SZOFZ v Minister for Immigration
[2010] FMCA 635
•17 August 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOFZ v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 635 |
| MIGRATION – RRT decision – Chinese applicant claiming persecution during land confiscation – Tribunal found persecution for imputed political opinions in 2006 but not continuing – Tribunal found no future risk of persecution – no jurisdictional error identified – application dismissed. |
| Migration Act 1958 (Cth), s.91R(3) |
| SZJGV v Minister for Immigration & Citizenship (2009) 238 CLR 642 |
| Applicant: | SZOFZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 569 of 2010 |
| Judgment of: | Smith FM |
| Hearing date: | 17 August 2010 |
| Delivered at: | Sydney |
| Delivered on: | 17 August 2010 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Counsel for the Respondents: | Ms B Rayment |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 569 of 2010
| SZOFZ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant arrived in Australia in April 2007. On 18 August 2009 he applied for a protection visa, assisted by a migration agent.
A statement attached to the visa application explained the history upon which he claimed to fear persecution if he returned to the People’s Republic of China.
The applicant said that he had opened a shop in a city in China in 1999, selling cigarettes and other things. He purchased the shop premises from the lessor in 2003, investing all of his savings. In June 2006, the city government planned an expansion of his street and offered inadequate compensation for his property. He refused the compensation, and did not vacate the premises. He said that in July 2006, 10 policemen and city workers brought machines on site and started demolishing the walls. He said:
When I tried to stop them, several people beat me and I was stunned. When I woke up I found myself in the hospital. My family told me that our shop had been demolished and I felt very upset and angry.
The applicant led eight other shop owners in protests. In August 2006 they petitioned the city Bureau for Complaints, and then visited the city government “many times for the solution of the problem”. He said that in November 2006 they protested publicly in front of the city government, but the protest was broken up by policemen, who took the applicant and others to the police station. He said:
We were tortured in the police station. The police warned us not to hold a demonstration and not to spread negative comments on government any more. At last, I was detained for 15 days on the charge of disturbing social order.
The applicant said that after being released he was followed, and police visited “my place from time to time”. He therefore came to Australia with the help of an agent. Very shortly before he left, he “secretly sent the appeal letter to State Bureau for Letters and Calls”. His wife then told him on the telephone that the police had come to search his home, and had warned his family that “they must report to the police when having my information”. He claimed that he was “scared to go back China and am afraid of being persecuted by local governments”.
The applicant was interviewed by a delegate of the Minister on
28 October 2009. He subsequently forwarded some documents showing his ownership of the business, the “enforced dismantling” of the property in July 2006, and a decision by the city police station to impose an administrative punishment for 15 days in November and December 2006.
The delegate made a decision on 10 November 2009, and refused the visa application. On reasoning which appears dubious in point of law, the delegate concluded that the applicant had not suffered any Convention-related persecution because “the situation described by the applicant is essentially one of local dispute arising from unsatisfactory financial compensation for the demolition of his shop”. This reasoning might appear to overlook the imputed political nature of the applicant’s protests and the police responses. The delegate also did not accept that the applicant remained of adverse interest to Chinese authorities “such that he would be targeted for persecution if he were to return”.
The applicant appealed to the Tribunal, assisted by his agent. He attended a hearing of the Tribunal on 27 January 2010. He showed the Tribunal photographs of his holding a banner at a Falun Gong demonstration in Australia.
The Tribunal gave a description of the hearing in its statement of reasons, and I have no reason not to accept that description. According to the Tribunal, it obtained more details of the applicant’s claims, and also put to him various points which might cause it not to believe them entirely.
Subsequent to the hearing, the Tribunal informed the applicant that it had received information about the temporary business visa upon which he had travelled to Australia, but said that it did not regard that as adverse information, accepting that the visa may have been obtained on false information to allow him to come to Australia. The applicant responded, confirming this claim, and also addressing some other matters which had been put to him at the hearing.
The Tribunal made a decision on 19 February 2010, which affirmed the decision of the delegate.
In its findings and reasons, the Tribunal noted some “problematic aspects” to the applicant’s claims about events in China, based upon what it thought was a “lack of candour” about details. However, it said:
Despite these misgivings, the Tribunal accepts in the light of country information about the land confiscations in China that his business and house were demolished in July 2006, that the applicant was hurt in a scuffle during the demolition, and that the police detained him for 15 days in November 2006 during a protest to the (named) city government.
The Tribunal then considered separately the elements in the applicant’s claims. It said that it was not satisfied that the land acquisition itself amounted to persecution within the meaning of s.91R of the Migration Act. I can see no arguable jurisdictional error in this part of its reasons.
The Tribunal then considered the assault of the applicant at the time of the demolition of his property, and concluded that it did not occur for a Convention reason. Its reasoning in this respect might appear obscure and contradictory. Although the Tribunal appears to have concluded that he had been seriously assaulted as a result of being imputed with political opinions opposed to the local authorities, it said:
The Tribunal finds that this particular assault occurred in the heat of the moment, and not for any Convention reason.
This reasoning may disclose error of law in an appreciation of the Convention definition of refugee. However, in my opinion, any error did not materially affect the remainder of the Tribunal’s reasoning, which provided the basis for its decision to affirm the delegate’s decision.
This further reasoning proceeded upon a finding that the applicant’s 15 day detention in November 2006 did involve serious harm, and was implicitly for a Convention reason. It said:
The Tribunal considers plausible that his banners included slogans that could be interpreted as being political, and that this further incited officials to break up the protest and detain the applicant and others.
The Tribunal therefore, at this point in its reasoning, accepted that the harms claimed by the applicant had occurred, and that they culminated in persecution for a Convention reason. However, addressing the risk faced by the applicant of the recurrence of persecution if he returned to China, the Tribunal made a critical finding:
The Tribunal finds that, however the incidents in August 2006 and November 2006 are characterised - and even if what the applicant experienced in November 2006 amounted to Convention-related persecution - he does not have a well founded fear of Convention-related persecution if he returns to China now or in the reasonably foreseeable future. The reasons follow:
Essentially, the Tribunal’s subsequent reasoning was that it did not accept that the applicant had taken any further action to air his grievance after 2006, in particular by writing secretly to the State Bureau for Letters and Calls shortly before leaving for Australia. It rejected his claims to have continued to attract interest from the authorities.
It said:
In addition, the Tribunal finds the passage of time very significant. As discussed at the hearing, the official’s primary interest was to secure his property, with minimal fuss and with no challenge to their authority. The applicant’s disruptive behaviour in mid-2006 and again in November 2006, coupled with any provocative slogans, might have motivated officials to take action against him on these occasions. Despite the applicant’s assertions that the considered the compensation unfair and the officials’ actions corrupt, the Tribunal notes that he received compensation in late 2006. The applicant did not claim to have engaged in any protest actions in the following months, but turned his attention instead towards arranging his migration to Australia.
It also said:
The applicant’s decision to leave China on (his) passport adds to the Tribunal’s doubts that he has either a genuine or well‑founded fear of Convention‑related persecution.
The Tribunal also said that it “considers it significant that the applicant waited for more than two years after arriving in Australia before seeking protection”. The Tribunal did not accept the applicant’s explanations for his delay, on reasoning which was not irrational.
The Tribunal concluded:
In sum, the Tribunal finds that the applicant faces no real chance of any Convention‑related persecution arising from incidents in 2006, if he returns to China. This is because of the Tribunal’s view that the (city)’s authorities, having dealt with the applicant harshly during 2006, during the demolition and during his protests, have no adverse interests in him in 2010.
The Tribunal considered the applicant’s photographs of political activity in Sydney in December 2009, but was not satisfied that he engaged in this conduct otherwise than for the purpose of strengthening his claim to be a refugee. The Tribunal was, therefore, required by s.91R(3) of the Migration Act to disregard that evidence insofar as it would support the applicant’s claims for refugee status (see SZJGV v Minister for Immigration & Citizenship (2009) 238 CLR 642).
In relation to the applicant’s future conduct in China, it said:
The Tribunal accepts that there was a political flavour to some of his protest activity in 2006. However, the Tribunal finds that the shop demolition and its compensation are now settled, and it does not accept that the applicant has any political opinion that will motivate him to engage in any relevant conduct if he returns to China, or that he will have to suppress in order to avoid persecution.
The Tribunal concluded:
In light of the above findings, the Tribunal finds there is no real chance of the applicant suffering serious harm in China, arising from the 2006 land dispute or from any other factors. The Tribunal is therefore not satisfied that he has a well-founded fear of Convention-related persecution, now or in the reasonably foreseeable future, if he returns to China.
The applicant now asks the Court to set aside the Tribunal’s decision, and to remit the matter for further consideration by the Tribunal. I have power to make these orders only if I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant’s history should be believed, nor whether he should be given a protection visa or any other permission to stay in Australia.
The grounds of his application were set out as follows:
1.RRT did not give me a fair decision. They did not trust me. They thought I did not tell the truth.
2.RRT failed to account my situation in China. I will be put in jail if I go back.
3.RRT and DIAC doubt my claim without substantive evidences. It is unfair.
The applicant has not filed an amended application nor written submissions, but addressed his three grounds broadly in oral submissions today. He maintained that the Tribunal made findings and reached conclusions which were “unfair”. This was because he was not believed about some of his claims, and because the Tribunal failed correctly to assess that he was at risk of further harm if he returned to China. He maintained that the Tribunal had incorrectly rejected his evidence that the authorities had continued to be interested in him after he left for Australia.
Unfortunately, these submissions and the grounds which they address, ask the Court itself to arrive at a second opinion about matters of fact and credibility. However, the Court does not have power to make those decisions, but is confined to considering whether the Tribunal’s decision was rationally based upon evidence which could support its conclusions, and whether it complied with the requirements of the Migration Act.
In my opinion, the Tribunal did fully address all the applicant’s claims and his evidence. I consider that its material conclusions were open to it on the evidence which it accepted, in particular, its ultimate conclusion that the applicant faced no future well‑founded fear of Convention‑related persecution if he returned to China.
As I have indicated above, I do not consider that any error of law found in paragraph [74] of the Tribunal’s reasons provides a material defect in its decision amounting to jurisdictional error going to the validity of the Tribunal’s exercise of its jurisdiction.
I am unable to detect any departure from procedures required by the Migration Act which could have provided “unfairness” amounting to jurisdictional error.
This is a case where it is possible that a different Tribunal member might have assessed the applicant’s evidence differently, and might have assessed his risk of future persecution for a Convention reason differently. The applicant has made several points today in support of his credibility which have some substance, but it is unclear whether he made those points to the Tribunal. In any event, in my opinion, the assessment of his case was performed by the present Tribunal in accordance with law. I therefore do not have power to order the Tribunal to afford him a second opportunity to present his claims.
For that reason, I must dismiss the application.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Smith FM
Date: 2 September 2010
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