SZNWU v Minister for Immigration & Anor [2010] FMCA 93 (8 February 2010)

Last Updated: 18 February 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNWU v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 93

MIGRATION – RRT decision – Chinese applicant claiming persecution by corrupt police and officials – disbelieved by Tribunal – no jurisdictional error identified – application dismissed.

Migration Act 1958 (Cth)

SZMDS v Minister for Immigration & Citizenship [2009] FCA 210

Applicant:

SZNWU

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2157 of 2009

Judgment of:

Smith FM

Hearing date:

8 February 2010

Delivered at:

Sydney

Delivered on:

8 February 2010

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms K Whittemore

Solicitors for the Respondents:

Sparke Helmore

ORDERS

(1) The application is dismissed.
(2) The applicant must pay the first respondent’s costs in the sum of $3,200.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 2157 of 2009

SZNWU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant came to Australia in December 2008, and on 30 January 2009 he applied for a protection visa assisted by a registered migration agent. The application was supported by a brief statement in English by the agent, explaining why the applicant feared to return to the People’s Republic of China. It appears that a five-page statement written in Chinese by the applicant accompanied that document, but no translation was ever provided.
2. According to the applicant’s agent, the applicant came from a background where his parents had been persecuted because of his grandparents’ social background. The applicant and his wife had suffered a fine for breach of the one child policy in relation to their first child, and the applicant and his wife had suffered problems by being “blackmailed by local governmental authorities such as local police, tax authority, the Business and Commerce Administrative Bureau, and the Public Health Department”, in the course of running a car accessory business, and a small restaurant. The agent said the applicant “came to Australia and wants to have a new life in Australia. He does not want to return to China because he has been mistreated by the local government”.
3. The applicant attended an interview by a delegate of the Minister on 15 April 2009. In the course of this, he presented some official documents concerning his marriage and the birth of his two children. The dates shown on these did not seem to support his claims that his first child was born in breach of the one child policy. The applicant told the delegate that, in fact, he had not paid any fines in relation to either of his children, but had avoided doing this by bribing officials and other means.
4. The applicant also explained that his restaurant had been successful, but he was forced to close it because of blackmailing by local officials, in which “they were forced to give meals, drinks and cigarettes to the officials, preventing the restaurant from making any profit”. The difficulty with the car accessories business was because its profitability:
   • ... attracted the attention of local traffic police who targeted the customers’ cars parked outside. The shop had to take responsibility for the fines in the interests of retaining its clientele. They also had to pay money favours to a range of local officials. The shop was not making any profit and he did not wish to keep operating it.
5. The delegate made a decision on 21 April 2009, refusing the visa application. The delegate was not satisfied that the applicant had substantiated the claim of having a well-founded fear of persecution for a Convention reason if he returned to China.
6. The applicant appealed, and continued to be assisted by his migration agent. He attended a hearing of the Refugee Review Tribunal on 21 July 2009, which appears to have lasted for about two and a half hours. A transcript of the hearing is not in evidence but the Tribunal gives a summary in its statement of reasons.
7. According to the Tribunal, the applicant agreed that the problems in relation to his first child had been resolved, and that any problems which had been suffered by his wife as a result had been also resolved. He agreed with the Tribunal that “these matters would not harm him in future. His main fear of future harm was that he might be arrested by traffic police” (see paragraph 34 of the Tribunal’s reasons).
8. The applicant recounted the basis for his fear of the traffic police as being an altercation with them which had occurred in June 2008, in which “there were several traffic police who wanted to lock his customers’ cars. He pushed one of the police officers and punched him twice before running away”. He was not caught by the police, and had managed to avoid arrest for the next six months by hiding with friends and relations. The applicant said he had not included this incident in his statement supporting the visa application, because “he had thought it best not to mention the incident”.
9. According to the Tribunal, it discussed a concern about his delay in raising this incident, and also concerns whether the extortion which he claimed to have experienced had a connection with the five Convention grounds for qualifying as a refugee under the Refugee’s Convention. The Tribunal pointed out that “corrupt officials would be acting for monetary gain”, and not for a Convention reason.
10. The Tribunal made a decision on 29 July 2009 affirming the delegate’s decision. In its “Findings and Reasons”, the Tribunal put at the forefront of its reasoning its dissatisfaction with the credibility of the applicant’s claims to have been involved in a fight with police and to fear arrest as a result. The Tribunal did not accept that this had happened, nor that the applicant had been forced to live in hiding before fleeing to Australia. It said:
    • 57. ... I am not satisfied that this claim is anything more than a recent invention advanced by the Applicant to strengthen his case after the delegate found that any harm he might have suffered through extortion did not represent Convention-based persecution.
    • 58. ... As I am not satisfied that it occurred I find that this raises strong doubts about the reliability of his evidence in general.
    • 59. I have also considered the Applicant’s wider claims to have been the target of extortion from corrupt local officials and to have reported these abuses to higher authorities. There is no substantiation for any of these claims and they amount to no more than simple assertions. His account of them at the hearing was vague and notably lacking in circumstantial detail. Given my conclusions about the reliability of his evidence overall, I am not satisfied that these claims are credible. I am not satisfied that his business was, in fact, targeted by corrupt local officials or that he ever reported local officials to higher authorities.
    • 60. While the Applicant claims in his protection visa application to fear harm because of his alleged breaches of China’s One Child Policy he agreed at the hearing that this would not present him with any particular problem if he were to return to China. I note in this context that he claims to have been able to resolve whatever difficulties he might have faced by bribing officials.
    • 61. In the light of all the information before the Tribunal I am not satisfied that the Applicant ever suffered harm at the hands of local police or officials, either through extortion or as a result of a fight with police. I am not satisfied that he was ever sought by the police or that they or anyone else in China intend to arrest or otherwise harm him in future. Nor am I satisfied that he faces any risk of harm as a result of breaching the One Child Policy. He does not claim to fear harm in China for any other reason and no other reason is apparent on the face of the information before the Tribunal.
11. In paragraph 59 and also earlier at paragraph 49, the Tribunal suggested that the applicant had included in his claims to fear persecution the reason that he had “reported these abuses to higher authorities”. I am unable to identify the basis for these references by the Tribunal, but it is possible they were part of the claims orally made by the applicant at the hearing. Even if the Tribunal was mistaken in thinking that the applicant had claimed to have made a complaint about the extortion, I do not consider that this would have vitiated its reasoning in relation to the other claims. This was firmly founded upon the rejection of the applicant’s credibility because of his perceived invention of his fight with the police.
12. The applicant now asks the Court to set aside the Tribunal’s decision and to remit the matter for further consideration. I have power to make these orders only if I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant should be believed, nor do I have the power to decide that he should be given a refugee’s visa or any other permission to stay in Australia.
13. The applicant’s original application contains the following three grounds:
    • 1. The RRT’s decision was affected by jurisdictional error as it made findings on illogical ground.
    • 2. The RRT failed to give me sufficient time to provide additional information.
    • 3. The RRT did not give sufficient consideration to the applicant’s claims and rejected such claims on no reasonable.
14. He has not filed any amended application or written submission, and his oral submissions today did not explain the contentions made in his original application. I am unable to give them any arguable content.
15. In particular, I am unable to detect the basis for complaining that the Tribunal’s decision made illogical findings or findings which were not open to it on a reasonable assessment of the evidence. I do not consider that the material before me raises a ground of jurisdictional error such as was found by Moore J in SZMDS v Minister for Immigration & Citizenship [2009] FCA 210, which remains binding upon me, although it is subject to a reserved judgment in the High Court.
16. In relation to the second ground, there is no evidence that the applicant ever sought time to provide “additional information”, and this ground appears not to have any substance.
17. In relation to the third ground, in my opinion, the claims made by the applicant were fully considered by the Tribunal, and were rejected for grounds which were open to it. It was the task of the Tribunal, and it is not the task of the Court, to assess the veracity of the applicant’s claimed history.
18. The applicant’s submissions today repeated his claims to fear returning to China because he would be arrested. However, he did not identify any jurisdictional error affecting the Tribunal’s decision.
19. For the above reasons, I must dismiss the application.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 16 February 2010