SZOFZ v Minister for Immigration and Citizenship

[2010] FCA 1288

FEDERAL COURT OF AUSTRALIA

SZOFZ v Minister for Immigration and Citizenship [2010] FCA 1288

Citation:		SZOFZ v Minister for Immigration and Citizenship [2010] FCA 1288
Appeal from:		SZOFZ v Minister for Immigration & Anor [2010] FMCA 635
Parties:		SZOFZ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 1167 of 2010
Judge:		DODDS-STREETON J
Date of judgment:		23 November 2010
Catchwords:		MIGRATION – appeal from decision of Federal Magistrates’ Court, dismissing an application for review of the decision of the Refugee Review Tribunal – Tribunal affirmed decision made by the first respondent, refusing the appellant a protection visa – no well-founded fear of persecution if appellant returned to China – Federal Magistrate fully considered Tribunal’s reasons and appellant’s submissions – appeal dismissed
Legislation:		Migration Act 1958 (Cth), ss 65; 91R
Cases cited:		Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; [1947] 2 All ER 680 SZOFZ v Minister for Immigration & Anor [2010] FMCA 635
Date of hearing:	12 November 2010
Date of last submissions:	12 November 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	68
Counsel for the Appellant:	The Appellant appeared in person with the assistance of an interpreter
Counsel for the Respondents:	Mr J King
Solicitor for the Respondents:	Sparke Helmore

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1167 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZOFZ
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	DODDS-STREETON J
DATE OF ORDER:	23 NOVEMBER 2010
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs of the appeal, as agreed or taxed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1167 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZOFZ
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	DODDS-STREETON J
DATE:	23 NOVEMBER 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1. By a notice of appeal dated 4 September 2010 and filed 7 September 2010, the appellant, SZOFZ, appeals from the decision of Federal Magistrate Smith given on 17 August 2010 on the following grounds:

   1.  RRT had bias against me and did not make fair decision for my application.
   2.  The Federal Magistrate made an error of law.
   3.  I believe that my application was not considered reasonably by the Judge at the Federal Magistrates Court. I fear to go back to China.

2. The orders sought are as follows:

   1.  The Decision made by RRT be set aside.
   2.  The Decision made by Federal Magistrates Court be set aside.

3. The appellant filed an affidavit in support affirmed on 7 September 2010 deposing that:

   1.  My application for a protection visa was refused by DIAC and RRT. I lodged my application to be reviewed at Federal Magistrate Court. The judge did not consider all information provided fairly.
   2.  The judge did not consider my situation and all the information that I provided.
   3.  The judge did not consider my risk to return to China. My case was dismissed. It is not fair.

4. At the hearing of the appeal, the appellant appeared in person assisted by a Cantonese/English interpreter.

5. On 17 August 2010, Smith FM dismissed the appellant’s application to review a decision of the second respondent, the Refugee Review Tribunal (“Tribunal”), dated 19 February 2010, by which the Tribunal affirmed the decision of the delegate of the first respondent, the Minister for Immigration and Citizenship (“the Minister”) to refuse to grant the appellant a Protection (Class XA) Visa under s 65 of the Migration Act 1958 (Cth) (“the Act”).

6. The appellant, a 30 year old citizen of the Peoples’ Republic China, arrived in Australia on 21 April 2007 as a holder of a business visitor visa, which authorised a stay in Australia of three months.  The appellant remained in Australia when his visa expired and, on 18 August 2009, applied for a protection visa based on an asserted well founded fear of persecution in China.  His application was supported by a personal statement and his passport.

   DEPARTMENT INTERVIEW

7. In the appellant’s statement to the delegate of the first respondent, he claimed that:

   (a)he lived in Guangdong, China, where he had gone to school and, from 1999 to 2006, was the owner of a shop;

   (b)he was married in Guangdong in December 2003, and his wife, daughter, parents and sister remain in China;

   (c)in September 1999, he opened a small shop in Taicheng Town, Taishan City, Guangdong Province, which he bought from the landlord in September 2003 for RMB300,000 for 200 square metres, using his savings as well as money borrowed from a friend.  The shop sold cigarettes and other small items;

   (d)he lived with his wife and daughter in an apartment attached to the shop, until it was demolished in July 2006;

   (e)in June 2006, the Taicheng Town Government announced the expansion of the main shopping street which required the demolition and reconstruction of 12 stores, including the appellant’s shop;

   (f)on 10 June 2006, an official (“Director Li”) offered the appellant compensation for his shop at a rate of RMB1,000 per square metre.  The appellant rejected the offer, contending that the market value was RMB4,000 per square metre.  On 3 July 2006, Director Li increased the offer to RMB1,500 per square metre and gave the appellant an ultimatum to accept by 30 July 2006, failing which his store would be demolished by force;

   (g)on 31 July 2006, ten or more police accompanied by dozens of others brought demolition equipment to the store and assaulted the appellant when he tried to resist the demolition;

   (h)the appellant woke up in hospital and learnt that his property had been destroyed;

   (i)the appellant organised eight other shop owners whose properties had been destroyed.  On 10 August 2006, they took their protest to the Taishan Municipal Bureau for Complaints and protested because the officials took no action;

   (j)on 27 November 2006, with a group of other protesters, the appellant again went to the Bureau and set up a banner displaying ‘Violent demolition, breach of law’ and ‘Respect human rights and return our shops’.  The police came, seized the banners and took the protesters to the Taishan police station;

   (k)the appellant was held for 15 days at the police station.  The police tortured those arrested and warned them to discontinue their protests;

   (l)after his release, the appellant felt as if he was being followed and the police called on him from time to time;

   (m)on 19 April 2007, prior to the appellant’s departure for Australia, he secretly sent a letter to the State Bureau for Letters and Calls.  The police later came to his home asking for him and instructed his family to give them any news of the appellant; and

   (n)the appellant feared to return to China, because of his past persecution and experiences.

8. At an interview conducted by a delegate of the first respondent on 28 October 2009, the appellant, having described his shop in detail, explained that when he was detained in November 2006, the authorities singled him out as the protest leader and who “badmouthed” the government.  He was unsure of the other shop owners’ fates or whether they agreed to the government’s compensation offer.  He explained that he had protested against the acquisition more vigorously, particularly by sending a letter to the State Bureau for Letters and Calls in April 2007 alleging that city officials were corrupt (“2007 letter of complaint”).  He said that since he had arrived in Australia officials visited his home in China every few months asking his wife if she had heard from him.

9. At the interview, the appellant asserted that he feared he would be detained and mistreated again if he were to return to China, due to the letter he wrote just before he left.  He also asserted that he had not applied for protection earlier as he was unaware that his circumstances could form the basis for refugee claims.

10. On 10 November 2009, the delegate notified the appellant of the decision to refuse him a protection visa.  On 8 December 2009, the appellant applied to the Tribunal for a merits review of the delegate’s decision.

11. On 24 December 2009, the Tribunal, by letter, invited the appellant to appear before it on 27 January 2010.  The appellant filed a response on 4 January 2010.

    THE TRIBUNAL HEARING

12. On 27 January 2010, the appellant appeared before the Tribunal and gave oral evidence assisted by a Cantonese/English interpreter.

13. The Tribunal had before it the first respondent’s file relating to the appellant, including:

    (a)his personal statement;

    (b)a photocopy of a business licence (in Chinese with English translation) dated 17 January 2006 (valid for 8 years) for an alcohol and tobacco wholesale business in the appellant’s name;

    (c)a photocopy of a Taicheng Town document dated 15 July 2006 identifying 13 properties whose owners had failed to authorise the demolition of their properties, which stated that the owners of the properties must sign agreements by 30 July 2006 or face significant losses; and

    (d)a photocopy of a Taishan City Police Station decision of administrative punishment dated 27 November 2006, stating that the appellant was being detained for 15 days under Administrative Punishment law.

14. The Tribunal questioned the appellant at length and in great detail about the matters in his application.

15. The Tribunal put to the appellant that a statement in his protection visa application form (that he lived at the shop address, “23 Nanchang” until April 2007) conflicted with his claim that the shop and apartment were demolished in July 2006.  The appellant replied that the detail on the protection visa application form was incorrect but he did not think there were any other errors on the form.

16. When questioned, the appellant said his wife had the originals of the documents he had presented.

17. The Tribunal questioned the appellant about the time between the demolition of the shop and his departure for Australia.

18. The appellant told the Tribunal that he had stood with his wife and daughter as the demolition workers had moved in, that he was angry and a confrontation followed in which he was assaulted.  He woke up in hospital after being unconscious for two days.  When questioned about his treatment and experience in hospital, he replied that the shop was his priority.  Therefore, he was discharged after two days, and received medical treatment such as CT scans and X-Rays.  The Tribunal noted that “he did not suggest that his two days of being unconscious had caused any greater concerns”.

19. The appellant told the Tribunal he had no photographs or other documents relating to the shop and its destruction, or to his medical treatment, as he was not aware he would need these in Australia.

20. The appellant described how he and other protesters had escalated their complaints from the Taicheng town level to the Taishan municipal authorities.  At a demonstration in Taishan, the appellant and others drew a crowd, and the police singled out the appellant for arrest.  The appellant said that in detention he was crushed mentally and physically, but did not require or seek any medical treatment after his release.  The appellant asserted that the officials handed him the police administrative decision document on his release.  When asked whether he or his family appealed the decision, the appellant did not, in effect, reply.

21. The appellant stated that after his release from detention, he was followed by plain‑clothes police, but the police did not search his home for incriminating documents or for any other reason.  In around November or December 2006, the appellant received payment of RMB150,000 for the shop.

22. The Tribunal put to the appellant that, even if his claims about the officials’ conduct were true, it was difficult to see how the officials might now have any adverse interest in him three years later.  The appellant responded that he initially thought the local officials would not pursue him, but now realised that he was at risk for having escalated the issue (in particular, by his 2007 letter of complaint).

23. The Tribunal put to the appellant its great difficulty believing that although officials failed to search his home while he was in China, they had called on his home over a period of time (at least up to November 2008) since his departure.  The appellant responded that he now realised that officials were still interested in him because of their most recent approaches to his family and still considered him a threat due to his 2007 letter of complaint.

24. The Tribunal noted that the appellant’s family, including his grandfather, father and wife, appeared to have done well and had government employment in China.  The Tribunal put to him that even were his evidence of his circumstances prior to his departure from China accepted, it did not follow that he would be motivated to engage in political conduct in the future.  The appellant asserted that local officials were corrupt and bold, which would leave him vulnerable and motivate him to protest against them if he returned to China.

25. The Tribunal put to the appellant that the delay between his arrival in Australia in July 2007 and his lodgement of a protection visa application in August 2009 did not appear consistent with the conduct of a person who fears persecution.  The appellant responded that he did not speak English or understand Australian law and had only recently learned that refugee status might be available to someone who feared persecution due to conflict with local officials.

26. The Tribunal asked the appellant for the papers leading to the grant of his subclass 456 business visa.  The appellant replied that an agent had arranged the application, which he did not sign, and he had no idea what was in it.  He agreed with the Tribunal’s suggestion that the documents supporting the application would be false.

    The Tribunal’s Findings

27. The Tribunal, by its decision given on 19 February 2010, affirmed the delegate’s decision not to grant the appellant a protection visa.  In its reasons for decision given on 19 February 2010, the Tribunal found that the appellant conducted a shop on Taicheng’s main commercial thoroughfare from 1999, and that he purchased the premises in 2003, “although it [the Tribunal] considers that he may have inflated his role in this operation”.

28. The Tribunal found that the Taicheng authorities compulsorily acquired the premises, and that “there are many independent reports that describe this as a common, and controversial, phenomenon in China today”.  The Tribunal accepted that the demolition took place and that the appellant was paid RMB300,000 (the same price he paid for the property in 2003).  It accepted that the appellant sought compensation in the area of RMB800,000, based on his calculation of significant gains over the three year period and growth of the business, but the officials were unsympathetic to his demands.

29. The Tribunal held that the appellant’s business visa application had no immediate bearing on his protection visa application.

30. The Tribunal held that there were some “problematic aspects to the [appellant’s] claims about the events in and around the property transfer” and that his “evidence appeared to falter when the Tribunal asked for peripheral details, such as his medical condition and treatment in the wake of the August 2006 clash; whether or not his family appealed from the administrative decision punishing him for having ‘disturbed social order’; and whether the police searched his home for incriminating evidence (such as leaflets) while he remained of interest to them in China.”  The appellant also “appeared reluctant to be drawn further on [his] activities between July 2006 and April 2007, except those that directly served his refugee claims”.

31. The Tribunal held that “the appellant’s lack of candour raises the possibility that the alleged incidents during this period are based not on his own experiences at all”.  Nevertheless, in the light of independent country information available to it, the Tribunal accepted that the appellant’s business and house were demolished in July 2006, that he was hurt during the demolition and was detained by the police for 15 days following a protest.

32. The Tribunal did not, however, accept that the appellant wrote a 2007 letter of complaint to the State Bureau for Letters and Calls.  The Tribunal found that his interest in the property issue “had long waned, after receipt of the compensation payment” and that there was no genuine basis for any renewed letter-writing or other campaigning.  The Tribunal concluded that the appellant had fabricated the 2007 letter of complaint in order to convince the Tribunal that the authorities have a renewed, ongoing adverse interest in him.

33. The Tribunal held there was no objective basis on which to conclude that the land acquisition and demolition of the appellant’s business and home, or the associated events, amounted to persecution within the meaning of s 91R of the Act. The Tribunal noted that, on the evidence, it did not accept that the compensation offer was necessarily unfair or involved any discriminatory action.

34. The Tribunal referred to the appellant’s post‑hearing submission that a Guangdong‑born Supreme People’s Court official was dismissed on bribery and corruption charges.  The Tribunal found that the allegation that the compensation claim involved corruption “appears quite tenuous”.

35. The Tribunal also examined the five photographs of the appellant holding political banners in Sydney in December 2009.  It was not satisfied that the appellant engaged in that conduct other than for the purpose of strengthening his refugee claim.

36. The Tribunal did not accept that the assault of the appellant while his business and home were destroyed amounted to Convention-related persecution.  The Tribunal noted that the appellant “was hesitant when asked about his hospital treatment” and “appeared to have shrugged off this incident”.  The Tribunal also found that the appellant was assaulted “in the heat of the moment” and “because he was causing a commotion and disrupting the demolition works, rather than for the essential and significant reason of any Convention ground”.

37. The Tribunal nevertheless found that the 15 days’ detention and the associated lack of due process involved “serious harm”.

38. The Tribunal held that the appellant did not have a well-founded fear of Convention-related persecution if he returned to China, as there was little objective evidence to support his claim that he was of interest to authorities after his release from detention in November 2006.  The Tribunal considered that the authorities, having dealt with the appellant harshly during 2006, had no remaining adverse interest in him.  The Tribunal also considered that the passage of time since the events in 2006, and the appellant’s two year delay in seeking protection, were significant.

39. The Tribunal concluded:

    77.  In sum, the Tribunal finds that the applicant faces no real chance of any Convention-related persecution arising from the incidents in the year prior to his departure, if he returns to China.  This is because of the Tribunal’s view that the Town A authorities, having dealt with the applicant harshly during that year, during the demolition and during his protests, have no adverse interest in him in 2010.

    78. The applicant has variously claimed that the protest in City B in the year prior to his departure was political; furthermore, that he opposes the Chinese Communist Party; and that he intends to become involved in political issues if he returns to China. He presented some photographs of himself holding political banners in Australia, several months after arrival. The Tribunal has examined the photographs, and is not satisfied that the applicant engaged in this conduct otherwise than for the purpose of strengthening his claim to be a refugee. Instead, it considers that he engaged in the conduct in order to obtain evidence of his political commitment, and to persuade the Tribunal that he will engage in political activities if he returns to China. The Tribunal is required to disregard this conduct, pursuant to s.91R(3). The Tribunal is then left with very little beyond the applicant’s own assertions. The Tribunal accepts that there was a political flavour to some of his protest activity in the year prior to departure. However, the Tribunal finds that the business 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.

    79.  The Tribunal accepts, more generally, that the applicant has concerns about China’s political system, including reports of bribery and corruption, and that overall he prefers the political, economic and social climate in Australia. However, the Tribunal does not accept that these preferences amount to a political opinion, or that the applicant will be motivated to engage in any associated conduct (such as criticism of the PRC or its officials) if he returns to China.
    80.  The Tribunal has considered for completeness whether the applicant is a member of any particular social group, such as disgruntled businesspeople or persons who are dissatisfied with property confiscation and compensation. However, given its findings of fact above – that the applicant does not have a well-founded fear of persecution for any reason – it is not necessary for the Tribunal to determine what, if any, particular social group may exist in the applicant’s circumstances, and whether the applicant faces a real chance of persecution for reason of his membership of such a particular social group.
    81.  The Tribunal has considered the applicant’s claims and evidence in totality. It accepts that he suffered harm during the year prior to his departure, when clashing with Town A officials over the demolition of his home and the compensation for it. It finds that the matter was settled a few months later. The applicant’s administrative detention in that year has no further consequences for him, as illustrated in part by the fact that he received compensation just a month after his release, by his ability to leave China on his own passport, and by country information indicating that this does not entail a criminal record or any serious personal detriment. The Tribunal does not accept that PRC authorities, at any level, have any adverse interest in the applicant, or that he has any political opinion or other attributes that may put him at risk of Convention-related persecution.
    82.  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 earlier 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.

    CONCLUSIONS

    The Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention. Therefore, the applicant does not satisfy the criterion set out in s.36(2)(a) for a protection visa.

    Hearing before the Federal Magistrate

1. By an application dated 17 March 2010, the appellant applied to the Federal Magistrate’s Court for a review of the Tribunal’s decision.

2. The grounds of the application heard by Smith FM were:

   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.

3. On 2 September 2010, Smith FM dismissed the application and published his reasons for judgment: SZOFZ v Minister for Immigration & Anor [2010] FMCA 635.

4. At the hearing of the application before Smith FM, the appellant was unrepresented but was assisted by a Cantonese/English interpreter.  He had not filed and served written submissions, but “addressed his three grounds broadly in oral submissions”.

5. Smith FM saw no arguable jurisdictional error in the Tribunal’s reasoning where it considered separately the elements in the appellant’s claims or held that the land acquisition itself did not amount to persecution within the meaning of s 91R of the Act (at [12]).

6. Smith FM held that the Tribunal’s reasoning that “the assault occurred in the heat of the moment, and not for any Convention reason” might be based on an erroneous construction of the Convention definition of “refugee”, but any such 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” (at [14]).  The Tribunal made “a critical finding” that, however the incidents were characterised, the appellant did not have a well found fear of future Convention-related persecution if he returned to China now or in the reasonably foreseeable future.

7. Smith FM observed that the appellant “maintained that the Tribunal made findings and reached conclusions which were “unfair” because the Tribunal did not believe some of his claims, and failed correctly to conclude 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” (at [27]). Smith FM noted that he must be satisfied that the Tribunal’s decision was affected by jurisdictional error, and that he did not have the power 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. Rather, Smith FM noted, the Court was confined to considering whether the Tribunal’s decision was rationally based on evidence which could support its conclusions and whether it complied with the requirements of the Act.

8. Smith FM stated:

   [29] 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.

   [30] As I have indicated above, I do not consider that any error of law found in para [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.

   [31] I am unable to detect any departure from procedures required by the Migration Act which could have provided “unfairness” amounting to jurisdictional error.

   [32] 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.

   [33] For that reason, I must dismiss the application.

   CONCLUSION

   Ground 1

   RRT had bias against me and did not make fair decision for my application.

9. Ground 1 of the notice of appeal is deficient, as it identifies no error on the part of the Federal Magistrate but rather complains of the decision of the Tribunal.  If ground 1 be treated as a complaint that the Federal Magistrate erred, the appellant may nevertheless require leave to raise it, because it was not raised below.  If ground 1 be read as in substance replicating ground 1 of the application for review before the Federal Magistrate, leave would not be required, but the ground could not, in my view, succeed, because as the Federal Magistrate correctly observed in para 28 of his reasons, it asked “the court itself to arrive at a second opinion about matters of fact and credibility”, which it had no power to do.

10. If, on the other hand, ground 1 of the appeal be construed as introducing a new allegation of bias, whether actual or apprehended, on the part of the Tribunal, leave to rely on that ground should, in my opinion, be refused, as there is no explanation for why it was not raised previously and, more significantly, it has no reasonable prospects of success.

11. No transcript of the hearing before the Tribunal was in evidence.  No evidence in support of an allegation of actual or apprehended bias was adduced.

12. The only material before the Court potentially relevant to such an allegation was the Tribunal’s reasons for decision which (albeit the product of a non‑curial, inquisitorial process in which the appellant was not legally represented) were, on examination, in my view rational, logical and comprehensive, disclosing no basis for concluding that the decision‑maker was or may have been biased against the appellant.

13. Rather, as the respondent submitted, the appellant’s real complaint under ground 1 appeared to be his disagreement with the Tribunal’s conclusions, which he considered unfair.

14. In my opinion, leave to raise ground 1 should be refused as it has insufficient prospects of success.  Alternatively, if ground 1 be construed as substantially the same as ground 1 of the application for review before the Federal Magistrate, it is not established.

    Ground 2

    The Federal Magistrate made an error of law.

15. Ground 2 merely alleges error on the part of the Federal Magistrate.  It provides no particulars or any “sufficient framework” for the conduct of the appeal.

16. When read with the appellant’s affidavit, ground 2 may be construed as an allegation that the Federal Magistrate failed to consider “all of [the appellant’s] situation and information that [he] provided” or his “risk to return to China”, and that the dismissal of the appellant’s case was “unfair”.

17. In my opinion, ground 2 is not established.  The Federal Magistrate considered the Tribunal’s reasons and the appellant’s claims, evidence and information concerning his situation and risk which were before the Tribunal.  No additional evidence was adduced before the Federal Magistrate.  The Federal Magistrate also fully considered the appellant’s claims and submissions made before him, but correctly recognised that his jurisdiction did not extend to substituting his own views of fact and credibility for those of the Tribunal.

18. In my opinion, ground 2 of the Notice of Appeal is not established.

    Whether non‑material error of law by Tribunal

19. While the appellant provided no particulars of error by the Federal Magistrate, before me, counsel for the first respondent addressed the significance of his Honour’s observation that the Tribunal may have made an immaterial error of law in concluding that the assault of the applicant in July or August 2006 was not due to “any Convention reason”.

20. His Honour contemplated that the Tribunal’s conclusion may have been erroneous, because it apparently found that the appellant was assaulted because political opinions “opposed to the local authorities” were imputed to him.  The Federal Magistrate held that, if so, such error was immaterial because, irrespective of any persecution for a Convention reason in 2006, the Tribunal ultimately found that the effect of the events in 2006 was spent and the appellant faced no real chance of Convention relation persecution if he returned to China.

21. Before me, counsel for the first respondent submitted that the Tribunal had not erred as the Federal Magistrate contemplated it may have done because, on a proper analysis of its reasons, the Tribunal made a positive finding that the assault of the appellant was caused by his participation in a commotion, irrespective of his imputed political opinions.  In my opinion, the Tribunal’s reasons, on a fair reading, indicate that although it contemplated that the appellant might be perceived to hold a political opinion challenging to local authorities or to belong to a social group of disgruntled owners whose properties had been compulsorily acquired, it concluded that in this case the appellant was assaulted for causing a commotion and disrupting works “in the heat of the moment”, and not because of his imputed political opinion or perceived membership of a social group.

22. Further, I am persuaded that, as counsel for the first respondent submitted, the Federal Magistrate correctly held that the possible error he contemplated was immaterial to the Tribunal’s ultimate decision, as it found that irrespective of whether the events of 2006 amounted to Convention‑related persecution, the appellant no longer had a well‑founded fear of such persecution if he returned to China in the reasonably foreseeable future.

    Ground 3

    I believe that my application was not considered reasonably by the Judge at the Federal Magistrates Court. I fear to go back to China.

23. Ground 3 alleges that the Federal Magistrate failed to consider the appellant’s application reasonably and reiterates that the appellant fears to return to China.

24. The level of unreasonableness necessary to constitute jurisdictional error, commonly termed “Wednesbury unreasonableness” (Associated Provincial Picture Houses Ltd v WednesburyCorporation [1948] 1 KB 223; [1947] 2 All ER 680), is very high. The impugned decision must be so unreasonable that no reasonable tribunal could have reached it.

25. In my opinion, the Federal Magistrate’s decision was comprehensive, logical and reasonable.  There is no basis for the allegation of unreasonableness.  Ground 3 of the Notice of Appeal is not made out.

    The appellant’s further oral submissions

26. Before me, the appellant stated that the Tribunal treated his case “without a care” and regarded his detention for 15 days “as nothing”.  The Tribunal, however, expressly recognised that the appellant’s 15 days detention constituted serious harm.

27. The appellant also asserted that he had a present fear, because after his detention, some former students of his grandfather (formerly a high official in China) had advised the grandfather that the appellant should not return to China, which had a corrupt system.  In its reasons, the Tribunal referred to the appellant’s grandfather as having “held a government position”.  The appellant did not apply for leave to admit fresh evidence.  There was nothing to suggest that the appellant relied on alleged warnings to his grandfather before the Tribunal or the Federal Magistrate and no basis on which to conclude that there was jurisdictional error in relation to such assertions.

28. The appellant reiterated that if he continued to appeal in China, he would be treated as an enemy and he had not left China earlier because he had to keep a “low profile”.  Those submissions, however, implicitly sought the court to exceed its limited jurisdiction by revisiting the factual findings of the Tribunal.

    Conclusion

29. In my opinion, the appeal should be dismissed.

I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dodds-Streeton.

Associate:

Dated:        23 November 2010