VLAC v Minister for Immigration - [2003] FMCA 474

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VLAC v MINISTER FOR IMMIGRATION

[2003] FMCA 474

MIGRATION – Application for review of decision of Refugee Review Tribunal – no jurisdictional error shown.

Migration Act 1958, s.474

Plaintiff S157/2002 v Commonwealth of Australia, 195 ALR 24

Applicant:

VLAC

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

MZ 33 of 2003

Delivered on:

18 September 2003

Delivered at:

Melbourne

Hearing Date:

18 September 2003

Judgment of:

Phipps FM

REPRESENTATION

Counsel for the Applicant:

Mr Liu

Solicitors for the Applicant:

Phoenix Immigration Service

Counsel for the Respondent:

Ms Riley

Solicitors for the Respondent:

Clayton Utz

ORDERS

The application is dismissed.
The applicant pay the respondent's costs fixed in the amount of $5000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 33 of 2003

VLAC

Applicant

and

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an application to review a decision of the Refugee Review Tribunal. The decision was made on 31 May 2002. The Tribunal affirmed the decision of a delegate of the respondent, refusing the applicant's application for a protection visa. The applicant is a citizen of the People's Republic of China. She arrived most recently in Australia on 1 May 2001. She has prior to that time visited China from Australia on numerous occasions. The material in the court book suggests 15 visits.
She applied for a protection visa alleging that she feared persecution on convention grounds. The application was filed in the Federal Court well beyond the time limit required under the Migration Act. Given the nature of the application to this court a time limit is not of any relevance. Since the decision of the High Court of Australia in Plaintiff S157/2002 v Commonwealth of Australia 195 ALR 24 the position has been that section 474 of the Migration Act 1958 does not apply to jurisdictional errors in a decision by the Refugee Review Tribunal. Otherwise, except in circumstances which do not arise in this case, there is no jurisdiction in a court to review a decision of the Tribunal. A jurisdictional error must be found.
For there to be a jurisdictional error there must be an error of law, then that error of law must be such that it so effects the decision of the Tribunal so that it can be said the Tribunal has not exercised its jurisdiction. Many cases by the High Court and the Federal Court set out that questions of fact are matters for the Tribunal. They are not something that can be reviewed by a court.
The applicant in this case says that she was married in the late 1960s. She states that she was educated in her home town and worked there until the early 1990s. From the early to late 1990s she was in a managerial position with a trading company. She stated that she lived at the same address in her home town from the late 1980s to the early 2000s. She stated that China was her country of residence before she arrived in Australia. The applicant says the following which I note is recorded in the Tribunal's reasons:
The applicant states that she is unwilling to return to China because she fears persecution. In 1949 when the government of China changed her mother and grandfather were persecuted to death because they were landowners and rich people. The applicant's father took the applicant and her siblings to another part of China. The government eventually found out her father had been an army officer in the previous government and the family then became the object of political persecution. The applicant herself, although she graduated from college, was forced to work as a labourer.
The Tribunal says in its reasons that it informed the applicant that it was having difficulty understanding why she was afraid to go back to China, given that in recent years she had returned to China from Australia many times. Why had she kept going back and why had she not applied for protection earlier if she feared persecution? The response was that she had to learn about Australia. Now she knew it was a democracy. She said that when she went back to China the PSB or the Public Safety Bureau sent someone to check on her.
In its reasons the Tribunal said it accepted the applicant's claims that members of her family were persecuted in the past. It accepted that the applicant may have been denied the opportunity to obtain employment in some occupations because of her background. The Tribunal noted that the applicant was able to complete 13 years of schooling and although she worked in a factory for many years in the immediate past she had been employed as a manager in a private company. The Tribunal found that the hardship in the past was not of such severity as to constitute persecution. The Tribunal said that the applicant provided no details of any problems she had experienced in recent years because of her family background.
The Tribunal then made this finding of fact, that is, if the applicant were to return to China now or in the foreseeable future there is not a real chance that she would be persecuted by reason of her family background. The Tribunal then considered whether the applicant might experience problems if she returned to China because she is a Buddhist and referred to a United States Department of State report in relation to that and concluded that the Tribunal was not prepared to accept that the applicant would be persecuted if she returned to China simply because she is a follower of Buddhism.
The Tribunal noted that the applicant had been able to obtain a passport in China and travel to Australia and return to China and travel back to Australia many times. The Tribunal said it understood that the applicant felt free to apply for refugee status only recently when both her children had left China but then said that any fears she may have that applying for refugee status would cause her children problems and she would not be able to visit them in China were not reasons which provided a convention‑related explanation.
The Tribunal concluded its findings with this paragraph:
In view of the applicant's frequent visits to China over the past few years, which apparently occurred without incident apart from the PSB checking her movements the tribunal is not satisfied that the applicant had a subjective fear of persecution when she applied for refugee status, nor is the tribunal satisfied, taking into account the issues discussed above, that the applicant's claimed fear of persecution is objectively well founded. The tribunal finds that if the applicant were to return to China now or in the reasonably foreseeable future that there is not a real chance that she would be persecuted for reason of her membership of a particular social group, her family or for reason of her religion or her political opinion, whether imputed or actual, or for any other convention reason. The tribunal finds that the applicant's fears are not well founded.
All of the findings of the Tribunal are matters of fact. Nothing is put forward and nothing that I can discern gives rise to a jurisdictional error. The Tribunal has identified and considered each of the bases which might bring the applicant within the convention. It has rejected each of those bases. There is no jurisdictional error and no grounds for setting aside the Tribunal's decision. The application is dismissed.
An application has been made on behalf of the respondent for costs. The applicant has been unsuccessful and there is no reason why the ordinary rules should not apply. There will be an order that the applicant pay the respondent's costs.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Phipps FM

Associate:

Date: