SZKQQ v Minister for Immigration
[2007] FMCA 1666
•23 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKQQ v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1666 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision. Visa – protection visa – refusal – conclusions drawn that the applicant’s evidence are not “information” for the purpose of s.424A. |
| Migration Act 1958, ss.91X, 424A |
| SZBYR v Minister for Immigration & Citizenship (2007) HCA 26 |
| Applicant: | SZKQQ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1566 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 6 September 2007 |
| Date of Last Submission: | 6 September 2007 |
| Delivered at: | Sydney |
| Delivered on: | 23 October 2007 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1566 of 2007
| SZKQQ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an amended application dated 27 July 2007, the applicant seeks review of the decision of the Refugee Review Tribunal (“Tribunal”) which was signed on 10 April 2007 and which affirmed an earlier decision of the delegate of the Minister for Immigration and Multicultural Affairs (“Minister”) dated 5 February 2007 refusing the applicant’s application for a protection visa.
Section 91X Migration Act 1958 (Cth) (“Act”) provides that the Court must not publish the applicant’s name.
Background facts
In a statutory declaration attached to his protection visa application, the applicant describes himself as follows:
2. On 10 May 1967, I was born in Fujian Province, PRC. Both of my parents are currently in China; and I have 3 sisters and 1 brother.
3. From September 1974 to July 1979, I studied at Puli Village Primary School in my hometown; and then, I studied at Yidu Middle School from September 1979 to July 1981.
4. From 1981 to 1988, I mainly worked as a construction labourer at construction sites, and during that period, I not only learned various skills as a construction labourer but also accumulated profound experience. (Court Book (“CB”) page 25)
The applicant claims to fear persecution in China because of his anti-government activities.
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 7 of the Tribunal’s decision (CB 70 - 73). In a statutory declaration attached to his primary application, the applicant made the following claims:
a)around March 2003, the application decided to invest in a large piece of land for planting loquat trees;
b)in 2004 and 2005 the applicant’s business was very successful;
c)unexpectedly, around October 2005, a large piece of land in the applicant’s hometown, including his loquat tree field, was sold to a Taiwanese businessman to establish a chemical factory;
d)from then on, the applicant and many of the other locals expressed their objection to the government’s decision to sell the land;
e)on 6 February 2006 the applicant’s first protest was organised and about 20 – 30 people from the applicant’s hometown protested against the local government of Yidu. However, local officials advised the protesters to go to Fuqing City of Fujian Province;
f)one week later, on 13 February 2006, the applicant organised about 50 – 60 local people to go to Fuqing to protest against the sale of the land but the officials of Fuqing government refused to see the protestors and ordered police to drive them away with sticks;
g)on 6 March 2007 the applicant organised nearly 100 – 200 people to protest in front of the Fuqing government. However, on their way to Fuqing City, the protestors were stopped by policemen who had received news of the protest in advance and the protestors were driven away by police;
h)the applicant was among around 10 people who were arrested;
i)from 6 March to 30 March 2006 the applicant was detained by the Public Security Bureau (“PSB”) and subjected to inhumane persecution;
j)from 1 April 2006 the applicant was sent to a construction site and forced to work under surveillance;
k)on 30 August 2006 the applicant was allowed to return home when the project he was working on came to an end;
l)however, the PSB continued to question and threaten the applicant;
m)the applicant continued to encourage friends to send petitions to the central government in Beijing and planned to organise a large sit-in protest against corrupt PRC authorities;
n)
when the applicant’s plans came to the attention of the PRC authorities, he became a target of the PSB once more. With the help of family and friends, the applicant escaped China on
24 October 2006;
o)the applicant believes that local authorities in China are still looking for him because he was regarded as a leader who actively organised anti-government activities; and
p)the police had visited his home numerous times and the applicant’s friends and families have also been subjected to investigation by the PSB.
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)the Tribunal found the applicant’s evidence about being a loquat farmer to be implausible, noting that:
i)the applicant was not able to inform the Tribunal what area he cultivated, even though it seemed to be a significant area;
ii)the Tribunal expected the applicant to know more about the commercialisation of the fruit and the reasons for choosing one method of propagating the plant over another;
iii)the applicant’s knowledge of the fruit and the method of grafting was limited and easily acquired in the province which is the home of the loquat;
iv)the applicant’s ignorance of the issue persuaded the Tribunal that the applicant was not a loquat farmer at any time;
b)the Tribunal did not believe that the applicant played an active role in protests against the government and the acquisition of land by private individuals, noting that despite claiming to take a leading part in the protests, the applicant was unable to give oral evidence about what the factory was to produce;
c)the Tribunal did not accept the applicant’s claim that he did not know how his passport was renewed while he was in detention, noting that even if he did not know at the time how it was done, he would certainly have been told when he returned home;
d)the Tribunal found the applicant’s written and oral evidence to be inconsistent but was satisfied that the applicant’s oral evidence was what the applicant wanted it to consider; and
e)nevertheless, the Tribunal found that the applicant’s written claims were no more plausible than his oral ones, noting that in the applicant’s written evidence he did not indicate what the factory was to produce, how he managed to renew his passport while in detention and how he managed to leave the country while under the constant scrutiny of the PSB.
In essence the Tribunal found:
In the circumstances, I do not accept that [the applicant] was detained or that he suffered in any way while in detention. I do not believe that his land was taken for a Taiwanese chemical factory or that he led protests against the acquisition of the land. I do not believe that he had any problems with the PSB or that there is a real chance of his having problems for any of the reasons he adduces should he return to China in the foreseeable future. (CB 74).
Proceedings in this Court
The grounds of the application are pleaded as follows:
1. The Tribunal failed to comply with its obligations under s.424A(1) of the Act.
2. The Tribunal misstated or misunderstood my claims or my evidences or the information that I have given to the Tribunal.
In his oral submissions at the hearing in this Court the applicant raised breaches of s.424A additional to those particularised in the amended application and further asserted that the Tribunal’s credibility finding was wrong.
Dealing with each of these grounds in turn:
Breach of s.424A
The first relevant particular of this asserted ground of review is expressed in the following terms:
Firstly, according to the Tribunal’s decision, the Tribunal has considered the information that “… trees (loquats) produced from seedlings did no bear fruit for many years more…” as a reason, or part of reason, for making its finding that I did not know “…more about the commercialisation of the fruit and about the reasons for choosing one method over another for propagating the plant…”.
Although the Tribunal’s discussion of the evidence given by the applicant at its hearing (CB 72-73) records a discussion between it and the applicant concerning the grafting of plants, the growth of plants from seedlings and the fact that loquats produced from seedlings do not bear fruit until many years after grafted plants grow fruit, this was not, itself, information upon which the Tribunal relied when reaching its decision. The information which the discussion in question elicited was the applicant’s ignorance of the fact that trees grown from seedlings take much longer to produce fruit than do grafted plants. This is seen by the way the Tribunal expressed its relevant findings and reasons, namely:
I would have expected him to have known more … about the reasons for choosing one method over another for propagating the plant. While he did show some knowledge of the fruit and the method of grafting, that was knowledge easily acquired in the province which is the home of the loquat. What he did not know persuades me that he was not himself a loquat farmer at any time. (CB 73)
When the actual terms of the Tribunal’s decision are studied they can be seen to be based on the Tribunal’s conclusion that the applicant was ignorant of important information relating to the fruit trees he alleges he cultivated. Consequently, not only were the fruit-bearing characteristics of the trees not the information relied upon by the Tribunal but the relevant information which actually was relied upon was a conclusion drawn by the Tribunal, namely the applicant’s ignorance of the characteristics of the fruit trees in question, which is not considered to be “information” for the purposes of s.424A: SZBYR v Minister for Immigration & Citizenship (2007) HCA 26 per Gleeson CJ, Gummow, Callinan, Heydon, Crennan JJ at 18.
The next particular of this asserted ground of review is set out in the following terms:
Secondly, the Tribunal has considered the information that “There are several inconsistencies between his written and oral evidence” as the reason or part of reason for affirming the decision that is under the review. The Tribunal gave only one example – the information regarding a chemical factory. The Tribunal was confused whether it was built or not.
Factually, this assertion is incorrect. Relevantly, the Tribunal said:
There are several inconsistencies between his written and oral evidence in the circumstances… I do not give that fact of the discrepancies any weight at all. I am satisfied that the account given to me at the hearing was what the applicant wanted me to consider. (CB 74)
That is to say, although the Tribunal noted that there were inconsistencies between the two versions advanced by the applicant, it did not base its decision on the fact of those inconsistencies. It relied on the information which the applicant gave to it at the Tribunal hearing.
The final particular in this asserted ground of review is pleaded in the following terms:
Finally, the Tribunal has, in fact, considered the information that if a person had been detained then it would be impossible to have his passport renewed as a reason or part of reason for affirming the decision that is under the review. It is definitely not the information that I have given to the Tribunal; and it is also not the information under s.424A(3)(a) or (c). So, the Tribunal must be obligated to comply with s.424A(1) of the Act and to provide the information to me.
Again, the facts do not support the assertion. In its recounting of the evidence given at its hearing the Tribunal records that the applicant said that he did not know how his passport had been renewed while he was in detention and speculated that his father must have bribed someone. In relation to this evidence, the Tribunal said this:
I do not accept his explanation for the renewal of his passport which [sic] in detention. He may not have known at the time how it was done, but, if his account were true, he would certainly have been told when he returned home, on release. (CB 73)
The Tribunal’s decision makes it clear that the ease with which a person might obtain renewal of a passport in China was not an issue which was considered by the Tribunal at all. Rather, it did not accept what the applicant said to it concerning the renewal of his particular passport. These are quite different matters. Consequently this asserted ground of review is not made out.
At the hearing in this Court the applicant submitted that the Tribunal had not given him any opportunity to give evidence about the way loquats grew and the different ways of planting them. In essence, this submission was no different from the one found in particular 1.1 of the amended application which has been considered above at [11] – [13].
The applicant also submitted in his oral argument that the Tribunal had not pointed out to him inconsistencies between his oral and written statements. However, for the reasons already given, the inconsistencies between the applicant’s various versions of events were:
a)not information as that term is understood by s.424A: SZBYR’s case; or
b)not relied upon by the Tribunal as one of the reasons for affirming the delegate’s decision; or
c)in any event were part of the Tribunal’s reasoning processes and thus not “information” for the purposes of s.424A.
The Tribunal misstated or misunderstood the applicant’s claims or evidence
The first particular of this ground is pleaded as follows:
As I have mentioned above, I have NEVER ever informed the Tribunal that the chemical factory has already been built; and I have NEVER ever information [sic] the Tribunal that the factory has already polluted the soil and water.
It would appear that the applicant is correct in his assertion that he never told the Tribunal that the factory in question had been constructed. So much appears from the Tribunal’s decision where it says:
At hearing, I had great difficulty getting him to answer my questions. A simple question requiring a short, simple answer would provoke a long dissertation not always to the point. At first, for example, it seemed that he was telling me that the factory was already polluting the soil and water such that loquat trees could no longer be cultivated. I had to ask him 4 or 5 times when the factory had been built before I learned that it was in fact not yet built. (CB 74)
Consequently, although it appears that the applicant’s evidence at the Tribunal hearing was not clear or straightforward, nevertheless the Tribunal was able to distil the applicant’s story from the evidence which he gave and neither misstated nor misunderstood the applicant’s claims or the evidence he gave.
The next particular of this asserted ground of review is pleaded in the following terms:
The Tribunal has NEVER asked me, at any time, what area I cultivated (loquats); and the Tribunal has NEVER discussed with me, at any time, about “…choosing one method over another for propagating the plant…”
In relation to the first element of this particular which relates to the area of land cultivated by the applicant the relevant evidence is recounted by the Tribunal as follows:
The land the applicant used for the cultivation of loquats included land allocated years before to his father, which his father had divided amongst his children as he grew older. The applicant stated that he then acquired the use of land around his father’s land. (CB 73)
In relation to the applicant’s evidence concerning the area he cultivated the Tribunal’s conclusion was:
The applicant was not able to tell me what area he cultivated but what he did say implied that it was a significant area. (CB 73)
The inference which must be drawn from the Tribunal’s comments is that it did seek to clarify this issue with the applicant but given the way he gave evidence, it was not possible to elicit the information in a precise fashion. Reference should also be made to the passage from p.8 of the Tribunal’s decision (CB 74) which is quoted above at [22]. For this reason it cannot be said that the Tribunal misunderstood the applicant’s evidence on this point, particularly as he has not put before the Court a transcript of the proceedings before the Tribunal which might have been used to demonstrate that the Tribunal’s rehearsal of the evidence before it was inaccurate or incomplete. In the absence of any evidence other than what appears in the Tribunal’s decision, there is no basis to conclude that what the Tribunal has recorded is inaccurate or incomplete.
Moreover, the Tribunal’s statement that “the applicant was not able to tell me what area he cultivated” did not form the basis of any part of the Tribunal’s conclusion. The particular of this asserted ground of review implies that the applicant’s inability to quantify the area which he cultivated was, in some way, a matter relevant to the Tribunal’s conclusion. However, it was not. Moreover, it is significant that the applicant has not sought to contest the Tribunal’s inference that the area cultivated “was a significant area”.
Given that he has not led evidence to support the assertion contained in the particular and does not seek to impugn the conclusion reached by the Tribunal in relation to the area cultivated by the applicant, this element of this particular cannot be said to demonstrate jurisdictional error on the part of the Tribunal.
The other element of this particular is that the Tribunal never discussed with the applicant the choice of one method of loquat propagation over another. Again, this assertion cannot be made out. In the absence of a transcript or other evidence to contradict what appears in the Tribunal’s decision record, there is no basis to conclude that what the Tribunal says in its decision record is inaccurate. The Tribunal records that is discussed the evidence given by the applicant in relation to the cultivation of loquats in the following terms:
We discussed at some length the growing and commercialisation of loquats. The applicant demonstrated some knowledge of the growing of the plants, but less than I would have expected of an expert. He explained the process of grafting the plants, which produces the fastest fruit-bearing tree, but did not know that trees produced from seedlings did not bear fruit for many years more. He said that they did not use that technique because of the cost of the seedlings or seeds. He demonstrated little knowledge of the commercialisation of the fruit beyond the local market level. (CB 73)
It is therefore clear that the issue was discussed between the Tribunal and the applicant and, as a result, this element of this particular does not demonstrate jurisdictional error on the part of the Tribunal.
The final particular of this asserted ground of review is pleaded as follows:
The Tribunal misstated or misunderstood my claims or my evidence or the information that I have given to the Tribunal.
The applicant has not sought to identify what other alleged misstatements or misunderstandings affected the Tribunal’s decision. In the absence of any additional information of this nature, I can only conclude that this particular is in the nature of a catch-all assertion and has no identity independent of the other two particulars of this asserted ground of review.
Credibility finding
At the hearing in this Court the applicant submitted that the Tribunal’s adverse finding as to his credibility was wrong because it depended on the question of how loquats are grown and the Tribunal had never discussed with the applicant how he cultivated the soil nor how many methods there were to plant loquats.
There is more than one answer to this submission. The first is that I have found that the Tribunal did discuss the cultivation of loquats with the applicant. Secondly, there are other aspects of the applicant’s case before the Tribunal, such as his claim to have taken a leading part in the protests and the method by which his passport was renewed, which led the Tribunal to the conclusion that he was not to be believed. Consequently, even were there to be relevant error identified in relation to the Tribunal’s conclusions on the subject of the applicant’s loquat farming, the credibility finding reached by the Tribunal was open to it based on other evidence before it.
Consequently jurisdictional error has not been demonstrated in relation to this asserted ground of review.
Conclusion
As jurisdictional error on the part of the Tribunal has not been demonstrated the application will be dismissed.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 23 October 2007
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