SZNTB v Minister for Immigration

Case •

[2009] FMCA 997

•

1 October 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNTB v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 997
MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – applicant is a citizen of China claiming fear of persecution for reason of religion – credibility – no lack of procedural fairness – no reviewable error.
Migration Act 1958 (Cth) ss.417, 424A, 425, 474
SZLTI v Minister for Immigration & Citizenship [2008] FCA 1274
NAMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 140
Applicant: SZNTB
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 1664 of 2009
Judgment of: Scarlett FM
Hearing date: 1 October 2009
Date of Last Submission: 1 October 2009
Delivered at: Sydney
Delivered on: 1 October 2009

REPRESENTATION

Applicant: Appeared in Person
Solicitor for the Respondent: Ms Baggett
Solicitors for the Respondent: DLA Phillips Fox

ORDERS

  1. The Application is dismissed.

  2. The Applicant is to pay the First Respondent’s costs fixed in the sum of $4,400.00. 

  3. I will allow six (6) months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1664 of 2009

SZNTB

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

  1. The Applicant is a citizen of China.  He has asked the Court to overturn a decision of the Refugee Review Tribunal not to grant him a Protection (Class XA) visa. He also seeks an order that a visa should be issued to him.

  2. It has been explained to the Applicant that, in certain circumstances, the Court has the jurisdiction to set aside a decision of the Refugee Review Tribunal. However, in order to do so the Court must be satisfied that the decision is affected by jurisdictional error. It has also been explained to the Applicant that the Court has no power to issue a visa. That is a matter for the Minister for Immigration and Citizenship, and the Minister’s Department. 

Background

  1. The background to this matter is that the Applicant arrived in Australia on 17th August 2008. On 20th March 2009, he applied for a Protection (Class XA) visa. He was at that stage an inmate of the Immigration Detention Centre at Villawood.

  2. In a statement attached to his application, he claimed that he had a wife and two children who are in China. His whole family are Christians, and he was raised as a Christian. He and his family worship at the government approved church. He was a businessman in China and ran a clothing wholesale shop. He and a partner borrowed money from friends and relatives. Eventually the shop had to be closed down because the business was heavily in debt.  His former partner left China for the United Kingdom.

  3. The Applicant opened another business, but that failed and he was unable to pay the money that he had borrowed from his friends and family. He claimed that he closed the business in June 2008, but people to whom he owed money were making threats because the debts remained unpaid. He claimed that he feared that if he were forced to return to China, the people to whom he owed money would come after him. They would launch legal actions against him, and because he could not pay he would be forced to serve time in prison.  He claimed to fear that those people would harm him physically and take the law into their own hands. He is afraid that they would beat him and possibly kill him.[1] 

    [1] See Court Book at pages 37 to 40.

  4. The Applicant was invited to attend an interview with an officer of the Department of Immigration. That interview took place on 17th April 2009. After the interview, on 8th May 2009, a delegate of the Minister for Immigration and Citizenship refused the application for a Protection (Class XA) visa. 

  5. The delegate refused the application on the basis that the harm that the Applicant claims to fear were from people to whom he owed large amounts of money.  The delegate said:

    The harm that the applicant fears from people because of unpaid debts from his failed business ventures does not have a nexus to any of the five Convention reasons. He will not suffer the harm feared because of his race, religion, nationality, membership of a particular social group or political opinion.

    There is no evidence to indicate that the essential and significant reason for the harm feared is related to the Refugees Convention, and therefore the applicant’s claims do not satisfy section 91R of the Migration Act.[2]

    [2] See Court Book at pages 92 and 93.

Application to the Refugee Review Tribunal

  1. The Applicant applied to the Refugee Review Tribunal on 11th May 2009 for a review of that decision. The Tribunal invited the Applicant to attend a hearing scheduled for 2nd July 2009. The Applicant attended the hearing. He gave evidence with the assistance of an interpreter in the Mandarin language. He provided a document written in Chinese to the Tribunal at the hearing.

  2. The Tribunal made its decision on 6th July 2009. The Tribunal affirmed the decision not to grant the Applicant a Protection (Class XA) visa. 

  3. In the Tribunal decision record, the Tribunal set out the Applicant’s claims in respect of his application for a protection visa along with details of the information that the Applicant gave when he was interviewed by a Departmental officer on 17th April 2009.

  4. The Tribunal noted that the Applicant brought no additional material with him except for the original of the document which I have previously referred.  That document, the Applicant told the Tribunal, was a subpoena issued by the Public Security Bureau dated 11th August 2008. The text, according to the Applicant said:

    You are suspected of committing the crime of economic fraud in accordance with the Criminal Law, Section 266, subsection 193.[3]

    [3] See Court Book at page 133.

  5. The Tribunal asked the Applicant about his financial problems during the hearing. The Tribunal raised with the Applicant at the hearing the concern that it had, that the harm he feared did not come within the Refugees Convention.  The Tribunal described it in this way:

    It was put to the applicant that it did not seem that the reason for the harm he feared came within the Refugees Convention.  He said that he did not think that he was applying for protection when he made his application; he thought he was applying on humanitarian grounds. It was explained to him that it was necessary for him to complete the process of applying for a protection visa before the Minister might consider exercising his powers in relation to humanitarian considerations.[4]

    [4] See Court Book at page 134.

  6. The Tribunal asked the Applicant about whether his family were Christian, in particular whether he had ever had any problems because of his religion.  The Tribunal noted that the Applicant’s reply was:

    He said that he had not had any problems but his parents had had a bit of trouble.  He said that the church they attended used not to be registered and operated as a kind of underground church in his parents’ time.  However, with time the government recognised the church as lawful.[5]

    [5] Ibid

  7. The Tribunal asked the Applicant whether he ever had any other problems with the Chinese authorities and he said that he was fined for having an extra child in 1997 and was detained for a day.

The Tribunal’s Findings and Reasons

  1. In its findings and reasons the Tribunal accepted that the Applicant was a Chinese National. The Tribunal found the Applicant to be a generally credible witness and gave him the benefit of the doubt in accepting the subpoena document that he had submitted at the hearing to be genuine. The Tribunal felt that it was consistent with the evidence that the Applicant had given about his indebtedness. The Tribunal considered that the fact that the sum of the Applicant’s debts was so large made it plausible that legal action might be taken against him to recover the debt.

  2. However, the Tribunal did not find that any harm inflicted on the Applicant by his creditors would be done to him for a Convention reason.

  3. The Tribunal considered whether the Applicant might be a member of a particular social group but found that there was no cognisable social group to which he might plausibly belong. The Tribunal found that there was no evidence to suggest that the Applicant’s creditors would be harming him for this reason rather than to get their debts repaid or to punish the Applicant for not repaying them. The Tribunal found no evidence that the authorities would refuse to provide him with protection in the event of any criminal action being taken against him.

  4. If the Applicant were to be charged with criminal conduct because of his indebtedness and was punished for that reason the Tribunal found that such harm that would befall him was a result of the application of laws of general application in China and not for a Convention reason.

  5. The Tribunal considered the question of harm suffered by the Applicant as a result of his contravention of the one child policy and noted that the Applicant had not claimed that he would incur any harm in the future but in any event, the Tribunal found that would be the result of a law of general application. The Tribunal was not satisfied that there was a real chance that the Applicant would be persecuted within the meaning of the Convention if he returned to China in the foreseeable future and was not satisfied that the Applicant had a well-founded fear of Convention-based persecution in China.

  6. The Tribunal considered the Applicant’s request to refer his case to the Department of Immigration and Citizenship for consideration by the Minister under the provisions of section 417 of the Migration Act. The Tribunal decided not to do so but noted that the Applicant could still make a request directly to the Minister.

  7. The Tribunal affirmed the decision not to grant the Applicant a Protection (Class XA) visa. 

Application for Judicial Review

  1. The Applicant commenced proceedings in this Court by filing an application and an affidavit in support on 14th July 2009. The application came before the Court on its First Court Date, 17th August 2009. A hearing date was found at the first reasonable opportunity because the Applicant was in Immigration Detention.

  2. The Applicant did not file any amended application, nor did he file a written outline of submissions.  However, he attended Court and was asked from the bench to provide some details of the grounds of review which he had set out in his application. They were brief and unparticularised, being:

    (1)  Procedural fairness.

    (2)  Jurisdictional error.

    (3)  That the mental health of the person not considered.

  3. When asked to expand upon his claim that he had not been dealt with in accordance with procedural fairness, the Applicant told the Court that he had provided documents to the Tribunal and the Tribunal believed his evidence but his case was still rejected. He expanded at some length about previously having been dealt with for a breach of the one child policy in China.  He claimed to fear persecution because he disagreed with the government. 

  4. When the Applicant was asked to expand upon his claim that the Tribunal had committed a jurisdictional error, the Applicant told the Court that he did not think that he received fair treatment by the Tribunal.  The reason for this, he said, was that he was a Christian and he was persecuted because of his religion, and he had a different opinion from the government. 

  5. The Applicant went on to explain that his parents were Christian and they were persecuted and that that had an effect on him.

  6. When asked to expand upon his third claim, that his mental health had not been considered, the Applicant told the Court that he had suffered from a medical condition and that he had suffered from gastroenteritis whilst he was in the detention centre. 

  7. He also claimed that he was bullied by a New Zealand woman who assaulted him and caused injuries to his head. This resulted in his being taken to hospital for treatment, and he complained that an officer of the detention centre later blamed him for the incident and discriminated against him. 

  8. The Applicant explained that because he had a medical condition and he had difficulty sleeping, he was given sleeping pills but was afraid to take too many of them so he resorted to smoking heavily instead.  He told the Court that he had applied for a bridging visa on two occasions and complained that his applications had been refused. 

  9. The Applicant believed that at one stage he had spoken to the Migration Review Tribunal, and had told them that he suffered from a stomach ailment and that he was depressed.  He also made complaints about having been arrested by the Department of Immigration and Citizenship, interrogated and placed into detention. He told the Court he had been in the detention centre for six months. He expressed fears that if he were to return to China, he would suffer harm because he owed people a lot of money. 

  10. On behalf of the Minister for Immigration and Citizenship, Ms Baggett solicitor told the Court that the Applicant’s oral submissions related almost entirely to the merits of claims of persecution which had not previously been raised. 

  11. She submitted that the Tribunal had not breached the requirements of Division 4 of Part 7 of the Migration Act, and in particular, had not breached the provisions of section 424A or section 425 of the Act. She submitted that the Applicant had not provided any particulars of jurisdictional error and that there was none. In respect of the Applicant’s claim that his mental health had not been considered, Ms Baggett submitted that there was no obligation on the Tribunal to consider the mental health of an applicant, particularly in circumstances where there was no evidence before the Tribunal that his mental health was doubtful.

  12. She submitted that there was nothing that could have led to the Tribunal to doubt the Applicant’s mental health, and submitted that the onus was on the Applicant to demonstrate any such mental unfitness and referred the Court to a decision of Gilmour J in SZLTI v Minister for Immigration & Citizenship[6]; see also NAMJ v Minister for Immigration and Multicultural and Indigenous Affairs[7]. 

    [6] [2008] FCA 1274 at [18]

    [7] [2003] FCA 140

  13. In dealing with the application, there is no evidence apparent to the Court of a lack of procedural fairness. The fact that the Tribunal accepted that the Applicant was a credible witness and gave him the benefit of the doubt about the untranslated document which he had provided, does not establish any lack of procedural fairness because the Tribunal did not grant his application.  It is clear that the application for a protection visa referred almost entirely to the Applicant’s claims that he had suffered threats of harm as a result of owing a substantial amount of money in China, and he feared harm from the people to whom he owed money, and as a result of legal proceedings if he were to return to China.

  14. It was this situation which led the delegate to find that there was no Convention nexus between the Applicant’s claim and the grounds under the Refugees Convention.  It was this issue that the Tribunal specifically addressed with the Applicant at the hearing.  The Tribunal put to the Applicant that his concerns seemed to arise to his indebtedness stemming from his failed business, and the threats of harm or legal proceedings from his creditors if he were to return to China. 

  15. The Tribunal did not commit any breach of section 424A of the Migration Act. There was no information which formed the reason or a part of the reason for the Tribunal to refuse the Applicant’s claim that should have been put to him under the provisions of section 424A. The Tribunal decision was based on the Applicant’s oral evidence to the Tribunal and on the document that he submitted. That material comes within the exception, in sub-section 424A(3) of the Migration Act and does not give rise to any obligation under sub-section 424A(1).

  16. As to section 425 of the Migration Act, the Tribunal invited the Applicant to attend the hearing and did so within an appropriate time. The Tribunal’s invitation to hearing complied with the requirement of section 425A of the Act and the Applicant attended the hearing, admittedly under escort, where he gave evidence with the assistance of an interpreter in the Mandarin language. That was the language which he had requested. The issues were, in my view, fully canvassed with the Applicant at the hearing.

  17. There is no breach of any of the requirements of Division 4 of Part 7 of the Act. The Applicant claimed jurisdictional error but his claims went entirely to the merits of his refugee claims. As to the Applicant’s claim that the Tribunal did not consider his mental condition, the best that could be put was the Applicant’s assertion to the Court that he was stressed when he arrived in Australia; that he had been the subject of an unfortunate incident with another detainee whilst in detention; that he had suffered a physical illness and he claimed to have had memory problems.

  18. There is no evidence that any of this was put to the Refugee Review Tribunal and, accordingly, there was nothing which would have led the Tribunal to make any inquiries as to the Applicant’s fitness to give evidence.  That ground must therefore be rejected.

  19. What the Tribunal did, when observing there appeared to be no Convention nexus relating to the Applicant’s claim arising from his indebtedness in China, was to raise with the Applicant whether there were any instances of his having come under notice for what might have been a Convention reason. The Applicant told the Tribunal that his parents had had some trouble with the authorities as a result of their Christian belief and their membership of a church, which may not have been an approved church at the time, but it was quite clear that the Applicant was not claiming to the Tribunal that he had suffered any harm or would suffer any harm because of his Christian religion in being a member of a government-approved church.

  20. The Applicant told the Tribunal that he and his wife had suffered a fine as a result of an earlier breach of the one-child policy in China but there was no claim that any such harm would befall the Applicant in the future. The Tribunal considered whether the Applicant might belong to a particular social group and suffer persecution on that regard but was not satisfied that there was any evidence in that respect. 

  21. In my view the Tribunal explored relevant avenues in order to see whether the Applicant did have a claim that came within the Refugees Convention but was not able to discern any.  The Applicant’s claims to the Court in his submissions today of a fear of persecution on the grounds of his religion or a fear of persecution in some way as a result of a past breach of the one-child policy were not before the Tribunal as any claim of future harm.

Conclusion

  1. In my view, the Applicant has not made out any jurisdictional error. I am mindful of the fact that he is not legally represented and my independent reading of the material does not show any jurisdictional error. In the absence of 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 which the Applicant seeks. The application will be dismissed.

  2. The Minister seeks an order for costs against the Applicant in the sum of $4,400.00. The Applicant has been unsuccessful in his claim and the Minister is within his rights to seek an order for costs.  The amount of $4,400.00 is an appropriate figure within the Court scale.  It is perhaps an academic situation as the Applicant has been an inmate in the detention centre for the last six months and quite clearly has no funds to meet such an order.  However, I will make such an order.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  Virginia Lee

Date:  14 October 2009


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