SZOKR v Minister for Immigration and Citizenship

Federal Court of Australia|2011-02-10|Before: Reeves J

REASONS FOR JUDGMENT 1 This is an appeal against a judgment of a Federal Magistrate delivered on 19 August 2010, dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal").

background and procedural history 2 The appellants are citizens of China who arrived in Australia on 5 August 2009. On 9 September 2009 the appellants lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the Minister for Immigration and Citizenship ("the Minister") refused that application. The appellant then applied to the Tribunal for a review of that decision. The Tribunal subsequently affirmed the delegate's decision. The appellant then sought judicial review of the Tribunal's decision in the Federal Magistrates Court. On 19 August 2010, Emmett FM dismissed the appellant's application. It is that decision which is the subject of the present appeal. 3 The first appellant included her son, the second appellant, in her application form. The second appellant made no claims in his own right. I will refer to the first appellant as "the appellant" throughout these reasons.

claims of religious and ethnic PERSECUTION 4 The appellant claimed to have been discriminated against in the Henan province of China as a result of her involvement with the minority Hui Muslim group. She claimed that most government officials in the Henan province are of Han ethnic origin and that resulted in the "mistreatment and oppression" of the minority Hui residents. 5 The appellant claimed that in 2005 she opened a Muslim restaurant and that in 2006 a group of Han Chinese people came to her restaurant and ordered pork, to which she took great insult. The appellant claimed that on another occasion, this same group refused to pay their bill and after an argument between them, the group called upon some other people within their group to come and attack the appellant and those who worked at her restaurant. The appellant claimed that the police were called but that they "did nothing", other than write a report. The appellant claimed that her restaurant did not receive any compensation as a result of this incident. 6 The appellant also claimed that the Hui minority group were also discriminated against by various government authorities, in particular, that she was charged additional and unreasonable surcharges and levies to operate her restaurant. Furthermore, the appellant claimed that, since the beginning of 2009, a group of Hui Chinese began to gather at her restaurant to hold meetings. The appellant claimed that these meetings drew the attention of the government agencies and that the police began to visit her restaurant to try to discover who was attending these meetings. Further, the appellant claimed that after a riot on 5 July 2009, the conflicts between the two ethnic groups worsened and that the government authorities alleged that the Muslims who took part in that riot were being sheltered at the appellant's restaurant. She claimed she was eventually forced to close her restaurant. 7 The appellant claimed that she feared that she would face persecution due to her religion and ethnicity if she were to return to China.

the TRIBUNAL AFFIRMS THE DELEGATE'S DECISION - APPELLANT NOT A CREDIBLE WITNESS 8 The Tribunal was satisfied that there was truth in the appellant's claim to be a Hui Chinese and that she did run a restaurant in Henan province that was subsequently closed. 9 However, the Tribunal did not accept that the appellant was forced, by the authorities, to pay any additional or discriminatory charges or levies in connection with her restaurant business. The Tribunal came to this conclusion because it considered her responses to its questions on this topic were extremely vague and she was unable to explain how the charges or levies she claimed she had to pay were discriminatory. 10 The Tribunal also found that the appellant had not been denied state protection when she was operating her restaurant and it did not accept that the authorities suspected her of any involvement in the July 2009 riots in Xianjing province, noting that Xianjing was 3,000 km away from Henan and the riots involved Uighers, not Huis. While the Tribunal accepted that the appellant may well have been "nervous" about her position at the time, it noted that she had not suggested that the police, or any other authorities, had detained, arrested, or harmed her, or her husband. The Tribunal also noted that, on the evidence before it, the appellant's husband continued to run their restaurant until October 2009 and thereafter he continued to reside in Henan, in the family home. Despite these facts, the appellant had made no suggestion that he had been harmed since she left to come to Australia in August 2009. 11 The Tribunal concluded that the appellant had not been persecuted for any Convention reason in the past in China and that she did not leave China for any such reason. 12 While it was accepted there was some discrimination against Huis in China, in particular in relation to government employment, the Tribunal did not accept that the appellant would be denied the capacity to earn a livelihood in China in the future if she were to return there. The Tribunal concluded that the appellant was not of any interest to the authorities when she resided in China, nor that she would be the subject of police investigation if she were to return there. Accordingly, the Tribunal concluded that it was not satisfied that the harm complained of by the appellant gave rise to a real chance of persecution now, or in the reasonably foreseeable future. It therefore affirmed the delegate's decision.

the federal magistrate finds no jurisdictional error 13 The appellant's application for judicial review in the Federal Magistrates Court raised the following grounds: 1. The appellant claims that the Tribunal's decision was affected by judicial error in failing to invite the appellant to comment on information that is relevant to her application. The Tribunal found that the appellant did not suffer discrimination in the payment of government levies or charges. The Tribunal failed to invite the appellant to comment on this information. 2. The Tribunal failed to consider the appellant's claims that she was harassed and targeted by the local authorities for her membership of a particular social group being Hui restaurateurs. [Errors in original] 14 The Federal Magistrate treated the first ground of review as, in substance, a claim that the Tribunal had breached s 424A by taking into account information it had obtained about discrimination in the payment of government charges or levies without giving the appellant an opportunity to comment on that information. The Federal Magistrate rejected this claim. The Federal Magistrate held that the Tribunal's assessment of the appellant's evidence in relation to the government charges or levies was a part of its thought processes and was not information for the purposes of s 424A(1) of the Migration Act 1958 (Cth) ("the Act"), citing SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 ("SZBYR") at [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ. 15 Furthermore, the Federal Magistrate held that the independent country information to which the Tribunal had regard, in concluding that the appellant would not be discriminated against by being denied the capacity to earn a living if she were to return to China, was information that was not specifically about the appellant, but rather was about a class of persons to which the appellant claimed to belong. Thus, her Honour found that this information was excepted from the obligations contained in s 424A(1), by reason of s 424A(3)(a) of the Act. 16 As to the second ground of review, the Federal Magistrate considered it was misconceived. This was so because her Honour considered the Tribunal had clearly stated in its reasons that it accepted that the appellant was a member of the particular social group of Hui restaurateurs. Furthermore, it was apparent from its reasons that the Tribunal had considered and rejected the appellant's claims that Hui restaurateurs were prohibited from, or unable to, open restaurants in China. The Federal Magistrate considered that these findings were open to the Tribunal on the evidence and materials before it. Finally, the Federal Magistrate held that the appellant's second ground of appeal was no more than a disagreement with the findings and conclusions of the Tribunal and, as such, sought a merits review of the Tribunal's decision, which the Federal Magistrate Court was not able to undertake citing, among other authorities, Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. 17 Accordingly, the Federal Magistrate dismissed the appellant's application for judicial review because there was no jurisdictional error in the Tribunal's decision.

The CONDUCT OF the PRESENT APPEAL 18 On 9 September 2010, the appellant filed a notice of appeal in this Court which alleged that: 1. The appellant claims that the Tribunal's decision was affected by judicial error in failing to invite the appellant to comment on information that is relevant to her application. The Tribunal found that the appellant did not suffer discrimination in the payment of government levies or charges. The Tribunal failed to invite the appellant to comment on this information. 2. The Tribunal failed to consider the appellant's claims that she was harassed and targeted by the local authorities for her membership of a particular social group being Hui restaurateurs. 19 When the hearing of this appeal originally commenced before me on 26 November 2010, the appellant failed to appear. Rather than proceeding to hear the appeal in her absence, I adjourned the hearing to 6 December 2010. At the adjourned hearing, the appellant appeared in person, unrepresented, but assisted by an interpreter. Mr Johnson SC appeared for the first respondent. 20 The appellant did not make any written or oral submissions in support of her appeal. Mr Johnson SC submitted an outline of written submissions on behalf of the Minister and elaborated on certain aspects in his oral submissions. I will deal with those aspects hereunder.

consideration 21 At the outset, two things may be noted about the appellant's notice of appeal before this Court. First, it is in identical terms to the grounds of judicial review before the Federal Magistrates Court. Secondly, as a necessary consequence of the first, it is solely directed to error on the part of the Tribunal and does not, therefore, identify any error on the part of the Federal Magistrate, which is the necessary focus of any appeal of this kind before this Court. 22 However, since the appellant is not legally represented, I will assume in her favour that she intended to claim in her notice of appeal that the Federal Magistrate was in error in not detecting the alleged errors on the part of the Tribunal. I will proceed to deal with the two grounds of appeal, in turn, on that basis. 23 Like the Federal Magistrate, I consider the appellant's first ground of appeal must, in substance, be approached as a claim that the Tribunal breached s 424A of the Act by failing to invite the appellant to comment on the information that: "the [appellant] did not suffer discrimination in the payment of government levies or charges". On that assumption, I consider the Federal Magistrate was quite correct in rejecting that claim. This is so because none of the "information" concerned was information that fell within the non-excepted terms of s 424A of the Act. To the contrary, it was either the Tribunal's reasoning, or thought processes, for rejecting the appellant's claims in relation to the discriminatory charges or levies, consistent with the ruling in SZBYR at [18], or it was independent country information that was about a class of persons of which the appellant claimed to be a member, within the exception stated in s 424A(3)(a) of the Act. 24 For these reasons, I consider ground 1 of the appellant's notice of appeal has no merits. 25 As to ground 2, I also agree with the Federal Magistrate that this claim is misconceived - it is clear from the Tribunal's decision record that it did carefully consider the appellant's claims that she "was harassed and targeted by the local authorities for her membership of a particular social group being Hui restaurateurs". 26 Furthermore, I consider her Honour was correct in her conclusions that: the Tribunal's factual findings on this issue were open to it on the evidence and materials before it for the reasons that it gave; and as a result, this claim is simply an attempt to review the merits of the Tribunal's decision. 27 In relation to this aspect of the appellant's notice of appeal, I should add that, at the hearing of this appeal, I raised with Mr Johnson concerns I had that the Tribunal may not have properly considered all of the central elements of the appellant's claims, particularly the claim she made that she did not receive state protection because the police "did nothing" to pursue her complaints to them about the offensive and aggressive conduct of Han Chinese patrons at her restaurant. However, after examining the Tribunal's decision record closely, I consider that, on a fair reading of it, it is apparent that the Tribunal rejected these claims on the facts (in particular, at [60] of the Tribunal's decision record). Of course, these findings of fact by the Tribunal, even if wrong or based on unsound reasoning, cannot constitute a jurisdictional error: see Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20]. 28 It follows that I consider the appellant's second ground of appeal is also devoid of merit.

conclusion 29 For these reasons, this appeal must be dismissed. I will hear the parties on the question of costs. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (8 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (6)