SZOJZ v Minister for Immigration
[2010] FMCA 856
•1 November 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOJZ v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 856 |
| MIGRATION – RRT decision – Chinese applicant claiming persecution arising from mistreatment by local government – disbelieved by Tribunal – no ground of jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth) |
| Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28, (2001) 179 ALR 425 |
| Applicant: | SZOJZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1002 of 2010 |
| Judgment of: | Smith FM |
| Hearing date: | 1 November 2010 |
| Delivered at: | Sydney |
| Delivered on: | 1 November 2010 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Mr R Baird |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $4,200.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1002 of 2010
| SZOJZ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant entered Australia in July 2009, relying on a fraudulently altered United Kingdom passport containing an Australian visitor’s visa. Other stamps in the passport showed the holder making trips to Fiji and back to China via Hong Kong before coming to Australia. The applicant also presented a Chinese passport in a different name. On 7 September 2009 he lodged a protection visa application in the name in the Chinese passport. He was assisted by a migration agent, Weiming Qian.
A statement attached to the visa application set out a history upon which the applicant claimed to fear return to The People’s Republic of China. The applicant referred to several incidents involving the local government in his area of Fujian. He claimed that a successful hoggery business he pursued with partners between 2002 and 2006 had come to an end, when the land was appropriated for the construction of a railway. He blamed the “town leaders” for docking money from the compensation, so that it was substantially reduced.
He said a further incident with the local government ended his subsequent business, which was growing vegetables on land leased from the local government between 2007 and February 2009. He said this venture came to an end when new tenants arrived, claiming that the applicant’s lease had been terminated because he did not respond to demands to pay a substantially increased “annual contract fee”. When protesting about this in a discussion with the director of the local government: “I was pretty upset and conflicted with him physically”, resulting in the applicant being detained for seven days on a charge of malicious injury. When he was released, he found that he had lost everything in relation to the farm land.
He claimed to have taken a complaint letter to the municipal bureau on 2 March 2009, and on 15 March 2009:
… while I was walking on my way home, I was stopped by several strong guys. They did not say anything, and started to torture me. My face was beaten to bleeding and my body was hurt. The torture lasted about ten minutes. Then a guy threatened me that if I go to appeal again, they will kill my family. I realized at once that the matter of appeal has been unfolded.
He and some friends demonstrated on 3 April 2009, and “because I am the head, I was detained for 15 days on the charge of disturbing security of society”. He received further warnings against appealing, and spent a large sum of money to arrange to travel to Australia. After he left China, his wife mailed appeal material on his instructions, and as a result police searched his home and warned his family. He said: “I dare not to go home and afraid of being persecuted by government”.
His statement typed in Chinese, from which the English statement had been translated, was shown to the Department, and the applicant subsequently acknowledged that this was his statement. No independently corroborative evidence of his history was ever provided to the Department or on appeal to the Tribunal.
A delegate interviewed the applicant on 24 November 2009. He then made a decision to refuse the visa on 15 December 2009, giving several reasons. These expressed doubts about the applicant’s veracity, including because he had not on his protection visa application form disclosed a previous unsuccessful application for an Australian visa made in 2006. The delegate also noted a discrepancy between the visa statement and the applicant’s evidence at interview, as to the date upon which he was beaten up. The applicant had told the delegate that this had occurred on 2 March 2009 on his way home from lodging an appeal letter, rather than later on 15 March 2009. The delegate also thought it implausible that the applicant would have instructed his family to appeal after he had arrived in Australia.
On appeal, the applicant was represented by his migration agent, who did not attend the hearing nor make any submissions on behalf of the applicant.
The Tribunal invited the applicant to comment in writing upon his inconsistent evidence about the date when he was beaten up. In response, the applicant wrote to the Tribunal claiming that, in fact, he had been beaten up on both occasions, and attempted to explain why the first attack was not mentioned in his written statement.
The applicant attended a hearing of the Tribunal on 23 March 2010. A transcript of the hearing is not in evidence, although I note that the applicant was given the recording at the conclusion of the hearing. The Tribunal set out a detailed account of the hearing in its statement of reasons, and I accept that account. I am unable to detect in the applicant’s oral submissions today any point in the Tribunal’s account where he claims inaccuracy was shown as to what was said at the hearing.
According to the Tribunal’s description, it questioned him about the incidents relating to the end of his farming venture, including by drawing his attention to his inconsistent statements about being beaten‑up. The applicant had also claimed to the Tribunal that a further two incidents had occurred, which had not been previously referred to. The Tribunal noted some inconsistencies in relation to his claims to have been detained, and concerning his petition and appeal activities. These matters subsequently were relied on by the Tribunal as reasons for not accepting the material parts of his claimed history.
The Tribunal also questioned the applicant concerning his two passports and the stamps appearing in them. It also questioned him about the previous refusal of an Australian tourist visa. On the Tribunal’s description of the hearing, these matters might have supported concerns about the applicant’s credibility, but ultimately the Tribunal did not rely upon them as its reasons for disbelieving the applicant’s refugee claims.
The Tribunal made its decision on 13 April 2010. Under the heading “Findings and Reasons”, the Tribunal accepted that the British passport was bogus, and that the applicant was a national of China.
The Tribunal accepted that the applicant may have been involved in a hoggery whose land was acquired for a railway project. It thought the circumstances described did not amount to persecution for the purpose of the Migration Act 1958 (Cth), and also that there was no real chance that he would be persecuted in relation to those events in the future.
In relation to his farming venture, the Tribunal said:
The Tribunal also accepts that the applicant operated a farm and that rent for the farm was increased to an amount that the applicant considered to be unreasonable, and he refused to pay the increased amount. However, the Tribunal finds that the applicant’s material claims for protection lack credibility and cannot be accepted. For the reasons explained below, the Tribunal finds that he does not have a well‑founded fear of persecution for a Convention related reason. The Tribunal notes the following particular issues of concern in regard to his evidence.
The Tribunal identified the clearly inconsistent evidence which had been presented by the applicant from time to time concerning the number of times he was beaten and the extent of injuries he sustained. The Tribunal did not accept the applicant’s explanations for the inconsistencies. It also referred to inconsistent evidence the applicant had given concerning the length of his detention following his appeal in April 2009, and also other aspects of his evidence about his petitions.
The Tribunal concluded:
103.Based on the evidentiary concerns noted in the previous paragraphs, the Tribunal finds that the applicant is not a credible witness. The Tribunal considers that the applicant was not beaten on 2 March 2009 and he did not sustain any injuries. The Tribunal considers that the applicant made the claim that he sought justice again at the municipal bureau only for purpose of explaining his inconsistent claims about a beating on 15 March 2009. The Tribunal does not accept that he attended the municipal bureau on 15 March 2009, or that he was beaten or that he sustained any injuries. The Tribunal does not accept that the applicant had a fixed term contract for five years from 2007, or that land and crops were taken from him in the way he describes. It does not accept that the applicant attended the offices of director Li on 15 February 2009, or that there was any confrontation with him. It does not accept that he pursued an appeal in regard to the land or that he asked his wife to secretly mail the appeal papers on his behalf. It does not accept that he had a confrontation with the supervisor on 20 April 2009 or at any time, or that the police or anyone is pursing him in regard to that or any other incident. The Tribunal does not accept that his wife and children are in hiding for the reason he claims.
104.The Tribunal has also considered the applicant’s future conduct in regard to his claims. It has not accepted that the applicant pursued an appeal in China in regard to his land. He did not pursue an appeal in regard to the hoggery. The Tribunal considers that he would not pursue an appeal in the future, not through fear of persecution, but because he has not been so involved in the past. The Tribunal does not accept that he will be persecuted in the future for any Convention reason. As such, the Tribunal is not satisfied that the applicant has a well founded fear of persecution if he returns to China now, or in the reasonably foreseeable future.
The applicant now asks the Court to set aside the Tribunal’s decision and to remit the matter for further consideration. I have power to make these orders only if the Tribunal’s decision is affected by jurisdictional error. I do not have power myself to decide whether the applicant should have been believed, nor whether he qualifies for a protection visa or any other permission to stay in Australia.
The applicant’s grounds for his application are found in his original application, and he has filed no amended application nor written submissions addressing them. The application has an attachment which states:
Orders sought by the Applicant:
1.I disagree with Immigration and RRT’s decision. They did not consider that I will be in danger if I return.
2.RRT did not consider that I will be persecuted and in big trouble if I return home.
3.RRT member questioned me at hearing made me feel very up sad. They never trusted me and I do not think they had the right attitude to my application. RRT should grant my application.
The Grounds of the Application are:
1.I am a Chinese citizen my land has been taken away by the government. I had been arrested by the corrupted government and police.
2.I can not go back to China since I am very scared to be sentenced.
3.The Chinese government still looks for me if I return. My family told me not to go back since they came to my home and asked where I am about.
No error by the Tribunal is alleged under the ‘grounds’ heading, and the ‘grounds’ seem best located under the ‘orders’ heading.
The applicant’s assertions in paragraph 1 and 2 that the Tribunal arrived at the wrong decision, and that he will be persecuted, do not raise grounds of jurisdictional error. They invite the Court itself to reconsider the merits of the protection visa application for itself. But this is not the Court’s function.
In his oral submissions, the applicant made specific criticisms of the Tribunal’s decision. However, these appeared to be based on a misapprehension as to how the Tribunal had reasoned in relation to his claims. Thus, the applicant said that the Tribunal was wrongly influenced by a misapprehension about his evidence concerning his unsuccessful tourist visa application in 2006. It is correct that this was a matter addressed by the delegate, and that the Tribunal discussed the matter with the applicant (see paragraphs 67 to 69 of its reasons). However, the Tribunal did not treat that matter as one of the reasons for disbelieving the applicant in its ultimate conclusions.
The applicant also thought that the Tribunal had misunderstood his claims in relation to the cessation of his hoggery business. In effect, he submitted that the Tribunal had wrongly thought that this was the basis for his fears of persecution, and had misunderstood that his true claims concerned his eviction from his farm by the local government and its responses to his subsequent efforts to appeal.
However, I do not consider that the Tribunal did misunderstand his claims in any manner, either in fact or as possible jurisdictional error. In my opinion, the Tribunal shows that it fully and accurately understood the applicant’s claimed history. It put at the forefront of its consideration whether it accepted his history of persecution arising from the termination of his farming venture in 2009.
It is correct that when the Tribunal addressed the future position of the applicant if he returned to China in paragraph 104, the Tribunal referred to “he did not pursue an appeal in regard to the hoggery”. However, this was a subordinate part of the Tribunal’s reasoning assessing his future risk of persecution. The central element in the Tribunal’s conclusion that the applicant did not have a well‑founded fear of persecution if he returned to China, was that he had not been “involved in the past” in matters in which he had been persecuted or which might point to persecution in the future. In effect, the Tribunal formed an assessment that the applicant was not a person who would be at risk of being persecuted for imputed political motives or any other Convention reason in the future arising from his past history.
I am unable to identify in the Tribunal’s reasoning any jurisdictional error, and I consider that the Tribunal’s reasoning was based on probative material and followed rational and reasonable reasoning, when assessing the credibility of the refugee claims made by the applicant.
The third ground in the application, might appear to suggest bias by the Tribunal. However, I am unable to identify in the material before me any substance for a concern that the Tribunal might have closed its mind to a proper assessment of the case, or that it might have conducted itself so as to give rise to a relevant apprehension (see Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 and Re Refugee Review Tribunal; Ex parte H [2001] HCA 28, (2001) 179 ALR 425).
For all these reasons, I have not been able to find grounds for setting aside the Tribunal’s decision. The application must therefore be dismissed.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Smith FM
Date: 11 November 2010
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