SZIGC v Minister for Immigration & Citizenship

EX TEMPORE REASONS FOR JUDGMENT 1 This is an appeal from a decision of the Federal Magistrates Court of Australia (SZIGC v Minister for Immigration & Anor [2007] FMCA 815), given on 1 June 2007, dismissing the appellant's application for judicial review of a decision of the Refugee Review Tribunal, dated 14 December 2005 and given on 3 January 2006 which affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant the appellant a protection visa under the Migration Act 1958 (Cth) (as amended). 2 The appellant appeals to this Court and raises these grounds of appeal: (1) The Tribunal failed to consider my claims for my application for a protection visa. The Tribunal misunderstood my claims. (2) The Tribunal failed to carry out its statutory duty. The Tribunal failed to notify me the reason or part of the reasons for affirming the decision. The Tribunal failed to consider my application according to S424A of the Migration Act 1958. 3 Those grounds of appeal to this Court reflect, in part, grounds raised in the appellant's application before the Federal Magistrates Court filed on 2 February 2006 which raised contentions that the Tribunal failed to consider the appellant's claims; the Tribunal misunderstood the appellant's claims; the Tribunal believed that what the appellant had suffered in the People's Republic of China occurred a long time ago; that there was no evidence to support the making of the decision; and that the decision was made in circumstances where no reasonable ground existed for the making of the decision. 4 The appellant filed an amended application before the Federal Magistrates Court on 3 April 2006 by which the appellant raised a number of grounds before that Court including a contention that the 'Tribunal failed to carry out its statutory duty' (ground 1). That ground was supported by the proposition that the Tribunal had failed to provide the then applicant with particulars of 'information' that 'was the reason or part of the reason for affirming the decision' of the delegate and further, that the Tribunal had failed 'to explain' the relevance of that information. 5 The second ground raised by the amended application was that the Tribunal failed to consider the appellant's claims and that the Tribunal was biased against the appellant. 6 The factual background to the matter requires to be set out in a little detail in order to deal with some aspects of the grounds of appeal before this Court. 7 The appellant is a citizen of the People's Republic of China (PRC). He arrived in Australia on 20 March 2005 and on 14 April 2005 lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs under the Migration Act. 8 In a statement in support of the primary application, the then applicant said that he was not satisfied with the political system in the PRC; that there were a range of political movements in the PRC; that during the cultural revolution education was difficult; that citizens could not enjoy normal life during that period; that during a period of pro‑democracy movement in 1989 the appellant was active, as a student, to support that movement; that as a result of that participation he was called to the local police for questioning; that in 1999, because the appellant was interested in the teachings of Falun Gong and spent time with Falun Gong members, he was accused of being a Falun Gong member himself and detained for 10 days. 9 The appellant in that statement said that he had experienced persecution from Chinese government authorities during these movements, by which he meant, as I understand it, the pro‑democracy movement and possibly aspects of Falun Gong activity. The appellant said before the Tribunal that he could not determine when other movements would emerge within the political system in China and that he came to Australia for protection. 10 All of those matters are reflected in a statement in support of the application before the Minister. Upon review, before the Tribunal, the appellant gave oral evidence. At the hearing before the Tribunal the appellant was asked to explain why he needed protection. He told the Tribunal that while he was in the PRC in 1989 he had exhibited statements of protest in a street demonstration and, as a result, he had come to the attention of PRC authorities by reason of those protests. He said that as a result of those protests he was subsequently arrested. 11 The appellant told the Tribunal that while he was in mainland China he was associated with members of the Falun Gong movement. He told the Tribunal that the authorities thought that he was a Falun Gong member and he was subsequently arrested and detained for 10 days. He told the Tribunal that after these two incidents the government stopped paying his family the monthly allowance that most Chinese citizens are entitled to receive and he told the Tribunal that his family applied several times for the payment of the allowance, however, he and his family were denied the payments. 12 He told the Tribunal that this made it very hard for him to make ends meet. The appellant further claimed before the Tribunal that in China people like him who have a 'bad record' with the government have a very difficult time. He claimed before the Tribunal that the government does not care for people like him any longer. The appellant also claimed that he does not believe that the legal system in China is particularly good and that is why he elected to come to Australia. The Tribunal put to the applicant that he left the PRC in 2005, but that the protest incidents to which he referred occurred in 1989 and that if he was in danger of persecution why did he not leave China until 16 years later. 13 The appellant again raised before the Tribunal the issue about his family not being paid the daily or monthly allowance which most Chinese people are entitled to. The Tribunal put to the appellant that even though he claims that he was not paid any allowance by the government, he in fact had a profession as a carpenter and he could find casual work and therefore he was not destitute in China. The appellant responded that there were not many jobs available in China. The appellant reasserted his evidence in relation to his detention for 10 days by reason of his association with Falun Gong members. He also reasserted the contention that his family was refused normal government allowances because he had a bad political history. 14 In the face of all of those contentions reflected in the oral evidence given directly by the appellant to the Tribunal, the Tribunal reached a number of findings and conclusions. A number of them are in these terms: (1) The appellant's claims do not disclose any evidence of persecution in the context of the Convention. The claims also do not provide the basis of any well‑founded fear of such persecution. While it is possible that the applicant's parents will have suffered during the Cultural Revolution, and the applicant may have had poor education in that period, there is no indication that the applicant faces or faced any form of persecution in recent times because of the events of the Cultural Revolution. The Tribunal notes that the applicant does not make any specific claims in relation to persecution because of the Cultural Revolution and problems suffered by his parents during the revolution. (2) He also claims that he was arrested after 1999 and detained for 10 days because of his association with Falun Gong. The Tribunal notes that the applicant's arrest for supporting the students' demonstration occurred in 1989. While he claims that he was arrested for supporting the students, he also admits that he was subsequently released. As the Tribunal noted to the applicant in the course of the hearing, it has been 16 years since his alleged arrest and subsequent release. (3) The Tribunal also notes that even though the applicant claims that the authorities detained him for 10 days after 1999 because of his association with Falun Gong, he was not subject to any persecution after his release. (4) In both his oral testimony and written statement, the appellant was not able to point to any other specific instances of persecution after his release apart from his claims that the government authorities had refused to pay his family subsistence allowances. (5) The Tribunal was aware of the applicant's claims that his family was denied these payments because of his alleged bad political record. The applicant did not provide any specific information to assist these claims. However, even if the Tribunal gave the applicant the benefit of the doubt and accepted that the government denied payments to his family as a result of his bad political record, this will not assist the applicant's case. This is because the denial of such payments to the applicant's family does not constitute persecution in the sense of the Convention. 15 The Tribunal went on to conclude that that was so because the applicant was not able to demonstrate that he would suffer serious harm in any sense contemplated by s 91R(2) and in particular by reason of economic hardship which would threaten his capacity to subsist. In relation to that matter, the Tribunal said this: The applicant's main contention is that because of his bad record, he and his family have been denied government allowances. However, there is no evidence that this threatened the applicant's capacity to exist in China. The applicant is a carpenter by trade. By his own admission, he was a timber tradesman who was gainfully employed with an advertisement and renovations company before he left China to come to Australia. This indicates that the denial of payments to the applicant's family did not constitute any significant denial of his means of subsistence to the point where the applicant could claim the benefit of the definition of persecution under the Act. 16 The Tribunal further observed: As the Tribunal pointed out to the applicant, if indeed it was difficult for him to find work in his province or city, he could have moved to a major city for work. The Tribunal is aware of the applicant's argument that it has not been easy for him to find work in another city as a carpenter because there are too many other people like him looking for work in China. The Tribunal does not accept this argument. Whilst it may be difficult to find work in one city in China, it does not preclude the applicant from looking for other means of employment in other parts of the country. His experience as a factory worker of 15 years standing, and his background as a carpenter who was gainfully employed doing casual work, are clear indications that the applicant was not destitute and could have found other means of employment in China if he wanted to. 17 By reason of all of these matters, the Tribunal affirmed the decision of the Minister's delegate. The appellant before this Court is representing his own interests but is assisted by an interpreter. The appellant indicated that he had nothing really to add to the matter notwithstanding that the grounds are not particularised. Nevertheless, the appellant said that in the previous proceedings before the Tribunal and I assume before the Federal Magistrates Court as well, he was not prepared fully, nor well, and was not able to add properly to his claims. 18 I invited the appellant to indicate whether he wished to now add anything to his stated grounds of appeal from the Federal Magistrates Court decision and orders. The appellant said that he would add something to this effect. The appellant says that his child in China has been persecuted. I invited the appellant to say why he did not raise that matter with the Tribunal and he told me that it was because he did not have time to prepare properly and there were time limits which made him prepare things in a hurry. 19 The appellant said that he just hoped that the case can be reconsidered. I indicated to the appellant that the role of this Court is to determine whether there has been an error on the part of the primary judge rather than a reconsideration of the matter at large. In reply to submissions by counsel for the Minister, the appellant also said that in China he enjoyed the position of a senior carpenter and although he has that qualification, finding a job is not easy and there is not a lot of work available. He said that since the 1989 demonstrations, his child has been affected; the child's schooling has been affected and the child has not been able to obtain an education or qualification. 20 I took from these observations that the appellant is saying that this is the expression of persecution which is something of the class of conduct that he might experience should he return to the People's Republic of China. He says that the Australia government is recognised as a government which tolerates religious freedom and he has begun to practice religious practices. 21 In relation to the matters raised before the Federal Magistrates Court which ultimately are the subject of consideration by this Court in terms of whether any error is evident, the Federal Magistrate Emmett considered the grounds synthesised at [19] of her Honour's reasons at AB86 and as to the first ground that the Tribunal failed to carry out its statutory duty, her Honour concluded that the Tribunal had conducted an extensive examination of the claims and had heard the appellant give oral evidence. At [24], Emmett FM made this observation: The Tribunal accepted the Applicant's claims. However, the Tribunal had particular regard to the fact that the Applicant's detention in 1999 because of his association with Falun Gong had not resulted in any further persecution after his release. The only claim made by the Applicant subsequent to his release in respect of any conduct by the authorities was that they had refused to pay his family subsistence allowances. The Tribunal noted that the Applicant claimed that his family was denied these payments because of the Applicant's 'bad political record'. The Tribunal stated that the Applicant did not provide any specific information to support those claims. The Tribunal, however, gave the Applicant the benefit of the doubt in respect of that claim and found that it did not assist the Applicant's claims of a well‑founded fear of persecution. The Tribunal found that the denial of such payments did not constitute persecution in terms of s 91R of the Act and therefore was not Convention related persecution. 22 At [26], her Honour concluded: The Tribunal further found that there was no evidence to suggest that any denial by the government to his family of subsistence allowances threatened the Applicant's capacity to exist in the PRC. That is a finding of fact entirely within the province of the Tribunal. The Tribunal's findings were open to it on the evidence and material before it and for which it provided reasons. 23 In relation to that question, two things should be mentioned. The first is that the question of significant economic hardship that threatens a person's capacity to subsist has been described by Tamberlin J in SZBQJ v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCA 143 as reflecting an emphasis which 'denotes the ability to continue to exist or remain in being' [11]. In other words, the level of threat must be such as to challenge the ability of the individual to continue to exist or remain in being. The second thing is that in this particular case, on the facts, the appellant is a person of skilled trade and experience and is in fact a 'senior carpenter'. 24 The Tribunal concluded on the facts that there is no relevant threat to the capacity of the appellant to exist and accordingly, on the facts, the test is not satisfied. I can find no error in her Honour's consideration of the Tribunal's assessment of those matters or the tests applied by the Tribunal. 25 The second matter considered by her Honour related to whether the Tribunal had discharged obligations cast upon it by s 424A(1) of the Migration Act and in that respect, her Honour concluded that there was no inconsistency in any claim made in the applicant's statements in support of his protection visa application; that the applicant had repeated the claims in his written statement in support of a visa application, before the Tribunal; and that the Tribunal had regard to the applicant's claim of arrest in 1989 and the matters concerning the Falun Gong associated detention in 1999. 26 Her Honour concluded at [31]: The Applicant provided the information to which the Tribunal had regard in making those findings to the Tribunal for the purposes of his review. That information is excluded from the obligations of s 424A(1) of the Act by reason of s 424A(3)(b) of the Act. 27 Her Honour concluded at [32]: Accordingly, there is no enlivenment of the obligations of s 424A(1) of the Act. 28 Her Honour concluded that in relation to ground 2, concerning the contention of bias, there was no particularity of that allegation and accordingly it was unsustainable. 29 In relation to the grounds of appeal before this Court, the appellant continues to assert that the Tribunal failed to consider his claims properly and further asserts that the Tribunal misunderstood those claims. The respondent contends that the second limb of that ground was not previously raised and leave ought not to be given to raise it now. I will, however, give leave to raise that question. 30 Having raised it, I have considered it and take the view that it is without merit. It is clear from the detailed parts of the Tribunal's reasons which I have quoted and from the reasons more broadly, that the Tribunal comprehensively considered each of the claims and the Tribunal turned its mind to a dispositive determination of those claims on the facts. 31 The appellant has not identified any specific omission or failure on the part of the Tribunal and has simply raised a contention in a generic way that there was a failure to consider claims. It is clear from the material and from oral submissions today that the matters which were raised were dealt with and that any other matters not raised are not a basis now for impugning the decision of the Tribunal. The only additional matter is the contended persecution of the appellant's child. The second ground raised in the appeal before this Court goes to obligations under s 424A of the Migration Act. Again, no particularity is given of the information which was relied upon by the Tribunal and which was not provided to the appellant. 32 To the extent that the appellant believes that the Tribunal relied upon the written statement in support of a visa application in the course of conducting the review, it is clear from the passages I have read that the appellant, in the course of oral testimony before the Tribunal on 6 October 2005 articulated all of the matters that he had relied upon in the earlier statement. Accordingly, it seems clear to me that there is no obligation to put those matters to the appellant within the scope of s 424A(1)(SZBYR v Minister for Immigration and Citizenship (2007) HCA 26; (2007) 81 ALJR 1190 at 1195, [14] to [19] and particularly note [17] and [18]). 33 As to the reliance by the Tribunal upon oral evidence given by the appellant, that matter is expressly within the exception provided for by s 424A(3)(b). Submissions have been addressed in the written submissions of the first respondent in relation to s 424A(3)(b) and, in particular, as to the question of which party bears the onus of establishing whether particular information is either within or without the section. It seems clear to me on settled authority that the appellant bears the onus of establishing the relevant matters (SZHYP v Minister for Immigration and Citizenship (2007) FCA 183). At [11] of the reasons of Branson J, her Honour observes: To succeed in his contention that the Tribunal failed to comply with the requirements of s 424A in respect to the information upon which its finding was based, it was necessary for the appellant to satisfy the Federal Magistrate that the Tribunal did not base its finding on information that he gave for the purposes of his application to the Tribunal. 34 In this case, it is clear on the facts that the appellant gave oral evidence in support of all of the matters which were evaluated by the Tribunal resulting in findings of fact which, in turn, resulted in the conclusion that the Tribunal could not be satisfied that the appellant held a well‑founded fear of persecution for a Convention reason. Accordingly, I am not satisfied that the appellant has made out any of the grounds identified in the notice of appeal filed on 19 June 2007. 35 In deciding these matters, I have not simply considered the generic or brief expression of the grounds but I have attempted to distil what I perceive to be the substance of the grounds having regard to the matters put to the Minister's delegate; matters put to the Tribunal; the treatment of those matters by the Federal Magistrates Court and the contended errors on the part of the Federal Magistrate. Having regard to all of these matters, I am not satisfied that there is any demonstrated error on the part of Emmett FM. 36 That being so it necessarily follows that the appeal must be dismissed with costs. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.