SZMGZ v Minister for Immigration

[2008] FMCA 1542

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMGZ v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1542

MIGRATION – Application to review of decision of Refugee Review Tribunal – no jurisdictional error – application dismissed. 

Migration Act 1958 (Cth), ss.91S, 424A, 425

Applicant A and Another v Minister for Immigration and Ethnic Affairs and Another (1997) 190 CLR 225
STJB v Minster for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 9

Applicant: SZMGZ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1266 of 2008

Judgment of: Barnes FM

Hearing date: 10 November 2008

Delivered at: Sydney

Delivered on: 10 November 2008

REPRESENTATION

Applicant: In person

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. That the application be dismissed.

2. That the applicant pay the costs of the first respondent fixed in the sum of $3,200.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1266 of 2008

SZMGZ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal, signed on 26 March 2008 and handed down on 15 April 2008, affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.

2. The applicant, a citizen of the People's Republic of China, arrived in Australia in October 2006 and applied for a protection visa in September 2007. The applicant's claims were set out in a statement accompanying his protection visa application. He claimed that he had breached the one child policy of China and that if he returned he would be persecuted by the Chinese government. He claimed that he and his wife had four children in China and that his “uncle used to be the person in charge of the Birth Control Programme” in his village, but had retired and the person “in charge now got [him] in trouble” and asked him to “pay off the $50,000 Yuan as a Social Maintenance Collection” by a date in September 2007. He claimed that he could not make that payment and had been told if he returned to China he would be detained by the police until the family made the payment. Accompanying the application was a copy of a document said to be a fine notice.

3. The application was refused by a delegate of the first respondent and the applicant sought review by the Tribunal. The applicant appeared at a Tribunal hearing conducted with the assistance of a Mandarin interpreter. He provided further documentary material to the Tribunal, including a translation of a statement dated 2 January 2008 said to be from the Public Security Bureau of the city in which he lived, indicating that he was wanted “based on the violation act of having extra two children, the One-Child Policy Execution Office executed administrative punishment”, which was a fine of 50,000 Yuan, that the suspect “refused to pay the fine and made a lot of slanderous statements against the Government”, breaking the criminal laws of the government, and that he had fled in January 2007. The statement continued that the applicant was wanted by the police and if the public had any information to contact the Public Security Bureau.

4. In its reasons for decision the Tribunal summarised the applicant's claims and evidence, including his claim that previously no action had been taken against him because his uncle had been in charge of population planning, but that the person who had replaced him had a personal vendetta against the applicant's uncle and aunt, and that he regarded the penalty imposed as excessive because another family had been fined only 30,000 Yuan. He claimed that his daughter had informed him of a campaign of persecution against him in his home village and that the warrant had been issued against him in January 2008 because a Court had found a prima facie case against him.

5. The Tribunal addressed the applicant’s claim that he had incurred a substantial fine as a result of PRC population planning controls. However it pointed out that the difficulty in this forming the basis for finding that the applicant was a refugee was that where laws are of general application and not directed at a person in a discriminatory way, they cannot be said to be directed at the applicant for any Convention reason, even if the action may result in serious harm to the person.  Reference was made to Applicant A and Another v Minister for Immigration & Ethnic Affairs and Another (1997) 190 CLR 225.

6. The Tribunal found that the available evidence indicated that the applicant was being dealt with in the normal way in respect of the administration of the population planning policy in his local area. It observed that the applicant had in fact breached the planning policy quite substantially. It accepted that he had been issued with a notice of a fine and given time to pay, which he had not done. However it found that while he claimed the fine was excessive, it had been enforced through a Court which the applicant indicated was more formal and fair than the local committee, it was within the range of the fine of 30,000 Yuan referred to by the applicant, and was far less than the fine applied in urban areas of which the Tribunal was aware. This was said to indicate that the fine had not been “set at an unreasonable or differential level because of some Convention characteristic.”

7. The Tribunal accepted that after non-payment of the fine the matter was taken to Court and examined. It accepted the applicant's evidence that this was done in a formal way, which saw the level of breach reduced. This appears to be a reference to the fact that the warrant refers to two additional children, not three additional children. It also accepted that the Court had rejected claims by the local authority for a substantial increase in the proposed fine. The Tribunal found that the available evidence indicated that the applicant's breach of the population planning policies was treated in the normal way, its impact on him having previously been ignored because of his relationship to those with authority in the area.

8. The Tribunal also considered the fact that the most recent Court document referred to the applicant speaking slanderously against the government, but found that this did not appear to have impacted on the treatment of the applicant during the Court proceedings or in the outcome. It also considered his claim that his daughter had her salary frozen at a private enterprise as a result of her argument with the family planning authority on his behalf, but had regard to the fact that he had not suggested that he held any fear of persecution on this basis should he return to China. Rather he had indicated that he would be detained for non-payment, but would be released if he could pay the fine. The Tribunal found that the Court, when examining his case, had done so fairly and reduced the level of his offence and that this indicated that the applicant did not believe there was any interest in him for holding any political opinion.

9. The Tribunal considered the applicant's claim that he feared that another family in his local area would harm him as a result of a vendetta against his uncle and aunt because of a decision they enforced in relation to family planning when responsible for such matters in the local area. However, the Tribunal found those fears must be disregarded under s.91S “because the vendetta did not relate to any reason specified in the Refugees Convention” and that any interest in harming the applicant or his family related “entirely to a personal grievance.”

10. The Tribunal also considered the applicant's suggestion that the reason for his fear of persecution related to the loss of political power of his family and the political position his aunt and uncle used to occupy. However it did not believe that this established the relevant nexus to a Convention reason, finding that while the applicant's relatives had occupied significant positions in the past this was not the reason for any interest in harming them and their relatives. Rather the actions they took in enforcing a sterilisation in the past had resulted in personal loss and suffering and the other family may now seek what could be termed “revenge.” The Tribunal found that the fact that this arose through the uncle and aunt's employment did “not give the required quality of relating to political opinion.”

11. Disregarding this aspect of the applicant's claimed fear of persecution within s.91S and having regard to its view of the impact of population planning policies, the Tribunal did not believe that the applicant held a well-founded fear of persecution for any reason specified in the Refugees Convention should he return to the People's Republic of China. It affirmed the decision of the delegate.

12. The applicant sought review by application filed in this Court on 16 May 2008. There are two grounds in the application. The first is that the Tribunal decision was “affected by jurisdictional error in that the Tribunal failed to invite the applicant to comment on adverse information. The Tribunal breached section 424A of the Migration Act. No particulars are provided in the application to identify any information of a kind referred to in s.424A(1) of the Act. Nor were any provided in oral submissions today. The evidence before the Court is not such as to establish that there was a failure to comply with s.424A(1). In assessing the applicant's claim the Tribunal relied on information provided by the applicant to which the exceptions in s.424A(3)(b) and s.424A(3)(b)(a) apply, and also on independent country information within the exception in s.424A(3)(a) of the Act. Ground one is not made out.

13. Ground two is that the Tribunal erred in finding that the “vendetta does not relate to any reason specified in the Refugees Convention.” Again, this ground was not addressed by the applicant in particulars or in submissions. In effect the applicant alleges that contrary to the Tribunal's factual findings the vendetta was Convention related. Section 91S of the Migration Act provides that for the purposes of the application of the Act and Regulations to a particular person in determining whether that person has a well-founded fear of being persecuted for reasons of membership of a particular social group consisting of the person's family, the Tribunal is to disregard any fear of persecution or any persecution that any other member or former member of the family has ever experienced, where the reason for the fear of persecution is not a reason mentioned in the Refugees Convention as amended by the Refugees Protocol and also to disregard any fear or persecution or any persecution experienced by the applicant or any other family member, where it is reasonable to conclude that the fear of persecution would not exist if it were assumed that the fear or persecution in para. (a) had never existed.

14. The Tribunal considered the application of s.91S to the facts as found by it. It formed the view that the applicant’s fear of persecution was to be disregarded under s.91S insofar as it arose because he was a relative of a person targeted for a non-Convention reason. On its face, ground two of the application seeks to cavil with the Tribunal's factual findings which were reasonably open to it on the material before it at the time of its decision.

15. As set out above, the Tribunal provided reasons for its findings in relation to the vendetta, in particular for its finding that the vendetta was not related to any reason specified in the Refugees Convention, and its finding that any interest in harming the applicant, his aunt or uncle related entirely to a personal grievance, and was therefore for a reason other than those specified within the Refugees Convention.

16. The application of s.91S clearly depends on a factual finding that the original fear of persecution arises for a reason other than membership of the family group. In this instance, the Tribunal properly considered the claims made by the applicant, the facts as found by it and the operation of s.91S to those facts. No error has been established in the Tribunal findings that there was no Convention nexus to the claimed fear and that s.91S applied (see STJB v Minster for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 9).

17. In addition, in the affidavit accompanying the application to this Court the applicant claimed that he also feared persecution due to his religious belief and had not made this claim to the Tribunal, but would like to make the claim to the Court. It is apparent from this claim and also what the applicant said today that he mistakenly appears to believe that this Court can provide him with merits review. I endeavoured to explain to him that that is not the case and that if he now says he has a claim which he did not raise with the Tribunal, or if, as he submitted in oral submissions, he says that circumstances have changed in his home country since the time of the Tribunal decision, those are not matters which establish that the Tribunal made a jurisdictional error at the time of its decision on the information before it at that time. They may be matters that he can raise with the Department in relation to whether he is able to make a further protection visa application or whether the Minister would substitute a more favourable decision. However his fresh claim to fear persecution based on religious belief does not establish any jurisdictional error on the part of the Tribunal, given his concession that he did not make that claim before the Tribunal.

18. The applicant also sought to put before the Court untranslated documents and photographs. The documents were said to be documents which he had recently obtained from China consisting of a more recent warrant and another document requiring payment of the penalty. The photographs were said to be of the destruction of his home. He clarified that these were not documents that were before the Tribunal and post-dated the Tribunal's decision. He sought that the Court consider his claim to be a refugee based on these more recent events. Again, as I explained to him, that is not the function of this Court and these documents did not assist the Court to determine whether or not the Tribunal made a jurisdictional error on the material before it at the time of its decision.

19. The other matter raised by the applicant in oral submissions was a generally expressed contention about the conduct of the Tribunal hearing through the medium of an interpreter. He claimed generally that he did not get what "they" (and I take that to be the interpreter and the Tribunal member) actually were talking about and he was not sure whether there were translation errors. This contention neither establishes any jurisdictional error, nor on its face gives rise to any cause for concern in that respect. There is nothing in the Court Book, in particular in the Tribunal reasons for decision, to indicate any difficulty with interpretation at the hearing, or that any concerns were raised about the interpretation at the hearing. I note that this is not a case in which the Tribunal rejected the credibility of the applicant's claims about what he said had occurred. Indeed the Tribunal accepted the substance of the applicant's evidence about events that had occurred, but not that those events had the consequence of bringing him within the Refugees Convention.

20. More specifically, consent orders were made at a directions hearing on 5 June 2008 for the applicant to file and serve any affidavit containing additional evidence, including any transcript of a Tribunal hearing by 29 August 2008. He did not do so. Nor did he file written submissions. The generally expressed contention that he makes today does not establish that the Tribunal failed to comply with its obligations under s.425 of the Act, or that he was not afforded the opportunity required by that provision, or that there was any lack of procedural fairness in any more general sense.

21. As no jurisdictional error has been established, the application must be dismissed.

RECORDED : NOT TRANSCRIBED

1. The applicant has been unsuccessful and there is nothing in the material before me to warrant a departure from the normal rule that the unsuccessful applicant should pay the costs of the first respondent. The amount sought is appropriate in light of the nature of this and other similar matters.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  18 November 2008