SZLZZ v Minister for Immigration and Citizenship
[2008] FCA 1261
•18 August 2008
FEDERAL COURT OF AUSTRALIA
SZLZZ v Minister for Immigration and Citizenship [2008] FCA 1261
SZLZZ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 945 OF 2008
GILMOUR J
18 AUGUST 2008
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 945 OF 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZLZZ
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
GILMOUR J
DATE OF ORDER:
18 AUGUST 2008
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2. The appellant pay the first respondent's costs fixed at $2,300.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 945 OF 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZLZZ
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
GILMOUR J
DATE:
18 AUGUST 2008
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an appeal against a judgment of a Federal Magistrate of 30 May 2008 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 29 January 2008. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant a protection visa to the appellant.
PROCEDURAL HISTORY
The appellant is a citizen of the People’s Republic of China who arrived in Australia on 15 May 2007. On 14 June 2007 the appellant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs. A delegate of the first respondent refused the application for a protection visa on 9 August 2007. On 5 September 2007 the appellant applied to the Tribunal for a review of that decision.
The appellant claimed to fear persecution in China due to his opposition to the One Child policy and involvement with Falun Gong. The appellant claimed that his wife was forced to undergo a tubal ligation by the Chinese authorities and that they were fined 30,000 RMB after the birth of their third child. The appellant alleges that threats were made to destroy his house if the fine was not paid, and that he borrowed money to pay the fine.
According to the appellant, he owned a petrol station in Jiangxu province which he was forced to close in 1997 due to demands for money from the authorities accompanied by acts of violence. He later started a trucking business and was introduced to Falun Gong by a client and began delivering Falun Gong material. This allegedly led to his arrest and detainment for two weeks in 2001 after Falun Gong material was discovered in his possession. He claims that his transport licence was suspended. In 2001 the appellant began to work as a security guard in Fuquing City and worked there up until he came to Australia.
THE TRIBUNAL DECISION
The Tribunal accepted that the appellant and his wife had violated the Chinese family planning laws and had been fined. However, the Tribunal found that there was no evidence that these laws had been applied to the appellant in a discriminatory matter, or that the fine was excessive in light of country information. It further noted that the appellant did not claim to have suffered serious harm in the past or to fear future harm on this basis.
There was no information before the Tribunal to suggest that the appellant’s daughters had been excluded from school or suffered any adverse treatment because of their status. The Tribunal accepted the appellant’s evidence that he meets the costs associated with his daughters’ education and their living expenses.
The Tribunal also accepted the appellant’s claims relating to closure of his petrol station due to interference and harassment from local officials; however the Tribunal found that any harm occasioned was motivated by greed and not a Convention reason. Moreover, the appellant had moved from Jiangxu. The Tribunal found that any future chance of harm from the authorities there would be remote.
The Tribunal accepted that the appellant had been detained for transporting Falun Gong pamphlets for a friend in 2001, which amounted to serious harm. However the Tribunal found that the appellant had suffered no subsequent adverse consequences and that the chance of further detention was remote and did not accept that the suspension of the appellant’s transport licence and any attendant financial consequences amounted to serious harm under s 91R(1) of the Act.
The Tribunal did not accept that the appellant was a genuine Falun Gong practitioner in China or Australia due to the vagueness of his evidence.
PROCEEDINGS IN THE FEDERAL MAGISTRATES COURT
Before the Federal Magistrate the appellant claimed:
1.The Tribunal committed jurisdictional error in making a critical finding “that there is no evidence before the Tribunal that the applicant’s reduced financial circumstances as a result of the suspension of his transport license has resulted in serious harm for the purposes of s.91R” [RD 78-79]
Particulars
a.The Tribunal accepted the applicant was detained for two weeks and subsequently lost his transport licence.
b. The Tribunal further accepted the applicant was unable to continue his transportation business without the appropriate licence.
c. The Tribunal accepted the applicant remained unemployed for one year in 2001 after he lost his transport licence but that he maintained employment as a security guard from 2002 until 2007 which was not as lucrative as the transport business.
d. The applicant gave evidence that he lost his transport business after the police discovered he was delivering half truckload of Falun Gong books and materials.
e. The applicant said he lost most of the money he had invested in his truck.
f. The applicant told the tribunal that as a security guard he was earning “only about 800 or 900 RMB per month and [that] his wife could not work”.
g. The applicant said that he was supporting his family of four and his ailing mother “single-handledly”.
h. The applicant further said that his twin daughters faced dropping out of school because it was difficult for him to pay the tuition fees”.
i. The Tribunal however found that ‘according to his evidence [the applicant] supports his family and meets the costs of supporting his youngest children’s continued education”.
2.The Tribunal committed jurisdictional error in making a critical finding about the ability of the applicant to meet his youngest children’s continued education in circumstances where there was no evidence to support that finding such that the Tribunal applied the incorrect test of persecution.
Particulars
a. The applicant repeats particulars to Ground 1 above.
b. The finding about the ability to support his family and the continued education of his daughters was critical to the Tribunal’s assessment whether the applicant faced serious harm as a result of the suspension of his transport licence.
3.The Tribunal failed to act reasonably in finding there is no evidence before the Tribunal that the applicant’s reduced financial circumstances as a result of the suspension of his transport licence has resulted in serious harm for the purposes of s 91R.
Particulars
a. The applicant repeats the particulars to Ground 1.
4.The Tribunal committed jurisdictional error in circumstances where it failed to consider an integer of the applicant’s claim such that it could not properly consider whether the applicant had well-founded fear of persecution in the event he returned to China and was unable to re-commence his transport business.
Particulars
a. “Asked by the Tribunal what he fears in China” he said that mainly he is unable to continue his transport business without the appropriate licence.
b. The applicant repeats particulars to Grounds 1, 2 and 3.
The grounds of appeal were inter-related and together attacked the Tribunal’s finding regarding the appellant’s financial situation and the likelihood of the appellant facing serious harm on his return to China. The Federal Magistrate was satisfied that the Tribunal’s reasons demonstrated that the Tribunal had recognised the possibility that reduced financial circumstances might constitute serious harm, but that it was not satisfied that there was any such harm in the appellant’s case. The Federal Magistrate found that the Tribunal’s conclusions that the appellant’s financial situation after the loss of his transport licence did not result in serious harm, was open to the Tribunal on the material before it.
THE PRESENT APPEAL
The notice of appeal filed by the appellant has repeated the grounds which were before the Federal Magistrate. They are as follows:
1.The RRT committed jurisdictional error in making a critical finding ‘there is no evidence before the Tribunal that the applicant’s reduced financial circumstances as a result of the suspension of his transport licence had resulted in serious harm for the purposes of s 91R(1) purpose’.
2.The RRT ommitted (sic) jurisdictional error in making a critical finding about the ability of the applicant to meet his youngest children’s education in circumstances where there was no evidence to support the finding such that the Tribunal applied the incorrect test of persecution.
3.The RRT failed to act reasonably in finding there is no evidence before the RRT that the applicant’s reduced financial circumstances as a result of the suspension of his transport licence has resulted in serious harm for the purposes of s 91R.
4.The RRT committed jurisdictional error in circumstances where it failed to consider an integer of the applicant’s claim such that it could not properly consider whether the applicant had well founded fear of persecution in the event he returned to China and was unable to recommence his transport business in China.
(Transcribed without alteration)
At the hearing of the appeal before me the appellant made submissions again challenging findings of fact made by the Tribunal and expressed a general dissatisfaction with its conclusions. He complained about his financial position and likely inability to meet the fees for his two children to attend a select high school as opposed to a normal high school in China. He also expressed doubt as to his ability to finance his daughters attendance at University in three years time.
REASONS
Grounds 1, 2 and 3
The Federal Magistrate correctly observed that these grounds of appeal merely attack the Tribunal’s findings and conclusions. The fact that the appellant disagrees with the Tribunal’s conclusions does not mean that the Tribunal has committed jurisdictional error. The function of this Court is not to engage itself in fact finding concerning the merits of the appellant’s case: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10]. The findings made were open on the evidence before the Tribunal.
The Tribunal considered in detail the appellant’s claims that the appellant had suffered and would if he returned, suffer serious harm for economic reasons. As the Federal Magistrate rightly observed:
21. I accept that economic harm may be serious harm for the purposes of the Refugees Convention and the Migration Act 1958 (Cth). Section 91R(2)(d) provides, as an example of an instance of serious harm, “significant economic hardship that threatens the person’s capacity to subsist”. …The Tribunal accepted that his employment as a security guard was not as lucrative as his transport business may have been. However, the applicant’s challenge to the decision is directed to the Tribunal findings that on his own evidence he supports his family and meets the cost of supporting his youngest children’s continued education and that there was no evidence before the Tribunal that his reduced financial circumstances as a result of the suspension of the transport licence resulted in serious harm.
…24.The following conclusions can be drawn from the applicant’s evidence given at the hearing. The first is that his essential complaint was his reduced financial circumstances. The second is that his evidence was that because of those reduced financial circumstances he struggled to support his family. Nevertheless, the applicant’s youngest children had remained in school and although the threat of inability to pay school fees loomed, he had not failed to pay the fees. He conceded that the harm he thus suffered from 2002 to 2007 was not serious and that he retained a capacity to borrow money. While the final statement by the presiding member quoted above might suggest a misunderstanding in the mind of the presiding member as to whether financial detriment can constitute serious harm, the Tribunal’s reasons establish that the Tribunal recognised the hypothetical possibility that reduced financial circumstances might constitute serious harm, but was not satisfied that they did in the case of the applicant. The Tribunal’s conclusions that, according to the applicant’s evidence, he supports his family and meets the costs of his youngest children’s continued education and that his reduced financial circumstances, as a result of the suspension of his transport licence, did not result in serious harm, were open to the Tribunal on the material before it.
The Federal Magistrate was correct for the reasons given in rejecting grounds 1-3 which were before him. The findings of fact were open on the evidence before the Tribunal. Accordingly these same grounds of appeal before this Court must fail.
Ground 4
The appellant has not been able to identify what integer of his claim that the Tribunal has failed to consider. The first respondent submits that the Tribunal properly understood and assessed the appellant’s claims, finding that such circumstances did not constitute serious harm within the meaning of the Convention. It is not necessary for the Tribunal to give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any finding which it made. Whenever rejection of evidence is one of the reasons for the decision, the Tribunal must set that out in its reasons; Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] 168 ALR 407. A fair reading of the Tribunal decision does not indicate that any evidence was overlooked by the Tribunal. The Federal Magistrate was correct to reject this ground of review.
This ground has not been made out. The appeal should be dismissed. I will hear the parties on the question of costs.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour. Associate:
Dated: 18 August 2008
Counsel for the Appellant: The Appellant appeared in person Solicitor appearing for the First Respondent: Ms D Watson Solicitor for the First Respondent: Australian Government Solicitor
Date of Hearing: 18 August 2008 Date of Judgment: 18 August 2008
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