FEDERAL COURT OF AUSTRALIA

SZOIC v Minister for Immigration and Citizenship [2010] FCA 1182

REASONS FOR JUDGMENT

1                     This is an appeal against the decision of Cameron FM delivered on 4 August 2010 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) of 9 March 2010. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant a protection visa to the appellant.

BACKGROUND

2                     The appellant is a citizen of China who arrived in Australia on 22 December 2007. On 30 July 2009 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the first respondent refused the application for a protection visa on 19 October 2009. On 16 November 2009 the appellant applied to the Tribunal for a review of that decision.

3                     The appellant claimed that in 2000 in China her husband had opened a seafood store. In February 2009, the local government, together with a real estate developer, began developing a piece of land which required their seafood store to be demolished. The government agreed to compensate them, however, the offer was only RMB 10,000 and her husband refused to sign as the seafood store yielded an annual profit of RMB 50,000 to 60,000. She claimed that the local authorities rounded up the people who would not sign the compensation agreement and asked them to re-evaluate their position. The authorities also threatened these people, saying that there would be severe consequences if they did not sign.

4                     Her husband decided to appeal to Beijing, and on 2 June 2009, people organised a gathering at their home. The police came and arrested them, and they were beaten overnight. Her husband was tortured and held for half a month before he was released. Her husband told her that local government officials came to warn him numerous times that if she returned to China they would charge her with treason for opposing the economic development of the nation.

REFUGEE REVIEW TRIBUNAL

5                     The Tribunal accepted, on the basis of country information, that there is widespread corruption, sometimes involving local officials, regarding land acquisition in China. The Tribunal also accepted that while petitioning is an accepted practice in China, local authorities may see petitioners as a threat, particularly those who take their petitions to the capital or organise group protests, and may detain or mistreat them. The Tribunal further accepted that the appellant’s husband owned a seafood shop; that the shop is no longer trading because of harassment in connection with a proposed property development; and that he was detained by the local police in June 2009. However, because the appellant did not provide a clear and consistent account of the dates or the sequence in which the events occurred and she did not provide any corroborative evidence, the Tribunal was not satisfied that the claimed events affecting the appellant’s husband occurred.

6                     In relation to the claim that the appellant’s husband was beaten and tortured in detention, the Tribunal noted that the appellant gave inconsistent information about how she came to know of this treatment and of the malnutrition her husband is said to have suffered while in detention. It found that the appellant had not been a witness of truth in relation to the treatment of her husband while in detention and it did not accept her claims that her husband suffered serious physical ill-treatment by the Chinese authorities during detention.

7                     In relation to the appellant’s claim that on return she would be charged with treason for opposing the economic development of the nation by persuading her husband to not accept the offer of compensation, the Tribunal noted that in the sources it consulted it had not found any reference to a crime of treason through opposing the economic development of the nation.

8                     In relation to her claim that she could be accused of a very serious offence and could be detained for quite a long time, the Tribunal noted that this claim seemed logically inconsistent with the appellant’s claim that her husband could not be detained for a period longer than two weeks because he had not committed any serious crime.

9                     The Tribunal did not accept that there was a real chance that the appellant would suffer persecution for reasons of membership of the family of a person who is imputed with an adverse political opinion because:

·                    she had no direct involvement with any of the events concerned and specifically noted that she had not refused to sign any agreement and had not organised any protest or travel to Beijing with a petition;

·                    she had not been in China since December 2007; and

·                    she had tried to persuade her husband to accept the compensation agreement, rather than the reverse.

The Tribunal did not accept the appellant’s claim that her husband had received warnings that she would be detained because, when it questioned her on her evidence that her husband was in hiding when released from detention, she alleged that these warnings in fact had come through her sister-in-law who received them from neighbours. The Tribunal found this explanation to be an invention.

10                  Additionally, the Tribunal did not accept that the appellant and her husband, while they cannot presently work in their shop, would be denied all employment such that the family’s ability to subsist would be compromised. The Tribunal did not accept that the appellant will suffer serious harm amounting to persecution on this basis.

11                  On the basis of the above, the Tribunal found that the appellant did not satisfy the criterion for a protection visa, and affirmed the decision of the delegate.

FEDERAL MAGISTRATES COURT

12                  On 8 April 2010 the appellant filed an application for judicial review of the Tribunal’s decision. In that application the appellant contended that:

1.         RRT did not believe me as I have not evidence. They did not believe the whole things I said are true. It is unfair.

2.         RRT use failed cases against our application. I hope Federal Magistrates Court could give me fair decision.

3.         RRT did not consider that I would be put in jail if we return. I have risk to go back to China.

13                  The Federal Magistrate rejected each of the grounds of the application. Specifically, the Federal Magistrate stated that: the Tribunal’s findings on the facts, including on the credibility of the appellant, were matters for it and not ones in which the Court could interfere; there was no such error as was alleged in ground 2 – the Tribunal simply weighed the evidence and reached a conclusion which was unfavourable to her; and the Tribunal did in fact consider all aspects of the appellant’s claims.

14                  Having found that the Tribunal decision was not affected by jurisdictional error, his Honour dismissed the application for review.

APPEAL TO THIS COURT

15                  By Notice of Appeal filed on 23 August 2010, the appellant raised the following grounds of appeal against the decision of Cameron FM:

        1.         The Decision of the Federal Magistrate Court is unfair.

2.         I am not happy with the Federal Magistrates decision as I am a refugee from China.

        3.         I can prove I am a refugee

[Errors in original]

16                  At the hearing before me the appellant appeared in person. The Minister was represented by the Australian Government Solicitor.

SUBMISSIONS OF THE APPELLANT

17                  At the hearing of the appeal before me the appellant filed no written submissions. Orally, the appellant submitted that she wanted additional time to adduce further material. I informed her that the Court would not allow her further time, because the appellant had had ample time to prepare her case before today’s hearing.

FINDINGS

18                  The grounds of appeal made by the appellant do not identify any legal error in the decision of the Federal Magistrate. Rather, in the first ground the appellant simply asserts that the decision of the Federal Magistrate was unfair, and in the second and third grounds the appellant merely restates her claim that she is a refugee.

19                  In its decision the Tribunal found that, while there is corruption at local government level in China, on the appellant’s case she was not a refugee within the meaning of the Refugees Convention or the Migration Act 1958 (Cth). His Honour found no jurisdictional error in the Tribunal’s decision, nor any error apparent on the face of the Tribunal’s decision.

20                  I consider that the reasons of the Federal Magistrate reveal no appellable error.

21                  The appeal should be dismissed with costs.

Associate:

Dated:         1 November 2010