SZNDQ v Minister for Immigration
[2009] FMCA 244
•17 March 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNDQ v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 244 |
| MIGRATION – Visa – Protection (Class XA) visa – Refugee Review Tribunal – application for review of RRT decision refusing to grant a protection visa to the applicant – applicant is a citizen of the People's Republic of China claiming fear of persecution by Chinese government and police as a result of protesting against forcible acquisition of land – no reviewable error. |
| Migration Act 1958 (Cth), ss.422B, 424A, 425,474 |
| SZBYR v Minister for Immigration and Multicultural Affairs (2007) 235 ALR 609, 81 ALJR 1190, [2007] HCA 26 |
| Applicant: | SZNDQ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 69 of 2009 |
| Judgment of: | Scarlett FM |
| Hearing date: | 17 March 2009 |
| Date of Last Submission: | 17 March 2009 |
| Delivered at: | Sydney |
| Delivered on: | 17 March 2009 |
REPRESENTATION
| Solicitors for the Applicant: | In person |
| Counsel for the Respondents: | Ms Morgan |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $4000.00 and I allow four months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 69 of 2009
| SZNDQ |
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 China. He has applied to the Court to review a decision of the Refugee Review Tribunal that was signed on 10 December and handed down on 11 December 2008. The Tribunal affirmed the decision of a delegate of the Minister for Immigration and Citizenship not to grant the applicant a protection (Class XA) visa. The applicant claims that the Tribunal did not consider his application fairly and failed to assess the risk of persecution if he were to return to China.
He asks the Court to make an order in the nature of certiorari to set aside the Tribunal's decision and then order in the nature of mandamus requiring the Tribunal to review his case again. It has been explained to the applicant that in order to make the orders that he seeks the Court would need to be satisfied that the Tribunal decision is affected by jurisdictional error.
Background
The background to this matter is that the applicant arrived in Australia on 11 July 2008. He applied for a protection (Class XA) visa on 14 July 2008. He provided a typed statement with his application. In that statement he claimed that the Fuqing City government dismantled the shop that his father owned by force. The family was angry about this action and suffered persecution by the government when they complained.
He claimed that his father was detained in Fuzhou Re-education Centre. After his father was detained the applicant and his mother tried to secure his release. They were unsuccessful at that and he claimed that the police apprehended his mother and himself on charges of disturbing social security and stability. He claims that both he and his mother were sent to a detention centre.
Whilst the applicant's mother was released after two days the applicant claimed that he was detained for 15 days and was subjected to mistreatment and torture during that time. The applicant was invited to attend an interview with an officer of the department on 26 August 2008. On 22 September 2008 the application for a visa was refused. The applicant had indeed attended the interview with the minister's delegate the month before.
The delegate considered the circumstances of the applicant's actions in obtaining a passport and eventually obtaining a visa to enter Australia. In particular the delegate expressed some concerns about the delay involved. The delegate stated:
He agreed that he had been unsuccessful in this visa application which was refused on 18 October 2007: the same day his replacement passport was issued. I note that he claims it was not until after he had been detained on 20 August 2007 that he decided to leave China. Although in possession of a valid passport the applicant waited until 10 July 2008 before departing China. This was 10 days after he was granted an Australian visa. There is no claim of further protest activity. It would be reasonable to expect the applicant to depart the PRC as soon as possible if he had a genuine fear of persecution and not wait nine months. I do not accept that if the applicant had a well-founded fear of persecution he would have waited a further nine months from his release from detention in September 2007 until July 2008 to leave the country. He would have known that he might lose any chance to legally depart the country using the passport already in his possession. Instead he waited until he had successfully obtained an Australian visa following his earlier unsuccessful attempt in June 2007[1].
[1] See Court Book at page 64
The delegate noted that the applicant did not provide any documentation supporting his claimed period of detention or supporting his claim of the forcible acquisition of the land on which his father's shop stood. The delegate went on to find:
Although accepting independent country information that protests relating to land acquisition do occur and that leaders may be arrested I am not satisfied that the applicant has played a role in any anti-government protest or that he has come to the attention of the authorities in a way which renders him liable to persecution if he returns[2].
[2] See Court Book at page 64
After the delegate refused the application for a visa on 22 September 2008 the applicant then applied on 17 October 2008 for a review of the decision by the Refugee Review Tribunal. The Tribunal invited the applicant to attend a hearing on 28 November 2008 and the applicant sent in a response to hearing invitation indicating that he did wish to attend the hearing. He indicated in the document that he would need the services of an interpreter in the Mandarin language and he requested a female interpreter[3].
[3] See Court Book at page 75
The applicant did indeed attend the Tribunal hearing on 28 November 2008. The Tribunal provided a female interpreter in the Mandarin language. The applicant gave evidence at the Tribunal hearing and the Tribunal signed its decision on 10 December 2008 and handed the decision down the next day.
The Refugee Review Tribunal Decision
In the decision the Tribunal considered the applicant's claims and evidence taken from his application for a protection visa and it considered the reasons of the delegate for refusing the application.
The Tribunal decision records summarises the applicant's evidence to the Tribunal in a considerable amount of detail from paragraph 31 on page 85 of the Court Book through to paragraph 61 on page 90 of the Court Book. The Tribunal found that the applicant was a citizen of China based on the applicant's passport and assessed his claims against that country. The Tribunal noted the applicant's claim that he feared returning to China because he had been persecuted by the public authorities because he had made complaints about the compulsory land acquisition of his father's shop.
The Tribunal considered the issue that the delegate had raised about the delay in the applicant's leaving China once he had decided to do so. The Tribunal said,
The applicant stated the main reason he waited 11 months to leave China until July 2008 from the time that his father was arrested and detained in August 2007 was because he had not been able to find an agent who would help him in obtaining a visa and a new passport. The Tribunal does not accept that a person who claimed he was being persecuted by the authorities would wait this amount of time and that if he was arrested, detained and beaten as claimed for the reason claimed it would be reasonable to expect that he would leave China at the earliest opportunity[4].
[4] See Court Book at page 91
The Tribunal was not satisfied with the applicant's explanation of the delay and was not satisfied that the applicant was a witness of truth in relation to that issue. The Tribunal accepted that the applicant may have made complaints to public authorities about the issue of compensation for the loss of his father's shop and it accepted that he may have been warned by public authorities about any action for compensation that he proposed to take.
Ms Morgan of counsel who appears for the Minister has brought to the Court's attention what appears to be a typographical error in paragraph 67 on page 91 of the Court Book where it appears that the word "not" has inadvertently been added sentence providing the opposite meaning to that intended by the Tribunal. In my view that submission is accurate. The Tribunal however was not satisfied that the applicant was arrested or detained and beaten by the authorities and it was not satisfied that the authorities were seeking the applicant out after he was released from the detention that he claimed.
The Tribunal was not satisfied that the applicant would be arrested by public authorities for pursuing legal action if he were to return to China and did not accept that he would suffer harm for that reason. The Tribunal found the applicant was not denied access to any basic services and did not suffer significant economic hardship or the denial of his capacity to earn a livelihood of any kind as a result of the concerns that he had raised or as a result of his father's shop being demolished.
It is clear that the Tribunal did accept parts of the applicant's claim. It did accept that he had raised concerns about the way his father was treated by the authorities and that both the applicant and his father were not willing to sign an agreement for compensation for the shop that had been compulsorily taken by the authorities. The Tribunal also accepted that the applicant wanted to pursue legal action against the authorities in relation to compensation if he were to return to China. However the Tribunal did not accept that the applicant had suffered harm as a result of this or that there was a real chance of harm occurring to him in the reasonably foreseeable future for that reason.
The Tribunal found there was no real chance that the applicant would face serious harm for reason of his political beliefs or any other convention reason if he were to return to China. As the Tribunal was not satisfied the applicant had a well-founded fear of persecution for a convention reason it was not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugee's Convention.
Again, there is what appears to be a significant error in the Tribunal decision record. Despite the Tribunal's conclusions that the applicant did not have a well-founded fear of persecution and was not a person to whom Australia has protection obligations under the Convention paragraph 77 stated that the Tribunal remitted the matter for reconsideration. However, the Tribunal published a corrigendum four days later on 15 December 2008 replacing that paragraph with text saying exactly the opposite,
The Tribunal affirms the decision not to grant the applicant protection (Class XA) visa[5].
[5] See Court Book at page 98
It is a matter of great concern that the Refugee Review Tribunal could be so lacking in its checking or editing process as to allow a decision to be handed down that said in part exactly the opposite of what was intended. This was a basic error which should have been discovered before the decision was handed down. The decision should not have been handed down in the form that it originally was and the Refugee Review Tribunal needs to consider a more rigorous process of editing and checking before it hands decisions down.
The applicant commenced proceedings for judicial review of the Tribunal decision by filing an application and an affidavit in support on 12 January 2009. The affidavit annexes a copy of the Tribunal decision and sets out a brief summary of the applicant's history and factual claims. It does not contain anything that could be interpreted as a ground of review.
The application contains two grounds of review. One; I was not considered fairly by RRT. They did not count my evidence at the hearing. RRT did not give me a letter to explain the doubts. I am not satisfied with RRT decision. It is not fair. They used more negative cases to refuse my application. RRT failed to assess my risk to return to China.
The applicant did not file in the amended application or written outline of submissions but he attended Court and made an oral submission. He told the Court that the Tribunal decision was entirely unfair because the Tribunal did not understand the facts and considered his case negatively. He expanded on his claim that the Tribunal decision was not based on the facts. In answer to questions from the Bench he criticised the Tribunal for not writing to him under the terms of s.424A of the Migration Act seeking his response or comments to information that may have led the Tribunal to form an adverse conclusion.
In reply to a question about the use of negative cases the applicant in his answer did not refer to any legal cases but complained about what he considered to be an unreasonable conclusion by the Refugee Review Tribunal in taking a critical view of his delay of 11 months before he left China after having obtained a passport. The applicant criticised the Tribunal's factual findings and claimed that the Tribunal had a lack of knowledge of the real situation in China. In his submission in reply the applicant conceded that the Tribunal accepted part of his claims but was critical of the Tribunal for not accepting all of his claims which he said led the Tribunal to make a wrong decision.
Counsel for the minister, Ms Morgan, drafted a detailed written outline of submissions and provided the Court with oral submissions in reply to the applicant's contentions. The submission was that the Tribunal did understand the basis of the applicant's claims to fear persecution in China and noted that the Tribunal had summarised that claim. In particular the Tribunal had, contrary to the applicant's submission, enquired about his situation as a farmer in China and drew the Court's attention to paragraph 36 of the Tribunal's decision on page 86 of the Court Book.
It was also submitted on behalf of the Minister that there was no information used by the Tribunal in its decision that would have required the Tribunal to act in the way it prescribed by s.424A(1) and relied on the decision of SZBYR v Minister for Immigration and Multicultural Affairs[6] in support of the proposition that the Tribunal's thought processes did not constitute information for the purpose of s.424A. Finally, it was submitted that the Tribunal did consider the evidence and did assess the likelihood of persecution if the applicant were to return to China.
[6] (2007) 235 ALR 609; 81 ALJR 1190; [2007] HCA 26
The applicant claims that the Tribunal did not consider his case fairly. He has not provided any evidence to show that he was denied a fair hearing and certainly in the light of what is understood by s.425 of the Migration Act. It is quite clear that s.422B of the Act applies and I note that Division 4 of Part 7 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters with which it deals.
The Tribunal, in my view, did comply with s.425. It invited the applicant to attend the hearing and he did attend. The Tribunal provided the applicant with an interpreter in the language of his choice, namely Mandarin, and indeed complied with his request to provide him with a female interpreter. The Tribunal did offer the applicant an opportunity during the hearing to comment on information that may be the reason or part of the reason for affirming the decision under review although in my view the information discussed by the Tribunal related mainly to the applicant's own evidence or to independent country information and did not constitute information as understood in s.424A of the Migration Act.
The applicant was critical of the Tribunal for making an adverse finding about his delay in leaving China. The Tribunal asked the applicant about this and of course this was an issue to which the delegate had referred in the delegate's decision. This was not a case of the applicant being taken by surprise. In my view the Tribunal did consider the applicant's evidence and the Tribunal decision contains a lengthy summary of the applicant's evidence at the hearing. There was certainly no obligation under s.424A of the Migration Act to invite the applicant to comment or respond in writing to any adverse information.
The applicant claims that he is not satisfied of the Tribunal decision and I accept that. He has, after all, asked the Court to conduct judicial review of it. He claims that the decision is not fair but in my view the claim of unfairness arises solely from the fact the Tribunal decided against his case and did not grant his application. The claim of negative cases being used related to the applicant's complaint of what he thought was the unreasonableness of the Tribunal drawing an adverse inference from his delay in leaving China which was an issue as I said that was present in the delegate's decision as well as being discussed at the Tribunal.
The applicant claims that the Tribunal failed to assess his risk of returning to China but in my view the Tribunal did consider just that. In particular at paragraph 74 and paragraph 75 on pages 92 and 93 of the Court Book; it is clear that the Tribunal turned its mind to this issue as it was required to do.
The applicant's grounds have not been made out. I am mindful of the fact that the applicant is not legally represented although I note that he has received legal advice from a barrister on the RRT Legal Advice Scheme and Panel. Because the applicant is not legally represented I have considered the Tribunal decision and the supporting material independently of either the applicant's claims or the minister's submissions in order to ascertain whether any arguable case of jurisdictional error can be made other than those to which I have been referred. I am unable to discern any arguable case of jurisdictional error.
Whilst criticisms have been made about the failure by the Tribunal to conduct a proper edit of the decision before handing it down I note that a corrigendum was issued four days later and that whilst the decision in its original form would have been somewhat confusing to the applicant and his migration advisor the speedy issue of a corrigendum would have resolved the doubts. In my view no jurisdictional error arises from that issue.
In the absence of jurisdictional error the Tribunal decision is a private clause decision as defined by subsection 474(2) of the Migration Act. Accordingly it is not subject to orders in the nature of certiorari or mandamus in this or any Court and it follows therefore that the application will be dismissed.
There is an application for costs on behalf of the first respondent Minister in the sum of $4000. It is an appropriate matter to make a costs order and the amount sought, namely $4000, is a comparatively modest sum especially taking into account that this was a matter where counsel has been briefed. The applicant has told the Court that he does not have a job and cannot pay that amount.
I accept that he may be in that position although that is not a reason not to make an order for costs in favour of the successful party. I will allow time to pay.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. Coutman
Date: 26 March 2009
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