SZKQU v Minister for Immigration and Citizenship

[2008] FCA 1012

FEDERAL COURT OF AUSTRALIA

SZKQU v Minister for Immigration and Citizenship [2008] FCA 1012

Migration Act1958 (Cth)

Re Minister for Immigration and Multicultural Affairs: Ex parte Durairajasingham (2000) 168 ALR 407
Subramaniam v Minister for Immigration and Multicultural Affairs [2002] FCAFC 255
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1
SCAV of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 182

SZKQU v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 272 OF 2008

REEVES J
4 JULY 2008
DARWIN

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 272 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZKQU
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	REEVES J
DATE OF ORDER:	4 JULY 2008
WHERE MADE:	DARWIN

THE COURT ORDERS THAT:

1.  The appeal be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 272 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZKQU
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	REEVES J
DATE:	4 JULY 2008
PLACE:	DARWIN

REASONS FOR JUDGMENT

INTRODUCTION

1. This is an appeal against the judgment of Federal Magistrate Cameron handed down on 8 February 2008, which dismissed an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’).  The Tribunal’s decision was signed on 12 April 2007 and it affirmed a decision of a delegate of the first respondent (the Minister for Immigration and Citizenship) to refuse to grant a protection visa to the appellant.

   BACKGROUND – SUMMARY OF FACTS

2. The appellant is a citizen of the People’s Republic of China (‘China’) who was born on 17 April 1974.  He arrived in Australia on a three month visa on 10 September 2006.  Six weeks later, on 24 October 2006, the appellant made an application for a protection visa (class XA).  A delegate of the first respondent refused that application on 11 January 2007.  On 8 February 2007, the appellant applied to the Tribunal for a review of that decision and a hearing was conducted on 29 March 2007.

3. The appellant claimed to fear Convention-related persecution in China due to his ‘anti-government’ actions following a land dispute.  As described in the appellant’s statutory declaration of 24 October 2006, in 2005 a large piece of land in his village - including his family’s farm plot - was illegitimately sold to a company referred to as the ‘Guanda Company’.  The appellant claimed that on 13 June 2005, his mother and other local farmers organised to protest in front of the company premises and that his mother was injured when the protesters were repelled.  The Public Security Bureau (‘PSB’) were allegedly present but refused to assist.  The appellant claimed that between June and October 2005, he and some of the local farmers petitioned the Chinese government at various levels about this corruption and the need for compensation.  In November 2005, he and two friends went to the PSB in Fujing City to seek to have them investigate the events of 13 June 2005, which led to them being detained by the PSB for six weeks.  He claimed to have been released when his family paid bribes to the PSB.

4. The appellant claimed that he was interrogated and tortured in detention but that upon his release he organised further small-scale protests and petitions, from February to May 2006.  He alleged that the PSB traced some of the protest letters from his village to him and he was therefore detained again from 1 June until 31 July 2006.  In August 2006, he obtained and copied (or had copies made) and then widely distributed a compact disc depicting the events of 13 June 2005.  The appellant stated that a warrant was issued for his arrest, however he was able to leave China before it was executed.

   THE TRIBUNAL’S DECISION

5. In its decision, the Tribunal accepted on the basis of independent country information, that widespread corruption existed in China and that an enormous number of citizens in China had been affected by problems relating to China’s rapid economic growth.  The Tribunal also accepted that these changes had occurred in many rural areas and that associated land acquisitions may have affected the appellant and farmers in his home village.  The Tribunal also accepted that protests had taken place in relation to land acquisitions and other issues and that these protests were often suppressed by the authorities with force.

6. However, the Tribunal was not satisfied that the appellant had given a credible account of the events leading to his departure from China, and found the appellant’s testimony to be ‘vague, internally inconsistent and implausible amounting to a fabrication’. It therefore did not accept that the appellant was involved in protesting against ‘the corrupt sale by government officials of farm land to the Guanda Company’, nor that the appellant was involved in petitioning the government authorities in the second half of 2005, nor that he was detained twice because of these actions in 2005 and 2006, nor that the appellant was involved in writing to the authorities or suspected of producing a DVD resulting in his decision to leave China.  

7. In support of this conclusion the Tribunal cited the appellant’s inconsistent accounts of the location of the office of the Guanda Company, his inability to specify the quantum of the compensation figure sought by the farmers for the corrupt land acquisitions, inconsistencies in the dates he gave for the visits to government agencies and for his detention, his motivation for taking these actions when he worked as a driver and had never farmed on the family’s land, a lack of detail in relation to the representations he claimed to have made to these agencies and in relation to his release from detention, his inability to describe what was in the petitions he submitted to the authorities, contradictions in his accounts about who wrote the petitioning letters and the distribution of CDs and his non-specific evidence about his involvement in protests.

8. Further, the Tribunal gave the DVDs submitted by the applicant ‘no weight as the applicant is not in the DVDs protesting’. It also gave no weight to the two photographs he submitted, noting one was a photograph of a detention centre and the other was a photograph taken in October 2006 of an injury to his mother’s leg which he claimed had occurred at the protest on 13 June 2005. Finally, in relation to the petition letter the applicant submitted to the Tribunal, the Tribunal found that ‘it is general in nature, and not specific evidence of the [appellant’s] involvement in the protests which lead to it [sic] departure and does not give it any weight’.

9. Ultimately, while the Tribunal accepted that ‘government officials may have corruptly sold land to the Guanda Company’, it did not accept that the appellant had been involved in protesting this corrupt sale or had petitioned the authorities nor been detained as a result.  The Tribunal accordingly rejected the appellant’s claims that he had come (or will come) to the attention of Chinese authorities for his political opinion or any other Convention reason. It determined that the appellant did not hold a well-founded fear of persecution for a Convention-related reason and was not likely to be persecuted should he return to China.

   THE FEDERAL MAGISTRATE’S DECISION

10. The grounds for review before the Federal Magistrate, as set out in the Amended Application for review filed 6 August 2007, were as follows:

    ‘1. The Tribunal assessed my credibility incorrectly, because it was 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 s424A(1) of the Act; and

    5.The Tribunal failed to comply with its obligations under s425 of the Act.’

11. The appellant provided some particulars of his grounds for review in the Amended Application.  In relation to ground 1, the information which he alleged the Tribunal had assessed incorrectly was as follows:

    ‘What I said was that Guanda Company, which was an ink company, had occupied the farm land including my family’s one; but I never said Guanda Company intended to build ‘an ink factory’.

    Guanda Company did level the land but without building anything including or (sic) ‘offices or an ink factory’ in (sic) the land.  However, I did know the address of the Guanda Company.’

12. In relation to ground 2 and the allegation that the Tribunal had failed to ask correct questions or failed to make the appellant understand its questions, the appellant provided the following particulars:

    ‘As a matter of fact, the figure for compensation was depended on different circumstance of each farmer including how much farmland had been sold or how many people had been hurt therefore, it would be impossible for me to provide exact figure for compensation.’

13. In relation to ground 3, the appellant set out parts of the contents of his statutory declaration dated 24 October 2006 (see above) and concluded by stating: ‘so, the key issue in my case is not only simply in relation to selling our farmland but mostly in relation to protection or respect of our basic human rights as well. The Tribunal has, obviously, failed to consider the key issue in assessing my application.’ The appellant also purported to provide particulars of ground 4, however those particulars merely amounted to a summary of the obligations expressed in s 424A(1) of the Migration Act1958 (Cth) (‘the Act’) and did not identify what information he claimed the Tribunal should have put to him in accordance with that section of the Act.

14. In relation to ground 5, the particulars provided by the appellant were as follows:

    ‘During the Tribunal’s hearing, the Tribunal denied my rights to give my oral evidence 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.’

15. In relation to the first ground, the Federal Magistrate did not agree that the Tribunal had made the factual error alleged by the appellant.  Nonetheless, his Honour found that even if the Tribunal had misunderstood the appellant’s evidence - by confusing the fact the Guanda Company was an ink company with the Guanda Company’s plan to build an ink factory on the land, or by misunderstanding the appellant’s evidence about the address of the Guanda Company – any such misunderstanding did not amount to jurisdictional error in the absence of bias or a lack of good faith, and neither had been alleged or proven.  

16. As well, his Honour noted that the Tribunal’s finding was based upon its assessment of the appellant’s credibility and observed that ‘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’(‘Durairajasingham’). Further, his Honour noted that the Tribunal had reached its credibility findings by reference to a number of matters in the evidence, in addition to the ‘ink company’ issue and the other issues raised by the appellant, so that ‘there was a more than sufficient basis for the Tribunal to reach the credibility conclusion which it did reach’.

17. In relation to the second ground, his Honour stated that he could find no evidence that the Tribunal had failed to follow the procedure set out in the Act and that ‘[i]n reality, the allegation that the Tribunal failed to make the [appellant] understand its question is simply an allegation that the [appellant] did not give particular information to the Tribunal that he might have wished in retrospect to have given.’ The third ground was characterised by his Honour as an allegation that the Tribunal did not consider the evidence ‘properly’. In relation to both these grounds his Honour concluded that the appellant was seeking merits review and had not demonstrated any jurisdictional error.

18. In relation to the fourth ground, his Honour found that ‘[a] conclusion drawn from the evidence before the Tribunal is not ‘information’ as that term is understood by s424A’ and furthermore, the conclusion on the appellant’s credibility was based upon the unsatisfactory testimony of the appellant himself.

19. His Honour dismissed the final ground noting that the appellant had not put any evidence before the Court to support the allegation. His Honour’s review of the materials before the Tribunal indicated that the hearing before the Tribunal had lasted for two and a half hours and his Honour noted that at the conclusion of the hearing the appellant had been asked if there was anything else he wished to say and had only responded that ‘it was all on the CD’.  

20. In conclusion, as no jurisdictional error had been demonstrated, Federal Magistrate Cameron dismissed the appellant’s application.

    GROUNDS OF PRESENT APPEAL

21. While the Notice of Appeal filed in this Court on 28 February 2008 begins by making a general allegation of error on the part of the Federal Magistrate, and while it is formatted differently and does not contain paragraphs 1(a), 3(a) and (b) and 4(c) of the Amended Application before the Federal Magistrate, in substance the grounds raised and the particulars given are identical to those raised in that Amended Application.

22. Specifically, the first ground (contained in paragraph one of the Notice of Appeal) which raises an allegation that the Tribunal’s findings on credibility were based on incorrect information, is the same as the first ground before the Federal Magistrate. The particulars raising the confusion in relation to the ‘ink company’ issue, and whether or not the appellant knew the address of the Guanda Company, are the same as the particulars given in paragraph 1(b) of the Amended Application before the Federal Magistrate. 

23. The second ground (contained in paragraphs two to five inclusive of the Notice of Appeal) alleges errors on the part of Tribunal in failing to consider the appellant’s claims and evidence properly and is the same as ground 2 and part of ground 3 before the Federal Magistrate. The particulars given are the same as those contained in paragraphs 2(a) and (b); and 3(c) and 3(d) of the particulars of the Amended Application before the Federal Magistrate. 

24. The third ground (contained in paragraph six of the Notice of Appeal) alleges a breach of s424A(1) of the Act, is the same as ground 4 before the Federal Magistrate and has the same particulars (such as they are) as those contained in paragraphs 4(a) to (c) of the Amended Application before the Federal Magistrate.

25. Finally, the fourth ground (contained in paragraph seven of the Notice of Appeal) which raises an alleged breach of s425 of the Act is the same as ground 5, including the particulars thereof, in the Amended Application before the Federal Magistrate.

    THE CONTENTIONS

26. At the hearing of the appeal before me the appellant appeared in person and was unrepresented. He was assisted by an interpreter. Mr Reilly appeared for the first respondent.

27. The appellant submitted that the Tribunal had distorted his claims and evidence. To give an example, his evidence was that the land was sold by corrupt officials to an ‘ink company’ and not to establish an ‘ink factory’ as the Tribunal recorded. Further, he said that when he was asked whether there was any office for the Guanda Company he said ‘no’ and this was taken by the Tribunal to mean he did not know the address of the company. He also said it was unreasonable for the Tribunal to expect him to know the exact amount of compensation that was being sought because that was a complex matter that depended on many different factors. He submitted that the Tribunal had completely misconstrued his claims and then based its adverse conclusions on his credibility upon that misconstruction. He submitted that the Federal Magistrate was in error in failing to detect these serious errors in the Tribunal’s decision. He said that he could not afford to obtain a transcript of the hearing before the Tribunal but that the Federal Magistrate should have listened to the tapes of that hearing. Finally, he submitted that the Tribunal had not given him a fair and genuine opportunity to make his claims, in breach of s 425 of the Act.

28. Mr Reilly submitted that it was the appellant’s responsibility to obtain and tender a transcript of the hearing before the Tribunal and, despite directions having been made by Federal Magistrate Cameron requiring him to file and serve any material he intended to reply upon, he had not done so.  In any event, he submitted, even if a transcript were obtained it would not serve any purpose in itself because the appellant appeared to be raising an issue about the interpretation of his evidence by the Tribunal.  Mr Reilly submitted that the learned Federal Magistrate was correct in concluding that the findings challenged by the appellant are either findings of fact or credibility findings well within the jurisdiction of the Tribunal.  

29. Mr Reilly submitted that the latter had been described as a function of the Tribunal ‘par excellence’ by Justice McHugh in Durairajasingham.  He submitted that its decision records the fact that the Tribunal put all of its concerns about the appellant’s credibility to him, and gave him an opportunity to respond.  He submitted that while different minds might reach different conclusions on those matters, that does not mean the Tribunal committed jurisdictional error in reaching its conclusions.  He submitted that this is not a case where the Tribunal has so completely misconstrued the claims and evidence of the appellant such that it has failed to afford him a fair and genuine opportunity to put his claims and evidence.  

    CONSIDERATION

30. In my view, none of the grounds for appeal raises any jurisdictional error on the part of the Tribunal. The learned Federal Magistrate committed no error in rejecting each of the grounds of appeal that are common to both sets of proceedings.

31. The learned Federal Magistrate held that the alleged misunderstanding in relation to the ‘ink company’ or ‘ink factory’ had not been made out by the appellant or had been misconceived by him: see [14] to [15] of his Honour’s reasons.  Moreover, his Honour held that even if the Tribunal had misunderstood the evidence before it, that did not amount to jurisdictional error.  His Honour is correct, with respect.  The issue involving the ‘ink company’ or ‘ink factory’ was but one of a number of inconsistencies and areas of vagueness in the appellant’s evidence that the Tribunal relied upon in reaching its adverse conclusions about the appellant’s credibility.  I respectfully agree with the observations of Justice Drummond in the Full Court’s decision of Subramaniam v Minister for Immigration and Multicultural Affairs [2002] FCAFC 255 with reference to the High Court’s decision of Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1. As set out at [12] of his Honour’s reasons: ‘If the material ignored is but a piece of information in the nature of circumstantial evidence that tends to make the person’s account of having suffered persecution more believable that is not likely to involve jurisdictional error’. The Full Court’s decision in SCAV of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 182 is to similar effect; see [22] in particular.

1. Similar observations can be made about the second ground of appeal which alleges a number of errors on the Tribunal’s part, in failing to consider the appellant’s claims and evidence ‘properly’.  Each of these alleged errors relates to the Tribunal’s fact-finding role and do not involve any jurisdictional error. 

2. The third ground of appeal alleges a breach of s424A(1) of the Act. As with the Amended Application for judicial review before the Federal Magistrate, this ground of appeal has not been particularised. In particular, the information that the appellant alleges the Tribunal should have brought to his attention has not been identified. Without that information being identified, it is impossible to know whether the information constituted information of the kind that the Tribunal was obliged to bring to the appellant’s attention. There is none obvious to me from reading the Tribunal’s decision. This ground must therefore be rejected.

3. Finally, the fourth ground of appeal alleges a breach of s425 of the Act. The particulars of this ground allege the appellant was not treated fairly before the Tribunal in that he was interrupted and not given sufficient time to present his evidence. The learned Federal Magistrate noted that the appellant had not put any evidence before him to support this ground. As Mr Reilly submitted before me, the appellant had previously been directed to file and serve a copy of the transcript of the Tribunal hearing if he intended to rely upon it and had failed to do so. Having failed to produce any evidence in the form of a transcript, or the like, the appellant can hardly complain about the way in which the learned Federal Magistrate dealt with this ground. In any event, the learned Federal Magistrate noted that the Tribunal hearing had run for two and a half hours and that the Tribunal’s decision had noted that the appellant had been invited to put forward any matter he wished towards the end of the hearing. In my view, the learned Federal Magistrate was, with respect, correct to reject this ground as failing to establish any breach of s425 of the Act.

4. For these reasons, the appellant has failed to establish that the learned Federal Magistrate committed any error in failing to identify any jurisdictional error on the part of the Tribunal in relation to his application for review.

5. I therefore order that this appeal be dismissed.

6. I will hear the parties on the question of costs.

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.

Associate:
Dated:        4 July 2008

Counsel for the Appellant:	In person
Counsel for the First Respondent:	Mr Reilly
Solicitor for the First Respondent:	Sparke Helmore

Date of Hearing:	13 May 2008
Date of Judgment:	4 July 2008