SZSMZ v Minister for Immigration and Border Protection

[2014] FCA 191

FEDERAL COURT OF AUSTRALIA

SZSMZ v Minister for Immigration and Border Protection
[2014] FCA 191

Citation:	SZSMZ v Minister for Immigration and Border Protection [2014] FCA 191
Appeal from:	SZSMZ v Minister for Immigration and Border Protection [2013] FCCA 1985
Parties:	SZSMZ v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL
File number(s):	NSD 2545 of 2013
Judge(s):	WIGNEY J
Date of judgment:	5 March 2014
Legislation:	Migration Act 1958
Cases cited:	Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303; [2010] FCAFC 51
Date of hearing:	5 March 2014
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	33
Counsel for the Appellant:	In person with the assistance of an interpreter.
Solicitor for the First Respondent:	Clayton Utz
Solicitor for the Second Respondent:	The second respondent filed a submitting notice save as to costs.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 2545 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZSMZ
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	WIGNEY J
DATE OF ORDER:	5 MARCH 2014
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Appeal dismissed.

2.The appellant to pay the first respondent’s costs fixed in the sum of $2,500.

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 2545 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZSMZ
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	WIGNEY J
DATE:	5 MARCH 2014
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant, SZSMZ, is a citizen of China. On 22 March 2012 he arrived in Australia with a tour group on a tourist visa.  On 4 April 2012, the day his tourist visa was due to expire, he applied for a protection visa.  That application was refused by a delegate of the first respondent, the Minister for Immigration and Border Protection (Minister), on 1 August 2012.

2. On 23 August 2012, the appellant applied to the second respondent, the Refugee Review Tribunal (Tribunal) for a review of the delegate’s decision refusing his protection visa application. On 21 December 2012, the Tribunal affirmed the delegate’s decision to refuse the application. The appellant then applied to the Federal Magistrates Court, now the Federal Circuit Court, invoking the jurisdiction of that Court under s 476 of the Migration Act 1958 and seeking an order that the decision of the Tribunal be quashed and the issue of a writ of mandamus directing the Tribunal to determine his application according to law.  That application was heard and dismissed by the primary judge in the Federal Circuit Court on 26 November 2013.  This is an appeal against the dismissal of that application.

3. For the reasons that follow, the appeal is dismissed with costs.

   The protection visa application and delegate’s decision

4. The appellant’s claims that formed the basis of his protection visa application were initially set out in a brief statement submitted along with his visa application.  In short, he claimed that in August 2010 he and a partner established a garment business. At this time or later in 2010 they built a factory on land rented from the Tongzhou District Xingdong County People’s Government (District authority). About a year later, in December 2011, the District authority gave notice that it was expanding the Tongzhou airport and that nearby houses and factories would be demolished and relocated. SZSMZ and his partner were offered some compensation and told to rent a factory in the nearby Tongzhou District Xiting Industrial Zone.

5. SZSMZ and his partner had a number of grievances with the actions of the District authority and the fairness of their actions in requiring the factory to relocate on the terms and conditions advised by the authority. They reported these grievances to the leaders of the District authority. Whilst they were dealing with the authority, the “demolition company” sent a number of people to the factory.  Those people pestered the factory staff.  The police were called. The demolition company staff said that they had been sent by the District authority and told him that he had to accept demolition and relocation. On 16 January 2012, demolition workers arrived at the factory with their equipment and began to demolish the factory “by force.” The police were called but did not intervene because it was a “demolition dispute.”  About a month later, SZSMZ together with twenty other “principals” from the factory went to the District authority to complain. There the police surrounded them and SZSMZ and his partner were arrested and charged with the crime of “disturbing public service.” They were detained for seven days and then released on bail.  After being released, the police warned them that they would face more severe punishment if they continued to complain.

6. About a month after their detention, both SZSMZ and his partner travelled to Australia. In his statement SZSMZ said that he intended to continue to write letters of complaint and fight for his legal rights.  The statement does not, however, contain any clear statement of what, if any, fears SZSMZ had about his safety should he have to return to China.

7. On 19 July 2012, SZSMZ was interviewed by the delegate.  At the interview SZSMZ reiterated and expanded on his claims.  He also supplied a scanned copy of a document that he said was a business licence for his garment business.

8. On 1 August 2012, SZSMZ’s visa application was refused by the delegate. In detailed written reasons provided to SZSMZ the delegate said that he did not find SZSMZ to be a satisfactory witness, that he found that SZSMZ had deliberately exaggerated or fabricated his claims and that he was not satisfied that he had given an accurate account of what had transpired in China.  The delegate pointed out that SZSMZ had provided virtually no verifiable documents to support his claims and that his evidence about simple matters, such as the address of the factory, were inadequate.  Importantly, the delegate also referred at length to “country information” that revealed that the plans for the expansion of Nantong airport were public knowledge from 2009, that visible upgrades were underway from 2009 and that the project was scheduled to conclude before 2011. This information was put to SZSMZ during the interview.  SZSMZ said that he was aware of the plans before he built the factory, however he was not told that his factory would be affected by the expansion. This explanation was rejected by the delegate, who found that it was implausible that SZSMZ would continue to build and invest in a factory when there were visible upgrades to the airport already underway and he was aware of the airport expansion.

   Proceedings in the Tribunal

9. The application by SZSMZ to the Tribunal was not accompanied by any further written statement or documentation.  The Tribunal convened a hearing at which SZSMZ gave evidence and presented arguments. The Tribunal’s reasons record that the evidence given by SZSMZ was broadly consistent with his statement and the evidence he had given before the delegate.  It appears to have been equally lacking in any detail.

10. During the hearing, the Tribunal raised the country information referred to in the delegate’s reasons which indicated that the airport expansion had been announced and was underway before SZSMZ, on his account, had established the factory. SZSMZ responded by saying that the expansion was announced in 2009 but did not happen until later. SZSMZ was also asked what he believed would happen to him if he returned to China. His answer was that he thought that because he had been absent from the country for a long time, he would be questioned about his overseas trip and feared that he would also be mistreated.  He did not expressly link the feared questioning or mistreatment with the events that had occurred in relation to his protest and detention concerning the demolition of his factory.

11. Like the delegate, the Tribunal found SZSMZ to be an unsatisfactory and unpersuasive witness.  His answers to questioning at the hearing were limited and evasive and when asked to give further detail he made generalised statements.  The Tribunal was particularly unimpressed by SZSMZ’s “highly generalised” responses to questions about why he came to Australia rather than seeking compensation in China and what he feared would happen if he returned to China.  The Tribunal considered that it was implausible that SZSMZ would come to Australia so soon after the forced acquisition of his previously successful business, effectively leaving the issue of compensation unresolved.

12. The Tribunal also found that SZSMZ’s claims were inconsistent or difficult to reconcile with the country information concerning the expansion of the airport.  The expansion of the airport was “announced and underway in 2009 well before the applicant claims to have set up his business and some two years prior to the applicant’s claimed confiscation of his factory to make way for the expansion” (Tribunal’s Reasons at [36]).

13. The unpersuasive and generalised evidence given by SZSMZ concerning the events relating to the forced acquisition of the factory in China and the inconsistency between his claims and the country information led the Tribunal to effectively reject all of his claims.  The Tribunal was not satisfied that SZSMZ left China because of the circumstances relating to the factory and his protests.

14. In relation to SZSMZ’s fear of questioning and mistreatment should he return to China, the Tribunal accepted that he may face questioning about his absence when he returns to China, but did not accept that the questioning would amount to “serious harm” or that the questioning would be for a “Convention reason” (reasons of race, religion, nationality, membership of a particular social group or political opinion) or lead to any mistreatment for a Convention reason.

    Proceedings in the Federal Circuit Court

15. The application filed by SZSMZ in the Federal Circuit Court contained the following grounds:

    1.        I was not considered fairly according to law.

    2.        I will be harmed by local government.

    3.        My evidence was not accepted by RRT.

16. No evidence was tendered and no written submissions were filed by SZSMZ. The reasons of the primary judge record that in his oral submissions, SZSMZ referred to two factual findings made by the Tribunal that he disagreed with. The first finding concerned the Tribunal’s finding that the airport expansion was underway in 2009.  The second concerned the finding that that any questioning that SZSMZ might face if he returned to China would not amount  to serious harm and would not be for a Convention reason.

17. The primary judge found that both findings were open to the Tribunal on the material before it and that SZSMZ’s complaints appeared to amount to nothing more than a disagreement with the factual findings and conclusions of the Tribunal.  As such, they did not identify any jurisdictional error on the part of the Tribunal. In relation to the grounds contained in the application, the primary judge found that they amounted to bare assertions unsupported by evidence that did not disclose any jurisdictional error.

    Appeal grounds and submissions

18. In this Court SZSMZ relies on three grounds of appeal:

    1.        RRT confused the conceptions of airport expansion and airport update.

    2.        RRT made mistakes and prejudged my claims by reading the reports and interpreted the reports on the newspapers wrongly.

    3.        The Federal Circuit Court Judge didn’t understand what I said during the hearing. I should be given another chance.

19. No written submissions were filed by SZSMZ.

20. At the hearing of the appeal, SZSMZ advanced three arguments.  His first argument related to the fact that he did not have legal representation.  He said that the Court assigned him a lawyer, but he did not have much contact with the lawyer.  Nor did the lawyer appear for him at the hearing.  As a result, he said he did not really know what to say.

21. The second argument advanced by SZSMZ related to the finding made by the Tribunal at paragraph [36] of its reasons, based on the country information, concerning the date of the announcement and commencement of the airport extension.  He submitted that the Tribunal relied on a draft report to make this finding and that the report only told part of the story because it just referred to a small part of the project.  The Tribunal did not consider the major part of the project, which involved an extension of the road.  It was that part of the project that required the relocation of the factory.  SZSMZ said that it was because of the incorrect finding in paragraph [36] that the Tribunal thought that his evidence was not reliable or true.

22. The third argument advanced by SZSMZ related to the finding at paragraph [37] of the Tribunal’s reasons concerning his fears about what might happen to him if he returns to China. He said that in finding that the police interrogation that might take place if he returns to China would not amount to serious harm, the Tribunal failed to consider that the police would question him about what he had been doing whilst he was in Australia, including the fact that he had applied for a protection visa. He said that he feared that the police would treat him badly and that he was very scared.

    Resolution of appeal

23. None of SZSMZ’s appeal grounds or submissions have any merit. Even if there was any substance to any of the contentions or arguments advanced by SZSMZ, they amount to nothing more than complaints about factual findings made by the Tribunal which were not open to challenge in the Federal Circuit Court having regard to that Court’s limited jurisdiction under s 476 of the Act. No argument advanced by SZSMZ identifies, let alone establishes, any error on the part of the primary judge.

24. The first ground of appeal essentially raises the same complaint or argument raised by SZSMZ in the Federal Circuit Court concerning the Tribunal’s finding that the airport expansion was announced and underway in 2009 before SZSMZ claims to have established his business. This factual finding was also challenged in SZSMZ’s oral submissions.

25. The primary judge was correct to find that this finding was open on the material before the Tribunal.  The relevant country information is summarised in the delegate’s reasons.  The delegate’s summary supports the Tribunal’s finding, expressed as it is in fairly general terms.  A fair reading of the Tribunal’s reasons reveals that, contrary to the submissions made by SZSMZ, its finding in paragraph [36] was not based on a single report, but on the large number of reports referred to and summarised in the delegate’s reasons.  Those reports distinguish between different stages of the airport expansion.  There is no basis for concluding that the Tribunal relied on only one report that told only part of the story.  Nor is there any basis for concluding that the Tribunal “confused the conceptions of airport expansion and update” as alleged in ground one of the notice of appeal.  SZSMZ has accordingly not established any basis for disturbing the Tribunal’s finding based on the country information.

26. In any event, even if this complaint was made out, any resulting error by the Tribunal was purely factual in nature. As the primary judge correctly found (referring, at [52], to Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303; [2010] FCAFC 51 at [20]), a wrong finding of fact is not an error of law. Nor is unsound reasoning in relation to factual matters. Neither can amount to jurisdictional error.

27. The same can be said about SZSMZ’s challenge to the finding made by the Tribunal in paragraph [37] of its reasons, which was that any interrogation that SZSMZ might have to endure upon his return to China would not amount to serious harm.  This finding was also challenged in oral submissions made to the primary judge, though it is not expressly covered by any of the grounds of appeal. 

28. The primary judge was correct to reject this challenge to the Tribunal’s findings. It appears from the Tribunal’s reasons that SZSMZ’s evidence concerning his fear that he would be interrogated was unsatisfactory and in the most general terms.  It is not at all clear that, as SZSMZ contended in his oral submissions, his evidence in the Tribunal was that he feared that he would be interrogated about his activities in Australia.  Having regard to the limited evidence given by SZSMZ in relation to this issue, it was open to the Tribunal to find that any interrogation that might take place would not amount to serious harm and would not be for a Convention reason.  In any event, such a factual finding by the Tribunal was not open to challenge in the Federal Circuit Court.  The primary judge did not err in anyway in rejecting this aspect of SZSMZ’s challenge to the decision of the Tribunal.

29. The second ground of appeal raises two issues.  The first is whether the Tribunal made mistakes because it misinterpreted the newspaper reports.  The arguments advanced by SZSMZ in relation to this issue again relate to the Tribunal’s findings that the airport expansion was announced and underway in 2009.  For the reasons already given, the primary judge was correct to find that the Tribunal’s findings in this regard were open on the materials before it and that, in any event, any mistake or error was a mistake or error of fact that would not amount to jurisdictional error.

30. The second issue potentially raised by ground 2 concerns whether the Tribunal “prejudged” his application by reading the country reports relating to the airport expansion.  This could be viewed as a contention that the Tribunal failed to exercise its jurisdiction because it was biased and simply accepted or adopted the delegate’s findings concerning the reports.  If that is the contention advanced by SZSMZ, it has no merit and must be rejected. There is no doubt that the Tribunal had the delegate’s decision and reasons before it, as well as the country information referred to in the reasons (see Tribunal’s Reasons at [19]).  During the hearing, the Tribunal put the country information, as set out in the delegate’s reasons, to SZSMZ for comment. A fair reading of the Tribunal’s reasons indicates that the Tribunal drew its own conclusions from the country information and the responses given by SZSMZ to that information.  Any allegation of prejudgment or bias is entirely unsupported by evidence and is rejected.

31. It should also be noted that the allegation of prejudgment was not the subject of a ground in the application filed in the Federal Circuit Court and was not advanced in SZSMZ’s submissions before the primary judge.  Nor was any argument based on prejudgment advanced by SZSMZ in his oral submissions at the hearing of the appeal.

32. In relation to the third ground of appeal, SZSMZ has failed to demonstrate that the primary judge misunderstood any aspect of his case.  The notice of appeal does not provide any particulars of the part of his case that SZSMZ contends the primary judge misunderstood.  Nor did SZSMZ advance any submissions in support of this ground at the hearing.  In any event, the judgment of the primary judge carefully sets out and deals with the grounds of the application and the oral arguments advanced by SZSMZ at the hearing.  There is nothing whatsoever to indicate that the primary judge did not understand any aspect of his case.  SZSMZ’s real complaint amounts to nothing more than a complaint that the primary judge did not accept his arguments.  Those arguments were correctly rejected by the primary judge as having no merit and as amounting to nothing more than bare assertions unsupported by evidence, or complaints about findings of fact made by the Tribunal that were open on the materials before it.

1. Finally, something should be said about the issue raised by SZSMZ about legal representation.  In the judgment of the primary judge, reference is made (at [40]) to the fact that SZSMZ was referred to and participated in the Court’s legal advice scheme.  As a participant in that scheme he received free legal advice concerning his application to the Federal Circuit Court.  He was not, however, represented by a lawyer at the hearing in the Federal Circuit Court.  There is, however, no indication that he raised any issue about this before the primary judge.  In any event, the fact that he was unrepresented provides no basis for SZSMZ to challenge the judgment of the primary judge.  It is clear that the primary judge gave detailed and careful consideration to the Tribunal’s decision and all the materials in the court book, as well as the arguments advanced by SZSMZ.  The primary judge was correct to conclude that the Tribunal’s decision was not in any way affected by jurisdictional error. 

   Conclusion

2. SZSMZ has not established that the primary judge erred in any way. The primary judge was correct to dismiss his application for the reasons given. The appeal is accordingly dismissed. The Minister applied for an order, pursuant to s 43(3)(d) of the Federal Court of Australia Act 1976 that he be awarded costs in a specified sum.  The sum sought by the Minister was $2,500.  The Minister relied on an affidavit sworn by his solicitor that explained how that sum was arrived at.  In the circumstances, it is appropriate to make an order for costs in a specified sum and the sum of $2,500 is a reasonable amount.  Accordingly, the appellant should be ordered to pay the Minister’s costs fixed in the sum of $2,500.

I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wigney J.

Associate:

Dated:        5 March 2014