SZORV v Minister for Immigration

[2011] FMCA 113

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZORV v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 113

MIGRATION – Review of a decision of Refugee Review Tribunal – applicant’s fear of harm was not Convention related – applicant was given a fair hearing – findings by the Tribunal were reasonably open to it – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.36, 65, 422B, 424AA, 424A, 425, 425A, 441A, 441C, Div. 4 of Pt.7
Migration Regulations 1994 (Cth), reg.4.35D(b)

SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225
Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123; (2009) 259 ALR 429; (2009) 111 ALD 15; [2009] HCA 39
Selvadurai v Minister for Immigration and Ethnic Affairs and Another [1994] FCA 1105; (1994) 34 ALD 347
Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437; (1994) 124 ALR 265; (1994) 35 ALD 1
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481; [1997] HCA 22
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; [1996] HCA 6
Attorney-General (NSW) v Quin (1990) 170 CLR 1; (1990) 64 ALJR 327; (1990) 33 IR 263; (1990) 93 ALR 1; [1990] HCA 21
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300; [2006] HCA 63
SZMCD v Minister for Immigration & Citizenship & Anor [2009] FCAFC 46; (2009) 174 FCR 415
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190; (2007) 235 ALR 609; (2007) 96 ALD 1

Applicant: SZORV

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2276 of 2010

Judgment of: Nicholls FM

Hearing date: 17 February 2011

Date of Last Submission: 17 February 2011

Delivered at: Sydney

Delivered on: 17 February 2011

REPRESENTATION

The Applicant: In person

Appearing for the Respondents: Ms E Warner Knight

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application made on 21 October 2010 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $4,300.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2276 of 2010

SZORV

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore: Revised from Transcript)

1. This is an application made on 21 October 2010 under the Migration Act 1958 (Cth) (“the Act), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 22 September 2010, which affirmed the decision of the delegate of the respondent Minister to refuse a protection visa to the applicant.

Background

1. The applicant is a national of the People’s Republic of China (“China”), who arrived in Australia on 20 June 2007 on a tourist visa, which ceased on 20 September 2007 (Court Book – “CB” – CB 4.4 and CB 51.6). It appears one of her sons came to Australia to study on or about the same time. She applied for a protection visa on 26 February 2010 (CB 1 to CB 34 and CB 51). The applicant was assisted by a migration agent (CB 30).

2. The applicant’s claims to protection were that her pig farm was forcibly demolished by local Chinese authorities in 2006. She accidently injured a local official when he came to enforce the demolition and she and some employees were arrested. She was assaulted and detained.

3. She claimed to have received inadequate compensation and wrote a letter of complaint to a municipal authority. In April 2007 police came and took her to the police station where she was beaten and threatened.

The Delegate

1. The applicant was interviewed by the Minister’s delegate who formed the view that the applicant’s fear of the Chinese authorities was minor in comparison to her fear of a person to whom she owed money in China (CB 57.4).

2. Ultimately the delegate found that the applicant’s fear was not (Refugee) Convention related (CB 57). The application was therefore refused (CB 47 to CB 58).

The Tribunal

1. The applicant applied to the Tribunal for review of the delegate’s decision on 18 June 2010. She continued to be represented by the same migration agent (CB 59 to CB 62). She was invited to, and ultimately did attend a hearing on 5 August 2010 (CB 65 to CB 67).

2. The Tribunal accepted much of the applicant’s factual account of what she said had occurred in China. Namely that her pig farm was forcibly demolished because of pollution concerns and that she received some compensation ([62] at CB 87).

3. Further, that this caused her some hardship and contributed to her being in debt ([63] at CB 87).

4. However, the Tribunal did not accept that the applicant had any ongoing issue with the authorities since 2007, or that she was of adverse interest to them ([63] at CB 88). Nor that the farm was closed for any Convention reason.

5. The Tribunal rejected her claim that she had sued or would sue the authorities. It noted that in contrast to her other evidence, this evidence was “vague” ([64] at CB 88).

6. In all, the Tribunal was not satisfied that the applicant had suffered serious harm amounting to Convention related persecution as a result of the forcible seizure of her pig farm. Nor that there was a real chance of persecution if she were to return to China ([66] to [67] at CB 89).

7. The Tribunal formed the view that the applicant came to Australia to work and earn money to repay her debts, and not because she feared persecution from the authorities ([68] at CB 89).

8. The Tribunal had serious doubts about the applicant’s claims that she and her son would be harmed because of the debts if they returned to China, but found that even if she were to be harmed it would not be for any Convention related reason ([69] to [70] at CB 90).

9. The Tribunal was not satisfied that she was a person to whom Australia owed protection. The Tribunal therefore affirmed the delegate’s decision.

Before the Court

1. The applicant has put three bare, unparticularised grounds before the Court:

   “1. RRT considered my case unfairly. They doubt my claim without substantive evidence.

   2. Procedural Fairness has been denied by RRT.

   3. RRT did not consider my situation in China. I will be put in jail if I go back.”

2. The applicant appeared in person. She was assisted by an interpreter in the Fuqing language. Ms E Warner Knight appeared for the first respondent.

3. The applicant asked the Court to give her protection. She said that she was divorced, she had three children, and she had financial difficulties.

4. As I sought to explain to the applicant today, this Court has no authority to determine the resolution of the question as to whether the applicant meets the definition of “refugee” as set out in the UN Refugees Convention, and therefore whether Australia owes protection to her.

5. Ultimately this is a question to be properly answered by the Tribunal. What the Court is concerned with is whether the Tribunal fell into any relevant legal error in coming to the conclusion that the applicant did not meet the definition of “refugee”.

6. On what has been put before the Court and with reference to the material in the Court Book, I cannot see that the Tribunal fell into any such relevant, that is, jurisdictional error.

The Grounds

1. In ground one the applicant complains that the Tribunal considered her case “unfairly” and doubted her claim without “substantive evidence”.

2. To a great extent this complaint misconceives the Tribunal’s relevant statutory duty. The effect of s.65 and s.36(2) of the Act is that the Tribunal must reach the requisite level of satisfaction that, in effect, the applicant meets the definition of “refugee” as set out in Article 1A(2) of the Refugees Convention before a protection visa must be granted (SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225).

3. In the current case the Tribunal could not reach this level of satisfaction. While it accepted a large part of the applicant’s factual account of what occurred in China, the Tribunal found that these events would not lead to any adverse interest in her by the Chinese authorities if she were to return, and that the reason that the applicant feared to return to China was not Convention related.

4. These findings, as were those that informed them, were all reasonably open to the Tribunal to make on what was before it. It gave reasons for these findings which revealed an engagement with the merits of the applicant’s claims and which were logically probative of the evidence before it.

5. As Ms Warner Knight submitted, the Tribunal does not need to have “substantive evidence’ upon which to reject the applicant’s claims. It is for the applicant to make out her case. The Tribunal’s obligation is to provide her with the appropriate opportunity to do so. On what is before the Court this occurred.

6. I cannot see in the current circumstances that the Tribunal was under any obligation to investigate the applicant’s claim in such a way as to attempt to make them out (Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123; (2009) 259 ALR 429; (2009) 111 ALD 15; [2009] HCA 39). Nor does the Tribunal need to seek out any rebutting evidence before finding that a claim or assertion is not made out (Selvadurai v Minister for Immigration and Ethnic Affairs and Another [1994] FCA 1105; (1994) 34 ALD 347).

7. Also as Ms Warner Knight submits the Tribunal did not have to uncritically accept the applicant’s claims, nor any part of them (Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437; (1994) 124 ALR 265; (1994) 35 ALD 1, Beaumont J). It is for the applicant to present her evidence such that the Tribunal can be satisfied that the relevant elements of the definition of refugee are made out (Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481; [1997] HCA 22).

8. As to the complaint that the Tribunal acted unfairly, to the extent that this cavils with the outcome then this merely seeks impermissible merits review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; [1996] HCA 6). The Tribunal’s obligation to act fairly is concerned with the procedures adopted, not the outcome (Attorney-General (NSW) v Quin (1990) 170 CLR 1; (1990) 64 ALJR 327; (1990) 33 IR 263; (1990) 93 ALR 1; [1990] HCA 21). That the applicant seeks merits review from this Court is also evident from the little that she put to the Court this morning when given the opportunity to make her submissions.

9. The applicant’s assertion of financial difficulties was clearly a matter that the Tribunal considered, and in fact, accepted. In the circumstances, this Court cannot intervene to overturn the Tribunal’s finding that such difficulties did not reveal any connection with any of the grounds set out in the UN Convention.

10. In all therefore, ground one, and to the extent that what the applicant put to the Court today can be said to be in support of ground one, is not made out.

11. This however is the complaint in ground two. The applicant complains that the Tribunal denied her procedural fairness.

12. The applicant does not give any particularity to her claim. Given s.422B of the Act this complaint must be understood as asserting some breach of the matters set out in Div.4 of Pt.7 of the Act.

13. On what is before the Court no breach of the relevant provisions is evident. The Tribunal invited the applicant to a hearing pursuant to s.425. The invitation complied with all the relevant requirements (s.425A, s.441A and s.441C and reg.4.35D(b) of the Migration Regulations 1994 (Cth)).

14. The only account of the hearing before the Court, the Tribunal’s account, which the applicant has not sought to challenge reveals that the Tribunal put its concerns squarely to the applicant (see in particular [40], [42], [44] and [50]). The issues dispositive of the review were discussed at the hearing (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300; [2006] HCA 63).

15. The Tribunal did not write to the applicant pursuant to s.424A. Any obligation in this regard was however discharged by the Tribunal by use of the facility available through s.424AA (SZMCD v Minister for Immigration & Citizenship & Anor [2009] FCAFC 46; (2009) 174 FCR 415). No error is revealed by the Tribunal putting matters to the applicant at the hearing that were not “information” for the purposes of s.424A (SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190; (2007) 235 ALR 609; (2007) 96 ALD 1 at [17] to [18]).

16. I cannot see any breach of any other provision of Div.4 of Pt.7. Nor for that matter any breach of procedural fairness at general law, if that were to apply. The applicant was given the opportunity to be heard, she knew the case against her, and was given the opportunity to address the Tribunal’s concerns.

17. In all therefore ground two is not made out.

18. Ground three asserts that the Tribunal did not consider her situation in China. In the absence of any particularity whatsoever and in light of what is before the Court this complaint must fail.

19. The Tribunal’s decision record reveals it well understood the applicant’s claims to fear harm on return to China. What is before the Court reveals that the Tribunal did consider the applicant’s claimed circumstances in China and her factual account of what she said had occurred.

20. It did so in some detail. The Tribunal accepted much of this factual account. What the applicant really seeks to challenge is the Tribunal’s consideration that the factual account did not reveal any ongoing interest in her by the authorities and that there was no Convention nexus to the harm feared if she were to return. These conclusions were reasonably open to the Tribunal and, in the circumstances, are not susceptible to review by this Court.

21. Ground three is not made out.

Conclusion

1. For the applicant to succeed today, the Court would need to at least discern jurisdictional error in the Tribunal’s decision. No such error is apparent. The application should be dismissed. It is appropriate that an order for costs be made.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date:  25 February 2011