SZNTH v Minister for Immigration - [2009] FMCA 1166

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNTH v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 1166

MIGRATION – Review of decision by Refugee Review Tribunal – no jurisdictional error discerned – application dismissed.

Migration Act 1958 (Cth), s.477(2)

WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No2) [2004] FCAFC 263
Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323; 180 ALR 1; 75 ALJR 1105
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389; (2003) 77 ALJR 1088
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592; (2006) 81 ALJR 515
Peiris v Minister for Immigration & Multicultural Affairs (1999) 58 ALD 413
Buultjens v Minister for Immigration & Multicultural Affairs [2001] FCA 1058
NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10

Applicant:

SZNTH

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1699 of 2009

Judgment of:

Nicholls FM

Hearing date:

24 November 2009

Date of Last Submission:

24 November 2009

Delivered at:

Sydney

Delivered on:

24 November 2009

REPRESENTATION

The Applicant:

In Person

Counsel for the Respondents:

Mr B O’Brien

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

The application made on 16 July 2009, and amended on 22 September 2009, is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5,600.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1699 of 2009

SZNTH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

This is an application made on 16 July 2009, and amended on 22 September 2009, made under the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Refugee Review Tribunal (“Tribunal”) made on 5 June 2009, which affirmed the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.

Background

The applicant claimed to be a citizen of the People’s Republic of China (“China”), who arrived in Australia on 30 October 2008. He applied for a protection visa on 24 November 2008. This application is reproduced in the Court Book (“CB”) at CB 1 to CB 30 with an annexed statement by the applicant.
The applicant claimed that, in August 2002, his family’s land was taken over by what he described as “village cadres”, and that this was done without adequate compensation. When his father complained to the relevant authorities, he and other villagers who had complained were beaten. During what was described as the “Olympic year of 2008”, the applicant claimed that his father had heard that this was a propitious time to appeal. He led other villagers to complain publicly. The applicant claimed that they were taken directly to the police station, where they were beaten and tortured. When his father was ultimately returned to the village, his condition was such that his mother and sister surrounded and fought with guards who were described as “hatchet men”.
The applicant claimed subsequently to have joined this affray, given his anger at his father’s condition. He claimed to have injured one of these “hatchet men”, and he subsequently escaped. The applicant claimed that, since that time, the authorities have harassed his family in looking for him. He was able to leave China with the help of friends.

The delegate

The applicant did not appear at the interview to which he had been invited before the delegate.
The delegate was unable to be satisfied, in the applicant’s absence, that the factual basis of his account had actually occurred. I note in particular what the delegate set out at CB 55.7:
“I am satisfied that reasonable steps have been taken to give the applicant an opportunity to substantiate his claims. However, he has failed to take up that opportunity. If interviewed, the applicant would have been required to satisfy me that he was persecuted in China because he protested against the government’s acquisition of his family land without adequate compensation. I therefore cannot be satisfied that he was targeted by the authorities or that he has attacked and injured a police officer or a government official while protesting against the authorities who confiscated his family land. If Interviewed, the applicant would have been required to satisfy me that he would have been arrested and persecuted if remained in China as claimed.”

The Tribunal

The applicant applied for review by the Tribunal on 20 March 2009 (CB 58 to CB 61). He attended a hearing before the Tribunal on
20 May 2009 (CB 71). He provided a written statement to the Tribunal, although it was not in English. The Tribunal’s account of what occurred at the hearing is contained in its decision record (see [30] to [49]).
The Tribunal’s analysis is at [50] to [57] (CB 85 to CB 86). The Tribunal expressed some doubt about the plausibility of the applicant’s claims, but nonetheless proceeded on the basis of considering, if true, whether they established a Convention nexus. The Tribunal understood that the applicant claimed to fear arrest and prosecution, including harsh punishment, if he were to return to China, because he had assaulted a police officer. It found on the evidence before it that he did not claim to fear harm for any other reason.
The Tribunal also considered whether the applicant may be imputed by the authorities with a political opinion in the circumstances of his case, including on the basis of seeking compensation for resumption of the family’s land. The Tribunal found that there was no evidence of this. The Tribunal also found that the enforcement of a law of general application in the applicant’s circumstances would not of itself provide a Convention nexus. I should also just note that the Tribunal (see [55]), considered whether the applicant’s claims, as presented, would lead to his being regarded as a member of a particular social group.
In all, the Tribunal found that, given that the circumstances did not provide a Convention nexus, the applicant did not have a well-founded fear of Convention related persecution, and it therefore affirmed the delegate’s decision which was the subject of the review.

Hearing before the Court

By way of amended application, settled by counsel to whom the applicant had been referred under the Court’s RRT Legal Advice Scheme, the applicant puts forward the following two grounds, and I will read the application onto the record:
“1. The Refugee Review Tribunal (RRT) failed to attain, or failed to exercise jurisdiction, by reason that it failed to consider the Applicant’s claim that he feared persecution from the Chinese authorities by reason of imputed political opinion, such opinion relating to unfair compensation for land resumption by those authorities.
Particulars
a) The Applicant had supported his parents’ protests to the Chinese authorities relating to unfair compensation for the resumption of their land. The Applicant’s family had been threatened by Government departments. Following an intense conflict with some government officials, including a physical altercation between the Applicant and some ‘PSB officers’, the Applicant had become wanted by the Government and had fled his village to avoid arrest. CB 62, 83 (para 37)
b) Following the Applicant’s fleeing his village, his parent’s home had been ‘smashed’, his parents had been assaulted and, together with his siblings, detained by the police for 3 days. Further, his siblings had been expelled from their factories without reason. CB 29, 81 (para 25), 83 (para 39)
c) Earlier, in 2002, the Applicant’s mother had been detained by the authorities because of the resumption dispute. The Applicant had demanded to see his mother at this time and he had been assaulted by the authorities. CB 83, para 36.
d) In November 2008 the Applicant’s father and sister travelled to ‘the province’ and Beijing to petition the Government in relation to the resumption and ‘had been transported back’. CB 82 (para 27)
2. Further or in the alternative, the RRT failed to attain, or failed to exercise jurisdiction, by reason that it failed to consider the Applicant’s claim that he feared persecution from the Chinese authorities by reason of his membership of a particular social group, being a group representing persons protesting to the Chinese government against unfair compensation for land resumption.
Particulars:
a) The Applicant refers to the particulars in 1. above
b) The RRT failed to consider country information indicating Chinese Government acquisition of land without adequate compensation including their suppression of persons protesting against such actions by ‘arresting, detaining and torturing those involved’. CB 55.

Hearing before the Court

The applicant appeared in person before the Court. He was assisted by an interpreter in the Mandarin language. Mr B O’Brien appeared for the first respondent.
The applicant sought that the Minister’s representative make submissions first, and then sought, and was granted, a short adjournment before making his submissions. On resumption, the applicant stated that he relied on the grounds in the amended application, and further, submitted that the Tribunal failed to consider that in China, it was illegal to protest against the Government.
It should be noted that the applicant, in making his original application to this Court, had applied for an extension of the time within which to make his application to the Court pursuant to s.477(2) of the Migration Act. Ultimately, the Minister did not oppose this application. The Court therefore proceeded on the basis that that application was successful.

Consideration

Ground One

In ground one of the amended application, the applicant asserts jurisdictional error, in that the Tribunal failed to consider his claim that he feared persecution from the Chinese authorities by reason of imputed political opinion. This is particularised as being that the applicant had supported his parents’ protests relating to the unfair resumption of their land, and that this led to the physical altercation between the applicant and the police, which led to his being wanted by the authorities. Further, that following his fleeing his village, his family home had been smashed, his parents assaulted, and, with his siblings, had been detained. His siblings had been dismissed without reason from their employment.
The applicant also asserts that, in 2002, his mother had been detained because of the land resumption dispute, and he had been assaulted when he asked to see her. Presumably, this is said to be part of the circumstances that would lead to his being imputed with a political opinion, and with which the Tribunal failed to deal. Similarly, his father and sister had been transported back from Beijing when they had travelled there in November 2008 to petition the government.
It is the case that the Tribunal must consider all claims made by an applicant, and each integer or aspect of those claims (WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184, and NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No2) [2004] FCAFC 263 (“NABE”)).
The obligation in this regard is not to consider a claim never made, but to consider each claim and aspect of a claim expressly made, or which can be said to clearly arise from the circumstances presented (Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 (“Htun”) and, again, NABE).
Further, a failure to consider each integer of a claim is a failure to consider a mandatory consideration relevant under the Act (Htun, NABE, Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323; 180 ALR 1; 75 ALJR 1105 and Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24).
In the circumstances, I can only assume that the applicant’s legal panel advisor had in mind, and that the applicant relies on, such authorities as Htun, NABE and for example, Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389; (2003) 77 ALJR 1088 (“Dranichnikov”), for the propositions that the Tribunal is first obliged to deal with, and make findings on, a substantial, clearly articulated claim, or one that can be said to clearly arise from the circumstances presented. In this light in ground one the applicant asserts that such a claim is based on an imputed political opinion, and second, that the Tribunal needs to determine whether the group or class to which an applicant claims to belong is capable of constituting a social group for the purposes of the Convention.
As was said in Dranichnikov, following that question, which is one of fact, is whether the applicant is a member of that class, and then there followed questions whether the applicant has a fear, whether that fear is well founded, and whether it is for a Convention reason. In the absence of any submissions, I assume that is what the applicant’s advisor had in mind in putting forward the grounds in the amended application.
It does not require even a fair reading of the Tribunal’s decision record to see that the applicant’s ground does not succeed.
The Tribunal recorded the applicant’s factual account as including the following:
1)His parents’ protest in 2002 against the resumption of the family’s land (see [23]).
2)He had been beaten when he tried to visit his mother who had been detained in 2002 (see [36]).
3)Following his departure, his parents had been harassed and injured while the authorities demanded to know his whereabouts (see [25] and [39]). This also included the claim that his siblings had lost their jobs.
4)His father and sister were transported back to their home after going to Beijing to protest (see [27]).
Despite opportunity, the applicant has not put any evidence before the Court, for example a transcript of the Tribunal hearing, to dispute the Tribunal’s account of what occurred on that occasion. This account reveals that the Tribunal explored the applicant’s factual account of what he said had occurred to him in China. The applicant is reported as saying, relevantly (at [39]), he confirmed that his fear of harm in China was of being charged for assaulting a PSB officer and attacking PSB officers. Further, the Tribunal reports (as set out at [45]) that it put to the applicant the following: “if the authorities wanted to arrest him for assaulting a police officer, this appeared to be unrelated to any of the so-called Convention reasons”.
I should just note that, although it was not pleaded in the amended application, it is clear that in the current case, the issue that was dispositive or determinative of the review was whether the applicant’s claims, if true, revealed any Convention nexus.
It is plain, given what I have just reported as having been recorded by the Tribunal, and as submitted by Mr O’Brien, in my view correctly at the hearing, the Tribunal squarely put to the applicant the determinative issue, and thereby complied with its procedural fairness obligations pursuant to s.425 of the Act. In this regard, the Tribunal acted in accord with what was relevantly said by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592; (2006) 81 ALJR 515.
Given what was before it, in my view, it was open for the Tribunal to find that, based on his own evidence, there was nothing to indicate that the local authorities had any motivation, prior to 2008, to harm the applicant. Contrary to the applicant’s assertion now, the Tribunal clearly considered the issue. I note in particular (at [54]):
“[W]hether, because of the circumstances in which he assaulted the police officer, he might be assumed by Chinese authorities to hold a particular political opinion.”
Plainly, the Tribunal found he was not of interest to the authorities before 2008. The reference to the circumstances of the assault clearly includes the family’s protest against the resumption of their land and his support for his father, mother and siblings when his father was brought back to the village in 2008. The Tribunal found that no political opinion would be imputed to the applicant in the circumstances. It found further, and I quote:
“The Tribunal has before it no evidence that the Chinese authorities routinely impute a political opinion to individuals seeking financial compensation for land.” (CB 85 at [55]).
Mr O’Brien submitted that these questions of what has been described as causation – that is, causation of motivations and possible reaction of the authorities – is a matter of fact for the Tribunal to determine. I agree with the respondent’s reliance on authorities set out at paragraph 19 of written submissions, and clearly apply as relevant to the circumstances of the case currently before the court, that a finding as to whether persecution complained of was based upon actual or imputed political opinion was a factual issue for the Tribunal, not for the Court (Peiris v Minister for Immigration & Multicultural Affairs (1999) 58 ALD 413, Buultjens v Minister for Immigration & Multicultural Affairs [2001] FCA 1058).
The applicant’s complaint in ground one, as understood in light of the particulars put forward, is really an attempt to ask this Court to revisit his claims, and to impose its own findings for those of the Tribunal. This Court cannot do this.
I agree with Mr O’Brien that the Tribunal’s relevant findings were reasonably open to it on the evidence before it, and for which it gave reasons, and as such I cannot discern error as it is said to arise by way of ground one of the amended application.

Ground Two

Ground two is a similar complaint. It also relies on the particulars to ground one, but asserts a failure by the Tribunal to consider that the applicant feared persecutory harm in China because of his membership of a particular social group. This is said to be a group of persons protesting to the Chinese government because of unfair land resumption.
This ground also does not succeed for similar reasons that apply to ground one.
On what is before the Court, it is clear that the Tribunal understood the applicant’s claims to fear persecutory harm in China, while arising out of the background his family’s grievances over land resumption in 2002, was that he was wanted for assaulting a police officer in 2008. The Tribunal’s reasoning was that the applicant made no claim that his father was imputed with any political opinion, despite his efforts to obtain compensation for the land resumption, nor was the family imputed with any political opinion for this reason.
I should just note that, in these circumstances, there was therefore no cause for the Tribunal to consider the provisions of s.91S of the Act, and I say this to the extent that the applicant’s ground, perhaps, may imply that the relevant social group was his family, who were part of the agitation against the unfair land resumption.
Specifically, in relation to the wider group explicitly raised in the ground as pleaded, the Tribunal directly found that there was no evidence that the Chinese authorities impute political opinion to individuals seeking compensation for land, or their family members, or that they regarded them as members of a particular social group (see here [55] of the decision record).

Again, in the circumstances, these findings were open to the Tribunal to make.
The applicant’s legal advisor may seek to press these claims on behalf of the applicant, but a plain reading of the Tribunal’s decision record reveals it took into account the applicant’s factual account of what he said had occurred in China. But it found on his own evidence that his claim to fear harm arose out of the incident when he assaulted the police officer in 2008, and it found, again based on the applicant’s evidence, that he did not claim to fear harm for any other reason.
In these circumstances, the Tribunal found that, although it was a serious matter, this did not establish a Convention nexus.
I should just note, in relation to the extent that the Tribunal relied on the applicant’s evidence given at the hearing, that the applicant has not put any evidence before the Court, for example, by way of transcript, to challenge the Tribunal’s account of what he had said had occurred. There is very clear Full Federal Court authority which is plainly binding on this Court, that in these circumstances, it is not open to this Court to draw inferences as to what may otherwise have happened at the hearing (NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241).
On what was before the Tribunal, this reasoning, and the consequent findings were again reasonably open to the Tribunal to make. The two grounds, therefore, as pleaded, do not reveal error on the part of the Tribunal.
I should just note, however, that particular (b) to ground two asserts, in addition, that the Tribunal failed to consider country information that the Chinese authorities acquired land without compensation and suppressed persons who protested against this by arresting, detaining and torturing them. Before the Court at the hearing, the applicant emphasised this by submitting that the Tribunal failed to consider that in China, it is illegal to protest against the government.
I assume that the reference to country information refers to the delegate’s decision record, and the delegate having noted that there was available information to that effect. I am reinforced in that assumption, because, following particular (b), there is a reference to CB 55, which contains part of the delegate’s decision record.
First, I note that the Tribunal made no finding that the applicant’s family’s land was not compulsorily resumed or that his family received adequate compensation. The Tribunal made no such findings. Despite its concerns about the plausibility of some aspects of the applicant’s account, the Tribunal proceeded on the basis that these events had occurred. It proceeded clearly on the basis that the protests by the applicant’s family, and others, the demonstration, and the affray had in fact occurred.
Specifically therefore, with reference to particular (b) of ground two, to the extent that the applicant complains that the Tribunal did not have regard to country information to the effect that the authorities resumed land without adequate compensation, then in the circumstances, there was no real need for the Tribunal to do so – that is, it accepted the applicant’s claims in this regard.
Second, in relation specifically to the second part of that particular, that is, that the authorities suppressed subsequent protests by detention, arrest and torture, it is the case that the choice and weight to be afforded to independent country information is a matter for the Tribunal (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, for example).
Despite what is pleaded by the applicant now, the Tribunal found that in the applicant’s circumstances, there was nothing in his evidence to suggest that the local authorities had any motivation to harm him before 2008. That there may have been general information before the delegate that the authorities acted to suppress demonstrations does not detract from that finding made by the Tribunal.
As to what occurred after the assault in 2008, the Tribunal found that the applicant had not been imputed with any political opinion such as to bring him within the UN Refugees Convention, nor that he came within any particular social group, or would be regarded as coming within any particular social group, such as to bring him within the realm of the Convention.
The Tribunal acknowledged that the applicant may well be treated harshly and prosecuted and punished, but that this was because of his assault on the police officer. It is the case that, in these circumstances, no Convention nexus was established. Unfortunately for the applicant, while he may well be arrested and detained on return, it would be because of what is said to be his assault, and not because of any protest against land acquisition, imputed political opinion or membership of any particular social group. The Tribunal, in one sense quite properly, acknowledged, albeit in an understated way, that this was unfortunate, but the finding that this did not establish a Convention nexus was a finding that was reasonably open to the Tribunal to make on what had been put before it.
In all, therefore, particular (b) of ground two, that there was also country information before the delegate that indicated that the government, through its various local iterations, acted to suppress demonstrations, does not, therefore, in light of the Tribunal’s findings, assist this applicant now.

Conclusion

As I emphasised to the applicant today earlier in the hearing, for him to succeed before the Court, the Court, at least, would need to discern jurisdictional error in the Tribunal’s decision. The applicant’s grounds in the amended application, presented with legal assistance, do not reveal such error. Nor, given what I have already said, can I otherwise discern any such error. For this reason, the application, as amended, should be dismissed.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: D Nestor

Date: 15 January 2010