SZKQU v Minister for Immigration
[2008] FMCA 136
•8 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKQU v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 136 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – Court cannot substitute Tribunal’s findings of fact, including findings on credibility issues, with findings of its own – Tribunal has no obligation to ask an applicant any particular question – it is for an applicant to satisfy the Tribunal that he or she meets the criteria for a protection visa – an allegation that the Tribunal failed to consider evidence “properly” is just an invitation to review the merits of the visa application. |
| Migration Act 1958, ss.424A, 425, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 |
| Applicant: | SZKQU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1577 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 8 February 2008 |
| Date of Last Submission: | 8 February 2008 |
| Delivered at: | Sydney |
| Delivered on: | 8 February 2008 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Ms A. Mitchelmore |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $4,400.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1577 of 2007
| SZKQU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of China where, he claims, he took part in anti-government activities. He alleges that while in China he protested against inadequate compensation for his family’s farmland and that this subsequently led to him being beaten and detained. The applicant arrived in Australia on 10 September 2006.
The applicant claims to fear persecution in China because of his anti-government activities.
After his arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on 11 January 2007. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 10 of the Tribunal’s decision (Court Book (“CB”) pages 64 – 70).
Protection visa application
In the applicant’s protection visa application, he made the following claims:
a)the applicant was born into a farming family;
b)in June 2005 he was informed that corrupt officials from the Wendu Village had sold a large piece of farmland to the Guanda Printing Ink Co Ltd;
c)on 13 June 2005 the applicant’s mother and some other farmers protested in front of this company and were beaten by the company and some local bullies;
d)although present, the Public Security Bureau (“PSB”) did nothing to prevent the violence and the applicant’s mother was seriously injured;
e)from June to October 2005 the applicant and many local farmers went to various government agencies seeking compensation for the lost farmland, including the municipal government in Fuqing, the anti-corruption bureau, the People’s Congress, the People’s Court and the PSB in Fuqing;
f)on 1 November 2005 the applicant and two friends went to the PSB in Fuqing to ask the police to investigate what happened on 13 June 2005. However, as the applicant and his friends were regarded as trouble-makers and suspected of disturbing the social order, they were placed in the Fuqing Detention Centre from 1 November to 15 December 2005. They were interrogated and physically tortured by the police, and other detainees in their cell also mistreated them on instructions from the police. The applicant and his friends were released after their families bribed the PSB but they were warned not to take any action against the local police;
g)in February 2006 the applicant organised protests against the government and sent out hundreds of protest letters and petitions to various government agencies;
h)on 1 June 2006 police went to the applicant’s home denouncing him and his activities. They took him to the police station and accused him of being responsible for the protest letters. He was detained until 21 July 2006 and was subjected to persecution and torture by local criminals;
i)in August 2006 the applicant obtained a CD made by a friend at the 13 June 2005 protest. The CD contained strong evidence of government corruption and the Guanda Company colluding with local bullies to beat the protestors. The applicant made hundreds of copies of the CD and distributed them in Fujian and in Beijing;
j)the applicant came to the attention of the Chinese government but was able to leave the country before the issue of an arrest warrant; and
k)since his departure, the applicant’s family has been questioned by police many times. His mother’s leg was seriously injured by the police and she is now bedridden.
Tribunal hearing
At the Tribunal hearing on 29 March 2007, the applicant made the following additional claims:
a)since arriving in Australia the applicant has not been in contact with his wife as it is too dangerous;
b)the applicant and his family were not compensated at all for their land which was sold to the Guanda Company to build an ink factory. He was unable to articulate how much the compensation ought to be as the value of the land in question was immeasurable;
c)the applicant variously said that:
i)he and other people went to government agencies every day from June to October 2005 seeking compensation for their loss of land and for those who had been beaten at the protest;
ii)they went every day other than Sundays;
iii)he stopped visiting the agencies on 9 September 2006; or, alternatively,
iv)he stopped going when he was arrested the second time in June 2006;
d)the applicant’s family bribed the police the first time he was arrested but not the second time. He did not know why he was released the second time;
e)the CD obtained by the applicant was copied by his friend and not by him; and
f)he variously said that 1,000 copies or 3,000 copies of the CD were made.
The applicant submitted the following documents to the Tribunal at the hearing:
a)a petition letter;
b)two DVDs of the protest on 13 June 2005;
c)a photograph of an old woman with a clamp on her leg and purple spray dated 7 October 2006; and
d)a photograph outside the detention centre, as claimed by the applicant.
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 was not satisfied that the applicant gave a credible account of the specific events and circumstances which led to his departure from China, noting that the applicant’s testimony was vague, internally inconsistent and implausible amounting to fabrication;
b)the Tribunal did not accept that the applicant was involved in protesting and petitioning the authorities for the corrupt sale of land to the Guanda Company, noting the applicant’s inconsistent evidence about where the Guanda Company was located;
c)the Tribunal did not accept that the applicant went to a number of government institutions to protest from June to October 2005 on every day other than Sundays, noting that:
i)it was implausible that the applicant would be so committed to the cause yet be unable to articulate to the Tribunal what compensation figure was sought;
ii)the applicant’s evidence of his visits to the government agencies was inconsistent and vague. The applicant variously stated that he stopped going in September 2006 or June 2006;
iii)the Tribunal found it implausible that the applicant would go to the agencies every day instead of working, especially as it was the applicant’s family who were the farmers and not him;
d)consequently, the Tribunal did not accept that the applicant was detained from November 2005 to December 2005, also noting that the applicant was vague and inconsistent about the dates he was initially detained and the details of the bribe he alleged was paid to secure his release;
e)the Tribunal did not accept that the applicant wrote petitions to government officials from February 2006 as he was unable to provide any details of what was contained in the petition and the applicant himself said that he did not write the letters;
f)given its finding about the petitions, the Tribunal did not accept that the applicant was further detained from 1 June 2006 to 31 July 2006 for writing the petitions, also noting the applicant’s vague and inconsistent evidence on the reason for his release and when his family bribed officials;
g)the Tribunal did not accept that the applicant was involved in distributing the CD, noting that the applicant variously said 1,000 or 3,000 copies were made;
h)the Tribunal gave no weight to:
i)the DVDs submitted by the applicant as the DVDs did not show the applicant taking part in the protest;
ii)the photograph of the detention centre as it did not support his claim that he was detained;
iii)the photograph of the applicant’s mother as it did not demonstrate the applicant’s involvement in any protests and was not evidence that the applicant’s mother took part in the protest of 13 June 2005;
iv)the petition as it was general in nature, written in August 2006 which meant that it was not the petition the applicant claimed to have written in February 2005 and was not specific evidence of his involvement in the protests;
i)consequently, the Tribunal did not accept that the applicant had come to the attention of the Chinese authorities because of his political opinion or activities.
Proceedings in this Court
The grounds of the amended application were pleaded as follows:
1. The Tribunal assessed my credibility incorrectly, because it has based on incorrect information.
2. The Tribunal failed to ask a correct question or the Tribunal failed to make me understand its question.
3. The Tribunal failed to consider my evidences or information properly.
4. The Tribunal failed to comply with its obligations under s.424A(1) of the Act.
5. The Tribunal failed to comply with its obligations under s.425 of the Act.
Dealing with each of these grounds in turn:
Incorrect credibility finding
The particulars of this allegation contained in the amended application relate to part of the Tribunal’s decision which refers to evidence concerning the location of the ink company or its offices.
In submissions today the applicant said that the Tribunal believed that, at one point, he had said that the land had been acquired by the government to be given or sold to the ink company and, at another time, that he had said that the land had been acquired directly by the ink company. I do not read the Tribunal‘s decision to say this but, rather, to say that its decision was based on an allegation that the land had been stolen from farmers and sold to the ink company. In relation to the matter raised in submissions today by the applicant, I do not think it can be made out on the facts.
The applicant also points to what he says was a misunderstanding on the part of the Tribunal about whether the ink factory was actually to be built on the site. However, the Tribunal’s decision did not turn on such an issue; it turned on the applicant’s knowledge of the company’s location in order that he might negotiate with it. Even if the Tribunal had misunderstood the evidence before it, that does not amount to jurisdictional error absent some other matters such as bias or a lack of good faith, which have not been alleged and certainly not proven in this case.
As to the finding generally, credibility is a matter par excellence for the Tribunal as was said by McHugh J in Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407. Moreover, in this case, the credibility finding was not based solely on issues relating to the occupation by the ink company of the land in question or the precise mechanism by which the land came to be possessed by the ink company. As the summary of the Tribunal’s decision set out earlier in these reasons demonstrates, the Tribunal reached its credibility finding by reference to a number of matters. Consequently, even were the applicant to have made out this particular allegation, there was more than sufficient basis for the Tribunal to reach the credibility conclusion which it did reach.
A credibility finding is a finding of fact which is a matter within the Tribunal’s particular jurisdiction. Although the Court can review the Tribunal’s decision and practices with a view to ensuring that they represent a proper application of procedure and a proper application of the law, it cannot substitute its own findings on the facts, including findings on credibility issues, even were it of a different view on such matters. Consequently, the first asserted ground of review is not made out.
Tribunal asked the wrong question
This asserted ground of review mistakes the role of the Tribunal. It is not a matter of the Tribunal asking questions and, particularly, not asking right or wrong questions. The procedure provided by the Act is that the Tribunal will affirm the decision of the delegate unless it is satisfied that an applicant meets the criteria for a protection visa. If it is satisfied that the applicant does meet the criteria for a protection visa it can set aside or vary the delegate’s decision. This imposes a practical task upon an applicant to put material before the Tribunal which will assist it to reach the necessary level of satisfaction. Consequently, there is no obligation on the Tribunal to ask any particular question as the applicant alleges or implies.
To the extent that the applicant alleges that the Tribunal failed to make him understand its questions, there is no evidence before the Court to support this allegation.
The particulars of the allegation contained in the amended application refer to the Tribunal’s finding as to implausibility of the applicant protesting every day but being unable to advise the Tribunal of a figure for the compensation sought. What this suggests is that the applicant seeks a review by this Court of the merits of his application which is not a course available in proceedings for judicial review such as these.
In reality, the allegation that the Tribunal failed to make the applicant understand its question is simply an allegation that the applicant did not give particular information to the Tribunal that he might have wished in retrospect to have given. If he had wished to put certain information before the Tribunal that was a matter for him at the hearing. This asserted ground of review does not demonstrate jurisdictional error on the part of the Tribunal.
Tribunal failed to consider evidence or information properly
As the Minister observes in his written submissions, this is not an allegation that the Tribunal failed to consider some aspect of the applicant’s evidence, but rather that the Tribunal failed to consider such evidence “properly”. In this ground the applicant is again seeking a review of the merits of his application and inviting this Court to reach a conclusion on the merits different to that reached by the Tribunal.
For the reasons already given, that is not available in these proceedings and this asserted ground of review does not demonstrate jurisdictional error on the part of the Tribunal.
Breach of s.424A
The applicant has provided no particulars of information which he says should have been notified to him for comment under this section, but in any event, the particulars to this allegation are, in part, expressed in the following terms:
The Tribunal has considered the information, which my oral evidences given to the Tribunal at the hearing before it are inconsistent with my written materials, as the reason or part of reasons in making its finding about my credibility.
Section 424A cannot be used as a back door route to challenge the Tribunal’s factual conclusions based on information proffered by an applicant. A conclusion drawn from the evidence before the Tribunal is not “information” as that term is understood by s.424A. The credibility finding in this case was based on the evidence which the applicant gave at the hearing. As the Tribunal said, it found:
…that the applicant’s testimony is vague, internally inconsistent and implausible amounting to a fabrication…(CB 73)
Consequently, no jurisdictional error is demonstrated by this asserted ground of review.
Breach of s.425
The particulars of this allegation were as follows:
During the Tribunal’s hearing, the Tribunal denied my rights to give my oral evidences properly; and on many occasions, I was interrupted; or, I was not given sufficient time; and during the Tribunal’s hearing, the Tribunal denied my rights to present my arguments relating to the issues arising in relation to the decision under review.
Today the applicant has also said that he was not given a fair opportunity to respond to the Tribunal’s views of his application. In relation to this latter point, it should be noted that the applicant has not sought to show, nor has he shown, that the Tribunal had prejudged his application or that he needed to rebut any preliminary view which the Tribunal might have held. As already noted in these reasons, it was always a matter that the applicant had to satisfy the Tribunal of his entitlement to a protection visa. The assertion that the applicant had something to respond to in the sense, perhaps, of a Tribunal case which he had to meet, is not only conceptually incorrect but also factually unproven.
As to the conduct of the hearing itself, the applicant has put no evidence before the Court which would support the facts particularised in the application in support of this allegation. Indeed, the evidence in the Court Book tends to contradict the allegation. In this regard, the “RRT hearing record” (CB 49) records that the Tribunal hearing ran for two and a half hours, which is a not insubstantial time given that the applicant was the only witness and his representative was not present.
Moreover, p.10 of the Tribunal’s decision record records that at the conclusion of the Tribunal hearing the Tribunal asked the applicant if there was anything further he wanted to say, to which he responded that “it was all on the CD” (CB 70).
Consequently, the evidence before me does not satisfy me that the applicant’s allegations concerning the breach of s.425 have been made out.
Generally
Finally, I should note that the following words appear at the end of the pleadings:
In summary, I never ever believe that my application has been assessed by the Tribunal, fairly and carefully.
To the extent that this might be a separate ground of review, it does not demonstrate jurisdictional error on the part of the Tribunal. Nor do the applicant’s oral submissions today to the extent that they might have been addressed to this sentence.
The Tribunal identified the issues which it had to address, identified the evidence which was before it which it had to assess, made appropriate findings on those facts, drew conclusions which were open to it on the evidence before it and reached a conclusion which, in my view, is not affected by jurisdictional error.
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-five (35) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 22 February 2008
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