SZRAD v Minister for Immigration

[2012] FMCA 423

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRAD v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 423

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 36, 65, 91R, Pt.8

NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1
Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6
Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553
SZJZS v Minister for Immigration and Citizenship [2008] FCA 789
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Abebe v Commonwealth of Australia (1999) 162 ALR 1
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCA 1
Minister for Immigration and Multicultural Affairs v Yusef (2001) 206 CLR 313

Applicant: SZRAD

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3007 of 2011

Judgment of: Emmett FM

Hearing date: 22 May 2012

Date of Last Submission: 22 May 2012

Delivered at: Sydney

Delivered on: 22 May 2012

REPRESENTATION

The applicant appeared in person with the assistance on an interpreter in the Fuqing language.

Appearing for the Respondents: Mr Ian Temby

Solicitors for the Respondents: Minter Ellison

ORDERS

1. The proceeding before this Court, commenced by way of application filed on 29 December 2011, is dismissed.

2. The applicant pay the costs of the first respondent fixed in the amount of $4,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 3007 of 2011

SZRAD

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This application is made pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision made by Refugee Review Tribunal (“the Tribunal”) on 28 November 2011.

2. The applicant claims to be a citizen of the People’s Republic of China (“China”).

3. Prior to considering the proceeding before this Court, these reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicant’s protection visa application claims, a summary of the decision of the delegate of the First Respondent (“the Delegate”), and a summary of the Tribunal’s review and decision.

Background

1. The applicant arrived in Australia on 10 March 2008 having departed legally from China on a passport issued in his own name on a Student Guardian (subclass 580) visa which was valid until 31 December 2009.

2. On 20 April 2011, the applicant lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.

3. On 18 July 2011, the Delegate refused the applicant’s application for a protection visa.

4. On 17 August 2011, the applicant lodged an application for review of the Delegate’s decision by the Tribunal.

5. On 28 November 2011, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.

6. On 29 December 2011, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

1. Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then s.65(1)(b) mandates that the visa application is to be refused.

2. Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).

3. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

   “… owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”

4. Section 91R of the Act expands on the notion of persecution and serious harm when considering Art.1A(2) of the Convention.

The Applicant’s application for a protection visa

1. The applicant set out his claims for protection in a “Personal Statement” attached to his protection visa application.

2. The applicant claimed that in August 2007, his wife informed him that the government intended to “fill the sea to make land and [their] farm was in the area of removal” and that compensation from the government would amount only to RMB 80,000 yuan. The applicant claimed that his wife did not believe that this was a fair amount of compensation, and consequently, refused to sign the compensation agreement.

3. The applicant claimed that on 1 September 2007, his farm was forcibly demolished.  The applicant claimed that the demolition was overseen by a governmental officer and the police. The applicant claimed that he attempted to stop the demolition and was consequently detained for three days and fined 3,000 yuan. The applicant claimed that he was beaten by the police while he was in detention.

4. On 6 September 2007, the applicant claimed that he went with ten other local villagers to the local government to report the situation. However, on arrival at the police station the applicant claimed that he, along with four other local villagers were detained for up to 12 hours and then released.

5. The applicant also claimed that he, along with a few other local villagers, wrote a letter of petition and requested that it be brought to the Fujian provincial government’s attention. However, the applicant claimed that when the “matter was revealed”, he and the others involved were taken to the police station where the letter was confiscated and they were warned to stop the petition otherwise they would be detained for three months. After this incident the applicant claimed that the police kept him under surveillance.

6. On the application of the applicant’s son student visa, the applicant asked the migration agent to assist the applicant in applying for a guardian visa and on 8 March 2008 the applicant arrived with his son in Australia.

The Delegate’s decision

1. On 6 July 2011, the applicant attended an interview with the Delegate. At the interview the applicant provided photographs of his farm and the work on the farm post government acquisition.

2. The Delegate was not persuaded that the acquisition of the applicant’s land amounted to Convention related persecution and found that the motivation behind the acquisition of the applicant’s land was not for a Convention related reason. Further, the Delegate was not satisfied that the applicant is of current adverse interest to the authorities in China or would be of adverse interest in the foreseeable future if he was to return to China. The Delegate found that there was nothing to indicate that the applicant has a political profile that would lead to a real chance of Convention based persecution in China.

3. The Delegate found that the applicant’s delay of some three years in lodging a protection visa application indicated that the applicant’s fear was not well-founded and may support an adverse credibility finding.

4. On 18 July 2011, the Delegate refused the applicant’s application for a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Convention.

The Tribunal’s review and decision

1. On 17 August 2011, the applicant lodged an application for review of the Delegate’s decision by the Tribunal.

2. The applicant provided no further documents in support of his review application.

3. On 25 October 2011, the Tribunal wrote to the applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicant to attend a hearing on 24 November 2011 to give oral evidence and present arguments.

4. On 24 November 2011, the applicant attended the Tribunal hearing and gave evidence.

5. The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.

6. The decision of the Tribunal is accurately summarised by the solicitor for the first respondent in written submissions as follows:

   “13. At the interview before the Second Respondent, the Applicant firstly discussed his work in the construction industry in Israel from 2002-2007 [CB 107, para 28].

   14. The Applicant claimed that when he returned to China from Israel in August 2007, his wife told him that the government wished to take their family farm and had offered 80,000RMB as compensation. The Applicant and his wife refused this compensation on the basis that it was inadequate [CB 108, para 37].

   15. The Applicant stated that his wife purchased this farm from the government about ten years ago and the income supported ten people in his family [CB 107, para 30].

   16. The Applicant claimed that on 1 September 2007, despite his wife's refusal to accept the compensation, the police and government officers came to demolish the land. The Applicant claimed that in objection, he stood in front of the machinery to stop them [CB 108, para 37].

   17. The Applicant claimed he was arrested and detained for three days. He also claimed that he was beaten and has been since suffering from dizziness. The Applicant noted that the government also acquired land from nearby farmers but did not know if they similarly protested or whether they accepted the compensation [CB 108, paras 37 and 38].

   18. The Applicant claimed that his first appeal was to the town government. He said he went with his wife and ten labourers. He said that the government "did not accept his case" and that he was detained, along with his wife and two of her employees, for one day. The Applicant also claimed that he was told that if he continued to appeal he would be detained for three months [CB 108, para 39].

   19. The Applicant claimed that his second appeal was to the "government in charge of seaweed". He said that he wrote a letter of appeal and was again threatened that he would be detained for three months if he continued to appeal. The Applicant stated that he never went to the Fujian province government office, but later claimed that he did go there and was told that he would be detained for half a year if he continued to appeal [CB 109, paras 41 and 42].

   20. The Applicant claimed that was scared and arranged for visas for himself and his son to come to Australia, costing them 280,000RMB [CB 108, para 32].

   21. The Applicant claimed that he would be killed if he returned to China because he will continue to protest in China and he is of interest to the authorities [CB 109-110, paras 43‑45]. He stated that the authorities harass his wife every day about his whereabouts [CB 110, para 45].

   22. On 28 November 2011, the Second Respondent affirmed the Delegate's decision not to grant the Applicant a protection visa [CB 103-114]. The Second Respondent notified the Applicant of that decision by letter dated 29 November 2011 [CB 102].

   The Second Respondent's decision

   23. The Second Respondent accepted that the Applicant and his wife owned a seaweed farm and that their land was confiscated by the government, and that the Applicant and his wife were offered an amount of compensation considered by them as inadequate. The Second Respondent also accepted that the Applicant may have voiced his dissatisfaction and subsequently been detained and beaten when he stood in front of the machinery in protest [CB 111, para 55].

   24. However, the Second Respondent did not accept that the Applicant was viewed by the government as a person with political opinions in opposition to the government, or as a leader or potential leader of an organised opposition group. Relevantly the Second Respondent found that "the mere fact that the Applicant was in conflict with the local government in an authoritarian state does not translate a dispute of an essentially private nature into a political matter in relation to which the Refugees Convention provides protection" [CB 111-112, para 55].  The Second Respondent also found it implausible that the authorities would still be interested in the Applicant and that they would continue to harass his wife daily given that the land was seized and the Applicant was released from detention three years ago, and there have been no further protests.  The Tribunal did not accept that the Applicant would engage in any protests if he returned to China [CB112, para 56].

   25. The Second Respondent did not accept that all of the Applicant's evidence was truthful [CB 111, para 50].  It found that:

   (a) the Applicant's evidence was vague, non-responsive to questions and implausible [CB 111, para 51]:

   (i) the Applicant was unable to provide any further detail other than what was contained in his written statement [CB 111, paras 51 and 52];

   (ii) some claims in the Applicant's written application appeared exaggerated [CB 111, para 51];

   (iii) he gave inconsistent evidence between his written submissions and his oral evidence and within his oral evidence, concerning the various appeals he claimed to have made against the government's decision to take his land [CB 111, paras 52 and 53]; and

   (iv) it is implausible that the authorities would presently still be interested in the Applicant and that they would continue to harass his wife daily given that the land was seized and the applicant was released from detention three years ago, and there have been no further protests [CB112, para 56];

   (b) the Applicant's delay in applying for protection three years after his arrival in Australia was not consistent with his having a genuine fear of persecution at the time of his arrival. The Second Respondent found that the Applicant was able to live and work in Israel for five years and that he is not without personal or other resources [CB 112, para 57].

   26. The Applicant submitted that he is illiterate and did not understand much of the process of appealing. The Second Respondent did not accept that he would have so little understanding of what was happening that he would not now be able to provide a consistent and detailed account of those events. The Second Respondent concluded that he was not telling the truth about the various appeals he claimed to have made [CB 111, para 54].

   27. The Applicant additionally submitted that his father was a "rich farmer" and that he suffered persecution as a result. The Second Respondent did not accept this claim given that other neighbouring land was also confiscated as not just the Applicant's land was wanted for the government project [CB 113, para 58].

   28. The Second Respondent accordingly concluded that [CB 113, para 59-60]:

   ‘In summary, I find that the conduct of the town government, in seizing the applicant's land and in the amount of compensation offered, does not constitute persecution. There is no credible evidence to suggest that the government's conduct in relation to the seizure of the applicant's land was selective and discriminatory harm directed against the applicant or his wife for a Convention reason. I find that the seizure of the land was for the purpose of a government project. While the compensation offered may not be sufficient to compensate the applicant and his wife for the loss of their income, there is no credible evidence to suggest that this has been done to cause harm to the applicant and his family on a selective or discriminatory basis for any reason, let alone any Convention reason.

   It is possible that the applicant was arrested, detained and beaten when he sought to protest about the confiscation of land, but there is no evidence to suggest that this was done for any reason other than to remove him from the scene on the day and to stop him from making a fuss. There is no credible suggestion that he was identified as a political opponent of the government by his protest. I have great difficulty accepting his claims that he made two further attempts to protest against the government by attending the town government offices and by writing and seeking to deliver a petition to the provincial government, but even if he did, I find that he was not thereby identified as a political activist or dissident. I find that the applicant did not continue to be of adverse interest to the authorities at the time of his departure from China, and that in any event, he would not have been at risk of further mistreatment for a Convention reason.’

   29. The Second Respondent could not be satisfied that the Applicant is a person to whom 'Australia has protection obligations under the Refugees Convention' and therefore concluded that he did not satisfy the criterion set out in paragraph 36(2)(a) of the Act for a protection visa [CB 113-114, para 61-62].”

The proceeding before this Court

1. The applicant was unrepresented before this Court, although had the assistance of a Fuqing interpreter. 

2. On 13 March 2012, the applicant attended a directions hearing before me. I explained to the applicant that this Court had no power to interfere with the decision of the Tribunal, unless the Court is satisfied that the Tribunal’s decision is affected by a mistake going to the jurisdiction of the Tribunal. I also explained to the applicant that the grounds of the application made bare assertions that were unsupported by particulars.  The applicant confirmed that he wished to continue with the application. The applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the Tribunal hearing, as well as submissions in support.

3. At the directions hearing, the applicant was referred to the Court’s Legal Advice Scheme for free legal advice and has now participated in that scheme. The applicant was also provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language.

4. At the commencement of the hearing, the applicant confirmed that he had not filed any amended application, evidence or submissions in support of his application and that he had no further documents to present to the Court this morning in support of his application.

5. The Applicant confirmed that he relied on the grounds contained in the application filed on 29 December 2011, as follows:

   “1. There exists jurisdictional error. The interpreting was so poor that some important representations was not translated to the examiner. For example, we claimed anti-corruption when appealing to the government for the seizing of our land.

   2. Relevant material is not considered. Seizing land is often related to corruption of local government in China. We claimed anti-corruption when appealing to the government, which led to my detaining. Thus I was a person holding political opinion against local government.”

1. Each of the grounds was interpreted for the assistance of the applicant and the applicant was invited to make submissions in support of each of the grounds and in support of the application generally.

Ground 1

1. Ground 1 was unsupported by particulars, evidence or written submissions. Several times I asked the applicant the nature of his complaint about the interpretation at the Tribunal hearing. On each occasion, the applicant responded that his land had been seized by the government, he had been arrested and beaten and was unable to support his family. He said that he had provided evidence to the Department but that the Tribunal had not believed him.

2. Plainly, the applicant’s complaints cannot support the allegation in ground 1 that “the interpreting was so poor that some important representations was not translated to the examiner”. There was no evidence provided to the Court to support such a claim. Nor was there any identification by the applicant of any error in translation by the interpreter at the Tribunal hearing.

3. The Court is entitled to accept the Tribunal’s decision record as accurately reflecting the matters to which it refers as taking place at the hearing in the absence of any evidence to the contrary (NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1).

4. There was no transcript of the Tribunal hearing provided to this Court, nor did the applicant provide any evidence to this Court to suggest that the Tribunal’s decision record is not accurate. At the directions hearing on 13 March 2012 the applicant was given an opportunity to file a transcript of the Tribunal hearing. The applicant was also directed to give notice if he wished to rely on recordings of the hearing. However, no step was taken by the applicant to rely on any such evidence. In the circumstances, the Court accepts as accurate the Tribunal’s summary of the oral evidence given by the applicant and exchanges it had with the applicant at the Tribunal hearing.

5. In the circumstances, there is nothing before this Court to suggest that the standard of interpretation was so inadequate that the applicant was effectively prevented from giving evidence to the Tribunal (see Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 at [38]; Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553; and SZJZS v Minister for Immigration and Citizenship [2008] FCA 789 at [32]).

6. The example given by the applicant in support of his allegation of poor interpretation is no more than “we claimed anti-corruption when appealing to the government for the seizing of our land”. It is difficult to know what the applicant meant by this complaint.

7. The Tribunal’s decision record makes clear that it understood that the applicant was claiming that in 2007 he was arrested, detained and beaten by government officials because he protested against the confiscation of his land and the inadequate offer of compensation. The Tribunal noted that the applicant claimed that he continued to be of interest to authorities. The Tribunal noted that the applicant said that the Chinese government is very corrupt and offered him only 80,000 RMB in compensation for taking his land.

8. The Tribunal accepted the applicant’s claims that he and his wife had a seaweed farm that was confiscated and that they considered the compensation offered to be inadequate. The Tribunal also accepted that the applicant may have voiced his dissatisfaction with that conduct and accepted that the applicant was arrested, detained and fined on the day of the seizure of the land because he was standing in the way of the government’s machinery. The Tribunal also accepted that the applicant was beaten during his detention.

9. Whilst the Tribunal found the applicant’s treatment to be a “heavy handed response to the applicant’s protest”, it did not accept that it amounted to persecution for a Convention related reason. The Tribunal found that the applicant was arrested and detained on the day to remove him from the site.

10. The Tribunal was not satisfied that the applicant was identified by local government authorities as a person holding a political opinion adverse to the government as a result of his protest and did not accept that the applicant continued to protest as claimed, having regard to the unsatisfactory nature of the applicant’s evidence. The Tribunal’s decision record makes clear that it asked the applicant why the Tribunal should believe that the applicant would protest if he returned to China, given that he had “run away” from China rather than continue to protest and his wife had apparently not continued to protest in his absence. The Tribunal noted the applicant’s response but was not persuaded by it.

11. The Tribunal did not accept that the applicant had any profile in China that was adverse to the government and that his private dispute over land acquisition in China did not amount to Convention related persecution.

12. In any event, the Tribunal did not accept that the authorities would still be interested in the applicant three years after the relevant events. The Tribunal did not accept that the applicant’s wife is harassed every day or that the applicant and his wife would both be harassed if the applicant was to return.

13. The Tribunal also found the applicant’s delay of three years in seeking protection after his arrival in Australia not to be consistent with a genuine fear of persecution at the time of his arrival, as claimed.

14. The Tribunal rejected the applicant’s claims of having made further protests or having been identified as a political activist or dissident in China.

15. It is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).

16. The Tribunal’s findings were open to it on the materials and evidence before it, and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).

17. In the circumstances, ground 1 does not identify any jurisdictional error on the part of the Tribunal and appears more to be a disagreement with the findings and conclusions of the Tribunal. Such complaints invite merits review which this court cannot undertake (Abebe v Commonwealth of Australia (1999) 162 ALR 1 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).

18. Accordingly, ground 1 is rejected.

Ground 2

1. Ground 2 was unsupported by particulars, evidence or written submissions.

2. I asked the applicant what was the relevant material that he was asserting the Tribunal failed to consider. The applicant responded that it was photographs of his seaweed farm that he had given to the Department. The applicant said that the Tribunal did not consider those photographs.

3. However, the Tribunal’s decision record states that the applicant submitted photographs which he said showed the demolition of his farm. Given that the Tribunal accepted the applicant’s claims that he and his wife had a seaweed farm in China which was confiscated by the government, it is difficult to see to what other issue those photographs could have gone. In any event, it would appear that the Tribunal had regard to the photographs in that it found the applicant had a farm in China. Even if it did not, the photographs referred to by the applicant could only have gone to that issue.

4. In any event, the Tribunal was required only to consider the claims advanced by the applicant (see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCA 1 at [60] per Black CJ, French and Selway JJ). Further, the Tribunal is not required to refer to every piece of evidence proffered by the applicant, nor is it required to make findings on each piece of evidence (see Minister for Immigration and Multicultural Affairs v Yusef (2001) 206 CLR 313).

5. In the circumstances, there is no jurisdictional error established by the applicant in relation to a failure by the Tribunal to consider relevant material.

6. The rest of ground 2 appears to be no more than a restatement of the applicant’s claims that it was his anti-corruption protest that led to his detention and that he was a person “holding political opinion against local government”. As is clear from the reasons above, the Tribunal understood the applicant’s claim to this effect but was ultimately not satisfied of its veracity. As stated above, the Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave.

7. No jurisdictional error is demonstrated in ground 2.

8. Accordingly, ground 2 is not made out.

Conclusion

1. A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the applicant; explored those claims with the applicant at a hearing; and, had regard to all material provided in support. The Tribunal put to the applicant matters of concern it had about his evidence and noted the applicant’s responses. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.

2. In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

3. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

4. The proceeding before this Court should be dismissed with costs.

I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Emmett FM

Date:  22 May 2012