SZOGZ v Minister for Immigration

[2010] FMCA 650

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOGZ & ANOR v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 650

MIGRATION – RRT decision – Chinese applicant claiming persecution during expropriation of cement factory – disbelieved by Tribunal – no jurisdictional error identified – application dismissed.

Migration Act 1958 (Cth)

Eloujenko v Minister for Immigration & Multicultural & Indigenous Affairs [2001] FCA 980
Ibrahim v Minister for Immigration & Multicultural Affairs (2000) 60 ALD 465
Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
Soboleva v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 353
SZMIP v Minister for Immigration & Citizenship [2009] FCA 217

First Applicant: SZOGZ

Second Applicant: SZOHA

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 658 of 2010

Judgment of: Smith FM

Hearing date: 20 August 2010

Delivered at: Sydney

Delivered on: 20 August 2010

REPRESENTATION

Counsel for the Applicants: In Person

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The first applicant must pay the first respondent’s costs in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 658 of 2010

SZOGZ

First Applicant

SZOHA

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant arrived in Australia in April 2008, in company with her son.  She arrived on a student guardian visa and he came to Australia for studies.  The son’s visa was cancelled in May 2009 for breach of his visa conditions, and as a consequence the applicant’s visa was also cancelled on 18 May 2009.  On 21 July 2009, the applicant and her son applied for protection visas assisted by a migration agent, Weiming Qian.  Only the mother, who I have been referring to as “the applicant”, made claims to fear persecution if she returned to the People’s Republic of China, and the son made no separate claims to fear persecution.

2. A statement attached to the applicant’s visa application claimed that she had been the manager of a “town-owned cement plant”, and in 1990 she “had signed contract with local government of (town)” for 30 years.  She claimed that her husband also worked in the business, and they ran the business profitably until May 2007, when the town government “wanted to expropriate the land of the cement plant for real estate development”.  She and her husband did not accept their offer of compensation, which they regarded as inadequate. 

3. She said that on 23 May 2007 “around 10 officers from the government” came to the cement plant with expropriation notices.  After an argument, “several muscle men came out and began to kick and beat us.  We were injured with blood full of our faces.  They threaten us that we would be at our own risks if we did not carry out the order and then they left”.  She claimed that “after binding our wounds up” she and her husband “brought a dozen of workers of cement plant to town” to protest the unfairness, but the police prohibited them from entering government buildings.  After an argument the police were called, and they detained her husband and herself for 15 days as “the leaders of appealing”.  They were mistreated during their detention and required to pay a fine before release.  After being released, they found the cement plant had been demolished.  Further efforts by the husband to demand reasonable compensation failed, and three police later visited the home and threatened the husband with further detention if he appealed to higher authorities again. 

4. The applicant claimed that the family was very scared, and then “decided to send the child abroad for studying”.  After they failed to get passports themselves, they employed an agent to get a visa to come to Australia.  After the visa was granted, they sold their house and spent their money.  She came to Australia with her son, and her husband was “so scared he did not appeal to the higher authorities any more and he went to live in another city”.

5. The applicant was interviewed by a delegate on 23 September 2009. She subsequently forwarded a number of documents to the Department purporting to corroborate medical treatment of the husband for lacerations and other injuries, and their detention and release in May and June 2007. 

6. The delegate made a decision on 29 October 2009, refusing the protection visa applications.  In her reasons, the delegate detected inconsistencies between the written and oral claims of the applicant, and she thought that the claims were “vague, inconsistent and lacking in credibility”.  The delegate also thought it significant that there had been a delay in applying for protection in Australia until after the applicant’s student guardian visa was cancelled.  The delegate was not satisfied that the documents provided were genuine.  All the applicant’s claims were therefore rejected as not credible. 

7. The applicant applied for review assisted by her agent.  She did not provide additional documentary evidence, but attended three hearings held by the Tribunal on 20 January 2010, 18 February 2010 and 22 February 2010.  The second hearing appears to have been called by the Tribunal to allow various concerns to be squarely put to the applicant.  At the applicant’s request, that hearing was adjourned to allow her further time to consider how to respond.  It appears to me on the Tribunal’s description of the hearing, which I accept, that the applicant was very thoroughly allowed opportunities to respond to these various concerns, including some quite minor concerns. 

8. The Tribunal gave a decision on 26 February 2010, affirming the delegate’s decision.  In a lengthy statement of reasons, the Tribunal fully set out all the evidence in the matter, including the evidence given by the applicant at the three hearings.  Her son had also given evidence at the second hearing. 

9. In her findings and reasons, the Tribunal focused upon a series of reasons for concluding that the whole of the applicant’s claimed history, including her being in business in a cement factory and being persecuted when it was demolished, was not credible.  The reasoning explaining this conclusion of the Tribunal is, in my opinion, rational and shows a careful attention to the evidence. 

10. The first reason identified by the Tribunal was its concern that the applicant delayed lodging an application for protection for about 16 months after she came to Australia.  The Tribunal thought that she could have sought advice and assistance about applying for protection much sooner, and did not accept her explanations based on ignorance of her rights.  The Tribunal said it had formed the opinion that her “real purpose in coming to Australia was for economic gain and that she only applied for protection when her son was detained, as he could then not otherwise work”. 

11. The second reason identified by the Tribunal as supporting its general conclusion, was that it had:

    serious concerns about why the applicant gave more detail on her protection visa application form about which government agency signed the cement factory contract, and which agency issued the land expropriation notice than she was able to do at the hearing.

    It said that it concluded that she had “given inconsistent shifting and vague oral evidence” about this, and generally about the circumstances of the claimed expropriation. 

12. These concerns then were augmented by the third area of the Tribunal’s reasons which was, in its opinion, her: “inability to provide detail about aspects of her claim and her limited knowledge” about managing a cement factory and the events that she had claimed.  The Tribunal thought that her limited knowledge was not consistent with her claims to have been a manager-owner of a cement factory for 17 years.  The Tribunal explained these concerns in detail. 

13. The fourth area supporting the Tribunal’s conclusion was its finding that the applicant’s evidence about her husband’s movements and activities after the events of June 2007 was “inconsistent and contradictory”. The Tribunal identified a number of areas showing possible inconsistencies.  The applicant had sought to explain these in a rational manner.  However, in my opinion, in the context of the other points made by the Tribunal, it was not irrational or unreasonable for the Tribunal to identify these concerns, and to treat them as affecting its assessment of credibility. 

14. The Tribunal said it also found the applicant’s evidence about the appeals she had made not to be credible.  It addressed the purported official document concerning her release from detention, and found a concern with the content of that notice.  It said it did not accept that the letter “contains truthful information and, when combined with the adverse findings that the Tribunal has made above, this also leads the Tribunal to not accept that the applicant had been detained”.  It continued:

    As the Tribunal has not accepted that the applicant was detained, the Tribunal also does not accept that the detention certificate dated 23 May 2007 provided by the applicant contains truthful information. The county information before the Tribunal indicates that irregular or improper issue of documentation is widespread and that any official document can be either bought or forged in China. The Tribunal discussed this country information with the applicant at hearing and she reasserted her claims. However, for the reasons given above, the Tribunal does not find the applicant to be a witness of truth and the Tribunal does not accept that the applicant was the manager of a factory or that she was detained.

    Taking into account all of the above problems with the applicant’s evidence, the Tribunal finds that the applicant is not a truthful or credible witness and rejects all the claims that the applicant has made. The Tribunal does not accept that the applicant was the owner/manager of a cement factory for 17 years. The Tribunal does not accept that she and her husband appealed about the demolition of the factory and that they were detained in May 2007 and warned not to lodge further appeals. The Tribunal does not accept that the applicant’s husband has made further appeals and that he is scared of the police for this reason.

15. For the reasons provided, the Tribunal was not satisfied that either of the applicants were persons to whom Australia owed protection obligations, so as to be able to satisfy the criteria for protection visas. 

16. The applicant now asks the court to set aside the Tribunal’s decision, and to remit the matter for further consideration by a different member.  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 evidence should be accepted as truthful in whole or part, nor whether she and her son qualify for protection visas or any other permission to stay in Australia. 

17. The grounds of her application are set out in her original application, and she has not filed an amended application nor any written submissions.  The grounds are:

    1.RRT did not trust the evidences such as photos and documents we provided.  We felt unfair treatment.

    2.The Tribunal failed to consider my son and me that we would face hardship and persecution in China.

    3.RRT protected the person like me who suffered and feared to go back.  But the member did not protect us.  It’s unfair.

18. These grounds were addressed by the applicant in her oral submissions to me.  She explained her reasons for thinking that the Tribunal’s decision was unfair, and said that she hoped to have an opportunity to have her claims considered by a different member. 

19. However, essentially, her arguments invited me to decide myself that she should have been believed, and that her evidence of persecution should have been accepted.  No other bases of procedural or substantive unfairness were identified, and I do not consider that her submissions raised any jurisdictional error affecting the Tribunal’s decision. 

20. The applicant also told the Court that she thought that the Tribunal might have had a bias against Chinese applicants, but that submission was based on the outcome of the case and no other aspect of the proceedings before the Tribunal.  In the present case I do not consider that the Tribunal’s conclusions, or its reasons, provide any support for the allegation of prejudice, and there is no support for the application of principles of apprehended bias (see Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]-[32]).

21. In relation to the three grounds in the application, I have considered how the Tribunal weighed the corroborative evidence submitted to the Department.  I do not consider that in the present case the Tribunal, “simply refused to consider the corroborative evidence”.  In my opinion, it assessed the contents of the documents, and considered their evidentiary weight in balance with all the other evidence (see Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50 at [38] and [39]). I do not consider that any jurisdictional error arises from the Tribunal’s reasoning about the documents.

22. I am satisfied the Tribunal made a genuine, rational and reasonable assessment of all the evidence given by the applicant and her son. 

23. I accept the Minister’s submission that the suggestion that jurisdictional error might arise due to the granting of visas to other people in the same situation, does not give rise to jurisdictional error (he cited Ibrahim v Minister for Immigration & Multicultural Affairs (2000) 60 ALD 465 at [19]-[21], Soboleva v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 353, Eloujenko v Minister for Immigration & Multicultural & Indigenous Affairs [2001] FCA 980 at [23]-[26] & SZMIP v Minister for Immigration & Citizenship [2009] FCA 217 at [26]-[32]). In any event, it is impossible to be satisfied that any other applicant in identical circumstances were granted refugee status in circumstances reflecting any error in the exercise by the present Tribunal member of her jurisdiction.

24. For the above reasons I am not satisfied that the Tribunal’s decision is affected by any jurisdictional error.  Its decision is therefore a privative clause decision and I must dismiss the application.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Smith FM

Date:  2 September 2010