SZMMR v Minister for Immigration - [2009] FMCA 284

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMMR v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 284

MIGRATION – Application to review decision of Refugee Review Tribunal – whether failure to comply with s.424A or s.425 of the Migration Act.

Migration Act 1958 (Cth), ss.422B, 424A, 424AA, 425

VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178

Applicant:

SZMMR

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1747 of 2008

Judgment of:

Barnes FM

Hearing date:

18 March 2009

Delivered at:

Sydney

Delivered on:

18 March 2009

REPRESENTATION

Applicant:

In person

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

That the application is dismissed.
That the applicant pay the costs of the first respondent fixed in the sum of $4,200.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1747 of 2008

SZMMR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Refugee Review Tribunal signed on 29 May 2008 and handed down on 10 June 2008 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa. The applicant is a citizen of the People's Republic of China who arrived in Australia in September 2007. In October 2007 he applied for a protection visa.
In a statutory declaration accompanying his protection visa application he made claims which related to his activities running a “pig farm” in China. He claimed that a new paper pulp factory was established in the area and that a large amount of waste water threatened water in the river and polluted the ground water. He and other residents “required relevant authorities to investigate” and “take necessary action to stop [this]”, but nothing was done efficiently. He claimed that the operators of the pulp mill had connections with the government and relatives working in government agencies. He also claimed that from May 2007 what he described as an “unknown pestilence” (which he attributed to pollution from the local pulp mill) suddenly spread in the hometown area. Poultry and livestock and 90 per cent of his pigs died and then the government killed the rest of the poultry and many livestock and pigs, including his pigs.
The applicant claimed that he organised a protest in July 2007 which was attended by 50 people at the beginning and then 500 at the end and that he distributed handbills seeking justice. He claimed that he was detained because he was regarded as a leader of the protest and that he was mistreated, humiliated and tortured and interrogated by the police many times. He claimed he was released after his family bribed corrupt police as well as the family of the owners of the pulp mill. Since that time he had been regarded as a troublemaker with strong anti-government political ideologies. He had been subject to “troubles” and warnings since his release and was required to report to the police.
The applicant attended an interview conducted by a delegate of the first respondent. On the basis of the applicant's vague and unsubstantiated responses at that interview the delegate was not satisfied that he was credible or plausible. The delegate also found that if the applicant had been of concern to the authorities he would not have been able to depart China through normal channels.
The application was refused and the applicant sought review by the Tribunal. He attended a Tribunal hearing on 20 March 2008. He was also invited to and attended a further hearing on 14 May 2008. On each occasion he provided photographs said to have been taken at his farm.
In its reasons for decision the Tribunal outlined the applicant's claims in his statutory declaration and the issues it raised with him at the hearing on 20 March 2008 (including issues about inconsistencies in his evidence).
The Tribunal also recorded that at the hearing held on 14 May 2008 it orally gave the applicant particulars of information pursuant to s.424AA of the Migration Act 1958 (Cth). It stated that it had informed him of the requisite matters under that section and that he did not seek additional time, but responded or commented at the hearing. The Tribunal recorded the matters that it put to the applicant, the applicant's responses and discussion of those responses. The only evidence of what occurred in the Tribunal hearings before the Court is the Tribunal reasons for decision.
In its findings and reasons the Tribunal accepted that the applicant had been the owner of a pig farm. It did not accept the remainder of the claims that formed the basis for the applicant’s protection visa application. It found, for reasons which it detailed, that the applicant was not a witness of truth having regard to outlined significant inconsistencies in his evidence, the lack of plausible explanations for those inconsistencies and his inability at the hearings to detail evidence which he had described in greater detail in his statutory declaration.
The Tribunal considered that the applicant’s claims were, in essence, to fear persecution for reason of his political opinion and/or membership of a particular social group. It detailed significant inconsistencies. For example, it found an inconsistency between the applicant’s statutory declaration and his oral evidence at the first Tribunal hearing as to what government inspectors did at his property, in particular as to whether they killed the pigs on his property. When Tribunal raised this inconsistency with the applicant he indicated that the question (of killing the pigs) had not been asked and that was why he did not answer. The Tribunal stated that it had given the applicant an opportunity to give evidence about anything else that happened when the inspectors came to his farm and that even after it asked whether the inspectors had seen dead pigs, the applicant did not say anything about them killing the pigs.
The Tribunal also recorded that it raised this matter with the applicant at the second hearing pursuant to s.424AA. It addressed his explanation that he was afraid his evidence at the hearing would be leaked. The Tribunal did not accept this explanation having regard to the fact that the applicant had made this claim in the statutory declaration when he lodged his application for a protection visa and the significance of such an event. The Tribunal found it not credible that the applicant would not mention this event at the hearing and instead give evidence that the inspectors just looked around and took water samples. The Tribunal found that the applicant did not complain to the authorities about polluted water entering his pig farm and did not complain that his pigs had fallen ill and died because of pollution or an unknown pestilence. It found that government departments or authorities did not send inspectors out to inspect his property following his complaints.
The Tribunal also addressed inconsistencies in the applicant’s claims about demands made at the protest he claimed to have organised and in the leaflets he claimed to have been involved in distributing. The Tribunal found that there were significant inconsistencies in the applicant’s evidence about the content of demands and what was in protest leaflets. It did not accept the applicant’s explanation or that his claimed lack of education was a plausible explanation for his inability at the hearing to remember more of the protest points set out in the protection visa statement.
The Tribunal also had regard to inconsistencies in the claims about the number of people who attended the protest on 10 July 2008. It did not accept the applicant’s explanations for reasons which it gave and on that basis found that the applicant did not protest as claimed and did not prepare or distribute leaflets in which he made a number of demands on the government.
The Tribunal also set out at length its concern about inconsistencies in the applicant's claims about whether he was questioned by police and, if so, on how many occasions whilst in detention. It found a significant inconsistency for which there was not a credible explanation and rejected his claims that he was arrested or detained or subject to interrogation or persecution.
The Tribunal went on to find that, although it accepted that the applicant was familiar with the breeding of pigs and had worked at a veterinary clinic and had a pig farm, it did not accept that local residents required the authorities to investigate a factory and take action to stop waste water entering the river because of the lack of credibility of the applicant and the large number of inconsistencies in his evidence. Nor did it accept that the applicant feared returning to China as claimed. While it accepted that the pig farm had been abandoned, it found this was because the applicant and his wife were in Australia, where their daughter was studying.
The Tribunal reiterated that it found that the applicant's evidence was not credible and that he was not a witness of truth. It also rejected his claims that he departed China illegally, referring to his evidence in that respect and indicating that it did not accept that he was of adverse interest to the authorities or that a bribe had to be paid for his release from detention or that he departed illegally.
Based on its finding that the applicant was not a witness of truth, the Tribunal did not accept other aspects of his claims. It detailed concerns about aspects of such other claims. The Tribunal did not accept the applicant's claim that he was regarded as a trouble-maker with strong anti-government political ideologies or warned not to take further action against the government or any of the claims associated with detention and what he said had occurred thereafter.
Having considered the applicant's claims in relation to political opinion or imputed political opinion, the Tribunal also considered whether he had a well-founded fear of being persecuted for reason of membership of a particular social group. However, as it did not accept that the applicant was a member of a group of farmers whose farms and livelihood were adversely affected by pollution from a nearby factory, it found that he did not have a well founded fear of being persecuted for his membership of a particular social group.
The Tribunal rejected the applicant’s claim that he had in the past been persecuted or discriminated against because of political opinion or membership of a particular social group. It reiterated that it did not accept the underlying aspects of his claims and on that basis did not accept that there was a real chance that the applicant would suffer persecution if he returned to China. It did not accept that the applicant feared persecution in his country because of his political opinion or imputed political opinion or membership of a particular social group or for any other Convention reason and concluded that there was not a real chance that he would face serious harm for such reason either now or in the reasonably foreseeable future if he returned to China. The Tribunal affirmed the decision not to grant the applicant a protection visa.
The applicant sought review by application filed in this Court on 8 July 2008. Orders were made by consent on 8 August 2008 for the applicant to file and serve any affidavit containing additional evidence, including any transcript of the Tribunal hearing, by 10 October 2008. No such further evidence, and in particular no transcript of the Tribunal hearing, was filed by the applicant.
The first ground in the application is that the Tribunal “raised unclear questions” at the hearing and failed to provide the applicant with a “genuine and meaningful opportunity” to give his oral evidence in support of his claims or to “present his argument” against the issues arising from his review application. It appears that this is intended to raise a claim of a failure by the Tribunal to comply with s.425 of the Migration Act.
Ground one is accompanied by particulars in which the applicant takes issue with the Tribunal's findings that there were a number of significant inconsistencies in his evidence. He repeated these concerns in oral submissions. The particulars refer to particular Tribunal findings of inconsistency in relation to whether the government inspector had killed the animals on the applicant’s farm; the demands that he made at a protest and in leaflets he claimed he had distributed; the number of people who attended the protest; and the number of times the applicant was questioned while detained.
In each case the applicant referred to a Tribunal finding and then endeavoured to provide an explanation which attributed the perceived inconsistency to the Tribunal's "unclear questions” and failure to provide him with a genuine and meaningful hearing.
The applicant contended that the Tribunal’s unclear question at the first hearing made him “wrongly believe that its questions were targeted at whether or not the government inspector had conducted proper and thorough inspection at my pig farm while an unknown pestilence was suddenly spread in my hometown area. So, I stated that when they came to inspect my property they walked around the property and sometimes took water samples.” He claimed that when the inconsistency about whether or not the government inspectors killed his pigs was raised by the Tribunal, the Tribunal question was “still unclear” and made him believe that the Tribunal wanted to know whether or not he had seen government inspectors kill pigs on his farm. He claimed that he stated they took two trucks away. He explained that it was impossible for them to kill the pigs on the pig farm and that the pigs were killed in a slaughter house.
Similarly, in relation to the inconsistency between his written and oral evidence about demands the applicant claimed he made at a protest and in leaflets, he claimed that the Tribunal did not ensure that he understood that what it expected him to do was to recite what he had written in his statutory declaration. He also claimed in relation to the number of people at the protest that the Tribunal had failed to consider his oral evidence properly and carefully.
In relation to the issue of how many times he was questioned by police, the applicant claimed that he had understood at the first hearing what the Tribunal wanted to know was how he could be released from the detention centre and hence he said the police only spoke to him on one occasion to tell him he would be released.
The applicant conceded that on the surface there were a number of inconsistencies between his written and oral evidence, but contended that these so-called inconsistencies were actually due to the unclear questions put at the Tribunal's hearings. He submitted that it could be said that he had been misled by the Tribunal and that this had made him lose a genuine and meaningful opportunity to give his oral evidence in support of his claims or to present his arguments in relation to issues arising on his review application.
There is no transcript of either Tribunal hearing before the Court. Hence the only evidence as to what occurred in the Tribunal hearings is the Tribunal reasons for decision. The evidence before the Court does not support the contention that the applicant was denied the opportunity required under s.425 of the Act or, more generally, that he was misled in the way that he contends.
On the contrary, the Tribunal's reasons for decision indicate not only that the applicant was given an opportunity at the first hearing to address each of these issues and the Tribunal's concerns about apparent inconsistencies and about his explanations, but moreover at the second hearing the Tribunal orally gave to the applicant particulars of information pursuant to s.424AA of the Migration Act, including the inconsistencies in his evidence. It gave him an opportunity to comment. This in effect gave him the opportunity to raise the issues which he now seeks to raise. However, for reasons given, the Tribunal considered but did not accept his explanations.
The fact that the applicant now seeks to provide further explanations or to take issue with the Tribunal findings about inconsistencies, does not establish that it failed to comply with s.425 of the Act or indeed that it fell into jurisdictional error on any other basis.
In oral submissions today the applicant reiterated his concern about the Tribunal findings in relation to inconsistencies in those areas detailed in the first ground of his application. Insofar as he seeks to challenge the factual findings of the Tribunal, findings of fact are a matter for the Tribunal. Indeed, even if the Tribunal did make a wrong finding of fact, that of itself would not establish jurisdictional error. Insofar as the applicant's contentions can be seen as seeking merits review, merits review is not available in this Court. Neither ground one, nor the matters raised by the applicant in oral submissions today establish jurisdictional error on the part of the Tribunal on the evidence before the Court.
The second ground in the application is that the Tribunal failed to consider the applicant's evidence “fairly and properly.” This ground was not addressed in oral submissions, but appears to be related to the first ground of review. The particulars are that it was unfair that the Tribunal rejected the applicant's well-founded fear of persecution mainly based on so-called inconsistencies which were said to have occurred owing to the Tribunal's unclear questions.
Insofar as this ground raises an allegation of unfairness, I note the operation of s.422B of the Act. As set out above, it has not been established that there was any failure by the Tribunal to comply with s.425 of the Act. Insofar as this ground takes issue with the Tribunal reasons for decision, contrary to the applicant's claims, the Tribunal considered the bases on which he claimed to fear persecution. However, as set out above, it found him not to be a credible witness or a witness of truth and rejected the underlying basis for such claims. In so doing it addressed areas of inconsistency in his evidence and provided reasons for its failure to accept the applicant's explanations in that respect. No unfairness is apparent on the material before the Court in the manner contended for by the applicant.
The third ground to the application (which was not addressed in oral submissions) is that the Tribunal failed to comply with s.424A(1) of the Act. It refers to the fact that the Tribunal considered information in relation to the applicant's departure from China on a Chinese passport in his own name and in that context referred to the UK Home Office's 2005 Country Report on China in its reasons for decision.
It was contended that the Tribunal breached s.424A(1) as it failed to provide the applicant with particulars of that information for comment. It is apparent from the Tribunal reasons for decision that at the first hearing, after the applicant claimed he left China on his own passport, the Tribunal raised with him information in relation to the Chinese border security system. The applicant provided an explanation as to how he was able to avoid detection which the Tribunal considered inconsistent with other aspects of his claims.
In its findings and reasons the Tribunal referred to information from the UK Home Office about Chinese border security. However such independent country information is within the exception to the obligation in s.424A(1) by virtue of s.424A(3)(a) of the Act, (see VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178). Ground three is not made out.
As no jurisdictional error has been established the application must be dismissed.
RECORDED : NOT TRANSCRIBED

The applicant has been unsuccessful and the first respondent seeks costs in the sum of $4,200. The applicant asks rhetorically, "How could I have that sort of money now?" However, the applicant's present lack of funds is not, in the circumstances of this case, a reason for departing from the normal principle that the unsuccessful applicant should meet the costs of the first respondent, although it may be a matter to be taken into account by the Minister in determining when and how to seek to recover such costs. I consider that the amount sought is appropriate having regard to this and other similar matters.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 6 April 2009