SZSFX v Minister for Immigration

[2013] FCCA 1309

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSFX v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1309

Catchwords:
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 – Tribunal erred by not dealing with the applicant’s claim that she would join protest activity in China should she return there.

Legislation:

Migration Act 1958 (Cth), ss.5, 36

Dranichnikov v Minister for Immigration (2003) 77 ALJR 1088
NABE v Minister for Immigration (No.2) (2004) 144 FCR 1

Applicant: SZSFX

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2699 of 2012

Judgment of: Judge Driver

Hearing date: 10 September 2013

Delivered at: Sydney

Delivered on: 18 October 2013

REPRESENTATION

Solicitors for the Applicant:

Mr R Turner

Turner Coulson Immigration Lawyers

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The name of the first respondent be amended to “Minister for Immigration and Border Protection”.

2. A writ of certiorari shall issue removing the record of the Refugee Review Tribunal decision made on 17 October 2012 into this Court for the purpose of quashing it.

3. A writ of mandamus shall issue requiring the Refugee Review Tribunal to redetermine the review application before it according to law.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2699 of 2012

SZSFX

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. This is an application to review a decision of the Refugee Review Tribunal (Tribunal).  The decision was made on 17 October 2012.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. 

2. The following statement of background facts is derived from the Minister’s outline of written submissions.

3. The applicant is a citizen of China who arrived in Australia on 13 January 2008 travelling on a student guardian visa[1].  She applied for the protection visa on 15 December 2011[2]. The applicant was interviewed by the delegate on 4 May 2012[3].  The delegate refused the application on 22 June 2012[4].  The applicant applied to the Tribunal for review on 16 July 2012[5].  The Tribunal held a hearing on 25 September 2012[6].

   [1] court book (CB) 66.1

   [2] CB 1-42

   [3] CB 71.2

   [4] CB 62-82

   [5] CB 83-88

   [6] CB 92-94

4. The applicant claimed to fear persecution because of her Catholic religion, and her imputed political opinion as a result of her husband’s protests in 2011 against a polluted river near his property in Fujian province.  The applicant claimed that Chinese authorities had found evidence of her being involved in illegal printing for the church in 2011, and were looking for her.  She claimed the police had assaulted her husband after his protest, and were looking for him and that as a result he had left Fujian province[7].  The Tribunal found that there was insufficient evidence for the Chinese authorities to link the applicant to the illegal printing, and found on the basis of independent country information that she did not have a well-founded fear of harm based on her religion[8].  The Tribunal also found that there was insufficient evidence for the Chinese authorities to impute any antithetical political opinion to the applicant, noting that her evidence did not suggest that her husband had suffered serious harm and that her son in Fujian province had not been harassed by the authorities[9]. As a consequence of these findings the Tribunal also found that the applicant was not owed protection under the “complementary protection” provisions in s.36(2)(aa) of the Migration Act 1958 (Migration Act)[10].

   [7] See generally CB 121-131

   [8] CB 134-135 [114]-[121]

   [9] CB 133-134 [109]-[113]

   [10] CB 136 [123]

The judicial review application

1. These proceedings began with a show cause application filed on 20 November 2012.  The applicant now relies upon an amended application filed on 15 March 2013.  The grounds in that application are:

   1. The Second Respondent (Tribunal) failed to take account of all integers of the Applicant’s claims.

   Particulars

   a.(i)The Applicant’s claim was that she would join, and participate in, the anti-pollution protests.  CB28, 108, 122

   (ii) The Tribunal found at CB 134 [109]

   “…Even if the Tribunal accepted that the applicant’s husband was a [person of] interest to the [Chinese] authorities in respect of his protests against pollution in China, the Tribunal finds that this would be insufficient to justify a well-founded fear of serious harm on the part of the applicant on the basis of an imputed political opinion.  In this regard, the Tribunal notes the evidence of the applicant that her son (presently residing in Fujian) has not, nor is likely to be, harassed by the Chinese authorities as he has had no involvement in any of the protest or political activities carried out by her husband.  The Tribunal finds that the same outcome would be applicable to the applicant given her lack of involvement in such activities.”

   and at [113]

   “The Tribunal finds that there is no real chance the applicant will face persecution because of any political opinion imputed to her on the basis of any association with her husband, any association with any anti-pollution activities of her husband, or the existence of the pollution.”

   (iii) The Tribunal has, therefore, failed to consider the Applicant’s claim that, if she is forced to return to China, she will join, and be active in, the protests against the pollution.

   (b)(i) The Applicant feared harm because of the “pollution” if she was forced to return to China.  CB122, 124, CB128 [72]

   (ii)        The Tribunal found at CB128, [72]

   “…the Tribunal pointed out to the applicant that the Convention grounds do not include pollution.  As a result, the Tribunal could not make a finding that the applicant was a refugee based on any harm, or potential harm, arising from the polluted river adjacent to the applicant’s property in China… The Tribunal explained a number of times that pollution was not a ground for protection under the Refugees Convention. …”

   and at CB133 [108]

   “The Tribunal notes that pollution is not a ground to protection specifically listed in the refugees Convention.  On the basis of the evidence before the Tribunal, the Tribunal is not satisfied that the essential and significant reason for any pollution related harm (such as health, environmental and social concerns for the applicant) is a Convention reason.”

   (iii) By so finding, the Tribunal has failed to appreciate that “pollution” may give rise to a claim for [complementary] protection as that term is defined in the Migration Act 1958 ss.5 and 36.

   The Tribunal, therefore, failed to consider this integer of the Applicant’s claim.

2. I have before me as evidence the court book filed on 17 January 2013.  I also received the affidavit of Mary Corkhill made on 14 August 2013, to which is annexed a transcript of the hearing conducted by the Tribunal on 25 September 2012.

3. The parties both made written and oral submissions.

Consideration

1. The applicant contends that the Tribunal failed to take into account all integers of her claims.  This is based upon her written claims, the decision of the delegate and what occurred before the Tribunal, resulting in the Tribunal decision.

2. The applicant claimed that she would join, and participate in, the anti-pollution protests[11]:

   [11] CB 27-28

   …If I return to [C]hina, … I would have had to join the ranks of anti-pollution to defend my personal interest, this is very likely to be persecuted by the company and the government.

   …

   The case officer said: i didn’t involve with my husband’s petitions. … If i am kicked back to China, there are no doubt, i will serious and long term stuck the pollution’s suffering.  i will support or instead to continues my husband’s action.[12]

   [12] CB 108 [3]

3. The Tribunal found[13]:

   [13] CB 134 [109]

   … Even if the Tribunal accepted that the applicant’s husband was a [person of] interest to the [Chinese] authorities in respect of his protests against pollution in China, the Tribunal finds that this would be insufficient to justify a well-founded fear of serious harm on the part of the applicant on the basis of an imputed political opinion.  In this regard, the Tribunal notes the evidence of the applicant that her son (presently residing in Fujian) has not, nor is likely to be, harassed by the Chinese authorities as he has had no involvement in any of the protest or political activities carried out by her husband.  The Tribunal finds that the same outcome would be applicable to the applicant given her lack of involvement in such activities. (emphasis added)

   …

   The Tribunal finds that there is no real chance the applicant will face persecution because of any political opinion imputed to her on the basis of any association with her husband, any association with any anti-pollution activities of her husband or because of the existence of the pollution.[14]

   [14] at [113]

4. These findings are said to fail to deal with the applicant’s claim that she will, if she is returned to China, become involved in the protests.

5. The Tribunal’s rejection of that claim was on the basis of “her lack of involvement in such activities.”

6. The Tribunal was required to look at what would occur if the applicant was returned to China not solely at what she had done prior to her departure.

7. The Tribunal recognised that the applicant feared harm because of the consequences of the “pollution” if she was returned to China:[15]

The applicant said that if she is forced to return to China she will be required to live in the intolerable environment, join the protesters to defend her personal interests and be persecuted by the government and the company.

[15] CB 122 [30]

1. The affidavit of Mary Corkhill sworn 4 August 2013 (MC) annexes a transcript which contains the following statement by the applicant during the Tribunal hearing[16]:

   I don’t quite understand it because I am thinking pollution is making a great deal of harm to me and we are supposed to be protected by the government.

   … my husband is … persecution so he can’t go home so if I … I would join him and I would help my husband.

   [16] MC 4

2. The issue being raised by the applicant was that the river near to her home was so polluted that it was causing health problems in her family and her country and that neither the company causing the pollution or the government were prepared to do anything about it.

3. The applicant contends that such a claim could lead to a claim for complementary protection under the s.36(2)(aa) of the Migration Act. It could, in the applicant’s view, amount to significant harm being degrading treatment.

4. The Tribunal dismissed any possibility that pollution could amount to serious harm at [108][17]:

   The Tribunal notes that pollution is not a ground of protection specifically listed in the refugees Convention. On the basis of the evidence before the Tribunal, the Tribunal is not satisfied that the essential and significant reason for any pollution related harm (such as health, environmental and social concerns for the applicant) is a Convention reason.

   [17] CB 133

5. This reasoning process of the Tribunal in relation to a possible claim for complementary protection is said to be informed by reference to the transcript.

6. The Tribunal pointed out that pollution is not one of the five grounds for protection in the Convention.  The applicant responded:

   I don’t quite understand it because I am thinking pollution is making a great deal of harm to me and we are supposed to be protected by the government.

   The Tribunal said:

   Correct, it does create a great deal of harm but if you were sitting in front of me like some people in Africa who are starving I don’t have the capacity to grant people protection from starvation because starvation is not one of the five things in the [C]onvention.

   …

   …So in your application you said that one of the reasons you were seeking protection was because if you returned home to China and lived in the house you would be     badly affected by the pollution.  So that is not a [C]onvention ground and I can’t give you protection on the ground that you would be adversely affected by a polluted river.

   …

   If you returned home to China and lived in the house and your health was badly affected by the polluted river that harm that you suffer to your health is not covered by the [R]efugee [C]onvention, because pollution of itself is not one of the five grounds mentioned in the [C]onvention…”

   …Pollution is not one of those five things.  So I can’t give – no one can give you protection on the basis of pollution because it is not one of the five reasons …but the direct effect of the polluted river on your health or your family’s health or anybody else’s health, because pollution is not one of the five reasons…[18]

   [18] MC 5

7. The Tribunal then appeared to finalise consideration of that issue by saying[19]:

   … it is pointless me talking about it (pollution) because I can’t do anything about it.

   [19] ibid

8. When the applicant tried at the conclusion of the hearing to again raise the issue of pollution, the Tribunal said[20]:

   Yeah, I don’t think that’s relevant, but I accept the river is polluted, but the main fact is that pollution is not covered by the [C]onvention so I can’t do anything about the …pollution.

   Neither the immigration officer nor I have a general discretion to grant you protection, we must act under the terms of the [C]onvention.  Pollution is not one of the five reasons so therefore I can’t do anything about the pollution.”

   [20] MC 20

9. The applicant contends that by confining itself to the “five reasons” and the “Convention” the Tribunal has closed its mind and failed to take account of whether “pollution” or any other harm, could support a claim for complementary protection.

10. At [123] the Tribunal found[21]:

    Having found that there is no evidence to indicate that the applicant will face any serious harm if she were to return to China …The Tribunal finds the applicant is not a person to whom Australia has protection obligations under s.36(2)(aa) of the Act.

    [21] CB 137

11. The Minister denies that the Tribunal fell into any jurisdictional error. 

12. The Minister notes that the integer of the applicant’s claims said to have been overlooked is the applicant’s claim that she would herself take part in anti-pollution protests in China.  The only written mention of this is in the applicant’s original statement at CB 28.1, noted by the Tribunal[22] but it was not developed by the applicant in her evidence to the delegate or the Tribunal.  The Minister disputes that there can be said to be a “substantial, clearly articulated argument relying upon established facts” as established in Dranichnikov v Minister for Immigration[23] and NABE v Minister for Immigration[24] that the applicant faced a well-founded fear of persecution in China because she would participate in anti-pollution protests in future.  And even if the contrary be held, the Minister contends that the Tribunal’s findings at [111] and [113][25] are sufficiently general to reject the applicant having a well-founded fear of harm for such a reason[26].

    [22] at CB 122 [30]

    [23] (2003) 77 ALJR 1088 at [24]

    [24] (No 2) (2004) 144 FCR 1 (FC) at [55]-[63], [68]

    [25] CB 134

    [26] Applicant WAEE v Minister for Immigration (2003) 75 ALD 630 (FCA/FC) at [46]-[47]

13. The second such integer is said to be the applicant’s claim to fear “pollution” in China. The Minister submits that without more, such a claim cannot be said to fall within any of the definitions of “significant harm” in s.36(2A) of the Migration Act, especially having regard to s.36(2B)(c).

14. In my view, the prospect that the applicant might herself take part in anti-pollution protests in Australia was sufficiently clearly raised to require consideration by the Tribunal.  First, as is noted in the submissions of both parties, the assertion was made in the applicant’s original statement[27].  While the contention was noted by the Tribunal[28] the Tribunal failed to deal with it in its reasons.  It may be true to say, as the Minister contends, that the argument was not further developed by the applicant at the Tribunal hearing, but neither was it pursued by the Tribunal at the hearing.  I am not persuaded that the applicant did anything to indicate that the assertion had been abandoned. 

    [27] CB 21

    [28] CB 122 [30]

15. The applicant’s claim was acknowledged by the delegate in her decision[29]:

    If she returns to China she will live in this intolerable environment and will have to join the ranks of anti-pollution to defend her personal interest and will be persecuted by the company and the government.

    Further, in her reasons[30], the delegate referred to the applicant saying at interview that she would assist in her husband’s protests (should she return to China).  The delegate found no Convention nexus to the harm relevantly feared by the applicant.  In that context it is understandable that the delegate only went on to consider the applicant’s religious claim against the Convention. 

    [29] at CB 70

    [30] at CB 73

16. The Tribunal, in contrast, considered at least the possibility of a Convention nexus in the pollution claim on the basis of imputed political opinion.  At [109] the Tribunal stated[31]:

    The applicant told the Tribunal that she feared harm from the Chinese authorities because they would impute a political opinion to her as a consequence of her husband’s activities in protesting against and complaining about the level of pollution in the river, and the cause of pollution.  No evidence was provided to the Tribunal that the applicant’s husband has suffered any serious harm of the type contemplated by section 91R(1)or (2).  The Tribunal notes that there is also no corroborative evidence to that provided by the claimant, that her husband is a person of interest to the Chinese authorities.  In this regard the Tribunal accepts the evidence of the applicant that the Chinese authorities have not issued an arrest warrant for the apprehension of the applicant’s husband.  Even if the Tribunal accepted that the applicant’s husband was a [person of] interest to the [Chinese] authorities in respect of his protests against pollution in China, the Tribunal finds that this would be insufficient to justify a well-founded fear of serious harm on the part of the applicant on the basis of an impute political opinion.  In this regard, the Tribunal notes the evidence of the applicant that her son (presently residing in Fujian) has not been, nor is likely to be, harassed by the Chinese authorities as he has had no involvement in any of the protest or political activities carried out by her husband.  The Tribunal finds that the same outcome would be applicable to the applicant given her lack of involvement in such activities.

    [31] CB 133-134

17. The Tribunal failed to make a forward looking assessment of what the applicant would do on return to China and the consequences of that, except in relation to her association with her husband.  The Tribunal at [112] accepted that the applicant is a member of the particular social group of people adversely affected by pollution in China.  At [113][32], however, the Tribunal limited its assessment to whether the applicant would face persecution because of any political opinion imputed to her “on the basis of any association with her husband, any association of any anti-pollution activities of her husband or because of the existence of the pollution”.  The Tribunal neglected to consider the potential consequences of the asserted intended anti-pollution activities of the applicant herself which she claims she would engage in on her return to China. The Tribunal thus overlooked an element or integer of the applicant’s claims and fell into jurisdictional error.

    [32] CB 134

1. It is not strictly necessary to consider whether the Tribunal also erred in considering the claim to complementary protection. For completeness, however, I have considered it. I do not find persuasive the applicant’s contention that being exposed to pollution can of itself amount to “degrading treatment” for the purposes of s.36(2)(aa) of the Migration Act. The mere fact that someone happens to live in a polluted environment cannot of itself, in my view, found a claim to complementary protection. Even if such a claim could be made it would have to be considered in context of s.36(2B)(c). On the basis of the material before the Tribunal it was unnecessary for the Tribunal to make that assessment. The applicant will have the opportunity to develop such a claim if she wishes on rehearing before the Tribunal.

Conclusion

1. I have found that the Tribunal fell into jurisdictional error by overlooking an integer of the applicant’s claims.  She should therefore receive the relief she seeks in the form of the constitutional writs of certiorari and mandamus.

2. I shall hear the parties as to costs.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  18 October 2013