SZRSS v Minister for Immigration
[2013] FMCA 204
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRSS v MINISTER FOR IMMIGRATION & ANOR | [2013] FMCA 204 |
| MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal. ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal was biased, failed to take all claims into account and breached s.425 of the Migration Act 1958. |
| Migration Act 1958, ss.36, 424A, 425, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicant: | SZRSS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1813 of 2012 |
| Judgment of: | Cameron FM |
| Hearing date: | 20 March 2013 |
| Date of Last Submission: | 20 March 2013 |
| Delivered at: | Sydney |
| Delivered on: | 27 March 2013 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1813 of 2012
| SZRSS |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of China and claims that he and his family were persecuted by local Chinese authorities and forced to forfeit their property and land because he and his wife have three children, thereby contravening China’s one child policy.
The applicant arrived in Australia on a subclass 456 (Temporary Business) visa 27 July 2011 and lodged an application for a protection visa on 26 October 2011, the day before his business visa was due to expire. The application for a protection visa was refused by a delegate of the first respondent (“Minister”) on 17 February 2012 and the applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-19 of the Tribunal’s decision. Relevant factual allegations are summarised below.
The applicant made the following claims in his protection visa application and in a statement accompanying that application:
a)he had lived in the same village in the Hebei Province in China since his birth;
b)he was employed as a taxi driver prior to his departure from China;
c)he was married and he and his wife had three children (two daughters and a son). His wife and children remained in China;
d)during his wife’s third pregnancy in 2010 they constantly felt uneasy and were worried because having more children was against the law and the family planning rules. They decided to keep the child, a boy, after “repeated mental struggle” because the applicant liked children;
e)on 29 November 2010, the town government issued a notice requesting that he and his wife take measures to terminate the pregnancy despite the risks that the termination would have posed to his wife’s health;
f)his wife hid until their son was born on 18 December 2010 because they feared that she would be forced to have the pregnancy terminated;
g)after their son’s birth, the couple were threatened by the town family planning office and the village committee and were ordered to pay a penalty of 77,910 yuan;
h)on 3 November 2011 [sic] the applicant queried the amount of the penalty as a son of a village head had had a baby against the policy and was only ordered to pay 10,000 yuan. The family planning officer told him that the son of the village head had connections and if the applicant had had better connections he would not have had to pay even 10,000 yuan. In anger, the applicant said something. He was then worried about the consequences of his words;
i)on 10 March 2011, the town family planning office issued him with a notice to pay the penalty and also a notice for the forfeiture of his property and land;
j)on 20 March 2011, more than twenty people from the family planning office, the village committee and the police came to his house and beat him and his family and smashed their furniture. His four year-old daughter was knocked to the ground and he was pushed to the ground, punched and kicked. His ninety-three year-old grandfather was also assaulted. The property was then knocked down and the land forfeited, leaving his family homeless and forcing his wife and children to flee to his wife’s parents’ home;
k)people from the town government were sent to monitor him and hit him because they did not want him to complain to higher authorities. He was also forced to write a letter of guarantee; and
l)he came to Australia because it had human rights, freedom, equality and was not a country that would oppress him.
On 13 February 2012 the applicant was interviewed by a delegate of the Minister in relation to his protection visa application. He made the following additional claims:
a)he had been aware of China’s family planning laws and penalties and chose to have a third child nevertheless but he encountered retaliation when he complained to the family planning authorities about the disparity between his fine and that of the general secretary of the village;
b)he did not dispute the fine through official avenues because they had control over him and had beaten him unconscious many times;
c)the police and town government sent people to monitor and supervise him. They prevented him from leaving the village by stalking him constantly and by attacking him in bushland when he tried to travel to the country by road;
d)he was not able to pay the fine at the time his house was demolished but paid it on 29 June 2011. He felt had no choice but to come to Australia because they had made trouble for him. He stated that the secretary of the committee still wanted to make trouble for him;
e)if he returned to China he would be killed by the general secretary of the Communist Party of his village and the family planning official he complained to;
f)if he returned to China the police and town government would not let him go because he had disclosed to the outside world what they did. He had previously been beaten after visiting the town government and the county government;
g)he feared persecution from the government because it was unfair for them to have fined him that amount and because they had demolished his house; and
h)his mother was beaten by the police in China because of her Christian activities, however, this had no connection to his claims for protection.
The applicant attended a hearing before the Tribunal on 7 June 2012 when he provided a copy of his passport, his family’s household registration booklet, untranslated documents, photographs of his wife and children in China and other photographs said to be of their demolished house.
At the hearing the applicant gave the following evidence:
a)he was a taxi driver in China and had obtained his temporary business visa by paying 2,000 yuan for it to be arranged;
b)he came to Australia with another man who held the same visa and whom he met on the aeroplane. He had not been contact with that person since arriving in Australia;
c)the photograph in his passport was different from the photograph on his business visa application form because he had had two photographs taken when he applied for his passport. He wore a business suit in one of the photographs because the person who organised his visa had instructed him to;
d)he was a taxi driver in China. The person who arranged his visa to travel to Australia had made up the claim that he was employed as a technology manager in an environment protection company and had sought a temporary business visa to enable him to inspect a site in western Sydney on behalf of that company;
e)the untranslated documents which he had provided were a summons from the government and a certificate issued in March 2012 indicating that his land and property had been seized. The summons also indicated that he had to clear his land by 29 March 2012;
f)the authorities used “religious issues” as an excuse to seize his land and he did not know why his land had been seized. Neither he nor his wife were Christians but his mother was a Christian. The applicant then said that although he had not had a religion in China, since coming to Australia he had attended church every week;
g)he had three children born between 2003 and 2010. The birth date for his third child was incorrectly recorded in the household registration booklet. He had not been fined after the birth of his second child as his first child was female;
h)at the time of his third child’s birth he was told orally, which he said was the Chinese practice, that he had to pay 40,000 yuan. The formal written notice for 77,910 yuan was issued approximately six months after the birth. When he paid the fine in July 2011, it had been increased to 77,910 yuan although he had known of the increase before the written penalty notice was issued on 29 June 2011. The applicant then said that the first penalty notification was issued before his son was born and stated that his wife had to terminate her pregnancy by 1 December 2010 or they would be in breach of the local family planning regulations and liable to pay between 1,000 and 2,000 yuan. The notice was dated 29 December [sic] 2010. He also stated that he first knew that he had to pay 77,910 yuan on 3 January 2011 when the authorities came to his house seeking payment of the fine;
i)on 10 March 2011 he was issued with a demolition notice and again asked orally to pay the fine;
j)his house was demolished on 20 March 2011 because, in questioning the inconsistency between the fine issued to him and the fine issued to the village leader, he said something which was true. At the hearing, the applicant accepted the amount of the fine but stated that it had not been right to demolish his property and criticised the amount of his fine in comparison with the fines paid by others in his village. He stated that the highest amount paid in his village was 45,000 yuan and that the village leader had only had to pay 10,000 yuan;
k)he was detained and tortured by unspecified Chinese authorities. On 3 January 2011 the authorities came to his home asking for payment of the fine. He wanted further information so he went to the town city to ask for an explanation and on his way home he was attacked with a knife. This happened again when he visited the county family planning office;
l)he first considered applying for a passport when his wife was pregnant with their third child as he felt burdened by his responsibilities, was fearful of Chinese authorities and felt that he could not survive in China due to the lack of human rights and freedom; and
m)he feared harm from the government authorities, the leader of the village and the son of the leader of the village because he had exposed that they did not treat people fairly according to the law. They said that they would seek revenge and would torture him until he was dead.
After the hearing the Tribunal wrote to the applicant pursuant to s.424A of the Act inviting him to comment on various inconsistencies in his claims and evidence. The Tribunal invited the applicant to comment on inconsistencies in relation to his employment and education, the penalty notice and the amount of the fine, his treatment by the authorities in China and his claims about his religious beliefs and those of his wife and his mother. The Tribunal also indicated to the applicant that these inconsistencies suggested that he had poor credibility and was not a truthful witness.
The applicant’s response to the s.424A notice reiterated his claims and clarified the dates upon which events were said to have occurred. He stated that on 29 November 2010 he was first issued with a notice that demanded his wife terminate the pregnancy and fined them 1,000 to 2,000 yuan. On 18 December 2010, his third child was born which led to a fine of 77,910 yuan and threats from the village committee. On 3 January 2011 he was beaten and stabbed with a knife when returning from the local birth control and government offices where he had complained about the fine. On 10 March 2011 the local birth control office issued him with another notice which advised the confiscation of his property. He visited the city birth control office and the city government to complain but received no explanation and was again stabbed on his way home, this time more severely. On 20 March 2011, twenty people from the local government, birth control office, police station and village committee, and gangsters, came to his home, beat people and smashed or stole his belongings, leaving him and his family homeless. He claimed he was also monitored and tortured by the government for approximately two weeks and was forced to write a guarantee letter that he would never appeal again. On 29 June 2011 the government issued a notice of fine which he paid on 1 July 2011. Despite paying the fine, he was given a notice of confiscation of (other) land on 24 March 2012. He stated that he could not return to China as he would be beaten and killed and stated that they were trying to conduct reprisals against him even though he was in Australia.
Attached to the applicant’s response to the Tribunal were:
a)a translated summons dated 24 March 2012, summoning the applicant and his wife to appear at the city court in relation to “Land and Feudal Superstition”;
b)an administrative ruling from the city court stating that the applicant and his wife were subject to a land confiscation;
c)a notice of execution for the confiscation of the applicant’s land, dated 24 March 2012; and
d)an untranslated handwritten document.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)while the Tribunal accepted that the applicant had three children and had paid a fine in relation to his third child, it did not accept that he had suffered any physical harm at the hands of the authorities or had had his house destroyed and his land confiscated due to his breach of China’s family planning policies. The Tribunal concluded that the applicant’s evidence was confused, inconsistent and lacked credibility, leading to it to find that he had manufactured some of his claims, and all of his claims to fear harm in China, and had been untruthful. In this regard, the Tribunal made the following relevant findings:
i)the Tribunal did not accept that the applicant had been stabbed on 3 January 2011 after complaining to the local government authorities about the amount of the fine. The Tribunal did not accept that it was credible that the applicant would have complained about the fine at a time when he was uncertain of its amount and how it was calculated. The Tribunal also noted that the applicant originally told the Minister’s department that he had been issued with the notice on 10 March 2011 and considered that the applicant had “altered and shifted” his evidence;
ii)despite country information suggesting that family planning policies in Hebei had been harshly and arbitrarily applied, the Tribunal did not accept as credible that the applicant would have been attacked the first time he made a complaint. The Tribunal did not accept that the applicant had complained on that date or, if he did, that he would have posed a threat to officials which necessitated him being beaten;
iii)the Tribunal did not accept the applicant’s explanation for the differing and inconsistent dates he provided for the notice to pay the penalty and the notice of confiscation of land. The Tribunal accepted that there may have been a “translation error” concerning the date of the notice of the confiscation of property but nevertheless considered his evidence to have been “confused and inconsistent”;
iv)as he had paid the fine before he travelled to Australia, the Tribunal did not accept that the applicant had satisfactorily explained why the authorities would have had any interest in him. The Tribunal noted that the applicant gave inconsistent evidence about why he believed his property was confiscated in March 2012. The Tribunal found that the applicant’s evidence in relation to this issue was not credible and considered this claim to have been manufactured;
v)the Tribunal concluded that the applicant made an application for a passport and had thus decided to leave China, not because he genuinely feared harm from the authorities, but because of financial considerations arising from the pending birth of his third child, including the need to pay a fine. In this connection, the Tribunal cited the applicant’s inconsistent evidence about when he decided to apply for a passport and did not accept that he had satisfactorily explained why he had an “idea” about leaving China before his son was born. The Tribunal therefore concluded that the applicant had decided to leave China by at least December 2010, i.e. before any of the claimed conduct by the authorities had occurred;
vi)the Tribunal concluded that the applicant was employed by a Chinese environment protection equipment company and was not a taxi driver as he had claimed. In this connection, the Tribunal referred to the applicant’s previous studies in environmental protection and landscape engineering and the applicant’s evidence that he did an “internship” at an environmental protection company. The Tribunal also noted the evidence of a colleague of the applicant at the company, who was issued with a subclass 456 visa on the same day as the applicant and had also applied for a protection visa and whom the applicant admitted to meeting on the aeroplane to Australia, that he and the applicant were employed by the company and were in Australia to inspect a facility in Sydney. The Tribunal considered that the applicant had attempted to misrepresent his circumstances in China in order to provide a basis for his protection claims;
vii)the Tribunal accepted that the applicant was fined, that he paid the fine, that his wife might have been issued with a “termination letter” and fined and that there was corruption in the application of the family planning laws. However, as the fine was less than 2.5 times the applicant’s annual income, as prescribed in the local family planning policy, the Tribunal did not accept that it was otherwise than in accordance with China’s family planning laws or that the applicant had been specifically targeted. The Tribunal did not accept that the applicant suffered any adverse consequences apart from the financial ramifications arising from the payment of the penalty;
viii)as the applicant had paid the fine, the Tribunal did not accept that he had suffered harsh and severe consequences as he had claimed. The Tribunal concluded that the applicant was subject to a law that applied generally to the Chinese population and had not been targeted. The Tribunal was also not satisfied that there was a real chance that the applicant would be subject to serious harm upon his return to China for breaching the family planning laws;
ix)the Tribunal did not accept that the photographs provided by the applicant depicted demolished property owned by him or that the translated documents he provided purportedly in relation to the confiscation of his land were genuine; and
x)given the applicant’s serious credibility issues, the Tribunal also did not accept that his mother had been arrested or assaulted for her religious beliefs or that the applicant had been attending church in Australia. The Tribunal noted that the applicant made no claims that he feared harm in relation to his religious beliefs.
The Tribunal was also not satisfied that the applicant met the criteria of the complementary protection regime prescribed in s.36(2)(aa) of the Act as it found that he had not suffered any adverse consequences, apart from financial penalty, and that, as he had paid that penalty, there were no substantial grounds to believe that there was a real risk that he would suffer significant harm upon his return to China.
Proceedings in this Court
In the application commencing these proceedings the applicant alleged:
1.I have three children, so I was fined and my property and land were forfeited. The authorities beat us and smashed our furniture. They monitored me stopping me to complain about them to the higher authorities, therefore I had to escape from China. The Refugee Review Tribunal member failed to consider my application according to s.91R of the Migration Act 1958 because of the Tribunal’s bias against me.
2.The Refugee Review Tribunal failed to take all my claims into account according to s.424A of the Migration Act 1958.
At the hearing of this application the applicant also alleged that interpreter services at the Tribunal’s hearing had been inadequate.
Bias
The allegation of bias made in the first ground of the application did not identify whether the applicant alleged that the Tribunal was biased in fact or whether a reasonable lay person might have perceived the possibility that it was. An allegation of bias must be clearly alleged and proved. As the applicant failed to properly articulate a claim of bias, it is not appropriate for the Court to make the finding which the applicant seeks. In any event, whichever sort of bias the applicant might have intended to allege, it was unsupported by the evidence. The only evidence before the Court which might have touched on the question of whether the Tribunal was biased was that contained in the Court Book which was exhibit A and, in particular, the Tribunal’s decision record reproduced there. The material in the Court Book does not support findings of actual or apprehended bias on the part of the Tribunal.
For these reasons, the first ground of the application is not made out.
Failure to take all claims into account
In the second ground of his application the applicant alleged that the Tribunal failed to consider all of his claims but did not identify which claims had not been addressed. As is apparent from the summary of the applicant’s evidence and submissions set out earlier in these reasons, despite certain inconsistencies the applicant’s claims were not particularly complex. The summary of the Tribunal’s reasons for decision, also set out above, discloses that it did consider the claims which the applicant made although it was not convinced by them.
As I find that the Tribunal did consider the claims which the applicant made, the second ground of the application is not made out.
Breach of s.425
At the hearing of this application the applicant alleged that the interpreter at the Tribunal hearing made translation errors which led the Tribunal to think (incorrectly) that there had been inconsistencies in his evidence. In this regard, he specifically referred to his evidence concerning when he received notice of the confiscation of his property and the fact that a discrepancy in this connection had been referred to by the Tribunal in its notice to him pursuant to s.424A of the Act.
If, through interpretation deficiencies, an applicant is denied an opportunity to adequately advance his or her evidence and/or arguments then the Tribunal will have failed in its duty under s.425(1) of the Act to provide the applicant with a proper hearing.
At paras.71 and 72 of its reasons, the Tribunal dealt with the issue which the applicant raised at the hearing of this application. It said:
He was also asked during the Tribunal hearing when he was given the penalty notice and he stated that on 10 March 2011 he was only given the penalty notice orally. In response to the Tribunal’s s.424A letter, the applicant has stated that he was not given a notice to pay the fine on 10 March 2011 and that his earlier evidence was a “translation error” and he was only given a notice for the confiscation of his property and land and it was on 29 June 2011 that he was given the notice of the fine and he paid it on 1 July 2011. The applicant claimed in response to the Tribunal’s s.424A letter that he may have made “time errors” and that his wife told him the date.
The Tribunal is prepared to accept the “translation error”, but nevertheless considers that the applicant’s evidence in relation to the above issues is confused and inconsistent. …
It can therefore be seen that the Tribunal was well aware of the issue which the applicant raised at the hearing of this application. Importantly, it was willing to accept that the error in interpretation asserted by the applicant had occurred, although, even doing so and taking it into account, it still believed that his evidence concerning when he was notified of how much he had to pay was confused and inconsistent, leading to its further conclusion that he had been evasive and had altered his evidence.
The applicant did not identify any other specific examples of interpretation deficiencies and adduced no evidence in support of his oral submissions. There is therefore no basis to conclude that the interpretation services at the Tribunal hearing were deficient in any way other than that accepted and dealt with by the Tribunal or that the applicant was denied a proper opportunity to put his case.
For these reasons, the allegation made at the hearing of this application has not been made out.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Cameron FM
Date: 27 March 2013
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