and that the migration agent effectively created his "refugee" profile[12].
For this reason the Tribunal did not accept any of the claims made by the applicant and was not satisfied the applicant had suffered any Convention related harm. Consequently, the Tribunal was not required to consider the provisions of s. 91R(2) because in the circumstances any assessment of whether the harm suffered could constitute ‘serious harm’ was irrelevant in view of the primary findings of fact made by the Tribunal: cf. SZHWD v MIAC [2007] FMCA 1614 per Nicholls FM at [14].
Contrary to the applicant’s written submissions on Ground Two, the Tribunal did not ignore s. 91R(2) by rejecting any economic hardship claim. The Tribunal found as a matter of fact that the applicant did not suffer any Convention related harm, a finding open to the Tribunal to make. The Tribunal was not under any legal obligation, once that primary finding of fact was made, to consider whether any economic harm that was allegedly suffered constituted ‘serious harm’ within the meaning of s. 91R(2) of the Act.
Ground Two must also be rejected.
Reasoning
[12] CB 127
The particular social group claim
The Tribunal considered the issue of a particular social group claim in the following terms[13]:
The Tribunal also accepts that the Applicant was questioned and monitored over a period after he returned to the PRC from Australia, for reasons of having been away so long, and that he might be again, but does not accept that such treatment amounted to or would amount, even cumulatively to persecution, even though a case might be made to the effect that “persons who return to the PRC after remaining abroad for extended periods” might perhaps be argued to be a “particular social group” for the purposes of the Convention. The Tribunal does not accept on the evidence before it that the Applicant being regarded as a person who was away from the PRC, even for two long periods, will lead to Convention-related persecution.
[13] CB 126
The Tribunal’s record of what occurred at the hearing includes a discussion about the applicant’s claims insofar as they might bear upon a particular social group claim. The record of that discussion is relevantly as follows[14]:
[14] CB 123-124
The Applicant discussed with the Tribunal the events that followed his deportation from Australia in 2003. He said that his passport had expired. He said Australian official obtained what he suggested was an interim travel document from PRC mission in Australia. He called it a “return certificate”. He said no Australian authorities accompanied him on his flight home. He said that when he arrived in Beijing airport, his wife was waiting for him, having travelled there from Jilin. He gave evidence to the effect that he arrived and lined up for entry like any regular passenger. He said he presented his expired passport and his interim document at Beijing airport’s Immigration barrier. He said he was then taken aside, questioned and was ordered to pay a fine for RMB5,000. He suggested to the Tribunal that this was because the PRC officials at the airport saw a label in his expired passport disclosing that he had made a “refugee application”. The Tribunal asked him what evidence he was talking about and he appeared, in his response to be referring to the bridging visa he obtained at the time he lodged his protection visa application.
The Tribunal put to the Applicant that no Australian visa labels refer to “refugee applications” either at the bridging visa stage, or at the stage of granting protection, or at any other stage. The Tribunal put to the Applicant that on the information before it, subject to information he might give, it might not be able to accept that he was fined for having applied for protection in Australia. The Tribunal posited to the Applicant that he might have been fined in relation to a purely domestic matter related, perhaps, to carrying an expired passport. With due regard to the requirements of s.424AA of the Act, the Tribunal invited the Applicant to respond, and he opted to respond immediately.
In response, the applicant said his adviser had told him his “refugee application” had been “accepted”. He implied that this was why he thought there might be something explicit in his passport referring to refugee status. However, his response was overall confused. He told the Tribunal, “I didn’t say it was a refugee visa.” The Tribunal recalls that at another stage in the hearing, the Applicant said his adviser had told him of the failure of his protection visa application and of the option, which he did not pursue at the time, of seeking review of the Department’s refusal. It seemed from his oral that the Applicant knew there was no “refugee” visa in his passport, as he seemed aware of the failure of his refugee application. He said that when he arrived at the Immigration barrier in Beijing the “police” kept asking him for money and said it was a fine they were demanding. He said he had A$1,000. He said he did not want to be detained long as his wife and child were waiting for him. He said he was delayed two hours. He said he had heard that without money the authorities “will not let you go”.
The Tribunal considered the possibility that PRC authorities, seeking to persecute or punish or simply coerce money out of people, might intimidate persons to returning to the PRC with Australian bridging visas in their passports, on the pretext of bridging visas possibly implying failed asylum attempts in Australia.
The Tribunal asked the Applicant to describe what kind of person, or class of person, it was that the authorities would not let go in such circumstances. In reply, he said he entered the PRC on a “travel document”. The Tribunal put to the Applicant again that perhaps the fine was levied in relation to his expired passport and he said, “I don’t know.” He said he had heard of people from Fujian returning to the PRC who were held and made to pay fines.
The Tribunal asked the applicant if the airport authorities explained to him what the fine was about. He said they did not. He said they gave no reason for demanding the fine. The Tribunal then put to the Applicant that there thus appeared to be no way at all that the authorities could have indicated to him that the fine was connected to a “refugee application” or “refugee visa” abroad. In reply, he said again that the “police didn’t say that”. He said that he might have been fined because he had stayed abroad too long. The Tribunal then put to him that this seemed, again, to be about having let his PRC passport lapse. He concurred.
The Applicant described his time in the PRC between his return in 2003 and his second departure in 2005. He said he returned to his home in his home village and could not find work. He said nothing happened. He then said that for about six months he received visits, once a fortnight, or once a month or every 20 days, from local authorities who asked him what he was doing and with whom he was mixing. He appeared to describe these visits as low level, low intensity monitoring. He said that he was asked if he had ever joined the Falun Gong movement whilst abroad. He said he never did and his evidence does not suggest at all that he was ever treated as a suspected Falun Gong follower. He said that after six months he travelled to Beijing again because his sister was sick. He then said that he also travelled there because the local authorities kept questioning him in the manner described.
The Applicant told the Tribunal that the next time he entered Australia he did so on a South Korean passport, irregularly obtained.
The Tribunal considered the Applicant’s evidence about what happened to him in the PRC between 2003 and 2005, about his not being able to find a job, about nothing good happening in his life and about the local authorities subjecting him to a degree of monitoring because he had been abroad for such a long time. The Applicant did not appear to identify any relevant, Convention-related event (or harm) or critical mass of relevant, Convention-related conditions triggering his second departure from the PRC.
The Tribunal therefore asked the Applicant if his use of a South Korean passport was simply a means of obtaining a further visa for Australia without drawing attention to his past migration record. He said it was. He indicated he had been an unlawful non-citizen since about three months after he came to Australia in 1997, after the Department rejected his protection visa application and after he did not seek review. The Applicant did not indicate that his use of a South Korean passport had anything to do with fear of Convention-related persecution in the PRC.
I accept that it would be a jurisdictional error for the Tribunal to consider a particular social group claim in terms materially different from those put by an applicant or fairly arising from the material[15]. The Tribunal accepted that a particular social group claim might arise from the material in terms of “persons who returned to the PRC after remaining abroad for extended periods”. Contrary to the Minister’s submissions, the Tribunal did not in its decision exclude the applicant from that group. Rather, the Tribunal found that the applicant, as a member of that group, would not face a risk of persecution. If, on the basis of the material, the particular social group involved other elements that were not considered by the Tribunal, the Tribunal might have erred. The question is whether the manner of the applicant’s departure from China and his return to China needed to be considered in this connection. The applicant had not claimed that his first departure from China was irregular. He was deported from Australia in 2003 after his Chinese passport had expired and travelled on an interim travel document. This apparently resulted in the imposition of a fine at the airport upon his arrival in China. The applicant claimed, and the Tribunal appeared to accept, that when he arrived in Australia on the second occasion he used a false South Korean passport to enter Australia but the applicant did not claim that he had used that passport to depart China. The applicant gave no evidence about what passport he used to depart China. The applicant had not claimed that his departure from China in 2005 was by irregular means and it did not follow from the applicant’s claims that, should he return to China at the time of the Tribunal decision or in the reasonably foreseeable future, he would need to do so in the same manner as he did in 2003. In my view, based on the material before it, the Tribunal did not need to consider a particular social group claim on the basis that the particular social group must be constructed by reference to the manner in which the applicant had left and returned to China.
[15] SZBJH v Minister for Immigration & Citizenship [2008] FCA 501
In any event, the Tribunal did consider the risk to the applicant of having to return to China in the same manner as he had in 2003. The Tribunal said[16]:
The Tribunal does not accept that the treatment the Applicant received in 2005 at Beijing airport was, or is indicative of a real chance of, Convention-related persecution. The Tribunal does not accept that the fine he paid had anything to do with perceptions about the Applicant having applied for asylum abroad. Although he seemed to resist the idea for some time, at the hearing, the Applicant himself expressed the view that the fine was possibly about his having let his passport lapse. The Tribunal is of the view, on the evidence before it, that this was what the fine was about. Although the penalty seems harsh, it was evidently a one-off fine, isolated to being a response to the discrete act of re-entering the PRC on an interim travel document, and the Tribunal does not accept that it is indicative of a real chance of Convention-related persecution of the Applicant in the reasonably foreseeable future.
Although he made no claims on this particular point, the Tribunal considered the Applicant’s position as a person who, in the event of return to the PRC, would probably have to travel again on an interim travel document, and might possibly face further scrutiny at the airport of re-entry. The Tribunal considered if there might be any Convention-related issues arising from such a possibility but none of the Applicant’s evidence about the practice, let alone as exemplified by the previous occasion in 2005, suggested that any such factors might come into play.
[16] CB 126
In my view, that consideration of the issue by the Tribunal was adequate for the purposes of the Migration Act and the Refugees Convention. Although not expressly stated, it appears to be inherent in the Tribunal’s reasoning that the imposition of a fine for allowing a passport to lapse was pursuant to a law of general application, and was not applied in a discriminatory fashion. If that be the case, then the repeated imposition of the fine, and the imposition of a further penalty if the applicant could not pay it, would not constitute persecution.
Economic hardship
I accept that economic hardship in an asylum seeker’s country of origin may amount to serious harm if it threatens an applicant’s ability to subsist[17]. The Tribunal found that the applicant had left China for economic reasons and accepted that the applicant had suffered at least some economic hardship in China. The Tribunal said[18]:
The Tribunal accepts that the Applicant’s family, and in particular his father, had an unfavourable profile during the Cultural Revolution. However the Tribunal gives weight to the evidence of the Cultural Revolution having been repudiated some 30 years ago. The Applicant’s own evidence suggests that the PRC has moved significantly towards being a market force economy in which work is no longer guaranteed by the state. The Applicant’s evidence indicates that he has not been a fortunate participant in the transition. His position is that the PRC’s past treatment of his father caused such a disruption in his life as to impede his own development and education, leaving him less employable in the modern Chinese economy. The Tribunal accepts this, but is not satisfied on the evidence that such a condition amounts to Convention-related persecution, as the Applicant has given evidence of a constant domicile and of being able to pick up unskilled work here and there.
[17] see s.91R(2)(d) of the Migration Act
[18] CB 125
The applicant takes issue with the Tribunal’s finding that the applicant was able to “pick up unskilled work here and there”. The applicant contends that the finding is factually incorrect because he had asserted (and the Tribunal appeared to accept) that he was unable to find any employment between 2003 and 2005. The Tribunal’s finding was not made in respect of any particular time period and could have been a general reference to the applicant’s entire employment history in China. Even if the finding amounted to a factual error, on the basis that the applicant had been unemployed for two years, it would not in my view amount to a jurisdictional error. That is because the Tribunal did not accept that there was any Convention nexus with the economic hardship suffered by the applicant. The Tribunal said[19]:
The Applicant’s claims go further: he claims the state has deliberately excluded him from the kind of work opportunities some of his schoolmates were able to pursue, due to his father’s family background. In view of the evidence of the repudiation of the cultural revolution, in view of the state allowing him to travel freely on a genuine passport issued in his own name in 1997, and in view of the Applicant’s ability to find some work in PRC over the years, the Tribunal does not accept that the state deliberately excluded him from employment for the Convention-related reasons claimed, or that it would or will do so.
[19] CB 126
In my view, that conclusion of lack of a Convention nexus was open to the Tribunal on the material before it, notwithstanding the reference to the applicant’s “ability to find some work in PRC over the years” because that was based upon the applicant’s evidence that he had been able to pick up unskilled work from time to time prior to 2003. The mere fact that the applicant was unemployed for two years between 2003 and 2005 did not mean that the applicant was prevented from obtaining employment by the Chinese authorities, or anyone else, for a Convention reason.
I reject the grounds of review advanced by the applicant. I find that the decision of the Tribunal is free from jurisdictional error. It is therefore a privative clause decision and the application must be dismissed. I will so order.
As to costs, I see no reason to depart from the court scale. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 4 July 2008