SZNUH v Minister for Immigration
[2009] FMCA 1093
•26 October 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNUH v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 1093 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – merits review not available in judicial review proceedings. |
| Migration Act 1958, ss.91R, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicant: | SZNUH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1826 of 2009 |
| Judgment of: | Cameron FM |
| Hearing date: | 26 October 2009 |
| Date of Last Submission: | 26 October 2009 |
| Delivered at: | Sydney |
| Delivered on: | 26 October 2009 |
REPRESENTATION
| The Applicant appeared in person. |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $4,100.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1826 of 2009
| SZNUH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of China. He claims that while in China he worked for a state-run factory which treated him unfairly after he was injured at work. He claims that he publicly demonstrated in order to protest his unfair treatment and as a result came to the adverse attention of the Chinese authorities.
The applicant claims to fear persecution in China because of his
anti-government activities.
After his arrival in Australia on 3 December 2008, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on 7 March 2009. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 12 of the Tribunal’s decision (Court Book (“CB”) pages 81 – 89).
Primary application
The applicant made the following claims in his application for protection:
a)he worked as an electrician at a government-run factory where he was encouraged to join the Chinese Communist Party (“CCP”). However, he decided not to join the party as he was opposed to it;
b)on 22 November 2006 he was hurt in a work accident. He spent seventy-one days in hospital and then went home to recover;
c)following the accident he was diagnosed as having a “level 10” disability. He stayed at home and was paid a minimum salary but this did not cover his everyday expenses;
d)he was told by the Chinese government that his minimum salary payments would stop if he did not return to work in April 2008. When the applicant explained that he was still suffering from his injuries he was given an extension of his income support;
e)he appealed to his employer and sought assistance from various agencies but was not successful. He decided to “fight back” and sat in front of a government building with a sign that read “give me my justice”. Three guards took the sign from him and asked him to leave immediately. He waited nearby but was not able to speak to any of the higher officials;
f)he tried to get the media interested in his plight and sent the story of his experiences to many newspapers, magazines and television broadcasters. He received no responses but was instead visited by the factory director who told him that his minimum salary payments were going to end. The applicant was told that he would be punished if the director ever heard his name again;
g)feeling threatened, he made arrangements to go to a democratic country. Whilst waiting for his visa, he received written notification from his employer that he was not able to resume working and that his payments would be stopped straightaway; and
h)since arriving in Australia he has written to the representative of the “Australian Chinese Democracy Union” disclosing his experiences in China.
Review application
The applicant made the following additional claims at a hearing before the Tribunal:
a)he feared returning to China because he had been unfairly treated after he was injured at work and because the Public Security Bureau (“PSB”) had a “case” against him following his demonstration in April 2007. Later he said that he had demonstrated in April 2008;
b)since his departure from China, the PSB have visited his home three times and questioned his wife about him;
c)he did not return to work after the accident in November 2006 because he was recovering and still cannot function as fully as he did before;
d)the company that he worked for was a state-run enterprise and the director was a member of the CCP. He regarded his conflict with the employer as a conflict between him and the CCP;
e)as a person with a grade 10 disability he was entitled to six months’ wages under China’s regulations. However, these provisions were “just a framework” so even though he received over three times the amount he was entitled to he was not, taking into account the severity of his injuries, treated favourably. Also, while he was assessed at the lowest level of disability his injury was not fully treated and he had not fully recovered;
f)he was not happy with his disability classification but chose not to apply for re-classification following legal advice he had received in China;
g)he received his passport in June 2008 but did not depart China until December 2008 because he had to apply for a visa and arrange his finances. He was anxious to leave but the delay was totally beyond his control; and
h)he was not working in Australia but subsequently said in a response to a question that he worked as a cleaner one or two days a week. He explained his contradictory evidence on the basis that he thought of “work” as something more long term.
After the hearing the applicant sent to the Tribunal a copy of a letter dated 20 December 2008 which he claimed to have sent to the “Federation for a Democratic China, Australia”. He also submitted a photograph which purported to show his injuries.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person 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 had the following issues of concern in relation to the applicant’s evidence:
i)
he claimed that the PSB had a “case” against him following his demonstration in April 2008. However, the Tribunal found it highly unlikely that the PSB, had they been aware of the applicant’s protest, would wait until sometime after
4 March 2009 before making inquiries at his home. Consequently, the Tribunal did not accept that the PSB visited the applicant’s home as claimed and found that his evidence to this effect reflected adversely on his credibility;
ii)the applicant implied that his refusal to return to work amounted to anti-government activity, however, his evidence concerning how he was treated by his employer suggested that the latter was reasonably sympathetic to the applicant’s circumstances;
iii)his passport was issued in June 2008 but the applicant did not leave China until December 2008. While the Tribunal accepted that it may have taken some time for the applicant to make arrangements to travel to Australia, it considered the delay of six months to be significant, suggesting that the applicant was not in a hurry to leave;
iv)at the hearing the applicant gave inconsistent evidence about whether or not he was working in Australia and the Tribunal found that this reflected adversely on his credibility in general; and
v)the Tribunal placed limited weight on the photographs and documents submitted by the applicant, noting that while they indicated that he had been injured at work, they did not necessarily support the applicant’s claim that he was persecuted because he had protested about unfair treatment;
b)in light of these concerns, the Tribunal found that the applicant was not a credible witness and that he had embellished his claims when making his application for protection. Consequently, the Tribunal did not accept that the applicant came to the adverse attention of the Chinese authorities for the reasons he claimed; and
c)the Tribunal accepted that at some stage since arriving in Australia the applicant sent a letter to the “Federation for a Democratic China”. However, the Tribunal was not satisfied that he had sent this letter otherwise than for the purpose of strengthening his claim to be a refugee and therefore disregarded this conduct under s.91R(3) of the Act.
Proceedings in this Court
The grounds of the application commencing these proceedings were pleaded as follows:
1. The decision record made by Refugee Review Tribunal are not match with truth.
2. The tribunal member did not give me enough time to explain the answers.
3. Due to some language problems, some questions they asked me, I do not understand.
Decision record did not match with the truth of the claim
The first ground pleaded in the application challenges the Tribunal’s decision on the basis that it did not reflect the true nature of the claim the applicant made or did not conform with the facts of the matter as presented to it by the applicant.
In reality, all the first ground of the application seeks to do is to challenge the correctness of the Tribunal’s decision and have the Court undertake a further review of the visa application and its merits. As has been expressed earlier in these reasons, the Court cannot do this. The role of the Tribunal is to make findings of fact and to reach conclusions based on those findings. The role of the Court is to ensure that the Tribunal has applied correct processes when undertaking its review and to ensure that the Tribunal has correctly applied the law in reaching its decision. As long as the Tribunal has applied correct processes and has correctly applied the law, the fact that it may have reached factual findings or conclusions on the merits of a review with which the applicant disagrees or with which other reasonable persons might disagree are not matters which enliven this Court’s power to set the Tribunal’s decision aside.
Consequently, the first ground pleaded in the application does not disclose a basis upon which the Tribunal’s decision might be quashed.
Insufficient time to explain the answers
The second ground pleaded in the application is not particularised and it therefore invites subsidiary questions as to what were the answers which the applicant was given insufficient time to explain and what were the explanations he would have wished to have given should he have been given additional time. However, the answers to these questions are irrelevant given that it is apparent from the only evidence which is before the Court, namely the Tribunal’s decision record and the other documents contained in the Court Book, that the applicant was given adequate opportunities and time within which to provide information and arguments to the Tribunal in support of his review application.
For instance, at a number of points in the Tribunal’s summary of the hearing before it, it records that it put propositions and other matters to the applicant and invited his comments on them. Moreover, it is apparent from the “RRT hearing record” reproduced at CB 65 that the hearing took nearly an hour and a half, which suggests that the applicant was given an opportunity to put before the Tribunal whatever information and arguments he wished it to have.
Even so, of more decisive significance in relation to this ground is what is found at para.61 of the Tribunal’s decision, where it is recorded that the Tribunal asked the applicant whether he needed additional time to respond to the matters which the Tribunal had put to him. Paragraph 61 of the Tribunal’s decision records that the applicant expressed a desire to have additional time and the Tribunal proceeded to allow him a further fourteen days within which to provide further comment or to respond in writing. This the applicant did in a document received by the Tribunal on 26 May 2009, reproduced at CB 73-76 and referred to in para.62 of the Tribunal’s decision record. There is no suggestion either in the documents contained in the Court Book or in the Tribunal’s decision record that the applicant sought more than the fourteen days which the Tribunal had allowed him to “explain the answers”, to use the term employed in the second ground of the application.
For these reasons, on the facts I find that the second ground pleaded in the application is not made out.
Language difficulties
The third ground of the application is also not particularised and the applicant has not identified which questions he says he did not understand. However, this ground is essentially an allegation of poor interpreter services at the Tribunal hearing. For such an allegation to be made out, it would normally be necessary for a transcript of the Tribunal’s hearing to be in evidence in these proceedings and for expert evidence to be adduced demonstrating that the interpreting at the Tribunal hearing was inadequate in some way. The applicant has placed no evidence of this sort before the Court and the Tribunal’s decision record would not support a conclusion that the interpreter services at its hearing were inadequate.
Indeed, the Tribunal’s decision record suggests quite the contrary and it appears from that document that the applicant was quite able to answer the questions which were put to him by the Tribunal with no suggestion of any lack of comprehension or of difficulties with the interpreter retained by the Tribunal. Further in this regard, the RRT hearing record referred to earlier in these reasons discloses that the interpreter who assisted at the Tribunal hearing was accredited at NAATI level 3 standard, suggesting a more than adequate competence. I am not satisfied that the evidence supports the allegation made in the third ground of the application and I conclude that the Tribunal’s decision should not be set aside by reason of the matters alleged in that ground.
Tribunal did not study Chinese compensation law
Although the Tribunal is an inquisitorial body, it is essentially the task of an applicant to put evidence and arguments before the Tribunal such that it will be satisfied that the applicant meets the criteria for a protection visa. A failure to undertake inquiries is not demonstrative of jurisdictional error on the part of the Tribunal except in exceptional circumstances. I am not satisfied that any circumstances of an exceptional nature are present in this case such that the fact that the Tribunal did not thoroughly study Chinese compensation law would be demonstrative of jurisdictional error.
But in any event, it has to be noted that the Tribunal did have regard to independent country information concerning Chinese workers compensation arrangements and the applicant has not identified why the inquiries which the Tribunal made were inadequate in any way. Moreover, the question of the Tribunal’s understanding of Chinese workers compensation arrangements is ultimately irrelevant to the real question which it had to consider, which was whether the applicant had a well-founded fear of persecution for a Convention reason were he to return to China.
Those considerations directed the Tribunal’s attention to whether the applicant faced retribution from Chinese authorities because he protested about what he said was inadequate workers compensation support for him, not whether the Chinese workers compensation system was or was not adequate to his circumstances.
For these reasons, this ground articulated in argument today does not disclose jurisdictional error on the Tribunal’s part.
Tribunal did not pay attention to the actual details of the applicant’s claim
This allegation articulated in submissions today is not supported by the facts appearing in the Tribunal’s decision record. That decision record discloses that the Tribunal had regard to the material lodged in support of the protection visa application, the information provided by the applicant to the Minister’s department during the course of a departmental interview, the evidence which the applicant gave to the Tribunal at its hearing and independent country information relevant to the claim. Moreover, in that part of its decision record under the heading “Findings and Reasons” the Tribunal sets out in adequate detail its understanding of the facts underlying the applicant’s claim and it goes so far as to say in para.85 that the Tribunal accepted that the applicant may have been injured in an accident at some time in the past. However, the Tribunal ultimately reached its conclusion based on its adverse view of the applicant’s credibility. This was so even though it had regard to the details of the applicant’s claim.
For these reasons, the second ground identified as emerging from the applicant’s oral submissions today does not disclose a basis upon which the Tribunal’s decision might be set aside.
Merits of the protection visa application
In his oral submissions today, the applicant went at some length into the basis of his claim and the reasons why he says he is entitled to protection in Australia. For the reasons given in respect of the first ground pleaded in the application, these matters disclose no basis upon which the Tribunal’s decision may be set aside in these proceedings.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated. Consequently, the application will be dismissed.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 25 November 2009
0
1
1