SZOGZ v Minister for Immigration and Citizenship

background 9 The appellants, who arrived in Australia in April 2008, are a 41 year old (the first appellant) and her nineteen year old son (the second appellant). Both are citizens of the Peoples' Republic of China. Initially, the second appellant held a student visa (schools sector (subclass 571) visa) and the first appellant held a student guardian (subclass 580) visa. On May 2009, pursuant to s 116(1)(b) of the Act, the second appellant's visa was cancelled due to breach of visa conditions and, consequently, on 18 May 2009 his mother's visa was also cancelled. The appellants remained in Australia when their visas expired. On 21 July 2009, they applied for protection visas based on the first appellant's asserted well‑founded fear of persecution in China. The first appellant made the substantive claims and the second appellant applied as a member of the family unit. 10 On 23 September 2009, the Minister's delegate interviewed the first appellant and, on 19 October 2009, notified her of the decision not to grant the appellants protection visas. On 25 November 2009, the appellants applied to the Tribunal for a merits review of the delegate's decision. 11 By a letter dated 24 December 2009, the Tribunal invited the appellants to appear before it on 27 January 2010. The appellants filed a response on 4 January 2010. 12 Three Tribunal hearings subsequently occurred on 20 January 2010, 18 February 2010 and 22 February 2010.

First appellant's statement 13 In the first appellant's statement to the first respondent's department, she claimed: 1. that she was born in the Sichuan province on 1 August 1969; 2. that in May 1990, she and her husband entered into a contract with the local government of Chengguan town, for a term of 30 years, in relation to the Cement Plant of Dapu County ("the Cement Plant"); 3. that the family developed the Cement Plant business and its annual profit rose to RMB 600,000; 4. that the town government wished to expropriate the Cement Plant land for real estate development and offered compensation of RMB1,000 per square meter, to which the first appellant and her husband did not consent "as it is not reasonable as we also need money to pay our staff leaving"; 5. that on 23 May 2007, around ten government officials came to the Cement Plant with a land expropriation notice and ordered them to demolish the Cement Plant and that, when she and her husband argued with them, they were kicked, beaten and injured; 6. after binding their wounds, the first appellant and her husband, accompanied by dozens of Cement Plant workers, complained to the town government. Government officials called the police, accused the first appellant and her husband of not carrying out government orders and being troublesome, and requested that the police punish them seriously; 7. that subsequently she and her husband were detained for 15 days by the police, during which time they were not provided with enough food, were assaulted and were required to pay a RMB 10,000 fine in order to be released; 8. that on their release, they found that the Cement Plant had been demolished by force; 9. that her husband, a long with five workers, went to the Fuqing government to seek reasonable compensation. Two weeks later, three police came to their homes and threatened her husband with jail should he again appeal to higher authorities; and 10. that she and her husband were frightened and worried, so decided to send their children abroad to study. The police made difficulties and refused their applications for passports, after which a friend helped them to secure passports in return for payment. Subsequently, through the use of an agent, she and her son were granted visas.

Department interview 14 At an interview conducted by a delegate of the first respondent on 23 September 2009, the first appellant provided additional information to that in her personal statement. She stated that she had lived in China with her husband and two sons, and was employed as the manager of the Cement Plant. The Cement Plant usually had about ten staff, but more were hired at busy times. The Cement Plant's gross monthly receipts exceeded RMB5,000, but after deducting material fees and staff salaries, amounted to only several hundred net. 15 At the interview, the first appellant: (a) Stated that she and her husband decided to send the second appellant, whom she accompanied, to study in Australia, as family members risked persecution. The second appellant studied only until the money ran out and they could no longer afford the tuition fees. Further, they could not afford the rent and although her son found work, she found none. (b) Stated, when asked about her passport and the application for a protection visa, that after the Cement Plant closed, the police did not allow her family to apply for passports, but that her husband had pulled strings and made payments. He was helped by a friend, and did not tell her how much he paid. To fund their trip to Australia, they sold their house at a low price, as they were in a hurry to leave. She explained that she did not apply for a protection visa sooner, as initially, she did not leave the house and did not speak English. She later heard about protection visas from someone else. (c) Stated that she and her husband had borrowed money to develop the Cement Plant site and owed staff wages which they had not repaid. They had sold the house and her husband did not have a home. Her husband had not told her how much they owed. Her other son lived in China with her mother-in-law, and her husband had gone into hiding. He had no fixed location and did casual work in order to avoid being found. (d) Told the Department that she had a detention certificate and a release certificate in China, which her husband could send over. When asked about evidence of the compensation offer, she replied that her husband may have documents about the sale of the house, as he did not tell her everything. 16 On 2 October 2009, the first appellant provided the delegate with additional documents, being a medical certificate, release letter, fine receipt and detention certificate.

Tribunal hearings 17 On 20 January 2010, the first appellant appeared before the Tribunal and gave oral evidence, assisted by a Mandarin/English interpreter and represented by the appellants' registered migration agent. On 20 January 2010, at the hearing before the Tribunal, the first appellant explained that her son was absent due to illness and declined the Tribunal's offer to adjourn the hearing so that he could attend. 18 The Tribunal had before it the Department's file relating to the appellants, including: (a) the visa application; (b) the first appellant's personal statement; (c) certified copies of the appellants' passports; (d) photos entitled "Cement plant" and "Digger machine to demolish the plant"; and (e) documents in Mandarin accompanied by English translations, entitled "Detention Certificate" dated 23 May 2007, "Release Letter" dated 7 June 2007, "Sickness Certificate" dated 23 May 2007 and "Fine Receipt". 19 The Tribunal informed the first appellant that it had listened to a recording of her interview with the Department. It questioned her about the Cement Plant, the expropriation, the circumstances surrounding the issue of the appellants' passport and her husband's activities. 20 In essence, the first appellant claimed the following before the Tribunal: (a) She and her husband ran a cement factory from 1990 to 2008. (b) On 23 May 2007, officials came to the factory with a land expropriation notice. When she and her husband argued with the officials, they were assaulted and threatened. In the afternoon the first appellant, her husband and some factory workers went to the Fuqing City government council building to protest. She and her husband, and a number of workers, were arrested and detained for about two weeks, after which they were released upon paying a fine. She was not charged, but was afraid of being arrested again. (c) She arranged passports for herself and her son through an agent, and was unaware of any false claims the agent made in support of their visa applications. (d) When in Australia, for a considerable time she did not know she could apply for a protection visa and was too scared to make enquiries. 21 The first appellant confirmed that, as a manager of the Cement Plant, she normally worked outside the office, liaising with buyers and managing everything. She said that she was in charge of buying raw materials. She ordered and sold products, but was unsure of the cost of the raw materials, as the accounts were paid by others. 22 The first appellant asserted that she was unsure of her income. 23 The Tribunal put to the first appellant that the visa applications gave different employment details. She stated that they were prepared by an agent and that she knew nothing about them. 24 The first appellant stated that she had acquired the factory from its former owner with government permission. She said that she first learned that the government wanted to acquire the factory land in April 2007 and, when a second notice was received on 23 May 2007, ten people arrived at the factory with the notice and subsequently beat her husband, who was taken to hospital. That afternoon, they complained at the Government Council building with their workers, and were arrested and badly treated. 25 The first appellant stated that she did not know which government authority sought to acquire the land. The Tribunal put to her that was difficult to believe. The first appellant stated that if she returned to China she would be persecuted, even if they did not approach the government. 26 The Tribunal put to the first appellant that her documents may be false. She stated that a friend had done everything. 27 The Tribunal asked the first appellant why her son could not obtain a passport and about the couple's contact with the police after their release. 28 The first appellant asserted that her husband moved around to look for work but also because he feared the police. The Tribunal put to the first appellant that she had not left China until April 2008 (a year after the detention) yet, during that period, the police had visited the first appellant and her husband only once. 29 The first appellant, when questioned, confirmed that her husband had continued to approach the government, but agreed that nothing had happened as a result. The Tribunal put to her that this was inconsistent with the assertion in her visa application that her husband refrained from approaching higher authorities and hid due to fear. The first appellant explained the inconsistency by reference to a mistranslation. 30 The first appellant asserted that she had not applied for a protection visa earlier because she did not know of the possibility. The Tribunal put to her that the assertion was difficult to believe and that the delay in making the application was adverse to her. 31 A number of other alleged inconsistencies in the first appellant's claims, narrative and evidence were put to her, including her identification of her husband in a photograph on a date when she had claimed he was in prison, her divergent claims as to income, her differing assertions about the existence of documentation, and her alleged fear of making inquiries in Australia, despite her asserted belief that Australia was a free country. 32 On 18 February 2010, the appellants appeared before the Tribunal, which sought to discuss inconsistencies between the first appellant's evidence to the Tribunal and the Department, and information in her visa application. An interpreter was present and the appellants were represented by their registered migration agent. 33 The Tribunal put inconsistencies or questions to the first appellant, including whether she knew the identity of the acquiring authority, the alleged contract with the government over a privately purchased factory, her claim that she signed a certificate and with what authority, the location of the factory, her inability to give detail, her conflicting accounts of her arrest, the delay in seeking a protection visa, the availability of fraudulent documents in China (particularly in her province), the release letter dated 7 June 2007, why photographs of the factory were taken while she was in detention, differing information about her income, debts, staff contracts, staff numbers, her husband's residence, her account of staying locked in the house, and confusion over whether her husband continued to lodge appeals. 34 The Tribunal invited the first appellant's comments or response, and offered her the opportunity to seek additional time or an adjournment. 35 On 22 February 2010, following the first appellant's request for more time, the Tribunal hearing resumed. Only the first appellant attended. The first appellant responded to some queries and the Tribunal put further inconsistencies to her.

Tribunal decision 36 The Tribunal, in a decision given on 26 February 2010, affirmed the decision to grant the appellants Protection (Class XA) visas. In its reasons for decision given on 26 February 2010, the Tribunal did not accept that the first appellant was a witness of truth. It rejected her claims that she was the manager of a cement factory who had been detained. 37 The Tribunal stated (at [137]): The Tribunal has considered all the applicant's claims singly and cumulatively. However, the Tribunal does not accept that the applicant was the manager/owner of a cement factory or that she and her husband were detained. The Tribunal does not accept that the applicant's husband has to move around in order to hide from the police or that he has made appeals about the demolition of the factory and lack of compensation, or that he continues to do so. Given these findings, the Tribunal is not satisfied that there is a real chance that the primary applicant will be harmed for reasons of her political opinion, imputed political opinion or for any other Convention reason upon her return to China. The Tribunal is not satisfied that the applicants have a well founded fear of persecution if they return to China now or in the reasonably foreseeable future. 38 The Tribunal's conclusions were based on four principal reasons. 39 First, the Tribunal noted that the first appellant delayed applying for a protection visa for 16 months after arriving in Australia. It rejected her assertion that she did not know that she could apply for protection. The Tribunal noted that the application occurred after the second appellant had obtained work. It concluded that the first appellant's real purpose in coming to Australia was economic gain, and she had applied for protection only when her son was detained and prevented from working. 40 Secondly, the Tribunal expressed serious concern that the first appellant gave greater detail in the protection visa application about which government authorities signed the contract and the expropriation notice, than she could give at the hearings. 41 Thirdly, the Tribunal also noted a number of inconsistencies between the first appellant's written and oral claims. It observed that her limited knowledge about details of the factory and the circumstances of the alleged expropriation was inconsistent with the claim that she was the factory manager for 17 years. The lack of detail about the government agencies involved in the alleged contract for, and expropriation of, the factory was accompanied by her "inconsistent shifting and vague oral evidence" on those issues (at [119]). 42 Fourthly, the Tribunal noted the first appellant's inconsistent and contradictory evidence about her husband's activities in China after June 2007. It concluded that her husband moved around to find employment, rather than because he feared arrest. 43 The Tribunal expressed significant concern about the first appellant's account of her detention, the mistreatment in detention, the appeals made directly thereafter and the release letter. 44 The Tribunal set out DFAT and other information about the prevalence of fraudulent documents in China. The Tribunal dealt in detail with supporting documents and photographs provided by the first appellant. It stated: 131. The Tribunal also has significant concerns about the release letter, stating that the applicant had been detained on a specific date As discussed with the applicant, the release letter states that the holder must register Hukou at local police station with this certificate. However, the applicant told the Tribunal that she had no contact with the police after she was released from detention except when the police visited her home at the end of the following month to warn against further appeals. The applicant said that she did not register her Hukou at the local police station and that the police did not contact her although she continued to live at home from when she was released in 2007 until she departed China in the following year The letter also states that this page is kept by the authority but the applicant has kept the page. The applicant responded by stating that the release letter she provided was a copy and the original had been kept by the authorities. However, the applicant's explanation does not account for why, contrary to the release letter, the applicant was not required to register her Hukou at local police station with this certificate. The Tribunal does not accept that the release letter contains truthful information and, when combined with the adverse findings that the Tribunal has made above, this also leads the Tribunal to not accept that the applicant had been detained.

132. As the Tribunal has not accepted that the applicant was detained, the Tribunal also does not accept that the detention certificate provided by the applicant contains truthful information. The county information before the Tribunal indicates that irregular or improper issue of documentation is widespread and that any official document can be either bought or forged in China. The Tribunal discussed this country information with the applicant at hearing and she reasserted her claims. However, for the reasons given above, the Tribunal does not find the applicant to be a witness of truth and the Tribunal does not accept that the applicant was the manager of a factory or that she was detained.

134. The Tribunal has considered the photos that the applicant provided to the Department of the factory and a bulldozer, which she claims were taken while she was in detention. As discussed with the applicant, the photos appear to have been taken while the factory was still operating but the applicant told the Tribunal that the photos were taken by her brother in law while she and her husband were in detention, although she also claims that the factory was demolished 3 days after she was detained. The Tribunal does not accept that a photo of a factory, a photo of the street and a photo of a bulldozer establish that the applicant was the owner/manager of a factory, or that the factory was demolished 3 days after the applicant was detained, or at that it was demolished at all.

135. The applicant also provided the Department with a dated medical certificate for Person B and a receipt for a fine.

136. The Tribunal has considered the document which the applicant claims is the receipt for a fine and the Tribunal accepts that it may be a receipt for a fine. However the Tribunal is not satisfied that a receipt for a fine establishes that the applicant and her husband were detained for the reasons that they claim. The Tribunal has also considered the document titled City A hospital sickness certificate which gives a diagnosis for Person B dated 2007. However, even if the Tribunal accepts that Person B has the conditions described, for the reasons set out above, the Tribunal does not accept that the injuries were caused in the way that the applicant claims. 45 The Tribunal concluded (at [133]): Taking into account all of the above problems with the applicant's evidence, the Tribunal finds that the applicant is not a truthful or credible witness and rejects all the claims that the applicant has made. The Tribunal does not accept that the applicant was the owner/manager of a factory for 17 years. The Tribunal does not accept that she and her husband appealed about the demolition of the factory and that they were detained and warned not to lodge further appeals. The Tribunal does not accept that the applicant's husband has made further appeals and that he is scared of the police for this reason.

Application to Federal Magistrates' Court 46 By an application dated 25 March 2010, the appellants sought review of the Tribunal's decision in the Federal Magistrates' Court on the following grounds: 1. RRT did not trust the evidences such as photos and documents we provided. We felt unfair treatment. 2. The Tribunal failed to consider my son and me that we would face hardship and persecution in China. 3. RRT protected the person like me who suffered and feared to go back. But the member did not protect us. It's unfair.

Decision of Federal Magistrate 47 On 2 September 2010, Smith FM dismissed the appellants' application. 48 In his reasons for decision, Smith FM recited the principal claims made by the first appellant, and summarised the history of her applications. 49 Smith FM analysed the Tribunal's decision and its principal conclusion that the whole of the appellant's claimed history, including her being in business in a cement factor and being persecuted when it was demolished, was not credible. 50 His Honour examined at length the four principal reasons the Tribunal gave for its decision, namely, the delay in applying for visas, lack of detail about the government agencies involved in the contract and the expropriation, inability to provide detail about her claim and the cement factory, and inconsistent evidence about her husband's movements. His Honour also referred to the first appellant's evidence of appeals she had made and the purported supporting documents, which the Tribunal did not consider truthful. 51 Smith FM concluded that the Tribunal's supportive reasoning was rational and showed careful attention to detail. 52 His Honour considered the three grounds of the appellants' application and the first appellant's oral submissions. His Honour stated: [19] However, essentially, her arguments invited me to decide myself that she should have been believed, and that her evidence of persecution should have been accepted. No other bases of procedural or substantive unfairness were identified, and I do not consider that her submissions raised any jurisdictional error affecting the Tribunal's decision. … [21] In relation to the three grounds in the application, I have considered how the Tribunal weighed the corroborative evidence submitted to the Department. I do not consider that in the present case the Tribunal, "simply refused to consider the corroborative evidence". In my opinion, it assessed the contents of the documents, and considered their evidentiary weight in balance with all the other evidence (see Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50 at [38] and [39]). I do not consider that any jurisdictional error arises from the Tribunal's reasoning about the documents.

[22] I am satisfied the Tribunal made a genuine, rational and reasonable assessment of all the evidence given by the applicant and her son. 53 His Honour concluded that there was no error in the Tribunal's treatment of the corroborative documents, or evidence of bias in its decision. He discerned no jurisdictional error in the Tribunal's decision and dismissed the application.

The appeal 54 None of the present grounds of appeal clearly raises or identifies a jurisdictional error on the part of the Federal Magistrate. Ground 1 is merely a factual assertion that the appellants fear to return to China, a claim the Tribunal rejected on the basis of its findings on fact and credit. Ground 1 alleges no error on the part of the Federal Magistrate. Ground 3 reiterates and amplifies the factual assertion of fear. As ground 3 also asserts "we are true refugees" it may also import a challenge to the Tribunal's legal conclusion, based on its factual findings and assessment of credit, that the appellants were not persons to whom Australia had obligations to protect under the Convention relating to the Status of Refugees. Again, it alleges no error on the part of the Federal Magistrate. 55 In SZMIP v Minister for Immigration and Citizenship [2009] FCA 217, Flick J stated: [9] The jurisdiction which is relevantly conferred on this court is to entertain an appeal from a decision of the Federal Magistrates Court. The first two purported Grounds of Appeal identify no error said to have been committed by that court. No appellate jurisdiction is conferred on this Court to entertain any appeal from a decision of the Refugee Review Tribunal. [10] Even if that difficulty be left to one side, the problem confronting the Appellants is only compounded by the fact that (as framed) the first two purported Grounds of Appeal do not comply with O 52 r 13(2)(b) of the Federal Court Rules, namely the requirement to state "briefly, but specifically, the grounds relied upon in support of the appeal". A statement that a Tribunal has "declined to exercise its jurisdiction" or has committed "jurisdictional error" does not satisfy that requirement. In attempting to provide a "useful practical guide", it has been said that a "notice of appeal which cannot be used to provide a sensible framework for the appellant's submissions" will "almost certainly" fail to comply with the requirements of O 52 r 13(2)(b): Commonwealth v Evans [2004] FCA 654 at [35] ; 81 ALD 402 at 411 per Branson J. … [12] Neither of these two difficulties - namely the failure to identify any error committed by the Federal Magistrate nor the failure to identify with acceptable precision the "ground of appeal" - is considered to be a mere matter of form: SZJJC v Minister for Immigration and Citizenship [2008] FCA 614 at [15]. Both are considered essential to this Court only exercising such jurisdiction as has been committed to it by the federal legislature. 56 Ground 2, while ambiguous, may purport to identify error in the decision of the Federal Magistrate. It does so in general terms and provides no "sensible framework" with in which the appeal may proceed. If, as appears likely, it assumes that the Federal Magistrate had the jurisdiction and obligation to review the appellants' refugee claims and evidence on the merits, but failed to do so, it is misconceived. The Federal Magistrate, as he recognised, was empowered only to determine jurisdictional error below. 57 At the hearing of the appeal, the first appellant stated that her life had not been easy since the appellants lodged applications for protection visas. The first appellant further stated that the Federal Magistrate had erred in finding no mistake in the decision of, and in the hearings conducted by, the Tribunal. 58 Ground 2 might be construed as alleging jurisdictional error by the Federal Magistrate constituted by a failure to properly consider the grounds for review alleged before him (most appositely, ground 1 that "the RRT did not trust the evidence such as photos and documents we provided. We felt unfair treatment"). If so, there is, in my opinion, no valid basis for ground 2. 59 To the contrary, the Federal Magistrate fully considered the appellants' claims and arguments made before him, including the grounds identified in their written application and matters raised in oral submissions. 60 His Honour construed the grounds for review stated in the application as raising a complaint about the Tribunal's treatment of corroborative photographic and documentary evidence. His Honour stated: [21] In relation to the three grounds in the application, I have considered how the Tribunal weighed the corroborative evidence submitted to the Department. I do not consider that in the present case the Tribunal, "simply refused to consider the corroborative evidence". In my opinion, it assessed the contents of the documents, and considered their evidentiary weight in balance with all the other evidence (see Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50 at [38] and [39]). I do not consider that any jurisdictional error arises from the Tribunal's reasoning about the documents. 61 An examination of [131] of the Tribunal's Reasons (dealing with the release letter dated 7 June 2007), [132] (dealing with the detention certificate dated 23 May 2007), [134] (dealing with the photographs provided by the first appellant) and [135] to [136] (dealing with the medical certificate dated 23 May 2007 and a receipt for a fine) indicates that, as his Honour found, the Tribunal carefully considered and evaluated the documentary evidence on which the appellants relied, in accordance with the principles established in relevant authority. 62 The Federal Magistrate also considered oral submissions made by the first appellant in the course of the hearing before him. The first appellant had submitted that the Tribunal failed to consider that the appellants would face hardship and persecution in China and alleged that it had treated similar applications favourably. His Honour stated: [19] However, essentially, her arguments invited me to decide myself that she should have been believed, and that her evidence of persecution should have been accepted. No other bases of procedural or substantive unfairness were identified, and I do not consider that her submissions raised any jurisdictional error affecting the Tribunal's decision.

[20] The applicant also told the court that she thought that the Tribunal might have had a bias against Chinese applicants, but that submission was based on the outcome of the case and no other aspect of the proceedings before the Tribunal. In the present case I do not consider that the Tribunal's conclusions, or its reasons, provide any support for the allegation of prejudice, and there is no support for the application of principles of apprehended bias (see Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]-[32]). 63 In my opinion, his Honour's conclusions are correct. 64 His Honour also observed that, in so far as the appellants complained that the Tribunal had apparently afforded protection to others in a like situation, it was impossible to be satisfied that there were identical circumstances, thus indicating error in the case before him. (It might be added that a grant of protection would necessarily indicate different factual findings from those in the present case.) 65 His Honour concluded: [22] I am satisfied the Tribunal made a genuine, rational and reasonable assessment of all the evidence given by the applicant and her son.

CONCLUSION 66 In my opinion, the Federal Magistrate considered and evaluated all the appellants' grounds of application, both written and oral, without appellable error. His Honour found no jurisdictional error in the Tribunal's decision. In my view, the Tribunal's reasons and the records of its hearings disclose no jurisdictional error or want of procedural fairness. 67 It follows that the appeal should be dismissed. I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dodds-Streeton