FEDERAL COURT OF AUSTRALIA

SZGUW v Minister for Immigration and Citizenship [2010] FCA 475

THE COURT ORDERS THAT:

1.                  The appeal is dismissed.

2.                  The appellant pay the first respondent’s costs of the appeal.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1                     The appellant appeals from a judgment of the Federal Magistrates Court which dismissed his application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”).  The Tribunal had affirmed a decision of a delegate of the respondent Minister to refuse the appellant a protection visa.

2                     The appellant is a citizen of the Peoples’ Republic of China, where he resided in the Fuqing local government area of Fujian Province.  He entered Australia in December 2004 and applied for a protection visa in January 2005.  The decision of the Tribunal the subject of the proceeding below is the fourth time the Tribunal has reviewed the delegate’s decision to refuse the appellant a protection visa.  The first decision was set aside by consent.  The second and third decisions were set aside by judgments of two judges of this Court.  It is important not to focus too closely on what occurred in those previous Tribunal decisions and their judicial review.  The focus in this judgment must be on whether the Court below committed any appealable error, in determining whether, the Tribunal that made the last review decision, made a jurisdictional error in its conduct of its review of the delegate’s decision.

3                     The second and third decisions of the Tribunal were set aside in large part because they failed to consider an important aspect of the appellant’s claim which focused on his inability to obtain state protection to exercise his right to protest and the involvement of the state in alleged persecutory conduct.  See SZGUW v Minister for Immigration & Citizenship [2008] FCA 91 at [65] to [69] and SZGUW v Minister for Immigration & Citizenship [2009] FCA 321 at [28].

4                     In the judgment below, his Honour concluded that the errors identified in the judgments referred to above were not repeated in the fourth Tribunal decision.

the tribunal

5                     The Tribunal stated in its decision that the appellant’s inability, at the oral hearing before it, to give “any real description of his claimed experiences” led it to conclude that “he has not experienced them as he so claims.”  It considered that the inadequate oral evidence was not explained by poor memory or the passage of time.  It observed that after the oral hearing the appellant provided a statement setting out information that he was unable to elaborate on at the hearing.  The Tribunal noted that:

(t)his is at odds with the [appellant’s] claim at the hearing that he could no longer recall events of past because he had not written them down at the time.

6                     The appellant claimed to fear persecution if returned to China, in the reasonably foreseeable future, on account of his membership of a particular social group of dispossessed farmers.  Based on his evidence before it, the Tribunal did not accept that the appellant was a farmer before coming to Australia or that he was dispossessed of his farming lands.

7                     The Tribunal did not accept that the appellant was involved in or the organiser of protest action in response to the local government acquisition of such land.  It also did not accept that the appellant was arrested in 2003 by authorities because of his role in protest action.  It also did not accept that the appellant’s house was destroyed in 2000 by Chinese authorities.

8                     The Tribunal rejected, as not genuine, copies of documents alleged to be the appellant’s certificates of detention and release from detention.  It also did not accept that authorities visited the appellant’s family to enquire about his whereabouts.

9                     In view of those findings, the Tribunal was not satisfied that the appellant had a well founded fear of persecution for reason of his membership of a particular social group or for any other Convention related reason.

the court below

10                  The Court below examined the history of the appellant’s application for a protection visa including the decisions of previous Tribunals and judgments of this Court and the Federal Magistrates Court.  His Honour held that the Tribunal had understood its obligations to consider the totality of the appellant’s claims.

11                  The Court below dealt with a submission raised by appellant’s counsel that the Tribunal, like its predecessors, had overlooked the claimed nexus between persecution by the police in 2003 and the involvement of authorities in land confiscations which had occurred earlier.

12                  His Honour observed that the Tribunal did not specifically discuss the appellant’s claim that the persecution he claimed to have suffered in 2003 arose from the earlier involvement of Government agencies in acquisition of farming land.  His Honour observed that at the oral hearing the appellant did not give any particular emphasis to the above claim, other than by stating that developers and the government were jointly involved in confiscating farm lands and suppressing protest action.  He held that the Tribunal had understood this claim about government involvement.  His Honour was not persuaded that the Tribunal incorrectly appreciated or failed to deal with any aspect or integer of the appellant’s claims.

13                  At [45] of its reasons for judgment, the Court below noted that the Tribunal found against the appellant “on all his key claims”, thereby making it unnecessary to “address subordinate elements of his claims”, including “the interrelation of subordinate elements”. It held that the Tribunal had not committed any jurisdictional error.  That reasoning is persuasive and does not reveal any appealable error.

The appeal

14                  The grounds of appeal are:

1. The decision of RRT was an improper exercise of the power conferred by law.
2. The tribunal failed to have regard to some evidence and claims which were before the tribunal.

3.      The tribunal’s interpreter made many major mistakes which caused the misunderstanding between the tribunal member and the applicant.

15                  Before the Court below the appellant relied on a single ground of review which concerned an alleged failure in the Tribunal to properly apply s 91R(2) of the Migration Act 1958 (Cth) by failing to consider the cumulative affect of various claims concerning the treatment of the appellant by the authorities collectively against him in connection with the confiscation of his land.

16                  The appellant claimed that the Tribunal had engaged in a constructive failure to exercise its jurisdiction.  His Honour dealt with and rejected that ground of review for the reasons referred to at [12] - [13] above.  I agree, with respect, with those reasons.  Ground 2 of the grounds of appeal, may be read to overlap with that ground of review.  However grounds 1 and 3 are in a different category.  No such grounds were advanced below as grounds of review.  It must be remembered that the Court is sitting on appeal from the Court below and is not examining the Tribunal’s decision as if the hearing before the Federal Magistrates Court and that Court’s judgment had never occurred or been published.

17                  Ground 2 was expounded upon in written submissions filed by the appellant prior to the hearing of the appeal.  In those submissions the appellant asserts that the Tribunal did not take into consideration his post-hearing submissions.  That contention is rejected.  The Tribunal set out in full, in its reasons for decision, the appellant’s written submissions dated 1 September 2009.  Having done so, there is no reason to consider that it did not have regard to them.  This is especially so when one observes that the Tribunal made specific reference to the 1 September statement at [76] of its reason for decision and contrasted the information contained in it with that given by the appellant at the oral hearing.  See also [5] above of these reasons for judgment.  Ground 2 of the grounds of appeal is rejected.

18                  No basis to make out either ground 1 or 3 has been advanced by the appellant in his written submissions or orally today.  The appellant provided the Court with a copy of the transcript of the Tribunal hearing and referred to discrepancies in the translation of some of his comments and answers.  In an affidavit filed with the Court he admits that his counsel decided not to raise that issue before the Court below.  Out of an abundance of caution I have reviewed the transcript and not discovered any relevant errors of translation on any key issues on which the Tribunal decided to refuse the appellant a protection visa. The appellant was not able to identify any error which was crucial to the outcome of the review.  See, Appellant 119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 203 at [17].

19                  The appellant, in his affidavit, also complained about the accuracy of a statement by the Tribunal that it had discussed with him at the oral hearing the availability of forged documents in China.  The appellant says no such discussion occurred.  Whilst that may be so in the context of the actual words used by the Tribunal, it did say at p82 of the translation that:

“I noticed that the previous Tribunal did discuss with you about the weight that can be placed on documents.”

This is consistent with what appeared at [57] of the decision of the third Tribunal member to deal with the appellant’s application, where there is a discussion about the lack of weight that can be attached to such documents.  Again, I have only considered this issue out of an abundance of caution to understand the claims of a self-represented litigant.  It is not a point that discloses any jurisdictional error in the Tribunal’s decision.  It was not an issue raised before the Court below.

20                  The allegation of failure to have regard to claims made before the Tribunal is also rejected.  The Tribunal dealt with all key aspects of the appellant’s claims and rejected each of them.  The appeal must be dismissed, with costs.

Associate:

Dated:         14 May 2010