SZOMW v Minister for Immigration & Anor [2010] FMCA 909 (22 November 2010)

Last Updated: 24 November 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOMW v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 909

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) Visa – no reviewable error – application dismissed. The Applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym SZOMW.

Migration Act 1958 (Cth), ss.36(2)(a), 414

Applicant WAEE v Minister for Immigration and Indigenous Affairs [2003] FCAFC 184 Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 168 ALR 407 SZCOS v MIAC [2008] FCA 570

Applicant:

SZOMW

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1425 of 2010

Judgment of:

Lloyd-Jones FM

Hearing date:

2 November 2010

Delivered at:

Sydney

Delivered on:

22 November 2010

REPRESENTATION

The Applicant:

Applicant appeared in person with the assistance of a Mandarin Interpreter

Solicitors for the Respondents:

Mr Baird of Clayton Utz

ORDERS

(1) The Application filed on 29 June 2010 is dismissed.
(2) The Applicant is to pay the First Respondent’s costs and disbursements, of and incidental to the Application, fixed in the sum of $4,850.00.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 1425 of 2010

SZOMW

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

1. The Applicant was born in February 1989 in Fujian Province of China. He was 21 years of age at the time of appearing before the Tribunal and this Court. He attended Qiankeng Primary School and Longtian Middle School, finishing his schooling in China in 2005. The Applicant is single and his father, mother, sister and brother remain in China. He obtained a Chinese passport in 2006 and arrived in Australia on a Subclass 571 Student Visa on 16 October 2007. He was granted a further Subclass 571 Student Visa in Sydney on 19 December 2007, valid until 15 March 2010. That visa was cancelled on 16 December 2008. He applied for revocation of the cancellation on 31 July 2009. On 18 August 2009, a delegate refused to revoke the cancellation.
2. The Applicant lodged the protection visa application on 2 November 2009. In a statement accompanying his protection visa application he makes the following claims:
   1. His parents own the Heping Hotel in Baoting County, Hainan Province.
   2. On 4 November 2008, during the time he was studying in Australia, his parent’s hotel was forcibly demolished and the land expropriated by the local government. The government promised the family compensation of RMB 2,000,000 but only paid RMB 10,000 relocation fee. There was no opportunity to negotiate with the local government.
   100. The Applicant’s father complained to higher authorities about the action of the local government but his appeal was refused. The Applicant’s father argued with the government’s staff and was detained for one day. He was tortured during his time in detention.
   4. To protect his wife, the Applicant father divorced her in November 2008 and left the family to take on a labouring job to support the family. He continued to appeal to higher authorities.
   5. As a result of the hotel demolition, the Applicant’s parents could not support his studies. He had to give up his studies and find a job to support himself. If he returned to China he would support his father’s appeal and they may both be arrested by the police and tortured.
3. A Court Book (“CB”) prepared and filed by the First Respondent’s solicitors is marked Exhibit “A” and is the only evidence before the Court. It is the decision of Mr Denis O’Brien, RRT Case number 1001256, dated 27 May 2010 that is the subject of this application.
4. On 22 January 2010 the Applicant attended an interview with a delegate of the Minister (CB 100 - 102). On 24 January 2010 a delegate of the Minister refused to grant the visa (CB 118 - 137). On 22 February 2010 the Applicant applied to the Refugee Review Tribunal (“the Tribunal”) for a review of the delegate’s decision (CB 138 – 141). On 31 March 2010 and the 19 April 2010, the Applicant appeared before the Tribunal (CB 162 – 165 and 175 – 178). By letter dated 28 April 2010, the Tribunal invited the Applicant to comment on information which the Tribunal considered would, subject to the Applicant’s response, be the reason or part of the reason, for affirming the decision under review (CB 187 – 188). On the 18 May 2010 the Applicant responded to that application by an undated facsimile to the Tribunal (CB 189 – 190). On 27 May 2010, the Tribunal affirmed the decision of the delegate not to grant a visa (CB 191 – 207). On 29 June 2010 the Applicant applied to this Court for a review of the Tribunal’s decision.
5. In the Application filed in this Court, the Applicant lists three grounds of review:
   1. RRT did not fully consider my fear and my father’s persecution;
   2. RRT did not worry my evidence that my father’s situation;
   3. RRT low assess my risk to return to China.
6. The Applicant has also included the following claims in his supporting affidavit, filed with his application:
   • (d) My father was persecuted in China. He was detained; and
   • (e) I fear to go back. I may be put in detention centre if I return to China.
7. At the First Court Date directions hearing on 20 July 2010, the Applicant was granted leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon and any additional affidavit material in support of the Amended Application by 13 September 2010. At the First Court Date directions hearing the Applicant expressed the desire to participate in the pilot RRT Legal Advice Scheme (NSW) and the scheme coordinator was advised of that request. The Applicant was allocated a panel advisor and he attended a conference where he received written advice and an Amended Application.
8. The Applicant availed himself of this opportunity and filed an Amended Grounds of Application on 7 September 2010 which contained the following grounds:
   • The Second Respondent (“the Tribunal”) misunderstood the nature of the claims being made by the Applicant; alternatively it failed to consider or to make findings on any integer of the Applicant’s claim for a protection visa.
     • Particulars
     • (a) the Applicant’s case was that he was exposed to risk of persecution from the Authorities in China because he would, upon return to China, vigorously support his father in his efforts to recover adequate compensation of his father’s hotel: see for example, the decision of the Tribunal at para 44, 48, 49 and 51.
     • (b) however, the Tribunal assessed the Applicant’s claim as being merely that he was at risk because of his familial relationship with his father: see the decision of the Tribunal at para 64 and 68.
     • (c) The Tribunal failed to understand – or alternatively it failed to make a finding on – the Applicant’s claim that he was at risk of persecution because of his own future conduct in challenging the authorities rather than merely because of his relationship to his father.

Tribunal decision

9. At the hearing before the Tribunal, the Applicant made additional claims which were that:
   1. His father was planning to appeal to the national authorities in Beijing; and
   2. On 9 January 2009 a friend had asked his father to return to Hainan to join a group of people who had their land expropriated and who wanted to mount an appeal. His father was beaten in Hainan a short time after his arrival (CB 201 at [44]).
10. In setting out the following background of the Tribunal’s summary and reasons, I have relied upon the material prepared by Mr Baird in his written submissions. This information is provided to assist in the understanding of the nature of the application and not to establish any evidentiary point. The Tribunal found that the Applicant does not face a real chance of suffering serious harm at the hands of the authorities or anyone else in China on the grounds of his imputed political opinion or any other Convention ground, now or in the foreseeable future, should he return to China (CB 206 [69]).
11. The Tribunal doubted aspects of the Applicant’s claim by reason of:
    1. The timing of his application for the protection visa, noting that it was “difficult to believe the genuineness of the Applicant’s claim, given that his protection visa application was lodged quite some time after his arrival in Australia” and only after a delegate had refused to revoke the cancellation of his student visa (CB 205 [65]);
    2. The asserted timing of the events in China, namely “that, on the Applicant’s evidence, the notification of intention to expropriate the hotel, its demolition, the Applicant’s father’s appeal, his detention, his return from Hainan to Fuqing and his divorcing of the Applicant’s mother all occurred within the space of about a fortnight”(CB 205 [66]); and
    100. The failure of the Applicant to mention the alleged assault of his father in Hainan in January 2009, until the Tribunal hearing. The Tribunal noted that the assault was “a significant incident in the context of the Applicant’s claim” and did not find it credible that the Applicant’s father only told him of the assault after he had told his father what had occurred at the interview with the delegate (CB 205 [67]).
12. The Tribunal found that, even if it were to accept all aspects of the Applicant’s claim, it did not accept that he had a well founded fear of persecution. This is because there is nothing to suggest that the Applicant would be of any interest to the authorities upon his return to China (CB 206 [68]). Further, there was no evidence before the Tribunal to indicate that there was any further claim or appeal being maintained by the Applicant’s father (CB 206 [68]). At most, the Applicant claimed that his father was “planning” such an appeal (CB 206 [68]).
13. Accordingly, the Tribunal considered “the possibility of the Applicant being persecuted for his imputed political opinion, or on any other convention ground to be remote” (CB 206 [68]). It found that the Applicant is not a person to whom Australia has protection obligations and does not satisfy the criterion set out in s.36(2)(a) for a protection visa (CB 206 [70]).

Consideration

14. At the First Court Date directions hearing, the Applicant was requested to file and serve in the registry, a short written outline of submissions and list of any authorities (14) days before the hearing. The Applicant confirmed that he had not complied with this request however he wished to make some oral submissions which are as follows:
    • RRT did not carefully consider my evidence. They asked me to put in further documents. I did, but the only thing they said was my documents were fake or false, but I have put in all documents that I have to the Tribunal and they just focused on my father’s persecution, but they did not focus on me who is the Applicant. They wrongly assessed the risk of my return to China, and in the material already certified that my father was violently harmed and said to me if I return I’ll be treated the same thing as my father suffered. If I return no matter how I fear I will assist my father to do the appealing. The Chinese government not only destroyed my father’s business also my family home and my future as I am here my father is unable to support me to study. This is one of the reasons by the persecution from the Chinese government. That is all I want to say your Honour. (T 2/11/2010 p.2, 31)
15. Mr Baird submits that the thrust of the Amended Application and the Applicant’s oral submissions is that the Tribunal misunderstood his claim, or alternatively, overlooked an aspect of his claim. The Applicant claims that the Tribunal focused exclusively on the harm that he said his father had suffered in China. He claims that his father was paid insufficient compensation and after he protested about that inadequate compensation, he suffered harm at the hands of the Chinese authorities. The Applicant’s case before the Tribunal was, so far as future harm is concerned, first, that his father intended to lodge a further appeal regarding the acquisition of his hotel and secondly, that the applicant would have a real risk of suffering harm in the future because he would wish to join his father in pursuing this appeal to the authorities.
16. The Applicant stated that his motivation for joining in that appeal process was due to some photographs showing the harm allegedly suffered by his father following the first appeal and the subsequent mistreatment by the authorities. Mr Baird submits that on a proper construction of the Tribunal’s reasons, the Tribunal expressed significant doubts about key aspects of the Applicant’s claims, in particular, the claimed assault on his father. The Tribunal did not accept that the Applicant’s father had been beaten at the hands of the authorities, but the photos purporting to evidence such a beating were genuine. The Tribunal rejected the premise as to why the Applicant would wish to join in any future protest action with his father.
17. In the Tribunal’s decision record at para.44 (CB 201) the Applicant first raised his claim about why he would wish to join his father’s appeal in China. The record states:
    • 44. The Tribunal asked the applicant what he feared if he returned to China. He said that, if he were sent back, he would assist his father with his appeal. The Tribunal asked what appeal. The applicant said that his father was planning to appeal to the national authorities in Beijing. The applicant’s father had told him about this some time in 2009. The Tribunal asked the applicant why the applicant would be involved with any such appeal. He said that he would want to help his father because he had worked really hard to own his hotel and the applicant could not bear what the authorities had done to him.
18. At para.45 of the decision record, the Tribunal put to the Applicant its doubts about the veracity of his claim of a recent attack on his father because he had not mentioned it previously. The record states:
    • 45. The tribunal said that it found it hard to believe this account of a recent attack on the applicant’s father because it had not been mentioned at all previously. The applicant said that his father only told him about it after the applicant told his father about the applicant’s failed interview with the Department. (CB 201).
19. At para.48 of the decision record, the Applicant repeats similar claims that it was when he saw the photographs of injuries to his father that he was so motivated to join the appeals, which his father is said to intend to pursue. The record states:
    • 48. Again the Tribunal asked the applicant why he would face persecution if he returned to China, given that it was his father who was pursuing any appeal and the applicant had had no involvement with his affairs, having been in Australia through all the period his father was having difficulties with the authorities. The applicant responded that, when he saw the photographs of the injuries to his father, he had decided to help his father with the appeal because the applicant hated the authorities for what they had done to his father. (CB 202)
20. In the decision record, under the heading “Findings and Reasons” at para.65, the Tribunal expressed that it had doubts about certain aspects of the Applicant’s claim. The Tribunal member discussed the timing of the Applicant’s visa claim and noted that there were matters that go both ways in that regard. However, the tenor of the paragraph is that the Tribunal thought that this was something which, on the balance, undermined rather than supported the Applicant’s claims. The findings state:
    • 65. The Tribunal had doubts about aspects of the applicant’s claims. The first doubt arises by reason of the timing of the applicant’s protection visa application. It is difficult to believe the genuineness of the applicant’s claims, given that his protection visa application was lodged quite some time after his arrival in Australia and only upon the making of a decision by the relevant delegate to refuse revocation of the cancellation of his student visa. On the other hand, the Tribunal accepts that there may be some force in the applicant’s assertion that the events relating to the cancellation of his student visa and the making of the protection visa are linked in that a reason why his student visa was revoke was related to the family’s loss of income following the expropriation of this father’s hotel. (CB 205).
21. At para.66, the Tribunal notes an further concern. The record states:
    • 66. Another aspect of the applicant’s claims which is difficult to accept concerns the asserted timing of the relevant events in China: the applicant offered no explanation of the seemingly implausible circumstances that, on the applicant’s evidence, the notice of intention to expropriate the hotel, its demolition, the application’s father’s appeal, his detention, his return from Hainan to Fuqing and his divorcing of the applicant’s mother all occurred within the space of about a fortnight. (CB 205)
22. At para.67 the Tribunal first touches on the Applicant’s motivations for claiming to get involved in his father’s alleged appeals. The Tribunal states:
    • 67... The Tribunal does not accept the applicant’s explanation as to why the assault was not mentioned in the applicant’s protection visa application or in his interview with the delegate. It was significant incident in the context of the applicant’s claims. It is not credible that the applicant’s father only told the applicant about the assault and hospitalisation after the applicant’s father heard about what had happened in the applicant’s interview with the delegate. In connection with this matter, the Tribunal gives the hospital records and the photographs which accompanied them little weight, as there is no evidence before the Tribunal, other than the applicant’s assertions, linking the injuries to the actions to the authorities or persons acting on their behalf.
23. In para.68 the Tribunal addresses the reasons why the authorities would not pursue the Applicant on the basis of what has happened in the past. The record states:
    • 68. Even if the Tribunal were to accept all these aspects of the applicant’s claims, the Tribunal does not accept that the applicant has a well-founded fear of persecution if he were to return to China. The applicant has not himself suffered any harm at the hands of the Chinese authorities and he has not been involved in his father’s affairs in the alleged expropriation of the hotel property. On the contrary, he has been in Australia from before the time the hotel was allegedly expropriated. There is, therefore, nothing to suggest that he would be of any interest to authorities upon his return. (CB 206)
24. Mr Baird, in his submissions, acknowledges that in para.68 the Tribunal did not address the Applicant’s claims that he would wish to be involved in these appeals in the future. Mr Baird argues that the Tribunal has already dealt with these issues in para.65 through to para.67 and referred the Court to the authority of Applicant WAEE v Minister for Immigration and Indigenous Affairs [2003] FCAFC 184 per French, Sackville and Healy JJ which considers the issue of the failure to consider integers rather than understanding the claims as a whole. At [47] their Honours state:
    • [47] The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
25. Mr Baird submits that there are three ways in which a Tribunal can address a claim that is made to it. Firstly, the Tribunal can address the claim head-on and say, either this happened or it did not. Secondly, it can make findings of a greater generality so it is unnecessary to address a smaller matter because a Tribunal has made a finding of greater generality which assumes the smaller matter. The Tribunal can, if the Tribunal rejects a factual premise on which a contention rests, then it is sufficient to dispose of the thing that rests on the factual contention. Mr Baird submits that it is the third approach which he relies upon in this matter in that the Tribunal has approached it in this way. On a fair reading of the decision record I accept Mr Baird’s submission that the Tribunal has addressed the Applicant’s claim that he would wish to be involved in future claims by his father, for greater compensation for the forfeiture of his hotel.

Conclusion

26. Although the Applicant appears as a self-represented litigant at the hearing, the Amended Application was prepared by a legally qualified practitioner who is a member of the advisory panel who had been provided with a copy of the Court Book. The Applicant availed himself of the opportunity of filing an Amended Application with leave of the Court.
27. I am satisfied that the Tribunal has acted in accordance with its obligation under s.414 of the Migration Act 1958 (Cth) and considered the claim made by the Applicant and placed before it. The single ground of review identified in the Amended Application does not identify any jurisdictional error on a fair reading of the decision record and each of the particulars that the Amended Application raises has been clearly addressed. The member stated that he had “doubts about aspects of the Applicant’s claims” (CB 205 at [65]). The Tribunal member has identified each of the elements of the Applicant’s claim and then set out in the findings and reasons why the claim was not accepted.
28. The decision is a credit finding based on the Tribunal’s observations of the Applicant’s oral and written evidence that was provided to the Tribunal. It is well established that credit findings are a factual finding and a matter for the Tribunal “par excellence” (Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 168 ALR 407 at [67]). Further, the Tribunal’s findings as to the Applicant’s credibility were not made on demeanour alone (SZCOS v MIAC [2008] FCA 570 at [18]). The Application cannot be sustained and consequently, the Application should be dismissed with costs.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM

Date: 22 November 2010