SZOUO v Minister for Immigration & Anor [2011] FMCA 43 (1 February 2011)

Federal Magistrates Court of Australia

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SZOUO v Minister for Immigration & Anor [2011] FMCA 43 (1 February 2011)

Last Updated: 4 February 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOUO v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 43

MIGRATION – Review of Refugee Review Tribunal decision – interlocutory dismissal of show cause application – no arguable case.

Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.36, 91R, 474

Applicant:

SZOUO

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2534 of 2010

Judgment of:

Driver FM

Hearing date:

1 February 2011

Delivered at:

Sydney

Delivered on:

1 February 2011

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Mr D Smith Clayton Utz

INTERLOCUTORY ORDERS

(1) The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
(2) The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,935 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 2534 of 2010

SZOUO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was made on 19 October 2010. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from China and had made claims of persecution based upon the Chinese one-child policy. Background facts relating to the applicant’s claims and the decision of the Minister’s department and the Tribunal on them are set out in the Minister’s written submissions.
2. The applicant is a citizen of the People's Republic of China. She arrived in Australia on 31 October 2009.
3. On 29 March 2010, the applicant applied for a protection visa (court book “CB” 1). The applicant seeks a protection visa on the basis of her breach of the “one child policy” and consequent harassment by local government officials in her province.
4. In her application for a protection visa, the applicant claims (CB 18):
   1. she was mistreated by Chinese government officials because of her breach of the “one child policy”;
   2. she had a dispute with the local government over a land compensation matter;
   100. her family was fined RMB3,600 in 1988 after the birth of her second child. The applicant asserts that she did not have sufficient funds to pay that fine and had to borrow money from relatives;
   4. in 1991, the applicant's third child was born and the family was fined RMB10,000. The applicant's family could not afford to pay this fine and local government officials attended her house and harassed her and her family. She hid at a friend's home for a period of time;
   5. the applicant's family owned a property of less than one acre which was leased to fruit growers and yielded rent of around RMB2,000 per annum. In 1992, the local government officials confiscated that land because of non payment of the fine of RMB10,000;
   6. the family sank into poverty as a consequence of losing their land whereas other local residents' income from the land increased significantly;
   7. the applicant's family approached the local government seeking return of their land for payment of RMB10,000 but this was rejected;
   8. the applicant's husband and her could not afford the tertiary education fees for their children;
   9. the applicant hopes to have a new life in Australia;
   10. the applicant does not have employment opportunities in China; and
   11. as a consequence, the applicant is a person to whom protection obligations are owed pursuant to s.36 of the Migration Act 1958 (Cth) (“the Migration Act”).

The delegate's decision

5. On 25 June 2010, the applicant attended an interview with a delegate of the Minister.
6. On 25 June 2010, the delegate notified the applicant that the delegate had decided to refuse to grant the applicant a protection visa (CB 41 to 53).
7. In summary, the delegate found:
   1. the applicant could be deemed to fear harm due to an imputed political opinion because:
      1. she avoided paying a fine for a contravention of the one child policy; and
      2. she had some involvement in Falun Gong activities (the mention of involvement in Falun Gong activities was raised for the first time at the interview before the delegate);
   2. the land seizure did not prevent the applicant and her husband from finding work or running a business;
   100. the applicant may be in a difficult financial situation but was not in the situation whereby her ability to subsist was endangered;
   4. as a consequence, the harm feared by the applicant due to her financial situation was not of sufficient seriousness to amount to persecution within the meaning of the Migration Act;
   5. the applicant's participation in Falun Gong activities was minor and would not be of interest to authorities in China; and
   6. the applicant's claims that she practiced Falun Gong lacked credibility as they were raised only late in the interview after the applicant had been made aware that she may not fall within the definition of a refugee under the Migration Act.
8. Having made these findings, the delegate found that the applicant did not have a genuine fear of harm and there was not a real chance of persecution occurring on the basis of race, religion, nationality, membership of a particular social group, or political opinion.

The Tribunal's decision

9. On 26 July 2010, the applicant applied to the Tribunal for a review of the delegate's decision (CB 54).
10. On 15 September 2010, the applicant appeared before the Tribunal.
11. On 19 October 2010, the Tribunal affirmed the delegate's decision not to grant the applicant a protection visa. (The Tribunal's record of decision is set out at CB 66 to 75.)
12. In summary, the Tribunal found:
    1. the applicant gave birth to three children and was required to pay fines as a result of breaching the one child policy;
    2. local government authorities had confiscated the family's property;
    100. confiscation of that property caused the applicant's family financial difficulties;
    4. such financial hardship as was suffered by the applicant did not threaten her capacity to subsist as required by s.91R of the Migration Act (the Tribunal noted that the applicant had been able to afford private school education for her children and had been able to raise RMB100,000.00 to finance her travel to Australia, even if that money was advanced on loan); and
    5. the applicant's sole concern was to be able to remain in Australia so that she could earn sufficient money to continue to pay for the education of her children.
13. The Tribunal observed that the applicant did not claim to fear any harm in China as a result of her participation in Falun Gong activities.
14. Accordingly, the Tribunal was not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugees Convention (Tribunal's reasons at [48]).

The present application

15. The applicant relies upon her show cause application filed on 23 November 2010. There is a single ground of review in that application:
    • The applicant claims that the Tribunal’s decision was affected by judicial error in finding that the local government’s mistreatment toward the applicant and her family did not amount to persecution. The Tribunal found that the applicant’s difficulty in China was purely economic, and that her intention to come to Australia was only to earn sufficient money to continue to pay for the education of her children. The applicant claims that her intention to come to Australia are not only to gain employment benefits. She came to Australia because her human rights were not protected in her home country China. She needs medical treatment for her cancer. If she returns to china, she will not be able to afford the expensive medical costs and therefore she will die from cancer.
16. The application is supported by a short affidavit, which I received. I also have before me as evidence the court book filed on 7 January 2011 and a pathology report concerning the applicant, printed on 18 March 2010 (exhibit A1).
17. As is noted in the Minister’s submissions at paragraph 17, three propositions can be distilled from the ground of review in the application. The first is that the Tribunal committed a jurisdictional error in finding that the local authority’s’ mistreatment of the applicant and her family did not amount to persecution. The second is that the applicant’s human rights were not protected in China, and the third is that the applicant requires medical treatment for cancer and if she returns to China, she will not be able to afford that treatment.
18. As is also noted in the Minister’s submissions, s.474 of the Migration Act provides that decisions of the Tribunal are final. However, where jurisdictional error is established, a decision cannot be described as a decision under the Migration Act and is, therefore, not caught by that privative clause. As I explained to the applicant, it is necessary, in the circumstances, to direct attention to the existence or nonexistence of a jurisdictional error. The applicant’s oral submissions were directed at her dissatisfaction with the Tribunal decision and her personal circumstances.

Consideration

19. The applicant disagrees with the Tribunal’s finding that the financial penalties imposed upon the applicant for breaching the one-child policy amounts to serious harm for the purposes of s.91R of the Migration Act. That section provides:
    • (1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
      • (a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and
      • (b) the persecution involves serious harm to the person; and
      • (c) the persecution involves systematic and discriminatory conduct.
    • (2) Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:
      • (a) a threat to the person's life or liberty;
      • (b) significant physical harassment of the person;
      • (c) significant physical ill-treatment of the person;
      • (d) significant economic hardship that threatens the person's capacity to subsist;
      • (e) denial of access to basic services, where the denial threatens the person's capacity to subsist;
      • (f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.
    • (3) For the purposes of the application of this Act and the regulations to a particular person:
      • (a) in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;
      • disregard any conduct engaged in by the person in Australia unless:
      • (b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.
20. It is clear that the Tribunal took into account the applicant’s evidence concerning the alleged mistreatment of her by the local authorities. The Tribunal accepted that the applicant had been mistreated about 20 years ago, but it was not satisfied that the seriousness of the discrimination she suffered satisfied the test of serious harm for the purposes of s.91R.
21. The Tribunal was clearly cognisant of the financial penalties that had been imposed upon the applicant. However, the Tribunal was not persuaded that those financial penalties caused significant economic hardship that threatened her capacity to subsist. In my view, the Tribunal’s conclusion on that issue was open to it on the material before it. I see no jurisdictional error in the Tribunal’s approach.
22. On the second issue, views may differ on the Chinese one child policy. The applicant is concerned about the human rights issues surrounding the application of the policy. She believes that women in China should be able to have as many children as they wish. However, that opinion does not support a proposition that the applicant, by reason of application of the one child policy, has been subjected to serious harm for a Convention reason. The Tribunal was not satisfied that the applicant was owed protection obligations and it was neither necessary nor appropriate for the Tribunal to engage in a more general examination of human rights issues in China.
23. Ground 3, while it raises a humanitarian concern, does not raise an issue of relevance in terms of the applicant’s protection visa application. The evidence discloses that the applicant was diagnosed with cervical cancer last year. She underwent an operation in May 2010 which removed cancerous tissue. She has been advised by her doctors that she needs to take medication to reduce the risk of the cancer metastasising. She is receiving checkups about every three months. The applicant is concerned that if she returns to China, she will not be able to afford the medical treatment there that she is receiving free in Australia. The court book discloses, at page 77, that the Minister’s Department has already given consideration to that issue for the purposes of s.417 of the Migration Act. The issue, in my view, also arises in relation to any forced removal of the applicant from Australia pursuant to ss.198 or 200 of the Migration Act.
24. It should be possible for the Minister’s Department to obtain from the applicant’s doctors an opinion as to the length of time it would be desirable for her to remain under treatment in Australia. That opinion, if received, would better inform a decision as to when it is reasonable practicable to remove the applicant, should that become necessary.
25. I find that the Tribunal decision is free from jurisdictional error. The decision is, therefore, a privative clause decision, and the application must be dismissed. I so order.
26. In consequence of the dismissal of the application, the Minister seeks scale costs of $2,935. The applicant indicated a willingness to pay those costs over time. That is a matter that she could take up with the Minister’s Department or the Minister’s solicitors. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,935 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Driver FM

Date: 3 February 2011