SZTMF v Minister for Immigration

[2014] FCCA 1349

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTMF v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1349

Catchwords:
MIGRATION – Review by Refugee Review Tribunal – application for order dismissing application because it raises no arguable claim for relief – no arguable claim for relief raised – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.36(2)(aa)

Federal Circuit Court Rules 2001 (Cth), r.44.12(1)(a)
Schedule 1, Part 3, Division 1, item 2(b)

Applicant: SZTMF

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2711 of 2013

Judgment of: Judge Manousaridis

Hearing date: 6 May 2014

Delivered at: Sydney

Delivered on: 27 June 2014

REPRESENTATION

Applicant in person assisted by an interpreter.

Solicitors for the Respondents:

Ms N Blake

Clayton Utz

ORDERS

1. The application is dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant pay the first respondent’s costs in the amount of $3,326.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2711 of 2013

SZTMF

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The first respondent (Minister), seeks an order under rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (FCCR) that the application for judicial review filed in these proceedings be dismissed. That rule provides that at a hearing of an application for an order to show cause, the Court may dismiss the application “if it is not satisfied that the application has raised an arguable case for the relief claimed”.

Facts

1. The applicant, who is a national of the People’s Republic of China, lodged an application for a protection visa on 19 May 1997.

2. In his application form,[1] the applicant claimed fear of persecution by authorities in China because he was a member of an anti-communist organisation, the “Chinese Democracy Party”. The applicant claimed he joined that organisation in 1984; that after the Tiananmen Square massacre, the applicant and other members of that organisation were arrested and detained, the applicant himself was detained in Beijing for three months shortly after the massacre; and, six months later, he was arrested and imprisoned for two years. The applicant also claimed he feared persecution because he is a Christian, and an ethnic Korean.

   [1] CB16-19

3. On 1 July 1997, a delegate of the Minister refused to grant the applicant a protection visa.[2] The delegate’s decision was sent to the applicant by registered post at the residential address specified in the application for a protection visa.[3] The letter was returned to the delegate.[4]

   [2] The decision record is dated 13 June 1997 but the notification letter which attaches the decision record is dated 1 July 1997: see CB39 and CB41. The date of 1 July 1997 is referred to as the date of the delegate’s decision in CB51 and in the Tribunal’s decision at CB95, ([2]).

   [3] The applicant also nominated an address for correspondence which is different to his residential address in the application form at CB7.

   [4] CB42

4. On 15 October 1997, an officer from what is now known as the Department of Immigration and Border Protection (Department) received a telephone call from a person who described herself as the secretary of a migration agent. The secretary requested that she be provided with a copy of the delegate’s decision.[5] The officer said that the information could not be released without the authority of the applicant. On the same day, the Department received by fax an “Appointment of Person to Act as Agent” form apparently signed by the applicant nominating a Mr Hai Liang Xue to act on his behalf.[6] After the officer at the Department received the fax, he informed the secretary that the applicant’s application for a protection visa had been refused. On 16 October 1997, after the Department officer viewed the file, he was not satisfied the signature on the “Appointment of Person to Act as Agent” form matched the signature of the applicant in the application form.

   [5] CB44

   [6] CB43

5. On 23 October 1998, the Department received another “Appointment of Person to Act as Agent” form apparently signed by the applicant, this time nominating Mr Robert Bock as the applicant’s agent.[7] By letter dated 23 October 1998, Mr Bock wrote to the then Minister requesting that the Minister “substitute a more favourable decision under section 417” of the Migration Act 1958 (Cth) (Act). By letter dated 13 May 1999, the Minister informed Mr Bock that the Minister had no power under s.417 of the Act because the applicant had not applied to the Tribunal for a review of the delegate’s decision of 1 July 1997.

   [7] CB46

6. By letter dated 28 March 2013, the Department informed the applicant, through the applicant’s third migration agent,[8] that the applicant’s application for a protection visa was refused on 1 July 1997, but that the applicant had not been correctly notified of that decision. The Department further informed the applicant that he had the right to apply to the second respondent (Tribunal) for a review of the delegate’s decision of 1 July 1997.[9] The applicant exercised that right by filing an application for review received by the Tribunal on 12 April 2013.

   [8] The evidence does not reveal when this agent was appointed by the applicant.

   [9] CB51

7. By letter dated 25 September 2013, the applicant’s fourth migration agent informed the Tribunal that the claims made in the applicant’s application for a protection visa received by the Department on 19 May 1997 had been “fraudulently concocted by the previous migration agent” and, therefore, were not true.[10] The agent said he was instructed the applicant feared harm from persons from whom the applicant had borrowed USD20,000 to “purchase a passport with an Australian visa” and which he has not repaid. The agent further said that the applicant is a Chinese of Korean ethnicity; and that the reason the applicant left China “was to escape the structured, ethnic/racist discrimination, which was crushing his life in a manner distinct from his Chinese peers”, and that he “was living a life premised upon a form of apartheid based upon his race”.[11]

   [10] CB80-82

   [11] CB81

8. The applicant gave evidence at a hearing before the Tribunal. As set out in the Tribunal’s reasons, the applicant said he did not want to return to China because the group who helped him get his passport and visa may harm him because he has not repaid the debt to them; the police are corrupt and will not protect him; and although the initial debt he incurred to the money lenders was USD20,000, the debt might now be USD150,000 or USD160,000.[12] The applicant further said that if he returns to China, the moneylenders will pursue him for the money, and they may take his organs or beat him to get the money.[13]

   [12] CB99, [36]

   [13] CB99, [37]

9. The Tribunal also noted:[14]

   The Tribunal asked the applicant if he had any other claims for protection and he responded he has been in Australia for 16 years and has an extremely good impression of Australia. He does not want to go back to China. If he goes back he will die because there is no security there. He no longer has a wife or properties in China, he has nothing there, and cannot go back. He fears the underground society are [sic] waiting for him in China and will kill him or beat him or take his organs if he doesn’t pay them back.

   [14] CB100, [42]

Tribunal’s decision

1. The Tribunal was satisfied that the protection visa application the applicant lodged on 19 May 1997 was a valid application and that it was completed and lodged with the applicant’s knowledge and consent. The Tribunal concluded so because the applicant confirmed it was likely he had signed the form and the Tribunal found that some of the information contained in the application corresponded with the applicant’s claims regarding “his provenance, ethnicity, name and date of birth”.[15]

   [15] CB97, [20]

2. The Tribunal did not find the applicant’s evidence in relation to moneylenders in China to be credible.[16] The Tribunal found the applicant’s evidence vague about the details and identity of the moneylenders, and the arrangements he had with them. [17]

   [16] CB101, [47]

   [17] CB101, [47]-[49]

3. The Tribunal found the applicant was an ethnic Korean. It otherwise was not satisfied that the applicant had any well-founded fear of persecution on that count:[18]

   The Tribunal accepts that the applicant was employed in low income work in China, farming and taxi driving. The Tribunal does not accept that the applicant was restricted to low income work because of his ethnicity. The applicant did not present any evidence that he was prevented from finding work in better occupations because he is ethnic Koreans although he did describe it as a hurdle to getting a good job. He did not elaborate on this and it is not supported by the available country information. The country information does not indicate that ethnic Koreans are discriminated against in employment or restricted to low income work, and the applicant has not been able to demonstrate that he himself was subjected to ethnicity-based employment discrimination in China. The country information does suggest that rural ethnic Koreans would be less educated and earn less than urban ethnic Koreans but this would be the situation in general in rural areas and the information does not disclose any systematic discrimination or even any significant privations for rural ethnic Koreans. Some of the country information indicates that rural ethnic Koreans were generally better off than the Chinese rural standard.

   [18] CB104, [61]

4. The Tribunal also concluded that the applicant did not satisfy the criteria specified in s.36(2)(aa) of the Act. It was not satisfied that the occupation the applicant would likely carry on if he returns to China was such as to compromise his ability to subsist, or that it would subject the applicant to degrading, inhuman, or cruel treatment.[19] The Tribunal also was not satisfied there was a significant risk of psychological harm to the applicant if he returns to China.[20]

   [19] CB105, [66]

   [20] CB105, [67]

Grounds of review

1. The application contains two grounds of review. The first is:

   When I was at the Chinese school, I was called the servant of Japan and beaten, the Chinese teachers all too[k] their side.. I will face significant harm because I belong to the lowest marginalised class as an ethnic Korean, and because I won’t be able [to] receive adequate medical treatment for psychological harm I will suffer if I were forced to return to China.

2. At the hearing I invited the applicant, who was not legally represented, to make submissions in relation to this ground. The applicant said he had no submissions to make.

3. In my opinion, this ground raises no arguable claim for relief. It only repeats the grounds the applicant advanced before the Tribunal.

4. The second ground of review stated in the application is as follows:

   I have [a] well-founded fear of being persecuted for reason of racial discrimination in China, but the Tribunal member failed to consider it, making jurisdictional error.

5. The applicant made no submissions in relation to this ground, although I invited him to do so.

6. In my opinion, this ground also raises no arguable claim for relief. The Tribunal did consider, and consider in detail, the applicant’s claim for a protection visa based on his asserted claim of discrimination and other harm because of his Korean ethnicity.

7. During the hearing before me, the applicant asked why it took so long for a decision to be made on his application for a protection visa. I asked the applicant whether he wished to contend that the delay between the day on which he applied for a protection visa, and the day on which the Tribunal determined his application for review, constituted a ground of review. The applicant said he did wish to rely on such ground. The applicant submitted:[21]

   Because if . . . there wasn’t a delay for 17 years he could have returned to the country and started his business, but if he returns now he has nothing. So he has been living in Australia for 17 years. He is used to living in . . . Australia.

   [21] T8.25

8. The applicant did not submit to the Tribunal that had there not been a delay of 17 years, the applicant could have returned to China and started a business. The Tribunal’s not having considered that question, therefore, cannot constitute any arguable case of jurisdictional error on the part of the Tribunal. The applicant did submit to the Tribunal that his returning to China would cause him psychological trauma after his many years in Australia. But the Tribunal rejected that submission.

Disposition

1. The applicant has not demonstrated he has any arguable claim for the relief he seeks in his application. Accordingly, I propose to order that the application be dismissed. I also propose to order that the applicant pay the Minister’s costs in the sum of $3,326, being the costs specified in item 2(b) of Part 3 Division 1 of Schedule 1 to the FCCR.

I certify that the preceding twenty three (23) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 27 June 2014