SZOKR v Minister for Immigration

[2010] FMCA 627

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOKR & ANOR v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 627

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether there was information that formed the reason or part of the reason for the Refugee Review Tribunal affirming the decision under review which the Refugee Review Tribunal was obliged to give to the applicants – whether the Refugee Review Tribunal considered all the applicants’ claims.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 65(1)(b); 91R; 424A(1); 424A(3)(a); 474; pt.8 div.2

SZBYR v Minister for Immigration and Citizenship (2007) 325 ALR 609
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Abebe v Commonwealth of Australia (1999) 162 ALR 1
Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1986) 162 CLR 24

First Applicant: SZOKR

Second Applicant: SZOKS

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1073 of 2010

Judgment of: Emmett FM

Hearing date: 9 August 2010

Date of Last Submission: 9 August 2010

Delivered at: Sydney

Delivered on: 19 August 2010

REPRESENTATION

Applicant appeared in person with Mandarin interpreter

Counsel for the Respondent: Mr T. Reilly

Solicitors for the Respondent: Ms B. Rayment, Sparke Helmore

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1073 of 2010

SZOKR

First Applicant

SZOKS

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 13 April 2010 and handed down the same day.

2. The first applicant claims to be a citizen of the People’s Republic of China (“China”) and of Muslim faith and Hui ethnicity (“the Applicant”). The second applicant is the adult son of the Applicant and his claims are entirely dependent on the claims of the Applicant. The Applicant fears persecution by the Chinese authorities by reason of the Applicant’s Hui ethnicity and Muslim faith and membership of a social group comprised of Hui Muslim restaurateurs.

3. The first issue in this case is whether the Tribunal was obliged to give the applicants information for comment about government levies or charges in China where that information formed the reason, or part of the reason, for the Tribunal affirming the decision under review. The second issue is whether the Tribunal considered all the Applicant’s claims. These issues are considered below in the context of considering whether the Tribunal’s decision is affected by jurisdictional error.

4. Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the Applicant’s protection visa application claims and the decision of the delegate of the First Respondent (“the Delegate”) and consideration of the Tribunal’s review and decision.

Background

1. The Applicant arrived in Australia on 5 August 2009 having departed legally from Guangzhou on a passport issued in her own name and a Subclass 676 (Tourist) visa issued on 20 July 2009.

2. On 9 September 2009, the applicants lodged applications for Protection (Class XA) visas with the Department of Immigration and Citizenship (“the Department”) under the Act.

3. On 2 December 2009, the Delegate refused the applicants’ applications for protection visas.

4. On 5 January 2010, the applicants lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.

5. On 13 April 2010, the Tribunal affirmed the decision of the Delegate not to grant protection visas.

6. On 17 May 2010, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

1. Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then s.65(1)(b) mandates that the visa application is to be refused.

2. Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).

3. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

   “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

4. Section 91R of the Act expands on the notion of persecution and serious harm when considering Article 1A(2) of the Convention.

The applicants’ applications for protection visas

1. The Applicant provided a statement in support of the applicants’ protection visa applications in which the Applicant claimed to fear persecution from Chinese of Han ethnicity by reason of the Applicant’s Hui ethnicity and religion.

2. The Applicant claimed that most government officials are of Han ethnic background, which resulted in the “mistreatment and oppression” of the minority Hui residents. The Applicant claimed that Huis were discriminated against by having heavier fees levied upon them such as for drainage, cleaning, garbage disposal and social security surcharges.

3. The Applicant claimed that she had run a Muslim restaurant in China from 2005 and during October and November 2006 seven or eight Han Chinese had repeatedly visited the restaurant and insulted them by ordering pork. She claimed that one day they did not pay for their meal and, when they argued with them about this, the Han Chinese people called other Han Chinese people who “were good at martial arts” and who beat them. The Applicant claimed the police attended the restaurant and wrote a report but took no other action.

4. The Applicant claimed that since March or April 2009 a group of Muslim Hui people had gathered in her restaurant regularly, attracting police attention. The Applicant claimed that she was frightened by the police presence and applied for an Australian visa. She claimed that after the 5 July riot in Xinjiang Province, the conflicts between Muslim Hui and Han Chinese became more tense. The Applicant claimed that the “government” alleged that the Applicant was providing shelter for a group of Muslims who took part in the 5 July riot.

5. The Applicant claimed that if she and her son were to return to China, they would be subject to police investigation and that they had lost their business. The Applicant claimed they would be subject to mistreatment because of their religion.

The Delegate’s decision

1. On 20 November 2009, the Applicant attended an interview with the Delegate.

2. The Applicant provided further documents to the Delegate.

3. On 2 December 2009, the Delegate refused the applicants’ applications for protection visas on the basis that the applicants are not people to whom Australia has protection obligations under the Convention.

4. The Delegate found that the Applicant’s claims related to the operational difficulties and challenges in running her restaurant business. The Delegate noted that when the Delegate asked the Applicant if she had experienced any difficulties with the police or other Chinese authorities in the running of her business, the Applicant said there were no problems with those people and that she would telephone the police if she had a problem. Ultimately, the Delegate was not satisfied on the evidence before it that the essential and significant reason for the harm feared was for any Convention related reason.

The Tribunal’s review and decision

1. On 5 January 2010, the applicants lodged an application for review of the Delegate’s decision by the Tribunal.

2. The applicants provided no further documents in support of their review application.

3. On 1 February 2010, the Tribunal wrote to the applicants informing them that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicants to attend a hearing on 4 March 2010 to give oral evidence and present arguments.

4. On 4 March 2010, the Applicant attended the Tribunal hearing and gave evidence.

5. The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.

6. The decision of the Tribunal is accurately summarised by counsel for the First Respondent in his written submissions as follows:

   “The Tribunal accepted that the Applicant was a Hui and ran a restaurant in Henan province that has subsequently closed.  However the Tribunal found that the Applicant had not been denied state protection when running the restaurant, and nor had she been subject to higher or different government charges because she was a Hui.  Nor did the Tribunal accept that the authorities suspected her of any involvement in the July 2009 riots in Xianjing province, noting that this was 3000km away and involved Uighers, not Huis.  The Tribunal concluded that the Applicant had not been persecuted for any Convention reason in the past, and did not leave China for this reason.  And while it accepted there was some discrimination against Huis in China, in particular in relation to government employment, it did not accept that the Applicant would be denied the capacity to earn a livelihood in China in future.  The Tribunal concluded that the Applicant’s claimed fears were not well founded.  See generally CB 106-109.”

The proceeding before this Court

1. The Applicant appeared at the hearing before this Court on behalf of both applicants. The Applicant was unrepresented before this Court, although had the assistance of a Mandarin interpreter. 

2. On 15 June 2010, the Applicant attended a directions hearing before Federal Magistrate Lloyd-Jones. The applicants were given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the Tribunal hearing and submissions in support.

3. At the directions hearing, the applicants were referred to the Court’s Legal Advice Scheme for free legal advice. A letter was sent by the Court on 18 June 2010 to the applicants with the contact details of the panel advisor. The panel advisor advised the Court that the applicants failed to attend a scheduled conference with the advisor. The advisor informed the Court that the applicants made no other contact to reschedule, or for any other reason. Whilst the applicants did not apply to the Court for an adjournment of the hearing in order to participate in the scheme, in light of the opportunity provided to the applicants to attend the scheduled conference and the failure of the applicants to contact the advisor or to provide any explanation for that conduct, any such application for adjournment would have been refused.

4. At the commencement of the hearing, the Applicant confirmed that the applicants had not filed any amended application, evidence or submissions in support of their application and that they had no further documents to present to the Court in support of their application.

5. The Applicant confirmed that the applicants relied on the grounds contained in the application filed on 17 May 2010 as follows:

   “1. The applicant claims that the Tribunal’s decision was affected by judicial error in failing to invite the applicant to comment on information that is relevant to her application. The Tribunal found that the applicant did not suffer discrimination in the payment of government levies or charges. The Tribunal filed to invite the applicant to comment on this information.

   2. The Tribunal filed to consider the applicant’s claims that she was harassed and targeted by the local authorities for her membership of a particular social group being Hui restaurateurs.”

6. Each of the grounds was interpreted for the assistance of the Applicant and the Applicant was invited to make submissions in support of each of the grounds and in support of the application generally.

Ground 1

1. Ground 1 appears to allege that the Tribunal was obliged to give to the applicants for comment information to which it had regard about the payment of government levies or charges. The Applicant made no relevant submission in support of Ground 1, which was not otherwise supported by particulars, evidence or submissions. The Applicant said no more than that the Tribunal did not provide her with sufficient reasons for refusing her application and that Hui people were discriminated against in China.

2. To the extent that Ground 1 appears to suggest that there was information that the Tribunal should have given the applicants about government levies and charges, it is not clear whether the complaint is:

   (i) that the Tribunal should have given to the Applicant for comment its finding that any government charges were not levied discriminatorily; or,

   (ii) that the independent information which the Tribunal considered in making that finding was information that the Tribunal was obliged to give to the Applicant for comment.

3. Either way, for the reasons explained below, neither complaint is made out.

4. In its decision record, the Tribunal stated that it put independent evidence to the Applicant about the existence of some discrimination against Huis who had been elected to the National People’s Congress or who work in government departments and in major city hospitals. The Tribunal noted that when it asked the Applicant if she would like to comment on that information, the Applicant said ‘no’.

5. There was no transcript of the Tribunal hearing provided to this Court, nor did the applicants provide any evidence to this Court to suggest that the Tribunal’s decision record is not accurate. At the directions hearing on 15 June 2010 the applicants were given an opportunity to file a transcript of the Tribunal hearing. The applicants were also directed to give notice if they wished to rely on recordings of the hearing. However, no step was taken by the applicants to rely on any such evidence. In the circumstances, the Court accepts as accurate the Tribunal’s summary of the oral evidence given by the Applicant and exchanges it had with the Applicant at the Tribunal hearing.

6. In relation to (i), that the Tribunal’s finding that government charges were not levied discriminatorily, the Tribunal had regard to the Applicant’s claim that the Chinese authorities impose higher levies on Hui restaurateurs. The Tribunal noted that it put to the Applicant that everybody had to pay government levies and noted the Applicant’s response that an owner has to pay and that some of the charges are unfair. The Tribunal found that the Applicant’s responses about the fees and charges and her allegations about how they were different or discriminatory to be vague and unsatisfactorily explained. In light of the Applicant’s evidence, the Tribunal did not accept that the Applicant had paid any different or discriminatory charges to the authorities in the running of the restaurant business. In addition to its finding that the Applicant did not suffer discrimination in the payment of government levies or charges, the Tribunal also noted that the Applicant did not suggest that her son suffered discrimination in education for any Convention related reason.

7. The Tribunal’s assessment of the Applicant’s evidence about her allegation of government charges and levies is not information for the purposes of s.424A(1), rather it is the thought processes of the Tribunal. Such information does not enliven any obligation on the part of the Tribunal to put that information to the Applicant for comment (See SZBYR v Minister for Immigration and Citizenship (2007) 325 ALR 609 at [18] per Gleeson CJ, Gummow, Callinan, Heydon, and Crennan JJ).

8. In relation to the (ii), being the country information to which the Tribunal had regard, the Tribunal’s decision record identified in some detail the independent information which it considered, particularly in relation to discrimination and prejudice by Han against Hui. The information included a report dated 20 January 2010 from the director of the Centre d’études sur la Chine moderne et contmporaine which stated that there is no systemic discrimination against Hui Muslims in Henan and China more generally. The report also stated that officially there is no less protection to Hui Muslims than to Han Chinese from government officials and authorities.

9. Ultimately, the Tribunal found that Hui are allowed to practice their religion and accepted that there is no less protection to Hui Muslims than to ethnic Han in China, although, there have been violent clashes in the past.

10. The Tribunal found that the country information indicated that there is some discrimination against Huis in government employment, especially in the police force. The Tribunal noted that the Applicant does not suggest that she would seek government employment or that she would suffer discrimination in employment in China. The Tribunal noted that she worked in a plastics factory and later in a family restaurant. The Tribunal noted that the Applicant did not suggest that she sought to reopen a restaurant in China. The Tribunal noted that it had no independent evidence before it to suggest that the Hui were prohibited or were unable to open a restaurant in China. The Tribunal found that if such a situation existed, there would have been some mention of it in the independent information in reports from bodies such as the US State Department, UK Home Office or Amnesty International. For those reasons, the Tribunal was not satisfied that the Applicant would be denied the capacity to earn a living if she were to return to China.

11. The independent information to which the Tribunal had regard in being satisfied that the Applicant would not be discriminated against by being denied the capacity to earn a living if she were to return to China was information not specifically about the Applicant but about a class of persons of which the Applicant claimed to be one. Such information is excluded from the obligations of s.424A(1) of the Act by reason of s.424A(3)(a) of the Act.

12. It is a matter for the Tribunal the independent information to which it has regard and the weight it gives such information (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]).

13. Otherwise, the Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave.

14. Accordingly, Ground 1 is not made out.

Ground 2

1. Ground 2 asserts that the Tribunal failed to consider the Applicant’s claim that she was harassed and targeted by local authorities for her membership of a particular social group, being Hui restaurateurs. The ground was unsupported by particulars, evidence or written submissions. The Applicant declined to say anything further in support of Ground 2.

2. Ground 2 is misconceived in that the Tribunal accepted that the Applicant is a member of a particular social group of ethnic Hui restaurateurs. However, as referred to above, in Ground 1, the Tribunal was not satisfied that ethnic Huis are prohibited or unable to open restaurants in China. As stated above, those findings were open to the Tribunal on the evidence and material before it and for the reasons it gave.

1. Accordingly, the complaint made by the Applicant in Ground 2 is not made out. The complaint would otherwise appear to be no more than a disagreement with the findings and conclusions of the Tribunal. Such a complaint invites merits review, which this Court cannot undertake (Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Abebe v Commonwealth of Australia (1999) 162 ALR 1 at 53-54, [194]; Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1986) 162 CLR 24 at 41 per Mason J).

2. Accordingly, Ground 2 is not made out.

Conclusion

1. A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant at a hearing; and, had regard to all material provided in support. The Tribunal put to the Applicant matters of concern it had about her evidence and noted the Applicant’s responses. The Tribunal also identified independent country information to which it had regard. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.

2. In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

3. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

4. The proceeding before this Court should be dismissed with costs.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate: 

Date:  18 August 2010