SZQEU v Minister for Immigration and Citizenship
[2011] FCA 1283
•10 November 2011
FEDERAL COURT OF AUSTRALIA
SZQEU v Minister for Immigration and Citizenship [2011] FCA 1283
Citation: SZQEU v Minister for Immigration and Citizenship [2011] FCA 1283 Appeal from: Application for extension of time: SZQEU v Minister for Immigration & Anor [2011] FMCA 522 Parties: SZQEU v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: NSD 1479 of 2011 Judge: COLLIER J Date of judgment: 10 November 2011 Legislation: Migration Act 1958 (Cth) s 91R Cases cited: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 cited Date of hearing: 10 November 2011 Place: Brisbane (Heard in Sydney) Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 27 Counsel for the Applicant: The Applicant appeared in person Solicitor for the First and Second Respondents: Mr J Pinder of DLA Piper
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
NSD 1479 of 2011
BETWEEN: SZQEU
ApplicantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
COLLIER J
DATE OF ORDER:
10 NOVEMBER 2011
WHERE MADE:
BRISBANE (HEARD IN SYDNEY)
THE COURT ORDERS THAT:
The application be dismissed with costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
NSD 1479 of 2011
BETWEEN: SZQEU
ApplicantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
COLLIER J
DATE:
10 NOVEMBER 2011
PLACE:
BRISBANE (HEARD IN SYDNEY)
REASONS FOR JUDGMENT
This is an application for an extension of time within which to appeal from a decision of Cameron FM dated 6 July 2011 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) handed down 7 April 2011. The Tribunal had affirmed the decision of a delegate of the Minister for Immigration and Citizenship to refuse the applicant’s application for a protection visa.
Background
The applicant is a citizen of China who arrived in Australia on 15 August 2010, and has since made the following claims.
The applicant had first entered Australia as a student guardian of her daughter in June 2007. The applicant claimed she observed Falun Gong practitioners promoting their beliefs in Chinatown, Sydney. When she returned to China the applicant told her ex-husband what she had seen. The applicants ex-husband told her that his best friend’s mother would like a new verse by Falun Gong master Li Hongzhi. The applicant sought this new verse when she returned to Australia.
The applicant claimed she found a Falun Gong practitioner who gave her the new verse and she returned to China with it in June 2009. The applicant gave it to her ex-husband on the basis he maintained the secrecy of the source. The applicant’s marital relationship disintegrated, the applicants ex-husband requested a divorce and the applicant refused.
On 30 June 2010 the applicant received a phone call from the police who requested she attend the police station. The police chief Mr Li gave the applicant an ultimatum. He said they had seized Falun Gong material from a believer who said she had received the book from the applicant who bought it in Australia. He also said that this matter was serious and that if she accepted the divorce her husband wanted the case could go away. The applicant agreed to the divorce but refused to give her ex-husband their jointly-owned family home worth 1,500,000 yuan.
The applicant received a call from Mr Li threatening her, and telling her to sign over the property to her husband. The applicant acceded to his demands and signed over the property. The applicant sold her business at a loss and fled to Australia.
On 15 September 2010 the applicant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the first respondent refused the application for a protection visa on 20 December 2010. On 5 January 2011 the applicant applied to the Tribunal for a review of that decision.
Refugee Review Tribunal
The applicant attended the Tribunal hearing and gave evidence regarding her claims.
The Tribunal was sceptical of the applicant’s claims due to the vague nature of her evidence concerning the person for whom she obtained the Falun Gong text. The Tribunal did not accept the applicant’s claim she was unaware of the risks in bringing such a document to China. The Tribunal accepted that the applicant took the Falun Gong text into China and was threatened by the police and her husband in relation to that action. However, the Tribunal did not accept the applicant’s claim she risked further danger if returned to China. On the applicant’s evidence, she had done what was asked of her by her ex-husband and the police chief, and to draw attention to her would risk her speaking out about the events which had occurred.
The Tribunal did not accept the applicant’s concerns that she would face harm from her husband if she returned to China as apparently he had done all he could to finish their relationship.
The Tribunal affirmed the decision to refuse the applicant’s visa application on the basis she did not have a well founded fear of persecution for a convention reason.
Federal Magistrates Court
On 3 May 2011 the applicant applied to the Federal Magistrates Court for judicial review of the Tribunal decision. The application contained the following ground:
1.My previous heartless husband bribed the police to frame up me in order to abandon me to marry a young girl and usurp my property. The Tribunal had bias against me and failed to consider my facts according to S91R of the migration Act 1958, making jurisdictional errors.
(Errors in original.)
At the hearing the applicant also claimed that the interpreter service at the Tribunal hearing was inadequate and the Tribunal hearing had been short and she had not been able to answer all the questions. The Federal Magistrate questioned the applicant about her claim that the Tribunal was biased. The applicant stated that this stemmed from the Tribunal member not believing her. The Federal Magistrate noted that the failure of the Tribunal to accept her claims did not constitute bias. The Federal Magistrate concluded there was nothing in the Tribunal decision to indicate it had a closed mind or been anything but impartial.
The Tribunal did not accept the applicants claim she would be in danger if she returned to China and as such was not required to consider s 91R(1) and (2) of the Migration Act 1958 (Cth).
The applicant claimed the interpreter at the Tribunal hearing had paraphrased her answers. However the Federal Magistrate noted the Tribunal made no reference to the applicant complaining about the interpreter services. The Federal Magistrate had regard to the applicant’s inability to provide examples of poor translation.
Having regard to the length of the Tribunal hearing and the simplicity of the applicant’s claims, the Federal Magistrate was not persuaded by her contention that the Tribunal hearing was improperly short in length. The applicant indicated she had replied in the negative at the Tribunal hearing when the Tribunal member asked if there was anything else she wanted to say.
The Federal Magistrate dismissed the applicant’s application on the basis the Tribunal decision did not contain any jurisdictional errors.
Application to this Court
The decision of the Federal Magistrate was delivered 6 July 2011. On 1 September 2011 the applicant filed an application for an extension of time within which to file a notice of appeal. That application contained the following grounds:
1.My previous husband bribed the police chief to frame me in order to abandon me to Marry a young girl and usurp my property. The Tribunal member had bias against me and failed to consider my facts according to s 91 R of the Migration Act 1958, making jurisdictional error.
2.The Federal Magistrate Court didn’t find the jurisdictional error of Refugee Review Tribunal.
(Reproduced as in original.)
In a supporting affidavit filed 30 August 2011 the applicant claimed that she had lodged a notice of appeal on 20 July 2011, however discovered once she called the Registry of the Federal Court that there was no record of lodgement of the notice.
Factors relevant to a consideration by the Court of an application for an extension o time include the following:
·whether the applicant has provided an acceptable explanation for the delay in lodging the application;
·whether the respondent would suffer prejudice in light of the delay should an extension of time to lodge the application be granted; and
·the merits of the substantial application.
(Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344)
At the hearing this morning the applicant submitted, in summary, as follows:
·she had lodged the notice of appeal on 20 July 2011 and that when she returned to subsequently lodge the notice on 1 September 2011 the Registry did not charge her a lodgement fee (thus accepting that she had lodged the document 20 July 2011);
·it is a fact that she has been persecuted by her ex-husband and the police chief in China.
Consideration
The delay in filing the notice of appeal in this case is not excessive and to that extent no prejudice to the Minister in respect of the delay has been demonstrated. However the explanation of the applicant for the delay is not satisfactory. There is no evidence that she had lodged, or attempted to lodge, a notice of appeal on 20 July 2011 as she has claimed. The applicant claimed that she had documents to prove lodgement on 20 July 2011 but did not have them in Court this morning. I am persuaded of the veracity of this claim.
Even were the Court prepared to accept the applicant’s explanation in respect of delay I consider that an order extending time for the applicant to lodge her notice of appeal would be an exercise in futility. I agree with the submissions of the Minister that the applicant’s proposed grounds of appeal are without merit.
The second draft ground of appeal is not a ground of appeal at all, but merely an unparticularised contention unsupported by any evidence.
The first ground of appeal makes unsubstantiated claims of bias against the Tribunal which his Honour considered in detail and, in my view, properly rejected. I note, yet again, that a decision of the Tribunal which is not in the applicant’s favour does not automatically mean that the Tribunal is biased against the applicant or that there is a reasonable apprehension of bias. In relation to the applicant’s claims concerning her ex-husband and the police chief, the Tribunal carefully considered the evidence before it, and while accepting some of the applicant’s claims was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason or that the applicant was a refugee entitled to protection.
I can identify no error in either the findings of the Tribunal or the decision of the learned Federal Magistrate.
The appropriate order is that the application be dismissed with 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 Collier. Associate:
Dated: 10 November 2011
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