SZRMF v Minister for Immigration

[2013] FMCA 180

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRMF & ANOR v MINISTER FOR IMMIGRATION & ANOR [2013] FMCA 180

MIGRATION – Review of decision of RRT – whether Tribunal failed to comply with requirements of s.424A of the Migration Act 1958 – whether Tribunal considered complementary protection provisions – whether Tribunal fell into jurisdictional error.

PRACTICE AND PROCEDURE – Adjournment – where applicant sought adjournment on ground of suffering from the flu – whether to adjourn.

Migration Act 1958 (Cth), ss.36(2)(a), 422(B), 424A

SZRNX v Minister for Immigration & Anor [2012] FMCA 1242

First Applicant: SZRMF

Second Applicant: SZRMG

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1073 of 2012

Judgment of: Raphael FM

Hearing date: 25 February 2013

Date of Last Submission: 25 February 2013

Delivered at: Sydney

Delivered on: 25 February 2013

REPRESENTATION

For the Applicant: In person

Counsel for the Respondent: Mr R Graycar

Solicitors for the Respondent: Minter Ellison

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent’s costs assessed in the sum of $6,471.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1073 of 2012

SZRMF

First Applicant

SZRMG

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicants are citizens of China who arrived in Australia on 22 June 2011.  On 4 July 2011 they applied to the Department of Immigration for protection (Class XA) visas.  The principal applicant is the second applicant’s mother.  The second applicant appears to be an adult.  He has no claims of his own and completed Form D as a member of the first applicant’s family unit.  On 22 September 2011 a delegate of the Minister refused to grant a protection visa.  On 21 October 2011 the applicants applied for review of that decision from the Refugee Review Tribunal.  They were represented by a migration agent.  They attended a hearing before the Tribunal on 11 April 2012.  On 19 April 2012 the Tribunal determined to affirm the decision not to grant the visa.

2. The claims made by the first applicant are helpfully summarised by the Tribunal at [CB 178] in its findings and reasons.

   “[68]Applicant 1 claims that in 2009 the government appropriated a house belonging to her.  She claims that the government and the developer did not offer sufficient compensation and she took steps to obtain a more equitable compensation package for her and others who were similarly aggrieved.  The applicant claims that she lodged petitions and when the government filed to respond to those petitions she organised a demonstration against the local government.  The applicant claims that the authorities accused her of disturbing the public order and on 16 February 2011, she was detained and held for fifteen days.  The applicant claims that she was mistreated by the authorities during her detention.  She claims that in June 2011 she received a summons to attend a police station.  The applicant claims that she had already made arrangements to come to Australia and she left China without responding to the summons.  She claims that her husband was questioned after she left the country.  The applicant claims that she does not wish to return to China because it is a country which did not have human rights.  She claims that she will be targeted again by the PRC authorities, as she was previously, for the same reasons.”

3. The Tribunal questioned the applicant upon her story.  Whilst it came to the view that the important elements on her story were truthful it felt that she had exaggerated certain aspects of her claims in order to enhance her application.  The Tribunal had also questioned the second applicant and came to the same conclusion about his claims.  In particular, it came to the conclusion that the home, which had been expropriated was not the second applicant’s actual home, although it was a house which belonged to his mother.

4. The Tribunal concluded that whilst the applicant had suffered what it was prepared to accept as evidence of persecution and that this persecution was for a Convention reason, it felt that once she had been released from prison in March 2011 the authorities had no longer any interest in her and that she had abandoned any continuing claim in respect of the expropriation of her property.

   “[76]The applicant claims that the dispute between her and the local government and the developer is an ongoing dispute.  She claims that they will seek to harm her again if she returns to China because she has not abandoned her compensation claims.  However, the Tribunal has formed the view that the applicant did abandon her compensation campaign by the time she left China in June 2011.  It finds that if indeed the applicant was a person of ongoing adverse interest to the local government, or the developer, there was sufficient time and opportunity to target the applicant while she was in China.  The Tribunal has formed the view that the authorities did not demonstrate any apparent interest in the applicant, after she was released from prison in March 2011, and before she left the country in June 2011, because she was no longer a person of interest or concern to the PRC authorities or to the developer who redeveloped the area where her ancestral home previously stood….”

5. In regard to the summons which the applicant claimed was issued against her, a translation of which is found at [CB 77] the Tribunal found that:

   “[75]It is not satisfied by the available information that the summons was a punitive measure by the police or that the police were seeking to harm her.”

6. The Tribunal considered some broad claims made by the applicant that the government was implicated in human rights abuses but did not believe that the views which she held would attract the adverse interest of the PRC authorities.  It considered that apart from the attempts which she made to obtain a better compensation package she has not participated in any activities of a political nature against the government and is therefore not a person in whom the government are interested.  The Tribunal expressed the view that it was satisfied that the applicant was not a political activist or one likely to be considered so and therefore there was no real chance that she would be targeted or mistreated by the authorities in China because of her political opinion.

7. The Tribunal then went on to consider at [81] the complementary protection issues which it had flagged as being required matters at

   
   

   [16-18] [CB 170].  Its decision on this matter was short.

   “[81]The Tribunal has also considered whether there was substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that she will suffer significant harm under the complementary protection criterion.  The applicant did not raise claims in this regard and the Tribunal is not satisfied by the evidence that such a risk exists for the applicant.”

8. On 17 May 2012 the applicant applied for a review of the Tribunal’s decision from this Court.  There are two grounds contained in her application.  The first is:

   RRT is not satisfied by the available information that the summons was a punitive measure by the police or that the police were seeking to harm her.  However, the available information on which RRT was seeking to rely was not put to the applicant during the interview or after the interview which deprived the applicant of an opportunity of giving comment or response. The effect of the summons formed the primary decision of RRT was not put to the applicant which is in breach of procedural fairness prescribed by the Migration Act.

9. I agree with the submission of the respondent that this is, in effect, an argument that the Tribunal did not comply with the provisions of s.424A of the Migration Act 1958 (Cth)[1], it being the case that matters of procedural fairness are now governed by a code which commences at s.422B with the words: 422B(1):

   “422B(1)This division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.”

   [1] “Act”

10. The problem with the applicant’s complaint under this ground is that there is nowhere identified what the available information is that was apparently not shown to her or given to her and in a way in which she was provided with an opportunity to respond to it. The respondent submits that the words “available information” refers to the information that was before the Tribunal at the time of the hearing, namely, information provided by the applicant which is not a matter that falls within s.424A except as an exception to that rule or independent country information which is in the same category. In my view, this is an inference that the court is entitled to make and therefore, the first ground must fail.

11. The second ground of application was:

    RRT has not sufficiently considered the applicant’s risk of being harmed after returning to China against the complementary protection criterion.  RRT’s reason of the applicant not raising claims in this regard is not valid foundation for ignoring the complementary criterion.

12. There have been several decisions of this court to the effect that consideration of the complementary protection provisions is a mandatory matter and that a failure to do so would constitute a jurisdictional error on the part of the Tribunal.  However, in this case I am of the view that the matter was considered.  There is specific reference to it at [81] already extracted and whilst the reference is short, that does not in itself indicate that the matter was ignored.  Complementary protection is protection given to persons who are likely to suffer persecution should they be returned to their country of origin for reasons which do not fall within the Convention definitions. 

13. It is possible, when considering a claim made by an applicant, for a Tribunal to come to the conclusion that whilst the persecution they fear is not Convention related, it is persecution nonetheless that will continue should they be returned. It is that type of persecution that s.36(2)(a) and the other sections relating to complementary protection seek to prevent. But this is not one of those cases. The claims made by the applicant were found by the Tribunal to be claims which did arise under the Convention. No other claims were made by the applicant.

14. Having considered the claims under the Convention and come to the conclusion that the applicant did not have a well founded fear of persecution should she be returned to China in the reasonably foreseeable future, there really was nothing that the Tribunal would have to consider in relation to complementary protection and that, in effect, is what it said.  For this reason I am satisfied that the second ground of application cannot succeed.  The brevity with which the opinion was expressed is not an indicator of jurisdictional error; SZRNX v Minister for Immigration & Anor [2012] FMCA 1242 at [15].

15. In these circumstances, there is nothing that I can do to assist the applicant in respect of her claims.  Before dismissing the application I should note that the applicant asked me at the commencement for an adjournment on the grounds of her having the flu.  I declined to provide an adjournment for a number of reasons.  Firstly, it seemed to me, that the applicant was not confused or in any way prevented by her symptoms from conducting her application.  Secondly, this matter came before the court first in July 2012 and the applicant has had well over six months in which to prepare for it. She failed to provide the court with written submissions that were required 14 days prior to the hearing.  She has had the respondent’s submissions translated to her by a highly competent translator.  Thirdly, as I explained to the applicant, I felt that the grounds of application, whilst being arguable, had no real prospects of success and that therefore any adjournment would have no utility.  It is best that these matters be concluded as soon as possible. 

16. In all these circumstances the court orders that the application shall be dismissed and that the applicant pay the first respondent’s costs assessed in the sum of $6,741.00.

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

Date:  13 February 2013