SZRAD v Minister for Immigration and Citizenship
[2012] FCA 901
•23 August 2012
FEDERAL COURT OF AUSTRALIA
SZRAD v Minister for Immigration and Citizenship [2012] FCA 901
Citation: SZRAD v Minister for Immigration and Citizenship
[2012] FCA 901Appeal from: SZRAD v Minister for Immigration [2012] FMCA 423 Parties: SZRAD v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: NSD 781 of 2012 Judge: BENNETT J Date of judgment: 23 August 2012 Legislation: Migration Act 1958 (Cth) s 36(2) Cases cited: Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259Date of hearing: 21 August 2012 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 28 Counsel for the Appellant: The Appellant appeared in person with the assistance of an interpreter Solicitor for the First Respondent: R O’Shannessy of Minter Ellison Counsel for the Second Respondent: The Second Respondent filed a submitting notice
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 781 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZRAD
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
BENNETT J
DATE OF ORDER:
23 AUGUST 2012
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the costs of the first respondent.
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 781 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZRAD
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
BENNETT J
DATE:
23 AUGUST 2012
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The appellant claims to be a citizen of China. His application for a protection visa was refused by a delegate of the Minister for Immigration and Citizenship (the Delegate). The appellant applied to the Refugee Review Tribunal (the Tribunal) for a review of the delegate’s decision. The Tribunal affirmed the decision of the Delegate. His application to the Federal Magistrates Court seeking judicial review of the Tribunal’s decision was dismissed. This is an appeal from that decision.
The substance of the appellant’s claims are that:
(a)in August 2007, his wife told him that the government planned to ‘fill in the sea to make land and [their] farm was in the area of removal’.His wife did not believe that the amount of compensation from the government was fair and refused to sign the compensation agreement.
(b)on 1 September 2007, his farm was forcibly demolished by the government and he did not receive adequate compensation;
(c)he was detained and beaten for attempting to stop the police and government officials from demolishing the farm, and was fined 3,000 Yuan;
(d)on 6 September 2007, he and ten other villagers reported the situation to the town government and they were detained for 12 hours;
(e)subsequently, he wrote a letter of petition with a few other villagers and asked it to be brought to the Fujian provincial government;
(f)when the letter of petition was revealed, the police confiscated the letter and warned that he would be detained for three months unless he stopped the petition;
(g)the police subsequently placed him under surveillance; and
(h)he fears persecution by the Chinese government.
The appellant attended an interview with the Delegate on 6 July 2011. At that interview, he further claimed that when he was departing China the government sent someone to the airport. He was, however, able to leave before the person arrived. The appellant also provided the delegate with photographs of his farm and of his father’s funeral.
On 18 July 2011, the Delegate refused the appellant’s application for a protection visa on the basis that he did not satisfy s 36(2) of the Migration Act 1958 (Cth). That is, he was not found to be a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees and the 1967 Protocol relating to the Status of Refugees (the Convention) or was not a family member of such a person. The Tribunal upheld the Delegate’s decision on 28 November 2011. The Delegate’s decision and the Tribunal’s decision are summarised in the reasons of the Federal Magistrate at [21] – [29].
The decision of the Federal Magistrate
The appellant applied to the Federal Magistrate’s Court on 29 December 2011 for judicial review of the Tribunal’s decision. The grounds relied upon in the Federal Magistrate’s Court were, as framed by the appellant:
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.
The Federal Magistrate observed that ground 1 was unsupported by particulars, evidence or written submissions. In particular, her Honour noted that there was no identification by the appellant of any error in translation by the interpreter at the Tribunal hearing. No transcript was provided, nor was there any evidence to suggest that the Tribunal’s decision record was not accurate.
Her Honour considered the Tribunal decision and summarised it. Relevantly, the Tribunal accepted the appellant’s claims that he and his wife had a seaweed farm that was confiscated and that they considered the compensation offered to be inadequate. It also accepted that the appellant 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. It accepted that he was beaten during his detention. The Tribunal was not, however, satisfied that any of the appellant’s treatment amounted to persecution for a Convention related reason. It did not accept that he had any profile in China that was adverse to the government and concluded that his private dispute over land acquisition in China did not amount to Convention related persecution.
The Tribunal did not accept that all of the appellant’s evidence was truthful and gave reasons for that view.
The Federal Magistrate concluded that the Tribunal’s findings, including adverse credibility findings, were open to it on the material and evidence before it. Her Honour found that ground 1 did not identify any jurisdictional error on the part of the Tribunal but impermissibly invited merits review.
The Federal Magistrate noted that ground 2 was also unsupported by particulars, evidence or written submissions. The appellant did not identify any relevant material that the Tribunal failed to consider, apart from photographs to which the Tribunal referred and accepted in respect of the only issue to which they were relevant.
Her Honour found that there was no jurisdictional error established by the appellant in relation to a failure by the Tribunal to consider relevant material.
As to the rest of ground 2, the Federal Magistrate observed that it amounted to no more than a restatement of the appellant’s claims. Her Honour said that it was clear that the Tribunal understood his claim, to the effect that he was a person ‘holding political opinion against local government’, but was not satisfied as to its veracity. That finding was, her Honour said, open to the Tribunal on the evidence and material before it and for the reasons that it gave. Her Honour found no jurisdictional error demonstrated in ground 2.
Her Honour’s conclusion (at [62]) was as follows:
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.
The Federal Magistrate found that the Tribunal decision was not affected by jurisdictional error and was therefore a privative clause decision.
The notice of appeal
The grounds of appeal from the order of the Federal Magistrate dismissing the appellant’s application are, as framed by the appellant:
1.There exists jurisdictional error. Some important facts are not fully considered. In China, petitioners like me who suffered demolition of government by force are of interest of local governments.
2.There exists wrong application of law. Because some facts are wrongly considered, I'm not considered to suffer Convention-related persecution.
Consideration
I have not had the benefit of any written outline of submissions from the appellant. He appears in person, assisted by an interpreter. When asked what he wished to say in support of his appeal, he reiterated that his house had been demolished by the government, that he had been beaten and that this was persecution. He also said that his wife had been arrested again, on 24 June 2012. The appellant sought to provide evidence in support of this latest event by tendering the official record of the arrest, together with a translation. The Minister objected to the tender on the basis of relevance, namely that it was not before the Tribunal.
The translation of the official record of the arrest, confirmed by the interpreter to be accurate, stated that the appellant’s wife had been detained for a term from 25 June to 9 July 2012 for the detention reason ‘fighting against expropriation by the government and assembling to attack County Party committee’. Clearly, this evidence could not have been before the Tribunal or the Federal Magistrate, as it post-dated both decisions. In any event, it does not, on its face, assist the appellant in overcoming the finding of the Tribunal that the persecution that the Tribunal accepted that he suffered was not for a Convention reason. The further evidence is rejected.
The appellant did not provide any information or submissions directed to the grounds of the notice of appeal.
Ground 1
I understand that ground 1 amounts to an assertion that the Tribunal failed to properly consider the appellant’s claim. This ground purports to address the Tribunal’s finding that any harm that he suffered was not for a Convention reason. As characterised by the Minister for Immigration and Citizenship (the Minister), the ground is also to be read to allege that the appellant’s claim that he would be of interest to the local government because his farm was demolished by the government, was ignored. It may also be understood to be a claim that he is of interest to the local government because of his protest, rather than because his farm was confiscated.
In any event, as the Minster points out, the appellant’s claim was dealt with in detail by the Tribunal, inter alia, at [55] and [56] of its decision. Ground 1 amounts to a challenge to the Tribunal’s findings of fact. The Tribunal did not accept that the appellant was identified by local government authorities as a person holding a political opinion in opposition to the government as a result of his protest. It also did not accept that the authorities would still be interested in the appellant three years after the relevant events.
The Federal Magistrate found that the Tribunal understood the appellant’s claims but rejected them, in part on the basis of adverse credibility findings and because it was not satisfied of their veracity. The Federal Magistrate also said that the appellant had not been able to identify any relevant material that had not been considered by the Tribunal.
The appellant has not demonstrated how her Honour’s finding, that the Tribunal’s decision and findings were open to it on the material and evidence before it and for the reasons it gave and were not subject to jurisdictional error, is itself in error.
I see no error in the analysis or the conclusions of the Federal Magistrate.
Ground 2
The appellant gives no particulars or detail of what constitutes the asserted wrong application of law, or of the facts that are asserted to have been wrongly considered.
It follows that the appellant has not established a basis for a finding of error by the Federal Magistrate or jurisdictional error by the Tribunal.
For completeness, the Minister’s submissions address matters that the appellant might be seeking to raise, as follows:
·In the present case, the Second Respondent's decision turned largely on its rejection of some of the Appellant's claims. The First Respondent submits that, in finding that the Appellant 'was not telling the truth' in relation to his evidence about the various appeals he claimed to have made, the Second Respondent was entitled to direct its inquiry to the veracity of the Appellant’s claims regarding past events. These were fundamental to whether the Appellant’s claimed fear of harm was well-founded: Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, 574-576. Further, inconsistencies in the Appellant’s evidence, as were identified by the Second Respondent, are a matter which may logically go to a decision-makers (sic) consideration of an applicant’s claims (cf Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547, 552, 559).
·To the extent that ground two might be understood to express general disagreement with the Second Respondent’s decision, the First Respondent submits that no arguable jurisdictional error is disclosed. It is well established that it is not the role of the Federal Court, nor is it the role of the Federal Magistrates Court, to conduct merits review of the factual findings of the Second Respondent: Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259.
(footnotes omitted)
I accept those submissions.
Conclusion
The appellant has failed to establish error on the part of the Federal Magistrate or jurisdictional error on the part of the Tribunal. The appeal should be dismissed with costs.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett. Associate:
Dated: 23 August 2012
3
1