SZOIC v Minister for Immigration
[2010] FMCA 591
•4 August 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOIC v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 591 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – allegation that the Tribunal’s decision affected by jurisdictional error by reason that it did not believe the applicant, was unfair, did not consider applicant’s claims – matter turns on its own facts. |
| Migration Act 1958, s.474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 |
| Applicant: | SZOIC |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 769 of 2010 |
| Judgment of: | Cameron FM |
| Hearing date: | 4 August 2010 |
| Date of Last Submission: | 4 August 2010 |
| Delivered at: | Sydney |
| Delivered on: | 4 August 2010 |
REPRESENTATION
| The Applicant appeared in person. |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $3,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 769 of 2010
| SZOIC |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of China where, she claims, her husband’s business was subject to government acquisition. She alleges that her husband refused to accept the government’s compensation offer, was detained and tortured in prison and is now in hiding.
The applicant claims to fear persecution in China for reasons of membership of the family of a person with an adverse political opinion and as a person to whom an adverse political opinion will be imputed.
After her arrival in Australia on 22 December 2007, the applicant lodged an application for a protection visa. This was refused by a delegate of the first respondent (“Minister”) on 19 October 2009. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 14 of the Tribunal’s decision.
Primary application
In her visa application, the applicant made the following claims:
a)she was born in Fujian in China, was thirty-seven years old, had not completed any formal education and worked in the seafood business from 1985 to 2007. In a later written statement, however, she said that she never worked in China and only stayed at home to do housework;
b)in December 2007 she came to Australia on a student guardian visa. That visa expired on 31 July 2009;
c)in 2000 the applicant’s husband had opened a seafood store;
d)in February 2009 the local government, together with a real estate developer, began developing a piece of land which required the demolition of her husband’s seafood store. The government agreed to compensate them;
e)on 1 April 2009 the government asked her husband to sign a compensation agreement. The offer was only RMB 10,000 and her husband refused to sign as the seafood store yielded an annual profit of RMB 50,000 to 60,000;
f)local authorities rounded up the people who would not sign the compensation agreement and asked them to re-evaluate their position. The authorities also threatened these people, saying that there would be severe consequences if they did not sign;
g)her husband decided to appeal to Beijing;
h)on 2 June, people who did not sign gathered at her home discussing the appeal. Suddenly the police came in and arrested them. They were beaten overnight. Her husband told her on the phone that they shone strong lights in his eyes to force him to sign. He refused to sign and passed out from the torture. Her husband was secretly held for half a month before he was released;
i)her mother and father-in-law said that her husband was tortured and suffered from malnutrition;
j)she “persuaded” her husband to sign the agreement but he insisted on getting justice;
k)her husband said that local government came to warn him numerous times that if she returned to China they would charge her with treason for opposing the economic development of the nation by persuading her husband; and
l)if she returned to China she would be put in gaol.
On 12 October 2009, the applicant attended an interview with the Minister’s delegate where she made the following additional claims:
a)in response to a question as to why she waited until July 2009 before making her protection visa application, having arrived in Australia in December 2007, the applicant responded that she wanted to go back to China but something happened to her husband and that her husband did not want her to go back because she would be in danger from the government;
b)
her husband was arrested and detained for half a month in
June 2009;
c)her husband and daughter were both in hiding; and
d)if she returned to China the authorities would arrest her to try to force her husband to sign the compensation agreement.
Tribunal hearing
At the Tribunal hearing on 8 February 2010 the applicant made the following additional claims:
a)her husband, her daughter, her parents and her mother-in-law are in China. Her father-in-law died when her husband was eleven years old;
b)it was in 2000 that she first became involved, from time to time, with the seafood business, not 1985 as her visa application stated;
c)the redevelopment was first discussed in April 2009, after she had left China;
d)she had last spoken to her husband three months earlier. She did not know where he was at that time. When she last spoke to him, he did not say where he was nor did she ask him;
e)her husband was beaten in custody. Her husband’s elder sister told her about this. Her husband dared not tell her about it;
f)in June about five or six police came to their home and arrested the applicant’s husband. He was alone at the time. She later stated that he was arrested with other people who were at her home;
g)her husband could not be detained for a period longer than he was because he had not committed any serious crime;
h)in relation to the warnings her husband received once he had gone into hiding, she said that occasionally the police came by and told the neighbours. Sometimes her husband’s sister brought her daughter to their house to have a look and they heard about the warnings from those neighbours. The applicant’s sister-in-law was able to contact the applicant’s husband to tell him about these police warnings;
i)she was able to phone her husband on his mobile phone other than at times when it was switched off; and
j)her sister-in-law is sometimes in contact with her husband and may know where he is but does not tell the applicant very clearly.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal accepted, on the basis of country information, that there is widespread corruption, sometimes involving local officials, regarding land acquisition in China. It noted that government is attempting to crack down on such corruption. The Tribunal also accepted that while petitioning is an accepted practice in China, local authorities may see petitioners as a threat, particularly those who take their petitions to the capital or organise group protests, and may detain or mistreat them;
b)the Tribunal accepted that the applicant’s husband owned a seafood shop and that the shop is no longer trading because of harassment in connection with a proposed property development. The Tribunal also accepted that the applicant’s husband was detained by the local police in June 2009;
c)however, because the applicant did not provide a clear and consistent account of the dates or the sequence in which the events occurred and she did not provide any corroborative evidence, the Tribunal was not satisfied that the claimed events affecting the applicant’s husband occurred;
d)in relation to the claim that the applicant’s husband was beaten and tortured in detention, the Tribunal noted that the applicant gave inconsistent information about how she came to know of this treatment and of the malnutrition her husband is said to have suffered while in detention. It found that the applicant had not been a witness of truth in relation to the treatment of her husband while in detention and it did not accept her claims that her husband suffered serious physical ill-treatment by the Chinese authorities during detention;
e)in relation to the applicant’s claim that on return she would be charged with treason for opposing the economic development of the nation by persuading her husband to not accept the offer of compensation, the Tribunal noted that in the sources it consulted it had not found any reference to a crime of treason through opposing the economic development of the nation;
f)in relation to her claim that she could be accused of a very serious offence and could be detained for quite a long time, the Tribunal noted that this claim seemed logically inconsistent with the applicant’s claim that her husband could not be detained for a period longer than two weeks because he had not committed any serious crime;
g)the Tribunal did not accept that there was a real chance that the applicant would suffer persecution for reasons of membership of the family of a person who is imputed with an adverse political opinion because:
i)she had no direct involvement with any of the events concerned and specifically noted that she had not refused to sign any agreement and had not organised any protest or travel to Beijing with a petition;
ii)she had not been in China since December 2007; and
iii)she had tried to persuade her husband to accept the compensation agreement, rather than the reverse;
h)the Tribunal did not accept the applicant’s claim that her husband had received warnings that she would be detained because, when it questioned her on her evidence that her husband was in hiding when released from detention, she alleged that these warnings in fact had come through her sister-in-law who received them from neighbours. The Tribunal found this explanation to be an invention;
i)additionally, the Tribunal did not accept that the applicant and her husband, while they cannot presently work in their shop, would be denied all employment such that the family’s ability to subsist would be compromised. The Tribunal did not accept that the applicant will suffer serious harm amounting to persecution on this basis; and
j)the Tribunal noted that at the end of the hearing, it had suggested to the applicant that she could consider anything further she wished to say and send it in writing, however, nothing further was received from her.
Proceedings in this Court
The grounds of the application commencing these proceedings were pleaded as follows:
(1)RRT did not believe me as I have not evidence. They did not believe the whole things I said are true. It is unfair.
(2)RRT use failed cases against our application. I hope Federal Magistrates Court could give me fair decision.
(3)RRT did not consider that I would be put in jail if we return. I have risk to go back to China.
Ground 1
The first ground of the application complains that the Tribunal did not believe the applicant because she did not have evidence. The first thing to be said in relation to this ground is that the Tribunal did accept that part of the applicant’s allegations concerning the compulsory acquisition of her husband’s shop and the likelihood of corruption in the resumption process. What it did not accept was that the applicant had a well-founded fear of persecution for reasons associated with that compulsory acquisition.
In relation to the Tribunal’s adverse findings concerning the applicant’s claim to fear persecution, it is true that the Tribunal did not think that the evidence supported a conclusion that a charge of treason was a likely result of any support which the applicant might have given to her husband’s position or that she would be imputed to share her husband’s views, given that she had had no direct involvement in any of the events, had not even been in the country at the relevant time, and in any event, had attempted to persuade her husband to accept the compensation offered. The fact that the Tribunal did not think that the evidence supported the applicant’s claim to fear persecution was a matter within its jurisdiction and is not one with which the Court may interfere.
The Tribunal observed that the applicant had not tendered evidence which was corroborative of her allegations, and perhaps she intends to allege that the Tribunal required her to have corroborative evidence before it would find in her favour. However, my reading of the Tribunal’s decision does not bear out such concerns. The Tribunal did not treat the absence of corroborative evidence as of any particular significance for its decision. It simply noted this fact as part of its overall consideration of the applicant's case and the evidence advanced in its support.
But, in any event, the first ground of the application ignores the fact that the Tribunal identified important inconsistencies and contradictions in the applicant’s versions of events which led it to conclude that she had not been telling it the truth. The Tribunal’s conclusion concerning the applicant’s credibility was a matter also within its jurisdiction, indeed, a matter par excellence for it: Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 per McHugh J at 423 [67].
The final allegation in the first ground of the application is that it was unfair that the Tribunal did not believe the applicant. This is no more than a complaint that the Tribunal did not make findings of fact which were favourable to her. For the reasons already given, the Tribunal’s findings on the facts, including on the credibility of the applicant, were matters for it and not ones in which the Court can interfere as its jurisdiction is limited to reviewing the Tribunal’s review for jurisdictional error. None of the matters raised by the first ground of the application is concerned with identifying jurisdictional error on the Tribunal’s part and none of them suggests the existence of such an error.
Ground 2
The allegation that the Tribunal “[used] failed cases against our application” has no apparent meaning in the context of this matter, especially as it has not been particularised. The Tribunal used no cases – whatever that term is meant to mean in this context – against the applicant. It simply weighed the evidence and reached a conclusion which was unfavourable to her.
Ground 3
The essence of the third ground of the application is that the Tribunal did not consider a particular aspect of the claims which she had made. The summaries of the evidence cited by the Tribunal and of the reasons it gave for its decision set out earlier in these reasons demonstrate that the Tribunal did consider this aspect of the applicant’s claims. Consequently, this allegation fails on the facts.
Conclusion
None of the matters which the applicant has alleged in her application leads me to conclude that the Tribunal’s decision is affected by jurisdictional error. In those circumstances, the application will be dismissed.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 11 August 2010
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