SZNSO v Minister For Immigration and Anor (No.2)
[2009] FMCA 912
•3 September 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNSO v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2009] FMCA 912 |
| 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 a protection visa to the applicant – applicant is a citizen of the People's Republic of China – one child policy – credibility – no reviewable error. |
| Migration Act 1958 (Cth) ss.424,424A, 425, 425A, 426A, 474 |
| NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 144 FCR 1; [2004] FCAFC 263 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; 74 ALJR 405; [2000] HCA 1 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 |
| Applicant: | SZNSO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1582 of 2009 |
| Judgment of: | Scarlett FM |
| Hearing date: | 3 September 2009 |
| Date of Last Submission: | 3 September 2009 |
| Delivered at: | Sydney |
| Delivered on: | 3 September 2009 |
REPRESENTATION
| Applicant: | Appeared in person |
| Counsel for the Respondent: | Ms Clegg |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $4,700.00.
I allow six (6) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1582 of 2009
| SZNSO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant has applied to the Court for review of a decision of the Refugee Review Tribunal. The Tribunal made its decision on 4th June 2009. 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 has asked the Court to make two orders. He has asked the Court for an order to set aside the Refugee Review Tribunal’s decision. He has also asked the Court to make an order requiring the Tribunal to review his case again. In other words, he is seeking orders in the nature of certiorari and a mandamus.
Background
By way of background, this Applicant is a citizen of China. He arrived in Australia on 28th February 2008. However, he did not apply to the Department of Immigration and Citizenship for a Protection (Class XA) visa until 20th March 2009.
In a statutory declaration submitted with his application for a Protection visa, the Applicant set out that he and his wife had three children, being two more than the number permitted by China’s one child policy. As a result of that, they had to give one child to his parents to rear, and his wife had to conceal her two extra pregnancies. The second child was born at his wife’s mother’s house, and was left there to be cared for for 12 months. The third child was born at the Applicant’s home, after which time the second child came back to their home to live.
The Applicant claimed that he had to pay a fine of 6000 yuan for each extra child. He did not have the money to pay the fine, so the Government confiscated his land and detained him for two weeks. He claimed that he borrowed money from money lenders to pay the fines and to come to Australia. He claimed in his statutory declaration that he feared that, upon his return to China, the money lenders from the black society, from whom he borrowed the money, would kill him. The Applicant was, at that stage, I note, an inmate in the Immigration Detention Centre at Maribyrnong in Victoria.
A delegate of the Minister for Immigration and Citizenship refused the application for a protection visa on 1st April 2009. The delegate, in the Decision Record, referred to Independent Country Information about Fujian Province from where the Applicant came, and noted:
The applicant is from Fujian province and in my view the country information available in relation to the application of the one child policy in Fujian Province indicates a more relaxed attitude towards multiple child families on the part of the authorities than that found in some other parts of the PRC.[1]
[1] See Court Book at page 53.
The delegate noted that the harm feared by the Applicant was not from having more than one child, but because of the financial arrangements into which he had entered with the “Black Society”. The delegate stated:
It is my view therefore, that the applicant’s fear of harm is not related to the Refugees Convention but is instead a fear of criminal behaviour as a result of being unable to repay Black Society loans.[2]
[2] See Court Book at page 54.
Application to the Refugee Review Tribunal
The Applicant applied to the Refugee Review Tribunal for review of the delegate’s decision. That application was made on 3rd April 2009, with the assistance of a migration agent. On 14th April 2009, the Tribunal wrote to the Applicant and invited him to attend a hearing to take place at 9:30am on 19th May 2009.
The Applicant’s migration agent forwarded a written submission to the Tribunal under cover of a letter dated 20th April 2009. The submission was quite detailed.[3] The day before the hearing on 18th May 2009, the Applicant was released from the Maribyrnong Immigration Detention Centre and was granted a bridging visa. He provided a residential address to the Tribunal. He attended the hearing on 19th May 2009, and gave evidence with the assistance of an interpreter in the Mandarin language.
[3] See Court Book at pages 79-91.
The Tribunal made its decision on 4th June 2009, in which it affirmed the decision not to grant the Applicant a Protection (Class XA) visa. A copy of the Tribunal decision record can be found in the Court Book at pages 102 through to 111. In the decision record, the Tribunal set out, under the heading, Claims and Evidence, the Applicant’s claims in connection with his protection visa, the Applicant’s written submission to the Tribunal, prepared by his migration agent, and a summary of the Applicant’s oral evidence to the Tribunal. The Tribunal also considered Independent Country Information about the one child policy in China[4].
[4] See Court Book at page 108 at [47].
The Tribunal noted the Applicant’s claims that he had travelled to Australia on 28th February 2008 on a Student Guardian visa in company with his son, who had travelled to Australia on a Student visa. The Tribunal noted the Applicant’s claim that the son had given up his studies and was, at that stage, in the Immigration Detention Centre at Maribyrnong. The Tribunal noted that the Applicant said that he and his son were both working at the abattoirs in Warrnambool when they apprehended by the authorities and taken to the detention centre.
The Tribunal noted the Applicant’s claim that he and his wife had three children, born between 1988 and 1990. It noted his claim that he came to the attention of the authorities, and was fined for having two extra children. It noted his claim that he had borrowed money, although it was said that he borrowed money from relatives. The Tribunal noted the Applicant’s claim that his home had been compulsorily acquired by the Government, and did not receive adequate compensation for it. It also noted his claim to have borrowed money from money lenders, totalling some 320,000 yuan.
The Tribunal also noted that, whilst the Applicant was in the detention centre, he was frightened and upset as his mother had recently died, and then his father-in-law died during his period in detention. It noted his claim that he had injured his shoulders when working at the abattoirs. The Tribunal put this to the Applicant:
The Tribunal pointed out to the applicant that what he had told the Tribunal at the hearing was different from what he had said in his statutory declaration. In particular that he had been put in jail for not paying his fine, and that his land was confiscated because he did not pay the fine. The applicant repeated that he borrowed the money to pay the fine.[5]
[5] See Court Book at page 108 at [43].
The Tribunal’s Findings and Reasons
In its findings and reasons, the Tribunal found that the Applicant was a citizen of the People’s Republic of China, based on the fact that he had entered Australia on 28th February 2008 on an apparently valid and legally issued Chinese passport, and on an apparently valid subclass TU-580 visa. The Tribunal found that the Applicant’s claim appeared to be that he faced persecution on the basis of his membership of a particular social group, namely objectors to the one child policy by conscience. The Tribunal found that objectors to the one child policy by conscience form a particular social group.[6]
[6] See Court Book at page 109.
The Tribunal found on the evidence of the Applicant that he had breached China’s one child policy, and that the Applicant was detained, and he and his wife were fined. They paid the fine by borrowing money. The Tribunal accepted the Applicant’s evidence that he has three children, born in 1988, 1989, and 1990, and accepted the evidence that he gave that he was fined for breaching the one child policy shortly after the birth of the third child. The Tribunal accepted other parts of the Applicant’s claim about having been detained, and having borrowed money from relatives to pay the fine. However, the Tribunal did not accept the version of events contained in the Applicant’s statutory declaration, but accepted his evidence at the hearing that the confiscation of his land was unrelated to any breach of the one child policy.
The Tribunal accepted that the Applicant was upset by the compulsory acquisition of his property for road making purposes and for industrial development, but found that those events happened long after he paid his fine, and found that the acquisition of land was in no way connected to the Applicant and his wife having more than one child. The Tribunal then turned to its consideration to the claim that the Applicant had borrowed 320,000 yuan from money lenders from the black society, which he cannot pay back. The Tribunal had serious criticisms to make of the Applicant’s credibility:
The Tribunal finds that the visa applicant was not a credible witness when trying to explain the disbursement of the alleged loan monies, and does not accept his claim that he borrowed the amount claimed of 320,000 from the black society. The applicant made no claim that his wife and daughters had suffered any problems from the black society as a result of his not being able to repay his alleged loan. Accordingly, the Tribunal finds that the alleged loan from the black society did not occur and the applicant has no reason to fear the black society will kill him on his return to China now or in the future. The Tribunal finds that the acquisition of his farm did not occur because he breached the one child policy. The Tribunal attaches little weight to his claim that he was detained for two or three days for blocking a road as it is unrelated to the breaches of the one child policy, and occurred many years after he was punished for breaching that policy.[7]
[7] See Court Book at pages 110 and 111 at [56].
The Tribunal found the agent’s submissions were of little or no assistance, because the instructions given to prepare the statutory declaration were, on the Applicant’s own evidence, untrue. The Tribunal did not accept that any alleged fear that the Applicant might have of money lenders was related to China’s one child policy, or any other Conventional ground.
The Tribunal was not satisfied the Applicant was a person to whom Australia has protection obligations under the Refugees Convention, and affirmed the decision not to grant him a Protection (Class XA) visa.
Application for Judicial Review
The Applicant commenced proceedings in this Court for review of the decision, by filing an application and an affidavit in support on 2nd July 2009. In the application, he relies on the following grounds:
1)If I return to China, I will have to repay the debt and it is so large and I have no income as the Government took my farm. The money lenders from the black society will kill me.
2)The Chinese Government will not offer me any protection as they only protect the black society, as they have money to bribe officials. The Government is corrupt and not protect the small man. RRT considered my case unfairly. They doubt my claim without substantive evidence.
The Applicant has not filed the written outline of submissions, but has attended Court today, and answered questions from the bench, and made some oral submissions. What he told the Court was largely related to the substance of his refugee claims. In answer to a question from the bench, he said that the Tribunal had considered his case unfairly because, in terms of family planning, they had made a finding that he only had one son, and said that he had no evidence to prove his claims. It is, of course, clear from the Tribunal decision that the Tribunal accepted that the Applicant had three children, and was fined for breaching the one child policy shortly after the birth of his third child.
The Court did not permit the Applicant to produce further evidence relating to the substance of his refugee claims, and it was explained to the Applicant that, as the evidence had not been shown to the Refugee Review Tribunal, it was not a matter that the Court could consider. The Applicant reiterated his claims that he had given this evidence to the Tribunal about the resumption of his land, and about having been detained, and he had not been able to get his land back.
Counsel for the Respondent Minister, Ms Clegg, made an oral submission to the Court in which she pointed out that the Applicant’s claim to fear persecution in China from the black society on his return to China had expressly been rejected by the Tribunal. The Court has also had the benefit of a written outline of submissions prepared by counsel for the Applicant. Those submissions address the Applicant’s grounds and deal with them on the basis that the Applicant complained that the Tribunal had failed to consider all of his claims, or each and every integer of his claims, by failing to consider whether the Applicant would be persecuted for his perceived political opinion flowing from his civil disobedience. This claim neither arose clearly from the material before the Tribunal, nor was it articulated by the Applicant. I am referred to the decision of NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2)[8].
[8] (2004) 144 FCR 1; [2000] FCAFC 263 at [60]
The Applicant’s claim, both before the Tribunal, and in his application for a Protection visa, was that he feared harm in China in the future from members of the black society, but the Tribunal considered the past harm feared by the Applicant as a result of the breach of the one child policy, found that the Applicant had been punished many years before for breach of that policy, and found that the confiscation of the Applicant’s land was unrelated to the breach of that policy. It was submitted that there was no error in the Tribunal’s reasoning and the grounds of judicial review have no merit, and there is no discernable legal error in the Tribunal’s legal decision.
The two grounds in the application largely relate to the Applicant’s refugee claims. In effect, they are an attempt to persuade the Court to engage in merits review of the factual basis of the Applicant’s claims. The second ground only departs from that theme by complaining that the Tribunal considered the Applicant’s case unfairly and the Tribunal doubted his claim without substantive evidence. It was those matters upon which the Applicant was specifically asked to elaborate.
In his view, the basis of the unfairness was the Tribunal’s disbelief of substantial aspects of his claim and its failure to find in his favour. The claim that the Tribunal doubted his claim without substantive evidence does not, as it initially appeared, go to a claim that the Tribunal should have had evidence in rebuttal of the Applicant’s claim before it dismissed his claim, which, it is well established, the Tribunal does not need to have, but, rather, refers to his complaint that the Tribunal said that he did not have evidence to support his claims. Thus, he attempted to lead fresh evidence relating to those claims to this Court which, on judicial review, is inadmissible.
Conclusion
The fact is that the Tribunal disbelieved the credibility of key parts of the Applicant’s claim. It disbelieved the claim that he had borrowed a significant sum of money from the black society in China, and that he feared that, upon his return to China, he would be killed by the black society because of his inability to repay. Even if the Tribunal had accepted that, it is clear that does not amount to a Convention related ground.
However, the Tribunal did not accept that evidence at all. The question of credibility is, as is well known, essentially a matter for the administrative decision maker, in this case the Refugee Review Tribunal. That is well established, particularly in matters such as Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Durairajasingham[9].
[9] (2000) 168 ALR 407; 74 ALJR 405; [2000] HCA 1 at [67]
So long as there is evidence upon which it is open to make such a finding, and it is clear that the credibility findings are essentially factual findings, then there is no scope for interference by a Court conducting judicial review. It is ALSO clear that the Applicant’s credibility suffered as a result of the Tribunal’s finding that the submissions by the Applicant’s migration agent were based on instructions which, on the Applicant’s evidence at the hearing, were untrue.[10]
[10] See Court Book at page 111 at [57].
The Tribunal was prepared to accept that people who object to the one child policy in China by conscience form a particular social group. The Tribunal did accept that the Applicant was such a person, having been the father of three children and having been fined. However, it did not accept that the Applicant had a well-founded fear of persecution arising out of the membership of that particular social group. This was open to the Tribunal. There is no evidence that the Tribunal did not consider any aspect or integer of the Applicant’s claim. The Tribunal did not accept key parts of the Applicant’s claim but there is no error in the way that it did so. The Tribunal did not, in my view, commit any breach of s.425 of the Migration Act.
It invited the Applicant to a hearing. It invited him to a hearing in a time that was more than the prescribed amount of notice, and the invitation to the hearing complied with the requirements of s.425A of the Act, in that it set out the time, date and place of the hearing and advised him of the effects of s.426A of the Act.
The Applicant attended the hearing. He gave evidence with the assistance of an interpreter in the Mandarin language. There was no complaint made about the ability of the interpreter at the Tribunal hearing, and it is clear that the Applicant was able to present his evidence to the Tribunal and make his submissions in support of his claim. However, the Tribunal did not accept the essential part of the claim.
The Tribunal dealt with the Applicant’s credibility and effectively dealt with the same issues that the delegate had referred to in the delegate’s reasons for refusing the claim for a protection visa. It cannot be said, in my view, that the Applicant was not aware of the issues at the hearing and, thus, there is no breach of s.425 in the way referred to by the High Court of Australia in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs[11]. The Applicant’s grounds for review have not been made out.
[11] [2006] HCA 63
My reading of the Tribunal decision and supporting decision does not disclose any jurisdictional error not raised by the Applicant. There is no jurisdictional error that I can discern. In the absence of the jurisdictional error, the Tribunal decision is a privative clause decision as defined by sub-section 474(2) of the Migration Act. Privative clause decisions are final and conclusive and are not subject to orders in the nature of certiorari or mandamus, which the Applicant claims. It follows that the application must be dismissed. I dismiss the application.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 15 September 2009
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