SZOVJ v Minister for Immigration and Citizenship

[2011] FCA 543

FEDERAL COURT OF AUSTRALIA

SZOVJ v Minister for Immigration and Citizenship [2011] FCA 543

Citation:		SZOVJ v Minister for Immigration and Citizenship [2011] FCA 543
Appeal from:		Application for leave to appeal: SZOVJ v Minister for Immigration & Anor [2011] FMCA 173
Parties:		SZOVJ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 400 of 2011
Judge:		COLLIER J
Date of judgment:		24 May 2011
Legislation:		Federal Court of Australia Act 1976 (Cth) s 24(1A) Migration Act 1958 (Cth) ss 65, 424 Federal Magistrates Court Rules r 44.12
Cases cited:		Abebe v Commonwealth [1999] 197 CLR 510 cited Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 cited Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 cited
Date of hearing:	24 May 2011
Place:	Brisbane (Video to Sydney)
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	20
Counsel for the Applicant:	The Applicant appeared in person with the assistance of an interpreter
Solicitor for the First and Second Respondents:	Ms E Baggett of DLA Piper

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	NSD 400 of 2011

BETWEEN:

SZOVJ
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COLLIER J
DATE OF ORDER:	24 MAY 2011
WHERE MADE:	BRISBANE (VIDEO TO SYDNEY)

THE COURT ORDERS THAT:

The application be dismissed with costs.

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
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	NSD 400 of 2011

BETWEEN:

SZOVJ
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COLLIER J
DATE:	24 MAY 2011
PLACE:	BRISBANE (VIDEO TO SYDNEY)

REASONS FOR JUDGMENT

1. This is an application for leave to appeal against the decision of Driver FM delivered on 17 March 2011 dismissing an application for judicial review of the Refugee Review Tribunal (Tribunal) decision handed down on 2 November 2010. The Tribunal had affirmed a decision of a delegate of the Minister of Immigration and Citizenship to refuse to grant the applicant a protection visa.

   BACKGROUND

2. The applicant is a citizen of the People’s Republic of China (China) who arrived in Australia on 10 April 2010. The applicant had a tourist visa and was travelling with tour group CEPT Travel; she absconded from that tour group on 10 April 2010. On 19 April 2010 the applicant logged an application for a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). A delegate of the Minister refused this application on 14 July 2010. On 12 August 2010 the applicant applied to the Tribunal for review of that decision.

3. In her protection visa application, the applicant claimed to be in fear of persecution because she was involved in political activism concerning land acquisition by the Chinese Authorities. Following news that the Authorities were acquiring the applicants and others property, the applicant with her neighbours refused to vacate their properties. In response, the Authorities cut off essential services such as electricity, water and also blocked sewerage pipes. On 9 September 2009 the applicant was forced to leave her property by the Authorities. After petitioning local Authorities on 2 October 2009, the applicant was detained for 15 days. The applicant claimed she was arrested, her documents confiscated and she was taken to a detention centre. After leaving the detention centre the applicant moved to her home in Guiyang for some months before deciding to leave China after hearing about the fate of her fellow petitioners.

   REFUGEE REVIEW TRIBUNAL

4. The delegate refused the applicant’s protection visa application on the basis that the applicant did not have a well founded fear of persecution. The delegate considered that the applicant’s claims were confused, her accounts conflicting, and her claims lacked credibility.

5. The applicant applied for review of the delegate’s decision on 12 August 2010 and appeared before the Tribunal on 7 October 2010. The applicant appeared with the assistance of a Fuqing/English interpreter.

6. The Tribunal also found the applicant’s claims lacked credibility. The Tribunal did not accept that the photos of a house being demolished submitted by the applicant were of her own house. The applicant claimed that the Chinese Authorities in Fujian did not know where she was living because she did not tell them. The Tribunal did not accept this stating that discovering the applicants address would be a basic investigatory step. Following her detention the applicant had lived at her home in Guiyang for some four months and the Tribunal found it difficult to believe the Public Security Bureau (PSB) could not have located her there if they had wished to.  This led the Tribunal to doubt that the applicant was of any interest to the PSB. The applicant stated that she used her own passport to exit China and said this was possible because only the authorities in Fujian were looking for her. The Tribunal found this indicated the applicant was not at risk elsewhere and she could have remained in Guizhou. There were also consistency issues with the dates provided by the applicant.

7. Accordingly the Tribunal affirmed the delegate’s decision to refuse the applicant’s protection visa application.

   FEDERAL MAGISTRATES COURT

8. On 3 December 2010 the applicant filed an application for judicial review of the Tribunal’s decision. In the application for review the applicant claimed the following:

   1.        RRT did not consider my application fairly.

   2.My house was demolished by local government, but no reasonable compensation.

   3.        I was persecuted for appealing. RRT low assess my risk to return to China.

   (errors in original)

9. The Federal Magistrate informed the applicant at the hearing that he could not deal with grounds two and three as they invited an impermissible merits review of the Tribunal decision. The Federal Magistrate held that there was no evidence to support the applicant’s first ground. Having considered any requirements to disclose under s 424 of the Act, his Honour dismissed the applicant’s application pursuant to rule 44.12 of the Federal Magistrates Court Rules on the basis that the applicant had not demonstrated an arguable case of jurisdictional error by the Tribunal.

   APPLICATION TO THIS COURT

10. On 6 April 2011 the applicant filed an application for leave to appeal against the decision of Driver FM. In two affidavits filed 6 April 2011 in support of her application the applicant made the following claims:

    •         “The judge did not consider my application fairly.”

    •“The judge did not give me enough time to provide more documents related to my application.”

    •         “RRT did not make fair decision for my application.”

    •“I clarified my situation to the judge of the Federal Magistrates Court, but the Judge dismissed my application on 17/03/2011. It is not fair.”

    •“I fear to go back to China. I fled my country. I need to be protected by Australian Government. The judge should remit my application back to RRT.”

    •“My application for a protection visa was refused by DIAC and RRT. I lodged my application to be reviewed at Federal Magistrate Court. The judge did not consider all information provided fairly.”

    •I lived in fear in China. So I came to Australia to get peaceful life. I hope to be protected by Australian Government.”

    (errors in original)

11. Before me in Court this morning the applicant was self-represented. The Minister was represented by Ms Baggett.

    CONSIDERATION

12. Rule 44.12 of the Federal Magistrates Court Rules provides as follows:

    Show cause hearing

    (1)   At a hearing of an application for an order to show cause, the Court may:

    (a)    if it is not satisfied that the application has raised an arguable case for the relief claimed -- dismiss the application; or

    ….

    ….

    (2)   To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.

13. The order of the learned Federal Magistrate in this case being interlocutory, leave of the Court must be obtained to appeal from his Honour’s decision: s 24(1A) Federal Court of Australia Act 1976 (Cth).

14. Principles relevant to the grant of leave to appeal from interlocutory judgments are well settled. In Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 the Full Court held that, in order to succeed, the applicant was required to show that there is sufficient doubt as to the correctness of the judgment below to warrant review and further that, if the judgment below were assumed to be wrong, substantial injustice would be suffered by the applicant if leave to appeal were refused.

15. In Court this morning the applicant again emphasised the fact that she felt the Tribunal had been unfair to her and that she needed more time to submit additional documents (namely, photographs of her house being demolished).

16. In this case however I am not satisfied that the applicant has substantiated a case supporting an order that leave to appeal be granted.

17. First, the primary ground for leave to appeal is that the applicant states that the decision of the Federal Magistrate was “not fair” to her. Without further particularization, this claim does not form a proper basis for an application for leave to appeal. The fact that the Federal Magistrate did not accept the submissions of the applicant is not, in itself, grounds for overturning his Honour’s decision. To the extent that the applicant claims bias on the part of the Federal Magistrate, I note that a claim of bias is very serious, must be specifically pleaded, and will not be supported simply by reference to findings against an applicant: Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 at 519, 531-532.

18. Second, the applicant’s claim in relation to her wish to live in Australia invites a merits review of the decision of the Tribunal. This is outside the scope of the jurisdiction of the Court in proceedings of this nature: Abebe v Commonwealth [1999] 197 CLR 510.

19. Third, there is no material before the Court which would warrant a finding that either the Federal Magistrate or the Tribunal failed to give the applicant sufficient time to provide more documents. Rather, the facts as recounted in his Honour’s judgment suggested that his Honour was very tolerant in respect of the applicant’s conduct at the hearing (including failure to appear, and permitting her to appear by telephone from home). Further, it is clear from the reasons for decision of the Tribunal at [39] and [80] that the Tribunal had been provided with photographs of the applicant’s house already, and that it had offered the applicant further time after the conclusion of the hearing to submit more documents, but that she had not done so. I am not persuaded that the Tribunal hearing was in any way unfair to the applicant (particularly as a key justification for the applicant’s failure to present her case properly was that she had been in a “bad mood” at the time of the Tribunal hearing, an issue irrelevant to the Tribunal’s conduct of the hearing).

20. The decision of the Federal Magistrate is not attended by sufficient doubt to warrant it being reconsidered. The appropriate order is that the application be dismissed with costs.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

Associate:

Dated:       24 May 2011