SZOMH v Minister for Immigration
[2010] FMCA 757
•29 September 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOMH v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 757 |
| 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 the applicant’s statement submitted with his visa application may have been inaccurately translated and by reason that the Tribunal failed to consider the danger and persecution faced by the applicant were he to return to China, failed to trust the applicant and did not have the right attitude to the review application. |
| Migration Act 1958, ss.425, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 |
| Applicant: | SZOMH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1368 of 2010 |
| Judgment of: | Cameron FM |
| Hearing date: | 29 September 2010 |
| Date of Last Submission: | 29 September 2010 |
| Delivered at: | Sydney |
| Delivered on: | 29 September 2010 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Clayton Utz |
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 1368 of 2010
| SZOMH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of China. He claims that in 2008 local authorities expropriated his land and demolished his house. He claims that the local authorities refused to compensate him after he fought with some of their officials. He claims that he later filed a lawsuit against them and that, as a consequence, the local police are looking to arrest him.
The applicant claims to fear persecution in China because he lodged a civil claim against the authorities.
After his arrival in Australia on 8 August 2009, the applicant lodged an application for a protection visa. This was refused by a delegate of the first respondent (“Minister”) on 21 January 2010. 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 – 12 of the Tribunal’s decision.
The applicant made the following claims in a statement attached to his protection visa application:
a)he worked in Inner Mongolia from 1990 to 1994. In 1995 he returned to his village in Fujian province and commenced farming;
b)in 2003 he started a car care business in Nanjing city with his cousin-in-law. The business did well;
c)in 2007 he was able to build a new house on land which he had purchased in his village earlier that year. He borrowed money to do so and planned to pay back those debts using the profits from his car care business. However, in 2008 his business shrank dramatically and he could not afford to repay all the money he owed, including a fine imposed because he and his wife had had a third child contrary to China’s one child policy;
d)around this time the “country government” implemented a new construction policy in his village. Under the policy, the houses in his village, including his new home, would be torn down and rebuilt. The only compensation which was offered was a new piece of land allocated by the government. This represented a huge loss to the applicant;
e)the country government refused to listen to any complaints so the applicant, along with two of his neighbours, appealed to the “town government”. They wrote letters to the town government asking for reasonable compensation but did not receive a reply;
f)on 20 October 2008 the applicant and his two neighbours visited the offices of the town government but a security guard at the gate refused them entry. They tried to break past but were attacked by several men, taken around to the back door and then beaten fiercely;
g)on 5 November 2008 the demolition crew arrived in his village, accompanied by some officers and the police. There was a confrontation during which the applicant and his neighbour “had a body touch with the officers”. They were subsequently accused of attacking the officers and of disturbing the social order and were detained for fifteen days at the Fuqing detention centre. As a further penalty, the land which they were supposed to receive as compensation was confiscated. The applicant was left with nothing but debts;
h)he was required to report to the police after his release. The police also came to his home to check on him. In order to avoid police harassment the applicant fled to Nanjing;
i)on 3 February 2009 the applicant sued the town government through the Fuzhou district courts for violating his property rights. His lawsuit was dismissed about a month later;
j)on 23 March 2009 he was advised by a friend that the police in his home town had accused him of slander, repeatedly disturbing the social order and organising people “to make trouble to the government”. His friend also told him that the Nanjing police had agreed to co-operate with the police in his home town to arrest him. The applicant fled to a remote rural area in Nanjing and, through his friend, made arrangements to escape overseas;
k)he travelled to Italy via Hong Kong two months later. However, the tour guide kept his passport and luggage and he was under strict and continuous scrutiny. He had no chance to escape and returned to China six days later, hiding in Guangzhou province to avoid arrest. During this period, his family told him not to come home as the police continued to search for him; and
l)with help from his former neighbour, he applied for and was granted a tourist visa to come to Australia.
At a hearing before the Tribunal on 30 March 2010, the applicant made the following additional claims:
a)he lived in a village in Jiangjing town in Fuqing city (in Fujian province) from the time he was born until the time he came to Australia. He then said that he lived in Inner Mongolia from 1990 to 1994, returned to his village in 1994 and then lived in Nanjing from 2003 until April 2009. In April 2009 he went to Italy to escape persecution and then went to Guangzhou where he lived for four months before coming to Australia;
b)it was the local police in Jiangjing town who were after him. The Jiangjing police wanted the police in Nanjing to pressure the applicant to stop him from appealing. They also wanted to arrest him because they were angry that he beat them up during the demolition;
c)he first heard about the proposed demolition in September 2008 when he was in Nanjing. On 20 October 2008, the day after he came home, he went to the town government and spoke to a government official who told him that the new construction code was going to be enforced;
d)he then said that when he came back from Nanjing he went to the authorities to make enquiries. When he found out that the compensation was only for the land, he went home and wrote a letter with his neighbour. When they did not get a response, they went to the town government. This occurred in September 2008. They visited the town government again on 20 October 2008. He said that, including the writing of the letter, this was the “third time”. On this occasion he was beaten by a security guard;
e)his house was demolished on 5 November 2008. He did not receive any land compensation because “they” were angry that he had appealed and that he had abused and hit them when they demolished his house;
f)the applicant initially said that he had left the documentation relating to the demolition of his house in China. He then said that everything had been done orally and there was no written documentation;
g)nor he did have any documentation in relation to his appeals. He just asked the town government to compensate him; and
h)he did not have any problems exiting China.
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 applicant gave inconsistent evidence in relation to significant aspects of his claim concerning the demolition of his house and his subsequent appeals. For example:
i)in the statement accompanying his protection visa application the applicant claimed that when he went to the offices of the town government on 20 October 2008 he was turned away and beaten by a security guard and thus did not get a chance to complain. However, according to the account he gave at the Tribunal hearing, the applicant spoke to a government official on 20 October 2008 who told him that the new code was going to be enforced;
ii)his description of the sequence of events as between his statement and the hearing was contradictory;
iii)the reasons he gave in relation to why the officials and the police were angry with him were contradictory; and
iv)he initially told the Tribunal that the documentation in relation to the demolition of his house was still in China but then said that there was no documentation and everything had been done orally;
b)the applicant’s evidence in relation to where he lived and worked in China was contradictory. For example, in his visa application form the applicant claimed that he had lived in his village in Fuqing city from 1999 to 2009. However, at the hearing he said that he had lived in Nanjing from 2003 to 2009. He also failed to indicate in his visa application form that he had lived in Inner Mongolia from 1990 to 1994. The Tribunal found that these differences were relevant because they touched upon his claim that he was the victim of expropriation and housing demolition in his village (in 2008) yet he claimed that he had lived in Nanjing from 2003;
c)the Tribunal accepted independent country information which said that the process of land compensation in China is governed by the Land Administration Act of China 2004. The Tribunal noted that, under that Act, the Chinese government can appropriate land but is required to compensate those who are affected. Further, claims for compensation are subject to procedural requirements and claimants can access a mediation or a court system to seek compensation and, if people affected by a compulsory acquisition are concerned that a government official has not acted correctly in relation their claim, they can lodge complaints about this. However, the applicant’s claims were not consistent with this process: he claimed that the offer of compensation had been made orally, that he was given no documentation in relation to the offer, that he was told that he could not complain or appeal and that, in the end result, he did not receive any form of compensation;
d)the Tribunal accepted independent information to the effect that there is computerised information about Chinese citizens kept at exit points in China and that if the authorities did not want a person to leave they would be able to restrict that person’s exit. The fact that the applicant was able to depart China twice and re-enter without any problems caused the Tribunal to question the truthfulness of his evidence that he was a person of interest to the authorities;
e)the Tribunal considered that a person who feared persecution and then entered another country to seek protection would do so at the earliest opportunity. The fact that the applicant did not claim protection in Italy caused the Tribunal to question the truthfulness of his claim that he had a well-founded fear of persecution; and
f)in light of these factors, and considered cumulatively, the Tribunal found that the applicant was not a witness of truth and, accordingly, rejected all his material claims.
Proceedings in this Court
Under the section “Orders sought by Applicant” in the attachment to his application, the applicant states:
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 applicant also pleads the following grounds in his application:
1.I am a Chinese citizen my land has been persecuted by Chinese 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.
“Orders sought by Applicant”: grounds 1 and 2
Grounds 1 and 2 under the heading “Orders sought by Applicant” are essentially the same and allege that the Tribunal did not consider the applicant’s claim to fear harm were he to return to China. The simple fact is that the Tribunal did consider those claims but rejected them together with the narrative of events supplied by the applicant because it found that he had not been telling the truth. It did so after a proper consideration of the evidence which had been presented to it. As the Tribunal’s decision does not demonstrate the error which the applicant alleges, the major element of the first and second grounds raised by the application is not made out.
Further, the applicant’s statement in the first ground that he disagrees with the Tribunal’s decision is not a proper ground for review of that decision. It invites the Court to review the Tribunal’s findings on the merits of the application before it and the Court cannot do this.
“Orders sought by Applicant”: ground 3
The third ground of the application under the heading “Orders sought by Applicant” suggests that the Tribunal did not approach the review with an open mind. It does appear from the Tribunal’s summary of its hearing which is contained in its decision record that it was quite pointed in its comments on the credibility of the applicant’s account when it was conducting that hearing. Further, given what I believe to be its inaccurate understanding of what the applicant said in his statement accompanying his protection visa application concerning his time in Inner Mongolia, a concern arises that the Tribunal might have been seeing difficulties in the applicant’s application which were not there. However, the other inconsistencies in the applicant’s accounts, which the Tribunal identifies, were real enough and it is not surprising that these concerned the Tribunal or, in keeping with its obligation under s.425 of the Act to ensure that the applicant was aware of the issues arising out of the decision under review, that it put those concerns to him during the hearing.
I am not persuaded that the Tribunal embarked on the review with its mind already made up or that a reasonable lay observer who was aware of the issues before the Tribunal would apprehend that the Tribunal might not bring an unprejudiced mind to determining the review. Certainly the Tribunal expressed numerous concerns to the applicant but it was obliged to do this and the fact that it may have disclosed the way it was thinking does not mean that it was biased. The question is not whether a decision-maker’s mind is blank; it is whether it is open to persuasion: Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507. The applicant did not put any evidence before the Court, such as a transcript of the Tribunal hearing, which would take this issue beyond what appears in the Tribunal’s decision record. In the circumstances, I am not satisfied that the Tribunal was not open to persuasion and as a consequence I find that the third ground of the application is not made out.
“The Grounds of the Application”
As for the matters which appear under the heading “The Grounds of the Application”, they do not take the applicant’s case in this Court beyond the matters which have already been considered and, in particular, his claim to fear harm upon a return to China. They disclose no basis on which the Tribunal’s decision should be set aside.
Oral submissions
Today the applicant has pressed the merits of his visa application and submitted that he would be persecuted were he to return to China. However, as has been stated earlier in these reasons, the Court’s role is not to reconsider or re-hear the applicant’s protection visa application; its task is limited to determining whether the Tribunal’s decision is affected by jurisdictional error.
The applicant also suggested today that some of the inconsistencies between his versions of events might have been the product of an inaccurate translation of the statement he submitted with his protection visa application. However, this was only raised as a possibility and no particular mistranslation was pointed to. In any event, no such issue was raised at the Tribunal’s hearing and the Tribunal gave the applicant an adequate opportunity to address and explain the discrepancies between the version of events set out in the statement and what he said to the Tribunal. No jurisdictional error on the part of the Tribunal has been demonstrated by reason that there might have been some inadequacies in the translation of the statement which the applicant submitted with his visa application.
Conclusion
As jurisdictional error on the part of the Tribunal has not been demonstrated, 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 October 2010
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