SZNTK v Minister for Immigration

[2010] FMCA 970

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNTK v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 970

MIGRATION – Review of RRT decision – applicant a citizen of China whose farm had been compulsorily acquired – where first Tribunal failed to consider corroborative evidence – whether second Tribunal failed to consider an integer of applicant’s claim.

Applicant: SZNTK

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 823 of 2010

Judgment of: Raphael FM

Hearing date: 2 December 2010

Date of Last Submission: 2 December 2010

Delivered at: Sydney

Delivered on: 2 December 2010

REPRESENTATION

For the Applicant: In person

Counsel for the Respondents: Mr M Cleary

Solicitors for the Respondents: Clayton Utz

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent’s costs assessed in the sum of $4,800.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 823 of 2010

SZNTK

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of China who arrived in Australia on 21 November 2008 and applied to the Department of Immigration & Citizenship for a protection (Class XA) visa on 2 January 2009.  On 25 March 2009 a delegate to the Minister refused to grant a protection visa and the applicant sought review of that decision from the Refugee Review Tribunal.  On 19 June 2009 the Tribunal affirmed the delegate’s decision but the applicant sought review of the decision in the Federal Magistrate’s Court and on 27 April 2010 the court made consent orders setting aside the decision and remitted the matter to the Tribunal to be determined according to law.  It appears that the reason for the Minister conceding the grant of the constitutional writs was that the Tribunal had fallen into jurisdictional error by placing no weight on documents provided by the applicant in circumstances where it cannot be said that his credibility had been so weakened as to be beyond redemption by corroborative evidence.  On 21 June 2010 the applicant attended before the second Tribunal to give evidence and present arguments.  On 28 July 2010 the Tribunal determined to affirm the original decision not to grant him a protection visa and it handed that decision down on 29 July. 

2. The basis of the applicant’s claim, that he was a person to whom Australia owed protection obligations, was that he had been an eel farmer in his home town in partnership with others.  He told that the eel farm had been compulsorily acquired for land development and that the local authority had offered he and his partners a mere 40,000 yuan by way of compensation.  This was considerably less than the amount he believed he was entitled to and was based on an acreage calculation rather than on a calculation of the value of his business which, if the applicant’s story is to be believed, was substantial.  The applicant told that he and his partners decided to complain about the way they had been treated.  He made representations to various government departments and was given, what he described in his application, as “a run-around”, going from one department to another and finally to the land company which had acquired the property.  He received no satisfaction.  He even went to the People’s Court but they told him to go home and collect evidence.  He does not appear to have done this.  He said that he gave a written application to the court but the court refused to accept it.

3. The Tribunal was told that the applicant organised a protest within his village made up of his own partners and employees and other land owners who had suffered a similar fate to himself.  He said there were more than 100 of them.  He said they marched from the village to the local city.  They carried banners, saying, “Common people want basic human rights and proper compensation.”  When they arrived in the city they were seen by the police and taken to the police station where they were tortured and interrogated.  The next day he and one of his partners were taken by car to a detention centre and held in a room about 10 feet square with 10 other persons.  He said he was kicked and punched and subjected to electric shocks.  Eventually bribes were paid and he and his partner were released.  He said the police monitored him and visited his home once or twice a week.  He became really upset because the land that had been acquired by the property company was lying unused and yet he was unable to find suitable land to recommence his eel business.  He and his partner decided that they would publish some pamphlets complaining and distribute them in the city.  The police became aware of the pamphlets, came to his home and arrested him along with 20 other people.  He said he was beaten with fists, kicked, struck with batons and remained in detention for 30 days after which his wife paid a bribe of 30,000 yuan and obtained his release. The applicant was advised to leave the country so he went to stay with a friend in Shenzhen who obtained for him, apparently without charge, a false passport and identity and arranged for his flight to Sydney. 

4. The Tribunal questioned the applicant about his claims and whilst it was reluctantly prepared to accept that he had been an eel farmer, that he had had his land confiscated, that the compensation paid to him was inadequate and that he had been given the run-around when he complained to the local authority it did not find his story relating to the protests and the arrest or the distribution of pamphlets and the subsequent arrest to be credible:

   “The applicant was not an impressive witness.  In the course of the hearing, he at one point denied saying something which he had said only moments before, namely, that the People’s Court had told him to go home and gather relevant evidence.  On other occasions, he contradicted earlier evidence he had given, eg, as to the time of day at which the protest group gathered at the city, and as to whether the authorities knew about the intended protest.  He also gave vague or non responsive answers to some of the Tribunal’s questions.”[70] [CB 150]

5. The Tribunal also found it difficult to accept the applicant’s story about the organisation of the protest involving 100 people.  Reference to this is found at [71] [CB 151].  There is no need to repeat it in order to make the comment that another Tribunal may not have found the story quite as implausible as this one did.  But that is not the test which the court is to apply.  Perhaps, more persuasive, is the Tribunal’s reason for not accepting the applicant’s evidence about his capacity to pay the various bribes and fines he referred to as well as to fund his travel to Australia all of which came to a large sum of money at a time when he had not been working for 12 months and had only been given a paltry sum in compensation for his eel farm [72] [CB 151].

6. At [73] [CB 151] the Tribunal goes through the documents which the first Tribunal had not taken into consideration.  For the reasons given in that paragraph it found that it was unable to accept them as corroborative evidence of anything the applicant had said.  It had pointed out to the applicant the independent country information concerning false documents being readily obtainable in China and in the applicant’s home province in particular.  The Tribunal thus did not fall into the error that the first Tribunal had fallen into.  The Tribunal expressed the view that it was satisfied that the applicant had fabricated his claims in order to bolster his protection visa application.  As the Tribunal did not accept that the applicant had been arrested or detained or otherwise persecuted, for reason of his political opinion or for any other convention reason, he did not have a well founded fear of persecution, should he return to China.

7. On 22 October 2010 an amended application was filed in this court.  It is understood from the applicant and to some extent, corroborated by those who appear for the Minister, that this document was drafted by the legal representative who assisted the applicant in accordance with the Minister’s scheme.  It is disappointing that this legal representative did not appear on the applicant’s behalf.

8. The grounds of the amended application are as follows:

   “The Tribunal’s decision was affected by jurisdictional error in that the Tribunal failed to consider an integer of the applicant’s claims, that is that the applicant’s activities in seeking adequate compensation for the acquisition of his eel farm from various government departments (which the Tribunal accepted at para. 68), resulted in the imputation of an anti-government political opinion against the applicant in respect of which, the applicant has a well-founded fear of persecution from the authorities.”

9. I say that it is regrettable that the author did not appear because at [66] [CB 150], the Tribunal states:

   “He claims fear of persecution for reasons of his political opinion as a person who has agitated for adequate compensation following the compulsory acquisition of his eel farm and as a person who has levelled corruption charges against officials in China.”

10. Although the words used by the Tribunal are not exactly the same as those used by the representative they are as close as can be and thus I am unable to understand what the complaint might be.  The Tribunal commencing at [67] [CB 150] and concluding at [77] [CB 152] explains exactly why it does not consider that the applicant’s political opinion resulted in him having a well founded fear of persecution.  It was because the Tribunal do not believe that the applicant had been persecuted.  I believe that the court is entitled to infer that the Tribunal did not view being given the “run around” constituted persecution nor, without more evidence of hardship, did the lack of compensation.  As the Tribunal did not believe that the applicant had been arrested there was no persecution to which he could fear a return.

11. Having considered the Tribunal’s decision record as a whole I am satisfied that it did not fall into jurisdictional error in the way suggested in the amended application or at all.  The application is dismissed.  I order that the Applicant pay the First Respondent’s costs which I assess in the sum of $4,800.00.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Raphael FM

Date:  15 December 2010