SZMPK v Minister for Immigration
[2008] FMCA 1536
•12 November 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMPK & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1536 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – Tribunal not required to disclose its doubts to an applicant – procedural fairness not denied – allegations concerning inadequate interpreter services not proved. |
| Migration Act 1958, ss.424A, 424AA, 425 |
| SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 SZGSI v Minister for Immigration & Citizenship [2007] FCAFC 110 SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190 |
| First Applicant: | SZMPK |
| Second Applicant: | SZMPL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2017 of 2008 |
| Judgment of: | Cameron FM |
| Hearing date: | 12 November 2008 |
| Date of Last Submission: | 12 November 2008 |
| Delivered at: | Sydney |
| Delivered on: | 12 November 2008 |
REPRESENTATION
| The First Applicant appeared in person |
| Counsel for the Respondents: | Mr Y. Shariff |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
The applicants pay the first respondent’s costs fixed in the amount of $4,200.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2017 of 2008
| SZMPK |
First Applicant
| SZMPL |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicants, who are husband and wife, are citizens of China. They claim that, while in China, they breached the family planning regulations by having a child out of wedlock and were subsequently forced by the Chinese authorities to pay a social maintenance fee. They had a second child and were required to pay a second social maintenance fee. The applicants arrived in Australia on 17 October 2007 and claimed to fear persecution by reason of their breach of the Chinese government’s one child policy.
The first applicant is the principal applicant and the second applicant seeks a visa as a member of the family unit.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicants’ claims for protection visas are set out on pages 4 – 8 of the Tribunal’s decision (Court Book (“CB”) pages 88 – 92).
Protection visa application
The first applicant made the following claims in his protection visa:
a)the applicants were being coerced by the local government in China for breaching the one child policy;
b)they were forced to pay a government penalty and could not enrol their daughter, their second child, in primary school;
c)he had to pay the “leader” of his local police station 10,000Yuan before his daughter could obtain Chinese citizenship. He could not say anything to the local government about having to bribe a police officer;
d)the authorities use to write “Pay Pay” on the wall of his house. He did not have enough to pay them although the issue of his daughter’s citizenship was resolved; and
e)when he paid 10,000Yuan to the local government two years later they said it was not enough and he had to pay double.
Tribunal hearing
At the Tribunal hearing on 30 April 2008 the first applicant made the following additional claims:
a)the second applicant worked in a farm product company but did not always go to work as she was afraid of being arrested;
b)the authorities wanted him to undergo tubal ligation following the birth of his second child. He later stated that it was his wife who was asked to undergo this procedure. They kept asking her over the next twelve years but took no further action in this respect;
c)the authorities kept arresting him but he could not remember clearly when this occurred. He stated that he was first arrested after the birth of his daughter in March 1995 and again in April 1995;
d)he was detained for one day by the local authorities and then released after his brother paid a fine of 3,000RMB. He was told that he had to make a total payment of 20,000RMB, however, after making an additional payment of 3,000RMB, refused to pay the rest because he considered the fine to be unreasonable;
e)after this incident he was arrested by “other authorities” from local government. There were several people in charge of birth control policy and they all had the authority to have people like him arrested;
f)the authorities kept asking him to pay the fine over the following 10-12 year period. He avoided meetings with them by doing such things as going away. The authorities would sometimes come to his home but he could not say how often this occurred; and
g)he could not make a living in China because the route he used to drive his taxi had been taken by the government, that is, the government had established a public bus service on his route which affected his ability to earn a living.
The second applicant claimed that:
a)they could not live a peaceful life in China because the authorities kept coming to their home and kept fining the first applicant;
b)the applicants were entitled to a receipt upon payment of their fines but they did not receive any because the authorities just took the money and used it themselves;
c)they were fined several times, perhaps in the amount of 2-3,000RMB. In total, they might have paid over 10,000RMB, possibly 10-20,000RMB;
d)their son was born before they were married and they were fined 5,000RMB for this reason. They were fined again when their daughter was born;
e)the authorities damaged the roof of their house in 1989 and they had to live elsewhere for 3-4 months; and
f)they suffered persecution because of the public buses and the first applicant no longer had any clients.
The Tribunal’s decision and reasons
After discussing the claims made by the applicants and the evidence before it, the Tribunal found that it was not satisfied that the applicants are persons to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal accepted that the applicants’ son was born out of wedlock in contravention of China’s family planning regulations and that the applicants were required to pay a social registration fee in order to register him. However, it concluded that the first applicant’s breach of family planning laws in 1989 did not give rise to a well founded fear of persecution because:
i)the imposition of the fee did not create circumstances that threatened the applicants’ capacity to subsist or otherwise constituted serious harm; and
ii)in imposing the social maintenance fee the authorities did not target the first applicant for a Convention reason but imposed the fee in accordance with official sanctions under generally applied laws for couples who had children out of wedlock;
b)the Tribunal accepted that the applicants’ home may have sustained some damage following the birth of their son but concluded that this was an isolated incident not amounting to serious harm;
c)the Tribunal accepted that the applicants had had a second child in contravention of the one child policy and that they were required to pay a social maintenance fee as a result. With respect to the amount paid and the circumstances, the Tribunal preferred the evidence of the first applicant over that of the second applicant, noting that it was highly implausible that the first applicant would not have raised in his initial evidence to the Tribunal the fact that he had made several payments to officials that were not receipted if this had actually occurred. The Tribunal did not accept that the first applicant had made several payments towards the social maintenance fee as claimed by the second applicant. The Tribunal found that the second applicant’s evidence about unreceipted payments to corrupt officials was not reliable and was provided in an attempt to boost the first applicants’ claims;
d)with respect to the applicants’ second child, the Tribunal did not accept that the authorities applied the policy relating to the social maintenance fee in an unduly harsh or discriminatory manner for a Convention reason or that their requests for payment constituted serious harm amounting to persecution;
e)while the Tribunal accepted that the first applicant was required to report to the authorities, possibly on more than one occasion, for breaching the family planning laws, it did not accept that he had been formally arrested following the birth of his second child. The Tribunal noted that his evidence of being detained was vague and uncertain as was his evidence about who arrested him. The Tribunal found that the first applicant was required to report to the authorities not for any Convention reason but because he was required to pay, in accordance with the regulations, a social maintenance fee for breaching the one child policy. The Tribunal also accepted that the authorities may have demanded that the first applicant make an initial payment of the social maintenance fee, which, on his evidence, was done with the help of his brother. The Tribunal did not accept that the circumstances of the initial imposition of the social maintenance fee constituted serious harm amounting to persecution;
f)the Tribunal did not accept that the applicants were asked by the authorities to undergo ligation or that there was a real chance that such a request would be made were they to return to China, amongst other things noting that a request by the authorities to undergo such a procedure, if made, would not be for a Convention reason but for reasons of the family planning regulations;
g)the Tribunal did not accept that the second applicant did not always attend her workplace because she feared being arrested, noting that the authorities would have been able to detain her had they wanted to whether or not she was at work;
h)the Tribunal did not accept that any problems the first applicant experienced in relation to official enrolment of his daughter for education was because he had been adversely targeted for a Convention reason but arose instead because he did not pay the relevant social maintenance fee. The Tribunal concluded that any future problems of that nature would be as a result of his refusal to pay the outstanding social maintenance fee and not because of any Convention reason;
i)the Tribunal accepted that, were the first applicant to return to China, there was a real chance that the authorities would continue to request payment of the social maintenance fee. However, it concluded that any such requests would be made on the basis of implementing the regulations in respect of the one child policy and not for any Convention reason. Further, the Tribunal did not accept that the authorities would target the first applicant in an unduly harsh manner for payment of the fee or would impute to him a political opinion against the State on the basis of his refusal to pay the remainder;
j)the Tribunal did not accept that the adverse effects of the public bus service on the first applicant’s taxi business and the likelihood that he would need to seek other employment gave rise to a well founded fear of persecution; and
k)finally, given the Tribunal’s findings in respect of the first applicant’s circumstances in relation to himself and his wife as a couple, the Tribunal did not accept that the second applicant had a well founded fear of persecution for a Convention reason.
Proceedings in this Court
The grounds pleaded in the application commenced in these proceedings were pleaded as follows:
(1)Jurisdictional error has bee [sic] made. RRT did not give me a chance to explain the doubts.
(2)Procedural Fairness has been denied. RRT did not use favourable cases to my application.
Today the first applicant has also said that he could not understand everything said by the interpreter at the Tribunal hearing.
Applicant denied chance to respond to Tribunal’s doubts
As to the first ground, the applicant’s allegation that the Tribunal gave him no chance to explain its doubts is unparticularised and, as a consequence, lacks substance. However, it may be that this ground refers to the Tribunal’s obligations under ss.424A and 425 of the Migration Act 1958 (“Act”) and I will approach the first pleaded ground as if it does intend to refer to those sections.
Turning first to s.425, it should be noted at the outset that the applicants were invited to a hearing before the Tribunal and did attend and did give evidence. To the extent that this ground may be an allegation that the applicants were denied a real and meaningful hearing, putting aside for the moment the allegations today concerning interpreter services of the Tribunal hearing, nothing has been identified by the applicants nor has any evidence been led or is evident from the Relevant Documents which would serve in any way to make out such an allegation.
Turning to the Tribunal’s obligations under s.425 to identify determinative issues to an applicant, it should first be noted that it is clear from the Tribunal’s decision record that it did raise various issues with the applicants. The extent to which the Tribunal did this is apparent from the face of its decision record and has been particularised in the first respondent’s written outline of submissions. But, regardless of all this, it was not to the determinative issues that the applicants refer in their application to the Court, rather, they said that the Tribunal did not identify to them its doubts about their claims for protection visas.
However, under s.425 of the Act the Tribunal is under no obligation to discuss its doubts. As the High Court said in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 at 166 [48]:
Secondly, as Lord Diplock said in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry:
“the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished.”
Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.
Turning to s.424A of the Act, the Tribunal did give the applicants notice under s.424AA of adverse information which might have led to a decision adverse for them. But, more significantly, the information upon which the decision was based was information falling within the exceptions found in s.424A(3) with the consequence that there was no obligation on the Tribunal to serve a notice except to the extent that it did: SZGSI v Minister for Immigration & Citizenship [2007] FCAFC 110.
In any event, under s.424A the Tribunal is not required to explain its doubts. Section 424A is concerned with the provision to applicants of information but as was said in SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190:
However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. (per Gleeson CJ, Gummow, Callinan, Heydon, Crennan JJ at 1196 [18])
For these reasons, the first ground pleaded in the application does not disclose jurisdictional error on the Tribunal’s part.
Applicant denied procedural fairness
Similarly to the first ground pleaded in the application, the second ground is not particularised. Again, putting aside for the moment today’s allegations concerning the quality of interpreter services at the Tribunal, there is no basis to conclude that any of the provisions of div.4 of pt.7 of the Act, where the Tribunal’s obligations to afford procedural fairness are codified, have been breached.
Earlier in these reasons I considered ss.424A and 425 and concluded that no breach of either of them has been shown by the applicants. As to the remainder of the sections stated in the division, it is not apparent that there has been a breach of any of them and the applicants have put nothing today to point to any such breach.
Consequently, the second ground pleaded in the application is not made out.
Interpreter services at the Tribunal hearing
Turning now to the allegations made today concerning interpreter services at the Tribunal hearing, it must first be observed that no transcript of the Tribunal hearing was put before the Court nor were any of the audio tapes of the Tribunal hearing tendered notwithstanding that the consent orders made by the Court on 18 August 2008 and signed by both applicants required that the applicants file any affidavit evidence on which they intended to rely by 22 September 2008.
Further, today the applicants did not point to any part of the Tribunal’s decision record which demonstrated the effects of the allegedly poor translation. Indeed, there is nothing in the Tribunal’s decision record which would support a conclusion that there had been any deficiencies in translation at its hearing. Further, there is nothing in the Relevant Documents, Exhibit A, which evidences any complaints by the applicants either at or following the Tribunal hearing that the Tribunal’s hearing had been unfair because of interpreter shortcomings.
Consequently, there is no basis to conclude that this late-made allegation has any substance.
Conclusion
For these reasons, jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 25 November 2008
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