SZMFZ v Minister for Immigration
[2008] FMCA 1085
•31 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMFZ v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1085 |
| MIGRATION – Visa – protection (Class XA) visa – Refugee Review Tribunal – application for review of RRT decision affirming a decision of a delegate of the Minister refusing to grant the applicant a protection visa – applicant is a citizen of the People's Republic of China claiming fear of persecution for reasons that she had breached China's one child policy – whether Tribunal breached Migration Act 1958 (Cth) s.424AA – no reviewable error. |
| Migration Act 1958 (Cth), ss.91R(2), 424A, 424AA |
| Applicant A v Minister for Immigration and Ethnic Affairs & Anor (1997) 190 CLR 225 SZLQD v Minister for Immigration and Citizenship [2008] FMCA 739 followed. SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 followed. Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 followed. Attorney-General for New South Wales v Quin (1990) 170 CLR 1 Chen Shi Hai v Minister for Immigration & Multicultural Affairs (2001) 201 CLR 293 Minister for Immigration & Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1 |
| Applicant: | SZMFZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1203 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 21 July 2008 |
| Date of Last Submission: | 21 July 2008 |
| Delivered at: | Sydney |
| Delivered on: | 31 July 2008 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Applicant: | Not legally represented |
| Counsel for the Respondents: | Ms Clegg |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1203 of 2008
| SZMFZ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The applicant is a citizen of China who asks the Court to review a decision of the Refugee Review Tribunal that was signed on 9th April 2008 and handed down on 17th April 2008 affirming the decision of a delegate of the Minister for Immigration and Citizenship not to grant her a protection (Class XA) Visa.
The applicant arrived in Australia on 4th July 2007 and applied for a protection visa on 17th August. In her application, she claimed to fear persecution due to a breach of the one child policy that applies in China. In fact, she claims to have had five children.
A delegate of the Minister considered the application for a visa and found no evidence that the applicant's third child who is studying in Australia had suffered or would suffer persecutory home in China as a consequence of being a child born outside the one child policy.
The delegate said:
It is reasonable to conclude that the applicant was able to raise the course fees for her daughter's studies in Australia and the airfare as well as provide the necessary financial documents that are relevant in the Australian Immigration office to show that the applicant's family have adequate funds to support the daughter's stay in Australia. The applicant makes no claim nor is it evident that her family has been deprived of the opportunity to earn a livelihood in China in recent times despite her claimed repeated breach of the “One Child” policy. Indeed, the applicant's family appears to be in a relatively privileged position of being able to obtain the necessary funds and approval of the Chinese authorities to provide for the daughter to study abroad.[1]
[1] See Court Book, pages 60 and 61
The delegate found that the applicant's claims were unsubstantiated and lacked veracity. The delegate did not accept that the applicant had been involved in political activities or had been detained or beaten on numerous occasions by the authorities or had distributed propaganda material.
The delegate did not accept the applicant's claim that the Chinese authorities had issued an arrest warrant against her and found that she was not of significant adverse interest to the Chinese authorities at the time she departed from China.
The delegate found that the applicant did not face a real chance of persecution in China because of her violation of China's one child policy or her political activities see Court Book, page 66.
The delegate refused the application for a protection visa on
13th November 2007.
The applicant then applied to the Refugee Review Tribunal on
14th December 2007seeking review of the delegate's decision.
The applicant did not provide any additional documentary material to the Tribunal at the time of lodging her application.
The Tribunal wrote to the applicant on 13th January 2008 advising her that it had considered the material before it but was unable to make a favourable decision on that information alone.
Accordingly, the Tribunal invited the applicant to attend a hearing of the Tribunal, give oral evidence and present arguments on 12th March 2008.
The letter advised that the Tribunal would provide an interpreter in the Fuqing (Chinese) language for the applicant's assistance.
The applicant continued a response to hearing form indicating that she wished to attend and that she did wish an interpreter in the Chinese language but Fuqing dialect.
The applicant attended the hearing on 12th March 2008, accompanied by her daughter who also gave evidence.
I note that an interpreter in the Chinese Fuqing dialect was available as the interpreter at the hearing. A copy of the Tribunal hearing record can be found at page 81 of the Court Book.
The applicant brought with her, her Chinese passport and some photographs.
The Tribunal handed down its decision on 17th April 2008. A copy of the Tribunal decision record is found in the Court Book at pages 94 through to 115.
The Tribunal set out the applicant's claim and evidence taken from the information in the departmental file and the applicant's oral evidence at the hearing.
The Tribunal also heard oral evidence from the applicant's daughter who is studying in Australia. The Tribunal also considered the photographs that the applicant submitted to the Tribunal.
The Tribunal's findings and reasons are found at pages 109 through to 115 of the Court Book.
The Tribunal accepted that the applicant was a citizen of the People's Republic of China based on the applicant's Chinese passport.
The Tribunal noted the applicant's claim that she feared persecution in China because of her breach of China's one child policy, although the Tribunal noted that, at the hearing, the applicant said she did not fear to return to China for that reason.
The Tribunal noted the applicant's claims to have faced economic hardship and to have been discriminated against because of the burden of the tuition fees, health and medical care and because she advocated the further education, health and human rights for children born outside the policy and advocated for the release of a person called Bin He who was the head campaigner in that regard.
The Tribunal considered independent country evidence about the one child policy in China and said:
It is well established that enforcement of the generally applicable law does not ordinarily constitute persecution for the purposes of the Convention. [2]
[2] Applicant A v MIEA & Anor (1997) 190 CLR 225, per McHugh J at [258]. See Court Book page 110.
The Tribunal was satisfied that the applicant understood the Family Planning Law in China and, despite being well aware of the law, the applicant had a third, fourth and fifth child in contravention of the law.
The Tribunal was satisfied there was nothing special about the applicant that would result in the law being applied differently to her in the future than to other people who breached the Family Planning Law.
The Tribunal was satisfied that there was nothing in the applicant's profile that would result in her being persecuted within the meaning of the convention if she were to return to China and be subjected to the one child policy.
Taking into account all the evidence and the applicant's circumstances, the Tribunal expressed the view that it was not satisfied that the applicant had a well-founded fear of persecution on the basis of a breach of China's one child policy.
The Tribunal then looked at a claim of economic hardship and discrimination for additional tuition fees, health and medical care costs for children born outside China's one child policy or birth plan.
The Tribunal said:
The Tribunal accepts that extra fees may have to be paid but as was her evidence at hearing these are paid by relatives and friends. Further, as was put to the applicant at hearing, the Tribunal has doubts that she has difficulty paying the tuition fees and other costs for her children born outside the birth plan when her daughter is studying in Australia, an expensive education and the other two children are in boarding school, all being paid for by relatives. In response she indicated she does not have much money, and later said she is bullied because she is illiterate and wants her children to have a good education.[3]
[3] See Court Book page 111
The Tribunal found that difficulty paying fees did not amount to serious harm as exemplified by sub-s.91R(2) of the Migration Act and was not satisfied that the applicant had a well-founded fear of persecution on the basis of her economic hardship and discrimination for additional tuition fees, health and medical care costs for children born outside China's one child policy or birth plan.
The Tribunal then looked at the applicant's claim of having been involved in a campaign advocating for the rights of people and particularly children born beyond the birth plan or one child policy, including for their education and human rights.
The Tribunal found the applicant's testimony with regard to that claim lacking in detail, internally inconsistent and amounting to a fabrication. It set out the reasons why it did not find her to be a witness of truth. These reasons are set out at pages 112 and 113 of the Court Book.
The Tribunal said:
The above leads the Tribunal to find that the applicant is not a witness of truth and that she has fabricated her claims. As the Tribunal does not accept that the applicant is a witness of truth and has fabricated her claims of difficulties faced because of her campaign for the rights of those born beyond the birth plan, particularly education rights and the human rights of people, it does not accept that she was investigated five times by police in 2007, tortured, beaten and burnt with water for sending a letter on these issues to the National People's Congress and Fuqing Government agencies.[4]
[4] See Court Book page 113.
The Tribunal did not accept that there was a real chance of the applicant being persecuted if she returned to China and was not satisfied that the applicant had a well-founded fear of persecution within the meaning of the Convention as qualified by the Act if she returned to China.
The Tribunal affirmed the decision not to grant the applicant a protection (Class XA) visa.
The applicant commenced proceedings in this Court by means of an application and an affidavit filed on 13th May 2008.
In that application she set out three grounds of review.
She was granted to leave to file in Court an amended application setting out one ground of review.
The applicant did not file any outline and submissions, but attended Court and told the Court that she was quite poor, she did not have any money to support herself and her relatives could not send money to her. She said she could not go to work because she did not have permission to work and that was because she had signed a petition to the Chinese People's Congress. She said that her daughter, who attended Court with her, would say that her head was hurt and she was detailed by the police.
The applicant's daughter who is a 19 year old student studying in Australia attended Court with her mother and I permitted her to speak on her mother's behalf. There was no objection by Counsel for the Minister.
The daughter's submission was to the effect that the Tribunal did not comply with s.424A of the Migration Act and did not tell her mother clearly about the reasons for affirming the visa. She claimed that the Tribunal did not make her mother clearly aware of information that would be the reason or part of the reason for affirming the decision under review and should have provided her with an opportunity to explain or comment. She said that, when the Tribunal invited her mother to explain, it did not tell her mother that she was entitled to ask for an adjournment or ask for additional time or to provide written reasons. She said that the Tribunal did not comply with s.424AA of the Migration Act, nor did it comply with s.424A(1) of the Act. She also complained that the Tribunal did not consider her mother's particular difficulties and did not consider her own evidence or the evidence of the photos that were provided. She said that her mother was an uneducated village woman who had suffered a lot and her head was hurt and her mother could not use her own language to communicate with an official from the Department of Immigration and Citizenship. She complained that the Tribunal did not consider her evidence.
It is quite clear that, notwithstanding the filing of an amended application, the applicant wishes to rely on her original application as well. Thus, the grounds which form the applicant's grounds of review are, firstly, a failure by the Tribunal to comply with its obligations under s.424AA of the Act; second, a failure by the Tribunal to comply with its obligations under s.424A(1) of the Act and a failure to consider the applicant's particular difficulties at the Tribunal's hearing, including the failure to consider the applicant's daughter's evidence properly, a failure to consider the photographs which the applicant had submitted and failing to consider that the applicant's claims were strongly supported by independent country information such as the United States Human Rights Reports.
The applicant's claim that the Tribunal failed to comply with s.424AA of the Act has been more particularly set out in the amended application. The ground says:
The Tribunal failed to comply with a mandatory provision in the Act in failing to comply with s.424AA(b)(iii).
The particulars of that claim are: having chosen to give oral particulars of information that the Tribunal considered would be part of the reason for affirming the decision under review, the Tribunal was obliged and did not inform the applicant that she could have additional time to comment or respond to the information and the requirement is expressed in mandatory language.
The Tribunal gave the following particulars under s.424AA(b)(iii) at the hearing:
a)Particulars of documents in the possession of the Tribunal relating to her daughter's student via application reproduced in the Court Book at page 32; for instance, the applicant's husband's income and the fact that her husband had much savings;
b)The fact that she had failed to mention her fifth daughter in her application;
c)The information that a document revealed that she had asserted her husband was a managing director;
d)Independent country information that indicates that, in provinces such as Fujian, sanctions relating to family planning can be avoided through payment of a fee to local authorities and that the fees are not excessive by middle class Chinese standards.
The claim of a breach of s.424A has the particulars that the Tribunal had particularly considered the information in relation to the applicant's daughter studying in Australia such as that she was able to obtain a student's visa and that she was able to continually study in Australia with financial support as the reason or part of the reason in its decision that the Tribunal failed to provide the applicant with particulars of the information and failed to ensure, as far as is reasonably practicable, that the applicant understood why the information was relevant to the review and the consequence of the information being relied on in affirming the decision that was under review and failed to invite the applicant to comment on the information.
The third ground is that the Tribunal failed to consider the applicant's particular difficulties suffered at the Tribunal's hearing, including failure to consider the daughter's evidence properly and failure to consider the photograph, failure to consider the applicant's claims strongly supported by independent country information.
Dealing first of all with the claim of a breach of s.424AA, in my view, the claim is misconceived. As was submitted by Counsel for the Minister, the procedure in s.424AA is entirely discretionary. Indeed, there was nothing in the material before the Court to indicate that the Tribunal actually embarked on that procedure. In that case, there is no need for an inquiry as to whether there had been a breach of s.424AA.
In my view, the only evidence as to what went on at the hearing comes from the Tribunal's own decision record. It certainly is the fact that the applicant gave oral evidence and it would appear that the Tribunal asked the applicant a number of questions. There is no evidence before me, however, that the Tribunal did embark on the procedure set out in s.424AA.
It is correct to say that the procedure in s.424AA of the Migration Act is discretionary.
There is not mandatory requirement for the Tribunal to adopt that procedure.
The section itself says:
If an applicant is appearing before the Tribunal because of an invitation under s.425:
(a)The Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason or a part of the reason for affirming the decision that is under review.
It is quite clear that the use of the word "may" makes it an option for the Tribunal. There is no requirement that the Tribunal do so. There is no penalty on the Tribunal if it does not do so.
If it does do so, however, then the Tribunal must follow the procedure set out s.424AA(b)(i), (ii), (iii) and (iv). Section 424AA(b) says:
a)If the Tribunal does do so - the Tribunal must:
i)Ensure as far as is reasonably practicable that the applicant understands why the information is relevant to the review and the consequences of the information being relied on in affirming the decision that is under review;
ii)Orally invite the applicant to comment on or respond to the information; and,
iii)Advise the applicant that he or she may seek additional time to comment on or respond to the information; and,
iv)If the applicant seeks additional time to comment on or respond to the information, adjourn the review if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
It can been seen that, if the Tribunal exercises its discretion under s.424AA(a) to embark on this procedure, it must follow the procedure as set out in s.424AA(b). The consequences which follow are these:
a)
If the Tribunal carries out the procedure in s.424AA(a) and (b) correctly, then s.424A(2A) comes into operation. It is s.424A(2A) that is the key to understanding the operation of s.424AA.
Section 424A(2A) says:
The Tribunal is not obliged under this section to give particulars of information to an applicant nor invite the applicant to comment on or respond to the information if the Tribunal gives clear particulars of the information to the applicant and invites the applicant to comment on or respond to the information under s.424AA.
b)In other words, s.424Aa is an optional course of action for the Tribunal to adopt and, if the Tribunal follows the mandatory requirements or the mandatory procedure in s.424AA(b), then s.424A(2A) comes into effect. That means that s.424A(1) does not apply.
The consequence of the Tribunal either electing not to follow the procedure in s.424AA or embarking on the procedure but failing to meet one of the requirements in s.424AA(b) is the same. In each case, section 424A(2A) will not come into operation.
That means that s.424AA(1) may be relevant. There is no other negative consequence for the Tribunal in either opting not to follow s.424AA or attempting to follow that section but in some way failing to meet the mandatory requirements.
That is why there is, in s.424AA, no equivalent to s.424A(3).
There does not need to be because s.424AA does not set up a separate and parallel course to s.424A. All it does is allow the Tribunal to take advantage of s.424A(2A) rather than face the regime set out in s.424A(1).
In this case, there is no evidence that the Tribunal did elect to follow the regime set out in s.424AA and, therefore, there is no breach of that section.
A useful account of the operation of s.424AA can be found in the decision of Marshall J in SZLQD v Minister for Immigration and Citizenship.[5]
[5] [2008] FCA 739 at [12].
The applicant's ground 1 must, therefore, fail.
I turn now to the ground 2 in the original application, an alleged breach of s.424AA in respect of the applicant's daughter's study in Australia.
The Counsel for the Minister has referred the Court to the observations of the High Court of Australia in SZBYR v Minister for Immigration & Citizenship.[6] Those observations, it is submitted, are apt for the purposes of considering a breach of s.424A.
Information does include information which does not contain in its terms a rejection, denial or undermining of the review applicant's claims to be a refugee.[7]
Again, the Tribunal's observations or thought process or reasoning in relation to inconsistent information before it does not amount to information for the purposes of s.424A.[8]
[6] (2007) 235 ALR 609
[7] See SZBYR at [17].
[8] See SZBYR at [18].
The particulars referred to the Tribunal's reference to the applicant's daughter being able to undertake paid study in Australia. She was able to obtain a student visa; she was able to study in Australia with financial support.
That was consistent with other information before the Tribunal contained in the daughter's student visa application. On its face, that information did not undermine the applicant's own claims and was only supported with the applicant's evidence at the Tribunal that the daughter was studying in Australia.
The information is inconsistent, however, with other information given by the applicant in support of her application for a protection visa to the effect that she did not have much money. So, when the Tribunal expressed its doubts that the applicant had difficulty paying tuition fees, it was simply making an observation about inconsistency in the applicant's own evidence and, as such, this would not be information which invoked obligations under s.424A(1) of the Act.
There is also in s.424A(3)(b)(a) an exception applying to any information that the applicant gave during the process that led to the decision that is under review other than the information that was provided orally by the applicant to the Department.
This information about the applicant's daughter undertaking paid study falls within s.424A(3)(b)(a).
In addition, the applicant gave evidence during the Tribunal hearing about her daughter's study in Australia which comes under the exception in s. 424A(3)(b).
In short, there is no breach of s.424A(1) of the Migration Act and ground 2 fails.
The applicant's third ground is a complaint that the Tribunal did not consider the applicant's particular difficulties, did not consider the applicant's daughter's evidence, did not consider the photographs and did not consider the fact that the applicant's claims were strongly supported by independent country information.
In effect, this is no more than an effort to re-argue the applicant's factual claims. It is an attempt at merits review and it is well established that merits review is not available in judicial reviews (see Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 and also Attorney-General for New South Wales v Quin (1990) 170 CLR 1).
The Tribunal did consider independent country information.
The Tribunal set out country information about the one child policy in China under the heading "One Child Policy" which can be found at page 110 of the Court Book.
The applicant's daughter gave evidence to the Tribunal and the Tribunal referred to the applicant's daughter's evidence, see pages 108 and 109 of the Court Book.
As to the applicant's photographs, the Tribunal specifically referred to those photographs under the heading "Documents Submitted at Hearing":
The applicant submitted three photos at the Tribunal hearing. One was of the applicant and her husband with five children when they were much younger. She said the photo was taken in 1998. The Tribunal asked why the third child who was a girl three years older than the fourth child was so much smaller. She said the third child was very sick. Two other photos were submitted of ruined houses. She said the first property was destroyed and, when they had no place to live, they went to live in the other property. She said both were destroyed by police because they breached the one child policy. The Tribunal asked her why this was not in her statement. She said because it was clearer if she brought them in herself.[9]
[9] See Court Book, page 109.
It has been submitted by Counsel for the Minister and, in my view, correctly, that it was unnecessary for the Tribunal to make a specific finding in relation to the photographs in light of its findings:
a)That it had accepted that the applicant's own evidence that she did not fear persecution in China by reason of her previous breaches of the one child policy; and,
b)That the application of the one child policy to the applicant had not been discriminatory and, therefore, did not amount to persecution within the meaning of the Convention because it was a non-discriminatory law in general application.
I refer to Chen Shi Hai v Minister for Immigration & Multicultural Affairs,[10] also Minister for Immigration & Multicultural Affairs v Haji Ibrahim.[11]
[10] (2001) 201 CLR 293.
[11] (2000) 204 CLR 1.
Ground 3 must fail.
I have now considered all of the grounds in the applicant's application and amended application. None of them indicates jurisdictional error.
I am mindful of the fact that the applicant was not legally represented at the hearing, notwithstanding the fact that she has clearly had assistance from a lawyer on the Refugee Review Tribunal legal advice panel who assisted her with the preparation of an amended application.
My independent reading of the Tribunal decision does not disclose any arguable case for any other jurisdictional error.
In the absence of jurisdictional error, the Tribunal decision is a privative clause decision as defined in sub-s. 474(2) of the Migration Act.
As a privative clause decision, it is final and conclusive and not subject to orders in the nature of certiorari mandamus prohibition injunction or a declaration.
I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 31 July 2008
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