SZRBK v Minister for Immigration - [2012] FMCA 306

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRBK & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 306

MIGRATION – Review of Refugee Review Tribunal decision – refusal of protection visas – applicants claiming persecution at the hands of corrupt local officials in China – applicants not believed – no arguable case of jurisdictional error.

COSTS – Refusal to make a costs against the second applicant who is the first applicant’s daughter and who has not participated in any interview or hearing process before the Minister’s Department, the Tribunal or the Court.

Migration Act 1958 (Cth), ss.424A, 424AA

First Applicant:

SZRBK

Second Applicant:

SZRBL

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 86 of 2012

Judgment of:

Driver FM

Hearing date:

12 April 2012

Delivered at:

Sydney

Delivered on:

12 April 2012

REPRESENTATION

The First Applicant appeared in person

The Second Applicant did not appear

Solicitors for the Respondents:

Ms E Liddle
Sparke Helmore

INTERLOCUTORY ORDERS

The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The first applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,123 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 86 of 2012

SZRBK

First Applicant

SZRBL

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was made on 19 December 2011. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants protection visas.
There are two applicants: the first applicant, who is the applicant father, and the second applicant, who is his daughter. The relevant protection claims were made by the first applicant. References in this judgment to the applicant are references to him.
The applicants who are from China both arrived in Australia on 19 June 2011. They applied to the Minister’s Department for protection visas on 30 June 2011. The first applicant made the protection claims. The second applicant was included as a member of his family unit. The Minister’s delegate refused to grant the visas on 17 August 2011. On 15 September 2011 the applicants applied to the Tribunal for review of the delegate’s decision.
In his application for protection, the applicant claimed to have been born in Henan, China on 21 March 1967. He stated that he is a Mandarin speaking Chinese of Han ethnicity and has no religion. The applicant’s wife and son, who are in China, were not included on the protection visa application. The applicant included his passport, and his daughter’s passport, with the application. He claimed to have never used any other passport. This disclosed that he had travelled to Korea in 2002, and had also travelled to New Zealand for two days before entering Australia.
The applicant claimed a high school level of education. He previously was a worker in a fertiliser plant until he established a clothing supermarket business in December 1998. He claimed to be the boss of this business and to earn a monthly salary of RMB20,000. He claimed to experience no difficulties in obtaining his passport. He remains in contact with his wife in China. His parents and two brothers also live there.
The second applicant claimed to speak Mandarin, Chinese and English. She also claimed Han ethnicity and no religion. The second applicant has a degree from Henan Financial, Political and Law University in July 2010. She disclosed no work history.
The Tribunal records in [23] of its reasons[1] the claims of persecution made by the first applicant:
[1] court book (CB), 92 and 93
The applicant provided a handwritten statement dated 26 June 2011 with an English translation which accompanied his protection visa application setting out his refugee claims. His claims include:-
·    He was persecuted by the CCP government officials in collusion with a local criminal group causing him to come to Australia to save his life.
·    In 1998 after some difficulty, he raised money to purchase a 300m2 ground level shop located at … . With his wife, he operated a clothing business Yaxing Clothing Supermarket. He worked hard and by 2008 generated a monthly profit of RMB20,000.
·    On 15 October 2010, he received a notice to attend a meeting on 18 October 2010 at the demolition and relocation office with a Mr Li. The applicant and 5 other shop owners attended. He was informed according to a County government plan, the shops were to be demolished to build a four-star hotel. He was handed a document with the demolition schedule and compensation rate.
·    The applicant and his wife were worried the relocation of his business would affect its profitability.
·    He met with the other shop owners facing demolition. The applicant and Li Hua were nominated to represent the six owners. They petitioned the city government to revoke the decision to build the hotel on the site of their shops or to raise the compensation rate. The petition letters were returned with the response the decision was irrevocable for the benefit of developing the local economy.
·    The applicant learned the company developing the hotel was Xin County General Property Development Company. The managing director of this company, Wang Jun Tao is the cousin of the deputy mayor of the city government, Wang Jun Shun. This connection allowed the company to buy the land from the local land bureau at less than market price. The applicant claimed Wang Jun Shun was a major shareholder of the company.
·    The applicant was offered RMB2,000 m2. The business is located in the best and busiest street in the county. In 2009 he was offered RMB3,000,000 to sell his business and property. He thought he was being robbed, not compensated.
·    After the county government ignored the petitions, they applied to the County Court on 10 December 2010. The Court dismissed the case on 25 December 2010 by not listing it.
·    The applicant sent petitions to the provincial government, without response.
·    On 11 February 2011, the applicant and Li Hua travelled by bus to Zhengzhou city at 6am intending to file a case with the provincial court. When the bus had travelled 50km from the County, it was stopped by two police vehicles. The applicant and Li Hua were ordered to return to the County Public Security Bureau to assist with an investigation. He and Mr Li were forcibly removed from the bus, forced into the police vehicle and blindfolded. The applicant was handcuffed.
·    The applicant was taken to a room where he was bashed with a belt and kicked. The pain caused him to roll on the ground. His nose bled from the kicking and he fainted from pain. Water was poured on him to regain consciousness. Someone said to him: “Do not judge us by our police uniform, we are not police, we only do what we are told. We are relaying you the message that is seeking self-inflicted trouble for the ordinary people like you to do against the government officials in court. Don’t you know who the real boss of the property development company is? [He] is the highest official in Xin county! The current compensation rate of 2000 yuan you would receive from the development company is already a very generous offer so to give you face-saving step to exit. How about no compensation at all? You still have to accept it! It is not our purpose of hurting you by taking you to this place today. We give you a warning that you must accept what the development company has offered! If you still want to go to court, you would not be as lucky as today that we only stopped you fifty kilometres from County. If we stopped you next time, we then would totally eliminate the source of this trouble! Then your insignificant fate would be sealed!”
·    The applicant claimed he had received prior threatening letters and telephone calls on many occasions.
·    The applicant and Li Hua were driven to the outskirts of the County and pushed out of the vehicle at 10 o’clock. They supported each other to return home. His wife cried when she saw the applicant’s bruises.
·    The applicant discussed what had happened with his wife. They decided not to sign or seal any documents and to apply to a Court once the communist party regime collapses. He could not allow these persons to locate him in China because his life was at risk. He decided to go overseas and to take his daughter with him to care for him.
·    He obtained his visitor visa to Australia through a travel agency.
·    He was a law-abiding businessman whose hard earned assets were being seized by the communist government. He refused to accept that and applied to the Court which led to his being beaten by thugs hired by the company. He was threatened to be eliminated if he continued to petition higher authorities.
·    He asks Australia to protect him and his daughter, he will return to China to be with his family after the communist regime collapses.
The applicant attended a hearing before the Tribunal by video link on 5 December 2011. The hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The second applicant did not attend. The first applicant stated that she was ill. The Tribunal enquired whether the applicant wished to seek an adjournment. He said that he had not intended for his daughter to attend the hearing, and did not wish to seek an adjournment.
The applicant stated that he had prepared his visa application himself, with the assistance of this daughter and also with the assistance of a friend who he referred to as Teacher Zhang. It appears that Teacher Zhang accompanied the applicant to the Tribunal hearing premises, but did not attend the hearing.
The applicant was questioned at length about his claims. The Tribunal was concerned about a number of inconsistencies between the applicant’s oral and written evidence. Those inconsistencies are detailed in the Tribunal’s reasons at [46][2]:
The Tribunal next put to the applicant a number of inconsistencies between his oral evidence at the hearing and his written statement:
a. In his oral evidence, the applicant stated he was not handcuffed or blindfolded when put into the room on 11 February. The applicant confirmed this was correct. The Tribunal put to him in his written statement he said he was blindfolded and handcuffed in the car, but not in the room.
b. In his oral evidence, the applicant stated he was kept in the room for two days. His statement does not mention being detained for two days. It seems it happened over one day because he was released at 10 o’clock. He and Li Hua then went home. When his wife saw his bruises, she cried. The applicant repeated that the events happened over two days. He said they took him to hospital and his wife first saw him in hospital, which is where she cried.
c. The Tribunal asked whether the men who detained him ever told him they were not police. The applicant repeated his oral evidence that he thought they were not police because they did not feed him overnight and when he asked the next morning if they were police, the man replied asking if the applicant was stupid, that they were police. The Tribunal put the applicant in his written statement a man said to him not to judge them by their uniform, they are not police, they only do what they are told. The Tribunal asked the applicant whether the evidence in his statement was correct or whether his oral evidence was correct. The applicant replied that his oral evidence today was correct.
d. The Tribunal confirmed the applicant’s oral evidence Wang Jun Shan and Wang Jun Tao were present in the room. The applicant said he grabbed Wang Jun Shan’s clothes. The Tribunal noted this important claim was not included in his written statement. He said written statement he tried to keep things brief because he thought that was more convenient for the Tribunal to understand. The Tribunal noted at the commencement of the hearing when asked, the applicant said he wished to make no corrections to his statement but that he wanted to add some information, which the Tribunal allowed him to do. The Tribunal advised the applicant it was having difficulty believing his evidence because there were so many inconsistencies.
e. The Tribunal put to the applicant it did not make sense for a man to say to him, [does] he not know who the real boss of the property development company was, he was the highest official in Xin county if Wang Jun Shan was standing in the room at the same time. The applicant responded that these words were said to him at the same time he was being beaten. The Tribunal noted that he claimed in his oral evidence he was beaten after grabbing the clothes of Wang Jun Tao. The applicant then stated he was confused. Wang Jun Shan was not in the room, but Wang Jun Tao was present.
f. The Tribunal confirmed the injuries the applicant suffered were stitches to his left leg and broken toes on his right foot after being beaten by a wooden stick. The applicant confirmed that was correct. The Tribunal then put to the applicant in his written statement he claimed he was beaten with a belt and kicked in the face. He made no reference to being beaten by a wooden stick or suffering injuries to his legs. The Tribunal advised the applicant it was having difficulty accepting his evidence as credible, the applicant apologised to the Tribunal.
[2] CB 98-99
At [50] of its reasons[3], the Tribunal purported to go through a process of oral disclosure in relation to adverse information obtained by the Tribunal from an internet enquiry about the applicant’s business. After referring to independent country information about the process for lodging complaints about bureaucratic decision in China, the Tribunal addressed its conclusions in respect of the applicant’s claims. The Tribunal took into account the applicant’s level of education. It accepted also, that evidence received through an interpreter leaves room for differences in meaning and nuance.
[3] CB 99 and 100
The Tribunal found, nevertheless, that the applicant was able to communicate effectively, understood the Tribunal proceedings, and participated in a meaningful way. The Tribunal also satisfied itself that the standard of interpretation was reasonable, and that at no time during the hearing did the applicant indicate any difficulty with interpretation[4].
[4] CB 102
Although having some doubt, the Tribunal gave the applicant the benefit of the doubt in relation to his involvement in a business in China[5]. However, at [63][6] of its reasons, the Tribunal rejected the applicant’s other claims as having been fabricated:
[5] CB 102 at [62]
[6] CB 102 to 103
For the reasons discussed below, the Tribunal finds the applicant has fabricated his remaining claims. It finds the applicant was not a creditworthy witness. There were substantial and material inconsistencies between the applicant’s claims in his written statement and his oral evidence. These inconsistencies include,
a. Whether he was blindfolded and handcuffed (yes in his written statement, no in his oral evidence, then changed his oral evidence to yes in the police car, but no in the room)
b. [The] injuries he sustained (blooded nose and unconsciousness in his written statement, a wound to his left leg requiring stitches and broken toes on his right foot in his oral evidence)
c.How he was assaulted (struck with a belt and kicked in his written statement, beaten and struck with a wooden stick in his oral evidence)
d. Whether the men who detained him told him they were not genuine police (yes in his written statement, no in his oral evidence claiming he released they were not police because he and Li Hua were not fed overnight)
e. Who was present at the time he was beaten (hired men in his written statement, Wang Jun Tao and Wang Jun Shan in his oral evidence, later changed in his oral evidence to Wang Jun Tao only)
f. For how long he was detained (until 10 o’clock in his written statement, the afternoon of the next day in his oral evidence)
g. How he was released (he and Li Hua driven to the edge of the county from where they had to support each other home in his written statement, taken to a hospital in his oral evidence)
h. Where he was first met by his wife (at home in his written statement, at hospital in his oral evidence)
i. Whether he was hospitalised (not mentioned in his written statement, hospitalised for 18 days and paid RMB20,000 in compensation by Wang Jun Tao for his hospital expenses in his oral evidence).
The Tribunal gave the applicant the opportunity at the hearing to make amendments or additions to his written statement and none were made. His attempt to explain inconsistencies between his written and oral claims was not persuasive to the Tribunal.
The Tribunal accepted, on the basis of independent country information, that there are corrupt practices in the compulsory acquisition of property in China, particularly at the local government level. The Tribunal also accepted as plausible, reports of local government officials adopting illegal practices, including colluding with organised crime in dealing with legitimate complaints under the Chinese Xinfang system and the local courts[7].
[7] CB 103
The Tribunal concluded, however, that the applicant was not the victim of such corrupt practices. The Tribunal found that neither applicant was at risk of persecution in China for any Convention reason.
These proceedings began with a show cause application filed on 16 January 2012. There are three purported grounds in that application:
I was persecuted by Wang Jun Tao and the local CCP government officials in collusion with the local criminal group causing me with my daughter to leave for Australia in order to save our [lives].
But the member of the Refugee Review Tribunal didn’t believe the fact that I was persecuted by Wang Jun Tao who colluded with the corrupt deputy-mayor, Wang Jun Shan and my freedom was restricted and I was threatened.
The Tribunal member failed to consider my application according to s.91R of the Migration Act 1958 because of the Tribunal member’s bias against me.
Only the third ground asserts jurisdictional error.
I received as evidence the court book filed on 20 February 2012.
Having regard to the generality of the applicant’s claims, and the lack of supporting evidence, I gave directions in this matter on 15 February 2012. I gave the applicant the opportunity to file an amended application giving complete particulars of each ground of review and supportive evidence. He has not taken up that opportunity.
The applicant attended Court alone today. When I invited him to make oral submissions in support of his show cause application, he declined to do so. However, after hearing oral submissions made on behalf of the Minister, the applicant did make submissions. He said that he was grateful for the opportunity to receive advice under the Minister’s Panel Advice Scheme. I note that advice was provided by Mr James Johnson on 5 March 2012. Notwithstanding a caution from me, as to the privileged status of that advice, the applicant elected to disclose what advice he had received. In essence, the applicant has received advice that the Tribunal decision is free from jurisdictional error. I have reached the same conclusion.

The applicant contends that he was nervous at the time of the Tribunal hearing and was unable to put his claims clearly and effectively. However, it is apparent to me from a reading of the Tribunal decision that the Tribunal took care to ensure that the applicant was able to participate effectively in the hearing. I do not accept that any nervousness the applicant may have experienced prevented him from participating effectively.
The Tribunal thoroughly and carefully considered all of the applicant’s claims. The Tribunal met such obligation of disclosure as it had under s.424A of the Migration Act1958 (Cth), by following an oral process of disclosure under s.424AA.
There is no arguable case of any breach by the Tribunal of any aspect of its procedural code.
The applicant asserts bias on the part of the Tribunal, but there is no evidence whatsoever to support that allegation. The grounds in the application otherwise repeat the applicant’s claims of persecution and cavil with the merits of the Tribunal decision.
I conclude that the applicant has failed to demonstrate an arguable case of jurisdictional error by the Tribunal. I will order that the application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”).
In consequence of the dismissal of the application, the Minister seeks an order for costs against both applicants in accordance with the Court scale. The first applicant did not wish to be heard on costs. I have some concern about the making of a costs order against the second applicant. While she was plainly included in the visa and review applications, the second applicant has not participated in any oral hearing at any stage.
Neither applicant attended an interview before the Minister’s delegate. The second applicant did not attend the Tribunal hearing, and the first applicant explained away her absence. The second applicant did not attend the directions hearing before me on 15 February 2012. Neither has she attended today. This leaves me to speculate about whether and to what extent the second applicant has knowledge of the proceedings, and is a willing participant in them. Without giving the second applicant an opportunity to make submissions on costs, I am unwilling to make a costs order against her.
I will order that the first applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,123 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Driver FM

Date: 16 April 2012