SZOBS v Minister for Immigration - [2010] FMCA 262

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOBS & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 262

MIGRATION – Review of RRT decision – applicants father and son from China – whether Tribunal made errors of fact – whether these would constitute jurisdictional error – bias raised – claim that applicant’s son had been excluded from the Tribunal hearing.

Migration Act 1958, s.422B

NADH v Minister for Immigration [2004] FCAFC 328; (2005) 214 ALR 264
SCAA v Minister for Immigration [2002] FCA 668
Minister for Immigration v Jia [2001] 205 CLR 507

Applicant:

SZOBS

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3103 of 2009

Judgment of:

Raphael FM

Hearing date:

8 April 2010

Date of Last Submission:

8 April 2010

Delivered at:

Sydney

Delivered on:

8 April 2010

REPRESENTATION

For the Applicant:

In person

Counsel for the Respondent:

Ms A Mitchelmore

Solicitors for the Respondent:

Sparke Helmore

ORDERS

Application dismissed.
Applicants to pay the First Respondent’s costs assessed in the sum of $4,800.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3103 of 2009

SZOBS

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicants are citizens of China, a father and son who arrived in Australia on 16 March 2008 as holders of a student visa and a student guardian visa. On 7 May 2009 they applied for protection (Class XA) visas. On 31 July 2009 a delegate of the Minister refused to grant protection visas and the applicants applied for review of that decision from the Refugee Review Tribunal on 25 August 2009. The applicants were invited to a hearing. The father, who was the principal claimant for protection, the son having completed Form D as a member of the family unit who did not have any claims of his own, gave evidence. On 25 November 2009 the Tribunal determined to affirm the decision and advised the applicants by letter on 26 November.
The father’s claim to be a person to whom Australia owes protection obligations was said to arise out of the fact that he had been a pig farmer in China with a farm housing a substantial number of pigs bordering on a river in Sichuan province. He stated that in about 2006 the local authority determined that some farms in this area were causing pollution to the river and would need to be closed down. In order to do this the landholders were ordered to demolish the buildings on the site and were to be paid compensation for the closure of their businesses based upon a square metreage and something for each animal. The applicant told how the amount that he had been promised was not paid to him and that he had received very much less than what he had expected. The farm buildings were actually demolished in June 2007 and he claimed that in July 2007 he attended a protest about the paucity of the compensation following which he had been arrested and placed in detention for approximately 15 days where he was badly treated.
He was released on 30 July 2007 and decided in September 2007 that he should leave China. He claims that he contacted an agent for this purpose and paid him a very large sum of money, approximately some 250,000 RMB, to provide false information in support of the application for him and his son. It was for this reason that there was a significant discrepancy between the visa applications as a student and student guardian and the story revealed to the delegate and then to the Tribunal in connection with the protection visa.
The Tribunal questioned the applicant about his claims and discussed with him problems that it had with some documentation that he had provided in support. In its findings and reasons which commenced at [CB 178] the Tribunal lists a number of inconsistencies between his oral evidence and his written claims. It also noted inconsistencies between the applicant’s oral evidence and some of the documents which he submitted. For example, at [67] of [CB 179] the Tribunal says:
“The Tribunal also noted inconsistencies between the applicant’s oral evidence and the alleged notice dated 11 November 2006. First, the notice states that there was an agreement signed by the street committee and the applicant. The applicant’s oral evidence was that he had not signed any such agreement. Second, the compensation payment arrangement set out in the notification is inconsistent with the applicant’s account of what was proposed. For example, his oral evidence was that bonuses would cease if the piggery was not demolished by 31 December 2006, and that the property, having been demolished in June 2007 by people acting for the street committee, his family was paid 170,000 RMB. In contrast, the notice states (in effect) that 50 per cent of the bonus would still be paid if the property was demolished in January 2007, and that no compensation would be paid if demolition was not completed before 31 May 2007, in which latter event he, in fact, would be charged for the costs of demolition.”
The Tribunal then dealt with other documents provided by the applicant and noted that it had raised with him the problem of the availability of false documentation in China. The Tribunal determined that given the inconsistencies between the documents and the oral evidence, and in the case of some photographs of the piggery its doubts as to whether they show a piggery at all, it could not give those photographs any credence.
The applicant had also submitted some statements from persons who allegedly were fellow farmers and had been part of the demonstration. The Tribunal determined that in all the circumstances it could not give those statements very much weight, particularly given the conclusions it had previously arrived at about the availability of false documents. The Tribunal concluded that it could not be satisfied that the applicant was a pig farmer. That being the case, it could not be satisfied that he had suffered as suggested and therefore it could not be satisfied that he had a well founded fear of persecution for a convention reason.
On 21 December 2009 the applicant filed an application with this court seeking review of the decision of the Tribunal. There were two grounds of the application. The first was that:
“There is a lack of procedural fairness.”
The applicant does not particularise what the lack of procedural fairness was, and as Ms Mitchelmore points out in her helpful written submissions, procedural fairness in these matters is governed by Division 4 Part 7 of the Migration Act 1958 (the “Act”) and that is taken to be an exhaustive statement of the natural justice hearing rule; s.422B(1). The applicant would therefore need to indicate to this court what part of that division had not been complied with by the Tribunal in order for the court to come to a conclusion that a jurisdictional error had occurred. He did not do so in his application and although given an opportunity to file an amended application he did not do that. Before me today the applicant made some complaints about the Tribunal but they appeared to me merely to agitate the merits of the Tribunal’s decision rather than to indicate a jurisdictional error. He told me that the government had told him that it would compensate him 156 RMB for each square metre but they only gave him 110 RMB. He told me they only gave him 300 RMB for each sow and nothing for the hogs. He pointed to what he considered to be some errors of fact in the Tribunal’s decision; NADH v Minister for Immigration [2004] FCAFC 328; (2005) 214 ALR 264. But errors of fact are only very exceptionally the constituent of a jurisdictional error and the fact that the applicant did not tell the Tribunal that he was living in a particular place in 2008 as the Tribunal had said he had done would not constitute such.
The second ground of the application is:
“My case is not fairly considered by RRT”
Ms Mitchelmore suggests that this might be a claim that the Tribunal was biased and made submissions on the basis of the decision of von Doussa J in SCAA v Minister for Immigration [2002] FCA 668 that was followed by Gleeson CJ and Gummow J in Minister for Immigration v Jia [2001] 205 CLR 507. It is well settled that a claim of this nature must be distinctly made and clearly proved. The applicant told me that he did not understand the reasons why the Tribunal had rejected him. The applicant is not a native English speaker and it may well be that he has not had the Tribunal decision adequately translated to him. But I have read it and the grounds upon which the Tribunal determined that it could not reach the necessary state of satisfaction are, to my mind, clearly spelled out. The Tribunal did not have confidence that the applicant was speaking the truth.
Finally, before me today, the applicant said that his son had been told to come to the hearing but was made to stay outside and he wondered why his son had not been called in to give evidence. The applicant only made this point at the last moment but Ms Mitchelmore was able to indicate to me that the only evidence that was before me was that contained at [CB 157], being the RRT hearing record, which indicated that the son was not present. Even if I was to accept that the son did attend and remained outside, without further evidence I cannot make a finding that this was at the behest of the Tribunal or that the Tribunal had in some way prevented the son from giving evidence. It is up to an applicant to decide who he or she wishes to call to assist them. There is no requirement upon the Tribunal to call a witness.
It is to be remembered that, in this case, the son did not have any claims of his own to be a refugee and whilst he may have been useful to the applicant to corroborate some of his story that was a matter for the applicant and not for the Tribunal. In the absence of any evidence of some prohibition placed by the Tribunal upon the son attending I am afraid that I cannot find a jurisdictional error in what I am told occurred. In these circumstances, the application must fail. It is dismissed. Both applicants must pay the first respondent’s costs which are assessed 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

Associate:

Date: 15 April 2010