SZMLJ v Minister for Immigration - [2008] FMCA 1530

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMLJ v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1530

MIGRATION – Review of decision of RRT – where grounds of application do not indicate jurisdictional error.

Migration Act 1958 (Cth)

Applicant:

SZMLJ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1640 of 2008

Judgment of:

Raphael FM

Hearing date:

30 October 2008

Date of Last Submission:

30 October 2008

Delivered at:

Sydney

Delivered on:

30 October 2008

REPRESENTATION

For the Applicant:

In person

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

Application dismissed.
Applicant to pay the First Respondent's costs assessed in the sum of $3,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1640 of 2008

SZMLJ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of China. He arrived in Australia on 13 July 2007 and applied to the Department of Immigration & Citizenship for a protection (Class XA) visa on 27 August 2007. After being interviewed by the Department of Immigration a delegate of the Minister refused to grant him a protection visa on 6 December 2007. On 21 December 2007 the applicant applied for review of that decision from the Refugee Review Tribunal. He attended a hearing before the Tribunal. On 20 May 2008 the Tribunal determined to affirm the decision under review and handed that decision down on 29 May.
The grounds upon which the applicant claimed that he was a person to whom Australia owed protection obligations arose out of his being a member of the She ethnic group and a member of a village cooperative owning land near Fuqing City in Fujian Province. He claimed that for some years there had been co-option of the village's land for government and other use. He claimed that the village committee was in league with developers and the government to sell the village's land at an under-value and not to pass onto the villagers the value of the land sold. The applicant gave some considerable detail of the land which he claimed to have been wrongfully disposed of.
After January 2005 the local residents, including the applicant and his brothers, organised themselves to bring their complaints to the notice of various government agencies. He says that this resulted in his brother being detained. He said that the village group tried to obtain assistance from local lawyers but they were reluctant to help in any complaint against the government. In January 2007 the applicant and his brothers, together with other members of the village group, decided to take matters into their own hands. In February the group went to Fuqing City, to the People's Court, to try and lodge a complaint but it was not accepted so on 6 February 2007 they organised a protest of villagers in front of the People's Court in Fuqing. The protest was suppressed by the police from the PSB. He was arrested and denounced. He was the subject of a month's administrative detention. He was released as a result of a bribe being paid but given restrictive conditions and considered to be a troublemaker. He needed to leave the country and this was organised by his friends.
The applicant submitted to the Tribunal a lengthy document, being what he claimed to be a copy of the letter of complaint that had been written to the officials in Fuqing and a number of other documents which were in Mandarin but which were not translated.
At the hearing before the Tribunal the story given by the applicant was similar to that set out above but contained a number of matters which the Tribunal considered to be inconsistencies. In particular, these related to dates and to the amount of time that he had been detained for. The Tribunal also questioned the applicant about the time it had taken him to apply for his protection visa. The Tribunal raised a number of matters with the applicant which it believed might be the reason, or part of the reason, for affirming the decision under review and explained to him that he could comment or respond to these matters and that, if he wanted more time to do that, the Tribunal could consider whether or not to adjourn the hearing. In the end the Tribunal did agree to adjourn the review for a short period to allow the applicant to respond and this was done by the applicant in a statutory declaration found at [CB 95].
In its findings and reasons, which commence at [CB 120], the Tribunal sets out the applicant's claims and, whilst accepting that local government officials in China have expropriated farmland for development purposes with limited consultation and compensation, that villagers protesting over land expropriation have encountered violent clashes with the police and local leaders have been arrested and detained, it could not be satisfied that this applicant was one of those people. The Tribunal took the view that the applicant could not be considered a witness of truth because of the significant inconsistencies in his evidence which were either not explained or not explained credibly.
The most significant inconsistencies and lack of detail relate to the evidence the applicant has given about protest activities. In his statement he claimed that in January 2005 local residents, including the applicant and his brother, organised small appeal groups to visit many government agencies and that they were subject to questioning and interrogation by the PSB, with the applicant being questioned or interrogated over 10 times. The applicant claimed that from May to July 2005 his brother and some other local residents organised some public protests and that they were detained for 15 days, with two of the people being sentenced to three years' imprisonment. However, at hearing the applicant indicated that he and other protestors protested in either January or May 2005 but had difficulty giving detailed information as to why he was suddenly involved in protesting about land acquisition, which, according to his evidence, had occurred years before.
In regard to the 2007 claims the applicant said that, in March, he and others went to court to lodge a complaint and were told they were not eligible and that, as a result, the village leader made trouble for him and harassed him:
“He did not indicate that he was detained and it was not until the Tribunal raised the inconsistency that the applicant then said he was detained for 15 days, with him subsequently claiming he was detained from 6 to 15 March 2007 and not for a month from 5 February 2007 as claimed in the statement.”
The Tribunal also declined to accept the applicant's explanation as to why he took some seven weeks to make his application for a protection visa:
“The Tribunal accepts that it may take a couple of weeks to find out about seeking protection but as this was the applicant's stated reason for coming to Australia, the Tribunal is of the view that the delay is not consistent with the applicant's claimed reasons for coming to Australia and makes the Tribunal doubt that he has experienced harm in China as claimed, particularly as his daughter has been studying in Australia since 2006.”. [CB 123]
On 26 June 2008 the applicant applied for review of the Tribunal's decision from this court. His grounds of application are lengthy but they essentially go to a disagreement with the Tribunal's assessment of the inconsistencies in his evidence. It attempts to explain the Tribunal's criticisms of him and argues that the manner in which the Tribunal reached its conclusions was unfair. All of these matters are, in effect, an invitation to the court to conduct a merits review of the Tribunal's decision and that is not permitted. There is no suggestion of a jurisdictional error as that term is understood within the migration jurisdiction. He does suggest that his application had not been considered carefully which might indicate that the provisions of the Migration Act 1958 (the “Act”) relating to the manner in which the Tribunal should exercise its jurisdiction have not been complied with, but a perusal of the Tribunal decision itself would suggest that, to the contrary, the Tribunal did give full consideration to all the matters raised by the applicant.
The applicant also suggests that the Tribunal ignored a document entitled "Letter of Complaint and Accusation", but that cannot be the case because this document was reproduced in full in the Tribunal's decision and is referred to at [CB 117] where the Tribunal said:
“It may also lead the Tribunal to doubt the documents submitted to the Department including the Letter of Complaint and Accusation because if the Tribunal did not accept the applicant was involved in the protests it would not accept he lodged the letter of complaint.”
I am of the view that the comments made by the Tribunal which led it to its conclusions were comments available to it from the evidence and do not constitute jurisdictional errors.
Before me today the applicant repeated some of the matters that he had raised in his application. He told me that it would be difficult for him to remember all the dates because he had submitted a number of documents to the department and the Tribunal. He told me that he was very new to the country and he did not know how to apply for a protection visa and that was the reason for the delay. He told me that he did not think that the Tribunal had considered his evidence in a detailed way and that the decision, made on that basis, was not fair. He appeared to be complaining about the fact that the Tribunal had not considered the documents that he had submitted, but, of course, those documents were, with the exception of the complaint, all in the Mandarin language and not translated. The applicant reminded me that he did not speak English and, therefore, it was difficult for him to explain the things that had happened back in China. Whilst it is understandable that the applicant has raised these matters they do not, to my mind, add anything to his application. As I have been unable to identify any jurisdictional error on the part of the Tribunal this application will be dismissed. I order the applicant to pay the first respondent’s costs assessed in the sum of $3,000.00.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: