SZRCX v Minister for Immigration

[2012] FMCA 1033

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRCX v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 1033

MIGRATION – Review of decision of Refugee Review Tribunal – whether applicant denied opportunity to argue case – whether Tribunal failed to consider relevant material – whether Tribunal fell into jurisdictional error.

Migration Act 1958 (Cth), s.425

SZBEL v Ministerfor Immigration & Anor [2006] 228 CLR 15
Refugee Review Tribunal, Re: Ex parte H [2001] 179 ALR 425
SCAA v Ministerfor Immigration & Anor [2002] FCA 668
Zubair v Ministerfor Immigration & Anor [2004] FCAFC 248
Minister for Immigration & Anor v SZMOK [2009] FCAFC 83

Applicant: SZRCX

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 244 of 2012

Judgment of: Raphael FM

Hearing date: 25 October 2012

Date of Last Submission: 25 October 2012

Delivered at: Sydney

Delivered on: 25 October 2012

REPRESENTATION

For the Applicant: In person

Solicitors for the First  Respondent: Minter Ellison

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent’s costs assessed in the sum of $4,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 244 of 2012

SZRCX

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of China.  He first arrived in Australia in August 2005 as the holder of a student visa.  He departed the country and most recently returned on 5 May 2006.  On 17 June 2011 he applied to the Department of Immigration and Citizenship for a protection (Class XA) visa.  On 16 August 2011 a delegate of the Minister refused to grant a protection visa and the applicant applied to the Refugee Review Tribunal for review on 12 September 2011.  The Tribunal interviewed the applicant on 6 January 2012.  At that hearing he brought some papers to the Tribunal which he indicated supported his application.  On 9 January 2012 the Tribunal determined to affirm the decision not to grant the protection visa. 

2. The situation that the applicant found himself in that he believed made him a person to whom Australia owed protection obligations was that he was the son of his father who had commenced a construction project in Urumqi in November 2007 but had thereafter run into problems with the municipal government.  It had not paid for his father’s construction works.

3. The father appealed to a superior branch of government to help but the applicant said that the appeal, which was made by way of letter, was intercepted and local police arrested his father and advised the father to cease his appeals.  When his father continued to argue he was detained for three months.  These problems impacted on the applicant’s ability to maintain his student visa because he was unable to pay the tuition costs.  He attended college in Australia until February 2007 according to his application form.

4. When the applicant was interviewed by the delegate he told that he feared to return to China because his family had been persecuted since his father accepted the government project in 2007.  He told the delegate that the reason he did not apply for protection earlier was because he was unaware of the availability of such an application. 

5. When the applicant appeared at the Tribunal hearing he brought with him three documents, a copy and translation of a business licence in the name of his father, an arrest warrant and translation for the arrest of his father and a release certificate and translation stating that the father had been detained on accusation of impeding public business and disrupting social security, had served prison terms and was released.  He also produced a document and translation headed “appealing letter” addressed to the Urumqi “Calls and Letters” Bureau which set out the details of the contractual dispute and asking for assistance.

   “[34]Asked why he does not want to return to China, the applicant said that his dad was detained and he has been telling the applicant not to return. His dad had been appealing to the government almost every day.  His dad is not happy with the Chinese government.  He has been making money by his own hands but he does not have basic rights as a citizen.  The applicant said that he has thought about returning, there is no problem with that.  However, his dad does not want him to return.  If he goes back, he will definitely go with his dad and they will appeal together.  Then his home will not be like a home any more.” [CB 110].

6. The Tribunal questioned the applicant about the nature of his father’s concerns and why he had not returned earlier to assist his father. 

   “[38]Asked how the government would view his father, he said that the government would think he is just “getting problems on his own”, but his father would see himself as acting on behalf of all Chinese.  I noted that his father has not, according to the applicant’s evidence, organised any demonstrations or protests or public appeals, he has just written private letters demanding his rights.”  [CB 111]

7. In its findings and reasons, the Tribunal found that the applicant’s evidence was somewhat vague and unsatisfactory in relation to significant details including such matters as details of the applicant’s studies in Australia and his father’s most recent situation and activities in China. 

   “[42]His claims have shifted to some extent over time; for example, he claimed for the first time at the hearing that his father had continued to appeal against the Chinese government since his detention in November 2008,  whereas he previously stated that his father had been in hiding to avoid further problems from the government.  Moreover, he appeared to have little idea about specifically what ongoing protest his father is involved in.  However, he stated that his father had not organised any public protest or demonstrations, indicating that he had continued to write letters. … The applicant also presented documents to the hearing which purport to be documents relating to the father’s arrest and detention, but which have the appearance of having been produced on a word processer for the purpose of the hearing.  Moreover, the applicant’s claims about his own fears were presented on a different basis at the hearing.  Whereas before the Department he stated that his concern related to the family’s poor financial position following his father’s business problems, he claimed at the hearing, for the first time, that if he returned, he would support his father in his appeals and would therefore be forced to live in hiding and would be denied a normal family life.”[CB 112]

8. The Tribunal concluded that it could not be satisfied that the applicant had a well-founded fear of persecution for a convention reason.  It doubted whether the applicant would, in fact, assist his father in his appeals against the government which, in any event, appeared to be limited to writing letters.  The Tribunal noted that notwithstanding this claim by the applicant he had done nothing to support his father in the past three years.

   “[43]Overall I do not accept that, given the nature of the father’s claimed activities which would not seem to require any assistance from the applicant, and the applicant’s lack of action till now, that he would in fact, take action to support his father on return to China.”  [CB 112]

9. The Tribunal did not accept that even if the applicant was to assist his father there was a real chance that that would lead to persecution and was also concerned that any problems that he might confront would not be convention related persecution.  There was no evidence of serious harm being found, no evidence of serious harm in respect of the father and the Tribunal did not believe that the nature of the concerns raised by the father were such that either he or the son would be imputed with political opinion of an anti-government nature.

   “[45]Even accepting that the applicant’s father had been involved in writing letters of appeal seeking redress in relation to the contractual dispute, the applicant’s evidence does not suggest that his father has thereby come to be viewed by the government as a person with political opinions in opposition to the government or as a leader or potential leader of an organised opposition group. … Even if I were to accept that the applicant would become involved in his father’s protests on return to China I am not satisfied on the basis of the available evidence that he would do so in such a way that would lead to his being imputed with an anti-government political opinion, which would be the reason for any persecution he might fact.  In the circumstances, I am not satisfied that any harm which the applicant himself might face because of any future activity in support of his father, would be directed at him for a Convention reason.” [CB 113]

10. On 6 February 2012 the applicant filed an application with this Court seeking a review of the Tribunal’s decision.  There were three grounds set out.  The first was:

    “1.    The reasoning of the Tribunal is internally unfair and prejudicial.”

    This claim is in no way particularised and what one suspects is that it is the applicant’s reaction to the fact that the Tribunal has not accepted his claims.  As the High Court has made clear in SZBEL v Ministerfor Immigration & Anor [2006] 228 CLR 152 at [25] the Tribunal’s duty is to provide a fair procedure, not a fair decision. I do not read the reference to “prejudicial” as suggesting that the Tribunal was biased, but it is clear from the authorities such as Refugee Review Tribunal, Re: Ex parte H [2001] 179 ALR 425 that this type of allegation can very rarely be made out from the decision record itself. See also SCAA v Ministerfor Immigration & Anor [2002] FCA 668 at [38].

11. The second ground of application was:

    “2.I was denied a fair and impartial opportunity to present my argument.”

    There is no evidence of this. The decision record indicates that the applicant was given a sufficient opportunity under s.425 of the Migration Act 1958 (Cth)[1] to present evidence and arguments in relation to the issues arising in relation to the decision under review.  If the applicant was to persuade this court that that did not happen he would have to provide some evidence from at least the transcript, but no evidence has been produced.

    [1] “Act”

12. The third ground was:

    “3.I was exploited by the Delegate of the Department because of my vulnerabilities and disadvantages.”

    This is not a review of the decision of the delegate.  It is a review of the decision of the Tribunal.  In any event the alleged exploitation is not particularised and the hearing before the Tribunal will cure any defects and irregularities: See Zubair v Ministerfor Immigration & Anor [2004] FCAFC 248.

13. The applicant appeared before me today.  He told me that he had given the Tribunal the evidence and she did not read it carefully.  She did not investigate the information he had provided originally.  He told me that “she only reasoned the evidence that I provided”.  If the applicant is talking about the evidence that he brought with him that I have previously referred to, there is no doubt that it was considered.  Indeed, the Tribunal made its views about it known although it did not make any finding that the information was a forgery. 

14. The weight the Tribunal gives to evidence is a matter for it, it is not for this Court to cavil with that.  In any event the Tribunal did not make any finding that his father had not suffered as has been suggested, so the views of the applicant as to the Tribunal’s use of those documents are really irrelevant because they did not form part of the Tribunal’s decision-making process.

15. As Ms Weston pointed out in her helpful oral submissions the applicant would have difficulty in challenging the views of the Tribunal in relation to those documents given the views of the Full Bench of the Federal Court, Emmett, Kenny and Jacobson JJ in Minister for Immigration & Anor v SZMOK [2009] FCAFC 83.

16. In these circumstances I am unable to find that the Tribunal fell into jurisdictional error in the manner in which it reached its decision.  The application must be dismissed.  The Applicant shall pay the First Respondent’s costs which I assess in the sum of $4,500.00.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Raphael FM

Date:  9 November 2012