SZMIX v Minister for Immigration
[2008] FMCA 1278
•1 September 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMIX v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1278 |
| MIGRATION – Visa – protection (Class XA) visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – applicant a citizen of China claiming fear of persecution for reason of religious beliefs – no reviewable error. |
| Migration Act 1958 (Cth), ss.422, 474 |
| Applicant A & Anor v Minister for Immigration & Ethnic Affairs & Anor (1997) 190 CLR 225 at 245 |
| Applicant: | SZMIX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1439 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 1 September 2008 |
| Date of Last Submission: | 1 September 2008 |
| Delivered at: | Sydney |
| Delivered on: | 1 September 2008 |
REPRESENTATION
| Solicitors for the Applicant: | In person |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $3800.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1439 of 2008
| SZMIX |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
The applicant is a citizen of the People's Republic of China. He asks the Court for Judicial review of a decision of the Refugee Review Tribunal affirming the decision of a delegate of the Minister for Immigration and Citizenship not to grant him a Protection (Class XA) Visa. The applicant asks the Court for orders:
(1)To set aside the Tribunal's decision and
(2)To have the Tribunal review his case again.
He has in his application set out three grounds. They are as follows:
(1)Jurisdictional error has been made. RRT did no give me a chance to explain the doubts.
(2)Procedural fairness has been denied.
(3)The RRT failed to properly apply the Real Chance Test of Persecution by finding that the applicant's unregistered Christian group did not fall into a particular category that was likely to attract adverse attention.
The Minister for Immigration and Citizenship & Anor has filed a response claiming that the application does not raise an arguable case for the relief claimed.
Background
The background to this matter is that the applicant arrived in Australia from China on 29 September 2007. On 8 November he applied for a Protection (Class XA) Visa. When he submitted his application for a visa he also provided a two page typed statement. In that statement he set out that he was a Christian and he was employed as a fisherman. After he was married he and his wife had a child but then in April 2001 they had a second son and the Local Government fined them for a breach of the one child policy. In July of 2001 the Family Planning Commission in the applicant's area forced his wife to undergo surgery for sterilisation.
However this was unsuccessful because in May 2003 the applicant's wife became pregnant again and in January 2004 their third child was born. The applicant and his wife were fined as a result of that further breach. The applicant stated that in March 2004 he was at a Christian gathering when the police came. He had to go into hiding. Police issued arrest warrants for him and he left China and came to Australia.
A delegate of the Minister refused the application for a protection visa on 17 January 2008. The delegate considered the applicant's claim to fear persecution on the basis of being a Christian, and found that he was able to obtain a valid passport and remain at his last address for three years. He was able to leave and return from South Korea without harm from the Chinese authorities. The delegate concluded that the applicant was not of sufficient interest to the Chinese authorities before departure and found there was not a real chance of persecution if he were to return to China.
The delegate also considered country information showing that Fujian, the province from which the applicant came, was one where oppressive policies on religious affairs are not strictly implemented and Christians enjoy relative freedom to practice their religion. The delegate found that the applicant's claimed fear of being arrested and imprisoned was inconsistent with country information[1].
[1] See Court Book at page 53
The delegate also considered the applicant's claim to fear persecution for breach of the Chinese Government's One Child Policy because of having three children. The delegate found that those claims were not one of the reasons set out in the refugee's convention, as Australian Common Law has established that enforcement of a generally applicable law does not ordinarily constitute persecution for the purposes of the Convention[2].
[2] See Court Book at page 48
The applicant after having his application for a visa refused applied to the Refugee Review Tribunal on 31 January 2008 for a review of the delegate's decision. The Tribunal invited the applicant to attend a hearing. The applicant attended the hearing which took place on 9 April 2008. He gave evidence with the assistance of a Mandarin interpreter. He was accompanied by his Migration Agent. The Tribunal also heard evidence from a witness Mr Li Quiang Chen who was a deacon of the applicant's church at Padstow.
After the hearing the applicant wrote to the tribunal on 22 April 2008. In that letter he set out to explain some matters about persecution of Christians in Fujian and about his visit to South Korea in August 2007 and about how he obtained his passport. He also set out a reply to concerns by the Tribunal members. He said:
You did not believe that I attended house church gathering in China. That's not true I did participate in Christian activities in China. We gathered together, prayed to God and studied Bible in China. I will ask my brothers and sisters in Christ in China to write letters for me[3].
[3] See Court Book at page 80
The letter also went on to answer the Tribunal's concern about the fact that, at the hearing he was not able to remember the Lord's Prayer. In his letter to the Tribunal the applicant said:
Regarding Lord's Prayer, I couldn't pray it at interview. I didn't know what happened to me at that moment. It must be the devil controlled my brain at that moment. I also got nervous. At that time my brain got nothing in it but I could tell the member it on Matthew 6, verses 9 to 13 (you could listen to CD). Beside in China we only sometimes read it. In Padstow Church we did not read it every Sunday at service but I know this prayer so I could tell the member where it is in the Bible. When I left the interview room I could tell the Lord's Prayer[4].
[4] See Court Book at page 80
The applicant also submitted photographs of his three children and other photographs taken at church services.
The Refugee Review Tribunal Decision
The Tribunal signed its decision on 24 April 2008 and handed the decision down on 6 May 2008. The Tribunal affirmed the decision not to grant the applicant a Protection (Class XA) Visa. A copy of the Tribunal decision record can be found in the Court Book at pages 93 through to 113. The Tribunal set out at the beginning of the decision the relevant law and then set out the claims and evidence under the following headings:
Evidence provided to the Department by the applicant.
The Tribunal hearing.
Oral evidence of Mr Li Quiang Chen.
Evidence from other sources.
This last heading covered independent country information which covered family planning regulation in Fujian Province, penalties, the situation of Christians in China and quotes from a variety of independent sources.
The Tribunal's findings and reasons are set out on pages 110 to 113 of the Court Book. The Tribunal was satisfied that the applicant was a National of the People's Republic of China based on his Chinese passport. The Tribunal then went on to make this finding:
The Tribunal is satisfied and accepts that he is the father of three children and for that reason is satisfied that he was regarded by the Fujian authorities as having breached China's Family Planning Regulations as they are applied at the Province. The Tribunal accepts that he has an unpaid debt in China as payment of the "Social Compensation Fee" payable by citizens who have breached these regulations. The Tribunal accepts that this may have caused him and his family some hardship and that if he returns to China that may continue to be the case until the debt is repaid[5].
[5] See Court Book at page 110
However, the Tribunal considered that ordinarily non discriminatory application of generally applicable laws does not constitute persecution. That applies whether or not a particular law is oppressive or repugnant to the values of our society. The Tribunal referred to the decision of Dawson J in Applicant A & Anor v Minister for Immigration & Ethnic Affairs & Anor[6].
[6] [1997] 190 CLR 225 at 245
In that decision Dawson J said:
Since a person must establish well founded fear of persecution for certain specified reasons in order to be a refugee within the meaning of the Convention, it follows that not all persons at risk of persecution are refugees and that must be so even if the persecution is harsh and totally repugnant to the fundamental values of our society and the international community.
The Tribunal, following on from that decision, found that there was nothing in the applicant's evidence from which the Tribunal could infer that the fine, or potential penalties, for his inability to pay it were for a reason set out in the convention. The Tribunal found that the evidence did not indicate that the imposition of fines for breaching the one child policy was discriminatory in its intent or had a discriminatory impact on members of a group recognised by the convention. The Tribunal went on to conclude that there was no convention reason for the harm feared by the applicant arising from the breach of the Family Planning Regulations.
The Tribunal then went on to consider the applicant's claim to have been a member of a small group of Christians in China between 2001 and 2004 and to have had ongoing contact with the group for another three and a half years. The Tribunal had some doubts about this and set out its reasons. First there was no corroborating evidence, second the applicant's witness at the hearing was unable to confirm to the Tribunal that the applicant had any knowledge about Christianity at the time he arrived in Australia. Third the Tribunal noted that the applicant was unable to recall much of the Lord's Prayer, however the Tribunal went on to find this:
However given the evidence from the other sources above, that over a quarter of Fujian's population is Christian and given that other aspects of his oral evidence about his past practice were expressed fairly cogently, the Tribunal considers it possible that he regarded himself as a Christian while in China. The Tribunal therefore proposes to consider his claims to fear persecution in China on that basis[7].
[7] See Court Book at page 111
The Tribunal then went on to consider those claims, noting that it was satisfied that it is not illegal to be a Christian in China, but the Tribunal considered certain parts of the applicant's account to be implausible and not consistent with independent evidence and noted that the applicant was unable to explain certain aspects of his evidence.
The Tribunal also noted that the applicant risked leaving China through an airport using a passport in his real identity and having re-entered China after he had already left China and noting that at the time he had visited South Korea he had been living and working with a single address in Xianen for over three years without any problems with the authority. The Tribunal found the applicant’s actions to be so inconsistent with a fear of being detained or arrested in China that it did not accept that he had such a fear. The Tribunal went on to find that the applicant did not have a well founded fear of being persecuted in the People's Republic of China for one of the reasons set out in the Refugee's Convention.
Conclusions
The applicant has claimed jurisdictional error because the Tribunal did not give him a chance to explain his doubts and denied his procedural fairness and failed to apply the Real Chance Test of Persecution properly. Neither in his application nor in his submissions to the Court today, was the applicant able to explain why the Tribunal did not give him a chance to explain the doubts. He appeared before the Tribunal and gave evidence. The Tribunal raised certain concerns with him and the applicant replied to those concerns at the hearing but also in a letter written to the Tribunal after the hearing. The Tribunal considered the matters in the letter but were still not convinced.
In my view the applicant has not made out the ground one, saying that the Tribunal erred by not giving him a chance to explain the doubts.
The applicant claims in his second ground that he was denied procedural fairness. The Minister has submitted that s.422D of the Migration Act applies and that the relevant provisions of the Act are an exhaustive statement of the natural justice hearing rule. It is submitted that the Tribunal complied with the procedural requirements. At the hearing the applicant complained that when he gave his evidence he was not able to finish his answers because the Tribunal kept interrupting. However he has not provided a transcript or any evidence to that effect.
I am not satisfied that the applicant's second ground has been made out.
The third ground claims that the Tribunal failed to apply the Real Chance Test of Persecution properly. The Tribunal set out it's understanding of a Real Chance in it's decision at page 95 of the Court Book saying:
A Real Chance is one that is not remote or insubstantial or a far fetched possibility. A person can have a well founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent[8].
[8] See Court Book at page 95
However the Tribunal did consider the applicant's evidence as far as his Christian activities and it considered country information regarding Christians in China and particularly in the province from which the applicant claimed. The Tribunal rejected parts of the applicant’s evidence even though it proceeded on the basis that he may well have considered himself to be a Christian whilst he was in China. The Tribunal was not satisfied however that the applicant, even if he considered himself to be a Christian, had shown there were reasons why the Chinese Government would have an interest in him or why he would have a reason to fear persecution if he returned to China. It was open to the Tribunal to make these findings based on the evidence before it.
I am not satisfied that ground three has been made out.
I am aware that the applicant is not legally represented and I have considered the Tribunal decision independently but I am not able to identify any other possible ground of jurisdictional error that the applicant has not referred to. I am satisfied that there is no jurisdictional error and accordingly the Tribunal decision is a privative clause decision as defined by s.474 of the Migration Act. As a privative clause decision it is not subject to orders in the nature of certiorari or mandamus which the applicant seeks.
It follows that the application should be dismissed with costs.
There is an application for costs on behalf of the first respondent Minister in the sum of $3800.
The applicant has not been successful in his claim and this is a proper matter for a costs order. The amount of $3800 which is sought is an appropriate figure in the circumstances.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. Coutman
Date: 10 September 2008
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