SZGUW v Minister for Immigration

[2010] FMCA 145

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGUW v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 145

MIGRATION – RRT decision – Chinese applicant claiming persecution when protesting about farm confiscations – totally disbelieved by Tribunal – previous decisions of Tribunal set aside for failure to address claims cumulatively – previously found jurisdictional error was not repeated – application dismissed.

Migration Act 1958 (Cth), ss.91R(2), 414, 430(1)

Abebe v The Commonwealth of Australia (1999) 197 CLR 510
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630
Applicants A233 of 2003 v Refugee Review Tribunal [2004] FCAFC 296
Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389
Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Minister for Immigration & Multicultural Affairs v Khawar (2002) 210 CLR 1
Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
MZWPD v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1095
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152
SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609
SZCOS v Minister for Immigration & Citizenship [2008] FCA 570
SZGUW v Minister for Immigration & Citizenship (2009) 108 ALD 10, [2009] FCA 321
SZGUW v Minister for Immigration & Anor [2008] FMCA 1721
SZGUW v Minister for Immigration & Citizenship [2008] FCA 91
SZGUW & Minister for Immigration & Anor [2007] FMCA 1120
WALT v Minister for Immigration & Multicultural & Indigenous Affairs [2007] FCAFC 2

Applicant: SZGUW

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2377 of 2009

Judgment of: Smith FM

Hearing date: 24 February 2010

Delivered at: Sydney

Delivered on: 24 February 2010

REPRESENTATION

Counsel for the Applicant: Mr D Ash

Counsel for the First Respondent: Mr M Cleary

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application is dismissed. 

2. The applicant must pay the first respondent’s costs in the sum of $5,400. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2377 of 2009

SZGUW

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This matter has a long history of consideration by the Refugee Review Tribunal, this Court, and the Federal Court.  Three decisions of the Tribunal have been set aside for jurisdictional error, and I am now judicially reviewing its fourth decision.  The ground of review argued by counsel for the applicant requires me closely to examine the reasoning of the Federal Court for quashing the second and third decisions, since the applicant contends that the present Tribunal has made the same jurisdictional error as was, in the opinion of Jacobson J, made by the second Tribunal member and was then, in the opinion of Reeves J, repeated by the third Tribunal member.  For the reasons which follow, I have concluded that the error was not repeated by the fourth Tribunal member. 

2. The applicant arrived in Australia in December 2004.  On 18 January 2005 he applied for a protection visa.  His application disclaimed receiving assistance, but he appointed an authorised recipient for correspondence.  A three‑page typed attachment explained the history upon which he claimed to fear persecution if he returned to the People’s Republic of China. 

3. His statement said that he was “a member of farmers of deprived land fighting for Living Right.  Due to my membership of this particular social group, I was persecuted by the Fuqing City Government”.  He referred to acquisitions from farmers during 1992 of 10,000 square kilometres of land with no consent and no government approval.  He said that such acquisitions continued in later years, that inadequate compensation was given, and that “our members lost land, homes and employment with severe hardship”.  He said “some thirty members had been detained, arrested and sentenced simply for the reason of getting a fair go under the so‑called law system in China”.  An investigator was appointed, but the investigator was himself “the organiser and initiator of the action for occupying farmers’ land”. 

4. Up to this point in the statement, the applicant’s personal involvement in these events was left obscure.  The remaining parts of the statement claimed that the applicant had suffered his house being demolished in the course of these events in 2000, that the applicant was involved with other farmers who had been “suing Fuqing government for eight years”, and that the applicant was one of 300 dispossessed farmers who gathered together in June 2003 at a protest which was dispersed by the police.  The applicant suggested that he, with three other people, had been leaders in these protests, and that they and 20 other representatives were detained for 10 days at a protest on 24 June 2003.  He said:  

   We were severe hit and tortured in the detention centre.  … 

   Luckily [one of the other leaders] and I escaped from China.  Farmers who lost land, lost home and lost jobs could not get a good result for fighting with the government, while in the end lost personal freedom and safety. 

   We were informed by relatives that the Fuqing government are trying to arrest us.  I have every reason to fear that the Fuqing government will detain, torture and arrest me if I go back. 

5. The applicant did not present supporting details nor evidence for these claims to the Department of Immigration.  A delegate refused the application on 23 February 2005.  The delegate put significant weight on the fact that the applicant had come to Australia using his own passport without the adverse attention of the PRC authorities.  He said it was “far‑fetched to claim that the applicant, in a society as highly scrutinised as that of China’s, would now be of interest to the authorities”. 

6. The applicant filed an application for review by the Refugee Review Tribunal on 22 March 2005.  He was invited to a hearing on 6 June 2005, but did not attend.  The Tribunal handed down a decision affirming the delegate’s decision on 28 June 2005.  The statement of reasons of that Tribunal member does not appear in the Court Book, however, it appears from the reasons of the Tribunal decision which I am currently reviewing, that the first Tribunal member relied upon information taken from the protection visa application in a manner which, at that time, was regarded as involving jurisdictional error.  The Tribunal’s decision was set aside by consent order in this Court on 27 July 2006.  It seems likely that the premises upon which that consent order was made were subsequently reversed by SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609.

7. After the remitter, the Tribunal invited the applicant to a hearing conducted by a second member, which he attended on 26 October 2006.  The second Tribunal member handed down a decision on 7 December 2006.  The decision was upheld in this Court (see SZGUW & Minister for Immigration & Anor [2007] FMCA 1120), but an appeal to the Federal Court was successful (see SZGUW v Minister for Immigration & Citizenship [2008] FCA 91). Jacobson J on 21 February 2008 ordered that there be an order in the nature of certiorari to quash the decision, and an order in the nature of mandamus “requiring the Second Respondent to review according to law the decision made by” the delegate. 

8. The reasoning followed by the second Tribunal member in which Jacobson J detected jurisdictional error can be sufficiently identified from the following extracts from Jacobson J’s judgment.  His Honour addressed several grounds of appeal presented by counsel for the applicant, and upheld the third ground.  He described this ground, as presented by counsel for the applicant, as follows: 

   25The third ground is failure to properly apply the provisions of s 91R(2) of the Act. In particular, the [applicant] contends that the Tribunal’s finding that he did not suffer serious harm was flawed by a failure to consider the cumulative effect of various matters including the confiscation, his arrest and mistreatment and his inability to pursue his compensation claim.

9. It appears to me that the reference in the ground to s.91R(2) of the Migration Act 1958 (Cth) was either obscure or misleading, since his Honour’s reasoning which upheld the ground made no reference to that section, and did not identify any error in its application, but rather found an error of jurisdiction arising from the Tribunal’s failure to address the refugee claims which were before it “in their totality”.  His Honour’s relevant reasoning was: 

   55In my opinion, the essential error in the Tribunal’s decision is that it failed to consider the [applicant’s] claims in their totality.  In doing so, it failed to complete the exercise of its jurisdiction. 

   56This error appears from a careful, but not over‑zealous reading of the Tribunal’s findings and reasons set out at pp 13 and 14 of its decision. 

   57The Tribunal commenced by considering whether the confiscation of the [applicant’s] land amounted to persecution involving serious harm.  It was not satisfied that the [applicant] suffered serious harm because he continued to farm in his own village.  It considered that even if the [applicant] suffered serious harm, there was no Convention nexus because the action was an opportunistic or criminal one by the local government and developers. 

   58The Tribunal then turned to the [applicant’s] claim that his house was demolished.  It was not satisfied that this claim had been made out. 

   59The Tribunal returned briefly to the confiscation of the land. It recognised that the [applicant’s] claimed fear of persecution stemmed from his involvement in the protest demonstration in 2003.  It accepted that his mistreatment following the demonstration amounted to persecution for a Convention reason. 

   60Although the Tribunal went on to find that the [applicant’s] fear was not well‑founded, it failed to consider the totality of the serious harm alleged by the [applicant] and the significance of the allegations of state participation in the conduct. 

   61These allegations included a claim that the leader of the team appointed by the provincial government to determine the amount of compensation payable to the farmers was the “organiser and initiator” of the original act of confiscation of the lands in 1992. 

   62In my opinion, the substance of the [applicant’s] complaint is similar to that which was made in Khawar.  It is that he suffered serious harm, albeit economic harm, that he is unable to take action to redress that harm without threat to his life or liberty because of the involvement of state authorities in the infliction of the harm, and that this amounts to persecution by those authorities: Khawar at [79] – [80].

   63The necessary Convention nexus is said to be imputed political opinion or membership of a particular social group, namely dispossessed farmers from the Fuqing Economic Zone. 

   64In accepting that the [applicant’s] mistreatment following the demonstration was serious enough to amount to persecution, the Tribunal must be taken to have formed the view that the [applicant] had suffered serious harm.  But it failed to deal with the relationship between these events and the initial act of confiscation which it apparently regarded as a criminal act by the local government and the developers. 

   65I do not see how the Tribunal could have proceeded to deal with the question of whether the [applicant] had a well‑founded fear without first considering the full impact of the harm alleged by the [applicant], taken in its full context. 

   66Here, the context was not confined to the [applicant’s] detention and mistreatment following the demonstration in 2003.  The [applicant’s] claim, taken as a whole, was that he was unable to obtain state protection for his right to protest against the illegal confiscation of his land because the state, or its authorities, were involved in the confiscation and in the appointment of the beneficiaries of the illegal act to determine the amount of the compensation.  I do not consider that this approach wrongly conflates the concepts of “serious harm” and “well‑founded fear”. 

   67It is true that “overall, based on the evidence” the Tribunal was satisfied that the [applicant’s] fear was not well‑founded.  But the difficulty with this statement is that it appears after the Tribunal had considered each step in the claim in isolation and without considering the impact of state involvement in the conduct: MZWPD at [72] – [73].

   68It follows in my view that the Tribunal failed to consider a substantial aspect or integer of the [applicant’s] case that was sufficiently plain on the facts that were established: Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 197 ALR 389 at [24]; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [55] – [57].

   69This amounted to a constructive failure to exercise the Tribunal’s jurisdiction: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; NABE at [48] – [49]; WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [44].

10. His Honour also explained the jurisdictional error in the following way: 

    74Although the Tribunal came to the view that there was no real likelihood of such a threat, it did so without considering all the integers of the claim.  It is well‑established that this vitiates the purported exercise of the power. 

11. As with all judgments, his Honour’s reasoning must be understood in the light of the facts before him.  Significantly, in my opinion, his Honour’s reasoning addressed a statement of reasons where the Tribunal had accepted all the key components of the applicant’s claimed history of persecution in the past, except his claim that his house had been demolished and his belongings confiscated in 2000.  The second Tribunal expressly accepted that the applicant’s land had been confiscated “by the government in favour of developers in 1992”, and it did not reject the claim that there was collusion or support by government agents for the oppressive actions of the developers.  It also expressly accepted that the applicant had participated in protest actions following that confiscation, that he had been “detained as a result of his participation in a demonstration” in 2003, and that he had suffered a 10 day detention and mistreatment, amounting to persecution for reason of political opinions imputed to him.  Notwithstanding these favourable findings, it affirmed the delegate’s decision because it did not consider that the chance of the applicant “facing persecution [for a Convention reason] is real”. 

12. Jacobson J’s reasoning that the Tribunal had not fully addressed the claim before him, in my opinion, should be understood as being founded upon the insufficient reasoning of the Tribunal on whether the accepted history established a well founded fear of persecution for a Convention reason in the future.  He concluded that the Tribunal, when assessing the future risk of the applicant being persecuted, had addressed only the later element of the history which it had accepted, that is, his mistreatment occurring in 2003, without reflecting upon the relationship of those events with the preceding land confiscation and collusion of government agents which the Tribunal had also accepted as true.  His Honour characterised the element in the refugee claims which had been overlooked when assessing the future risk of persecution, as being the “involvement of state authorities in the infliction of the [economic] harm” (see [62] of his Honour’s reasoning).  His reasoning thus fell squarely within the principles discussed in the Full Court in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 which they summarised at [63].

13. After the remitter, the Tribunal invited the applicant to a hearing conducted by a third Tribunal member, which he attended on 23 May 2008.  The applicant at that stage in the proceedings employed an experienced migration agent, who made a submission to the Tribunal supported by country information.  Her submission characterised the applicant’s claims as follows: 

    [The applicant] claims fear of persecution in China based on the convention ground of membership of a particular social group – dispossessed farmers and political opinion – involvement in farmers’ protests against the resumption of their lands.  

14. The third Tribunal member handed down his decision on 5 June 2008.  He again affirmed the delegate’s decision.  The applicant again sought judicial review.  It was unsuccessful in this Court (see SZGUW v Minister for Immigration & Anor [2008] FMCA 1721), but succeeded in the Federal Court before Reeves J (see SZGUW v Minister for Immigration & Citizenship (2009) 108 ALD 10, [2009] FCA 321).

15. The third Tribunal member’s decision contained findings of fact adverse to the applicant which, in my opinion, were clearly more extensive than those of the second Tribunal.  The third Tribunal accepted that the applicant had been a farmer in China, but it did not accept that the applicant had been involved in protests and appeals arising from compulsory acquisitions of land, nor that he had been part of a group of farmers formed to protect their rights, nor that he had been involved in leading farmers in protests in 2003 and had been arrested and detained.  The third Tribunal member said in its conclusion:  

    I have considered the applicant’s claims in their totality but for the reasons given above I do not regard the applicant as a credible witness and I do not accept his claims. 

16. However, the third Tribunal member also included in his statement of reasons some other findings concerning the applicant’s claim to belong to a particular social group, being farmers of deprived land, which might appear to have accepted that the applicant’s circumstances provided a factual foundation for this claim, in so far as he claimed to be a farmer whose land had unfairly been expropriated.  It referred to the claim formulated by the applicant’s agent that he risked persecution as a member of a particular social group, and said: 

    As I put to the applicant in the course of the hearing before me, to the extent that the persecution feared by the farmers is being dispossessed or deprived of their land, I consider that the suggested particular social group uses the feared persecution to define the group in a way which is not permissible in accordance with Applicant A and Applicant S, referred to above.  

    The Tribunal member rejected the agent’s submission that “the legal system in China denied farmers basic rights which were available to others in China”, and found: 

    I consider that the material which the applicant’s representative submitted suggests that farmers are treated in the same way as everybody else in China and that urban residents are equally affected by the problems caused by the requisition of land for roads, factories, housing and office developments in China. 

17. In his judgment, Reeves J expressed concern that the third Tribunal’s statement of reasons made no mention of the reasoning of Jacobson J, and in his Honour’s opinion “did not appear to have paid any regard to the rulings made by Jacobson J, particularly his ruling that the second Tribunal had failed to properly consider all the [applicant’s] claims” (see [12]). His Honour accepted that on a reconsideration, the Tribunal was entitled to consider the matter afresh on the evidence before it, and was not bound by the first Tribunal’s decision (see [19]). However, he said:

    20In this matter, Jacobson J did not state his rulings of law in the orders he made, but he did identify them very clearly in his reasons for judgment.  It follows that the content of the orders his Honour made, can be easily derived from his reasons for judgment: see [7] above.  In summary, that content is that the second Tribunal failed to consider the whole of the [applicant’s] claims in their full context, in particular, his claims that he was unable to obtain state protection because of collusion between the state authorities to defeat his protests and his appeals for compensation for the illegal confiscation of his land.  The question then is whether the third Tribunal has taken heed of these failures and then taken them into account in its reconsideration of the matter according to law.  To answer that question, it is necessary to consider the terms of the third Tribunal decision. 

    21…  I consider that it was incumbent upon the third Tribunal to make it clear on the face of its reasons, how it has discharged its obligation to reconsider this matter according to law specifically, the rulings of law made by Jacobson J.  Conversely, if such is not clear on the face of the third Tribunal decision, I consider that failure gives rise to a strong inference that the third Tribunal did not properly discharge its obligations in this regard. 

1. His Honour then analysed the third Tribunal’s decision, noting a number of matters which led him to infer that, in effect, the third Tribunal had made the same error as previously identified by Jacobson J, that is, of not considering “crucial elements of the [applicant’s] claims”.  He noted, first, that “the third Tribunal has not recorded the error of law identified by Jacobson J anywhere in its decision”.  Secondly, that “as with the second Tribunal, it seems to have focused on the demonstration in 2003, rather than the full context of the [applicant’s] claims taken as a whole …”.  He said that “to the extent (if at all) the third Tribunal has considered the [applicant’s] claims of collusion between the state authorities to defeat his protests and appeals, in relation to the illegal confiscation of his land, the third Tribunal seems to have treated the [applicant] as being in the same position as all farmers (and others), in China, who have had their land confiscated” (see [26]). 

2. His Honour said: 

   27It is, of course, possible to construe that the third Tribunal decision as having made credibility findings against the [applicant] that are so fundamental and so all embracing that they leave no room for the [applicant] to succeed on his unconsidered claims.  However, it is significant, in my view, that the third Tribunal has not expressly stated that conclusion in its decision.  Moreover, it is worth recalling that the second Tribunal also rejected all, or most, of the [applicant’s] claims on credibility grounds, but that did not prevent Jacobson J from setting aside its decision because it had failed to consider the unconsidered claims in their context: see [67] of the decision of Jacobson J set out in [7] above.  On the same basis, I cannot be confident that if the third Tribunal had considered the unconsidered claims, it would have rejected them as well on credibility grounds.  … 

   28Having considered the third Tribunal decision carefully, I do not consider that the third Tribunal has clearly dealt with the unconsidered claims identified by Jacobson J in their full context.  I therefore consider there is a strong inference that they have not been considered by the third Tribunal.  It follows that I consider that the third Tribunal has not discharged its obligations to reconsider this matter according to law, specifically the law as ruled on by Jacobson J. 

   … 

   31For these reasons, I consider the Federal Magistrate erred in failing to detect that the third Tribunal had failed to conduct its further review of the delegate’s decision according to law, by failing to consider and take into account the jurisdictional error identified by Jacobson J in his reasons for judgment.  It follows that the decision of the Federal Magistrate must be set aside and, so too, must be the decision of the third Tribunal.  Further, the Tribunal must be again directed to consider the [applicant’s] application for a review of the delegate’s decision according to law, specifically the law as outlined in these reasons for judgment and the reasons for judgment of Jacobson J. 

3. Reeves J made orders of the same nature as were made by Jacobson J, that is, for the issue of writs of certiorari and mandamus, “requiring the second respondent to review the decision of the delegate of the first respondent made on 23 February 2005, according to law”. 

4. The applicant did not have a representative during proceedings before the fourth Tribunal member.  He attended a hearing held by the fourth member on 26 August 2009, which lasted nearly three hours.  The ground of review argued before me does not require me to examine the hearing, nor other procedures followed by the Tribunal. 

5. The Tribunal made its fourth decision on 7 September 2009, and again affirmed the decision of the delegate.  

6. In its statement of reasons, the fourth Tribunal member referred to all the material received in the course of the proceedings before all Tribunal members, referring to the history of the matter before the Tribunal, and to the evidence received on earlier occasions as well as at the hearing conducted by it.  This included an expressed identification of the applicant’s agent’s characterisation of the applicant’s claims, which I have extracted above. 

7. The fourth Tribunal’s findings on the truth of the applicant’s claimed history were more adverse to the applicant than those of both the previous two Tribunals.  The Tribunal reached a conclusion from the applicant’s presentation of his evidence that he had not experienced any of the history which he claimed had given rise to persecution in China before he came to Australia. 

8. The Tribunal assessed the applicant’s explanations for significant inadequacies in his recollection of relevant events, but did not accept them.  It said:  

   75.The applicant’s inability to provide at the hearing any real description of his claimed experiences leads the Tribunal to conclude that he has not experienced them as he so claims.  The Tribunal does not accept that poor memory or the passage of time explains the paucity of the applicant’s oral evidence about events that the applicant claims to have been continuously involved in over a number of years. 

9. The Tribunal made specific findings, in which it did not accept “that the applicant’s occupation prior to his arrival in Australia was that of a farmer and that the applicant was dispossessed of his farming lands”.  This finding clearly went further than either of the two previous Tribunals, who both had accepted this foundation of his claims.  The Tribunal also made findings that it did not accept “that the applicant was involved in and the organiser of protest action about the government’s acquisition of farming land”; “that the applicant was arrested in 2003 by the authorities because of his role in protest action”; “that the applicant’s house was destroyed in 2000 by the Chinese authorities”; nor “that the authorities are asking after the applicant and have visited the applicant’s family to enquire as to his whereabouts”.  The Tribunal gave various reasons for arriving at these conclusions, but it is unnecessary for me to examine them. 

10. The Tribunal concluded as to the applicant’s future risk of persecution: 

    84.Accordingly the Tribunal does not accept that the applicant will be arrested or detained by the authorities on his return to China nor does the Tribunal accept that the applicant faces a threat to his personal security and human rights or dignity on his return to China. 

    85.For the reasons set out above, the Tribunal is not satisfied that the applicant has a well founded fear of persecution for reason of his membership of a particular social group dispossessed farmers or his political opinion or any other Convention reason on his return to China. 

11. The applicant now applies to set aside the fourth decision of the Tribunal.  He has been represented by counsel at the hearing today.  Counsel did not rely upon the grounds and evidence filed in support of the original application, but filed an amended application containing one ground: 

    That the second respondent failed to properly apply the provisions of section 91R(2) of the Migration Act 1958 (“the Act”), in particular that it failed to consider the cumulative effect of (1) the confiscation of the land; (2) the arrest and mistreatment; (3) the inability to pursue the compensation claim; and (4) the issue of collusion between the various state authorities, with the result that the second respondent failed, either actually or constructively, to exercise its jurisdiction under section 414 of the Act.

12. As can be seen, this repeats the reference to s.91R(2) which was in the ground upheld by Jacobson J. However, counsel did not seek to identify any error specifically relating to the application of that section in his arguments before me, but submitted that the fourth Tribunal had, like the second and third Tribunals, failed to assess the applicant’s risk of persecution if he returned to China, upon a proper understanding that he had claimed to have suffered all his persecution, and to be at risk of future persecution, as a result of land confiscations in which government agents were collusive or complicit.

13. Counsel submitted that the fourth Tribunal member’s reasons had failed to express an awareness that Reeves J had directed it “to consider the [applicant’s] application for review of the delegate’s decision according to law, specifically the law as outlined in these reasons for judgment and the reasons for judgment of Jacobson J”.  Counsel submitted, using the language of Reeves J at [20] of his Honour’s judgment, that the present Tribunal had not “taken heed” of the errors identified by the two previous judgments of the Federal Court. 

14. Counsel, as I understood him, disclaimed the proposition that the fourth Tribunal was bound as a matter of law to assess the applicant’s claimed history upon the findings of fact accepted by either the second or the third Tribunal, that is, accepting the truth of some parts of the applicant’s claimed history.  Counsel accepted, as Reeves J stated, that the fourth Tribunal was at large in relation to how much of the claimed history it should accept.  This, of course, was subject to procedural fairness requirements, and particularly the obligation to warn about new issues in accordance with the principles identified in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152, but the observation of these obligations by the fourth Tribunal was not challenged before me.

15. Counsel for the applicant put great emphasis upon a submission that the fourth Tribunal had, like the third Tribunal, failed expressly to discuss the jurisdictional error upon which the matter had been twice remitted to the Tribunal, and to explain how it had avoided repeating the same error. 

16. However, he did not submit, and I would not accept, that any defect in its statement of reasons in this respect would necessarily establish that the same error had been repeated. As I understood him, he did not submit that the Tribunal was under a jurisdictional duty in its statement of reasons expressly to analyse and discuss the reasoning of Reeves J, or that of Jacobson J for that matter, in relation to the earlier decisions of the Tribunal. In particular, to include in its statement of reasons an expressed explanation as to why the Tribunal did not consider that it had made the same error of jurisdiction which had been identified in previous decisions by the two judgments of the Federal Court. I do not consider that such an obligation arose directly from the provisions of the Migration Act, or from the terms of the orders for mandamus, so as to provide an independent ground of invalidity.

17. Nor, with respect, do I understand Reeves J as having suggested that such a discussion was required as part of the Tribunal’s obligation to perform its statutory function of review of the delegate’s decision “according to law” pursuant to the order for mandamus.  As I understood him, counsel acknowledged that Reeves J had regarded the absence of such discussion in the statement of reasons of the third Tribunal as no more than confirmatory of a perceived defect in the reasoning process undertaken by the third Tribunal in relation to the applicant’s refugee claims.  It is clear that he gained support from the absence of such discussion, for his conclusion that the third Tribunal had made the same error previously found by Jacobson J. 

18. Counsel for the applicant conceded that the present Tribunal referred to the two Federal Court judgments in its opening paragraphs, when narrating the procedural background to the matter, and he did not dispute that I could conclude that the Tribunal had actually read those judgments.  Plainly, in my opinion, it did so.  It said:  

    6.The applicant appealed the Magistrate’s decision to the Federal Court and on 21 February 2008 the Federal Court (Jacobson J) remitted the matter to the Tribunal for a second time.  The Court found that the second Tribunal failed to exercise its jurisdiction in that although it had considered each of the applicant’s claims it had not considered these claims taken together in total and whether when considered collectively they amounted to serious harm. 

    … 

    8.On 7 April 2009 the Federal Court (Reeves J) found that the Federal Magistrate “erred in failing to detect that the third Tribunal …(failed)… to consider and take into account the jurisdictional error identified by Jacobson J in his reasons for judgment.” 

    9.Reeves J in his judgment states that “the third Tribunal has not recorded the error of law identified by Jacobson J, anywhere in its decision.  It follows that it has not separately and distinctly assessed that error of law and considered how it should take it in to account in its review of the delegate’s decision.” 

    10.Reeves J states that “I consider that the third Tribunal has not discharged its obligation to reconsider this matter according to law, specifically the law as ruled on by Jacobson J.” 

    11.The matter is now before the Tribunal pursuant to the order of the Court. 

19. Although the Tribunal’s summary of the error identified by Jacobson J might be open to some argument, I consider that the present Tribunal has shown that it understood the gist of the reason why the matter had been remitted, being that “each of the applicant’s claims” had not been “taken together in total”, and “considered collectively”.  I find it most difficult in the face of these paragraphs to conclude that the Tribunal did not proceed to address the matter before it, fully aware of the reasons for the previous remittance, and conscious of a need to address all the applicant’s claims separately and “collectively”. 

20. However, counsel for the applicant submitted that the Tribunal had again overlooked the claimed nexus by the applicant between his persecution by police in 2003 and the involvement of Chinese government agencies in the earlier land confiscations, which the applicant claimed to have personally suffered from and to have protested about. 

21. Counsel traced this component in the applicant’s claims from the applicant’s original visa protection statement, and in the formulation of the applicant’s claims by his former representative, and in the applicant’s final written submission to the fourth Tribunal.  This included the statements: 

    In my country, especially in small places like my home village, the government and the developers were in league with one another.  They enclosed the land crazily.  Those country folks who lost their land could only dare to feel angry, but not dear to say anything, because a little critical opinion could make them to be arrested into the prison.  People like me who dared to fight for farmer’s rights were the eyesore and thorn in their flesh.  Definitely, they would collect a lot of accusation on me and put me to death.  All the courts only take order from the government.  …

22. Counsel submitted that the component of collusiveness between the developers and government agents was again overlooked by the present Tribunal.  He submitted that this was shown in the Tribunal’s brief summary of the applicant’s claims at the start of its “Findings and Reasons”:  

    70.The applicant’s claims may be summarised as follows.  The applicant claims that he is a dispossessed farmer because in 1992 his family’s land and his wife’s family land were acquired by the government.  He claims that over a period of some eight years he complained to the authorities about this and that he organised and lead other farmers in protest action.  He claims that his house was destroyed in 2000 and that because of his involvement in and organisation of protest action he was detained in June 2003 for a period of ten days.  He claims that his family have warned him that the authorities continue to ask about his whereabouts and that for this reason he faces arrest should he return to China.  The Tribunal finds as follows. 

23. However, I am not persuaded that the fourth Tribunal overlooked that the applicant claimed that the persecution he had suffered in 2003, and feared in the future, included concerns arising from the close involvement of Chinese government agencies in the acquisition of farming land, including by collusive support for the oppressive action of land developers. 

24. It is correct that the Tribunal did not include any specific discussion of this element of the applicant’s claims.  However, it does not appear to me that the applicant had given any particular emphasis to it when presenting his claims to the Tribunal, particularly at his final hearing.  The gist of the claim was clearly identified and understood by the Tribunal.  This was that the applicant was claiming, in effect, that the developers and government were at one in unfairly confiscating land and suppressing protestors.  In the applicant’s claims, therefore, the Chinese government were themselves the persecutors in relation to the land confiscation and the suppression of protestors.  I consider that the Tribunal understood, and did not challenge this view of the claimed persecutory actions of the government officials.  This is shown by its recognition in its short summary of the applicant’s claims that it was “the government” whose agents had directly engaged in all the activities constituting the history of persecution presented by the applicant.  Its earlier fuller recitation of the applicant’s evidence and claims did not, in my opinion, fail to recognise this, nor the fact that the applicant had presented his history as showing sequentially related actions of persecution. 

25. I am therefore not persuaded that the present Tribunal incorrectly appreciated any aspect or integer of the refugee claims, which can be characterised, in terms of NABE (supra), as having been clearly articulated or as “clearly arise from the materials before it”. 

26. Analysing its subsequent reasoning in relation to the applicant’s claims, it is clear, in my opinion, that the present Tribunal member did not fall into the error found by Jacobson J in the second Tribunal’s reasoning.  As I have explained above, the error found by Jacobson J arose from that Tribunal’s acceptance of at least two key components of the applicant’s claims, being that he had personally suffered from unfair land confiscation in which developers colluded with agents of the government, and that he had personally suffered persecution by police when protesting about it.  The error found by his Honour arose inextricably from the fact that those findings had been made by the second Tribunal favourable to the applicant, and from his Honour’s conclusion that the Tribunal failed to appreciate that the two elements were related in the applicant’s claims so as to require their assessment “cumulatively” or “in their totality” when assessing his future risk of persecution. 

27. Reeves J appears from [27] of his judgment to have been of the opinion that the third Tribunal’s decision had proceeded upon reasoning which was relevantly indistinguishable from the reasoning of the second Tribunal in which Jacobson J found error.  His Honour said at [27] that “the second Tribunal also rejected all, or most, of the [applicant’s] claims on credibility grounds”, and this was an important reason why he gave relief to the applicant in relation to the third Tribunal’s decision.  It is unnecessary and inappropriate for me to examine whether his opinion in this respect about the second Tribunal’s reasoning was correct.  I am, however, firmly of the opinion that the present Tribunal’s reasoning clearly rejected all of the essential components of the applicant’s claims, starting with his claim to have been a farmer who had suffered land disposition.  Its reasoning is, therefore, clearly distinguishable from the previous reasoning in which Jacobson and Reeves JJ detected jurisdictional error. 

1. In my opinion, the findings of the present Tribunal manifestly addressed all of the applicant’s claims to have encountered persecution in the past, in a manner which disposed of all of them separately and in their totality.  It made findings that the applicant was not a farmer who had suffered any unfair land acquisition, had not been involved in protests, and had encountered no persecution of any nature.  Having found against the applicant on all his key claims, it was not necessary for the Tribunal to address subordinate elements of his claims nor the interrelation of subordinate elements, such as the claimed interrelationship between land developers and government agencies.  Even if I were persuaded the Tribunal’s expressed reasons did not encompass findings addressing these elements, they were “subsumed” in its rejection of the essential foundations of all the applicant’s refugee claims (see Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 at [47], Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323, and WALT v Minister for Immigration & Multicultural & Indigenous Affairs [2007] FCAFC 2 at [41]).

2. Nor was the Tribunal under any obligation to assess the applicant’s claimed history or any component of it, including the interrelationship of land developers and government agencies, upon a hypothesis that its findings might have been wrong in finding that the applicant had not been involved in any activities which gave rise to past persecution and might give rise to future persecution (see Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 575‑576, Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at 544‑545, Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 239‑241, Applicants A233 of 2003 v Refugee Review Tribunal [2004] FCAFC 296 at [11]‑[14], SZCOS v Minister for Immigration & Citizenship [2008] FCA 570 at [42]‑[53]).

3. In my opinion, the Tribunal’s reasons clearly show that it has exercised its jurisdiction according to law, by making findings of fact which fully answered the refugee claims before it, and then publishing a statement of reasons which sets out its decision, and its reasons, and its findings on material questions of fact, and refers to the evidence upon which those findings of fact were made (see s.430(1)).

4. I accept that the Tribunal did not include in its statement of reasons, an express discussion of how its adverse findings as to the applicant’s history compared with those made by previous Tribunal members, and did not explain how it had avoided the error upon which Jacobson and Reeves JJ had quashed the previous two decisions.  However, as I have explained above, in my opinion it was under no legal obligation to include such a discussion.  In the absence of any such obligation, and because I consider that adequacy of the Tribunal’s factual reasoning is manifest, I would not conclude that the absence of such a discussion shows that the Tribunal did not bear in mind the contents of their judgments. 

5. In short, the reason why the Tribunal must have thought that it had not fallen into the same error found in previous decisions, is that it totally rejected the entire credibility of the history upon which the applicant claimed to fear future persecution.  In my opinion, it was under no obligation to provide further or different reasons.  I note that it is not contended that it was not open to the fourth Tribunal to reason in that manner, nor that the Tribunal did not exercise its jurisdiction with an unbiased mind and in a bona fide manner. 

6. For the above reasons, I do not accept the ground of jurisdictional error raised in the amended application as presented by counsel for the applicant, and I must dismiss the application. 

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  19 March 2010