SZQKA v Minister for Immigration
[2012] FMCA 90
•8 February 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQKA v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 90 |
| MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal – allegation that the Tribunal’s decision affected by jurisdictional error by reason that the decision was not fair, the Tribunal breached s.425 of the Migration Act 1958 and had not understood the applicant’s claims. |
| Migration Act 1958, ss.424A, 425, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicant: | SZQKA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1370 of 2011 |
| Judgment of: | Cameron FM |
| Hearing date: | 8 February 2012 |
| Date of Last Submission: | 8 February 2012 |
| Delivered at: | Sydney |
| Delivered on: | 8 February 2012 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $3,300.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1370 of 2011
| SZQKA |
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, he claims, he owned land on which he operated a chicken farm. He claims that when he refused to transfer his land to the leader of his village, he was kidnapped and assaulted. He claims that he was also detained and assaulted by the local police.
After his arrival in Australia on 15 October 2010 on a visitor’s visa, the applicant lodged an application for a protection visa. This was refused by a delegate of the first respondent (“Minister”) on 21 January 2011. The applicant then applied to the second respondent (“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 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 4-16 of the Tribunal’s decision.
Protection visa application
In a written statement attached to his application for a protection visa the applicant claimed:
a)from 1995 he operated a chicken farm with an annual profit of RMB400,000. Over time, the value of the land on which he ran his farm increased;
b)on 6 August 2010 the leader of his village told him that he wanted to buy his land and gave him three days to respond. On 10 August 2010 he refused to sell his land which made the village leader angry. The next day he discovered many of his chickens dead and was told that they had been poisoned. He reported the matter to the police who came to the farm and said someone had killed the chickens. He told the police that the village leader had tried to force him to sell his land;
c)on that evening, he was kidnapped by two men who took him to an old house where he was punched and kicked, leading to his face and nose swelling and bleeding. They said that he had dared to go against the village leader. He was released after an hour;
d)on 13 August 2010 he complained to the police about the abduction. The following day the police asked him to return to the police station where they accused him of lying about the village leader. He was handcuffed, hit with an electric rod and told that if he complained again he would be gaoled;
e)he did not wish to return to China because he would be persecuted by the Chinese authorities; and
f)he had remained in contact with his family by telephone since his arrival in Australia.
Departmental interview
The applicant was interviewed by a delegate of the Minister on 10 December 2010 and made the following claims:
a)he had owned 5 acres of land valued at RMB200,000 per acre. The village leader had wanted to purchase the land to build a supermarket. Many people also wished to purchase his chicken farm;
b)more than 8,000 of his chickens died after someone poisoned them and he believed that this was done by the village leader to pressure him into selling his land;
c)the police told him that if he took the matter to a senior authority in a court of law he would be gaoled and charged with fabricating a case against the village leader. The village leader employed someone to watch over the applicant and his property to prevent him from taking the matter to a senior authority;
d)the village leader forced him to sell his chicken farm and land for RMB200,000. The sale was settled on 20 August 2010. He sold his farm and land because he had no choice; if he had not done so his chickens would have been poisoned and he could not take legal action against the village leader because “all of the officials share in each other’s wrongdoing”. He sold all the chickens he still had on 20 August 2010 and the farm had since been demolished;
e)his wife still lived in their village; and
f)he left China because he was afraid the village leader would harm him. The village leader had continued to harass him and had watched him every day to stop him from taking legal action. He was still accused of trying to denounce or fabricate a case against the village leader. He was unhappy that he had sold his chicken farm, which had been his whole source of income, at a low price.
Tribunal hearing
At the Tribunal hearing on 18 April 2011 the applicant made the following additional claims:
a)the morning after he refused to sell his land he found 4,000 of his chickens dead. A veterinarian told him that they had been poisoned. He took the chickens to an area outside the village to bury them and when he was travelling back to the village he was abducted;
b)after his abduction he was confined to bed for one or two days because of his injuries. During that period a policeman came to his house and asked him to attend the police station. When he went there he was detained for approximately five hours. This was the only time he attended the police station;
c)when he was released by the police he was afraid that the village leader would poison the rest of his chickens so he decided to “quit” the chicken farm. He sold the chickens he still had on 20 August 2010. The following day he abandoned his farm and he and his wife moved to a separate residential property in another part of the village;
d)the village leader came to his home on 23 August 2010 and gave him RMB200,000 as a partial payment so that the applicant would not give him any more problems;
e)he believed from what he learnt from other people that the structures on his farm were demolished on 24 August 2010 and that the village leader had built a market and stalls;
f)he had only held the right to use his land for a number of years. He had a contract with the “village team” to use the land but he did not own it. As a result, he could only have transferred the right to use the land but could not have sold it. He did not know how much the land was worth in total or per acre;
g)no-one had offered him money to transfer his land to them. The applicant then said that people had told him that the price for the land was very high but no-one had bought it as the village leader had already declared that the land belonged to him;
h)he would not be able to work in his native area as the village leader would have someone watching him. He believed that the village leader would still have people watching because he was afraid that the applicant would still make a complaint against him;
i)less than a month after his arrival in Australia his wife moved away from their village to live with a relative in another village because the village leader continued to attend their home and to accuse the applicant and his wife of framing him; and
j)the village leader had stopped harassing his wife after she moved to another village because he did not know she was there. He could not go and live there as he did not want to live in someone else’s house. His wife had not been able to transfer her household registration because the authorities would not allow it and he believed that he would also not be able to transfer his.
On 20 April 2011 the Tribunal sent the applicant a letter pursuant to s.424A of the Act advising him that it had information which would be the reason or part of the reason for affirming the delegate’s decision and inviting him to comment on that information. In response to the s.424A letter, the applicant sent a submission dated 15 May 2011 in which he submitted, among other things, that:
a)he had not told the delegate that he had sold his land, rather he said that he had sold his chickens. The Chinese word for chicken (“ji”) and the Chinese word for land (“di”) are similar which may have caused a comprehension error. The interpreter may have made a mistake or he may have misunderstood the delegate or the interpreter;
b)after he refused to transfer the land to the village leader, the village leader occupied the land by force, came to his home and threw RMB200,000 into his yard to stop him from making complaints. This had not been money to purchase the land as the land could not be sold;
c)he could not remember what he told the delegate but only 4,000 of his chickens were poisoned. He could not remember what had happened in the past in great detail because of the persecution he had suffered in China; and
d)his wife had moved to another village before his interview with the delegate. However, she had not told him this until after his interview with the delegate because she had not wanted to tell him bad news.
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 found that the applicant’s evidence on issues that were relevant and central to his claims was inconsistent and his explanations for the discrepancies were not satisfactory. In this regard:
a)the Tribunal found that the applicant’s account of what happened to his chicken farm had been inconsistent through the various stages of his application. The Tribunal noted that whilst the applicant’s statement was detailed in terms of his dealings with the village leader, his abduction and dealings with the police, the statement did not mention his abandonment of his farm and its takeover by the village leader, his having to go and live in his other home in the village or the demolition of his farm. The Tribunal found that the applicant’s failure to mention what actually happened to his farm reflected poorly on his credibility. The Tribunal also noted the applicant’s inconsistent evidence in relation to whether he sold his land to the village leader and the value of the land. It did not find any of the explanations the applicant gave for the inconsistencies to be satisfactory;
b)the Tribunal found that the applicant’s evidence to it about his dealings with the police following his abduction was inconsistent with his evidence on that matter in his statement. The Tribunal found that the applicant’s responses when he was questioned about the discrepancy in his evidence were vague and unconvincing. The Tribunal also found unconvincing the applicant’s demeanour and responses to questions as to when and how many times he approached the police after his abduction. It found that the applicant’s answers were indirect and vague to the point of being evasive;
c)the Tribunal found the applicant’s evidence in relation to his wife’s harassment to be vague, conflicting and implausible. The Tribunal did not accept the claim that the applicant’s wife had withheld from him information about her harassment by the village leader. The Tribunal noted that as it was the village leader’s behaviour that had caused the applicant to flee China, it was implausible that his wife would not tell him of her own harassment. Further, the Tribunal did not accept the claim that the applicant’s wife had not told him this information out of an unwillingness to convey bad news as she did eventually give him this news. The Tribunal did not believe that the applicant’s wife would not tell him that she was being harassed by the village leader if that had been true. The Tribunal found that if the applicant’s wife had moved from their village a month after he left China, it was unlikely that he would not have known this by the time of his interview with the delegate given that he had been in contact with his wife. The Tribunal found that the applicant’s responses on this issue further reflected poorly on his credibility;
d)the Tribunal found that the applicant gave inconsistent evidence about whether other people had offered to buy his land and, when asked to explain the inconsistency, he gave conflicting answers. The Tribunal found the applicant’s evidence and responses on that issue to be conflicting and not credible; and
e)the Tribunal found that the applicant gave inconsistent evidence about the number of chickens that were poisoned and how many remaining chickens he sold before abandoning his farm. Whilst accepting that the applicant could not give an exact number of the chickens that he had lost through poisoning, the Tribunal found that it was reasonable to expect that he would give consistent evidence about the approximate number of chickens he lost as well as those remaining in his possession and which he sold before abandoning the farm. The Tribunal did not accept that feelings of nervousness and memory difficulties at the time of its interview with the applicant explained his divergent evidence on a straightforward issue that would have been of prime importance to him.
Considered cumulatively, these inconsistencies led the Tribunal to find that the applicant was not a witness of truth and that his account was false. Consequently, the Tribunal only accepted that the applicant was from a village in Hebei province and had operated a chicken farm there but rejected all the other central elements of his claims. The Tribunal found that there was no credible evidence as to why the applicant had left China. The Tribunal found that there was no credible evidence that the applicant left China to avoid harm from the leader of his village or the Chinese authorities as he claimed or any credible evidence that if he returned to China there was a real chance that he would suffer persecution on the grounds he had claimed.
Proceedings in this Court
The grounds of the application commencing these proceedings were pleaded as follows:
1.Decision made by Refugee Review Tribunal is not fair.
2.Tribunal member is not patient with me and asked me unreasonable questions and made me confused.
At the hearing of this application the applicant also submitted that the Tribunal had not understood his claims.
Decision not fair
The applicant does not explain what he means by the first allegation made in the application but it should be observed that he has not pointed, in the context of this allegation, to any procedural unfairness on the part of the Tribunal. In such circumstances, it must be assumed that the applicant means to say that the result before the Tribunal was not fair in the sense that it was not favourable to him. Whilst that is an understandable position for the applicant to adopt, it does not amount to a basis on which the Tribunal’s decision may be set aside. The Court’s power in that connection is limited to situations where the Tribunal did not observe the law in the manner in which it conducted the review or in the way it made its findings. The Court cannot conduct an inquiry into the applicant’s entitlement to a protection visa or substitute its own views of the merits of his visa application for those of the Tribunal.
For those reasons, the first ground of the application does not disclose a basis on which the Tribunal’s decision should be set aside.
Breach of s.425
Under s.425 of the Act the Tribunal is obliged when holding a hearing to permit an applicant to have a real and meaningful opportunity to give evidence and put arguments in support of his or her claim to meet the criteria for the grant of a protection visa. The second allegation made in the application implies that that did not happen in this case. However, the applicant has adduced no evidence to support the allegation. The only evidence before the Court which is relevant to this allegation is contained in the Court Book, which is exhibit A, and in particular the Tribunal’s decision record.
The summary of what occurred at the Tribunal’s hearing, which appears in its decision record, does not bear out the applicant’s allegation. It is plain from the Tribunal’s summary of its hearing that the Tribunal put the applicant under some pressure at that hearing when it identified to him the numerous inconsistencies in his various accounts of relevant events and pressed him to explain them. Although being put on the spot may have been uncomfortable for the applicant and although he apparently found it difficult to reconcile his stories, that does not demonstrate that the Tribunal made him confused or that he was denied a proper hearing. If the applicant was confused it was because he had not given consistent accounts of relevant events.
Further, nothing in the Tribunal’s decision record bears out the applicant’s allegation that the Tribunal was impatient. In the absence of other evidence which might be supportive of this assertion, there is no basis to find that it has been proven.
For these reasons, the second allegation made in the application is not made out.
Tribunal did not understand claims
In relation to the allegation advanced in oral submissions, the applicant’s claims had been made in his statement submitted with his protection visa application, in his interview with the delegate and at his hearing before the Tribunal. The Tribunal’s summary of the applicant’s statement discloses no misunderstanding of those claims and no other evidence has been adduced to demonstrate that the Tribunal did not understand what had been said by the applicant to the delegate or to it at its hearing.
The applicant further submitted that the Tribunal had failed to understand the nature of his interest in the land on which the poultry farm stood or the fact that he could not sell title to the land because he did not own the land in that sense. It may be that the Tribunal did misunderstand this detail but a factual error of that sort, even if proved, would be an error within jurisdiction and not amount to a basis to set the Tribunal’s decision aside.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Cameron FM
Date: 16 February 2012
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