SZGUV v Minister for Immigration & Anor
[2007] FMCA 1058
•27 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGUV v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1058 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision. MIGRATION – Visa – protection visa – refusal. MIGRATION – Allegation of there being no evidence to support the Tribunal’s decision fails where the Tribunal relies on what the applicant tells or submits to it. |
| Migration Act 1958, s.91X |
| WAJS v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 139 |
| Applicant: | SZGUV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 440 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 19 June 2007 |
| Date of Last Submission: | 19 June 2007 |
| Delivered at: | Sydney |
| Delivered on: | 27 July 2007 |
REPRESENTATION
The applicant appeared in person.
| Counsel for the Respondents: | Ms. T. Wong |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 440 of 2007
| SZGUV |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application dated 19 February 2007, the applicant seeks review of the decision of the Refugee Review Tribunal (“Tribunal”) which was signed on 12 January 2007 and which affirmed an earlier decision of the delegate of the Minister for Immigration and Multicultural Affairs (“Minister”) dated 24 February 2005 refusing the applicant’s application for a protection visa.
The Tribunal decision the subject of these proceedings is the second such decision relating to the applicant. There was a previous Tribunal decision signed on 7 June 2005 which was quashed by order of this Court dated 19 October 2006 (Court Book (“CB”) page 73).
Section 91X Migration Act 1958 (Cth) (“Act”) provides that the Court must not publish the applicant’s name.
Background facts
The Tribunal quoted from the applicant’s protection visa application form and described him as follows:
· He was male, born in China and had Chinese citizenship.
· He was born on 25 June 1977 and so was aged 28 years at the time of application.
· He required a Chinese interpreter. He could speak, read and write Chinese.
· Her [sic: His] ethnic group was ‘Han’.
· He had no religion.
· He was married in March 2001.
· His occupation was ‘Farmer’. He was not currently employed.
· In China in the past 10 years he had lived in Dong Zhang Town, Fuqing City. He indicated one address in the last 10 years (1994 to 2004).
· He received 10 years of schooling in China from 1983 to 1993. (CB 106)
The Tribunal also recorded that the applicant said his wife and daughter remained in China and that he had never been convicted of a crime or offence or charged with an offence that was awaiting action.
The applicant claims to fear persecution in China because of his membership of a social group, being farmers whose land was acquired for development by the Fuqing City government, and a group of farmers who protested against the acquisition.
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-13 of the Tribunal’s decision (CB 106-115). Relevantly, they are in summary:
a)before October 1992, the applicant and other farmers in Dongzhang Town, Fuqing City, were living a rich life. In 1992 Fuqing Rongqiao Economic and Technological Development Zone acquired 10,000 square kilometres of land without consent. The farmers were paid some money. The farmers sued the government. All levels of courts and government bodies refused to take their appeals;
b)the members lost land, homes and employment. In 2000 the applicant’s house was demolished;
c)on 13 June 2003, the leader of the government investigation proposed a cheap compensation proposal;
d)on 20 June 2003, three hundred farmers who had lost land gathered at the city government for a fair explanation. Armed police were sent to force them to leave. The applicant was under 24 hour surveillance;
e)on 24 June 2003, four hundred farmers went to the city government for answers. Police arrived. The applicant was arrested, along with twenty representatives. The applicant was detained for ten days. He was severely hit and tortured in the detention centre;
f)one month passed and the government refused to review the farmers’ appeal. The applicant was informed by relatives that the Fuqing government was trying to arrest him. Consequently he escaped from China, fearing that the Fuqing government would detain, torture and arrest him if he returned.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)there was a number of significant inconsistencies between the applicant’s application and his evidence at the hearing. The applicant’s changing claims (such as that concerning when the farmers’ land was acquired, where he lived after his home was demolished and whether or not he was wanted by the government) led the Tribunal to doubt the applicant’s claimed sequence of events in relation to the date of acquisition and to conclude that the other two allegations were fabricated;
b)the Tribunal did not accept that the applicant would have been included in any legal action or administrative action/suit concerning compensation for his father at the time of the claimed acquisition, as in the application the applicant had indicated that the acquisition occurred in 1992, at which time the applicant was still at school in Year 9;
c)the Tribunal did not accept the applicant’s evidence concerning his protests, arrest and detention in 2003. The inconsistencies in his evidence, together with a lack of detail concerning significant events, led the Tribunal to conclude that the arrest and detention claimed by the applicant did not happen and that the injury which caused the scar on his arm did not happen as a result of an assault during that alleged detention;
d)the Tribunal concluded that the applicant fabricated his evidence concerning the authorities’ interest in him up to early 2004 noting:
i)the applicant changed his evidence during the hearing;
ii)he did not provide any great detail about his claimed involvement in pursuing compensation for his father in 2003;
iii)it did not accept that the Fuqing government would have had the applicant continuously followed for five to six months after a period of detention because it was concerned he would be part of another protest, given the minor nature of the claimed protests and the applicant’s low profile as an activist and lack of social and political importance;
e)the applicant’s inconsistent evidence and changing claims in relation to the claim that his father’s land which was acquired unjustly led the Tribunal to conclude that the claim of land acquisition had been fabricated;
f)the Tribunal found that the fact that the applicant was able to leave China without difficulty using his own passport shows that he was not wanted by the Chinese authorities;
g)the long period between the claimed detention in July 2003 and the applicant’s decision in early 2004 to leave China was a strong indication that the applicant did not leave China because of any event in 2003.
In essence the Tribunal found:
The inconsistencies discussed above, together with a lack of detail concerning significant events, when considered cumulatively lead the Tribunal to conclude that the applicant has fabricated the claims concerning his father’s land being acquired unfairly by the government and fabricated his story of being arrested, detained and injured. The Tribunal concludes that the claim concerning being under constant surveillance from mid 2003 to early 2004 was also fabricated. The Tribunal concludes that the applicant did not suffer any harm in China for a Convention reason.
The Tribunal concludes that the applicant was not of any interest to the Chinese authorities when he departed China and is not currently wanted by Chinese authorities. (CB 118)
Proceedings in this Court
The grounds of the application can be summarised as follows:
a)the Tribunal incorrectly applied the law to the facts
b)there was no evidence to support the decision
c)the Tribunal did not consider the difficulties faced by the applicant in obtaining evidence from China.
Dealing with each of these grounds in turn:
The Tribunal incorrectly applied the law to the facts
At pages 2, 3 and 4 of its decision (CB 104-106), the Tribunal paraphrases the law relevant to its review. The applicant has not identified in what way that discussion of the statutory and common law basis for its decision was mistaken. The Tribunal’s summary of the relevant law was not incorrect.
Even so, the Tribunal’s decision was, in essence, based on a solid disbelief of the allegations advanced by the applicant. The Tribunal, having stated the law without error then went on to conclude that the applicant had not suffered any harm in China for a Convention reason, based on its conclusion that his claims had been fabricated. This conclusion was open to it on the evidence and no error is disclosed in this connection.
There was no evidence to support the decision
It could be said that rather than the Tribunal making findings of fact which are unsupported by the evidence, the applicant sought to satisfy the Tribunal that he had a well-founded fear of persecution for a Convention reason yet produced little or no credible evidence in support of that allegation.
These proceedings present the situation that the decision made by the Tribunal was based on conclusions drawn from the evidence placed before it by the applicant. In similar circumstances the following comments were made by Driver FM which enjoyed the approval of the Full Court of the Federal Court in WAJS v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 139 at [13]:
The evidence before the presiding member which led to the adverse findings on credibility was the applicant’s own account. The presiding member found the applicant’s account to be implausible and illogical. The presiding member did not require other evidence to support her rejection of the applicant’s evidence. She had to satisfy herself, or not, on the basis of the material put before her. It is up to an applicant to satisfy the decision maker that he or she faced persecution. If an applicant presents evidence and it is rationally rejected by the decision maker, the applicant can hardly complain that there was no evidence supporting the rejection. There plainly was evidence, being the evidence presented by the applicant himself. Provided that the presiding member approached the consideration of the applicant’s evidence in a rational and logical manner, which, in my view, she did, the applicant cannot found a judicial review application on a no evidence ground, or on the third limb of the rules of procedural fairness, if it exists in Australia.
Similarly in this case, the Tribunal’s conclusion did not demonstrate illogicality but, rather, a careful consideration of the evidence and assertions advanced before it by the applicant and was a decision based on what the applicant put before it. No error is demonstrated in respect of this asserted ground of review.
The Tribunal did not consider the difficulties faced by the applicant in obtaining evidence from China
At the hearing before the Tribunal the applicant said that he had:
… documents at home which showed that his land was commandeered by the Industrial Development District. He did not bring them to the hearing because the Tribunal’s letter did not ask him to. (CB 109)
This assertion was incorrect as, in the second dot point on the second page of the Tribunal’s letter dated 13 November 2006 inviting the applicant to the Tribunal hearing (CB 83-84), the Tribunal invited him to:
… send us any new documents or written arguments you want the Tribunal to consider; please note any documents or arguments you send should be in English or translated by a qualified translator. (CB 84)
The Tribunal’s decision records that it also told the applicant that any evidence he provided before a decision was made would be considered (CB 109).
Consequently, the applicant had two occasions to put before the Tribunal the documents which he said he had.
The applicant has not sought to impugn the accuracy of the Tribunal’s summary of the hearing before it which appears in its decision record. At no point in that record is there an indication that the applicant was having difficulty in obtaining documents from China which he wished to use to support his application to the Tribunal. It is apparent from the Tribunal’s summary of its hearing that, at the conclusion of the hearing, the applicant:
… had nothing else to say. (CB 111)
The applicant never suggested to the Tribunal that he was having any difficulty in obtaining from China documents which he wished to use to support his application. Moreover, such documents as he alleged he did have he did not provide to the Tribunal. Consequently, no jurisdictional error is demonstrated in respect of this asserted ground of review.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Cameron FM.
Associate:
Date: 27 July 2007
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