SZMLW v Minister for Immigration - [2008] FMCA 1615

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMLW v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1615

MIGRATION – Review of decision of RRT – where applicant’s claims are effectively for merits review.

Migration Act 1958, ss.424A, 425

SZBEL v Ministerfor Immigration [2006] 228 CLR 152

Applicant:

SZMLW

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1675 of 2008

Judgment of:

Raphael FM

Hearing date:

17 November 2008

Date of Last Submission:

17 November 2008

Delivered at:

Sydney

Delivered on:

17 November 2008

REPRESENTATION

For the Applicant:

In person

Solicitors for the Respondent:

DLA Phillips Fox

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $2,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1675 of 2008

SZMLW

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of China who arrived in Australia on 28 September 2007 and applied to the Department of Immigration and Citizenship for a Protection (class XA) visa on 11 October 2007.
On 27 November 2007 a delegate of the Minister refused to grant a protection visa and on 24 December 2007 the applicant applied for a review of that decision from the Refugee Review Tribunal. The Tribunal held a hearing which the applicant attended and on 8 May 2008 it determined to affirm the decision under review. The decision was handed down on 29 May.
The history which the applicant gave to the Tribunal as containing his reasons for believing that he was a person to whom Australia owed protection obligations had three main strands. The first was the treatment that his wife had received following the birth of their second child in breach of the one child policy. The applicant told how the family was required to pay a fine of 5000 RMB to have their son registered. His wife was required to have a tubal ligation as a condition for allowing the registration. This has resulted in her having gynaecological problems ever since.
The next strand of the applicant's story was that his step-father had been found listening to Taiwanese radio at least 20 years ago when to do this was contrary to the law. He was prosecuted and sent into detention for approximately four years. His step-father's health was seriously affected by this detention. In 1994 the applicant and his step-father began to take steps to seek compensation for this incident but were unable to secure the services of a lawyer or have a government court take the matter into consideration. The applicant claimed that, as part of the steps he was taking to assist his step-father, he found himself in trouble with the police and was beaten up.
The third strand of the applicant's story was that, probably because of his involvement in seeking redress for his step-father, he suffered problems in the transporting business that he ran. It seems that, at some stage, he moved around the country and set up businesses selling fuel but he has had imposed on him heavy taxes which prevented those businesses being profited. At some stage he was also a contract driver and, in that position, he was fined frequently for driving trucks which were overweight even though he had nothing to do with this and it was the responsibility of the company for whom he was contracting.
The applicant told his history to the Tribunal who has noted it in the claims and evidence section of its reasons for decision, commencing at [CB 70]. At [CB 74] before the Tribunal came to its decision and whilst the applicant still had an opportunity to speak with it:
“The Tribunal indicated to the applicant that it may not be satisfied that he has a well-founded fear of being persecuted for a Convention reason. The Tribunal indicated that because of the inconsistencies in the applicant's evidence, it may not accept the applicant was beaten up as claimed. The Tribunal also indicated that it may not accept that the detention of the applicant's step-father and subsequent petitions lodged in 1994 have resulted in the fines and taxes as claimed. The Tribunal opined that they may relate to the normal taxation and fining systems that exist and, whilst they may not have appeared fair, they may not have been applied in a discriminatory manner such that the applicant would fear persecution for a Convention reason. The Tribunal noted that the applicant had indicated he was subject to the one-child policy unreasonably but there would appear to be no reason for the law being applied discriminately in his case, rather than a lot of people were subject to the one child policy at the time.”
The applicant did not appear to respond to these indications.
The Tribunal then went on to inform the applicant that, having considered his evidence, it felt that he might not meet the definition of a refugee and at [CB 74] gave an indication of the reasons for coming to this probable conclusion. It then asked the applicant if there was any more evidence that he wished to bring and he said that there was not.
The Tribunal's findings and reasons, which commence at [CB 76], seem to follow the views that it had told the applicant it was forming. The Tribunal did not dispute many of the aspects of the applicant's story, particularly that relating to the fine and requirement of sterilisation after the birth of the second child. It accepted that the problems he had spoken about concerning his step-father and the possibility that the applicant had, in fact, tried to do something about seeking compensation for his step-father in 1994. It also accepted that he was likely to have been fined and subject to taxation in the businesses that he ran.
“The Tribunal accepts that the applicant may have experienced problems in his businesses and employment relating to taxation, fines and demands from government officials, and that these problems may have resulted in the businesses not being viable and may have made his employment difficult. However, as found above, the Tribunal does not accept that the applicant has experienced problems with his businesses or his employment because of his breach of the one child policy or because of any connection to his step-father having been detained more than 20 years ago for listening to Taiwanese broadcasts or the action he took in seeking compensation. The evidence before the Tribunal does not establish that any demands made by government officials or any taxes or fines imposed on the applicant in respect of his business or his employment have been or would be imposed in a discriminatory manner for a Convention reason.
The Tribunal does not accept that the applicant has suffered serious harm in China as a result of his step-father being detained more than 20 years ago for listening to Taiwanese broadcasts or for the steps the applicant took to obtain compensation for his step-father. Nor does the Tribunal accept that if the applicant returns to China now or in the reasonably foreseeable future, there is a chance he will persecuted for a Convention reason on this basis.” [CB 77]
The Tribunal came to the same views with regards to the one child policy.
In the grounds of application which the applicant admits were written for him by a "friend" he states that the RRT decision was affected by jurisdictional error in that the Tribunal failed to invite him to comment on adverse information. This, he claimed, was a breach of s.424A of the Migration Act 1958 (“the Act”). The only information that the Tribunal utilised in coming to its conclusions was information provided by the applicant himself which is exempted from the provisions of s.424A by the provisions of s.424A(3)(b) or the independent country information found at [CB 75] which is exempt by the provisions of s.424A(3)(a). So, this ground of review is not open to the applicant.
The second ground is that the Tribunal, having accepted that he was the victim of certain mistreatment, did not invite him to establish a connection between the mistreatment and the family's breach of the one child policy or the unlawful detention of his step-father. Mr Johnson, who appears for the Minister, calls that a s.425 point and, in his helpful written submissions, reminds the court that in SZBEL v Ministerfor Immigration [2006] 228 CLR 152 the High Court made it clear at [48] that the Tribunal is not obliged to provide a running commentary on what it thinks about the evidence that is being given. Notwithstanding the advice of the High Court this particular Tribunal was kind enough to provide the applicant with a running commentary which I have already extracted in these reasons. In my view, the applicant had more than sufficient opportunity to convince the Tribunal that the mistreatment that he complained of and which, to a great extent, the Tribunal accepted arose for a Convention reason. But he was unable to do so. The decision was one made on the facts and upon the evidence that the Tribunal heard and this court could only interfere with it by providing the applicant with a merits review that is outside its jurisdiction.
Before me today the applicant told me again about the efforts which he had made to assist his step-father to obtain compensation for the four years spent in prison. When I explained to him that this court was not sitting in appeal from the Tribunal's decision but in review, he made a glancing reference to the quality of the interpreter at the Tribunal hearing before saying that he had not read and could not understand the decision. He later accepted that the decision had been explained to him by the same "friend" who had assisted him in the preparation of his application to this court.
The applicant also asked rhetorically whether he would be harmed if he returned to China having made this application for protection. That is a question that the court cannot answer but would note that, so far as possible, all applications of this type are made anonymously and are treated with the requisite amount of privacy by both the executive and legal branches of government.
I dismiss the application. I order the Applicant to pay the First Respondent’s costs which I assess in the sum of $2,500.00.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Raphael FM.

Associate:

Date: