SZQOE v Minister for Immigration

[2012] FMCA 181

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQOE v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 181

MIGRATION – RRT decision – Chinese applicant claiming political persecution – disbelieved by Tribunal – no jurisdictional error shown – application dismissed.

Migration Act 1958 (Cth)

Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594
Minister for Immigration & Citizenship v SZIAI (2009) 259 ALR 429, [2009] HCA 39
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12, [2004] HCA 32

Applicant: SZQOE

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1841 of 2011

Judgment of: Smith FM

Hearing date: 2 March 2012

Delivered at: Sydney

Delivered on: 2 March 2012

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Ms M Stone

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application is dismissed. 

2. The applicant must pay the first respondent’s costs in the sum of $3,600. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1841 of 2011

SZQOE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant arrived in Australia on a three months tourist visa on 18 April 2010.  His son was present in Australia studying on a student visa at the time.  The applicant overstayed his visa, and on 11 February 2011 he applied for a protection visa assisted by a person who was not a migration agent. 

2. A typed statement made unclear claims suggesting that Chinese authorities in the local government had “make difficult things for me” in relation to a seafood business conducted by the applicant between 2000 and 2009.  The statement suggested that the business “cannot continue forced to stop”, without indicating clearly when or why this occurred.  The statement said: 

   3)During in August to December 2009, there were two times I tried to reason with them, asking for a fair argument to explain why I have been bullied.  But during reasoning with them, they not only did not give a fair argument, but also threatened to hit me. 

3. The applicant’s statement also referred to his not having received fair compensation as a result of the forced demolition of his house in China in October 2010 “due to construction of the railway which would go through village area”.  He said: “now I don’t have a house in China, no place to stay in China.  No a foothold, which my wife just take refugee in temporary relatives”.  He claimed not to have known earlier that he could apply for refugee protection, and he said that he was “afraid to go back to China”. 

4. His visa application had been completed in relation to the question “64…Please give details of any crime or offence that you have been convicted of”, with reference to two dates in 2009, and the words “please see the statement”. 

5. A delegate of the Minister interviewed the applicant on 31 March 2011, and endeavoured to obtain a clearer history.  When invited to indicate a Convention basis for his reluctance to return to China, the applicant claimed he should be “classified as a person facing political persecution”. 

6. The delegate made a decision on 1 April 2011, refusing the application.  The delegate referred to the vagueness and contradictions in the applicant’s evidence, including confused evidence about the convictions in which the applicant suggested that he had been charged with assaulting a law enforcement officer.  The delegate concluded, that “the vague and inconsistent answers at interview lead me to believe the applicant’s situation is not as claimed”.  The delegate was not satisfied that the applicant was of any interest to the Chinese authorities for a Convention‑related reason at the time of his departure from China, nor that he would be of any interest in the future if he were to return. 

7. The applicant appealed to the Tribunal, and presented a submission arguing against the conclusions of the delegate.  He attended a hearing of the Tribunal on 26 July 2011.  The Tribunal gave a description in its statement of reasons, and I accept it. 

8. As had the delegate, the Tribunal tried to clarify the current situation of the applicant’s son in Australia, but obtained mixed success.  The Tribunal also tried to clarify the history of difficulties with the applicant’s seafood business, including to determine when it was closed down and how this happened.  The Tribunal also tried to clarify the circumstances in which the applicant and his wife had lost their house after the applicant had come to Australia. 

9. The Tribunal made a decision on 1 August 2011, which affirmed the delegate’s decision.  In its statement of reasons, after setting out the history of the evidence given by the applicant to the Department and to the Tribunal, the Tribunal gave “Findings and Reasons”, explaining why it was not satisfied the applicant “is a truthful witness”. 

10. The Tribunal said that his evidence to the Tribunal was inconsistent with his visa statement and application, and that several aspects of his claims lacked credibility.  His evidence was also vague and confused.  In particular, his evidence concerning his seafood business varied so significantly in relation to dates and events, that the Tribunal concluded that his inconsistent evidence “is indicative of the fact that it has been manufactured”.  The Tribunal found a similar defect in his evidence about whether or not he had been convicted or charged in China in the course of dealing with local government. 

11. In relation to his evidence about the demolition of his home, the applicant told the Tribunal that it happened in October 2010, and that he had known nothing about the proposed demolition prior to his departure from China, notwithstanding that he claimed that it related to a railway project which commenced in July 2008.  The Tribunal thought it “highly unlikely that the applicant would not have known about its proposed construction prior to his departure from China”, if indeed it was proposed to acquire and demolish the applicant’s house.  The Tribunal also found that the applicant’s evidence about what his wife had told him about the proposed demolition “to be confused and vague”.  The Tribunal found the whole story to be lacking in credibility.  

12. The Tribunal also thought that the applicant did not explain satisfactorily his delay in lodging a visa application, and thought that the delay was not consistent with the applicant’s claim that he left China due to a fear of harm. 

13. Generally, the Tribunal concluded: 

    60.The Tribunal has found that several aspects of the applicant’s claims are highly problematic and does not accept that he has given a truthful account of his circumstances in China.  The Tribunal does not, therefore, accept that the applicant’s business was forcibly taken over by Law Enforcement officials; that he had a fight with those persons; or that he was framed or harassed by such persons.  Nor does the Tribunal accept that the applicant’s house was forcibly demolished or that he and his family have suffered financially or otherwise as a result.  The Tribunal is not satisfied that the photographs provided to the Department of a property that has been demolished are of the applicant’s property and considers that they could be of any property and is not satisfied that the photographs establish that they were taken in the circumstances in which the applicant claims.  The Tribunal is therefore not satisfied that there is a real chance that the applicant would suffer serious harm for any Convention reason should he return to China now or in the reasonably foreseeable future.  Accordingly, the Tribunal is not satisfied that the applicant has a well founded fear of persecution within the meaning of the Convention. 

14. The applicant now applies to the Court for orders setting aside the Tribunal’s decision and remitting the matter for further consideration.  I have power to make these orders only if I am satisfied that the Tribunal’s decision was affected by jurisdictional error.  I do not have power myself to decide whether the applicant is a refugee, nor whether he is entitled to the grant of any visa or permission to stay in Australia. 

15. The applicant’s application to the Court contains several general propositions which it might appear to be of the nature of suggested grounds of review: 

    Final orders sought by applicant/s … 

    1.The RRT made unfair and inaccurate determinations on my case. 

    2.The RRT has made mistakes on judicial judge and determination. 

    3.The RRT had no investigation and implementation.  Therefore, the determinations on this case are unreasonable and illogical. 

    Grounds of application … 

    1.The RRT did not deal with my case humanism.  Rather, the case was treated with racial and national discrimination. 

    2.The RRT has never taken my case seriously, or considered it carefully and cautiously. 

    3.The RRT only rely on conjecture and suspicion to make determinations, which are always unreasonable and incorrect. 

16. The applicant has not filed any amended application or written submission to explain the contentions in his application. 

17. I am unable to identify anything of the nature of factual conclusion, or of the application of law to the findings of the Tribunal, which reveals error by the Tribunal, whether jurisdictional or otherwise. 

18. I am unable to identify anything in the Tribunal’s procedures which can be characterised as unfair, and certainly nothing that suggests non‑compliance with the provisions of the Migration Act 1958 (Cth).

19. There is no aspect of the case which, in my opinion, gave rise to an exceptional duty on the Tribunal to conduct additional investigations into the applicant’s claims (see Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12, [2004] HCA 32 at [43], Minister for Immigration & Citizenship v SZIAI (2009) 259 ALR 429, [2009] HCA 39 at [1], Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594 at [1], [20], [86]).

20. It appears to me that the Tribunal did identify and address all of the applicant’s evidence and refugee claims.  It did so with no possibility of an apprehension of bias by way of closed mind on its part. 

21. There is nothing illogical or unreasonable about its reasoning and conclusions, which might provide jurisdictional error under principles referred to by the High Court in Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611.

22. A person who maintained that he was the applicant attended the hearing, although I had some doubts whether, in fact, he was the applicant’s son, noting their dates of birth and photographs found in the Court Book.  However, I accepted the assurance of the person who appeared, and gave him an opportunity to explain his arguments.  

23. His complaints were that he did not understand why the case was rejected, and that he wanted an opportunity to present more material to show that he is a refugee.  However, he had no further submissions to make after the solicitor for the Minister explained in simple language how the Tribunal had decided the matter. 

24. As I pointed out to the applicant, unfortunately he would not have an opportunity to present more material to the Tribunal, in the absence of my being satisfied that there is jurisdictional error affecting the Tribunal’s decision. 

25. For the above reasons, I am not so satisfied.  In my opinion, the Tribunal’s decision is a privative clause decision, and I must dismiss the application. 

I certify that the preceding twenty‑five (25) paragraphs are a true copy of the reasons for judgment of Smith FM

Date:  19 March 2012