SZNZC v Minister for Immigration
[2010] FMCA 163
•1 March 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNZC v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 163 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.424A, 424AA, 425 |
| SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 SZMCD v Minister for Immigration and Citizenship and Another (2009) 174 FCR 41; [2009] FCAFC 46 |
| Applicant: | SZNZC |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2525 of 2009 |
| Judgment of: | Barnes FM |
| Hearing date: | 1 March 2010 |
| Delivered at: | Sydney |
| Delivered on: | 1 March 2010 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2525 of 2009
| SZNZC |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal dated 17 September 2009 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa. The applicant, a citizen of the People’s Republic of China, arrived in Australia in November 2006 on a student visa. He applied for a protection visa on 12 May 2009. He attended an interview with a delegate of the first respondent. The application was refused and the applicant sought review by the Tribunal. He was invited to and attended a Tribunal hearing.
In its reasons for decision the Tribunal set out in detail the claims made by the applicant in the statutory declaration annexed to his protection visa application and at the Tribunal hearing.
The applicant claimed to fear persecution in China based first on a breach of China’s one child policy. He claimed that his parents incurred a large fine following the birth of his younger sister in 1992. He claimed that his mother had been forced to hide with his sister at a house of a relative and that the police had wanted to kill his sister.
The applicant also claimed to fear persecution based on events arising out of the confiscation and demolition of his family home by the government in order to build a railway. He also claimed to fear creditors in China, from whom money was borrowed to fund his trip to Australia and to fear impending unemployment if he returned to China because he had not completed his education in Australia.
The Tribunal considered the applicant’s claims in relation to the one child policy. It noted that while the applicant made claims about his family being arrested, he did not claim that he had been arrested. He claimed he and his father were chased when he was four years old, at the time of his sister’s birth. However the Tribunal did not find it credible that the applicant was in fear because of an event that had happened in 1992. It had regard to the fact that he had been educated at three schools in China and had come to Australia for further education. It did not accept the applicant’s claim, made for the first time at the hearing, that he came to Australia to escape. It found that neither the applicant’s sister nor the applicant had been discriminated against because his parents had a second child. It found the applicant’s evidence in support of this claim to be vague and unpersuasive.
The Tribunal did accept that there was a one child policy in China and that there may be penalties for registering or educating a second child. Indeed it accepted that the applicant’s parents had been required to and had paid a fine after his sister was born. However it had regard to the evidence of what occurred thereafter in relation to education of the children and, in particular, the position of the applicant as the first child and the absence of independent information or evidence that first children were discriminated against because their parents had a second child.
The Tribunal did not believe the applicant’s evidence that he was afraid of the police in China because of what had happened to his family after his sister was born and did not believe that he was afraid that if he was captured, the police would beat him to death. It noted that he had continued to live in China after his sister was born until he came to Australia in November 2006. It did not accept his claims about what had happened to his family or what had happened to a named friend. The Tribunal was not satisfied that the applicant was facing persecution for a Convention reason if he returned to China on this basis.
The applicant also claimed that his family had to leave their home because the government took it to build a railway, that they were not offered compensation and that they had nowhere to live. The Tribunal did not believe the applicant’s evidence that he had nowhere to go if he returned to China where his mother, sister and grandmother lived. It noted that the applicant had claimed that he had lived all his life in the house he grew up in until he came to Australia. On that basis it did not accept that the house was destroyed following the birth of his sister. It also found it not credible that he would not know the number of the house at which he claimed to have lived for 15 years. While he provided photographs of housing being demolished and rubble, the Tribunal did not accept that these were photographs of the applicant’s home and did not accept that his house was demolished.
In any event, even if the applicant’s house had been demolished, the Tribunal did not accept that compulsory acquisition of properties (half the houses in the village) for the purpose of building a railway was discrimination or persecution for a Convention reason.
The Tribunal expressed concern about the applicant’s delay in applying for a protection visa. It noted that for the first time at the hearing the applicant had claimed that he had borrowed money to come to Australia to “escape” and rather than to study. It referred to the fact that the applicant came to Australia on a student visa and that although he dropped out he did not apply for a protection visa until detained by the Department in April 2009. The Tribunal found this delay inconsistent with the applicant’s claimed fear and did not accept his explanation that “he did not know too much so he did not lodge the application earlier”. It had regard to the fact that he had studied here and worked illegally.
The Tribunal also expressed concern about the applicant’s claim that he did not know his father was in Australia at the time of the Departmental interview. The Tribunal found it not credible and did not believe that the applicant’s father, who came to Australia on a student guardian visa as guardian for his son, would not have contacted his son. The Tribunal found that the applicant was prepared to give untruthful evidence to further his own claims and that he was prepared to change his evidence when confronted with inconsistencies. It gave an example of such a change in evidence in finding that the applicant was not a witness of truth.
The Tribunal did not accept that borrowing of money by the applicant and his father for the applicant to come to Australia as a student had a Convention nexus.
Finally, the Tribunal found that while it was possible the applicant may have some difficulties finding a job in China, it was not satisfied that he would be discriminated against or targeted for a Convention reason.
The Tribunal considered other aspects of the applicant’s claims. It did not accept that the applicant’s father, mother or sister had been arrested or that they had to pay the police regular money to bribe them. It noted that the applicant had no difficulties getting a passport and had not had any trouble with the Chinese authorities. It concluded that he had not been persecuted because his mother had more than one child in China, that he did not have a well-founded fear of being persecuted as a result of his house being acquired for the railway or for reasons of borrowing money to come to Australia.
The Tribunal also found that the applicant’s family had not suffered discrimination or persecution as a result of having a second child, and that there was not a real chance that the family would suffer persecution for reasons of membership of a particular social group or any other Convention reason. Hence it found that there was not a real chance that the applicant would suffer persecution because of membership of his family.
Having found that the applicant was not a witness of truth, the Tribunal concluded that it was not satisfied that he had suffered persecution or discrimination for a Convention reason, or that he feared persecution within the meaning of the Refugees Convention. It was not satisfied that he had a well-founded fear of persecution for a Convention reason.
The applicant sought review by application filed in this court on 20 October 2009. The application contains two generally expressed and unparticularised grounds. They are that there was a “lack of procedural fairness” and that the applicant’s case was “not fairly considered” by the Tribunal.
The applicant was given the opportunity to elaborate on these claims today. He claimed that his house was demolished and that he was not aware that his father had arrived. I clarified with the applicant that he disagreed with the Tribunal’s conclusions in this regard. However merits review is not available in this court. These claims, and the applicant’s claim in the affidavit accompanying his application that his family was persecuted and he feared returning to China, seek impermissible merits review.
The solicitor for the first respondent nonetheless endeavoured to address issues that might arise under the grounds relied on in the application. I am satisfied that, as submitted, there is nothing in the material before the court to establish a breach of any of the statutory provisions in Division 4 of Part 7 of the Migration Act 1958 (Cth), in particular s.425 or s.424A of the Migration Act.
In relation to s.425 of the Act, the applicant was invited to and attended a Tribunal hearing. The only evidence before the court of what occurred in the hearing is the Tribunal reasons for decision. It is apparent from the Tribunal decision record that the applicant was put on notice by the Tribunal of the Tribunal’s particular concerns regarding dispositive issues in the sense considered in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63.
In relation to s.424A of the Act, it is apparent from the Tribunal account of what occurred in the hearing that the Tribunal put matters to the applicant orally pursuant to s.424AA of the Act (see SZMCD v Minister for Immigration and Citizenship and Another (2009) 174 FCR 41; [2009] FCAFC 46 in relation to the relationship between s.424A and s.424AA). I am satisfied on the basis of the Tribunal description of what occurred in the hearing that it gave the applicant full particulars of the information in question, explained the relevance of that information and invited the applicant to comment orally or to comment or respond later, and that he indicated that he wished to respond then and there, which he did.
Insofar as there was information within s.424A arising out of the matters put to the applicant, in particular the contents of his student visa and departmental records in relation to the applicant’s father and his Departmental interview, it has not been established that there was any failure to comply with s.424A of the Act. Those matters were put to the applicant and I am satisfied, having regard to the particular Tribunal decision in issue, that it can be inferred that the Tribunal complied with s.424AA of the Act (see s.424A(2A)). The fact that the Tribunal also put to the applicant information that he had provided during the process that led to the decision does not give rise to any issue of concern.
Ground one is not made out.
The general contention that the applicant’s case was not fairly considered by the Tribunal is not made out. Contrary to that contention, the Tribunal considered all the integers of the applicant’s claim. If the applicant intended to assert either actual or apprehended bias, he has not provided any particulars or evidence in support of this assertion, and there is nothing in the Tribunal decision record to support any such allegation.
As no jurisdictional error has been established, the application must be dismissed. Before I make the orders, I will hear submissions in relation to costs.
RECORDED : NOT TRANSCRIBED
The applicant has been unsuccessful and there is nothing in the circumstances of this case to warrant a departure from the normal principle that the unsuccessful applicant should meet the costs of the first respondent.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 17 March 2010
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