SZQDE v Minister for Immigration
[2011] FMCA 497
•30 June 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQDE v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 497 |
| MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal – allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal ignored an issue and was biased. |
| Migration Act 1958, ss.91S, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicant: | SZQDE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 683 of 2011 |
| Judgment of: | Cameron FM |
| Hearing date: | 30 June 2011 |
| Date of Last Submission: | 30 June 2011 |
| Delivered at: | Sydney |
| Delivered on: | 30 June 2011 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $2,800.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 683 of 2011
| SZQDE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of China. He claims to fear harm from Chinese authorities because his father was involved in a dispute with government officials. He alleges that police officers harassed his family whilst looking for his father.
The applicant claims to fear persecution in China because of his membership of a particular social group, that group being his father’s family.
On 17 August 2010, after his arrival in Australia on a student visa on 7 April 2007, the applicant lodged an application for a protection visa. This was refused by a delegate of the first respondent (“Minister”) on 30 November 2010. The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-13 of the Tribunal’s decision.
In his application for a protection visa the applicant made the following claims:
a)his parents were persecuted in China and he fears that he will be persecuted if he returns to China;
b)in 2004 his father had a dispute with local government officers and as a result he fled and the applicant’s family lost contact with him. When the local police failed to find his father they came to the family home, arrested his mother and detained her in order to force his father to attend the police station. This caused mental problems for his mother;
c)he and his brother were discriminated against and bullied at school because they worried about their mother whilst she was detained;
d)his mother and brother fled to Australia in 2006 and he was left alone. Local officers and police continued to question him about the whereabouts of his parents and threatened that if they could not find his father they would arrest him;
e)he obtained a student visa in 2007 but he could not work and therefore could not afford his tuition fees and living expenses; and
f)he was scared of persecution and afraid to return to China.
The applicant attended a departmental interview on 11 November 2010 and made the following claims:
a)he lost his passport which he had used for entry into Australia but had had no trouble obtaining a new one from the Chinese Embassy;
b)his father and an older brother are still in China. In 2009 his brother had moved to another province in China because the police had been coming to the family home;
c)his father started a business in 2001 in partnership with the applicant’s cousin and they purchased some machinery. On 25 August 2004 a bomb had exploded at his home destroying a backhoe belonging to his father. At that time he had been in boarding school but when he returned home his parents had been upset;
d)when he returned to school he received a telephone call from his grandmother telling him that the police had arrested his mother because they could not find his father. She said that his father and business partner had hit a government officer and that was why the police were looking for him. His grandmother told him that his father and business partner had been contracted by the government to carry out demolition work in an area for development. The locals in the area had not been happy about the demolition as they felt that they had not been properly compensated and so they bombed the applicant’s father’s equipment. In November 2004 his father had approached a government officer seeking compensation for the damaged equipment and there was a dispute with him during which the applicant’s father had hit the government officer. He then ran away and the police came looking for him;
e)he had been told that his mother was detained for four days and then admitted to hospital for more than a month because she had a mental problem. For two years between his mother’s discharge from hospital and her coming to Australia the police visited their home and threatened her;
f)he had not seen his father since November 2004 and received support from his uncle. When his uncle’s business stopped going as well as it had previously, his uncle had stopped sending money and therefore the applicant was unable to continue with his education. He stopped studying at the end of 2007 and his student visa expired in May 2008. He had waited as long as he did to apply for a protection visa because he had been advised by his friends that he could not apply for one while he was studying;
g)his aunt told him that the police continued to check his home in China. Although nothing ever happened to him he was afraid that if he went back to China he would be arrested and detained as his mother had been; and
h)his mother travelled to China in 2008.
The applicant’s younger brother also made an application to the Tribunal for review of a departmental decision to refuse his application for a protection visa. On 20 January 2011 the Tribunal asked the representative of the applicant and his brother if they would agree to a combined hearing as the brother’s claims were in substance the same as those of the applicant. The representative advised the Tribunal that the brothers agreed to a combined hearing.
The applicant and his brother appeared at a Tribunal hearing on 21 February 2011 and agreed that the evidence given by each of them should be taken into account in relation to the other’s application.
The applicant made the following additional claims:
a)in August 2006 his cousin, his father’s business partner, had returned to their home town to visit his girlfriend after being away for more than a year. A few days after his return he was stabbed to death and the murderer has not been found;
b)his maternal aunt who lives next door to his family home had told him that after his mother was released from hospital the police had come to his home about two or three times a week. They had been looking for his father and had threatened his mother but he had never witnessed this as he was in boarding school;
c)after his father’s incident with the authorities other children at school did not want to play with him and they looked at him in a strange way;
d)he did not have direct contact with his father in China but was in contact with his brother in China using the internet. He could not contact his father using the internet because his father did not know how to use it. His father moves around because he is on the run;
e)his mother returned to China in February 2008 and stayed there for more than a month. He did not know of any difficulty she might have had entering or departing China. His grandmother had been critically ill and his mother had wanted to see her before she died. His mother had not gone to their home town;
f)he stopped studying in April or May 2008. He had not approached the department after he dropped out of school because he had not known what to do;
g)the police had never questioned him because he was in boarding school and not at home. Once when he was at home with his grandmother and brother, after his mother had left for Australia, the police knocked on the door and asked him in an unkind way where his mother was. They had said that they knew his mother was overseas and asked where his father was;
h)he believes that he is “under persecution of” the Chinese government. His whole family was scattered and no longer had a home. He was worried that if he returned to China and the police could not locate his father they would take him to prison. He had previously had no problems with the police because he was young but as he was older he feared the police might take him away; and
i)he did not know of any problems his older brother in China had experienced with the police.
The applicant’s younger brother also gave evidence at the Tribunal hearing. He confirmed that the applicant had been in boarding school in China at the time of the incident in 2004 and until he came to Australia. He said that the applicant had not told him about being bullied or discriminated against at school. He further said that the applicant had not come to Australia in September 2006 with their mother because she had said that it would be difficult to obtain visas for the two of them at the same time.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal accepted that the applicant’s father hit a government officer during an altercation with local government officers and that the police were interested to interview and possibly charge the applicant’s father over the incident. It also accepted that the police made inquiries about the applicant’s father’s whereabouts. However, it did not accept the applicant’s evidence that the police had asked him about his parents’ whereabouts, noting that he had originally said that he had experienced no difficulties with the police as he was at boarding school, changing his statement when an inconsistency between his oral evidence and his written statement was put to him. The Tribunal formed the view that the applicant manufactured that evidence to explain his own inconsistency;
b)the Tribunal concluded that the evidence of the applicant’s younger brother that their cousin’s murder might have been related to the events in 2004 was speculative as there was no other persuasive evidence that the cousin’s death was connected with those events;
c)the Tribunal found that there was no evidence that the applicant’s father had been targeted for a Convention reason or that, if he was still being sought by the police, he was being targeted for a Convention reason. It instead found that the police were interested in the applicant’s father because he was involved in a physical altercation with local government officers in November 2004 and did not agree with the applicant’s conclusion that wanting compensation and complaining about it might have been construed as the father having a political opinion. The Tribunal found that there was no evidence that the applicant’s father or any member of his family had been attributed with political opinions of any kind such that the applicant’s father would fear harm from the authorities for reasons of his political opinion. The Tribunal thus disregarded the applicant’s father’s fear as it was not for a Convention reason and consequently disregarded any fear that the applicant had based on his father’s fear. By reason of s.91S of the Act the Tribunal found that the applicant did not have a well-founded fear of persecution by reason of his membership of the particular social group of his father’s family;
d)the Tribunal found that the applicant’s brother in China faced similar circumstances as the applicant, given his age, non-involvement in the events of 2004 and relationship to the father. It found that the applicant’s brother in China had not had any difficulties with the police, apart from receiving visits from the police enquiring about his father’s whereabouts, which the Tribunal found did not constitute serious harm. The Tribunal was satisfied that as the applicant’s circumstances were similar to those of his older brother in China, he would have no difficulties with the police were he to return to China in the foreseeable future. The Tribunal also found that the applicant’s mother had not experienced any difficulties during her return visit to China in 2008 and noted that the applicant’s aunt lives next door to the family home and that there was no evidence that she had had any difficulties with the authorities;
e)the Tribunal found that there was nothing to suggest that the applicant was of interest to police in China. It noted that the applicant had had no personal difficulties with the police, that he was able to obtain a passport in China and a replacement travel document from the Consulate General in Sydney, that he left China with no difficulty and that he had internet contact with his brother. After referring to some country information the Tribunal concluded that it was not satisfied that the applicant, or his brother in China, was of interest to the authorities in China;
f)the Tribunal noted that there was no independent information about the applicant’s mother’s detention in November 2004, the applicant being aware of it only through hearsay. Even accepting that the mother had been detained, the Tribunal found that it had been over six years since she was arrested, that it was a one-off event in an attempt to find the applicant’s father and that no other family member had been detained since. The Tribunal found that this police action had not been ongoing and did not accept that the mother’s detention was indicative of the treatment that the applicant could expect if he returned to China in the foreseeable future. The Tribunal found that there was no real chance that the applicant would be persecuted if he returned to China in the foreseeable future and was not satisfied that his fear was well founded; and
g)although the Tribunal accepted that it might have been unpleasant for the applicant to be excluded from play at school and to be looked at strangely as a result of his father’s difficulties with the authorities, it did not consider this to be serious harm. It found that as the applicant was twenty two years old by the time of the Tribunal’s review such treatment at school would not arise again if he returned to China.
Proceedings in this Court
The grounds of the application commencing these proceedings were pleaded as follows:
1.The refugee Review Tribunal failed to exercise its jurisdiction.
2.The Refugee Review Tribunal failed to afford the applicant natural justice as it did not consider the claim he was making.
The essence of the applicant’s claim as articulated in his application initiating these proceedings is that the Tribunal did not consider the claim that he was making. This allegation was not particularised. However, in his oral submissions at the hearing in these proceedings the applicant said that the Tribunal had ignored a very important point in that it had not believed his allegations as to what had happened in China. However, that is not correct. The Tribunal accepted:
a)that the applicant’s father was involved in an altercation with local government officers and that he hit an officer during the altercation;
b)that the police were interested to interview and possibly charge the applicant’s father over the incident;
c)that the police made inquiries about the applicant’s father’s whereabouts;
d)that the applicant’s brother who lives and works in China had done so since the incident in November 2004;
e)that the applicant’s father lives and works in China and has done so since November 2004;
f)that the applicant’s mother returned to China in February 2008 where she stayed for more than a month; and
g)the possibility that the applicant’s mother had been detained in November 2004, in so far as it did not reject the applicant’s evidence to this effect;
However, accepting or at least not rejecting these facts did not transform the applicant’s father’s fear of the Chinese authorities because of his violence to an official into fear for a Convention reason.
As noted earlier, if the applicant’s father’s fear was not for a Convention reason then the operation of s.91S of the Act is such that any fear which the applicant claims to have by reason that he is his father’s son, that is to say a member of a particular social group made up of the father’s family, is not a fear which attracts Australia’s protection obligations.
Further, notwithstanding that the Tribunal did accept that the applicant’s father had been pursued by the Chinese authorities, the Tribunal looked at the circumstances of the applicant’s family in China more broadly and observed that, other than the possible fact that the applicant’s mother had been detained on one occasion over six years earlier, no adverse consequences had befallen any of his family members, including the applicant, as a result of the conduct of the applicant’s father. In this regard the Tribunal was not persuaded that the alleged murder of the applicant’s cousin was related to the father’s actions. The Tribunal also noted that the applicant had been able to obtain and then replace his passport and had left China without difficulty.
Consequently, the Tribunal concluded that the applicant had no well-founded fear of Convention-related persecution for reasons distinct from the claim related to his membership of the particular social group of his father’s family which it had in any event rejected. These conclusions were reasonably open to the Tribunal on the evidence and do not disclose error.
The applicant also alleged in his oral submissions that as the Tribunal did not believe him it was biased. However, contrary to this assertion the Tribunal did accept the large part of what the applicant had said to it, and when it did not, it did so for reasons which were logical and reasonable. As a result, on a factual basis the allegation of bias cannot be made out. In any event, an allegation of bias is a serious thing requiring a clear allegation and clear evidence. The only evidence before the Court of relevance to this allegation is the Tribunal’s decision record and nothing in the Tribunal’s account of the conduct of its hearing or in its reasoning suggests a basis to conclude that the Tribunal’s decision was tainted by bias, whether actual or apprehended.
Conclusion
For these reasons, I conclude that the Tribunal’s decision is not affected by jurisdictional error.
Consequently, the application will be dismissed.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Cameron FM
Date: 21 July 2011
0
1
1