SZRJX v MINISTER FOR IMMIGRATION & ANOR
[2012] FMCA 1220
•5 December 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRJX v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 1220 |
| MIGRATION – Review of decision of RRT – where Tribunal failed to consider complementary protection – whether that was required where Tribunal rejected applicant’s claims – whether court should exercise its discretion to decline to grant constitutional writs. |
| Migration Act 1958 (Cth), ss.36(2)(aa), 65, 424AA, 430 Federal Court Rules |
| Zubair v Minister for Immigration & Anor [2004] FCAFC 248 Minister for Immigration & Anor v SZIZO [2009] 238 CLR 627 Applicant WAEE v Minister for Immigration & Anor [2003] FCAFC 184 Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 Lee v Minister for Immigration & Anor (2007) 159 FCR 181 Screen Australia v EME Productions (No 1) (2012) 200 FCR 282 |
| Applicant: | SZRJX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 862 of 2012 |
| Judgment of: | Raphael FM |
| Hearing date: | 5 December 2012 |
| Date of Last Submission: | 5 December 2012 |
| Delivered at: | Sydney |
| Delivered on: | 5 December 2012 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the Respondent: | Mr J King |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
A Writ of Mandamus be directed to the Refugee Review Tribunal requiring it to determine the applicant’s application according to law.
NOTED:
The court would recommend that in the event that this matter is appealed by the Minister the applicant should be granted legal assistance pursuant to Part 12 of the Federal Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 862 of 2012
| SZRJX |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
First Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of China who arrived in Australia on 22 June 2011 and applied to the Department of Immigration and Citizenship for a protection (Class XA) visa under s.65 of the Migration Act 1958 (Cth)[1]. On 22 September 2011 a delegate of the Minister refused to grant a protection visa and on 25 October 2011 the applicant applied for a review of that decision from the Refugee Review Tribunal. The Tribunal held a hearing at which the applicant appeared and he gave evidence. On 23 March 2012 the Tribunal determined to affirm the decision under review and that decision was handed down on 26 March.
[1] “Act”
It is relevant for the purposes of this proceeding that the respondent concedes that the Tribunal was obliged to consider the claim as against the criteria found in s.65 of the Act which included the criteria set out in s.36 and, in particular, the criteria referred to in s.36(2)(aa). These criteria are known, colloquially, as the complementary protection criteria. It is quite understandable why the Tribunal did not consider this matter because that part of the Act only came into force effectively on 24 March 2012. The Tribunal, having made its decision on 23 March, probably thought that it was relieved from so doing; however, the decision was not published until 26 March and it is not for me to argue with the concession made by the Minister.
The applicant’s claims to be a person to whom Australia owed protection obligations arose out of an incident that he describes in his original statement.
“I got a call from my dad on 12 August 2011 saying that my aunt had conflict with the demolition party. My dad was ill in bed because of stroke so he asked me to go and have a look. I had known that our old house was within the area of demolition. Though I grew up there and didn’t want it to be pulled down the government, all my family discussed and agreed that we would accept it if the government could provide a reasonable compensation. Nobody wants to spend much time and effort, probably take the risk of personal safety against the powerful government. But when my aunt and many other residents went to the government and ask for a reasonable compensation they didn’t get any fair response from the government. The compensation was dramatically lower than the market price and was not paid in timeline. It resulted in the conflict happening between the demolition party and me on 12 August 2010. When I went to the site, I saw my aunt was fighting with many people. I tried to stop them and two persons came to me and hit me down to the ground. They hit me and kicked me, which caused me to lost my consciousness. I could remember how long it last. When I regained consciousness, I found myself in hospital. I was diagnosed as multiple injuries of soft tissue and needed to remain in hospital for a period. … I couldn’t work out why there was no fairness. I decided to do something for our human rights and justice.
I started to appeal to upper authorities with my aunt after I got out of the hospital. But it was much more complicated than we had imaged. We never received positive response from the government. We waited for months and didn’t get any solutions. On 16 February 2011, we had conflict with government officer when we appealed to the government again. As a result, we were detained administratively for 15 days for disrupting public service. It’s a pain for me to describe the experience inside the detention centre. Despite the food and the accommodation, we were often hit and asked to bend by the wall for two hours a day. We were also forced admit our fault and to write letters of self-criticism. Misfortunes never come alone. I was informed by my workplace that my position and payment would cease. All these things were like a nightmare. I didn’t do anything wrong, Why I deserved something like this?” [CB 26 – 27]
When the applicant gave evidence to the Tribunal the Tribunal put to him a series of questions which set out the Tribunal’s view of certain inconsistencies in his evidence. The Tribunal utilised the provisions of s.424AA to make these comments and the applicant decided in respect in each that he would deal with them at the hearing. The Tribunal came to the conclusion that it could not accept the applicant’s evidence. It also said at [120] [CB 127]:
“[127]The Tribunal also notes, that while the applicant claims to be of ongoing adverse interest to the local authorities and developers, on his own evidence, he was able to continue working without adverse incident, in his chosen profession, until departing China in June 2011.”
The conclusions of the Tribunal are best set out in the undermentioned extracts:
“[122]On the basis of all the evidence before it, the Tribunal is not satisfied that the applicant was injured in connection with a confrontation with developers or local authorities as claimed, nor that he or his aunt were hospitalised as a result of that claimed confrontation. It follows that the Tribunal does not accept that the applicant pursued compensation claims for personal injury or other losses he suffered during that claimed confrontation, nor that he attended the offices of the local authorities in February 2011 to pursue such claims. It follows that the Tribunal does not accept that he was detained, summonsed, fired, had his professional licence revoked, or otherwise adversely treated in connection with such activities. The Tribunal has also considered the applicant’s claims that he was, is, or will be adversely targeted for his perceived connection with his aunt’s pursuit of compensation for the demolition of her home. However, given the concerns identified above, in particular his inability to detail relevant aspects of his aunt’s compensation claim, the Tribunal is not satisfied that the applicant has any actual or perceived connection with any such claims being pursued by his aunt, nor is it satisfied on the evidence before it that she is in fact pursuing such claims.
[123]In relation to his claim that, if he returns to China, he will also be known to have applied for protection in Australia, which is another reason he would be adversely targeted by the authorities, the Tribunal accepts the independent information before it, which was put to the applicant, indicating that even people assumed to be failed asylum seekers returning to China from Australia are not necessarily treated adversely in China, and it depends on all their circumstances; if someone is a high profile activist or is speaking out against the Chinese government in Australia, then perhaps they may attract adverse attention; the Chinese authorities these days view as commonplace persons trying to remain in Australia on a protection visa, rather than as a sign of political disloyalty. For the reasons given above the Tribunal does not accept that the applicant is of adverse interest to the Chinese authorities for reason of his claimed petition or his aunt’s claimed petition, nor that he or his family are being adversely targeted as claimed. The Tribunal is not satisfied, based on the evidence before it, that the applicant has a profile which would being him to the adverse attention of the Chinese authorities, nor that his application for asylum in Australia will bring him to the adverse attention of the Chinese authorities.
[124]Taking in account all the claims and evidence before it, including cumulatively, the Tribunal is not satisfied that the applicant faces a real chance of persecution in China in the reasonable foreseeable future for a Convention reason. It follows that the Tribunal is not satisfied that; the applicant is a person to whom Australia has protection obligations under the Refugees Convention.”
On 19 April 2012 the applicant applied to this court for review of the Tribunal’s decision. There were three grounds of application. The first was:
“1. RRT and DIAC failed to consider material evidence of mine.”
This court is not concerned with what happened before the delegate; Zubair v Minister for Immigration & Anor [2004] FCAFC 248. Regrettably, the applicant does not provide any details of what material evidence the Tribunal failed to consider. The Tribunal decision is some 126 paragraphs long. It rehearses all the evidence given by the applicant to the Tribunal as well as a considerable quantity of other material such as the evidence given by the applicant to the delegate. Without any particulars this court cannot possibly determine that a jurisdictional error on this ground occurred. It should be noted that when the applicant came before the court this morning he neither wished to have the respondent’s submissions read to him nor did he say to me anything more than:
“They denied the existence of the truth.”
A sentence that I take to mean “they didn’t believe me”. On this basis ground 1 must fail.
The second ground was:
“2.RRT failed to take into relevant matter in considering my application to have my decision made by DIAC to be reviewed.”
Once again no particulars are provided and unless the court can be guided as to what the relevant matter might have been that was not considered it cannot make a finding favourable to the applicant.
The third ground was:
“3. I was deprived from procedural fairness by RRT and DIAC.”
Again, there are no particulars and again the court would not make a finding of jurisdictional error on the basis of an unparticularised assertion.
The question of importance in this case is whether in all the circumstances it could be said that the Tribunal fell into jurisdictional error by failing to deal with s.36(2)(aa) the complementary protection issue. The respondent argues that no jurisdictional error occurred in the failure to consider the complementary protection issue because the applicant had been invited to give evidence and present arguments under s.425(1) in relation to the issues arising in relation to the decision under review. Those include the factual substratum which would have given rise to a claim for protection under s.36(2)(a) and complementary protection under (2)(aa). He argues that the decision did not involve jurisdictional error unless the applicant was denied natural justice Minister for Immigration & Anor v SZIZO [2009] 238 CLR 627 at [36] where the High Court said:
“[36]Notwithstanding the detailed prescription of the regime under Divs 4 and 7A and the use of imperative language it was an error to conclude that the provisions of ss 441G and 441A are inviolable restraints conditioning the Tribunal’s jurisdiction to conduct and decide a review. They are procedural steps that are designed to ensure that an applicant for review is enabled to properly advance his or her case at the hearing; a failure to comply with them will require consideration of whether in the events that occurred the applicant was denied natural justice. There was no denial of natural justice in this case.”
The Minister continues by arguing that there was no denial of natural justice in this case because the credibility and the findings of the Tribunal were such that it was relieved of the need to assess the applicant’s evidence against the complementary protection criterion. Noting the views of the Full Federal Court in applicant Applicant WAEE v Minister for Immigration & Anor [2003] FCAFC 184 at [47] per Frank, Sackville and Hely JJ:
“[47]It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected.”
The Minister relies on the second limb of that statement arguing that the Tribunal rejected the whole foundation of the applicant’s claims and in so doing necessarily rejected the only premise upon which a complementary protection claim could have been based; the circumstances that caused him to depart China. Having made those findings, the Minister argues, the Tribunal was relieved of the need to consider any other claims which rested on the same account of the applicant’s circumstances.
In the circumstances of this particular case the argument is attractive but I do not think it is sustainable. The requirement to consider complementary protection is a mandatory one formed by a reading of ss.36 and 65. The Minister cannot consider whether the other criteria for the visa prescribed by the Act have been satisfied (65(1)(a)(2)) unless the Minister considers the complementary protection requirement in s.36(2)(aa). And it is accepted that this was not considered.
It is to be remembered complementary protection requires a real risk that the non-citizen will suffer significant harm whereas the protection visa criteria is that the applicant is a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugee’s Protocol. That there is a real difference between these two criteria is clear and, indeed, it is emphasised by the respondent himself who claims that:
“[50] For completeness, it may be noted that although the applicant’s claims were considered against the Refugees Convention, none of his claims before the delegate or the Tribunal invoked any convention ground.”[2]
[2] “Applicant’s written submissions para [50]”
The respondent accepts that the applicant’s claim concerning being a failed asylum seeker was a claim under the Convention. Although it may not be necessary for me to do so, I would respectfully disagree with the Minister’s submission extracted above. I read the applicant’s claims as ones of imputed political opinion based upon his objection to the local government’s activities in relation to his family house.
When the Full Court made the statement extracted above in WAEE I do not believe that it was referring to not considering a required matter. There is a significant difference between making a finding and considering a matter and it is generally accepted that it is the consideration of matters that is required by ss.430 and 425. This case involves the non consideration of a mandatory ground for granting a visa and thus does not fall within the dicta of the Full Bench in WAEE. To my mind, the failure to give any consideration at all to the complementary protection requirements of s.36 constitutes a jurisdictional error on the part of the Tribunal, albeit one that is completely understandable in the particular circumstances of this case.
The respondent has a second string to his bow and he argues that even if I make a finding such as the one I have just made I should exercise my discretion not to refer the matter back to the Tribunal for rehearing on the basis that no useful result could ensue; Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [5] per Gleeson CJ, [56] per Gauldron and Gummow JJ, at [172] per Hayne J. He also refers me to the view of the Full Federal Court in Lee v Minister for Immigration & Anor (2007) 159 FCR 181 that it must be “quite clear that a rehearing or reconsideration is, or will be, futile.”
The respondent argues that this is the case because the applicant’s evidence before the Tribunal presented as an exhaustive statement of the circumstances in which he came to depart China. The Tribunal made findings of fact which, of their nature, excluded any complimentary protection claim that might otherwise have been made. The difficulty I have with this argument and the matter contained at [55] of the respondent’s written submissions is that in Lee quoted by the respondent in support of his argument, Besanko J with whom Moore J agreed said at [53]:
“However, as I have said, I think it is appropriate to apply a forward-looking test and doing so results in the conclusion that whilst a rehearing may prove futile the court cannot be certain that it will be the case. ... the court cannot be certain that a rehearing will be futile ... in other words I do not think that relief should be refused unless it is clear that a rehearing will be futile and I do not think that it is clear in this case.”
See also Screen Australia v EME Productions (No 1) (2012) 200 FCR 282.
If this matter is referred back to the Tribunal for rehearing by a different Tribunal member it is possible that the applicant’s story might be accepted. The Tribunal member may consider that the claims being made by the applicant are either Convention related or, if they are not Convention related, may allow him to be granted the visa pursuant to the provisions of ss.36(2)(aa). The Tribunal may consider that if this applicant returns to China he will suffer significant harm. In my view none of the findings of this Tribunal are such that it can be said that a conclusion along these lines is so unlikely that the rehearing would be futile.
In these circumstances the Court will order that a Writ of Mandamus be directed to the Tribunal requiring it to determine the applicant’s application according to law. As the applicant is self represented no costs will be ordered. The Court would recommend that in the event that this matter is appealed by the Minister the applicant should be granted legal assistance pursuant to Part 12 of the Federal Court Rules.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Raphael FM.
Date: 14 December 2012
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