SZMKY v Minister for Immigration
[2008] FMCA 1338
•11 September 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMKY v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1338 |
| 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.424A, 424AA |
| SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 |
| Applicant: | SZMKY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1591 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 11 September 2008 |
| Date of Last Submission: | 11 September 2008 |
| Delivered at: | Sydney |
| Delivered on: | 11 September 2008 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Ms Sirtes |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
The Application is dismissed.
The Applicant is to be pay the First Respondent's costs fixed in the sum of $4,400.00.
I allow six (6) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1591 of 2008
| SZMKY |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant is a citizen of the People's Republic of China. She asks the Court to review a decision made by the Refugee Review Tribunal on 22nd May 2008 affirming a decision of a delegate of the Minister for Immigration and Citizenship not to grant her a protection visa.
In particular, the Applicant asks for a writ of certiorari to quash the Tribunal decision and a writ of mandamus compelling the Tribunal to rehear and redetermine her matter according to law.
I have explained to the Applicant that, in order to make the orders that she seeks, the Court must be satisfied that the Tribunal decision is affected by jurisdictional error.
The Applicant in her application has set out two grounds as to why she considers the Tribunal fell into jurisdictional error:
a)The first ground is that the Tribunal failed to invite her to comment on adverse information and, in doing so, breached s.424A of the Migration Act.
b)The second ground is that the Tribunal committed jurisdictional error by applying a wrong test to persecution. She claims that the Tribunal accepted that she had been mistreated by the Chinese Government because of her breach of China's one child policy. However, the Applicant claims that the Tribunal made an incorrect finding that this mistreatment that she had suffered was not for a reason connected to the Refugees Convention.
I would make it clear at this stage that the Applicant has raised certain compassionate matters as to why she wishes to remain in Australia and why she does not wish to return to China. The Applicant has provided the Court with some medical information which indicates that she requires treatment for a condition which will involve her having an operation. The Applicant tells the Court that she is waiting for a date for that surgery to be scheduled and does not know whether that will be within six months or within a year.
I have explained to the Applicant that the Court does not have the power to issue any visa on medical grounds. The jurisdiction of the Court is confined to carrying out judicial review of the decision of the Refugee Review Tribunal not to grant the Applicant a protection visa.
The Applicant has raised certain administrative matters pointing out that she currently has a Medicare Card and, if she is able to retain that card, she will be able to undergo the surgery that she needs without incurring considerable expense. That card, she told the Court, expires at the end of October.
Again, I have explained to the Applicant that the Court does not have any jurisdiction in respect to the Medicare Card and, more importantly, perhaps, cannot take the question of the possession or reissue of a Medicare Card into account when carrying out its task of conducting judicial review of the decision of the Refugee Review Tribunal.
If there are compassionate matters that the Applicant believes should be brought to the attention of the authorities, then it would be open to her to make an application to the Minister for Immigration and Citizenship for the exercise of the Minister's discretion, once the Court proceedings involved with this matter have been finalised.
Background
The background to this matter is that the Applicant arrived in Australia in September 2007 and applied for a Protection (Class XA) visa on 25th October in that year. With her application for a visa, she provided a statement in Chinese and in English in which she set out that she had been detained and persecuted by the Chinese Government for a breach of the one child policy.
In her statement, she explained that she was married in October 1988 and gave birth to a daughter in 1991. However, her husband wished to have a son and she became pregnant again. She complained that she was found out by birth control officials and was detained and underwent a forced abortion. She claimed that she was further persecuted in that the electricity and water supply were cut off to her home, her house was confiscated and she was laid off by her employer.
The Applicant claimed that, as a result of all this, her husband treated her very badly and, indeed, had affairs with other women until the parties were divorced in May 2003.
The Applicant left China and came to Australia.
A delegate of the Minister considered the application for a visa and refused that application on 23rd January 2008. The delegate considered Independent Country Information about the one child policy and considered the Applicant's circumstances, including her claim about the forced abortion of the second child.
The delegate went on to say:
“All of the above considerations suggest that, while the applicant was subjected to persecutory treatment by local birth control officials in 2002, she was not subjected to any further harm between 2002 and 2007. Furthermore, I am mindful that evidence of past persecution does not give rise to a presumption that the applicant's fear of persecution on return to their country of origin is well-founded (MIEA v Guo Wei Rong & Anor (1997) 191 CLR 559), and that the assessment of an applicant's claims requires a decision-maker to determine whether their fear of persecution is well-founded in the reasonably foreseeable future (NAHI v MIMA [2004] FCAFC 10).
There is no evidence to suggest that, on her return to the PRC, the applicant would be subjected to any continuing punitive action on account of her pregnancy in 2002, and she does not state that she has any intention or desire to have any further children in the reasonably foreseeable future.”[1]
[1] See Court Book at page 50.
Application to the Refugee Review Tribunal
After the application for a protection visa was refused, the Applicant applied to the Refugee Review Tribunal for a review of that decision. The Tribunal received her application in its Sydney Registry on 25th February 2008. The Applicant provided a copy of the delegate's decision with her application but no other documentary evidence.
The Tribunal wrote to the Applicant on 6th March 2008 and invited her to attend a hearing on 18th April 2008.
The Applicant attended the hearing and gave evidence with the assistance of an interpreter in the Cantonese language. She provided her passport to the Tribunal and a photocopy was taken of that passport. The Applicant gave evidence to the Tribunal with the assistance of the Cantonese interpreter.
The Tribunal signed its decision on 4th May 2008 and handed that decision down on 22nd May 2008. The Tribunal affirmed the decision of the Minister's delegate not to grant the Applicant a Protection (Class XA) visa. The Tribunal decision is set out in the Court Book at pages 78, through to 85.
The Tribunal considered the claims and evidence from the Department's file including the Applicant's original application and also considered the Applicant's evidence at the hearing which the Tribunal summarised.
The Tribunal’s Findings and Reasons
The Tribunal's Findings and Reasons can be found at page 84 of the Court Book. The Tribunal described the Applicant as having been "commendably honest in her evidence at the hearing before me."[2] The Tribunal accepted that, when the Applicant became pregnant with her second child, she was forced to undergo an abortion and the Applicant's husband subsequently divorced her. The Tribunal also accepted that the Applicant did not want to return to China because it was a sad place for her.
[2] See Court Book at page 84.
The Tribunal noted that the Applicant had said that she believed that she had been treated more harshly than others who had breached the one child policy in China but she did not know why she had been treated more harshly than other people.
The Tribunal accepted that the Applicant had been laid off by her employer because she had breached the one child policy but found that she had been employed from 2005 until she left China in 2007.
Whilst the Applicant said that her house had been confiscated, the Tribunal put to her in the hearing that the Applicant said she had been living at the one address in China before she left China. The Tribunal considered the definition of a "refugee" and made the point that
“The definition of a refugee looks to the future and while I accept that the applicant has been badly persecuted in the past, and that she does not want to return to China because it is a sad place for her, she has not pointed to any harm which would amount to persecution which she fears she will suffer for one or more of the five Convention reasons if she returns to China.”[3]
[3] Ibid.
The Tribunal was not satisfied that there was a real chance that the Applicant would suffer persecution involving serious harm as required by s.91R(1)(b) of the Migration Act or one or more of the five Conventions reasons if she were to return to China at that time or in the reasonably foreseeable future.
Accordingly, the Tribunal was not satisfied that the Applicant was a person to whom Australia has protection obligations under the Refugees Convention and affirmed the decision not to grant the Applicant a Protection (Class XA) visa.
Application for Judicial Review
The Applicant commenced proceedings for review in this Court on 20th June 2008 by filing an application and an affidavit in support. She has not filed a written outline and submissions but she had attended Court today and made oral submissions with the assistance of an interpreter in the Cantonese language.
The Applicant has asked the Court to be allowed to stay in Australia and claimed that she would suffer maltreatment if she were to return to China. She said that she did not want to go back to a place that had given her hardship and she would never forget the circumstances that led to the breakdown of her marriage. She referred to her health issues and indicated that she would like to stay in Australia, the longer the better, and reiterated that she does not wish to return to China.
Counsel for the Minister, Ms Sirtes, submitted that the Applicant, whilst she had made quite clear that she did not wish to return to China, had not demonstrated any jurisdictional error on the part of the Tribunal and submitted that the Applicant's unfortunate circumstances did not provide any ground for remitting her application to the Tribunal.
Ground 1
The Applicant relies on two grounds, the first being a failure to invite her to comment on adverse information and thereby breaching s.424A of the Migration Act.
It appears clear that the Tribunal decision was based on the Applicant's own evidence to the Tribunal. The Tribunal does not refer to any Independent Country Information, nor does it refer to any other information in its decision. It does not emanate from the Applicant herself.
Furthermore, it is noteworthy that the Tribunal Member did attempt to comply with the requirements of s.424AA of the Migration Act during the hearing. It is well accepted, in my view, and, indeed, it was set out in the explanatory memorandum, s.424AA was intended to complement the Tribunal's existing obligation under s.424A of the Act in such a way that, if the Tribunal elects to follow the s.424AA procedure and it is not obliged to do so, but, if it does follow that procedure, it can be relieved from compliance with s.424A or sub-section 424A(1) by the operation of sub-section 424A(2A).
It is clear to me from paragraphs 22 to 27 of the Tribunal's decision that the Tribunal Member elected to comply with the procedure set out s.424AA of the Migration Act. In paragraph 22, the Tribunal says:
“I indicated to the applicant that I was going to give her some information which I considered would be the reason, or a part of the reason, for affirming the decision under review. I indicated that I would explain the information to her so that she understood why it was relevant to the review and that I would also explain the consequences of the information being relied up in affirming the decision under review. I indicated that I would ask her to comment on or to respond to the information. I indicated that if she wanted additional time to comment on or to respond to the information she could tell me and I would then consider whether to adjourn the review to give her additional time.”[4]
[4] See Court Book at page 83.
In paragraphs 23, 24, 25 and 26 of the decision, it is clear that the Tribunal Member set out items of information that the Member considered would be the reason or a part of the reason for affirming the decision under review. The Tribunal sets out the information that was put to the Applicant and in paragraphs 23, 24 and 26, the Tribunal set out a summary of what the Applicant said to the Tribunal.
The Tribunal then went on to deal with the question of whether or not the Applicant would be given additional time to comment on or respond to the information. The Tribunal said:
“I indicated to the applicant that, as I had mentioned earlier, she was entitled to seek additional time to comment on, or to respond to, the information I had given her in the course of the hearing. The applicant said that she did not require additional time. She said that she would thank me very much if I could give her a chance to stay her permanently.”[5]
[5] See Court Book at pages 83 and 84.
In my view, the description set out in the Tribunal Decision record indicates a compliance with the procedure set out in s.424AA of the Migration Act. Consequently, s.424A(2A) of the Migration Act applies and there is no obligation under s.424A(1) of the Act even if the information referred to were not information covered by s.424A(3) of the Migration Act.
In my view, however, the information would have been covered by s.424A(3) in any event.
It has been put to me by Counsel for the Respondent Minister that, in this regard, it could well be argued that the information that the Tribunal put to the Applicant is in fact its thought processes and subjective appraisals regarding the Convention nexus to the Applicant's claim and this information is not required to be put and the Minister relies of SZBYR v Minister for Immigration and Citizenship[6].
[6] [2007] HCA 26 at [18]
In my view, that is a submission that would appear to be a submission of some merit but, in any event, the Tribunal's compliance with s.424AA of the Act, even if it were not required to do so, makes it quite clear that s.424A(1) of the Act does not apply.
Ground 2
Turning to the Applicant's second ground which is that the Tribunal applied a wrong test to persecution in that it had accepted that the Applicant had been mistreated by the Chinese Government because of her breach of the one child policy, but made an incorrect finding that this mistreatment was not for a Convention reason.
The fact is that this ground is really a challenge to the Tribunal's factual findings. The Tribunal found that there was not a Convention nexus with the Applicant's claim. In other words, the Applicant did not claim persecution connected to one of the five reasons set out in the Refugees Convention. Unless there is a Convention nexus, quite clearly the Applicant cannot be classified as a person to whom Australia has protection obligations under that Convention and would not satisfy the criterion set out in paragraph 36(2)(a) of the Migration Act.
The Applicant in her submissions has referred to factual matters relating to her desire not to return to China and her unfortunate memories of the enforced abortion and the subsequent breakdown of her marriage. These are, of course, quite poignant circumstances and the Applicant would certainly feel extremely distressed by them. However, the Court does not have the power to take compassionate circumstances into account in conducting a review of a decision of an administrative decision-maker.
The Court's jurisdiction is confined to a consideration as to whether the Tribunal fell into jurisdictional error. As the Applicant's second ground is, in effect, a challenge to the Tribunal's factual finding, it amounts to what is known as a "merits review" or an "attempted merits review" which, unfortunately for the Applicant, is not open to a Court conducting judicial review.
It follows that the Applicant's second ground must fail.
Conclusions
I am mindful of the fact that the Applicant is not legally represented. I am not able to discern any arguable case of jurisdictional error. In the absence of jurisdictional error, the Tribunal decision is a privative clause decision, as defined by s.474(2) of the Migration Act. I am referred by the Minister to the decision of the High Court of Australia in Plaintiff S157/2002 v Commonwealth of Australia[7] at [76] of the decision.
[7] (2003) 211 CLR 476
Because the Tribunal decision is a privative clause decision, it follows that there are no grounds for granting relief in the nature of certiorari or mandamus. It follows from that that the application will be dismissed with costs.
There is an application for costs on behalf of the First Respondent, the Minister, in the sum of $4,400.00. The Applicant has indicated to the Court that she does not have the means to meet that amount and seeks some concession to be made.
Whilst it is well-established that in this jurisdiction a lack of means to meet a costs order is not a reason of itself for the Court not to make the order, it is also well within the Court's powers to make an order allowing a person time to pay. If the Court does not make an order for time to pay, then costs would be payable within 28 days of the order being made. In my view, I think a more appropriate time to pay would be six months.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 25 September 2008
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