SZQLQ v Minister for Immigration and Citizenship
[2012] FCA 117
•21 February 2012
FEDERAL COURT OF AUSTRALIA
SZQLQ v Minister for Immigration and Citizenship [2012] FCA 117
Citation: SZQLQ v Minister for Immigration and Citizenship [2012] FCA 117 Appeal from: SZQLQ v Minister for Immigration [2011] FMCA 880 Parties: SZQLQ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: NSD 2062 of 2011 Judge: COLLIER J Date of judgment: 21 February 2012 Legislation: Migration Act 1958 (Cth) s 91R(3)
Federal Court Rules 2011 is r 40.02(b)Cases cited: SZQGE v Minister for Immigration and Citizenship (2011) FCA 1018 cited Date of hearing: 21 February 2012 Place: Brisbane (Heard in 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 First Respondent: Mr O Jones of Clayton Utz Solicitor for the Second Respondent: The Second Respondent did not appear
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
NSD 2062 of 2011
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZQLQ
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
COLLIER J
DATE OF ORDER:
21 FEBRUARY 2012
WHERE MADE:
BRISBANE (HEARD IN SYDNEY)
THE COURT ORDERS THAT:
The appeal be dismissed with costs fixed in the amount of $1842.00.
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 2062 of 2011
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZQLQ
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
COLLIER J
DATE:
21 FEBRUARY 2012
PLACE:
BRISBANE (HEARD IN SYDNEY)
REASONS FOR JUDGMENT
The appellant appeals from a decision of Raphael FM delivered on 4 November 2011 by which his Honour dismissed an application made on 22 July 2011 to review a decision of the Refugee Review Tribunal (“the Tribunal”). In that decision the Tribunal found that the appellant was not entitled to a Protection (Class XA) Visa.
Background
The appellant is a citizen of the People’s Republic of China who arrived in Australia on 27 December 2007 on a student visa. The appellant’s visa was cancelled in August 2008 for non-compliance. The appellant was given a bridging visa when it was discovered that his student visa had been improperly cancelled, and his student visa was restored on 16 March 2010. On 31 January 2011 the appellant applied for a Protection (Class XA) Visa. The appellant’s application for a protection visa was refused by the delegate of the Minister on 18 March 2011, and on 24 March 2011 the appellant applied for a review of that decision to the Tribunal.
The appellant claimed that he and his parents were Christians in China, and specifically they were of the religious group known as “Shouters”. He claimed that in 2004 the police came to his house and took the appellant and his parents to the police station, where they were detained overnight. The appellant claimed that when the appellant’s parents refused to sign a letter of guarantee that they would not attend Christian meetings the police hit the appellant’s fingers with a hammer. The appellant was taken to hospital and one of his fingers was amputated. He claimed to remain involved in the religion and was baptised in July 2006. In 2007 he was attending a meeting at a neighbour’s home when the police came and the appellant fled. He claimed that others at the meeting were detained and tortured. He claimed that while in Australia he had regularly attended Christian church.
The Refugee Review Tribunal
The appellant applied to the Tribunal for review of the delegate’s decision.
In summary, the Tribunal did not accept that the appellant was a Shouter in China. The Tribunal found that the appellant displayed little knowledge of the Shouter religion, that the appellant was not reading the Recovery Bible at the gatherings he claimed to have attended in China, and that the appellant had not attended Shouter churches in Australia. The Tribunal found that the appellant’s delay in lodging his protection visa went against his claim of persecution in China. The Tribunal concluded that the appellant wished to stay in Australia in order to work and send back money to his parents to repay a large debt.
The Tribunal disregarded the appellant’s conduct in Australia in accordance with s 91R(3) of the Migration Act 1958 (Cth) (“the Act”).
Application to the Federal Magistrates Court
On 22 July 2011 the appellant filed an application with the Federal Magistrates Court for judicial review of the Tribunal’s decision. The application included the following grounds:
1.There was an error in the decision and in the manner in which the Tribunal conducted the hearing.
2.The Tribunal failed to take into account relevant facts.
3.The Tribunal failed to take into account Australia’s obligations under the International Convention on Civil and Political Rights.
The Federal Magistrate concluded that the appellant’s grounds in his application were without merit. In summary, his Honour found that it was open to the Tribunal on the evidence before it to find that the appellant lacked knowledge of the Shouter religion, in particular by reference to his use of the Recovery Bible and in light of the substantial country information before the Tribunal.
Appeal to this Court
On 18 November 2011 the appellant filed an appeal in this court with, in summary, the following grounds of appeal:
1.Error of law in the decision itself and in the manner in which the Tribunal and the Federal Magistrate conducted the hearing, as the appellant has no knowledge of the proceeding before the Court as the translation lost the meaning of her statements.
2.The Tribunal and the Federal Magistrate failed to take into account relevant facts.
3.The Tribunal and the Federal Magistrate took into account irrelevant facts.
4.The Tribunal and the Federal Magistrate failed to take into account Australia’s obligations under the International Convention on Civil and Political Rights.
5.The Tribunal and the Federal Magistrate failed to take into account Australia’s obligations under the Convention Against Torture and Other Cruel, Inhumane and Degrading Treatment or Punishment if the appellant were returned to China.
6.The Tribunal and the Federal Magistrate failed to take into account relevant facts of the matter and the mental health condition of the appellant at the time of the application.
At the hearing this morning the appellant submitted that the Federal Magistrate had been unfair to the appellant in the hearing below, in the sense that the hearing was truncated to thirty minutes rather than the scheduled three and a half hours. There is no material before me however to suggest that the Federal Magistrate failed to give proper consideration to the appellant’s case. Certainly his Honour’s decision is detailed and thorough.
Further the appellant this morning claimed that the Federal Magistrate erred in respect of the question whether the appellant was truly a member of the “Shouters”. However, in [12] of the judgment below the Federal Magistrate referred to the observations of the Tribunal in respect of the appellant’s adherence to Christianity and the Shouter faith. I note that factual findings are for the Tribunal. No basis for this Court to interfere with those findings has been demonstrated by the appellant.
In relation to the appellant’s grounds of appeal, I note that they are substantially identical to the grounds of appeal raised in SZQGE v Minister for Immigration and Citizenship (2011) FCA 1018. It is difficult to draw any inference other than that the appellant has replicated these grounds of appeal in this case. I note that, in SZQGE, Bennett J held that the grounds of appeal were unmeritorious.
In any event, specifically in relation to the grounds of appeal raised by the appellant:
·In relation to ground 1, there is no evidence of any shortcoming in translation services provided for the appellant in either the Tribunal hearing or before the Federal Magistrate.
·In relation to grounds 2 and 3, the appellant provides no particulars to explain these claims. There is no indication of any facts which the Tribunal or the Federal Magistrate either failed to take into consideration, or wrongly took into consideration.
·In relation to grounds 4 and 5, as was pointed out both by her Honour in SZQGE and the Federal Magistrate below, at the relevant time the Tribunal was not obliged to take into account either of the international covenants identified in the notice of appeal.
·In relation to ground 6, there is no evidence before me that the appellant’s mental capacity was impaired at any relevant time.
The Minister has filed an affidavit sworn by Mr Oliver Jones (the Minister’s solicitor), deposing that costs in the sum of $1842.00 would be recovered by the Minister on taxation in the event that the Minister was successful in this matter. There is no reason why costs should not follow the event. In my view it is reasonable to order that the appellant pay the Minister’s costs, fixed in the amount of $1842.00.
The appeal is dismissed with costs fixed in the amount of $1842.00.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate:
Dated: 21 February 2012
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