SZQJR v Minister for Immigration
[2012] FMCA 159
•6 March 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQJR v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 159 |
| MIGRATION – Review of decision of Refugee Review Tribunal – whether decision affected by jurisdictional error – no jurisdictional error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5; 36; 65; 91R; 474; pt.8 div.2 |
| Abebe v Commonwealth of Australia (1999) 162 ALR 1 Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) |
| Applicant: | SZQJR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1318 of 2011 |
| Judgment of: | Emmett FM |
| Hearing date: | 6 March 2012 |
| Date of Last Submission: | 6 March 2012 |
| Delivered at: | Sydney |
| Delivered on: | 6 March 2012 |
REPRESENTATION
The applicant appeared in person with the assistance of a Mandarin interpreter
| Counsel for the Respondent: | Mr Tim Reilly |
| Solicitors for the Respondent: | Minter Ellison (Helen Lac) |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1318 of 2011
| SZQJR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 31 May 2011 and handed down on that day.
The applicant claims to be a citizen of the People’s Republic of China.
Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicant’s protection visa application claims and the decision of the delegate of the First Respondent (“the Delegate”) and a summary of the Tribunal’s review and decision.
Background
On 9 October 2010, the applicant arrived in Australia having departed legally from China on a passport issued in his own name and a Tourist Subclass 676 visa issued on 16 September 2010.
On 11 January 2011, the applicant lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship under the Act.
On 22 February 2011, the Delegate refused the applicant’s application for a protection visa.
On 7 March 2011, the applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
On 31 May 2011, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 23 June 2011, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then s.65(1)(b) mandates that the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Art.1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R of the Act expands on the notion of persecution and serious harm when considering Art.1A(2) of the Convention.
The applicant’s application for a protection visa
The applicant provided a statement in support of his protection visa application in which, inter alia, he stated:
a)In 1990, the Huanggu District government designated a piece of vacant land along the river to set up a market called the Huanggu timber market to attract private business and investment.
b)The applicant and his sister supported the government initiative by jointly investing 850,000 RMB into the timber business.
c)They paid the land lease cost and administration fees, as requested by the Huanggu District Government, and purchased construction materials to build a warehouse, office and private dwelling.
d)They started their business on trial in December 1990 and in January 1993 formally obtained their Business Licence and Tax Certificate.
e)On 11 September 2011, the Huanggu District government notified them that the timber market would be demolished by 5 October 2011.
f)On 23 March 2002, they were dragged out by force, beaten and the timber market was bulldozed. The applicant’s 70 year old mother, who had suffered from a mental disorder before, was also dragged out.
g)Homeless, they erected a shelter in the corner of the timber market and collected and sold timber from the ruins.
h)The applicant organised the business owners in the timber market into a petition group in order to seek compensation.
i)On 20 October 2002, the petition group commenced legal proceedings against the Huanggu District government but these were dismissed. Nevertheless, the applicant refused to give up and continued to appeal without result.
j)On 26 June 2009, the petition group visited the State Petition Office in Beijing, gave them their petition letter and then returned home to wait for a response.
k)The applicant and other members of the petition group, including the applicant’s sister, were beaten on their way home. They suspect the Huanggu District government organised this attack.
l)The Huanggu District government then directed the local police to detain the petition group and the group was denied food, beaten and forced to sign a statement of undertaking to give up their petition effort.
m)If the applicant were to return to China he would be persecuted by the authorities.
The Delegate’s decision
On 21 February 2011, the applicant attended an interview with the Delegate.
The Delegate was not satisfied that any of the applicant’s difficulties were as a result of the applicant’s personal political opinion or any political opinion imputed to him by the authorities. The Delegate found that the applicant was prosecuted in June 2009 for brawling in the street and that he received a relatively short administrative detention for such behaviour.
The Delegate found that there was no Convention ground that was the essential and significant reason for the harm feared by the applicant.
On 22 February 2011, the Delegate refused the applicant’s application for a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Convention.
The Tribunal’s review and decision
On 7 March 2011, the applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 25 March 2011, the Tribunal wrote to the applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicant to attend a hearing on 3 May 2011 to give oral evidence and present arguments. The applicant attended that hearing and gave oral evidence.
On 3 May 2011, the applicant attended the Tribunal hearing and gave evidence.
The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.
The decision of the Tribunal is accurately summarised by the solicitor for the First Respondent in written submissions as follows:
“11. By a decision dated 31 May 2011, the Second Respondent affirmed the delegate’s decision not to grant the Applicant a Protection (Class XA) Visa.
12. The Second Respondent accepted that the applicant was the owner of a business in a timber market which was demolished in March 2002. It also accepted that the applicant had unsuccessfully made applications to Courts seeking compensation in respect of the loss of his business and buildings. However, the second respondent did not accept that the applicant had been persecuted or would be persecuted if he returned to China.
13. The second respondent found that the applicant had pursued claims for compensation for a number of years without impediment and without the authorities taking an adverse interest in him. Based on the evidence before it, the second respondent was not satisfied that the applicant had taken any action regarding compensation since 2008. It was also of the view that the applicant had been detained in 2009 because he was involved in a street fight and that this incident had no connection with the compensation claim.
14. In reaching its decision the second respondent also made the following findings:
a. The documents which the applicant provided showed that the timber market buildings were illegal and that the Courts rejected his claims for compensation on this basis. The second respondent was satisfied that the applicant’s business was not closed down for a Convention reason and that he was not refused compensation on this basis.
b. The second respondent accepted that the applicant was upset about the demolition of his buildings and that he lodged applications with different Courts since 2002. However, it did not accept that the applicant was persecuted for lodging those applications and noted that the documents he provided indicate that he pursued a number of cases over a number of years without impediment and, at one point, with some success.
c. The second respondent had regard to the applicant’s claim that the buildings were not illegal but did not accept this. The second respondent had regard to the documents provided to it and the Department by the applicant but was not satisfied that these showed that the buildings were legal constructions.
d. The second respondent noted that the applicant had given inconsistent information about when he went to Beijing and why. It found the applicant’s answers to questions in this regard to be ‘evasive and inconsistent’ and did not accept that the applicant went to Beijing to lodge a petition or application as he had claimed.
e. Accordingly, the second respondent did not accept that the applicant had been beaten up when he returned from Beijing because he had lodged a further appeal.
i. The second respondent considered that this finding was supported by a document provided by the applicant which stated that he was involved in a street fight at 4:30pm on 26 June 2009. It considered that this indicated that the applicant had been detained for 7 days because he had been involved in a street fight.
ii. The second respondent did not find the applicant’s explanation for how he knew the motivation of the beating to be credible.
15. The second respondent also noted that the applicant’s evidence suggested that he was able to live and work for a number of years in China after the close of the timber business without attracting the adverse interests of the authorities.
16. The second respondent did not accept that the applicant was forced to sign any undertaking that he would not appeal, or that he was visited by a policeman after he was released and warned against lodging further appeals. It did not accept that the applicants wife and child had to move, or that the applicant was harmed or persecuted in China.
17. The second respondent strongly doubted that the applicant would take any further action if he returned to China but concluded that, in any event if he did take further action to seek compensation or appeal then he could do so though the established channels as he had done in the past.
18. The second respondent noted that the applicant had not claimed to fear harm due to his attendance at church and it was not satisfied that he faced a well founded fear of persecution on this basis in future.”
The proceeding before this Court
The applicant was unrepresented before this Court, although had the assistance of a mandarin interpreter.
On 2 August 2011, the applicant attended a directions hearing before me. I explained to the applicant that this Court had no power to interfere with the decision of the Tribunal, unless the Court is satisfied that the Tribunal’s decision is affected by a mistake going to the jurisdiction of the Tribunal. I also explained to the applicant that the ground of the application made bare assertions that were unsupported by particulars and did not by themselves disclose an error capable of review by this Court. The applicant confirmed that he wished to continue with the application. The applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the Tribunal hearing, as well as submissions in support.
At the directions hearing, the applicant was referred to the Court’s RRT Legal Advice Scheme for free legal advice. The applicant has participated in the Court’s RRT Legal Advice Scheme and received free legal advice. The applicant was also provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language.
At the commencement of the hearing, the applicant confirmed that he had not filed any amended application, evidence or submissions in support of his application and that he had no further documents to present to the Court this morning in support of his application.
The applicant confirmed that he relied on the ground contained in an application filed on 23 June 2011 as follows:
“My building was demolished by the local government. I sought compensation in respect of the loss of my building, but all the Courts in China are controlled by the governments. The authorities harmed and persecuted me. The Tribunal didn’t accept my claims and evidence. The Tribunal made jurisdictional errors while making the decision.”
This ground was interpreted for the assistance of the applicant and the applicant was invited to make submissions in support of each of the ground and in support of his application generally.
In support of the ground of his application, the applicant said that he felt he was persecuted by the Chinese government and the Tribunal’s decision was unfair. Otherwise, the applicant’s ground remained unsupported by particulars, evidence or any further oral or written submissions.
The ground of review appears, primarily, to be a disagreement with the findings and conclusions of the Tribunal. Such a complaint invites merits review which this Court cannot undertake (Abebe v Commonwealth of Australia (1999) 162 ALR 1 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).
The Tribunal accepted that the applicant had a timber market that was demolished and for which he sought compensation. However, the Tribunal found that the demolition occurred because the building was built illegally and that the applicant was not harmed or persecuted in the course of seeking compensation for the demolition. The Tribunal’s decision record makes clear that the Tribunal accurately summarised the applicant’s claims and explored them with him at a hearing in significant detail. The Tribunal’s decision record refers to various exchanges that it had with the applicant where it put matters of concerns that it had arising from the applicant’s evidence to him at the hearing and noted his responses.
In particular, the Tribunal put to the applicant that if the Tribunal did not accept he was beaten up in June 2009 because he had lodged appeals, then it would seem that in fact, that he had in fact not any conflict with authorities despite lodging appeal for many years. Ultimately, the Tribunal found that the applicant was detained in 2009 because he was involved in a street fight which had no connection to his compensation claim in respect of the demolition of his building. Nor did the Tribunal accept that the applicant was beaten up because he had lodged any further appeal. The Tribunal did not accept the applicant’s claim to have been forced to sign any undertaking that he would not appeal following his release from detention or that he received any warnings not to lodge further appeals. The Tribunal found the applicant’s explanations for its concerns about these aspects of the applicant’s claims not to be credible.
There was no transcript of the Tribunal hearing provided to this Court, nor did the applicant provide any evidence to this Court to suggest that the Tribunal’s decision record is not accurate. At the directions hearing on 2 August 2011 the applicant was given an opportunity to file a transcript of the Tribunal hearing. The applicant was also directed to give notice if he wished to rely on recordings of the hearing. However, no step was taken by the applicant to rely on any such evidence. In the circumstances, the Court accepts as accurate the Tribunal’s summary of the oral evidence given by the applicant and exchanges it had with the applicant at the Tribunal hearing.
It is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 per Beaumont J at 451; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 per Heerey J at 348).
In the circumstances, the Tribunal’s findings were open to it on the materials and evidence before it, and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
Addressing the assertions in the applicant’s ground of his application, the applicant’s complaint that his building was demolished by the local government and he sought compensation was accepted by the Tribunal. In relation to the applicant’s assertion in the ground that the courts in China are controlled by the government, the Tribunal was not satisfied that there was any corruption involved in the applicant’s cases. To the extent that the ground asserts that the authorities harmed or persecuted the applicant, the Tribunal was not satisfied that any harm suffered by the applicant was for a Convention related reason. To the extent that the ground asserts that the Tribunal did not accept the applicant’s claims and evidence, as stated above, the Tribunal did accept that the applicant had a timber market, had a building demolished and failed to receive compensation through the courts. However, as stated above, the Tribunal did not accept that the harm the applicant claimed to have suffered in 2009 was for any Convention related reason.
The Tribunal noted that the applicant provided evidence that since he has been in Australia he has been attending a Christian church. However, the Tribunal found that the applicant has not claimed to fear harm by reason of his religion and nor was the Tribunal satisfied that the applicant faced a real chance of persecution by reason of his religion. A fair reading of the applicant’s claims, both written and oral, do not suggest that the applicant squarely raised any fear of harm from authorities in China because of his religion. The function of the Tribunal is to respond to the case that the applicant advances (Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at 405; SGBB v Minister for Immigration and Multicultural and Indigenous Affairs(2003) 199 ALR 364 at [17]; NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 at [58]-[60]).
The ground also made a bare assertion that the Tribunal made jurisdictional errors while making the decision. I accept the written submission of the first respondent that such an assertion is so broad that it is not otherwise capable of any further meaningful consideration beyond what has already been considered above.
In the circumstances, the Tribunal was not satisfied that the applicant met the criteria for being a refugee and, accordingly, pursuant to s.65 of the Act, was bound to refuse the applicant a protection visa.
Accordingly, the ground of review is not made out.
Conclusion
A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the applicant; explored those claims with the applicant at a hearing; and, had regard to all material provided in support. The Tribunal put to the applicant matters of concern it had about his evidence and noted the applicant’s responses. The Tribunal also identified independent country information to which it had regard. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Emmett FM
Date: 6 March 2012
0
12
2