SZNUW v Minister for Immigration

[2009] FMCA 1152

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNUW v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 1152

MIGRATION – Review of decision of Refugee Review Tribunal – Tribunal properly considered claims and integers of claims – an error as to finding of fact does not go to exercise of jurisdiction – Tribunal not required to refer to every piece of evidence before it – distinction to be drawn between claims and evidence – findings open to Tribunal to make – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.414, 430

Htunv Minister for Immigration & Multicultural & Indigenous Affairs (2001) 194 ALR 244
Abebe v the Commonwealth of Australia (1999) 197 CLR 510
Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54
Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1
Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323
VBAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 965
Randhawa v Minister for Immigration, Local Government & Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR
SZATV v Minister for Immigration & Citizenship [2007] HCA 40; (2007) 233 CLR 18
SZMCD v Minister for Immigration & Citizenship [2009] FCAFC 46

Applicant: SZNUW

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1866 of 2009

Judgment of: Nicholls FM

Hearing date: 12 October 2009

Date of Last Submission: 12 October 2009

Delivered at: Sydney

Delivered on: 25 November 2009

REPRESENTATION

Counsel for the Applicant: Mr J F Gormly

Solicitors for the Applicant: -

Appearing for the Respondents: Mr R Baird

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application dated 5 August 2009, and amended 12 October 2009, is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $5,392.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1866 of 2009

SZNUW

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made on 5 August 2009, and amended on

   
   

   12 October 2009, under the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 7 July 2009, which affirmed the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.

Background

1. The applicant is a citizen of the People’s Republic of China (“China”). He arrived in Australia on 1 February 2009 and applied for a protection visa on 6 February 2009 (Court Book – “CB” – CB 1 to CB 26 and CB 36, including a statement by the applicant in support of his application).

Claims to Protection

1. The applicant’s claims to protection were that he and his family had been forcibly relocated from their home in 1994 along with ten thousand other people without compensation. In January 2008 he applied to build his own home, but this was rejected by the “Construction Bureau of Kaijian Country”. Later, the “Construction Supervising Team” approved the application. The applicant borrowed a lot of money from a local “usury” (moneylender), believing he could pay back the loan by leasing some of the rooms.

2. In July 2008 the applicant received notice from the Construction Bureau that the house was a “squatter building”, and that he would have to pay a fine, and that they would tear the house down. The applicant went to complain but was forced out of the office on the grounds that he had violated public security. As a result the applicant was hospitalised for two weeks.

3. The applicant later went to appeal with a group of people from the neighbourhood in the same situation. Twenty-four people were arrested. The applicant was able to escape, but was unable to return to his home.

4. “People” from the “usury” (“gangsters”) went to the applicant’s home every day asking for the money to be returned. The applicant’s home was demolished by the local government, and the applicant and his family were left homeless.

5. If he were to return the applicant feared that the local government will gaol him, for a violation of public security. He also feared the “gangsters” would catch, and torture him, to force him to return the money. The government would not protect him as the “gangsters” “work for the government”.

The Delegate

1. The delegate found that he was not satisfied that the applicant had been sought by the authorities for violations of public security, or that he was sought by people who had lent him money. As the applicant did not attend the interview which had been offered to him, the delegate was unable to test the factual assertions made by the applicant (CB 43).

2. The delegate found that the applicant did not have a genuine fear of persecutory harm (CB 44) and that there was not a real chance of persecution in the future.

The Tribunal

1. The applicant applied for review by the Tribunal on 5 May 2009 (CB 45 to CB 48). He was invited to, and attended, a hearing before the Tribunal on 2 July 2009 (CB 51). The Tribunal’s account of what occurred at the hearing is set out in its decision record ([27] at CB 91 to [46] at CB 95).

2. The Tribunal understood that the applicant’s protection visa claims related to what had occurred in 2008, and not to the forced relocation along with ten thousand other people in 1994 ([48] at CB 95).

3. The Tribunal accepted, with the benefit of the doubt, that the applicant’s: “house, along with a number of others, was demolished as he claims in July 2008” ([50] at CB 95).

4. The Tribunal noted that it was: “… far from clear that the applicant had the necessary approvals to build his house” (at [51] at CB 96). The Tribunal found that the applicant deliberately obfuscated in order to enhance his claim. It accepted that the applicant’s house had been demolished as it had been built without the necessary approvals and was thus regarded as a “squatter’s building”. However, the Tribunal did not accept that this was: “because of some form of collusion” or a “deliberate trap by the government” (at [51] at CB 96). The Tribunal was not satisfied that the demolition was for reason of the applicant’s: “… political opinion, religion, or for any other Convention related reason” ([51] at 96).

5. The Tribunal was satisfied that the “local county’s” failure to provide compensation for the destruction of the house would be consistent with the claims that the building had not been properly approved by it. Therefore the Tribunal was not satisfied that there was a Convention nexus behind the demolition or the failure to pay compensation ([52] at CB 96).

6. The Tribunal accepted that the money lender would want the applicant to repay the loan. However, the Tribunal was not satisfied that there was a Convention related nexus behind the claim, and that the applicant: “… does not have a well founded fear of serious harm amounting to persecution… on this basis” ([53] at CB 96).

7. Further, the Tribunal did not accept the unsupported claim that the moneylenders were: “… in some sort of unspecified cahoots” with the local authorities, and that there was a well founded fear of persecution for a Convention reason on that basis ([53] at CB 96 to CB 97).

8. The Tribunal accepted that a warrant had been issued in the local area for the applicant’s arrest. However, the Tribunal was satisfied that the reason for the issue of the arrest warrant was due to the applicant’s involvement in a fight with police or other law enforcement authorities, and not because he was: “… exercising his political opinion by being involved in a demonstration against the demolition of his house” ([55] at CB 97). The Tribunal also accepted that the applicant was hospitalised as a result of this fight.

9. The Tribunal found that the applicant was able to leave China legally in his own name without experiencing any difficulties, indicating:

   
   

   “… that he was of no interest to the Chinese authorities for any reason whatsoever, and he would not be arrested on his return”. ([55] at CB 97).

10. It considered that the applicant’s problems were confined to the local area, and that there were no Convention related claims as to why he was unable to live in another area ([55] at CB 97).

11. The Tribunal accepted that: “… the applicant is wanted for his involvement in an affray with police officers in his local county for non-Convention related reasons,” and that “he owes money to a moneylender”. However, the Tribunal was not satisfied that the applicant has a: “well founded fear of serious harm amounted [sic] to persecution for these reasons or that there is a Convention related nexus behind them” ([56] at CB 98).

12. Moreover, the Tribunal did not accept that: “… the essential and significant reason for any difficulties (if any) the applicant may have if he returns to China, including his lack of funds or ability to find work, would be Convention related” ([57] at CB 98).

13. The Tribunal considered, having regard to all claims made by the applicant, individually and collectively, that there was no “real chance that he would be subjected to serious harm amount to persecution for a Convention reason if he returns to China” ([61] at CB 99). It therefore affirmed the decision under review ([61] to [63] at CB 99).

Before the Court

1. At the hearing before the Court Mr J F Gormly of counsel appeared for the applicant (direct access), and Mr R Baird represented the first respondent.

2. The applicant was given leave to file an amended application, and written submissions in support (no objection taken). I also took into evidence for the applicant, the affidavit of Sue Archer, annexing a transcript (“T”) of the hearing before the Tribunal (no objection taken).

3. Leave was also granted for the first respondent to file in Court further submissions directed to the applicant’s amended application and written submissions, of which prior notice had been given to the first respondent.

The Amended Application

1. The amended application is in the following terms:

   “That the decision of the Refugee Review Tribunal (“the Tribunal”) was affected by jurisdictional error in that the Tribunal failed to exercise its jurisdiction and to carry out its review function in that:

   1. The Tribunal did not take into account certain relevant considerations or “integers” central to the applicant’s claims in relation to the reason for the issue of an arrest warrant against the applicant

   Particulars

   a. The Tribunal accepted that the applicant’s house had been demolished by the County government.

   b. The applicant claimed that he and others had clashed with police in the course of their protests against the government in relation to the allocation of land and the demolition of their houses.

   c. The Tribunal accepted that an arrest warrant had been issued in respect of the applicant in his local area;

   d. The Tribunal accepted that the reason for the issue of the warrant was that the applicant had become involved in a fight with or “some sort of affray and attack on” the police;

   e. The Tribunal was not satisfied either that the reason for the issue of the warrant or the fight of affray the subject of the warrant was for a Convention related reason.

   f. In coming to these conclusions the Tribunal failed to take into account that the warrant explicitly referred to the applicant illegally building a house in 2008 and that this information provided a context (and Convention relation) for the other matters set out in the warrant (accepted by the Tribunal) that:

   ·    the applicant refused any persuasion and deterrence;

   ·    the applicant clashed with law enforcement personnel;

   ·    the applicant later organised other people in the community to assault law enforcement personnel which led to people being injured.

   2. The Tribunal failed to make findings on:

   ·    whether it accepted or rejected the applicant’s claims that he was ever involved with protest activities with his neighbours against the local county authorities about the allocation of land or the demolition of houses;

   ·    whether the warrant issued in respect of the applicant’s clashes with police in relation to these activities.

   Particulars

   a. The Tribunal’s reasons do not disclose whether it regarded the “affray or attack on the police” the subject of the warrant as having occurred either in the course of a demonstration against the demolition of the houses, or merely in the course of another, perhaps criminal project;

   b. The Tribunal’s reasons do not disclose whether it believed the applicant had been involved in any protest activities as claimed.

   3. The Tribunal did not consider whether applicant would be afforded effective protection from loan sharks because the applicant was being pursued by the police for his political opinion concerning the definition of houses.” 

2. Mr Gormly submitted that the applicant was not pressing ground three. 

Considerations

Ground One

1. The applicant’s first ground complains that the Tribunal failed to take into account, or to address, what was described as a “central integer” of the applicant’s claims. This was said to arise in relation to a “warrant” that had been issued by the local Chinese authorities in relation to the applicant.

2. At the hearing before the Tribunal, amongst other things, the applicant provided to the Tribunal a number of photographs of what was said to be a poster relating to him (CB 64 to CB 69).

3. The Tribunal’s account of what relevantly occurred is:

   “[36] The Tribunal referred to the six photographs of a poster he also provided at the beginning of a hearing, and sought his confirmation that they were all photographs of the same document, which he confirmed was the case. Asked what the poster said, he claimed that they said because the government was forcibly demolishing houses in December, there was a clash with the owners; a fight broke out; and some people were injured. He claims that with the help of a friend, he escaped, and the local county government did not wish to make this public. The Tribunal then asked the interpreter to translate the document. The interpreter said that the title of the document was a warrant for an arrest of a wanted person, specifically referring to the applicant by name and his other details, and said that the applicant had refused persuasion and deterrents and the suspect clashed with the law enforcement personnel. It said that later he organised other people in the community to assault the law enforcement personnel which led to three people being severely injured and five people being slightly injured. It requested anyone seeing the applicant should report this (providing a telephone number) and was signed by the PSB in Kaijiang country, Sichwan province. The Tribunal put to the applicant that this confirmed that the applicant was involved in a fight and the reason they wanted to arrest him was because he had been involved in criminal activities which resulted in serious injury of three people. In reply, the applicant claimed that this was the way the government put it to make it sound legal because, when he moved out, they agreed to pay compensation to each household, so they were able to save this expense”.

4. Relevantly, the transcript of the hearing reveals (from about T10.5):

   “Tribunal Member: You also provided six photographs of what appears to be the same document, this one here I hold up and show you. Are all these six papers of the same thing?

   Applicant: Yes.

   Tribunal Member: What does that say - it’s only in Chinese - what are you saying?

   Applicant: Because the Government was demolishing the houses and it was with force in December and so when they were demolishing the houses they had a clash with the owners, with several tenants of owners of these houses. So then a fight broke out and some people got injured. With friend’s help I left, so after I left they were trying to arrest us everywhere, but our local country [sic] Government doesn’t want to make the whole thing public.

   Tribunal Member: I will ask the interpreter to read this document for me. Do you have a copy there? It might be easier. Tell him that I’m asking you to read out what’s on this document

   Interpreter: It’s a warrant for a wanted person. Male. Currently 34 years of age. Han ethnicity. Address Shin Ming town, Kaijiang country, Sichwan province. [ID number]. He build a house illegally in December 2008 and he refused any persuasion and deterrence and he clashed with, the suspect clashed with the law enforcement personnel. Later he organised other people in the community to assault law enforcement personnel which led to three people severely injured and the five people slightly injured. Report telephone [number] and then down the bottom Sichwan province, Kaijiang Country, Public Security Bureau. And there’s a date”.

5. Mr Gormly submitted that while the warrant, as read out by the interpreter at the hearing, made reference to the applicant having built a house illegally in December 2008 (the emphasis in the submissions was on “December 2008”), that this was not recorded in the Tribunal’s account of what the interpreter translated from the document at the hearing. 

6. He further submitted that, in its findings, the Tribunal accepted that the warrant had been issued in relation to the applicant, but found that the reason for the warrant was because the applicant had become involved in a fight with the police: “… not because he was simply exercising his political opinion by being involved in a demonstration against the demolition of his house” (at [55] at CB 97). Further, that the Tribunal said that it reached this conclusion: “... from the wording of the warrant read out by the interpreter at the hearing…” ([55] at CB 97).

7. The argument, as I understood it therefore, was that the Tribunal’s omission of the reference to “December 2008” and the house in that part of its account of what occurred at the hearing reveals and shows the error in its subsequent finding that the applicant was able to live in China for six months after the affray with the police without difficulty (see [56] at CB 98).

8. The argument became clear if viewed in light of the sequence of relevant events. The affray occurred after the demolition of the house. If in the warrant the house was still being referred to as in existence at December 2008, the affray must have been some time after that date. The period therefore between December 2008 and February 2009 is not six months.

9. In submissions before the Court Mr Gormly also emphasised that the Tribunal also overlooked the relevant date of the demolition of the house. This submission appears to be a related, but separate, attack on the Tribunal’s decision record, as pleaded and as explained in written submissions.

10. The complaint appears to be that the Tribunal did not take into account that the arrest warrant made reference to the applicant’s house, and the Tribunal’s failure to take that aspect into account reveals jurisdictional error. The Tribunal’s failure to make a reference to this aspect of the warrant meant it failed to deal with an integer of the applicant’s claims. That is, in effect, part of the reason that the applicant was wanted by the authorities included the applicant having illegally built a house in 2008, and that this provided the context for what followed.

11. In oral submissions, however, Mr Gormly asserted that at paragraph [50] of its analysis, the Tribunal found that it was willing to give the applicant the benefit of the doubt and accept that his house, along with a number of others: “was demolished as he claims in July 2008”.

12. This paragraph reads:

    “[50] In support of his claims, at the hearing the applicant provided photographs of what appears to be a black of land with some rubble on it, together with photos of what is claimed to be an arrest warrant. These photographs do not establish that they are of his property; indicate the reason why the house/s were demolished; or indeed even indicate who demolished them and when this occurred. Nor do they establish that the property has been demolished on the instruction of the local county for the reasons claim by the applicant. However, the witness, who appeared on behalf of the applicant, stated that his mother had investigated the situation in the applicant’s town on his behalf, and reported back to him that several months after the applicant had left China there were still wanted posters displayed. In view of this evidence, the Tribunal is willing to give the applicant the benefit of the doubt and accept that his house, along with a number of others, was demolished as he claims in July 2008.”

1. Mr Gormly submitted that this reference by the Tribunal to the house being demolished in July 2008 was a mistake, in light of what was written on the warrant. For that matter, I note also that it is inconsistent with the Tribunal’s own recording of what occurred elsewhere at the hearing, where the Tribunal reported the applicant’s claims as including that his house was demolished in December 2008 (see [28] at CB 91).

2. The essence of this aspect of Mr Gormly’s argument, therefore, was that the reference to “December 2008” in the warrant meant the affray occurred in December 2008, and that it was therefore not open to the Tribunal to find that the applicant was able to remain in China, without difficulty, for six months.

3. Mr Gormly sought to reconcile the two aspects of the complaint by submitting, ultimately, that the Tribunal failed to carry out the review, because it did not take into account the applicant’s central claim that he took part in a protest at the time of the demolition of his house, and for which a warrant was issued for his arrest in respect of his resistance to the demolition of the house, and that the demonstration occurred in December 2008.

4. In all, I also understood the applicant to rely on such authorities as Htunv Minister for Immigration & Multicultural & Indigenous Affairs (2001) 194 ALR 244 (“Htun”) at 259 [42] for the proposition that the failure by the Tribunal to properly carry out its review function was a failure to exercise jurisdiction. I understood this to be in the sense that the Tribunal failed to properly consider an integer of the applicant’s claim as it is alleged to arise from what was translated as being in the warrant relating to “December 2008”.

5. I agree with submissions in reply by Mr Baird, that the resolution of the applicant’s complaint is to be found with a proper understanding of the exact nature of the applicant’s relevant claims and their presentation as different stages of the processing of the application for the protection visa and also the review.

6. The applicant’s initial claims in his protection visa application were, relevantly in relation to the matter of his house, that he applied for approval to build his house in January 2008 with the local authority (CB 18.7). He then stated: “I then started to build my house” (CB 18.8). I agree with Mr Baird that that would have logically needed to have been some time after January 2008.

7. Further, the applicant then states: “I received a notice from the local construction bureau in the 20th of July 2008 saying that my house was a squatter building and I had to pay a huge fine and they were going to tear my house down” (CB 18.10). Again, I agreed with Mr Baird that, on the applicant’s sequence of events as presented in his original protection visa application, the house must have been built sometime between January and July of 2008.

8. The applicant then claimed: “… I went to the department to argue with them but they forced me out of the office...” (CB 19.2). Following his hospitalisation for “half month”, the applicant then says: “I went to appeal after I went out of the hospital. And I found out that there are a lot of people were in the same situation with me in our neighbourhood. We decided to appeal as a group. There were 24 people got arrested in the appeal and I escape from it, I couldn’t go back home after that.” (CB 19.3).

9. It was after these events that the applicant said that the “local usury” came to his house demanding that he return the money and then:

   
   

   “… my house was teared down by the local government.” (CB 19.6).

10. Mr Baird’s submission was that, following these claims, which appear to have been made chronologically, the applicant’s house logically must have been destroyed sometime after the claimed protest activities.

11. The transcript of the hearing before the Tribunal reveals that the applicant told the Tribunal that the house was built in May 2008, and was demolished in December 2008 (T 6.5).

12. Further (at T 7), the Tribunal put to the applicant the relevant chronology as set out in the protection visa application. Mr Baird’s submission was that the applicant did not contradict that account in his response to the Tribunal’s questioning (T 7.8).

13. Again, at T 8.8, the Tribunal put to the applicant the sequence derived from the protection visa application that his claim was that on

    
    

    20 July 2008 the local county authority informed him that the building was to be demolished as it was an unapproved squatter’s building. The applicant again did not contradict this.

14. Mr Baird submitted that at the hearing (at T 9.7), the Tribunal put its understanding of the applicant’s relevant evidence to him. The relevant sequence of events is: notification of intended demolition was followed by the applicant going to the department to protest, he was then hospitalised, and then became involved in another protest in which twenty-four people were arrested, although he was not.

15. Mr Baird emphasised that, as part of his response to the Tribunal setting out the relevant sequence of events, the applicant said:

    “So after they made the decision to demolish our houses we went to protest”.

    Mr Baird submitted that this is an important statement by the applicant for present purposes, because his evidence was that the protest occurred after the notification of the intention to demolish, not after the actual demolition.

16. Critically, the transcript then reveals:

    “Tribunal Member: When was that?

    Applicant: I don’t remember that well but I think it was July or after July last year.” (T 9.9).

17. The last relevant reference in the transcript is to be found at T 11.4:

    “Tribunal member: You don’t claim  - you said all this happened in July last year, however you don’t claim that you were harmed or put in gaol for the six months that you remained in China or indeed experienced any further difficulties, nor do you claim that you have any difficulty leaving China on 1 February 2009. I’m therefore having difficulty in understanding why you feel you have a well-founded fear of serious harm for a Convention reason on this basis”.

    In Mr Baird’s submission, the applicant does not contradict the premise of this question.

18. Mr Baird conceded that at paragraph [50], the Tribunal probably did make a mistake in saying that the house was “demolished as he claims in July 2008”, and that it should have said that it was “notified to be demolished” at that time.

19. However, Mr Baird’s submission was that, whatever the case, this had no bearing on the Tribunal’s relevant finding, the finding which is ultimately at the centre of one part of the applicant’s complaints under ground one. That is, that he remained in China for six months following the events in which he claimed to have engaged, and in particular the protest activities, and the subsequent fight with the police.

Consideration

1. In my view, it can be said that the Tribunal was loose with language in part of its decision record. Further, indeed, even if some mistake of this type was made at [50], it is an error as to a finding of fact, which does not go to the exercise of the Tribunal’s jurisdiction (see such cases as Abebe v the Commonwealth of Australia (1999) 197 CLR 510 at [137], Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54 at 77 per Brennan J and Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 at 35 - 36 per Brennan J).

2. Given all of the evidence before it, as taken from the material referred to above, the Tribunal properly understood the core of the applicant’s claim to fear persecutory harm to be:

   “[54] Of greater and more central importance to his protection visa application is, however, his claim that, after the demolition of his house, he was involved in protest activities with his neighbours against the local county authorities, which resulted in him being hospitalised two weeks; 24 of his neighbours were arrested; and he became involved in a fight with the police, which resulted in three people being seriously injured and five others slightly injured. The issue then for the Tribunal is whether, in view of the above, the applicant has well founded fear of serious harm amounting to persecution for a Convention reason on this basis” (CB 97.3).

3. The Tribunal accepted the applicant’s claim that he was: “… wanted in his local county for his involvement in some sort of affray and attack on the police...” ([56] at CB 98). Irrespective of what the Tribunal said in relation to the demolition in July 2008 (as at [50]), it is clear that, as it otherwise said at [49], the notification of the demolition was on

   
   

   20 July 2008.

4. What follows in the “Findings and Reasons” at [49] is the sequence of events, consistent with what is set out above from the other evidence available to the Tribunal. That is, that following the notification of the demolition, the protest activities took place in July 2008 (see [49], and in particular T 11.4: “… you said this happened in July last year, however you don’t claim that you were harmed or put in gaol for the six months that you remained in China or indeed experienced any further difficulties…”).

5. Whatever the Tribunal may have mistakenly said as between notification of demolition and demolition (as at [50]), I agree with Mr Baird that the critical part of the applicant’s evidence in this regard was that the protest activities took place in July of 2008, after the notification, but before demolition which is what he consistently said in his original statement and at the hearing. This means that it was therefore open to the Tribunal to find that the applicant left six months later, in circumstances, as it put to the applicant at the hearing, where he continued to reside in his own area without experiencing any difficulties.

6. The applicant’s submissions seek to rely on the date “December 2008”, as translated by the interpreter at the hearing before the Tribunal (see T 10.9). The applicant’s argument is that the demolition took place in December 2008, and that the Tribunal was incorrect and mistaken, in saying that the house was demolished in July 2008.

7. To the extent that the applicant relies on the translation of the warrant, then this plainly does not say that the house was demolished in December 2008. In fact it says: “He build a house illegally in December 2008…”. Given that the applicant himself had said that the house had been built earlier, in May 2008, and that in fact he had received the notice for demolition in July 2008, what is purportedly said to have been put in the warrant may indeed have been a reference to “December 2008”, but in light of the applicant’s other evidence, it was open to the Tribunal to prefer that other evidence. It was open to find that, as a consequence, the critical events relating to the applicant’s protest activities, which saw him become involved in a fight with the police, had in fact occurred earlier than December 2008. This means therefore that it was open to the Tribunal to find that the applicant made no claim that he had any difficulties: “in the six months he remained in China”, after the events of July 2008.

8. In his grounds, as pleaded and as explained in written submissions the applicant complains with reliance on Htun that the Tribunal failed to deal with an integer of the applicant’s claims. Namely, that he was exercising his political opinion by being involved in a demonstration because of the demolition of his house. The applicant complains that the Tribunal’s account of what the interpreter read out makes no reference to the full narrative at T 9 (as extracted above at [53]). That is the reference to “He build a house illegally in December 2008”.

9. The applicant complains that the Tribunal failed to take into account that the warrant explicitly referred to the applicant illegally building a house in 2008. The complaint is that, in missing that reference to the applicant’s house, as taken from warrant, and when combined with the other parts of the warrant which were accepted by the Tribunal, that discloses that the applicant’s activities and purpose has been political.

10. However, because of this omission, the Tribunal limited itself to consideration of the criminality of the acts as set out in the warrant and avoided consideration of the original or political motivation.

11. First, it is clear that a failure to take into account an applicant’s claims, or an integer of the claims, or indeed claims which can be said to clearly arise on the material before the Tribunal, does amount to jurisdictional error (Htun, see also Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184, NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1).

12. It is also the case, however, that this does not mean that the Tribunal is required to refer to every piece of evidence before it. What it is required to do, pursuant to s.430 of the Act, is to set out in its decision record its findings of fact, and the evidence and material on which those findings of fact are based.

13. There is a clear distinction that can be drawn between claims, including integers of claims, and pieces of evidence.

14. The Minister submits that the fact that the Tribunal did not specifically refer to “He build a house illegally in December 2008” (as taken from the transcript of what was said to appear in the warrant) at [36] of its decision record, where the Tribunal sets out the relevant parts of what was said in relation to the warrant at the hearing, does not mean that the Tribunal necessarily overlooked the reference in the arrest warrant to the applicant’s illegal construction of a house.

15. With reference to what the Tribunal actually subsequently found at [54] and [55] of its decision record, I agree with the respondent that the Tribunal clearly saw that the applicant’s claims were that he had built a house, that while he had paid a fee to one local agency, the local authority with overall responsibility issued him with a notice, stating that the house was to be demolished. Critical was that the Tribunal accepted that the applicant had been involved in protest activities as a result of this, and subsequently had become involved in a fight with the police which resulted in injury to other people.

16. Whether or not the house was built in December 2008, as stated in the warrant, the critical part of the applicant’s claims, which were accepted by the Tribunal, was that the warrant was issued because the applicant had become involved in a fight with the police. In my view, on the evidence before it, it was open to the Tribunal to find that the warrant was issued because the applicant had become involved in a fight with law enforcement authorities, and not because: “he was simply exercising his political opinion by being involved in a demonstration against the demolition of his house”.

17. The statement that “He build a house illegally in December 2008”, as appearing in the warrant, is, on its face, inconsistent with all of the other evidence given by the applicant that the house was built earlier, and that a notice for demolition was provided in July 2008.

18. Other than the mistake at [50] that the: “… house was demolished, as he claims in July 2008”, the Tribunal understood elsewhere in its Findings and Reasons that the house had been built earlier in 2008, and that the notice for the demolition was served in July 2008 (see for example at [49]: “he claims he was notified by the Construction Bureau on 20 July 2008 that his house was a squatter’s building and was to be demolished and he had to pay a huge fine”).

19. The critical part of the Tribunal’s findings, when read fairly, is that the applicant built his house earlier in 2008, and was served with a notice in July 2008 that the house was to be demolished. This led him ultimately to a fight with the police, in respect of which a warrant was issued, which the Tribunal accepted had occurred. While plainly the reference in the warrant to the house being built in December 2008, even putting to one side that it is inconsistent with the applicant’s own evidence, is no more than one piece of evidence before the Tribunal. It does not, in my view, constitute a claim, or even an integer of a claim, that can be said that the Tribunal failed to deal with.

20. The claim involved his involvement in protest activities because of the demolition of his house. It is clear, with reference to what it set out at [54], that the Tribunal understood that it was the demolition of his house that led the applicant to become involved in protest activities, which subsequently led to his involvement in a fight with police, which led to a warrant being issued in his local area.

21. The Tribunal dealt with that claim and each aspect of that claim. It found, however, that the warrant was issued because he became involved in a fight with the police, and not because he was exercising his political opinion by being involved in a demonstration against the demolition of his house. The reference in the warrant to the house having been built in 2008, in the circumstances, does not detract from the Tribunal’s finding. Nor does it mean, in light of the other evidence before the Tribunal, including the applicant’s own evidence, that it was not open to the Tribunal to make this finding. I cannot see, therefore, that ground one is made out. 

Ground Two

1. In ground two, the applicant asserts by way of pleading that the Tribunal failed to make findings on whether it accepted or rejected the applicant’s claims that he was ever involved in protest activities with his neighbours against the local authority, and whether the warrant was issued in respect of the applicant’s clashes with police in relation to these activities.

2. The particulars emphasise that the Tribunal’s reasons do not disclose whether it regarded the: “affray or attack on the police”, which was the subject of the warrant, as having occurred either in the course of a demonstration against the demolition of the houses, or merely in the course of another, perhaps criminal, project. Further, that the reasons did not disclose whether the Tribunal believed the applicant had been involved in any protest activities as claimed.

3. The applicant’s written submissions emphasise this complaint. He relied on the submission that the Tribunal failed to make findings on the applicant’s claims of his involvement in protest activities, and whether the warrant was, or was not, issued in relation to these activities, to say that this is a failure to conduct the review as required of the Tribunal by s.414 of the Act. The applicant refers to Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [43] – [44] per Gaudron J. in support of that submission. In particular at [44]: “It follows from what has been written above that the failure of the Tribunal to make findings with respect to a particular matter may, at the same time, reveal failure to exercise jurisdiction, whether actual or constructive, and, also, a failure to conduct a review as required by the Act”.

4. In oral submissions, Mr Gormly again sought to emphasise and rely on the Tribunal’s failure to make reference to “December 2008” in relation to the house, as was said to have been set out in the relevant part of the warrant as translated by the interpreter at the hearing (again, with reference to what is set out at T 10.9).

5. Mr Gormly emphasised that the reference to the house at least being in existence in December 2008, as stated in the warrant, meant that the Tribunal attached significance to the affray having taken place in July 2008, as opposed to the wording of the warrant from which it can be inferred that the affray took place either in December 2008 or thereafter. This means that it was not open to the Tribunal, again, to make reference to the six-month period as in [56]. The applicant again relied on the submission that this “mistake” contaminated its consequent findings in the sense that it became “diverted” from properly dealing with the claims.

1. In reply, Mr Baird submitted that paragraphs [54] and [55] of the Tribunal’s decision record reveals that the Tribunal was aware that the applicant’s claim was that he had engaged in protest activities because of the difficulties with his house, that he had ultimately become involved in a fight with the police, and accepted that a warrant had been issued in his local area in respect of the applicant.

2. The issue between the parties now is that the applicant says that the Tribunal, while accepting that the warrant had been issued, did not make any findings as to whether the warrant was issued because of the affray with the police, which itself was as a result of the applicant’s protest activities in regard to the demolition or proposed demolition of his house. I understood this, therefore, to be an argument that the Tribunal failed to deal with an integer of the applicant’s claims, an integer that could very well have led to establishing a Convention nexus (imputed or actual political opinion).

3. Mr Baird, on the other hand, submits that there is no specific finding in the Tribunal’s analysis, and in particular with reference to [54] and [55], that the Tribunal rejected that the applicant was involved in protest activities because of the demolition, or proposed demolition, of his house.

4. I agree with Mr Baird that, when read, at least fairly, the Tribunal’s reasoning is that it acknowledged that the applicant’s claim was that he was involved in protest activities because of the demolition of his house, that this involvement included his neighbours, against the local county authorities, and that, subsequently, he became “involved in a fight with the police”. The Tribunal saw this sequence of events as being “of greater and more central importance to his protection visa application” (at [54]).

5. Further, the Tribunal understood: “… the central claim made by the applicant is that, because he demonstrated against the local authorities, (and clearly implicit in this is that the demonstration was because of the demolition of his house) they would arrest him on his return to his local area” ([55]). As to this latter point, the Tribunal accepted that a warrant had been issued in respect of the applicant in his local area (at [55]). On this set of facts, the Tribunal stated clearly that the issue was whether the applicant’s fears of serious harm had a Convention nexus (at [54]).

6. Any plain reading of the Tribunal’s reasoning reveals that it was the wording of the warrant provided by the applicant himself that to a large extent, when combined with the applicant’s own evidence that the warrant was “solely confined to the local area” led the Tribunal to find that it was: “… satisfied that the reason for the issue of the arrest warrant was because he became involved in a fight with the police or other law enforcement authorities: not because he was simply exercising his political opinion by being involved in a demonstration against the demolition of his house” (at [55]).

7. In my view, any plain reading of what the interpreter translated as being the wording of the warrant (see T 10) reveals that it was open to the Tribunal to find that the reason for the warrant being issued was because he had become involved in a fight with the police, and not because he had become involved in a demonstration because of the demolition of his house, which could be said to be an exercise of his political opinion.

8. The first part of the reference to: “He build a house illegally (in December 2008)” in the warrant was clearly the impetus for the applicant’s subsequent actions. The issue that faced the Tribunal was, however, as it itself recognised, whether the authorities, that is the police authorities, became interested in the applicant because of his involvement in the demonstration arising from the demolition of his house, or whether they were interested in the applicant, to the extent that a warrant was issued in respect of him, because he had become involved in a fight with the police. In my view, the wording of the warrant does leave it open for the Tribunal to find that it was the latter.

9. When the Tribunal’s reasons are fairly read, at least, they disclose that it understood that the applicant became involved in protest activities because of, and after the demolition, or at least proposed demolition, of his house, that he was hospitalised, that, subsequently, he became involved in a fight with the police in which others were injured, and in respect of which a warrant was subsequently issued in regards to the applicant.

10. I read (at least fairly) the Tribunal’s reasoning as having accepted the applicant’s claims that he was involved with protest activities with his neighbours as a result of the (proposed) demolition of his house, but that the wording of the warrant was such that the interest of the authorities in the applicant, as expressed in the warrant, was because of his fight with the police, not because he demonstrated against the demolition of the house per se. As already referred to above, such a finding was open to the Tribunal to make on what was before it.

11. When read in this way, Ground Two does not succeed. That is, the Tribunal can be seen to have accepted the applicant’s claims that he was involved in protest activities with his neighbours as arising from the demolition of his house, that the warrant was issued in respect of the applicant’s involvement in the fight with the police, but that the interest of the authorities was excited by that fact and not for the reason of the demonstration.

12. Therefore, both matters asserted as being “findings” which the Tribunal failed to make, and the particulars in support, misconceive the basis of the Tribunal’s actual findings, and the critical finding that the wording of the warrant, when also seen in the light of other evidence available to it, that the applicant was able to leave China legally without experiencing any difficulties whatsoever (see [55]). The critical finding was that the reason for the issue of the warrant, which was the evidence put forward by the applicant to show that the authorities were interested in him, was because of the affray, and not because of the reason that the applicant found himself at the demonstration in the first place.

Conclusion to the Grounds

1. In all, it must be said that the Tribunal’s inattention to detail and looseness of expression, in terms of setting out some of the reasoning leading to key findings, leaves much to be desired. With the result that it created a fertile ground for the applicant’s counsel to, in my view quite properly, argue the case that he did. A case that may not have been possible had greater care been taken with the presentation in the decision record. It may also have avoided the burden placed on the Minister in responding to such an application (or at least to a large extent the Australian taxpayer).

2. But be that as it may for the reasons already set out above this “deficiency” is not sufficient to reveal jurisdictional error on the part of the Tribunal’s decision in light of the grounds pressed in the applicant’s application.

An Alternative Basis for the Decision

1. In supplementary written submissions, the first respondent raised the issue (see paragraph [19] to [20]) that, whatever the case in relation to the applicant’s grounds as pleaded, the Tribunal decision does not in any event reveal jurisdictional error, on the basis that the Tribunal found that it would be reasonable and safe for the applicant to return to China and live elsewhere (away from his local area) without having any well founded fear of persecution by either the authorities in his local area, or the “loan sharks”. The respondent relied on VBAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 965 at [33] in support of the proposition that, in these circumstances, the Tribunal’s decision could be upheld on a basis unaffected by any reviewable error. Thus the applicant would not be entitled to the relief claimed.

2. During the course of the hearing before the Court I granted the parties leave to file further submissions on this issue.

3. Given that I could not discern jurisdictional error on the grounds as pleaded, it is not strictly necessary now to have proceeded to a consideration of this issue. But for the sake of completeness I do so.

4. In this regard, the Minister submits that, at the hearing before the Tribunal, the following exchange relevantly took place:

   “Tribunal member: Why can’t you go back and live elsewhere in China just outside your area?

   Applicant: I have no financial income now. If I go back how can I survive? I can’t survive. And those loan sharks can find you anywhere any time to chase money and I can’t predict what Government policy would be, what Government would do to me.” (T 11.6 to 11.7).

5. Further, that at T 11.8 to 12.8, the Tribunal proceeded to question the applicant in relation to his claims regarding the loan sharks, and whether he feared harm from the Chinese authorities outside of his local area.

6. The respondent relies on the following line of authority: Randhawa v Minister for Immigration, Local Government & Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 (“Randhawa”) (particularly at [14] and at [17]), SZATV v Minister for Immigration & Citizenship [2007] HCA 40; (2007) 233 CLR 18 (particularly at [24]), and further, on SZMCD v Minister for Immigration & Citizenship [2009] FCAFC 46 (“SZMCD”) (particularly at [123] to [124]).

7. In particular, I note that in SZMCD the Court found:

   “The Tribunal considered relocation in a framework dictated by the evidence and claims advanced to it by the appellant. It was not obliged to consider all theoretical possibilities including the question of whether or not the appellant would continue to behave in a way which might attract persecution from different Islamic fundamentalists.

   The test for relocation is whether it is practicable in the particular circumstances of the particular applicant… The answer to that question in turn depends upon the framework set by the particular objections raised to relocation”. ([123] – [124]).

8. The respondent submits that, particularly on the authorities of Randhawa and SZMCD, the exchange at the hearing between the Tribunal and the applicant confined the issues which the Tribunal was required to address in its assessment of whether relocation would be reasonable and practicable. That, further, in its decision record at [57] the Tribunal directly addressed each of the matters relevantly raised by the applicant. Still further, the applicant was given a fair opportunity to identify any other obstacles to relocation, but did not do so. That in these circumstances, there was no requirement on the Tribunal to speculate whether any other matters not raised by the applicant might provide any such obstacles.

9. In all, therefore, the respondent’s position is that the Tribunal’s finding that, whatever the difficulties raised by the applicant, they were confined to his local area, and that it would be reasonable for the applicant to return to China and live elsewhere in safety, remains as a separate and independent basis for supporting the Tribunal’s conclusion in affirming the delegate’s decision.

10. The applicant argues that the Tribunal’s finding on relocation is not a separate and independent basis for its decision to affirm the delegate’s decision.

11. The applicant’s position is that its “earlier flawed review of the applicant’s claims” infected the Tribunal’s misapprehension of the applicant’s claims, and also infected its consideration of the issue of relocation.

12. The applicant again relies on what is said to be the Tribunal’s “misapprehension” that the fight with the police took place in July 2008, and not December 2008 as was said to be claimed. The argument is that this in turn led the Tribunal to find the fight was not a serious matter, because the applicant did not claim he had any difficulties in the “six months” he remained in China prior to coming to Australia.

13. Further, the applicant complains that the Tribunal failed to consider his claim that he would have no security of income if he were to relocate, and that this was relevant to the reasonable accessibility of protection upon relocation “as a practical matter” (with reference to Randhawa at [14]). The applicant complains that the Tribunal limited its consideration of these claims to their “Convention relation” (with reference to [57]).

14. First, in relation to the applicant’s submission now that the Tribunal failed to consider the applicant’s claim that on relocation he would have no security of income must be rejected. It is clear (at T 11.7) that in answer to the Tribunal’s question as to why the applicant could not go back and live elsewhere in China, just outside his area, the applicant responded:

    “I have no financial income now. If I go back how can I survive? I can’t survive. And those loan sharks can find you anywhere any time to chase money and I can’t predict what Government policy would be, what Government would do to me”.

15. In my view, the Tribunal properly understood that the applicant’s concerns were, amongst other things, that he would have no security of income. The Tribunal squarely addressed this in its decision record:

    “… the Tribunal does not accept that the essential and significant reason for any difficulties (if any) the applicant may have if he returns to China, including his lack of funds or ability to find work…” (at [57]).

    This reveals that it squarely dealt with the applicant’s concern as to his security of income.

16. The Tribunal, further, also understood that the applicant’s objections were based of fear of persecution by either the authorities, or the moneylenders. Again, the Tribunal specifically found that any difficulties in relation to the moneylenders would not be for a Convention related reason (see [57]). In relation to the interest of the authorities, having already found that that interest was local, and in context of the applicant’s own evidence which the Tribunal accepted, it understood the claim to be:

    “…the applicant simply claimed in reply that it was the local county government where he had problems. The applicant also made it very clear and elsewhere in hearing that his problems were confined to the local area, and even the above-mentioned warrant had only a very limited geographic relevance.” (at [55]).

17. The Tribunal’s view is supported by what the transcript reveals was said at the hearing:

    1)T 11.4, T 12.3: “That was our county government…”

    2)T 12.4 and T 12 .5 for the distinction made by the applicant between: “the higher Government has its policy but the lower Government ignore it” (in context lower Government being a reference to the local Government)

    3)The applicant’s confirmation at T 12.7 that his fear would be that he would be “definitely be detained by our local authority” (not any other authority).

18. To the extent that the applicant’s submission on this issue relies on that part of the Tribunal’s decision record, that gives rise to some confusion as to when the fight with the police occurred, whether in July 2008 or December 2008 (the argument that arises from the Tribunal’s statement at [50] that it accepted that the applicant’s house “was demolished… in July 2008”) is rejected for reasons already set out above in relation to the two grounds of the application.

19. In all, therefore, I agree with the respondent that the finding as to relocation does stand as an independent, and a separate, basis to affirm the delegate’s decision unaffected by jurisdictional error.

Conclusion

1. In all, however, and in any event, with the benefit of legal counsel the applicant pressed two grounds before the Court by way of amended application. As neither of those grounds is made out, the application is dismissed.

I certify that the preceding one hundred and eighteen (118) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: 

Date: