SZKFE v Minister for Immigration and Citizenship

[2007] FCA 1278

FEDERAL COURT OF AUSTRALIA

SZKFE v Minister for Immigration and Citizenship [2007] FCA 1278

SZKFE v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND ANOR

NSD926 OF 2007

EMMETT J

6 AUGUST 2007

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD926 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKFE
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EMMETT J
DATE OF ORDER:	6 AUGUST 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs of the appeal in the sum of $2250.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD926 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKFE
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EMMETT J
DATE:	6 AUGUST 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant is a citizen of the Peoples Republic of China.  She arrived in Australia on 21 May 2006 and applied for a Protection (Class XA) visa under the Migration Act 1958 (Cth) (the Act) on 4 July 2006. On 26 July 2006, a delegate of the first respondent, the Minister for Immigration and Citizenship (the Minister), decided to refuse to grant a visa. The appellant therefore applied to the second respondent, the Refugee Review Tribunal (the Tribunal) on 24 August 2006 for review of the delegate’s decision. On 14 December 2006, the Tribunal affirmed the decision not to grant a protection visa.

2. On 14 February 2007, the appellant commenced a proceeding in the Federal Magistrates Court seeking judicial review of the Tribunal’s decision.  An amended application was filed on 3 April 2007.  On 8 May 2007, the Federal Magistrates Court ordered that the application be dismissed and ordered the appellant to pay the Minister’s costs of the proceeding.  By notice of appeal filed on 24 May 2007 the appellant appeals from those orders to the Federal Court of Australia.

3. When the appeal was called on for hearing this morning there was no appearance for the appellant.  I have seen evidence that the appellant was notified on at least two occasions of the date fixed for the appeal by correspondence from the Minister’s solicitors.  In the circumstances, the Minister asks for an order that the proceeding be summarily dismissed.  I propose to accede to that application.  However, before doing so, I will say something briefly about the proceeding, indicating that on the material there appears to be no substance in the appeal in any event. 

4. The appellant claimed that she feared harm from Chinese authorities and persons who had demanded protection money from her husband and had otherwise harassed him.  She also claimed that her husband had been detained on several occasions and that to her knowledge he remained in detention at the time of the hearing before the Tribunal.  In her oral evidence before the Tribunal, the appellant said that she had been questioned but had never been detained by the authorities in relation to matters involving her husband.  She claimed that she had faced harassment as police had regularly and frequently searched the family home as part of their ongoing campaign against her husband. 

5. The Tribunal found that the appellant was a credible and truthful witness and accepted her account of events in China.  The Tribunal considered that its decision involved the characterisation of the harm that the appellant had suffered and which she would be likely to suffer in the future.  In its reasons, the Tribunal observed that the appellant had never actually been detained or otherwise suffered physical harm.  The appellant did not claim and the Tribunal found no evidence that she had been imputed with a political opinion that was considered by the authorities to be anti-government.

6. The Tribunal considered whether the harassment of the appellant’s husband, which the appellant witnessed, and frequent attendances by police on the appellant’s family home were serious harm.  The Tribunal concluded that, while that conduct was frightening, it did not of itself amount to persecution.  The Tribunal found that the appellant did not suffer significant physical harassment or significant ill-treatment at any time during visits to her home by police.  The Tribunal found that the appellant could have left her family home to avoid any problems that she was experiencing and could have travelled to a different province for temporary respite but did not do so.  Rather, she remained at her family home for five months after her husband’s release from his first detention until arrangements were made for a passport and visa for her travel to Australia. 

7. Given that the appellant remained notwithstanding other options, the Tribunal concluded that, while the treatment of the appellant’s husband was stressful for her, the campaign by local authorities against him did not represent harm to her that could be described as serious harm.  The Tribunal observed that the appellant had been able to secure a passport in her own name and identity through normal channels.  The appellant told the Tribunal that her husband also wanted to leave China but could not get a passport because he was being targeted by the police and being charged with an offence.  The Tribunal considered that it was relevant that the appellant had an uneventful departure from Shanghai airport and was not questioned or otherwise delayed at the point of her departure.

8. The Tribunal concluded from the fact that the appellant obtained a passport and departed China without incident that the authorities have no serious ongoing interest in her because of her husband’s matters as she had claimed.  The Tribunal did not accept that the appellant had been labelled or found to be anti-government because of her husband’s involvement in other matters.  For those reasons the Tribunal did not accept that the appellant had suffered serious harm as contemplated by section 91R of the Act for a Convention reason in the past and the Tribunal, therefore, did not accept that she faces a real chance of persecution if she returned to China.

9. The grounds of review stated in the amended application were that there was an error of law in the Tribunal’s decision constituting a jurisdictional error and that there was procedural error in the Tribunal’s decision constituting an absence of natural justice.  Three particulars were set out as follows:

   (1)The Tribunal failed to consider properly and carefully that the appellant’s fear of being persecuted on return under the real chance test in that:

   (a)the Tribunal failed to consider what would happen to the appellant if she returned to China;

   (b)the Tribunal failed to consider that the various elements involved in her treatment in China, if taken together, produced an effect upon her mind that could reasonably justify a claim to a well-founded fear of persecution;

   (c)the Tribunal failed to consider what happened to the appellant’s husband as demonstrating that sooner or later she would also become a victim of persecution.

   (2)The Tribunal erred in law in making its final finding because it failed to comply with s 424A of the Act in that:

   (a)the Tribunal considered that the appellant’s claims in relation to getting a passport may be inconsistent with independent country information and the appellant may not suffer serious harm as contemplated by s 91R of the Act, was information that was part of the reason for affirming the decision;

   (b)the Tribunal failed to give the appellant particulars of that information and failed to ensure, as far as reasonably practicable, that she understood why that information was relevant to the decision.

   (3)The Tribunal misstated or misunderstood s 91R of the Act.

10. Each of those matters was carefully considered by the primary judge, who expressed views on each of them, concluding that none of the grounds was made out.  In the notice of appeal to this Court the appellant might fairly be understood to have complained that the Federal Magistrates Court erred in failing to uphold those grounds.  As I have said, nothing has been advanced on behalf of the appellant in support of the notice of appeal.  There appears to me to be no error on the part of the Federal Magistrates Court in the way in which it dealt with the grounds before it.  It follows that in any event the appeal would be dismissed.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:        20 August 2007

The Appellant did not appear.
Counsel for the First Respondent:	Mr S Free
Solicitor for the First Respondent:	Clayton Utz
Date of Hearing:	6 August 2007
Date of Judgment:	6 August 2007