SZRPB v Minister for Immigration
[2011] FMCA 951
•1 December 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRPB v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 951 |
| MIGRATION – Review of decision of the Refugee Review Tribunal – capacity of applicant to participate in the Court hearing – relevance of international treaties in the consideration of the protection visa – request for impermissible merits review – Tribunal’s findings were reasonably open to it – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.36, 65, 189, 411, 414, 425, 425A, 441A, 441C, 441G, 476 Migration Regulations 1994 (Cth), reg.4.35D Australian Human Rights Commission Act 1986 (Cth), Sch.2 Criminal Code Act 1995 (Cth) |
| Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481 International Covenant on Civil and Political Rights [1980] ATS 23 (Cth) International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) |
| Applicant: | SZRPB |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1932 of 2011 |
| Judgment of: | Nicholls FM |
| Hearing date: | 1 December 2011 |
| Date of Last Submission: | 1 December 2011 |
| Delivered at: | Sydney |
| Delivered on: | 1 December 2011 |
REPRESENTATION
| The Applicant: | In person |
| Appearing for the Respondents: | Ms B Rayment |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application made on 30 August 2011 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1932 of 2011
| SZRPB |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 30 August 2011 pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 5 August 2011, which affirmed the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.
Background
The applicant is a national of the People’s Republic of China (“China”), who arrived in Australia on a tourist (subclass 676) visa on 25 September 2010. The visa ceased to be in force on 26 October 2010. No other visa appears to have been granted to the applicant.
While in Australia the applicant attempted to look for work as a “nanny” but was unsuccessful (Court Book – “CB” – CB 43.7).
On 1 March 2011 the applicant was travelling on a train without a ticket. She was located by transport officers who contacted the Department of Immigration and Citizenship (“the Department”). The applicant was consequently detained in the Villawood Immigration Detention Centre pursuant to s.189(1) of the Act (CB 43.8).
On 10 March 2011 the applicant made an application for assistance in applying for a protection visa (CB 1 to CB 2). An agent from the “Refugee Advice and Casework Service” was assigned to her (CB 3 to CB 10).
On 24 March 2011 the applicant’s assigned migration agent, who is also a solicitor, wrote to the Department attaching forms for the purpose of applying for a protection visa (CB 11 to CB 45).
Claims to Protection
The applicant’s claims to protection are set out initially in her statement attached to her protection visa application (CB 41 to CB 45), what she told the Minister’s delegate at an interview (CB 71 to CB 72), and in further submissions made by her representative (CB 60 to CB 62).
The applicant’s claims were that in circumstances where she had separated from her husband, had ceased working and received an inadequate pension, she claimed to fear harm from persons from whom her daughter borrowed money to fund her travel to Australia. She also claimed that she would be targeted by these creditors because she was a woman without male protection. Further, that she would suffer harm if a Court ordered her to repay the money.
The applicant also claimed that she would be denied protection by the Chinese state because she was a member of a particular social group, namely “aged women who are in poor health, retired and lack male protection” (CB 74). She further claimed that would also suffer harm as a member of this group because she would be unable to find employment and would be without funds to afford housing or medical treatment.
The Delegate
The delegate found that the applicant’s fear of persecution was not for a Refugees Convention reason as the fear “… is of a domestic and economic nature…” (CB 75.5).
In the alternative, the delegate found that, even if the applicant belonged to a particular social group, even though the one proffered by the applicant was not a cognisable group that could be distinguished from the rest of the society, she was not satisfied that the “essential and significant reason” for the harm feared was due to the membership of any such group. Rather the fear was due to an unpaid debt (CB 75.4).
Therefore the delegate found that the applicant was not a person to whom Australia owed protection obligations (CB 76.1).
The Tribunal
The applicant applied for review of the delegate’s decision to the Tribunal on 3 May 2011 (CB 82 to CB 87). The same migration agent continued to assist her (CB 82 to CB 83).
On 11 May 2011 the Tribunal invited the applicant to attend a hearing before it on 31 May 2011 (CB 91 to CB 94). The invitation made pursuant to s.425 of the Act, complied with all the relevant statutory and regulatory requirements (see in particular ss.425A, 441A, 441C, 441G and reg.4.35D(b) of the Migration Regulations 1994 (Cth)).
The applicant’s representative responded that the applicant would like to attend but that she was “currently experiencing severe back pain” (CB 96). In any event, the applicant did attend. She was accompanied by her migration agent, who made oral submissions on her behalf (CB 101 and [49] at CB 136). The applicant was given two weeks to make further submissions on the claim that she would not receive medical treatment in China ([50] at CB 136).
The applicant’s representative submitted various medical documents which related to her claimed back pain and fibroid uterus condition, as well as dental records (CB 105 to CB 120 and [51] at CB 136 to CB 137).
On 8 July 2011 the Tribunal wrote to the applicant and invited submissions as to the relevance of these medical reports to her claim for protection (CB 121 to CB 122).
The applicant’s agent responded in writing by letter dated 11 July 2011 (CB 124 to CB 125). At best, the relevance was said to be that the applicant’s inability to afford medical treatment in China would, in part, be as a result of discrimination by the state against older women. A bare reference was made linking this to the particular social group previously advanced (CB 124 to CB 125).
The Tribunal found the applicant to be a credible witness ([64] at CB 143). It understood the applicant’s claims to fear persecutory harm to emanate from three sources ([65] at CB 143).
The first was a fear of harm based on funds owed to her creditors. The Tribunal found that any harm she may suffer from creditors in each of the ways claimed would not amount to persecution in the Convention sense as the motivation for the infliction of any such harm would be because of the failure to repay her debt, and not for any Convention reason ([67] – [71] at CB 143 to CB 144).
The second was the question of state protection. The Tribunal rejected the applicant’s claims that the Chinese authorities would not afford her protection from non-state actors for a Convention reason. The Tribunal also found that, based on independent country information before it, there was “no evidence” that the authorities would withhold protection from women with the applicant’s characteristics ([72] – [85] at CB 144 to CB 146).
The third was the fear of having nowhere to live, being unable to subsist in China, and the fear of being unable to obtain medical treatment. Specifically noting the representative’s submissions and independent country information about the situation of women in China, the Tribunal accepted she may suffer some discrimination in employment and inequality in pensions and remuneration. But it also found that this did not amount to “serious harm” for a Convention reason ([88] at CB 146).
While the Tribunal accepted that the applicant may need some treatment for back pain, it found that she would not be denied any medical treatment in China due to her membership of a particular social group or any Convention reason, but because she could not pay for it ([92] – [96] at CB 147).
The Tribunal said it had considered the applicant’s claims individually and cumulatively, but was not satisfied that the applicant would face persecution based on any Convention ground ([97] – [99] at CB 148).
Application to the Court
The grounds of the application are in the following terms:
“1. Error of Law in the decision itself and in the manner in which REFUGEE REVIEW TRIBUNAL Conducted the hearing the matter.
2. Failing to take into account Australian Obligation under the International Convenant on Civial Right and Political Rights ICCPR under Article 2, 6 and or 7 of the ICCPR If I the applicant returned to CHINA.
3. Failing to take into account the Commonwealthy obligation under the International Convenant and the convention against Torture and Other Cruel, un-human or Degrading Treatment or Punishment CAT.”
[Errors in the original.]
Before the Court
Prior to the first Court date in this matter, the Minister’s representatives advised that the applicant, who was and continues to be held in immigration detention, was engaged in a hunger strike. In these circumstances, the Court’s registry arranged for a solicitor on the panel of the Court’s “Refugee Review Tribunal Legal Advice Scheme” to assist the applicant at the first Court date. At that event, Mr D Prince appeared in the capacity of amicus to the applicant. A final hearing date was not set pending the opportunity for the solicitor to obtain instructions from the applicant. The Court thanks Mr Prince for his assistance.
Ultimately, and in any event, at the hearing of this matter the applicant appeared in person with the assistance of an interpreter in the Mandarin language. Ms B Rayment appeared for the first respondent. Written submissions were filed only by the Minister.
At the commencement of the hearing Ms Rayment raised, fairly, the matter of the applicant’s medical condition. The question for the Court was the applicant’s capacity to speak on her own behalf and to participate in the hearing. In this regard, Ms Rayment tendered (with the applicant’s consent) a medical report prepared by a mental health practitioner under the auspices of a registered general practitioner (“RE-1”).
Relevantly the report noted:
“International Health and Medical Services…
▪ Seen by Dr K. Cho (GP) on 30/11/11 and declared physically fit to attend court on 01/12/2011.
Opinion
It is IHMS’ finding that:
v Ms Chen has no Formal Thought Disorder and her Judgement and insight are fully intact and present.
v Ms Chen has the mental capacity to make executive decisions in relation to her immigration pathway and other important matters.
v Ms Chen is mentally and physically able to attend court on 01-12-2011 despite her self-harm threats.
Summary/Recommendations
▪ Ms Chen has the mental and physical capacity to attend the Federal magistrate’s court on 01/12/2011 for the purposes of appealing the department’s decision to refuse her protection Visa application.
▪ Ms Chen’s threats of self harm need not affect her capacity to attend court unless she inflicts actual physical injury to her person that may render her temporarily unfit to attend on 01/12/11.
▪ A client is placed on the VHS (Voluntary Hunger Strike) if they are witnessed to or report to have missed a total of three consecutive main meals and like wise a client is removed from VHS if they are witnessed to consume a total of three consecutive meals.”
Before the Court the applicant presented at times as tearful, and at times appeared distressed. However she was positively responsive to questions from the Court as to her understanding of the nature of the proceedings, her capacity to participate, and her desire for the Court to help her so that she would not have to return to China.
I was satisfied, based on the medical report and my own observation of the applicant, that it was appropriate for the hearing to continue, noting also that the applicant had also been given the opportunity to obtain legal advice and assistance in her matter.
Before the Court the applicant’s position was that she could not go back to China, that she would be persecuted there, and that the Court should assist her to remain in Australia. None of this rose above a request for impermissible merits review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481).
As I explained to the applicant, the only way that the Court could assist her in that latter regard was if the Court could discern some “legal mistake” (jurisdictional error) in what the Tribunal had done. For the reasons that follow, I could not find jurisdictional error in the Tribunal’s decision.
Consideration
Ground one is an unparticularised claim that there exists some “error of law” in the Tribunal’s decision. At best it can be discerned that this is a complaint about the manner in which the Tribunal conducted the hearing.
As a preliminary matter I note what is set out above in relation to the invitation to hearing pursuant to s.425. On the evidence before the Court I can see no error in this regard.
In relation to the conduct of the hearing, the only relevant evidence before the Court is that set out in the Tribunal’s decision record.
In these circumstances, it is not open to this Court to otherwise make assumptions or infer as to what may have otherwise occurred (NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241).
This account shows that the applicant was given the opportunity to articulate her claims, expand on them, know the “case against” her and to make submissions. In fact her representative was present at the hearing, made oral submissions, and was given the opportunity to make further written submissions which the Tribunal took into account.
The issues in the review were exposed to the applicant either as a result of the delegate’s decision or what was discussed with the applicant at the hearing. On what is before the Court there is no evident error of the type identified by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 231 ALR 592.
While the representative had raised a matter some weeks before the Tribunal hearing going to the applicant’s capacity to participate (her “severe back pain” (CB 96)), there is no evidence before the Court to suggest that this continued to be a problem, or was such as to incapacitate the applicant at the time of the hearing such that it may be said she was denied the opportunity to meaningfully participate at the hearing (Minister for Immigration and Citizenship v SZNCR [2011] FCA 369).
Given that the representative raised this matter some weeks before the hearing and was therefore alive to the concern, it is important to note that there is no evidence that it was raised as a concern at the hearing by the representative, or for that matter, by the applicant. Nor was any mention made of this in subsequent submissions.
In all, ground one does not succeed.
Grounds two and three assert error on the part of the Tribunal in that it is said it failed to take into account certain international treaties to which Australia is a signatory (International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) and Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987).
Both treaties appear in some fashion in domestic law (International Covenant on Civil and Political Rights [1980] ATS 23 (Cth) see Australian Human Rights Commission Act 1986 (Cth), Sch.2 and Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment [1989] ATS 21 (Cth) see Criminal Code Act 1995 (Cth)). It is not clear whether it can be said that they have been enacted into domestic or municipal law in the sense discussed in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1; (2003) 195 ALR 502.
But what is clear is that the grounds do not succeed because, as the Minister submits, the relevant question for the Tribunal on the review of the delegate’s decision was whether it was satisfied that the applicant was a person to whom Australia owed protection obligations under the Refugees Convention.
It must not be forgotten that the applicant, with representation, applied for a protection visa. This immediately invoked the statutory and regulatory framework established by s.65, and in the circumstances, s.36(2) of the Act. That is, in effect, whether the applicant met the definition of “refugee” as set out in Article 1A(2) of the Refugees Convention.
There is nothing in that Convention, nor its “incorporation” into the Act, nor in the statutory requirements for the conduct of the review by the Tribunal, to suggest that the Tribunal was required or compelled to have regard to, or consider the other two treaties (see in particular ss.411 and 414 of the Act).
Nor is there anything in the material before the Court to show that these other treaties were advanced as part of the applicant’s case such that it can be said the Tribunal failed to consider a claim or relevant consideration in the conduct of the review. As the Minister submits, these treaties were otherwise irrelevant to the task statutorily set for the Tribunal by the Act.
Grounds two and three are not made out.
For the sake of completeness, I note that the relevant findings made by the Tribunal underpinning its conclusion were all reasonably open to it on what was before it. They were findings for which the Tribunal gave cogent reasons. No error is revealed in these circumstances.
The Tribunal dealt with all of the claims put and as they clearly arose from the circumstances presented (Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244, NABE v Minister for Immigration & Multicultural & Indigenous Affairs(No.2) [2004] FCAFC 263; (2004) 144 FCR 1).
In particular, I note that the Tribunal did look at the applicant’s claims as they were said to arise from the claimed membership of the group of women with the applicant’s characteristics. Its subsequent findings in this regard were also reasonably open to it on what was before it (see in particular [80] at CB 145 to [85] at CB 146).
The Minister also submits that the question of what constitutes “serious harm” in relation to the applicant’s claims of economic hardship, the capacity to subsist, denial of access to basic services and denial of capacity to earn a livelihood, are all matters involving questions of fact, and degree, for the Tribunal as the sole arbiter of the facts (VBAS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 212; (2005) 141 FCR 435).
Conclusion
As I explained to the applicant, for her to succeed before the Court the Court would need to find jurisdictional error in the Tribunal’s decision. I cannot see such error. In these circumstances, the application to the Court should be dismissed.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Date: 2 December 2011
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