SZQPB v Minister for Immigration and Citizenship
[2012] FCA 539
•25 May 2012
FEDERAL COURT OF AUSTRALIA
SZQPB v Minister for Immigration and Citizenship [2012] FCA 539
Citation: SZQPB v Minister for Immigration and Citizenship [2012] FCA 539 Appeal from: SZQPB v Minister for Immigration & Anor [2012] FMCA 197 Parties: SZQPB v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: NSD 418 of 2012 Judge: ROBERTSON J Date of judgment: 25 May 2012 Catchwords: MIGRATION – appeal from decision of Federal Magistrate – grounds of appeal concerned findings of fact – appellant made no written or oral submissions – no basis articulated to support grounds of appeal Cases cited: Waterford v Commonwealth (1987) 163 CLR 54 followed Date of hearing: 25 May 2012 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 25 Counsel for the Applicant: The Applicant appeared in person with the aid of an interpreter Counsel for the First Respondent: Mr DH Godwin Solicitor for the First Respondent: DLA Piper Australia Counsel for the Second Respondent: The Second Respondent submitted save as to costs
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 418 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZQPB
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
ROBERTSON J
DATE OF ORDER:
25 MAY 2012
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent's costs, as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 418 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZQPB
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
ROBERTSON J
DATE:
25 MAY 2012
PLACE:
SYDNEY
REASONS FOR JUDGMENT
Introduction
This appeal is from orders of the Federal Magistrates Court given on 6 March 2012. Those orders were that the application for review of the decision of the Refugee Review Tribunal (“the Tribunal”) be dismissed and the applicant pay the first respondent’s costs in the sum of $6,240. The Tribunal made its decision on 5 August 2011, affirming the delegate’s decision not to grant the applicant a Protection (Class XA) visa.
The grounds of appeal to this Court were as follows:
1. RRT made a jurisdictional mistake which is in breach of the law of justice
2. The Magistrate failed to consider the errors made by RRT
3. The Magistrate breached the principle of justice
The Tribunal
The findings of the Tribunal included the following:
[2]The Applicant, who is a citizen of the People's Republic of China, arrived in Australia on 20 December 2009 and applied to the Department of Immigration and Citizenship for the visa on 20 September 2010. The delegate decided to refuse to grant the visa on 11 January 2011 and notified the Applicant of the decision.
[3]The delegate refused the visa application on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention.
…
[24]The Applicant’s substantive claims are set out in a statement attached to her protection visa application and may be summarised as follows:
•She came to Australia in November 2009 (although I note that a stamp in her passport indicates that she in fact entered Australia on 20 December 2009) to visit her son who is studying here.
•Her husband established the ‘Mei He Kou Trade Business Co.’ in May 1998. This was ‘mainly involved in subsidiary agricultural products’ and traded between China and Korea. The business prospered and grew, and by 2005 it had more than ten employees. Her husband spent Rmb 500,000 to purchase 700 square metres of land on a 70 year lease. He built offices in a two-storey building.
•On 6 May 2009 she and her husband received a notice from the government advising that their land had been sold to a developer for construction of a shopping centre. They were required to move out before 1 January 2010. The compensation offered was only Rmb 1500 per square metre, the same rate as compensation offered for residential property. She and her husband regarded the offer as unreasonable and tried to negotiate with relevant Departments to resolve the issue. These efforts were fruitless.
•Her younger son had come to Australia to study in July 2009. She missed him very much and worried about him. Her husband did not want her to worry too much. She applied for a visa to visit him and this was approved on 24 November 2009. She left China on 19 December 2009.
•From Australia she kept in contact with her husband by telephone. On 1 January 2010 the power and water supply to his business premises was cut and the developer asked him to move out as soon as possible. He had to send all his employees home and cease trading. He tried to rent another building but the rental and fit-out costs were too high.
•On 7 January 2010 the developer, accompanied by four or five police, pulled down the building without permission, totally destroying the office equipment. Her husband was very angry and argued with them. There was a scuffle with police and her husband ‘accidentally pushed one of the policemen.’ He was handcuffed and taken to the police station where he was badly beaten many times and detained for seven days.
•Her father-in-law then paid the police Rmb 5000 to secure his release.
•Her husband wrote to ‘higher authorities’ but got no reply. Lawyers did not want to take on the case because they said the developer had a ‘very strong background.’ Her husband still did not want to give up and continued to send letters to the government, again without reply.
•On 26 August 2010 two police took her husband to the police station and delivered a ‘summon notice’ stating that his company had evaded taxes. This was not correct, as the company always paid its taxes fully and on time. On 27 August 2010 the police asked her older son to return for further investigation. They also asked that she return before for 27 September 2010 for the same purpose. She knows the real motivation of the police in bringing false charges against them is to stop them sending appeals letters to higher authorities.
•Her husband is still in jail. Her older son is afraid to return to Mei He Kou city and remains in hiding in another city. Her family members persuaded her not to return to China. If she were to do so she would receive the same treatment.
The Tribunal next listed a number of documents the Department had received from the applicant in Chinese with English translations.
The Tribunal then said that it had reviewed the audio recording of a Departmental interview attended by the applicant on 15 December 2010 and set out claims the applicant made which added to her written claims.
The Tribunal then summarised the claims made by the applicant at the resumed hearing before the Tribunal on 15 July 2011. She claimed that after her husband’s company’s building was demolished he went to the building site and fought with someone, which resulted in him being bashed by the police and held in police custody.
The Tribunal asked the applicant why she believed she would be harmed if she returned to China. The applicant said it was because she and her husband had made a complaint and he kept complaining to the authorities. The authorities intended to build a shopping mall on the land occupied by her husband's business and the government would arrest all her family to allow them to complete it. The Tribunal said it could not understand why the authorities would wish to harm her if the building project was going ahead satisfactorily. The applicant said they would arrest her, in the same way they arrested her husband. The applicant said if she returned to China she would not remain silent but would report to ‘higher authorities’ and the Central Office. She feared public officials or gangsters would take her for this reason. The applicant confirmed that she did not fear harm in China for any other reason.
The Tribunal asked of her husband’s whereabouts. The applicant said he was still in jail and had not been released. Previously in a Departmental interview in December 2010, the Tribunal said, the applicant had stated that she contacted him two or three times a week and had spoken to him two days previously. Invited to explain this she denied making the comment and said she had not been in touch with her husband for a long time. The Tribunal said it had carefully listened to the audio recording of the interview and was satisfied that the applicant had made and understood the comment.
The Tribunal put to the applicant that it seemed difficult to understand why a successful businessman would react to these circumstances in the way she claimed. Instead of taking the compensation that was offered and quickly relocating, within the six or seven month notice period given to him, he had attempted to oppose the acquisition, eventually losing his business and the compensation. But she said her husband was a very strong-minded person who was prepared to go to any length to find justice.
The Tribunal put to the applicant that her delay in seeking protection as a refugee could cast doubt on the truth of her claim to fear harm in China. She insisted that she had not known earlier and had only learned about it when told by a friend.
At [49] the Tribunal said:
I put to the Applicant that the information I had explained to her could cast doubt on the truth of her claim that her husband was arrested or that he had ever been in trouble with the police or other authorities in China. This was:
•The information she gave in her Departmental interview that she had spoken to her husband two days previously; this was in conflict with the claim that he was in prison.
•The information she had provided about her husband’s company was to some extent inconsistent with the information provided in support of the application for her son’s student visa.
•The information in the P[ublic] S[ecurity] B[ureau] summons she had submitted was inconsistent with her claim that her husband was arrested and placed in detention on 26 August 2010.
•The information she provided about her husband’s actions in opposing the compulsory acquisition of his building seemed in some respects to be implausible.
•Her failure to seek protection as a refugee until she had been in Australia for nine months cast doubt on the truth of her claim to fear harm in China.
The Tribunal concluded that the applicant’s claims were not credible because:
· her contradictory evidence regarding whether her husband was in jail cast strong doubt on the truth of her claim that he was arrested on 26 August 2010 and that he remained in custody;
· there was confusion and inconsistencies as to the details of her husband’s business activities, specifically relating to the name of the business and area of economic activity. The Tribunal was not satisfied as to the credibility of the applicant’s claim that her husband was involved in a business with a quite different name and area of economic activity, and was not satisfied that she had provided a convincing explanation of the inconsistencies in her evidence in this area. On the information she had supplied the Tribunal was unable to be satisfied that her husband was, in fact, involved in an agricultural trading business whether or not it was named Mei He Kou Trade Business Co. It followed that the Tribunal was not satisfied that the applicant’s husband ever suffered harm as a consequence of the forced acquisition and demolition of such a business;
· there was the implausibility of the applicant’s claims concerning her husband’s reactions to the advice that his business premises were to be compulsorily acquired;
· further, the applicant’s explanation for delay in seeking protection as a refugee was not convincing given the prominence of the issue in the community generally and in the Chinese community in Australia.
The Tribunal reached these conclusions having had regard to the documents submitted by the applicant in support of her claims.
One of these documents was said to be a summons to the applicant’s husband from the Public Security Bureau (PSB). The Tribunal pointed out to the applicant the significant anomaly that she claimed her husband was already in PSB custody, having been arrested the previous day. In response she said the documents were sent by her parents-in-law and she did not believe elderly people like them would be involved in providing false material. Further, the Tribunal pointed out that the summons had only one signature, which was not the normal format. The applicant responded only that Shuguang Town was a small place.
Having noted the prevalence of document fraud in China, the Tribunal was not satisfied that any reliance could be placed on the summons or other documents submitted by the applicant. These included three photographs. The Tribunal said these photographs did not establish that the person depicted was the applicant’s husband or that the injuries depicted resulted from the person depicted being beaten.
Accordingly, the Tribunal was not satisfied that the applicant had a well-founded fear of harm for a Convention reason should she return to China then or in the reasonably foreseeable future, and was not satisfied that she was a refugee. The Tribunal said:
Summary
[73]In light of all the information before the Tribunal I am not satisfied that the Applicant’s husband was the proprietor of a company whose premises were compulsorily acquired by the government, that he appealed against such a decision, that he was arrested after a scuffle with police or that he was detained, beaten, released after seven days and then re-arrested some months later. I am not satisfied that he is now in jail. This being the case I am not satisfied there is any reason to believe there is a real chance that the Applicant would be harmed by the authorities or anyone else in China for such a reason. She does not claim to fear harm for any other reason and no other reason is apparent on the face of the information before the Tribunal.
The Federal Magistrates Court
In the Federal Magistrates Court, the Federal Magistrate set out the procedure followed in the Tribunal, the Tribunal’s findings of fact and reasons, together with the Tribunal’s conclusions and said:
[18]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 those 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 should be believed, nor to decide whether she should be given permission to stay in Australia.
[19] The applicant’s original application contains the following three grounds:
1.RRT doubted my husband who is smart businessman’s reaction to demolishing. It is preconceived. Anything can happen.
2.RRT didn’t accept my explanation about the late protection visa application with discrimination. It is unfair.
3.RRT doubted documents I provided and my application which bases on the country information, it is discrimination.
[20]She has not filed any amended application or written submission better identifying jurisdictional error, although she has received advice under the free legal advice scheme.
[21]Today, in her oral submissions, the applicant complained about some of the Tribunal’s findings of fact, and labelled them as unfair and “discriminatory”. She suggested that the Tribunal should not have “doubted” her documents, and maintained that, in fact, her husband had been continuously in detention since August 2010.
[22]However, in my opinion, these submissions sought only to persuade the Court to arrive at a different conclusion on the evidence. This is not its function, when reviewing the Tribunal’s decision.
[23]I am unable to detect any part of the Tribunal’s reasoning or its conclusions, revealing such illogicality or unreasonableness as could provide jurisdictional error under the principles identified in Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611. It was the task of the Tribunal to interview the applicant and decide what was true, taking into account her evidence and her documentary corroboration. I am not satisfied that the outcome arrived at by the Tribunal was not open to it on the evidence before it.
[24]Unaided by any better submissions, I am unable to indentify any jurisdictional error affecting this decision.
[25]The decision is therefore a privative clause decision, and I must dismiss the application.
Submissions on appeal
The appellant filed no written submissions and, when invited to do so, made no oral submissions before this Court.
The Minister filed written submissions dated 16 May 2012 and elaborated on them briefly in oral submissions before this Court.
Consideration
Grounds 1 and 2 of the Notice of Appeal
I shall assume in favour of the appellant that grounds 1 and 2, that the Tribunal made a jurisdictional mistake which is in breach of the law of justice and that the Federal Magistrate failed to consider the errors made by the Tribunal, were intended to pick up the grounds of the application before the Federal Magistrate.
Those grounds are set out above at [19] of the reasons of the Federal Magistrate. In the circumstances of the present case none of those matters amounted to a claim of jurisdictional error on the part of the Tribunal. The grounds were, in substance, directed to the Tribunal’s fact-finding. The references to preconception, discrimination and unfairness, were not to those concepts as they may be used to found a submission of jurisdictional error but amounted to no more than a general or colloquial use of those terms as signifying that the user of them disagreed with the Tribunal’s finding or findings of fact. Mere disagreement with it does not establish that a finding of fact was wrong. More importantly, even assuming in favour of the appellant that a finding of fact was wrong, there is no error of law simply in making a wrong finding of fact: Waterford v Commonwealth (1987) 163 CLR 54 at 77 per Brennan J.
In relation to that aspect of ground 2 which alleges that the Federal Magistrate failed to consider the errors made by the Tribunal, it is clear that the Federal Magistrate did consider those alleged errors but found that the Tribunal’s decision was not affected by jurisdictional error.
Grounds 1 and 2 have not been established.
Ground 3 of the Notice of Appeal
I shall read this ground as if it read that the Federal Magistrate breached the principles of natural justice. Even so read, no basis for this ground has been articulated or established.
Conclusion
No error has been shown in the judgment of the Federal Magistrate. No jurisdictional error has been shown in the decision of the Tribunal. The appeal must be dismissed and the appellant pay the first respondent’s costs.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson. Associate:
Dated: 25 May 2012
2
0