SZOUW v Minister for Immigration - [2011] FMCA 161

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOUW v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 161

MIGRATION – Review of RRT decision – applicant a citizen of China – where Tribunal accepted applicant’s claims but did not consider that applicant would face serious harm if returned to China – whether Tribunal decision illogical or irrational – whether applicant given sufficient time to provide further information – where no evidence that any such request was made.

Migration Act 1958 (Cth), s.91R(1)(b)

Minister for Immigration v SZMDS [2010] HCA 16
Applicant S276 of 2002 v Minister for Immigration [2004] FCA 330

Applicant:

SZOUW

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2594 of 2010

Judgment of:

Raphael FM

Hearing date:

7 March 2011

Date of Last Submission:

7 March 2011

Delivered at:

Sydney

Delivered on:

7 March 2011

REPRESENTATION

For the Applicant:

In person

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $4,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2594 of 2010

SZOUW

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of China who arrived in Australia on 29 March 2008 on a student guardian visa, which expired on 31 July 2009. On 23 November 2009, she applied for a protection (Class XA) visa. On 30 June 2010 a delegate of the Minister refused to grant a Protection visa and the applicant applied for review of that decision from the Refugee Review Tribunal. The applicant attended a hearing before the Tribunal and provided the Tribunal certain information. On 29 October 2010 the Tribunal determined to affirm the decision under review.
In support of her claim for protection the applicant told that she was the mother of three children but the third child was born in breach of the two child limit placed on rural families and she was required to pay a substantial fine. She was also required to undergo forcible sterilisation, which she told me at the hearing involved some post-surgical problems. But this last child was born in August 1997 and the applicant did not make allegations of any continuing problems arising out of the breach of the two child policy even though in September 1997 she organised five people to demonstrate in front of the birth control office and as a result was detained for 50 hours by the local authorities. She told the Tribunal that her husband had later paid the fine which had been imposed upon them.
Another matter raised by the applicant was the fact that she and her family went to Guandong where her husband developed a brick factory. Some time later the local authority determined to resume the land upon which the brick factory was operating and did not provide them with appropriate compensation. Her husband protested against this failure and as a result he was beaten.
In 2005 the applicant and her husband moved back from Guandong to Fuqing. She opened a mobile phone shop. Whilst business was not good at first, it begin to pick up. She told that in May or June 2006 somebody bought a mobile phone from her and a few months later in October 2006 he came back and tried to return it. The applicant told that this customer was accompanied by a man from the tax office who had previously come to her demanding money for tax. The applicant refused to take back the mobile phone or refund the customer the purchase price. An argument ensued and the applicant was pushed around. There was an argument between the man and the applicant, with the applicant threatening to go the police, which she did. But this seems to have resulted in pressure being placed upon her by the police. She was arrested and detained for two days and required to pay a fine of RMB 2,000.00. This incident occurred in 2006. It was not repeated and in 2007 the applicant sold her shop for a profit.
The applicant told the Tribunal that she was having matrimonial difficulties and confirmed that if she returned to China she would have problems. She later told the Tribunal that the man who had bought the phone and wanted to return it was a member of the triads.
The Tribunal accepted the claims made by the applicant which have been reproduced in these reasons. In regard to the forced sterilisation and the detention following the protest, the Tribunal took the view that although what occurred to her would constitute serious harm for the purposes of s.91R(1)(b) of the Migration Act1958 (Cth) (the “Act”) and that it was her political opinion that was the essential and significant reason for the harm she suffered as a result of the demonstration; because she had not claimed to have been involved in or to have any intention of being involved in any further protest activities and had lived at the same addresses in Guandong and Fuqing for some years after the birth there was no real chance that the applicant would face serious harm as a result of the protest that she organised in 1997.
The Tribunal accepted the applicant’s story about her husband’s brick factory and appreciated that the experience had caused her financial loss and severe emotional distress. However, it notes that after 2002 when the incident took place she and her family had moved back to Fuqing where she had opened the mobile phone shop and her husband had later found a job in Hangzhou. The Tribunal came to the conclusion that there was no real chance that the applicant would face serious harm as a result of the closure of her husband’s brick factory in Guangzhou or her husband’s objection to the manner in which he was treated if she were to return to China now or in the reasonably foreseeable future.
The Tribunal also accepted that the applicant was subjected to petty extortion demands by a corrupt local official when she returned to Fuqing and opened up her mobile phone store. It accepted that when the police became involved, they took the side of the official and that she was fined RMB 2,000.00 which she had to provide in compensation to the customer. But it concluded:
“The applicant did not claim, and there was no evidence to suggest, that her dispute with the customer was for a Convention reason. Again it was clear from the evidence that her customer, in collaboration with corrupt local officials, was intent on taking financial advantage of the applicant. The police had also acted corruptly, cruelly and unjustly in siding with the customer and his cohorts and forcing the applicant to pay financial compensation after detaining her for two days. There was no apparent link between the police actions and any of the Convention reasons.” [66] [CB 125]
The Tribunal noted that even though the applicant said that she feared harm from her former customer and corrupt local officials should she return to China that she had not claimed to have been harmed, harassed or approached by anyone during the 10 months or so that she had lived in Hangzhou or in the short period of time that she had returned to her house in Fuqing in preparation for her departure from China. The applicant made a late submission concerning an assault upon her husband but the Tribunal did not accept this as having been linked to her. The Tribunal concluded:
“The Tribunal has considered and appreciates the applicant’s concerns about her future should her husband decide to initiate divorce proceedings. These concerns, however, relate to the applicant’s private life. Any financial uncertainty, loss or psychological burden that that may entail, the applicant’s legal separation from her husband cannot be said to be for a Convention reason. The Tribunal finds that the applicant’s concerns in this regard are not convention related.
Overall, on the basis of the evidence before it, the Tribunal is not satisfied that the applicant has a well founded fear of persecution for a Convention reason.” [68 – 69] [CB 126]
On 30 November 2010 the applicant applied for a review of that decision from this Court. She gave three grounds of application. The first was:
“The RRT decision was affected by jurisdictional error as it made finding on illogical reasons.”
As Ms Warner Knight points out in her written submissions, the law on illogicality and irrationality has recently been explained by the High Court in Minister for Immigration v SZMDS [2010] HCA 16 in which Crennan and Bell JJ said at [130]:
“In the context of the Tribunal's decision here, ‘illogicality’ or ‘irrationality’ sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under section 65, is one at which no rational or logical decision maker could arrive on the same evidence … Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.”
The applicant does not assist the Court by particularising the illogicality that led the Tribunal to the findings which it made. The Court is reluctant to guess, but possibly it could be said that it was illogical for the Tribunal to accept all of the applicant’s evidence and yet find that she was not a refugee. That is probably what the “friend” of the applicant, who no doubt wrote the application, was thinking. But if one reads the decision record carefully one will see that the Tribunal provides perfectly logical reasons for each aspect of the decision that it comes to. Those have been set out in these reasons and do not need repeating. I am unable to accept, in the absence of any further particularisation which was not forthcoming from the applicant in her oral submissions to me, that the Tribunal made the type of illogical decision that would have been found to have fallen within the boundaries set by the High Court in SZMDS (supra).
The second ground was that:
“RRT failed to give me sufficient time to provide other information.”
There is no indication in the decision record that the applicant ever asked for more time or ever suggested to the Tribunal that she had further information that would be of assistance to it in coming to its decision. The applicant did not say anything about this to me in her oral submissions and I can only assume that it was a figment of her “friend’s” imagination.
The final ground was:
“RRT did not give sufficient consideration of my application and rejected my case no reasons [sic].”
It should be clear from a reading of this decision and certainly from a reading of the Tribunal’s decision record that it gave very careful consideration to the applicant’s claims and indeed accepted them. What it did not accept was that the unfortunate events that had occurred to her constituted grounds for providing protection. That is a decision for the Tribunal alone. As Jacobson J said in Applicant S276 of 2002 v Minister for Immigration [2004] FCA 330 at [43]:
“The evidence was not all one way. It was a factual matter on which reasonable minds could differ as to the inference to be drawn but there was probative material and a logical basis for the view which the RRT reached. To describe it as illogical would be merely to express emphatic disagreement with the reasoning. That, of course, is not a ground for review.”
The applicant came before me today with the aid of an interpreter. She told me she felt that the decision was unfair, that so many things had happened to her she dared not go back to China. She told me that she had three children all of whom were in trouble and that she would be in trouble if she returned home. She would be in trouble because her husband had problems and because she was separated from him. She felt he would ask for a divorce should she return. She asked me to sympathise with her circumstances.
As sympathetic as the Court may be, it is not within its power to reverse a decision of the Tribunal, to provide the applicant with the visa or to allow her to remain for some other reason within this country. This Court is empowered only to look at the manner in which the Tribunal reached its decision. If it concludes that it did this without falling into jurisdictional error, then it is obliged to dismiss the application. This is what has occurred. The application is dismissed and the applicant must pay the first respondent’s costs which I assess in the sum of $4,000.00.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Raphael FM

Date: 16 March 2011