SZORI v Minister for Immigration and Citizenship
[2011] FCA 528
•16 May 2011
FEDERAL COURT OF AUSTRALIA
SZORI v Minister for Immigration and Citizenship [2011] FCA 528
Citation: SZORI v Minister for Immigration and Citizenship [2011] FCA 528 Appeal from: SZORI v Minister for Immigration [2011] FMCA 93 Parties: SZORI v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: NSD 285 of 2011 Judge: NICHOLAS J Date of judgment: 16 May 2011 Date of hearing: 16 May 2011 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 15 Counsel for the Appellant: The Appellant appeared in person with the assistance of an interpreter Solicitor for the Respondents: Mr Z Chami of Clayton Utz
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 285 of 2011
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZORI
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
NICHOLAS J
DATE OF ORDER:
16 MAY 2011
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be 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.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 285 of 2011
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZORI
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
NICHOLAS J
DATE:
16 MAY 2011
PLACE:
SYDNEY
REASONS FOR JUDGMENT
(Revised from Transcript)
The appellant is a citizen of China who arrived in Australia on 20 April 2008 on a Student Guardian Visa. An application for a Protection Visa (Class XA) which was lodged by the appellant on 24 February 2010 was refused by a delegate of the first respondent on 8 May 2010.
On 8 June 2010 the appellant applied to the Refugee Review Tribunal (the Tribunal) for a review of the delegate’s decision. On 3 September 2010 the Tribunal affirmed the delegate’s decision not to grant the appellant a protection visa.
Not satisfied with the Tribunal’s decision, the appellant filed an application for judicial review of the Tribunal’s decision (the review proceeding) which was dismissed by a Federal Magistrate (Cameron FM) on 22 February 2011. The appellant now appeals from the learned Federal Magistrate’s order dismissing the review proceeding.
The Tribunal was not satisfied that the appellant is a person to whom Australia has protection obligations under the Refugees Convention. In particular, the Tribunal was not satisfied that if the appellant was to return to China now or in the reasonably foreseeable future, there was a real chance that she would be harmed by reason of her political opinions, her membership of a particular social group or any other Convention reason.
The appellant claimed that her husband was a clam farmer whose land was requisitioned for use by Chinese military authorities from April to June 2009. She claimed that military exercises were conducted on the land during that period and that the adjoining waters were polluted, killing the clams which had been cultivated by her husband and other farmers like him.
The appellant claimed that her husband and other farmers made claims for compensation but that none was paid. It was claimed by the appellant that in support of their claims, the farmers, including her husband, engaged in political protests which led to him being arrested and detained by the authorities. Throughout this time the appellant was living with her son in Sydney where he attended school.
The reasons underlying the Tribunal’s lack of satisfaction are well explained in paras [56] and [57] of the Tribunal’s reasons for decision where it is said:
56.The applicant claims that at some time prior to November 2009, she had made comments to her husband about the merits of the Chinese and the Australian governments. It is important to establish what exactly the applicant had communicated to her husband. In the statement accompanying her protection visa application, she claimed that her husband had told the authorities that it was not surprising that “my wife in Australia told me that Australia was really a democracy country that it respects people's freedom and human right”. He had also conveyed to the authorities that there were plenty of news about Communists suffering persecution in China and that it was not surprising that many Communists had quit the Chinese Communist Party. It was unclear whether all these statements were attributed to the applicant. At the hearing, the applicant stated that her husband had told the authorities that she (the applicant) had told him that the government in Australia is good and the government in China is bad. When the Tribunal sought to clarify if she had said anything else, she said her husband had told the authorities that she had told him that the Australian government is really good, the Chinese government is really bad and that in China one cannot do anything without money. The Tribunal finds that this was the extent of the applicant's comments to her husband, which may have been relayed to the authorities.
57.According to her evidence, the applicant’s statements were communicated by her husband to the authorities before he was detained in November 2009. She stated at the hearing that shortly after he was detained, the authorities told her husband to ask her to return to China to be investigated in relation to her comments. The applicant’s evidence clearly suggests that was the only time the authorities had expressed their apparent desire to speak to her and her son and the matter had not been raised again thereafter. Her husband does not appear to have been pressed to compel or even ask his wife to return to China since then. The authorities’ apparent apathy appears to be reflected in the absence of any evidence in the sources consulted by the Tribunal to suggest that criticism of the government at the low level purportedly communicated by the applicant to her husband carries serious consequences, including ongoing investigation, arrest and detention.
Thus, the Tribunal made findings as to the extent of the appellant’s comments to her husband which may have been relayed to the authorities (“the Australian government is really good, the Chinese government is really bad … and in China one cannot do anything without money”). Assuming that such comments had been relayed to the authorities as the appellant claimed, the Tribunal was nonetheless not satisfied that the appellant had any well founded fear of harm for a Convention reason.
The learned Federal Magistrate considered four purported grounds of appeal which are set out in the application for judicial review. They were:
1.I believe that the decision makers made jurisdiction mistakes when considering my application. They did not give me proper opportunity to explain my case and simply refused my application base on bias against me.
2.The decision makers did not even refer to any information from any resources about that my husband was arrested by Chinese Authority.
3.The decision makers believed that I would not be persecuted on my return to China and I was lack of credibility. They could not produce any evidence or materials to justify the making of their decision and they just simply refused my application.
4. I hope my application can be reconsidered by you.
[errors in original]
His Honour considered and rejected each of these purported grounds of review. He came to the conclusion that the appellant had failed to demonstrate jurisdictional error on the part of the Tribunal.
In this Court the appellant relies upon a notice of appeal filed on 14 March 2011 containing the following purported grounds of appeal:
1. RRT had bias against me and did not make fair decision for my application.
2.I clarify all my points at the hearing of the Federal Magistrates Court, but the Judge refused my application on my hearing date. It is not fair.
3.I believe that my application was not considered reasonably by the Judge at the Federal Magistrates Court. I would be arrested when I go back to China. I fear to go back to China.
As to the first ground, the learned Federal Magistrate considered whether or not there was any evidentiary foundation to suggest that the Tribunal’s decision was affected by apprehended or actual bias. His Honour reviewed the Tribunal’s reasons for decision including, in particular, its account of what transpired at the hearing. His Honour was satisfied that there was no such evidentiary foundation. I agree with his Honour’s reasons and his conclusions.
The remaining grounds raised by the appellant do not identify any error on the part of the learned Federal Magistrate. The complaints made in those paragraphs reflect a misunderstanding of the jurisdiction exercised by the learned Federal Magistrate. As his Honour pointed out in his reasons for judgment, it was not open to him to re-hear the appellant’s application for a protection visa. The submissions that were made today by the appellant in support of her appeal did not attempt to identify any error on the part of the learned Federal Magistrate but instead sought to have this Court review the merits of the appellant’s application for a protection visa.
The learned Federal Magistrate found that the Tribunal’s decision was not affected by jurisdictional error. I am satisfied that his Honour’s decision was correct.
The appeal will be dismissed with costs.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas. Associate:
Dated: 19 May 2011
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