SZQDF v Minister for Immigration
[2011] FMCA 511
•5 July 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQDF v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 511 |
| 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 did not consider the applicant’s claim and did not believe him. |
| Migration Act 1958, ss.91R, 91S, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicant: | SZQDF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 684 of 2011 |
| Judgment of: | Cameron FM |
| Hearing date: | 5 July 2011 |
| Date of Last Submission: | 5 July 2011 |
| Delivered at: | Sydney |
| Delivered on: | 5 July 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 $3,200.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 684 of 2011
| SZQDF |
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 that the Chinese authorities harassed his family because his father was involved in a dispute with local government officials and then fled.
The applicant claims to fear harm from the police in China who might still be looking for his father. He 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 24 September 2006 on a student visa, 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 cannot rehear the applicant’s application for a visa. Its 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 4-14 of the Tribunal’s decision.
The applicant made the following claims in a statement attached to his application for a protection visa:
a)his parents suffered severe persecution from the Chinese Government. To avoid persecution by the Chinese Government he and his mother came to Australia;
b)the Communist Party did not respect human rights, persecution of civilians was common and as a result he had lost hope and confidence about living in China;
c)his father signed a contract with the government for a demolition project but was then involved in disputes with local officers which forced him to flee to another place;
d)after failing to arrest his father, the local officers came to his house, searched it and arrested his mother instead, which resulted in mental problems for his mother. He and his brothers worried and his grandmother became sick;
e)he and his brother had a difficult time at school after classmates learnt of the family trouble with the local government. They feared going home as they were afraid that the officials would come to their home and harass them;
f)in 2006, his father’s partner, who was also the applicant’s cousin, was beaten to death by unknown people. After that, his whole family lived in fear;
g)he came to Australia to study but he had stopped studying because he could not afford his tuition and living costs; and
h)he is scared of returning to China because he believes that he will be persecuted by the local government.
The applicant attended a departmental interview on 11 November 2010 and made the following additional claims:
a)he had not approached the department earlier than he had because he had not known that as a holder of a student visa he could apply for protection;
b)he is afraid that if he returns to China the things which had previously happened to his family would happen to him. If he returns to China and the authorities cannot find his father, they will take him away;
c)his father and cousin had worked on a government project to demolish houses in a certain area. The residents in that area had not been happy about the demolition because the compensation was not enough and they had not allowed his father and cousin to complete the job. His father had stopped working but the government forced him to continue and told him that if anything happened they would compensate him. His mother had told him that the government guaranteed his father that he could continue with the job;
d)his father’s equipment, the family’s only source of income, had been destroyed. His father and business partner went to the government many times over the destroyed equipment but they could not get a response. In November 2004, they went again but this time had a dispute with the government officers which developed into a fight. The government officers called the police and as a result his father and cousin ran away. The government officials called the police because they wanted to scare his father and cousin away;
e)his grandmother had told him that on the day of the incident three police officers had come to his home asking for his father, who was not there. They took his mother away and detained her for about four days. His grandmother had received a telephone call from the detention centre asking her to collect the applicant’s mother and take her to a hospital as the mother had mental problems;
f)between 2004 and when she came to Australia his mother had some mental problems and took medication. The police came back frequently looking for his father but she was not arrested again;
g)his mother returned to China in 2008 and stayed in Fuqing city. She did not experience any problems during her visit;
h)the police had not done anything to him because he had been young;
i)he had not had any problems departing China because “the procedures were handled by his uncle”; and
j)about a year after the incident in 2004 his cousin thought that there would be no problem returning to their home town to look for his girlfriend. His cousin was stabbed to death a few days after he arrived and they did not know who had stabbed him.
On 22 December 2010 the applicant made an application for review to the Tribunal. The applicant had a brother in Australia who also made an application to the Tribunal for review of a departmental decision to refuse his application for a protection visa and his claims were in substance the same as those of the applicant. On 20 January 2011 the Tribunal asked the representative of the applicant and his brother if they would agree to a combined hearing and the representative advised that they agreed.
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.
Before the Tribunal the applicant made the following additional claims:
a)his mother and grandmother had told him that after his mother had been released from hospital, the police visited their home regularly, every few weeks, and searched the house for his father. He had never observed the visits himself because he was at school when they occurred;
b)after his father had difficulties with the authorities, people at school looked down on him and nobody wanted to play with him;
c)he has occasional internet contact with his brother who remains in China and telephone contact with his father through his mother. The authorities would not monitor his father because the difficulties he had had with the authorities had taken place in a small place in China, not in a city; and
d)his mother travelled to China in 2008 with the help of her brother who “sneaked her in” so no one knew and she had stayed there for almost two months. His mother had gone to China because his grandmother had been critically ill and died while his mother was there. His mother might have hidden in a hospital but he was not sure.
The applicant’s brother gave evidence at the Tribunal hearing. He said that the applicant had not attended boarding school in China and had told him that he had been isolated at school. The applicant’s brother indicated that he did not know of any troubles between the applicant and the police.
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 concluded that the evidence of the applicant that his 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 to those events;
b)the Tribunal 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. It 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, it was for a Convention reason. Rather, it found that the police were interested in the applicant’s father because he had been involved in a physical altercation with local government officers in November 2004. 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. As a consequence, as it was not for a Convention reason, the Tribunal disregarded the applicant’s father’s fear as well as any fear which the applicant had based on his father’s fear. Referring to 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”;
c)the Tribunal also found that the applicant’s brother in China faced circumstances similar to those of the applicant given his age, non-involvement in the events in 2004 and his relationship to the father. It found that the applicant’s brother in China had not had difficulties with the police, apart from receiving visits from the police inquiring about his father’s whereabouts, and further found that such visits did not constitute serious harm within the meaning of s.91R(1)(b) and (2) of the Act. The Tribunal was satisfied that as the applicant’s circumstances were similar to those of his 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 visit to China in 2008 and noted that the applicant’s aunt lived next door to the family home and that there was no evidence that she had had any difficulties with the authorities;
d)the Tribunal noted that the applicant had not personally had difficulties with the police, that he had been able to obtain a passport in China and leave China with no difficulty and that he had internet contact with his brother. The Tribunal concluded that there was nothing to suggest the applicant was of interest to the police in China. It was not satisfied that the applicant, or his brother in China, was of interest to the authorities in China;
e)the Tribunal noted that it had no independent information about the applicant’s mother’s detention in November 2004. It further noted that the applicant was only aware of it through hearsay. Even accepting that the mother had been detained, the Tribunal found that it had been over six years since she was arrested and described it as a one off event undertaken in an attempt to find the applicant’s father. It further commented that there was no evidence that other family members had been detained since then. The Tribunal found:
that this particular police action has not been ongoing as there is no evidence of further arrests so the Tribunal does not accept that it is indicative of the treatment the applicant may expect were he to return to China in the foreseeable future. The Tribunal finds there is no real chance the applicant will be persecuted if he returns to China in the foreseeable future and it is not satisfied that his fear is well-founded.
f)although the Tribunal accepted that it might have been unpleasant for the applicant to have been looked down on and excluded at school 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 years old at the time of the Tribunal’s hearing, such treatment would not arise again if he returned to China; and
g)the Tribunal noted that in his protection visa application the applicant had claimed that the Chinese Communist Party does not respect human rights, that persecutions are common and that this led to him losing hope and confidence about living in China. The Tribunal did not accept that this was a genuine fear or that it was well-founded as the applicant did not raise it again when given an opportunity at the Tribunal hearing to provide further information about his claims.
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 applicant also alleged in oral submissions that the Tribunal had not believed him.
Neither of the allegations in the application was particularised and as a result they lack meaningful content. In fact the first allegation is so broad as to really be no more than a form of emphasis of the second allegation.
In relation to the second allegation, the applicant has not identified what claims made by him were not considered by the Tribunal. Nor has he suggested that the Tribunal’s summary of the claims which were made in his protection visa application, in his interview with the Minister’s department or in his review proceedings, was inaccurate or deficient in any way. There is no reason to suspect that that summary is anything other than accurate and complete.
The Tribunal’s summary indicates that the claim made by the applicant was that he was afraid, were he to return to China, that he would suffer harm as a result of the dispute and physical altercation involving his father and officials of the local government. The harm was described as harassment, although links to the murder of the applicant’s cousin were also suggested. He said that he believed that he would be persecuted by the local government. Part of his claim was that he, like his mother, would be arrested and detained by the police as part of their inquiries to locate his father. He also said that he could not stay in his home town, which would be difficult for him given China’s system of household registration.
In one form or another, and in some respects by implication, each of these claims was addressed by the Tribunal. It accepted that the applicant’s father had had a physical confrontation with local officials, that he had fled, that the police had come looking for him and that on one occasion, a number of years ago, they had detained the applicant’s mother for a period. That is to say the Tribunal accepted the factual underpinnings of the applicant’s claim. However, it did not draw from those events the conclusion sought by the applicant, namely that he feared persecution as a consequence of them. The Tribunal understood the fears which the applicant claimed to have but dismissed them as not well-founded and concluded that, in any event, they were not Convention-related.
The applicant’s oral submissions that the Tribunal had not believed him reflect the Tribunal’s failure to be satisfied that the applicant would be persecuted in China as he claims to fear. However, this is a challenge to the Tribunal’s factual findings and to its conclusion on the merits of the application. Absent exceptional circumstances, which are not present in this case, the Court cannot review such matters. The Court’s role is to determine whether the Tribunal has observed the law in the conduct and determination of its review not whether a different decision on the facts might have been preferable.
Conclusion
The matters which the applicant has raised in his application and in his oral submissions to the Court have not demonstrated a basis upon which the Tribunal’s decision should be set aside.
Consequently, the application will be dismissed.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Cameron FM
Date: 19 July 2011
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