SZMPY v Minister for Immigration - [2008] FMCA 1662

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMPY v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1662

MIGRATION – RRT decision – Chinese chef assaulted by criminals acting for government officials who demanded free meals – Tribunal found no Convention nexus and fears not well-founded – no jurisdictional error found – application dismissed.

Migration Act 1958 (Cth), s.91R(1)(a)

M175 of 2002 v Minister for Immigration & Citizenship [2007] FCA 1212
Perera v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 6
VWFY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1723

Applicant:

SZMPY

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2072 of 2008

Judgment of:

Smith FM

Hearing date:

8 December 2008

Delivered at:

Sydney

Delivered on:

8 December 2008

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Mr T Reilly

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $4,600.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2072 of 2008

SZMPY

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant came to Australia in January 2008, and on 15 February 2008 he applied for a protection visa assisted by a friend who was not a migration agent. He put forward his claims honestly, and their truth was accepted by the delegate of the Minister and by the Refugee Review Tribunal.
The applicant said that he had qualifications as a chef in China, and had opened a restaurant in 2006. During 2007 many customers who were government employees and officials did not pay him, and just signed their bills. He asked them to pay their bills, but they did not pay most of what was owed, even though his business was suffering. His further requests for payment were answered by two serious assaults by local criminal gangs at the request of the government officials concerned. The applicant presented to the Tribunal medical evidence which corroborated his claim to have suffered injuries requiring hospital admissions. The criminals threatened that they would return, and that they would prevent his opening a restaurant in his home town any more. They also threatened him that if he wanted to be a chef they would chop his hand off. The applicant told the Tribunal that he sold his business at a substantial loss, and came to Australia hoping that he could make a better life here.
A delegate refused the application on 28 February 2008. The delegate thought that the story was plausible, and that the applicant feared harm which was persecutory. However, the delegate did not find any Convention reason for the harm feared by the applicant. The delegate referred to s.91R(1)(a) of the Migration Act 1958 (Cth) which requires that a Convention reason should be “the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution”.
The delegate considered whether the applicant could be regarded as a member of a particular social group, but thought that it was not his membership of a group of chefs or persons suffering from the actions of corrupt officials which attracted the harm. As the delegate said: “rather it was his demand for payment which angered the officials triggering the harm being inflicted”. I consider that this reasoning was correct.
On appeal, the applicant explained his claims to the Tribunal at a hearing held on 21 May 2008, and subsequently forwarded some documents corroborating his claims.
The Tribunal handed down a decision on 15 July 2008, which affirmed the delegate’s decision. The Tribunal accepted all the applicant’s evidence, but gave two reasons for finding that he was not a person to whom Australia owed protection obligations. It said:
Reason for harm
52.The applicant told the Tribunal that the reason he was threatened by the gangs was because he went to the government officials and asked them for payment. The Tribunal finds that the applicant was harmed because he asked for payment. The Tribunal is not satisfied that the applicant was harmed essentially and significantly for any of the four Convention reasons.
Fear of harm not well founded
53.The applicant told the Tribunal that his family agreed that he should go overseas because he did not know how the gangs would deal with him later on if he returned to China. However, when the Tribunal asked the applicant whether the gangs approached him after October 2007, the applicant replied that he had been bashed and he had closed down his business so there was no point approaching him and he was not asking for payment anymore. The Tribunal is satisfied that the applicant does not have a well founded fear of being harmed in the future because as he noted himself he has sold his business and has not pursued payment since that time.
54.In view of the Tribunal’s findings that the applicant does not have a well founded fear of being persecuted for a Convention reason, the Tribunal finds that there is not a real chance that the applicant will be persecuted for a Convention reason if he returns to China in the future.
The applicant now asks the Court to set aside the Tribunal’s decision and to remit the matter for further consideration. I can only make these orders if I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant should be granted a protection visa or any other permission to stay in Australia.
The applicant has been given an opportunity to file an amended application and additional evidence and written submissions, but has not done so. He relies on three grounds in his original application.
The particulars of the first ground argued:
Sufficient doubt arises from the interpretation of the facts. The fact that I am being targeted by government officials for having requested payment for monies owing to me was seen as the only reason why I feared political persecution. If I am to go back, I and my family would continue to be persecuted by government officials as they do not forget people who have wronged them before.
This might appear to argue only with the merits of the Tribunal’s assessments, and not to raise jurisdictional error. It might also argue that the Tribunal’s decision erroneously failed to recognise a Convention nexus for the harms suffered by the applicant in the past and feared by him in the future, on the basis that he claimed to have been subject to political persecution by government officials.
However, the Tribunal plainly was aware that the agents of the harm were government officials, and it addressed whether their actions had a Convention nexus. In my opinion, the Tribunal’s reasoning in para.52 was clearly open to it on the material before it. I do not consider that it reveals any jurisdictional error.
The second ground suggests that there were problems of communication between the applicant and the Tribunal, possibly by reason of interpretation problems. However, there is no evidence that the quality of the interpretation provided at the hearing fell short of the standard required by authorities such as Perera v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 6, VWFY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1723 at [27], and M175 of 2002 v Minister for Immigration & Citizenship [2007] FCA 1212 at [34]‑[39], [48]‑[51].
The particulars of Ground 2 suggest that a failure of communication occurred at a part of the hearing which the Tribunal described as follows:
Post sale of business
40.Asked what he did for a job from November 2007 until he came to Australia in January 2008, the applicant replied that they threatened that if he continued to operate that they would beat him so he did not do anything. He said that after he transferred the business he does not know whether the government official continued to go to the restaurant. Asked whether the gangs approached him again after October 2007, the applicant replied that he had been bashed and he had closed down his business so there was no point approaching him and he was not asking for payment anymore.
The application refers to this paragraph and to the Tribunal’s finding at para.53, which I have extracted above, in which it held that he did not have a well‑founded fear of future persecution. It argues:
At paragraph 53 of the tribunal decision, when asked whether the gangs approached me after October 2007, I had answered negatively as I could not fully comprehend what was being asked of me. At paragraph 40 of the tribunal, I did not ask for payment for fear of being beaten and physically abused again as this has happened before. But even if it is true I have closed my shop and have not tried to ask for my payment of the debt owed by the government officials ever since, I am still in danger of being beaten and targeted by the government officials anytime I set foot back in China.
The applicant today submitted that the Tribunal did not fully understand his concern about returning to work in China as a chef, in particular that he could not open his own business again anywhere in China. However, I am not satisfied that the Tribunal did not understand this part of his case. It had earlier recited the applicant’s statements at the hearing “that after that experience he did not have any other way and he had to leave” and “that everywhere else in China would be similar”. In my opinion, it was open to the Tribunal to conclude that the applicant’s fears of future persecution were not well founded. I am not persuaded that they were not fully addressed by the Tribunal in its finding at paragraph 53.
Moreover, even if the Tribunal in paragraph 53 failed fully to address an element in the applicant’s fears, being the possibility of a repetition of harm from government officials demanding restaurant services without payment if the applicant returned to China and set up a new business anywhere in China, I do not consider that this omission would have given rise to jurisdictional error affecting the Tribunal’s decision.
This is because these fears of the future, as with the applicant’s fears relating to his past experiences, would suffer from the same difficulty identified by the Tribunal in para.52, that is, that they lacked a sufficient Convention nexus in terms of s.91R(1)(a). In my opinion, the reason given by the Tribunal in para.52 sufficiently and independently explained the Tribunal’s ultimate conclusion in para.54 that “there is not a real chance that the applicant will be persecuted for a Convention reason if he returns to China in the future”. Any error identified in paragraph 53 was therefore immaterial to the outcome of the Tribunal’s review.
I therefore do not consider that any material jurisdictional error is established under Ground 2 of the application.
Ground 3 of the application identifies a statement by the Tribunal when reciting the evidence given at the hearing, in which it said:
34.Asked whether the reason the government officials got the local officials to deal with him was because he wanted them to pay the money they owed, the applicant replied that was correct. He said that he went to them and asked for payment and as a result they threatened him.
The ground argues:
3.In paragraph 33 of the tribunal judgment at the last sentence, it was stated: ‘He said that the government officials asked local gangs to “deal with” him because they did not want to do it openly.’ Subsequently in paragraph 34 at the first sentence, it was stated: ‘Asked whether the reason the government officials got the local officials …’ This suggests that the tribunal misinterpreted the facts as the terms ‘local gangs’ and ‘local officials’ were used interchangeably. This is arguably an error of both fact and law and further undermines the severity of my situation. This misinterpretation further serves to confuse me during the hearing. On this basis, I put forward that this further evidences a departure from the standard of standard appropriate for interpretation. (emphasis in original)
The applicant submits that this reveals that there was misinterpretation of the evidence at the hearing which confused the applicant, or that the Tribunal reached its decision upon a mistaken view that he was claiming that he was ‘dealt with’ by the officials themselves and not by criminals at their behest.
In the absence of a transcript of what was said in English at the hearing, and also of any evidence as to what was said in Mandarin, it is unclear whether the Tribunal’s reference to “local officials” as the persons who were going to “deal with him” correctly recorded an error in the Tribunal’s question put to the applicant at the hearing, or whether this was a slip in describing the question which was put to him without error.
However whether the erroneous reference to “local officials” occurred at the hearing or in the describing of the hearing, in my opinion the reference to “local officials” was an obvious mistake in either context. The Tribunal would have plainly intended to refer to “local gangs” in either situation. This is clear from the preceding sentence, at the end of the previous paragraph, where the applicant was recorded as having said: “that the government officials asked local gangs to ‘deal with’ him because they did not want to do it openly”. If the Tribunal then made a slip of the tongue at the hearing when framing its next question, in my opinion, the error would have appeared obvious, and I do not accept that it would have caused any significant confusion.
If there was no slip of the tongue at the hearing, but only a slip of the pen when writing the statement of reasons, I consider that this is also obvious to a reader. In the context of the Tribunal’s whole statement of reasons, I cannot identify any misapprehension on the part of the Tribunal that the applicant claimed that he was assaulted by “local gangs”, when it actually came to consider the applicant’s circumstances in its “Findings and Reasons”.
I am therefore not satisfied that any jurisdictional error affecting the Tribunal’s decision is identified in Ground 3 of the application.
For the above reasons, I have not found jurisdictional error. The application must therefore be dismissed.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 17 December 2008