SZRUD v Minister for Immigration
[2012] FMCA 1237
•19 December 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRUD v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 1237 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in China – applicant’s fears found not to be well-founded – no arguable case of jurisdictional error. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.32, 36 |
| Minister for Immigration v Guo & Anor (1997) 191 CLR 559 Minister for Immigration v Jia Legeng (2001) 205 CLR 507 |
| Applicant: | SZRUD |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1995 of 2012 |
| Judgment of: | Driver FM |
| Hearing date: | 19 December 2012 |
| Delivered at: | Sydney |
| Delivered on: | 19 December 2012 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Mr C Barlow Clayton Utz |
INTERLOCUTORY ORDERS
The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,239 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1995 of 2012
| SZRUD |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application to review a decision of the Refugee Review Tribunal (Tribunal). The decision is dated on its face 20 August 2012. It was certified on behalf of the Tribunal’s district registrar on 21 August 2012. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from China (Fujian Province) and had made claims of persecution based on imputed political opinion. The following statement of background facts concerning the applicant’s claims and the decision of the Tribunal on them is derived from the Minister’s outline of legal submissions filed on 13 December 2012.
The applicant arrived in Australia on 8 April 2007, at which time he held a subclass 571 student visa[1]. This visa was valid until 15 March 2010[2].
[1] court book (CB) 87
[2] CB 87
The applicant then applied for a subclass 572 visa[3]. On 13 March 2010, this application was refused[4].
[3] CB 87
[4] CB 87
On 24 March 2010, the applicant applied to the Migration Review Tribunal (MRT) for review of the decision not to grant the subclass 572 visa.
On 5 October 2011, the applicant withdrew his application for review by the MRT[5].
[5] CB 87
On 18 October 2011, the applicant applied for a protection visa[6].
[6] CB 1-28
On 20 March 2012, the delegate refused the applicant's protection visa application[7].
[7] CB 48-65
On 15 April 2012, the applicant applied to the Tribunal for review of the delegate’s decision[8].
[8] CB 68-72
The applicant was invited to, and did, attend a hearing on 10 August 2012 before the Tribunal by video, the Presiding Member being present in Sydney and the applicant in Melbourne[9].
[9] CB 8-81, 90-92
On 20 August 2012, the Tribunal affirmed the delegate’s decision[10].
[10] CB 82-95
The applicant’s claims
The applicant claims to fear persecution in China on account of an imputed political opinion.
The applicant's claims, which were made in a written statement accompanying his original protection application, during a telephone interview with the delegate, and at a video conference with the Tribunal, are that:
a)in July 2006, the "Administration of Urban House Dismantling and Relocation of Yuxi Co" (Administration) dispossessed his family of their breeding farm without reasonable compensation[11];
b)on his parent's behalf, he wrote a letter to "high-level government" complaining about the circumstances of the dispossession, though no response was received[12];
c)in September-October 2006, he and his father visited the offices of the Fuqing City Government three times seeking to meet with the Director. The applicant acted as interpreter. On the third occasion, on 19 October 2006, his father argued with the staff, who called the police. The police detained him for three days and his father for fifteen days for "intervention with public function". While in detention, the police acquiesced in his physical mistreatment by other prisoners, some of whom threatened to break his legs next time he was in prison, for daring to visit the government[13];
d)the dispossession proceeded, and his family were compensated RMB 100,000, being significantly less than the claimed value of their breeding farm. They made further complaints to the Administration, which were ignored[14];
e)in 2008 he visited China, and had encountered no notable problems, returning to Australia afterwards;
f)in March 2010, his parents visited the Fujian province government, as a consequence of which they were detained for three months, and subsequently were forced to attend weekly "education" classes, and were tracked down if they did not attend. Since then, however, his parents have not had to report to anyone, and his parents have no intention of pursuing any further appeal to the authorities regarding the land dispute[15];
g)in September 2011, he had no problems renewing his Chinese passport[16]; and
h)the reason for his delay in applying for protection was that he did not know he qualified for protection as a refugee[17].
[11] CB 29-30, 86
[12] CB 30, 87
[13] CB 30, 87, 88, 91
[14] CB 31, 87, 91
[15] CB 31, 87, 91, 92
[16] CB 86, 88
[17] CB 32, 87
At the Tribunal hearing the applicant stated that his family was fined when his brother was born, and a paternal grandparent had been placed in the watch house for one month, although he did not claim to fear persecution by the authorities in relation to these matters[18].
[18] CB 91
As to his fear of persecution if returned to China, the applicant claimed that the Government would still be adversely interested in him, that he would suffer bad memories of being detained in 2006, and that he might be sent to re-education camp for being an escapee[19].
[19] CB 88, 91
Decision of the Tribunal
The Tribunal made the following relevant findings:
a)the applicant's claim that he and his family had suffered ill-treatment because they protested about the repossession of their land on unfair terms was "not inconsistent" with country information[20];
b)the applicant had a subjective fear of persecution based on his claimed past experiences[21];
c)there was no evidence to suggest that the applicant would recommence any action against the Chinese authorities if he were returned to China[22]; and
d)the applicant was no longer of adverse interest to the Chinese authorities, given that his parents had continued to live in China without any disturbance for the last two years, and the applicant returned to China in 2008 without encountering any problems[23].
[20] CB 92
[21] CB 93
[22] CB 93
[23] CB 93
Therefore, although the Tribunal did not have doubts about the applicant's subjective fear of persecution, it was not satisfied that the applicant's fear of persecution was "well-founded", because the evidence did not suggest that his fear was based on a "real chance" of persecution for a Convention reason. In short, the Tribunal was not satisfied that the applicant would suffer any harm for past activities concerning protesting the land acquisition or for any imputed political opinion, and therefore concluded that the elements in s.36(2)(a) of the Migration Act 1958 (Cth) (Migration Act) had not been made out[24].
[24] CB 93
The Tribunal also considered whether the applicant might suffer persecution on account of being a failed asylum seeker. However, in light of country information, the Tribunal did not accept that the applicant would face any such persecution because he did not possess the types of political profile (or in fact any political profile) to attract such attention[25].
[25] CB 94
The Tribunal concluded that the applicant would not meet the alternative criterion for complementary protection under s.32(2)(aa), particularly in light of the finding that he would not suffer any harm by reason of assisting in his parents' appeal against the government regarding the land acquisition, or because he might be characterised as a failed asylum seeker[26].
[26] CB 94
These proceedings began with a show cause application filed on 14 September 2012. The applicant continues to rely on that application. There are three grounds in the application:
1. There exists jurisdictional error on understanding of well-founded fear.
2. Bias of RRT against the applicant.
3. RRT’s denial of the applicant’s claims without conscience.
The application is supported by a short affidavit filed with it. I received the first paragraph of that affidavit as a submission and the balance as evidence. I also received as evidence the court book filed on 11 October 2012.
I invited the applicant in his oral submissions to explain the unparticularised grounds of review. In relation to the first ground, the applicant confirmed that he has been assisted in these proceedings by a migration agent, a Ms Li from the firm of Eternity International. I note from the court book that that firm assisted the applicant with his original protection visa application[27] and that that firm also assisted the applicant before the Tribunal, although it does not appear that that assistance was disclosed to the Tribunal. I draw that conclusion because the applicant confirmed that he was assisted by the firm before the Tribunal and because he used the firm’s postal address as his address for the receipt of correspondence before the Tribunal[28].
[27] CB 11
[28] CB 71
It appears that the first ground may have been suggested to the applicant by somebody at his migration agent’s firm. The difficulty for the applicant is that the Tribunal decision discloses that the Tribunal understood the criterion for the grant of a protection visa. This is made clear from [5]-[15] in relation to persecution and [16]-[18] in relation to complementary protection[29]. I see no arguable case that the Tribunal fell into any jurisdictional error in considering whether the applicant has a well-founded fear of persecution or other harm.
[29] CB 84-86
In relation to the second ground, the applicant contends that the process followed by the Tribunal was unfair. In developing that submission, the applicant returned to the merits of his claims for protection. There is nothing raised by the applicant that points to any unfairness in the Tribunal’s process.
In support of the third ground, the applicant stated that the Tribunal’s decision was rushed. I note that the review extended beyond the 90 day target which the government has set for the Tribunal in the review of protection visa decisions. The decision was made about 10 days after the hearing conducted by the Tribunal. It does not appear to me that the Tribunal proceeded with any undue haste.
The applicant also stated that when he attended his hearing before the Tribunal, in addition to the presiding member, there was another person present who was apparently a newly appointed member who was there to observe the proceeding. I see nothing untoward in such an occurrence. It is not uncommon for courts, including this Court, to invite a newly appointed judge to sit on the bench with a presiding judge to observe a proceeding.
The Minister’s submissions otherwise deal comprehensively with the application before the Court. I agree with those submissions.
Ground 1
Insofar as the applicant claims that the Tribunal misapplied the law as to the meaning of "well-founded fear", the claim must fail.
It is well established that the phrase "well-founded fear" in Article 1A(2) of the 1951 Geneva Convention relating to the Status of Refugees, as amended by the 1967 New York Protocol relating to the Status of Refugees, requires an applicant to show that they subjectively hold a fear of persecution for a Convection reason, and that that fear must be "well-founded", this latter element adding "an objective requirement to the requirement that an applicant must in fact hold such a fear"[30].
[30] Minister for Immigration v Guo & Anor (1997) 191 CLR 559 at 571 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ (Guo)
In Guo, the majority explained[31]:
The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.
[31] at 574-575
This passage was quoted in full in the Tribunal's decision[32].
[32] CB 93
The Tribunal in the present case appropriately evaluated the likely course of events should the applicant be returned to China. It made findings, as it was entitled to on the evidence before it, that[33]:
a)the applicant's parents no longer need to report to the authorities,
b)the applicant's parents had no intention of pursing their claim for adequate compensation for the repossession of their land;
c)the applicant's parents had lived without disturbance for two years;
d)the applicant had visited China and not come to the attention of the authorities;
e)the applicant did not have a profile which would render him susceptible to the possibility of persecution based on being a failed asylum seeker.
[33] CB 93-94
On this basis, the Tribunal could be neither satisfied that the applicant was of present adverse interest to the Chinese authorities, nor that he would suffer any harm based on his past experiences in China[34] nor because he might be regarded as a failed asylum seeker[35]. There is nothing in the Tribunal's decision that suggests it misapplied the law. Moreover, that decision was made by reference to the evidence elicited from the applicant, and discloses no irrationality.
[34] CB 93
[35] CB 94
Ground 2
To succeed in challenging the Tribunal's decision due to bias, the applicant must be able to demonstrate that the Tribunal was actually biased towards the applicant, or that a fair-minded observer would regard the Tribunal as having prejudged the applicant's claims, in the sense that the Tribunal was "so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented"[36].
[36] Minister for Immigration v Jia Legeng (2001) 205 CLR 507 at [69], [71]–[72], [127]
The applicant has not given any particulars in support of this ground, nor has he provided any evidence that the Tribunal was actually biased towards him.
Similarly, the applicant has been unable to demonstrate how the Tribunal's decision can be said to be affected by apprehended bias. The applicant was invited to, and did, attend a hearing before the Tribunal to given evidence and present arguments. The Tribunal did not have cause to doubt many aspects of the applicant's claims regarding his past experience. Rather, it found that, in the circumstances, it was not satisfied that the applicant's fear of persecution was well-founded, a conclusion which was plainly open to it.
None of this suggests a pre-disposition to disbelieve the applicant, nor a mind closed to persuasion.
Ground 3
Ground 3 is ambiguous and does not identify any error capable of review by this Court.
I conclude that the applicant has failed to demonstrate an arguable case of jurisdictional error by the Tribunal. I will order that the application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (Federal Magistrates Court Rules).
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. The applicant queried his options at this point but did not wish to be heard on costs. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,239 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Driver FM
Date: 20 December 2012
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