SZOKI v Minister for Immigration - [2010] FMCA 912

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOKI v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 912

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), s.91R

Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71
Minister for Immigration & Multicultural & Indigenous Affairs v VWBA [2005] FCAFC 175
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259; [1996] HCA 6

Applicant:

SZOKI

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1056 of 2010

Judgment of:

Barnes FM

Hearing date:

1 November 2010

Delivered at:

Sydney

Delivered on:

1 November 2010

REPRESENTATION

Applicant:

In person

Solicitors for the respondents:

Australian Government Solicitor

ORDERS

The application be dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $4,600.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1056 of 2010

SZOKI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Refugee Review Tribunal dated 14 April 2010 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa. The applicant, a citizen of the People’s Republic of China, arrived in Australia in August 2009 and applied for a protection visa in September 2009. She claimed to fear persecution in China based on circumstances in which she claimed that government officials had failed to provide adequate compensation for the compulsory acquisition of her property and had threatened and mistreated her when she protested.
She claimed that on 10 January 2009 the local government announced to her family that their property was to be demolished to make way for further development in their village. They were offered compensation but this was not considered sufficient or reasonable. According to the applicant the authorities could not persuade her and her family to agree and they remained in their property until they were assaulted and forcibly removed on 16 March 2009.
The applicant claimed that she reported this to the police and that she petitioned local and higher authorities about the removal and compensation offer without success and that in June 2009 the police threatened them that if they made more petitions they would be sent to a detention centre or a labour camp.
The applicant attended an interview with the delegate of the first respondent. Her application was refused and she sought review by the Tribunal.
The applicant attended three Tribunal hearings. The only evidence before the court of what occurred at the Tribunal hearings is the Tribunal reasons for decision. In its reasons for decision the Tribunal set out in detail the applicant’s claims made in connection with her protection visa application, at the Departmental interview and at the hearings it conducted. It set out issues that it raised with the applicant in the hearings about her claims about past events and what she feared in the future.
In particular, the Tribunal raised with the applicant that it may not be satisfied that she would continue to protest if she returned to China. It gave her reasons why it may not be so satisfied and set out her response.
The Tribunal referred to independent information in relation to land acquisition in China and the consequences and shortcomings of the compensation system.
In its findings and reasons the Tribunal summarised the applicant’s claim as a claim to fear persecution from government officials who had “failed to provide adequate compensation for the compulsory acquisition of her property, and [had] threatened her when she protested”.
The Tribunal recorded the applicant’s claims about what had occurred in the past. It accepted “that the applicant and her family owned a property, which the authorities compulsorily acquired for local development in 2009” and demolished in March 2009. It accepted that the applicant was not satisfied with the amount of the compensation offered and eventually paid as well as with the decision to compulsory acquire her property. It accepted that she and her family “did not vacate [the] property by the required date and were hurt during the process of eviction”. It accepted that “the police took no action when the assault and damage to the home was reported” and “that the authorities then moved swiftly to demolish the home”.
However the Tribunal found “no objective basis to conclude that the land acquisition itself, the demolition of the applicant’s home, or the process that accompanied these, amounted to Convention-related persecution” within s.91R of the Migration Act 1958 (Cth). In particular, while noting the applicant’s claims about the inadequacy of the compensation, the Tribunal did “not accept on the evidence [before it] that the [compensation] offer involved any discriminatory action for a Convention reason”. It had regard to her evidence that none of the villagers were happy with the decision to compulsorily acquire their homes or with the compensation. It also had regard to the fact that the applicant did receive compensation. The Tribunal was “not satisfied that what [the applicant had] experienced amounted to persecution within the meaning of s.91R of the Act”.
While the Tribunal accepted that the applicant and her family were assaulted, that the assault in March 2009 was designed to evict the applicant and her family to make way for the demolition of the property, that the authorities had acted in a heavy-handed way and that the applicant and her family were injured, it did not accept that this amounted to Convention related persecution. It was of the view that the applicant and her family were assaulted because they had not complied with the notice to vacate the property, rather than for an “essential and significant” reason that was a reason within any of the Convention grounds. It was of the view that while the authorities “may have [had] scant regard for persons such as the applicant and her family”, the assault in question “occurred in the eviction and demolition process, and not for any Convention reason”.
The Tribunal then considered the applicant’s claims about past and possible future appeals and protests. It accepted that after the demolition of her property the applicant began to appeal and protest with other affected villagers and that her husband lost his job. It accepted “that they unsuccessfully appealed at the village, district and municipal levels”. It also accepted that the police assaulted the protesters and came to the applicant’s home twice and warned that if she continued she would be taken to a labour reform camp.
The Tribunal found that “the applicant and the other villagers stopped the [appeal] and [the] protesting as a result of the police assault and these warnings”. It accepted that the applicant and others had not appealed or protested “following the assault and the warnings and that she [had] not appealed or protested in any way since arriving in Australia”. It also accepted “the applicant’s evidence that she [had] lost contact with the other villagers since arriving in Australia”. At the same time, it accepted “the applicant’s evidence that her family [had] not been targeted in any way by the authorities since she ceased protesting in June 2009” and that her husband, who was living with his father who needed care, “would be employed but for the need to care for his father”.
The Tribunal accepted “the applicant’s evidence that nothing [would] happen to her on her return to China if she [did] not appeal or protest on her return”. Although the applicant had said she would “continue to protest and appeal if she were to return to China now or in the [reasonably] foreseeable future”, the Tribunal was not satisfied that she would do so. It took into account the fact that the applicant had stopped appealing and protesting in June 2009, had “not [kept] in contact with the other villagers” similarly affected and had not continued to appeal or protest from Australia. The Tribunal addressed the applicant’s claims that she had not engaged in such activities in Australia because “she did not know how to do so and because she wanted to leave it behind” and her claim that “she did not keep in contact with the other villagers because she wanted to leave it all behind”. The Tribunal was of the view that the fact the applicant had not sought to protest and appeal since June 2009 was “a clear indication that she [did] not intend to continue… appealing and protesting, particularly as she [had] not done so since arriving in Australia”. It recorded that the applicant had said that “the only reason she would be targeted on her return [was] if she continu[ed] to appeal and protest” and that “nothing [had] happened to her or her family once she ceased appealing and protesting”. The Tribunal repeated that it was “not satisfied that the applicant [would] continue to appeal and protest if she return[ed] to China”. As such it was “not satisfied she ha[d] a well-founded fear of Convention-related persecution”.
The Tribunal also had regard to the fact that the applicant did “not have a criminal record or any other official blemish that ha[d] in the past or may in the future create problems”. It found “the passage of time [to be] very significant” having regard to the fact that the “officials’ primary interest was to secure [the] property”. It acknowledged that “[a]ppealing and protesting might have motivated the police… assault on the villagers and [the] warning [to] the applicant against further appeals and protests”, but found “that the applicant’s interest in further appeals and protests ha[d] waned, as indicated by her ceasing any action since June 2009”. The Tribunal concluded that it could “detec[t] no genuine basis for any renewed interest [on the part of the applicant] in appealing or protesting”. It was “of the view that the applicant [was] looking to put the incident behind her, although [it] accept[ed] that she remain[ed] upset” with the acquisition and compensation. It referred to her confirmation that her husband “would be in employment if his father was not in need of care”. The Tribunal found “that the applicant fac[ed] no real chance of any Convention-related persecution arising from the compulsory acquisition of her property in 2009” and that “the authorities ha[d] no [current] adverse interest in the applicant or her family”.
The Tribunal addressed the applicant’s claim “that the process of appealing or protesting [was] seen as political and that she oppos[ed] the Chinese Communist Party”, but found that “the demolition of [her] home and its compensation [were] now settled”. It did “not accept that the applicant [would] continue to protest and appeal if she return[ed] to China”. It did “not accept that the applicant [had] any political opinion that [would] motivate her to engage in any relevant conduct if she return[ed] to China, or that she [would] have to suppress in order to avoid persecution”.
The Tribunal considered that the applicant may be a member of a particular social group, “such as persons… dissatisfied with property confiscation and compensation”, but given its finding of fact that the applicant did not have a well-founded fear of persecution for any reason, was not satisfied she faced “a real chance of persecution for reason of her membership of a particular social group”.
The Tribunal concluded that it had “considered the applicant’s claims and evidence in totality”, that it accepted her claims about suffering harm during 2009 during the eviction and as a result of appealing and protesting the amount of compensation, but found that she was not detained, did not have a criminal record and “had not come to the adverse attention of the authorities… before this time”. It did “not accept that [the] Chinese authorities, at any level, [had] any adverse interest in the applicant or her family, or that she [had] any political opinion or other attributes that may put her at risk of Convention-related persecution”.
In light of these findings the Tribunal found that there was “no real chance of the applicant suffering serious harm in China, arising from the 2009 land dispute or from any other factors”. It affirmed the decision under review.
The applicant sought review by application filed in this court on 13 May 2010. She filed an amended application on 27 October 2010. As it is not entirely clear whether she seeks only to rely on the grounds in the amended application I have considered all of the grounds raised by her.
First, in the affidavit accompanying her application, the applicant made claims about not wishing to return to China and her fears in that respect. This seeks impermissible merits review.
The first ground in the original application was:
RRT did not trust the evidences such as photos and documents I provided. I felt unfair treatment.
The decision of the Tribunal does not refer to any photographs or documents having been provided by the applicant and there is no evidence before the court of any such material having been provided in support of the application (except insofar as a copy of the applicant’s passport was provided to the Tribunal). In any event, as set out above the Tribunal accepted the applicant’s account of past events but found that the adverse treatment received in the past was not Convention-related and that she was not at any real risk of being subjected to adverse treatment in the future. Ground one is not made out.
Ground two was:
RRT did not make fair decision for me. RRT failed to consider the risk for me to go back.
Insofar as this ground takes issue with the fairness of the decision of the Tribunal rather than the procedure adopted by the Tribunal in dealing with the application for review and involves a disagreement with the Tribunal’s findings, such a complaint seeks merits review. Findings of fact are a matter for the Tribunal. Even if a different decision maker might have reached a different decision on the same facts, that does not establish jurisdictional error in circumstances where the findings that the Tribunal made were open to it on the material before it for the reasons that it gave. See generally Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259; [1996] HCA 6.
Further, the Tribunal accepted the truth of the factual history given by the applicant. Contrary to the assertion in this ground, it did consider the likelihood of the applicant suffering serious harm in China should she return. There is nothing in the material before the court to establish any lack of procedural fairness in the Tribunal’s treatment of the application for review.
I note in that respect that the applicant had the opportunity to and appeared before the Tribunal on three separate occasions and, as mentioned above, the Tribunal put to her questions concerning the determinative or fundamental issue on which it found against her, which was whether or not she would continue to protest the actions taken by the authorities and its concerns in that respect. No jurisdictional error is established on the basis contended for in ground two of the application.
Ground three of the application repeated part of ground two as follows:
RRT failed to consider the risk for me to go back.
As expressed and unparticularised this does not establish any jurisdictional error. Insofar as ground three is intended to take issue with the manner in which the Tribunal considered whether the applicant had a well-founded fear of persecution in the future and what would occur if she were to return to China, such a matter is addressed specifically in the ground contained in the amended application, filed on 27 October 2010.
The only ground in the amended application is as follows:
The Refugee Review Tribunal (RRT) failed to attain, or failed to exercise jurisdiction, by reason that, in the context of the RRT’s finding that the Applicant would not protest to the Chinese authorities on her return to China about the compulsory acquisition of her property, it failed to consider the Applicant’s claim that if she returned to China and appealed and protested to those authorities, they would carry out their previous threats of arrest and internment in a labour reform camp.
There are thirteen particulars to this ground which set out aspects of the applicant’s claim and the Tribunal’s findings. In essence, the particulars assert that in making the finding that it was not satisfied that the applicant would continue to protest and appeal if she were to return to China now or in the foreseeable future the Tribunal failed to refer to particularised claims of the applicant which had been accepted by the Tribunal. Thus the particulars refer to the applicant’s claims that “[t]he Applicant told the RRT that the Chinese authorities had tried to stop her from appealing, that the police had kicked her and they had gone to her home and threatened her that if she continued to appeal, they would send her to the reform authority”; “that she has not continued to appeal from Australia because her husband and the villagers were scared. The police might hit them and send them to labour reform camp”, that “there will only be trouble if she appeal[ed] again”; that “after her protests to the Chinese district and city authorities and following continued assaults and threats from the police “she dared not to appeal””; “that she didn’t do anything because she did not want to be detained””; “that she and the other protestors “were scared of being sent to a labour reform camp” and that “she has not appealed from Australia and the villagers have stopped appealing because they were threatened with labour reform camp if they continued”; that “she did not dare to protest, because the authorities would do what ever (sic) they wanted”; and that “if she protests she will be arrested and put in gaol”.
The particulars then refer to matters that the Tribunal is said to have accepted, being that “following the demolition of the Applicant’s property she commenced to appeal and protest with others likewise affected in the village”; “that the Applicant’s husband lost his job after she commenced appealing”; “that the Applicant and other protesters (sic) unsuccessfully appealed at the village, district and municipal levels until they were kicked by the police on one occasion and the police came to her home on two occasions warning her that if she continued she would be taken to a labour reform camp”; “that the Applicant and the other villagers stopped the appealing and protesting as a result of the police assault and these warnings”; and “that nothing would happen to her on return to China if she does not appeal or protest on her return”.
No written submissions were filed by or on behalf of the applicant. In her initial oral submissions she had nothing to add to this ground. In reply the applicant reiterated some of her concerns about what she said had occurred in China and addressed what she would do in the future and why, although, as I endeavoured to point out to her, merits review is not available in this court and those concerns did not establish jurisdictional error.
It appears that the ground asserted in the amended application seeks to rely on the principle considered by the High Court in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71, in which the High Court considered whether the Tribunal had fallen into error in considering a claim made by the members of a particular social group of homosexual men in Bangladesh in finding that there was no real chance of persecution in the future because the appellants had conducted themselves discreetly and would continue to do so. In that context the High Court considered whether the Tribunal had, in effect, required the visa applicants to act discreetly to avoid persecution.

In essence, the findings in S395/2002 indicate as a matter of principle that a Tribunal will err in a manner constituting jurisdictional error if it assesses a claim on the basis that an applicant is expected to take reasonable steps to avoid persecution if returned to his or her country or origin. The Tribunal’s task is to assess what the applicant will do, not what he or she should do (see Minister for Immigration & Multicultural & Indigenous Affairs v VWBA [2005] FCAFC 175 at [6] and S395/2002 per McHugh and Kirby JJ at [40] and [50], and Gummow and Hayne JJ at [80] and [82]). In such circumstances, as Gummow and Hayne JJ stated in S395/2002 at [82]:
To say that a decision-maker “expects” that that person will live discreetly may also be accurate if it is read as a statement of what is thought likely to happen. But to say that an applicant for protection is “expected” to live discreetly is both wrong and irrelevant to the task to be undertaken by the Tribunal if it is intended as a statement of what the applicant must do…if the Tribunal makes such a requirement, it has failed to address the fundamental question for its consideration, which is to decide whether there is a well-founded fear of persecution. It has asked the wrong question.
In addition, it is apparent from S395/2002 that if the Tribunal finds that a person will act in a particular way that will reduce a risk of persecution that would otherwise have been well-founded, the Tribunal must consider why the person will act in that way (see McHugh and Kirby JJ at [43] and [53], Gummow and Hayne JJ at [88] and VWBA at [6]). If the Tribunal fails to take that step, it will fall into jurisdictional error.
Further, as stated in VWBA, the High Court also suggested in S395/2002 (see McHugh and Kirby JJ at [56] and Gummow and Hayne JJ at [85] to [86]) that if the Tribunal finds the person will act in a way that reduces a fear of persecution, it will err if it does not also consider whether the person nevertheless has a well-founded fear of persecution because, despite the conduct reducing the risk, there is still a real risk that the person will be persecuted.
Having regard to the Tribunal reasons for decisions as a whole, in particular the findings and reasons part of the decision in which it reached the conclusion with which the amended application took issue, it is apparent that the Tribunal did consider the applicant’s claim that if she returned to China and appealed and protested the authorities would carry out their previous threats insofar as it was necessary to do so given the findings that it made.
The Tribunal set out the applicant’s claims it accepted, including the claims that she and the other villagers protested and appealed, and that she was warned by police that if she continued she would be taken to a labour reform camp. It also accepted her evidence that she and the villagers did not appeal or protest following the assault and the warnings and that she had not appealed or protested in Australia. Critically, however, the Tribunal found that although the applicant had said that she would continue to protest and appeal if she were to return to China, it was not satisfied that the applicant would continue to protest and appeal if she returned to China.
In this respect the Tribunal correctly addressed not what the applicant should do but rather what the applicant will do. It also addressed why she would act in that way. It had regard to a number of factors, including the absence of any appeal or protest after June 2009, the fact that the applicant had not kept in contact with affected villagers and that she had not appealed from Australia. It considered her claim that she did not know how to do so and also that it was because she wanted to leave it all behind and found that the fact that the applicant had not sought to protest and appeal since June 2009 was a clear indication she did not intend to continue to appeal and protest, particularly as she had not done so since arriving in Australia. The Tribunal found the passage of time to be significant. While it accepted that appealing and protesting might have motivated the past police assault and warnings (in other words the past conduct it accepted had occurred), it found that the applicant’s interest in further appeals and protests had waned, as indicted by her cessation of action since June 2009. It found no genuine basis for any renewed interest on her part in appealing or protesting. In particular, it was of the view that the applicant was looking to put the incident behind her. It also did not accept that the applicant had any political opinion that would motivate her to engage in relevant conduct if she returned to China or that she would have to suppress in order to avoid persecution.
The Tribunal also addressed the issue of whether the applicant would nevertheless have a well-founded fear of persecution, but found on her evidence that the authorities had no adverse interest in her and that there was no other basis on which she would have a well‑founded fear of persecution were she not to continue to appeal and protest on return to China.
In other words, the Tribunal made positive findings that the applicant would not engage in the particular conduct of appealing and protesting, notwithstanding her evidence that she would continue to do so. It gave reasons for this finding and also addressed any residual well-founded fear of persecution. Notwithstanding that it may have been open to a different decision-maker to draw a different conclusion on such evidence, it cannot be said that the Tribunal findings were not open to it for the reasons that it gave on the material before it.
Insofar as it is based on the principles in S395/2002, the ground in the amended application is not made out.
If it is intended to be claimed that the Tribunal did not refer to the claims of the applicant which it had accepted - such a contention is not made out. It is apparent from the Tribunal decision that the Tribunal understood and accepted the applicant’s claims about what had occurred in the past, but nonetheless for the reasons that it gave, did not accept that she would continue to protest and appeal if she were to return to China. It considered the claims that she made about past events and her claims as to what she would do in the future in the context of reaching that conclusion, but did not accept that the applicant would be motivated to further protest or appeal, having regard to her failure to do so in Australia, her lack of contact with the villagers, her evidence as to wanting to leave it all behind her and the passage of time.
It has not been established that the Tribunal erred by failing to consider the applicant’s claim that if she returned to China and appealed and protested, the authorities would carry out their previous threats of arrest and internment in a manner constituting jurisdictional error. As set out above, the Tribunal did not accept that the applicant would continue to protest and appeal. It considered why she would act in that way, having regard to the material before it and it also accepted her evidence that the authorities had no other interest in her. In these circumstances it was not necessary to address further the applicant’s claims about the future.
It has not been established that the Tribunal fell into jurisdictional error in the manner contended for in the amended application. As no jurisdictional error has been established, the application must be dismissed.
RECORDED : NOT TRANSCRIBED
The applicant has been unsuccessful and there is nothing in the circumstances of this case to warrant a departure from the normal principle that the unsuccessful applicant should meet the costs of the first respondent. The amount sought is appropriate having regard to the nature of this and other similar matters.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Barnes FM

Date: 29 November 2010