SZQIP v Minister for Immigration
[2011] FMCA 962
•6 December 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQIP v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 962 |
| MIGRATION – Review of Refugee Review Tribunal Decision – Refusal of a Protection (class XA) visa – no reviewable error – application dismissed. The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym SZQIP. |
| Migration Act 1958 (Cth), ss.36(2)(a), 91X, 414, 424A, 425(1), 425A(1) Migration Regulations 1994 (Cth) |
| Abebe v Commonwealth of Australia (1999) 162 ALR 1 Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 SZJRV v Minister for Immigration & Citizenship [2007] FMCA 1880 |
| Applicant: | SZQIP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1216 of 2011 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 24 November 2011 |
| Delivered at: | Sydney |
| Delivered on: | 6 December 2011 |
REPRESENTATION
| The Applicant: | The Applicant appeared in person with the assistance of an interpreter in the Mandarin and English languages |
| Solicitors for the Respondents: | Ms J. Reardon of Minter Ellison |
ORDERS
The Application filed on 10 June 2011 is dismissed.
The Applicant is to pay the First Respondent’s costs, of and incidental to, the Application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1216 of 2011
| SZQIP |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
In accordance with the Court orders made on 4 July 2011, the solicitors for the first respondent were required a folder of material which was to be indexed, labelled and paginated, containing all documents which may be relevant to the hearing. This order was complied with and the volume of materials provided is identified as the Court Book (“CB”). On the date of the hearing the Court Book was marked Exhibit “A” and is the only evidence before the Court.
At the first Court date directions hearing the applicant was granted leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any supporting affidavit material. The applicant elected not to pursue this option and relied upon the original application. As the applicant indicated that she wished to participate in the NSW RRT Legal Advice Scheme, this was conveyed to the panel coordinator and a panel adviser was appointed.
The Proceedings
The background material contained in the Tribunal’s decision indicates that the applicant is a citizen of the People’s Republic of China (“China”) and arrived in Australia on 22 March 2008 and applied to the Department of Immigration & Citizenship for a Protection (class XA) visa on 29 July 2009. A delegate of the Minister for Immigration & Citizenship (the “Minister”) decided to refuse to grant the visa on
23 October 2009 and notified the applicant of the decision, as well as her review rights by letter dated 23 October 2009. The delegate refused the visa application on the basis that the applicant is not a person to whom Australia has protection obligations under the Refugee Convention.
The applicant applied to the Refugee Review Tribunal (the “Tribunal”) on 20 November 2009 for a review of the delegate’s decision. The decision made on 10 May 2011, RRT case no. 0909175 is the subject of this judicial review.
In this Court, the Tribunal, named as the second respondent, has filed a submitting notice of appearance, indicating that it would submit to any orders of the Court but has not otherwise participated in the proceedings.
Background
The Tribunal decision sets out the following background material in respect of the applicant. On her application, the applicant states that she is 42 years of age and was born in Fujian, China. She claims not to have had an occupation before coming to Australia in March 2008 as Student Guardian to her daughter. She gave one address for the 10 years preceding her application at Xijiang Village, Gaoshan Town, Fuqing City. She states that she had five years of primary school education from 1975 to 1980. Of her family, she says that her husband and her son, born in 1989, remain in China. Her daughter, born in 1991, came to Australia as a student and was not included in the application for a Protection visa.
Attached to the visa application was a statement which included the following information:
a)The applicant is scared to return to China because her husband has been imprisoned and she will be arrested and imprisoned also, leaving no-one to care for her children (the son born in 1989 and the daughter born in 1991);
b)Her husband worked as a manager of a supermarket;
c)In December 2007, a former soldier in the same regiment as her husband came to visit without warning. The friend lived in Changchun City, Jilin Province, after he and her husband retired from the Army but they had kept in contact. This was the first time they had seen each other since leaving the Army. Her husband is loyal to his former comrade in arms and decided to let him stay at their house because he had no money and nowhere to stay. Her husband helped his friend to find a part time job. Later their friend told the applicant and her husband that he believed in Falun Gong and was discovered by police so he had to escape to South China;
d)Before the applicant came to Australia as a student guardian for her daughter, the applicant and her husband discussed the situation and decided to let the friend stay at their home long term and he would provide company for her husband while she was away in Australia;
e)All went well until July 2008 when her husband’s friend advised that he wished to go to Britain to seek protection on the grounds of being a Falun Gong practitioner, asked to borrow RMB 200,000 promising to repay it when he could. Her husband asked her advice and they decided to lend him RMB 100,000;
f)On 17 October 2008, the police came to their village to check the temporary resident population. When they made an enquiry about their friend he suddenly ran off and disappeared;
g)
After an investigation the Police found that their friend was a criminal wanted by Changchun Police Station. He had organised street violence with other Falun Gong practitioners near the Changchun local government building. The Police started to investigate her husband. The boss of the supermarket was afraid of becoming involved and fired her husband unfairly. The Police found that their friend had stayed at their house for several months and was a close friend of her husband. The Police accused them of hiding a wanted criminal on purpose. On
20 January 2009 the Police arrested her husband and took him to prison for interrogation;
h)The applicant’s parents told her that her husband was heavily beaten and had bruises and swellings on his body. After two months of torture her husband could not stand any more and told the Police that the applicant was the principal conspirator because she was a Falun Gong sympathiser, that it was the applicant who let their friend shelter in their home and that it was the applicant who decided to lend him money. On 16 April 2009 her husband was sentenced to a one year imprisonment as an accessory to the crime of concealing a wanted criminal;
i)The Police went to the applicant’s home and asked when she was coming back to China. When her parents said that they did not know, the Police took her 60 year old father away and detained him for three days;
j)Even though her visa was about to expire, she could not now return to China because she would be persecuted and put in prison. She had two children and parents to look after and could not afford to have any unexpected misfortune happen to her.
Tribunal Hearing and Decision
In setting out the following material I have relied upon the written submissions prepared by Ms Reardon appearing for the first respondent. I have not made any further direct attribution as this would make the summary unwieldy. The information is provided to assist in the understanding of the nature of the application, not to establish any evidentiary point.
On 20 November 2009 the applicant sought review of the delegate’s decision by the Tribunal (CB 61). She retained Ms Weiming Qian as her agent for the purposes of that application (CB 62). On
16 December 2009, in accordance with subsection 425(1)of the Migration Act 1958 (Cth) (the “Migration Act”), the Tribunal invited the applicant to appear before it to give evidence and present argument relating to issues arising in her case (CB 69 – 70). The applicant appeared before the Tribunal on 14 January 2010 with the assistance of an interpreter in the Mandarin and English languages (CB 82).
Ms Qian did not attend (CB 82).
On 28 November 2010 the applicant sought to appoint Ms Jie Yu as her migration agent (CB 85), however, on 26 April 2011 the applicant withdrew that authorisation and directed the Tribunal to correspond directly with her (CB 94 – 95). On 10 May 2011 the Tribunal decided to affirm the delegate’s decision not to grant a Protection visa to the applicant (CB 97 – 116). The Tribunal notified the applicant of that decision by letter dated 11 May 2011 (CB 96).
The Tribunal accepted that a Falun Gong practitioner had stayed at the applicant’s house as claimed (CB 114 at [103]), and the applicant’s husband was arrested and sentenced to 12 months imprisonment for being an accessory to a crime of harbouring a wanted criminal (CB 114 at [104]). However, the Tribunal did not accept that the Chinese authorities would believe her husband’s claim (if he made them) that she was the person who was responsible for harbouring her husband’s friend (CB 115 at [106]) and, even if she was arrested, she would be tried under the law of general application in China and would neither be singled out, persecuted or receive a harsher penalty than her husband or any other Chinese citizen (CB 115 at [108]).
The Tribunal found at [109] – [110] (CB 115 - 116) that:
The applicant has not claimed that she feared harm because the authorities may impute an anti-Government political opinion to her because of her and her husband’s assistance to a Falun Gong practitioner. From the applicant’s claims and evidence, the essential and significant reason for the harm she fears is that she has committed an offence under Chinese law and may be punished for that.
The applicant did not advance any claims that the law would be applied in a discriminatory manner because of any attribute applying to her circumstances. She stated in effect that the law is enforced against all persons who commit harbouring offences and that she would not be singled out for punishment…The Tribunal finds that the law against harbouring criminals is a law of general application in China, and that there is no real chance that the applicant will face serious harm involving systematic or discriminatory conduct for a Convention reason in relation to the enforcement of this law.
Accordingly, the Tribunal concluded that:
a)It was “not satisfied that the applicant has a well-founded fear of persecution for any Convention reason if she returns to China now or in the reasonably foreseeable future” (CB 116 at [111]);
b)It was “not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention” (CB 116 at [112]); and
c)“The applicant does not satisfy the criterion set out in s. 36(2)(a) for a protection visa” (CB 116 at [112]).
Consideration
The applicant confirmed that she had not prepared any written submissions and when invited to make oral submissions, indicated to the Court that she had provided all material in respect of her claim for a Protection visa to both the delegate of the Minister and the Tribunal and that she had nothing further to present to the Court. Presumably, she was referring to the material that had been prepared with the assistance of her first migration agent, Ms Qian. I briefly pointed out to the applicant that the function of this Court was to review the decision of the Tribunal to ensure that the Tribunal had adopted and applied the provisions of the Migration Act and Migration Regulations 1994 (Cth), and that this Court did not have the power to grant the applicant a visa by assessing the merits of her Protection visa application.
The applicant indicated to the Court that she had a cousin who was a resident of Australia who had suffered kidney failure and that it was the applicant’s intention to be a donor if she was compatible, and that those tests were to be carried out at Westmead Hospital in the near future.
Ms Reardon, appearing for the Minister, had prepared and filed detailed written submissions in response to the pleaded grounds contained in the application. Ms Reardon indicated that she would not be making any oral submissions and that she would rely on the written submissions. The Court was informed that a copy of the first respondent’s submissions was posted to the applicant and a further copy supplied to the Court interpreter prior to the hearing to enable him to read those submissions to the applicant. When the applicant was asked if there was any issues arising from those written submissions which she wished to address the Court about, she declined that offer.
Ground One
Ground one of the applicant’s application was:
RRT did not review decision of DIAC carefully, it is unfair.
In response to Ground one, I accept the written submissions prepared on behalf of the Minister that, pursuant to s.414 of the Migration Act, the Tribunal was required to review the decision of the Minister’s delegate. It is submitted that the Tribunal’s reasons for decision show that the Tribunal:
a)Had regard to the decision of the Minister’s delegate (CB 100 at [19]) as well as the material before the delegate (CB 100 at [19]), including the applicant’s Protection visa application and the delegate’s interview of the applicant;
b)Had regard to further evidence given by the applicant at the hearing before the Tribunal;
c)Understood the claims being made by the applicant (CB 100 – 113 at [19] – [97]);
d)Understood the considerations that were relevant to the applicant’s application including whether the applicant had a well founded fear of persecution for one of the Convention reasons (CB 98 – 100 at [6] – [18]); and
e)Made findings at (CB 114 – 116 at [102] – [111]) that were reasonably open to it on the material before it.
The Minister submits that the Tribunal therefore complied with its obligations to review the decision of the Minister’s delegate. The Minister further submits that, to the extent that Ground one seeks to allege that the Tribunal failed to afford the applicant procedural fairness, such a claim is not made out on the evidence before the Court.
In support of that contention, the Minister submits that the Tribunal’s obligation to afford procedural fairness to the applicant was circumscribed by Div. 4 of Part 7 of the Migration Act and that the Tribunal complied with those obligations in the following ways:
a)The Tribunal considered the decision of the Minister’s delegate and the material available to the Minister (the applicant not having provided any further claims or evidence with her application for review) but determined that it was unable to make a favourable decision on that information alone (CB 69);
b)The Tribunal advised the applicant of this view and afforded to her an opportunity to present argument in support of her application by inviting to attend a hearing before it on 14 January 2010 in accordance with s.425 of the Migration Act (CB 69 – 70);
c)In accordance with s.425A(1) the Tribunal gave notice of the day, time and place of the hearing (CB 69);
d)The applicant attended the hearing before the Tribunal and the Tribunal considered that evidence in detail (CB 103 – 113 at [40] – [97]);
e)Although there was no information of the kind which s.424A of the Migration Act required of the type provided by the applicant, the Tribunal specifically put to the applicant concerns it had in relation to the credibility of some of her claims and information it had obtained concerning the application of certain laws in China; and
f)The Tribunal made findings in relation to the applicant’s claims and evidence which were reasonably open to it on the evidence before it.
It is submitted on behalf of the Minister that Ground one of the application does not support the applicant’s claim that the Tribunal fell into jurisdictional error.
Ground Two
Ground two of the applicant’s application was:
RRT did not weigh my evidenc[e], saying my document is not true. It is discriminatory.
The written submissions prepared on behalf of the Minister contend that the Tribunal reasons for decision show that the Tribunal did consider and weigh the applicant’s evidence, including the statement attached to her Protection visa application, but had found that some of the evidence relied upon by the applicant was not credible. It is further contended that the Tribunal provided extensive reasons to support its conclusion that the applicant did not have a well founded fear of persecution for a Convention reason. In particular, the Tribunal considered the impact that the illegal harbouring of a criminal in their home would have had on the applicant, and whether that constituted harm related to a Convention reason (CB 115 at [108]). However, the Tribunal concluded that the applicant’s fear of being arrested and imprisoned was not a fear that could be attributed to a Convention reason and was instead attributed to the fact that the applicant broke the law of general application (CB 115 – 116 at [109] – [111]).
The Minister submits that the weight to be accorded to evidence is a matter for the Tribunal to decide: SZJRV v Minister for Immigration & Citizenship [2007] FMCA 1880 per Nicholls FM at [20]. Findings of fact, including findings of credibility are within the proper exercise of the Tribunal’s function: Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 per McHugh J at [67]. It is submitted that there is no evidence, based on the Tribunal’s reasons for decision, that the Tribunal acted in a discriminatory manner, either on the basis of the above matters or otherwise. The Minister submits that Ground two of the application does not support the applicant’s claim that the Tribunal fell into jurisdictional error.
Ground Three
Ground three of the applicant’s application was:
I will be sent to jail if I go back to China.
The Minister submits that Ground three of the application is a mere assertion of fact and does not raise any recognisable ground of judicial review. It submits to the extent that the applicant seeks to challenge factual findings made by the Tribunal, this may invite merit review of the Tribunal’s decision which is not a permissible ground of review: Abebe v Commonwealth of Australia (1999) 162 ALR 1 per Gummow and Hayne JJ at [195] – [197]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 per Brennan CJ, Toohey, McHugh and Gummow JJ at 271 – 272 and Kirby J 291 – 292. It is submitted that Ground three of the application does not support the applicant’s claim that the Tribunal fell in to jurisdictional error.
Conclusion
The applicant in these proceedings is a self-represented litigant who appears with the assistance of an interpreter in the Mandarin and English languages. The Court Book indicates that the applicant has had the assistance of a qualified migration agent, initially by Ms Weiming Qian (CB 62), who was subsequently replaced by Ms Jie Yu (CB 85). However, the applicant subsequently dispensed with the agents’ services. In this Court the applicant has been provided with access to a panel adviser as part of the NSW RRT Legal Advice Scheme in order to prepare for this hearing. Whether the applicant received assistance in the preparation of the application for judicial review before this Court is unknown. However, the application has been prepared in English, substantially in typed form but does not appear to demonstrate any conversance with the operation of the Migration Act. The Grounds of Review do not specifically arise from the published decision of the Tribunal member and I accept the written submissions of Ms Reardon as the appropriate approach to the pleaded grounds, and I am satisfied that none of the grounds pleaded in the application can be sustained.
The nature of the oral submissions made by the applicant indicated that it was her expectation that this Court was yet another step in the process of obtaining a Protection visa that she had previously unsuccessfully pursued before a delegate of the Minister and the Tribunal. Although this was pointed out to the applicant that this was not the Court’s function the applicant continued to pursue a further request for the granting of a Protection visa. The applicant did indicate that a close relative who had residence in Australia had suffered from kidney failure and that the applicant was embarking on an assessment process to determine whether she was a suitable donor. She indicated to the Court that she was willing to pursue this course on a humanitarian basis. This may be more appropriately handled by a direct application to the Minister.
In these circumstances, where the applicant lacks the knowledge and understanding of the operation of the Court’s function of judicial review of the Tribunal’s decision, I have reviewed the contents of the Court Book and, particularly, the Tribunal’s decision and it is not apparent on the face of that document that any other ground of review exists, which suggests that the Tribunal has made no jurisdictional error in its decision to reject the applicant’s application for a Protection visa. The Tribunal acknowledged and accepted the substantial part of the applicant’s claims, but held that any punishment or imprisonment the applicant may receive for committing the harbouring offences would not result in the authorities enforcing that law for a selective purpose or enforcing it selectively. The Tribunal found that the law against harbouring criminals is a law of general application in China, and that there is no real chance that the applicant will face serious harm involving systematic or discriminatory conduct for a Convention reason in relation to the enforcement of that law.
On the material before the Court, I am satisfied that the Tribunal decision does not contain any jurisdictional error and the applicant’s application should be dismissed with costs.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Date: 6 December 2011
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