SZOZZ v Minister for Immigration - [2012] FMCA 171

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOZZ v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 171

MIGRATION – Review of decision of Refugee Review Tribunal – persecution – grounds of feared domestic violence and religion – whether jurisdictional error – merits review – delay in applying for protection visa.

Minister of Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 NARE v Minister for Immigration & Anor [2003] FCA 554
Minister for Immigration v SZONJ & Anor [2011] 194 FCR 1
Selavadurai v Minister for Immigration & Anor [1994] 34 ALD 347 Thuraisamy v Minister for Immigration & Anor [1999] FCA 1632
Applicant MZKAO v Minister for Immigration & Anor [2003] FCA 1484

Applicant:

SZOZZ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:	REFUGEE REVIEW TRIBUNAL
File Number:	SYG 299 of 2011

Judgment of:

Raphael FM

Hearing date:

2 March 2012

Date of Last Submission:

2 March 2012

Delivered at:

Sydney

Delivered on:

2 March 2012

REPRESENTATION

For the Applicant:

In person

Solicitors for the Respondent:

DLA Piper Australia

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $4,800.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 299 of 2011

SZOZZ

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 12 March 2008 accompanying her son as the holder of a guardian visa subclass 580. This visa ceased on 31 December 2009. On the same day the applicant applied for a protection visa. On 13 March 2010 a delegate of the Minister refused to grant a protection visa and on 19 April 2010 the applicant applied for review of that decision by the Refugee Review Tribunal. The applicant attended a short first hearing of the Tribunal on 10 June 2010 and a lengthier hearing on 24 June 2010. On 25 January 2011 the Tribunal determined to affirm the decision under review and handed that decision down on 27 January.
The applicant put forward two claims which she said formed the basis of Australia’s obligations to protect her pursuant to the Refugee Convention. The first was that prior to coming to Australia she had suffered significant domestic violence from her husband who had become a diabetic, which condition she believed caused him to act violently towards her. The applicant told the Tribunal that there were a series of incidents where her husband had beaten her and threatened her.
The second basis for the applicant’s claims was that she was a Christian who had been attending church in Fujian Province since about the age of seven. She told the Tribunal that although she had personally not been the subject of any persecution for her attendance of underground church meetings she had seen many others who have been persecuted, including being tortured and arrested. The applicant believed that if she returned to China she would also suffer this fate.
The Tribunal questioned the applicant upon her story. She told the Tribunal that since coming to Australia she had attended church although not as regularly as she attended it in China. She told the Tribunal that she had not been baptised. A letter provided on her behalf by the pastor of her church indicated that she had requested to be baptised during the course of 2010.
The Tribunal came to some positive conclusions concerning the applicant’s story. In short, it accepted that she probably had been a victim of family violence from her husband. It also accepted that she had attended small family gatherings in China and received some Christian teachings at those gatherings and gained comfort and peace there. The Tribunal accepted that the applicant had not been attending Christian activities in Australia for the purpose of strengthening her claim to be a refugee. It was satisfied that she had not been detained or arrested because of her religious beliefs or that she had ever been prevented from attending family gatherings in China.
It accepted that if she returned to China she may continue to attend the small family gatherings, but concluded on the basis of independent country information, which it discussed with the applicant regarding the attitude towards religious activity in Fuqing, that there was not a real chance that she would suffer persecution if she attended those gatherings. The Tribunal did not accept that the house church that she attended was monitored or restricted or that the priest was caught or people were taken.
The Tribunal concluded that the applicant’s adherence to Christianity did not come from a profound knowledge of the faith. Her expression of what Christianity meant to her was, in the words of the Tribunal, “simplistic”. The Tribunal disregarded a letter from the applicant’s sister, which made claims about her activities in the church in China which she, herself, did not make. The Tribunal took into account the fact that the applicant did not apply for a protection visa for some 21 months after she arrived in Australia as indicating that she had no well-founded fear of persecution should she return. The applicant had told the Tribunal that she did not know about protection visas and only came to understand about them later. The Tribunal indicated that it was satisfied that if she had been persecuted for reasons of her religion she would have made those inquiries sooner and lodged her application for a protection visa earlier than she did.
The Tribunal considered the claims in relation to domestic violence and discussed with her whether her husband’s domestic violence was motivated by a Convention reason and satisfied itself from her responses that it did not. The Tribunal considered whether or not it could be said that there was a failure of state protection for the applicant in respect of that violence and if so whether the failure was for a Convention reason. The Tribunal concluded from the independent country information that while steps were being taken to deal with domestic violence and that in Fuzhou, the capital of Fujian, there was a special circuit court to deal with women’s rights issues, including domestic violence there was no recent information regarding the effectiveness of these courts. It also concluded that the state had not withheld protection from the applicant from her husband for a Convention reason. It noted that, in fact, the applicant had not gone to the police about her husband’s violence towards her. The Tribunal made a finding that the applicant did not have a well-founded fear of persecution for reasons of her membership of a particular social group. Victims of domestic violence could not form a particular social group because their association was only defined by the persecution they suffered.
On 23 February 2011 the applicant filed an application in this court seeking review of the decision of the Tribunal. There was only one ground of that application. It was that:
“1.The decision made by the Refugee Review Tribunal is not fair.”
At the commencement of these proceedings the applicant told me that she did not understand what a jurisdictional error meant or what she would have to explain to the court. I read to the applicant an extract from the Minister of Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 where McHugh, Gummow and Hayne JJ at p.351 said:
“[82]It is necessary, however, to understand what is meant by “jurisdictional error” under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia,⁵⁰ if an administrative tribunal (like the tribunal):
“… falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.”
“Jurisdictional error” can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive.⁵¹ Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law.⁵²
[83]No doubt full weight must be given to s 476(3) and the limitations which it prescribes in the construction of improper exercise of power in para (d) of s 476(1). Equally, however, it is important to recognise that these limitations, unlike those prescribed by s 476(2), are limitations on only one of the grounds specified in s 476(1). All this being so, there is no reason to give either para (b) or para (c) of s 476(1) some meaning narrower than the meaning conveyed by the ordinary usage of the words of each of those paragraphs. In particular, it is important to recognise that, if the tribunal identifies a wrong issue, asks a wrong question, ignores relevant material or relies on irrelevant material, it “exceeds its authority or powers”. If that is so, the person who purported to make the decision “did not have jurisdiction” to make the decision he or she made, and the decision “was not authorised” by the Act.”
I also read to her the views expressed by Allsop J in NARE v Minister for Immigration & Anor [2003] FCA 554 at [10]:
“What the applicant may well not appreciate, not being a lawyer, is that the process and purpose of review to this Court does not, and cannot, involve simple re-finding of facts found by the Tribunal. Rather the review is, broadly speaking, to ensure that the Tribunal has made the decision lawfully - for instance asking itself the right question, affording procedural fairness, dealing with all matters which the Migration Act 1958 (Cth) (the "Act") says must be dealt with, not dealing with matters extraneous to its task and correctly understanding the law to apply. It is not the Court's job to review the factual findings of the Tribunal unless their quality (or lack thereof) is such as to betray a failure to undertake properly the required task. This is why it was not open to the primary judge to receive fresh evidence going to factual matters decided by the Tribunal in an attempt to demonstrate factual error in those conclusions by the Tribunal.”
Although Allsop J’s statement is a model of clarity it is easy to see how difficult it might be to understand it if one was a foreign citizen without too much education.
The applicant clearly did not appreciate that I was unable to review the Tribunal’s findings of fact unless the quality of those findings were such as to betray a failure to undertake properly the required task. She had said to me at the commencement of the proceedings that she had suffered from domestic violence and she did not understand why she could not succeed. I explained to her in my own words that it was either necessary for the domestic violence to have been inflicted upon her for a Convention reason or for the state to refuse to interfere and assist her for a Convention reason.
I explained to her that the Tribunal had found that this was not the case. I note with some satisfaction that the views which I expressed to her were echoed by a Full Bench of the Federal Court per Rares and Perram JJ in the Minister for Immigration v SZONJ & Anor [2011] 194 FCR 1, in particular, at [25 and 33].
The applicant told me that she had seen many people being tortured as a result of attending the underground churches. She told me that she herself had not been detained but she believed that she would if she returned to China. She told me that she had found freedom in Australia and that she felt that the Australian Government should be sympathetic to her. It is, perhaps, unfortunate for this particular applicant that she had not received some better advice before she came to Australia. She is apparently a skilled hairdresser. It is my understanding that at the time she came visas were available for persons in that employment category although I gather they are not any more.
I would also comment that although the Tribunal is perfectly entitled to take the view that it did about the applicant’s delay in applying for a protection visa: Selavadurai v Minister for Immigration & Anor [1994] 34 ALD 347; Thuraisamy v Minister for Immigration & Anor [1999] FCA 1632; Applicant MZKAO v Minister for Immigration & Anor [2003] FCA 1484, other deciders of fact might be more charitable when dealing with a person who has a substantive visa as the applicant did and only applies upon the expiration of that visa. One can readily understand a reluctance to put oneself before state officials by people used to a totalitarian regime.
For the reasons given above it is clear that I am unable to find that the Tribunal fell into jurisdictional error in the manner in which it reached its decision. I dismiss the application and I order that the Applicant pay the First Respondent’s costs assessed in the sum of $4,800.00.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Raphael FM

Date: 8 March 2012