SZQPE v Minister for Immigration
[2012] FMCA 174
•23 February 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQPE v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 174 |
| MIGRATION – Review of decision of the Refugee Review Tribunal – no error revealed – application dismissed. |
| Migration Act 1958 (Cth), ss.425, 425A, 426, 426A, 441A, 441C, 476 Migrations Regulations 1994 (Cth), Sch. 2 |
| Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 United Nations Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) |
| Applicant: | SZQPE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1944 of 2011 |
| Judgment of: | Nicholls FM |
| Hearing date: | 23 February 2012 |
| Date of Last Submission: | 23 February 2012 |
| Delivered at: | Sydney |
| Delivered on: | 23 February 2012 |
REPRESENTATION
| The Applicant: | In Person |
| Appearing for the Respondents: | Mr J Pinder |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The application made on 31 August 2011 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $3,800.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1944 of 2011
| SZQPE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore; Revised from Transcript)
This is an application made on 31 August 2011, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) which seeks review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 4 August 2011, which affirmed the decision of a delegate of the Minister for Immigration to refuse the grant of a protection visa to the applicant.
Background
The applicant is a citizen of the People’s Republic of China (“China”). She arrived in Australia on 9 September 2010 and applied for a protection visa on 6 December 2010 (see Court Book – “CB” – CB 1 to CB 33 with annexures).
Claims to Protection
The applicant’s claims to protection were initially outlined in a statement annexed to her protection visa application (CB 26 to CB 27).
The applicant put forward three factual bases on which she said she sought protection in Australia:
1)That she had operated a clothing store in Fuqing City, which had become the target of corrupt local officials who would come to the shop and seek the payment of money. The shop was ultimately closed.
2)In February 2010 the applicant’s house had been resumed by the government and had been forcibly demolished without payment of any compensation. I note that before the Tribunal the applicant’s evidence was that some compensation had been paid, but that it was inadequate.
3)She had been a victim of domestic violence in China from her husband, who she said gambled, smoked, drank, and had other bad habits.
The Delegate
The Minister’s delegate found the applicant’s responses at the interview to be vague, brief and lacking in detail. The delegate noted discrepancies between the applicant’s written and oral claims, as made at the interview, and did not accept the applicant’s claims that she had owned and managed a clothing business in China. The delegate also did not believe that the applicant’s home had been reclaimed by the authorities (CB 53 to CB 54). She found that the applicant’s primary reason for remaining in Australia was: “… economic due to the breakdown of her relationship with her husband”. The delegate found that there was no Refugee Convention nexus to her claims and refused the application for a protection visa (CB 54 to CB 55).
The Tribunal
The applicant applied to the Tribunal for review on 6 May 2011 (CB 56 to CB 59). Another written statement was attached to this application (CB 60 to CB 62). Ultimately, the applicant was invited to, and did attend a hearing before the Tribunal on 3 August 2011 (CB 67, CB 70). The only account before the Court of what occurred at that hearing is that contained in the Tribunal’s decision record ([19] at CB 83 to [44] at CB 87).
While the Tribunal noted a number of inconsistencies in the applicant’s evidence, it did not question her overall credibility, and it considered the applicant’s claims on the basis of what was presented at the hearing ([48] at CB 88).
The Tribunal was satisfied that the violence directed against the applicant by her husband was not Convention related. In this regard, it was not satisfied that the authorities would fail to provide adequate protection for a Convention reason ([49] at CB 88).
The Tribunal also found that neither the demolition of the applicant’s house or the closure of her shop were done for a Convention reason ([50] at CB 88 to CB 89 and [51] - [53] at CB 89). The Tribunal was equally not satisfied that the failure of the authorities to respond in relation to the demolition of the applicant’s home in a manner satisfactory to the applicant was the result of Convention based discrimination ([54] at CB 89). It noted that the applicant had never sought protection in relation to the events at her shop, and thus the absence of any protection or redress was not for any Convention related reason ([54] at CB 90). The Tribunal did not accept that the applicant would take any action against the government on her return to China in circumstances where she had never done so before. It therefore rejected the applicant’s claims in this regard ([55] at CB 90).
The Tribunal also considered whether Convention-based persecution could be found in the circumstances of this case if the state authorities failed to provide protection against non-Convention harm, but that there failure to provide protection was done for a Convention reason. It was not satisfied that this was the case ([54] at CB 89 to CB 90).
The Tribunal affirmed the delegate’s decision on the basis that it was not satisfied that the applicant was a person to whom Australia owed protection obligations ([57] at CB 91).
Application to the Court
The application to the Court contains three grounds without particulars, and two statements of disagreement with the Tribunal’s decision:
“1. The Refugee Review Tribunal did not take my case seriously or consider my real situation carefully.
2. The Refugee Review Tribunal made the decision with baseless conjectures and suspicions on my case.
3. The tribunal member has complexly ignored my real situation, and did not make analyses of my specific issues. The Refugee Review Tribunal investigation completely divorced from the specific circumstances.”
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“1. For the decision made by the tribunal member is rash, subjective, single-faceted and inhuman, I make the request again that the Federal Court make a fair ruling on my case.
2. The decision of Refugee Review Tribunal is unfair, inhuman and discriminatory. Therefore, I request the Federal Court to examine the Refugee Review Tribunal’s decision carefully and to repudiate it, requiring the Refugee Review Tribunal to assess my application again.”
Before the Court
Before the Court today the applicant appeared in person. She was assisted by an interpreter in the Fuqing language. Mr J. Pinder appeared for the first respondent.
The applicant stated that she wanted the Court to help her, and to protect her, and therefore to let her stay in Australia. The applicant also made a claim before the Court that the government in China oppressed her. To the extent that this latter statement purports to make any additional claim to protection as a refugee, then any such claim made at this time cannot succeed in showing jurisdictional error on the part of the Tribunal.
To the extent that such a statement may simply have been a reinforcement of the claims made before the Tribunal, then in that sense it adds nothing by way of an assertion of legal error on the part of the Tribunal.
Despite the Court’s attempts to explain to the applicant the role of the Tribunal and the role of the Court, it is clear that she suffers from two important misconceptions. The first is that the Refugees’ Convention creates an obligation on Australia to provide protection to anyone who has had any difficulties, of whatever nature, in their home country. It is the case that this obligation on Australia arises where the harm feared is based on one of the grounds as set out in the Convention, and is limited to those grounds.
While the Tribunal accepted the applicant’s factual claims as to past events in China, albeit with some reservation, it found that none of those claims gave rise to a fear of serious harm for a Convention-related reason. This conclusion and the findings upon which it was based were all reasonably open to the Tribunal on what was before it, and for which it gave cogent reasons. No legal error is revealed in these circumstances.
Second, the applicant appears to mistakenly believe that the Court can intervene to substitute its own findings for those of the Tribunal, and to help her and to provide her protection as a result. Such a request, however, is really a request for the Court to engage in impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259).
Consideration of the Grounds
Ground 1 of the application asserts that the Tribunal did not take her case seriously or consider her “real situation” carefully. On the evidence before the Court, this must be rejected. The Tribunal’s decision was probative of the material before it. It carefully considered all of the applicant’s claims and evidence as ultimately presented at the hearing. This is not a case where it can be said that the Tribunal failed to consider an aspect of the applicant’s claims (NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No2) [2004] FCAFC 263, WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630, Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244). Nor is it a case where it can be said the Tribunal failed to properly engage with the matters before it in any intellectual or substantive sense (Tickner and Ors v Chapman and Ors (1995) 57 FCR 451). The ground, therefore, is simply no more than an expression of grievance with the Tribunal’s decision.
Ground 2 asserts that the Tribunal made the decision “with baseless conjectures and suspicions on my case”. This also must be rejected. It is clear that the Tribunal’s reasoning arose from the applicant’s own evidence at the hearing and, to a lesser extent, from country information before it. In this sense it cannot be said to be baseless.
What was meant by “suspicions” was never explained by the applicant before the Court. If this is a reference to the Tribunal’s expression of some concern about the applicant’s claims arising from inconsistencies in her evidence, then the Tribunal clearly gave the applicant the benefit of the doubt in this regard and, notwithstanding those concerns, accepted the applicant’s claims as presented at the hearing. It dealt with them on that basis.
Ground 3 of the application asserts that the Tribunal completely ignored her “real situation” and did not analyse what are described as “my specific issues.” This also must be rejected. As I have repeatedly said, the Tribunal plainly accepted the applicant’s factual claims. If for no other reason, it cannot be said therefore, in these circumstances, that it ignored her “real situation” in China.
The allegation that the Tribunal did not make any analysis of the specific issues is equally misconceived. The analysis that the Tribunal was relevantly required by law to conduct was whether the applicant’s factual claims could, in effect, meet the definition of “refugee” as set out in Art.1A(2) of the United Nations Convention Relating to the Status of Refugees.[1] The Tribunal plainly conducted this analysis. The applicant’s third ground therefore is nothing more than a challenge to factual findings made by the Tribunal. It cannot succeed in those circumstances.
[1] Opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) and the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) (“Refugees Convention”).
Additional Complaints
Under the heading of “Orders Sought by the Applicant” in her application to the Court, the applicant sets out a number of criticisms of the Tribunal decision. None of these rise above an expression of grievance with the outcome of the Tribunal’s decision. This, on its own, is no assertion of legal error on the part of the Tribunal.
To the extent that the applicant says that the decision was unfair, as is often said, the legal expectation of fairness on a decision-maker such as the Tribunal is directed to the process employed by the Tribunal, and not the outcome of the decision itself (Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1; (1990) 93 ALR 1).
The applicant was invited to a hearing before the Tribunal. The Tribunal complied with all the relevant statutory and regulatory requirements in that regard (ss. 425, 425A, 426, the reference to s.426A, ss. 441A, 441C and reg.4.35D of the Migration Regulations 1994 (Cth)). The Tribunal’s unchallenged account of what occurred at the hearing reveals that the critical issue determinative of the review was squarely raised with the applicant at the hearing (s.425 of the Act and SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 231 ALR 592). That is, that the applicant’s claims were not Convention-related.
For the sake of completeness in that regard, I should just note Mr Pinder’s addition to written submissions today, with reference to Minister for Immigration and Citizenship v SZONJ [2011] FCAFC 85 (“SZONJ”), in relation to the question of the provision of State protection or the failure to provide such protection and the link to a Convention reason.
SZONJ, a case before the Full Federal Court, involved an application for a protection visa where the applicant had been the victim of domestic violence in her home state (Fiji) that extended over many years (at [2]). The Court noted that persecution by a non-state third party may satisfy the requirements of Art.1A(2) of the Refugees’ Convention (in essence the definition of “refugee”) (at [7]).
The Court said:
“… Where persecution consists of two elements, the criminal conduct of private citizens, and the toleration or condonation of such conduct by the state or agents of the state, resulting in the withholding of protection which the victims are entitled to expect, then the requirement that the persecution be by reason of one of the Convention grounds may be satisfied by the motivation of either the criminals or the state (see Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1 at [31], [78], [120]-[121] and [155]) (the Khawar Principle).”
[Emphasis in original.]
The Court found that there was no error by the Tribunal in concluding “that there was no evidence that there would be a selective and discriminatory withholding of state protection” ([26]). The Court held in that case that the inability of a state to afford protection may be relevant to establishing a well-founded fear of persecution for a Convention reason, but that “toleration or condonation” by the state authorities is required to make out a Convention nexus ([33]) [Plainly with reference to the Khawar Principle.]
In the current case, the Tribunal found that the applicant suffered domestic violence from her husband, but it was not Convention related. Further:
“[49] … I am not satisfied that the applicant is unable or unwilling to avail herself of the protection of the state authorities in relation to any violence she might suffer from her husband; or that the authorities would fail to provide adequate and effective protection for a Convention reason.”
No error is revealed in this regard.
Conclusion
As I attempted to explain to the applicant today, the only circumstance in which the Court could assist her, and grant the relief sought by the application, is by making an order requiring the Tribunal to reassess her application. That, at the very least, depends on whether jurisdictional error is apparent in the Tribunal’s decision. As no such error is evident, I will accordingly make an order dismissing the application to the Court.
Costs
The applicant has put forward one reason in relation to opposing the costs order and that is that she does not have money. She says that that was the reason that she sought access to what she described as the “free lawyer” (that is, the Court’s Refugee Review Tribunal Legal Advice Scheme – “RRTLAS”).
There are two matters then that arise. The first is the matter of the applicant’s request to participate in the RRTLAS, which is available to applicants such as the applicant before the Court today. The applicant claimed before the Court today that she had no communication with the lawyer assigned to her and did not receive any written advice. As opposed to that, there is on the Court’s file a certificate by the panel member assigned to the applicant, Mr Cameron Jackson of counsel that certifies that he had a telephone conference with the applicant on 10 October 2011, and that written advice was provided dated the same date. I accept the certificate from Mr Jackson, but do allow that it may be that the applicant did not understand what was put to her.
There are two matters that arise out of those circumstances. The first is that if no such legal advice had been provided to the applicant, there is in any event no entitlement to any such legal advice (SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 702 per Gyles J at [4]). Second, even if it is that the applicant was unable to obtain legal advice due to the inadequacy or insufficiency of funds, neither are of such a nature as would cause the Court not to make the order sought by the Minister.
As to the amount sought by the Minister, I am satisfied, having regard to the work that has actually been done by the Minister’s solicitors, that in the circumstances the amount sought is a reasonable amount. I will make the order sought in that amount.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Date: 15 March 2012
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