SZQCG v Minister for Immigration and Citizenship

[2011] FCA 1240

FEDERAL COURT OF AUSTRALIA

SZQCG v Minister for Immigration & Citizenship [2011] FCA 1240

Citation:		SZQCG v Minister for Immigration & Citizenship [2011] FCA 1240
Appeal from:		SZQCG v Minister for Immigration & Anor [2011] FMCA 441
Parties:		SZQCG v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 1098 of 2011
Judge:		KATZMANN J
Date of judgment:		2 November 2011
Legislation:		Migration Act 1958 (Cth) ss 36(2)(a), 91R, 474, 476; Div 4
Cases cited:		Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 SLMB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 129
Date of hearing:	31 October 2011
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	27
Solicitor for the Appellant:	The appellant appeared in person with the assistance of an interpreter.
Solicitor for the First Respondent:	Mr I Temby of Minter Ellison Lawyers
Solicitor for the Second Respondent:	Submitting appearance

THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1098 of 2011

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZQCG
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	KATZMANN J
DATE OF ORDER:	2 NOVEMBER 2011
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1098 of 2011

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZQCG
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	KATZMANN J
DATE:	2 NOVEMBER 2011
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant arrived in Australia from the People’s Republic of China on 11 May 2010 on a valid PRC passport issued in November 2007 and a three months’ visitor’s visa.  On 2 July 2010, before his visitor’s visa expired, he applied to the first respondent (the Minister) for a protection visa.  The ground he gave was that he fears persecution in China for political reasons.  Fear of persecution for political reasons in his country of citizenship would entitle him to a protection visa, provided that he could also meet the other requirements set out in the Migration Act 1958 (Cth) (“the Act”) and Regulations. See ss 36(2)(a) and 91R of the Act, and Schedule 2 of the Regulations. But he was unable to satisfy the Minister or the second respondent (the tribunal) that he was genuine and his application was refused.

2. The visa application was supported by a statement.  In the statement the appellant claimed that his house had been compulsorily acquired and then demolished, forcing the family into the streets, and that when he petitioned the relevant authorities, he was placed under surveillance and then detained by police in a hotel against his will.  He said he was accused of being “anti-revolution”, placed under “non-stop interrogation”, subjected to brainwashing, and, on one occasion in June 2008, bound and brutally assaulted by police, causing three of his teeth to be knocked out.  He attributed this conduct to a public call he had made for the Chinese Communist Party to be removed from office because of the corruption of party officials.  He indicated that he fears further persecution, such as detention in a forced labour camp or gaol, if he were to return to China.  He said he fled to Australia in search of political freedom. 

3. At an interview with a delegate of the Minister the appellant added to his claims that, since he had left China, his wife’s business had ceased operating because no-one would do business with her.  To corroborate his claims he also produced to the delegate a certificate of title to certain property in Kaifeng City, where he said he had lived, and two medical certificates purportedly issued by the Kaifeng City Hospital of Traditional Chinese Medicine, together with English translations.  One stated that he had been treated for laceration of the upper lip, a chipped tooth, and a broken dental crown.  The second stated that he had been treated for a “lip traumatic injury” about 1.5 centimetres long and 0.3 centimetres deep, together with “multiple traumatic injuries at back”.  Both documents were dated 17 June 2008.  

4. The delegate rejected his application and so did the second respondent (the tribunal) after he applied to it for merits review.  He then filed an application with the Federal Magistrates Court for constitutional writs to quash the tribunal’s decision and reconsider his application.

5. By inference, the appeal is based on the contention that the federal magistrate erred because she did not conclude that the tribunal failed to take the appellant’s claims into account.  In his grounds of appeal he states (without alteration):

   1I was persecuted because of my strong sense of justice against corruption, embezzlement and abuse of power by CCP officials.  I suffered brutal mistreatment, both physically and psychologiclly.  But the Refugee Review Tribunal member failed to take my claims into account, making jurisdictional error.

   2        The Federal Magistrates Court dismissed my appeal.

6. Ground 1 was the basis for the application before the Federal Magistrates Court.

7. Although he was given an opportunity in the Federal Magistrates Court to fully particularise his grievance, the appellant only expanded on his position at the hearing when the federal magistrate questioned him.  According to the judgment, which is the only material before me touching upon what happened there, he said that the fact that he was persecuted was not fully considered in the tribunal.  In particular, he said the tribunal failed to take into account his medical certificates, the tribunal thought he was not telling the truth, and he had in fact lost “all his teeth” and his face hurt as he had claimed. 

8. The federal magistrate carefully considered the record of the tribunal’s decision and summarised it in her reasons. Her Honour observed that the tribunal explored the appellant’s claims in some detail, including his alleged injuries at the hands of officials. She noted that the tribunal was ultimately not persuaded by the claims and made findings against his credibility. She also noted that the tribunal’s concerns were clearly put to the appellant together with independent country information inconsistent with his claims. She explored whether there was anything to suggest a denial of procedural fairness (as codified in Division 4 of the Act) but concluded that there was not. Unable to satisfy herself that the tribunal had fallen into jurisdictional error, she dismissed the application with costs.

9. When the appeal was called on for hearing the appellant did not appear.  I stood the matter down in the hope that he might appear later but he did not.  He was contacted, however, by telephone and participated in the hearing with the assistance of a Mandarin interpreter.  He claimed that he had not received the letter from the Court notifying him of the hearing date although he had received other correspondence from the Court.  I asked him what he wanted to do and he said he wished to proceed with the hearing. 

10. The appeal to this Court is in the nature of a rehearing.  The federal magistrate’s orders can only be set aside if the appellant can point to error in her Honour’s reasons:  SLMB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 129 at [11].

11. When invited to identify those errors the appellant made three submissions.  First, he said, the federal magistrate did not consider the degree of persecution he suffered.  Secondly, he said he did not receive the recording from the Immigration Department and the tribunal although he had provided an address and a postal box.  He contended that at the directions hearing in the Federal Magistrates Court he applied for the recording and the solicitor for the Minister and the federal magistrate told him they would give it to him “as soon as possible”.  Thirdly, he lamented that the tribunal was “not fair, … irresponsible and didn’t consider [his] claims carefully”.  He said he did not know what additional documents he could provide.

12. I will deal with these submissions before turning to the matters raised in the notice of appeal.

13. The first submission is misconceived. It amounts to no more than a complaint that the federal magistrate did not review the findings of fact made by the tribunal. As the federal magistrate observed in her reasons, she was not permitted to undertake a review on the merits. That was the role of the tribunal. Her Honour’s task was limited to a consideration of whether the tribunal committed a jurisdictional error. That is the effect of ss 474 and 476 of the Act. See also Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476.

14. The second oral submission is of no consequence.  Mr Temby, who appeared for the Minister, was unable to confirm the accuracy of the appellant’s assertions but I find it difficult to believe that the federal magistrate told the appellant that she or the Minister would give him a copy of the recording as soon as possible.  Perhaps he misunderstood what she said.  The federal magistrate adverted to what she said at the directions hearing at [13] of her reasons for judgment:

    There was no transcript of the Tribunal hearing provided to this Court, nor did the applicant provide any evidence to suggest that the Tribunal’s decision record is not accurate.  At the directions hearing before me on 11 May 2011, the applicant was directed to file and serve evidence in support of his application, including any transcript of the Tribunal hearing.  The applicant was also directed that, if he wished to rely on recordings of the Tribunal hearing, he should give notice to the Court and to the first respondent.  However, no step was taken by the applicant to rely on any such evidence.

15. The appellant accepted that he did not challenge the accuracy of the tribunal’s record but he claimed that he had no basis to do so without the recording.  I do not accept the claim.  After all, he was present at the tribunal hearing.

16. In any event, when asked why he wanted the recording he said he wished to “review the process of the hearing” and see whether he needed to provide any additional documents.  That does not appear to touch upon the matters raised by the notice of appeal.

17. Regardless of whether the appellant’s account of what occurred at the directions hearing is true, he did not apply for an adjournment of the hearing of his application and he made no complaint in his notice of appeal about any procedural irregularity in the proceeding in the Federal Magistrates Court.  Accordingly, his failure to obtain a recording of the interview with the Minister or the hearing before the tribunal is irrelevant.

18. The tribunal’s decision record does not bear out the third submission, as I will shortly demonstrate.

19. I now turn to the matters raised in the notice of appeal. 

20. It follows from what I have just said that the federal magistrate was correct to conclude that the tribunal considered the appellant’s claims.  In fact, the tribunal considered each of the claims in some detail and, with the exception of his claims to citizenship and property ownership, it rejected them.  It rejected them, in short, because it did not believe him.  It found parts of his story lacked credibility.  It found some parts internally inconsistent. 

21. There can be no doubt that the tribunal took the medical certificates into account, although, as her Honour noted, it did not put any evidentiary weight on them.  It mentioned the certificates in three places in its decision. 

22. First, the tribunal described their contents (at [23]) when recording the documents the appellant submitted to the delegate at his interview. 

23. Secondly, at [46]-[47] of the decision record, the tribunal reported questioning the appellant about them.  The tribunal stated that the two medical certificates were said to relate to treatment for injuries sustained during the appellant’s interrogation on the fourth floor of the hotel in which he claimed to have been detained.  It noted their contents.  It raised with the appellant its concern about the reliability of one as inconsistent with his claim to have lost three teeth when beaten on the face with a stick; the certificate referred only to a chipped tooth and a broken crown.  The tribunal put to him that the reference in the other to “multiple traumatic injuries on back” was unusual for its total lack of specificity and absence of detail concerning treatment.  It told him that his explanation (that the doctor was not permitted to set these things out in detail) was “very hard to believe”.

24. Thirdly, the tribunal dealt with the medical certificates in its reasons. 

25. At [61] it stated that the appellant’s claims about the injuries he received during his alleged detention in a hotel (a claim it rejected as highly implausible) were largely inconsistent with the two medical certificates he furnished and his explanation was confused and inconsistent.  It concluded that, having regard to these matters, together with independent country information concerning the ready availability in China of fraudulent documents, no “significant evidentiary weight can be placed on either of [the certificates]”. 

26. Whether the tribunal’s conclusions were right or wrong, they were open to it on the material before it.  Its decisions to reject the appellant’s account and the medical certificates offered to corroborate it do not disclose any jurisdictional error.  In the circumstances, the federal magistrate had no alternative but to dismiss the application before her. 

27. Consequently, the appeal must be dismissed.  The appellant should pay the first respondent’s costs.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann.

Associate:

Dated:        2 November 2011