SZKRQ v Minister for Immigration and Citizenship

[2007] FCA 1511

FEDERAL COURT OF AUSTRALIA

SZKRQ v Minister for Immigration and Citizenship [2007] FCA 1511

SZKRQ v MINISTER FOR IMMIGRATION AND CITIZENSHIP
NSD 1689 OF 2007

STONE J
27 SEPTEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1689 OF 2007

BETWEEN:	SZKRQ Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent

JUDGE:	STONE J
DATE OF ORDER:	27 SEPTEMBER 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application for leave to appeal be dismissed.

2. The applicant to pay the costs of the first respondent fixed in the sum of $1,000.

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	NSD 1689 OF 2007

BETWEEN:	SZKRQ Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent

JUDGE:	STONE J
DATE:	27 SEPTEMBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for leave to appeal from an interlocutory decision of a Federal Magistrate.  His Honour dismissed the application for judicial review of a decision of the Refugee Review Tribunal on the basis that it raised no arguable case; SZKRQ v Minister for Immigration & Anor [2007] FMCA 1464. The Tribunal had affirmed a decision of the delegate of the Minister for Immigration and Citizenship that the applicant should be refused a protection visa.

2. The claims put to the Tribunal on behalf of the applicant can be briefly summarised. The applicant claims to be a citizen of the People’s Republic of China, and a member of an underground Christian church in Fujian province.  She claims that she has suffered persecution at the hands of the authorities in Fujian, most significantly during the period from October to December 2005 when, following a raid upon a religious gathering, she was imprisoned and mistreated.  In rejecting this claim the Tribunal relied on independent country information that underground churches are generally tolerated in Fujian, and that generally only leading clergy are adversely targeted.  Relying on the applicant’s own evidence  that she had a relatively low profile within the group, the Tribunal found that there was no real chance of the applicant being persecuted should she be returned to China. 

3. In dismissing the application for judicial review, the Federal Magistrate said that none of the grounds raised by the applicant had any prospect of success. His Honour held the claim that the Tribunal failed to comply with s 424A of the Migration Act 1958 (Cth) in respect of the independent country information and information provided by the applicant to the Tribunal was forestalled by s 424A(3), which exempts such information from the requirements of s 424A. His Honour also held that there was no evidence to support the applicant’s assertion of translation difficulties.

4. The applicant argued that the Tribunal failed to consider certain conflicting independent country information.  The Federal Magistrate found that this was an attempt to attack the merits of the Tribunal’s decision and, moreover, that it was unclear that the information would have led to a different conclusion.  His Honour found that the evidence did not support the applicant’s arguments alleging bias or breach of s 425. 

5. An appeal from an interlocutory decision lies only with the leave of the Court; s 24(1A) Federal Court of Australia Act 1976 (Cth). The criteria for the grant of leave are well-established; see Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. In particular the applicant must show that his Honour’s decision is attended with sufficient doubt to warrant interference with his discretion.

6. On 23 August 2007, the applicant filed an application for leave to appeal, an affidavit purporting to set out the grounds of the application, and a draft notice of appeal.  It is apparent from these documents that the applicant faces understandable but considerable difficulties in composing comprehensible legal documents.  Similar difficulties resulting from a lack of familiarity with the Australian legal system or with the English language were apparent at the hearing before me today, where the applicant’s submissions focused on the alleged failure of the migration agent in presenting her claims to the Tribunal.  She said, without giving any details and without providing any evidence, that the claims she wished to put to the Tribunal were different from those that were put by the migration agent.  She also said that she paid the migration agent a lot of money and that she cheated her but admitted that this matter had not been raised with the Federal Magistrate.  His Honour cannot be criticised for failing to consider a claim that was never put to him.  This submission cannot be accepted. 

7. The only other submissions made by the applicant invited this Court to review the findings of fact made by the Tribunal, which this Court has no jurisdiction to do.  Leaving aside attempts to argue with the merits of the Tribunal’s decision, the applicant has raised the following grounds which I shall address in turn:

   1) The draft notice of appeal asserts a breach of s 424A, although it does not identify the information that the applicant asserts that she should have been given. As the Federal Magistrate found, s 424A(3) must defeat that argument insofar as it relates to the independent country information and the information that the applicant gave to the Tribunal for the purpose of her application.

   2)   The draft notice of appeal also contains a claim that I take to be an assertion that the Federal Magistrate failed to consider whether the Tribunal had properly assessed her application for a protection visa.  In fact, however, the Federal Magistrate gave extended consideration to the process and reasoning of the Tribunal; see above at [3] - [4].

   3)   Finally, the applicant complains that she applied for legal assistance before the Federal Magistrate, but “didn’t [receive] a letter at all”.  While regrettable, that is not of itself sufficient ground to disturb his Honour’s decision.  In any event, his Honour’s reasons disclose that on 19 June 2007 the applicant was provided with “a referral for free legal advice”, and the Federal Magistrates Court file contains a letter from that Court to a legal practitioner, dated 25 June 2007, referring the applicant as part of the “RRT Legal Advice Scheme”.

8. Accordingly, I am not persuaded that the Federal Magistrate’s decision that the application before him did not raise an arguable claim for relief was incorrect.  Therefore, the present application must be dismissed.  The respondent has requested that the Court make a fixed costs order pursuant to O 62 r 4(2)(c) of the Federal Court Rules in the amount of $1,000.  I am satisfied that this is a reasonable sum considering the work involved in reviewing the documents, preparing written submissions and attending the hearing of the application for leave.  I am informed from the bar table that it is considerably less than would be the case if costs were to be taxed.  It is in the interests of both parties that no further costs be generated in this matter and I am prepared to make the costs order sought.

9. For these reasons the orders of the Court will be that the application for leave to appeal be dismissed and that the applicant pay the costs of the first respondent fixed in the sum of $1,000.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone J .

Associate:

Dated:        28 September 2007

The Applicant appeared in person, assisted by an interpreter.
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	27 September 2007
Date of Judgment:	27 September 2007