SZQNC v Minister for Immigration and Citizenship

Case [2012] FCA 857

FEDERAL COURT OF AUSTRALIA

SZQNC v Minister for Immigration and Citizenship [2012] FCA 857

Citation: SZQNC v Minister for Immigration and Citizenship [2012] FCA 857
Appeal from: SZQNC v Minister for Immigration and Citizenship & Anor [2012] FMCA 190
Parties: SZQNC v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number: NSD 531 of 2012
Judge: KENNY J
Date of judgment: 24 August 2012
Catchwords: MIGRATION – refusal of a protection visa – appeal from the Federal Magistrates Court – appeal dismissed.
Legislation: Migration Act 1958 (Cth)
Cases cited: SZQNC v Minister for Immigration and Citizenship [2012] FMCA 190
Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230
Date of hearing: 15 August 2012
Place: Melbourne (heard in Sydney)
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 32
The appellant appeared in person with the assistance of an interpreter
Solicitor for the first respondent: Ms M Stone of DLA Piper Australia
The second respondent submitted to any order the Court might make, save as to costs

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 531 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:

SZQNC
Appellant
AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

KENNY J

DATE OF ORDER:

24 AUGUST 2012

WHERE MADE:

MELBOURNE (HEARD IN SYDNEY)

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs of and incidental to the appeal.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 531 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:

SZQNC
Appellant
AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

KENNY J

DATE:

24 AUGUST 2012

PLACE:

MELBOURNE (HEARD IN SYDNEY)

REASONS FOR JUDGMENT

  1. This is an appeal from a judgment of the Federal Magistrates Court dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“Tribunal”).

  2. The grounds of appeal are stated as:

    1.The interpreter at the RRT could not communicate efficiently with me.  The interpreting mistakes caused negative impact on my application.

    2.The grounds to refuse my application were insufficient.

    The appellant has not filed any other written material in support of his appeal. 

  3. At the hearing of the appeal, the appellant was unrepresented, although he had the assistance of an interpreter.  The first respondent was legally represented and relied on written submissions dated 6 August 2012.  The second respondent filed a submitting appearance, save as to costs.

  4. For the reasons stated below, I would dismiss the appeal. 

    BACKGROUND

  5. The appellant is a citizen of the People’s Republic of China.  He arrived in Australia on 23 April 2009 and applied for a protection visa on 2 June 2010. 

  6. In substance, the appellant claimed to fear harm in China due to his Korean ethnicity and because…

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AGLC
SZQNC v Minister for Immigration and Citizenship [2012] FCA 857
Case
[2012] FCA 857
Decision Date

CaseChat Overview and Summary

In the case of SZQNC v Minister for Immigration and Citizenship, the appellant, a citizen of the People’s Republic of China, appealed against the Tribunal’s decision to affirm the delegate's refusal of his application for a protection visa. The appellant claimed he feared harm in China due to his Korean ethnicity and his assistance to North Korean refugees, resulting in his detention and interrogation by Chinese authorities. He alleged that he was released after his family paid a sum of money. The Tribunal, however, found inconsistencies in the appellant’s accounts and rejected his claims, affirming the delegate’s decision.

The legal issues before the court were whether the Tribunal erred in finding the appellant’s claims were not credible and whether the Tribunal's decision was unreasonable. The court considered the credibility of the appellant’s evidence and the consistency of his statements, as well as the reasonableness of the Tribunal's findings in light of the evidence presented.

The court found that the Tribunal’s decision was not unreasonable. It held that the Tribunal was justified in questioning the credibility of the appellant’s evidence due to the inconsistencies in his accounts. The court found no error in the Tribunal’s rejection of the appellant’s claims about his detention and political activities. Given the inconsistencies and the lack of supporting evidence, the court concluded that the Tribunal’s decision was sound.

Accordingly, the appeal was dismissed. The appellant was ordered to pay the first respondent’s costs of and incidental to the appeal.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the first respondent’s costs of and incidental to the appeal.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

For the reasons stated below, I would dismiss the appeal. BACKGROUND The appellant is a citizen of the People’s Republic of China. He arrived in Australia on 23 April 2009 and applied for a protection visa on 2 June 2010. In substance, the appellant claimed to fear harm in China due to his Korean ethnicity and because he had assisted Korean refugees in China. In a statement that he supplied to the delegate, the appellant claimed that he was of Korean ethnicity and had always considered himself Korean. He said that his grandfather was born in Korea but had fled in 1944 at the time of the Japanese invasion. The appellant claimed that the Chinese government and society discriminated against Koreans in China. He stated that he was “forced to learn and use Chinese” when he was growing up; that local officials bullied Korean Chinese; and that, on account of discriminatory practices, Korean Chinese also suffered high unemployment. The appellant claimed he was politically opposed to the government of China; and that he had assisted refugees from the Democratic People’s Republic of Korea (DPRK). The appellant detailed some of his activities in this regard and referred to his detention in March 2008 because of these activities. The appellant said that he had been interrogated and threatened with a lengthy gaol sentence. His family had obtained his release by paying 30,000 RMB. The appellant claimed that he regarded DPRK as his own country but that he could not return there; and nor, on account of his political activities, could he return safely to China. A delegate of the first respondent made a decision to refuse his visa application on 26 October 2010. As appears below, on 7 July 2011, the Tribunal affirmed the delegate’s decision. THE TRIBUNAL DECISION The appellant appeared before the Tribunal on 11 February 2011. He was represented by a registered migration agent. At the hearing, the appellant’s representative provided written submissions and documentary evidence in support of his claims. Following the hearing, the appellant’s representative provided further written submissions and documentary evidence. On 16 March 2011, the Tribunal wrote to the appellant, via his representative, inviting him to provide information relating to his claims. The appellant’s representative responded on 7 April 2011, with further submissions and country information. The appellant attended a further hearing before the Tribunal on 10 June 2011. The Tribunal made its decision on 7 July 2011, to affirm the delegate’s decision. Before the Tribunal, the appellant claimed to be a member of an organisation that helped North Koreans. The appellant stated that the situation in China was very strict because the Chinese government did not accept refugees from North Korea and because many Chinese who had a Korean background were the subject of discrimination. The Tribunal questioned the appellant about various aspects of his claims. Amongst other things, it asked him about the typical refugee from North Korea and the preponderance of women refugees; why it had taken him so long to apply for protection after he entered Australia; his political activities in China; and what would happen if he returned to China.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

A delegate of the first respondent made a decision to refuse his visa application on 26 October 2010. As appears below, on 7 July 2011, the Tribunal affirmed the delegate’s decision. THE TRIBUNAL DECISION The appellant appeared before the Tribunal on 11 February 2011. He was represented by a registered migration agent. At the hearing, the appellant’s representative provided written submissions and documentary evidence in support of his claims. Following the hearing, the appellant’s representative provided further written submissions and documentary evidence. On 16 March 2011, the Tribunal wrote to the appellant, via his representative, inviting him to provide information relating to his claims. The appellant’s representative responded on 7 April 2011, with further submissions and country information. The appellant attended a further hearing before the Tribunal on 10 June 2011. The Tribunal made its decision on 7 July 2011, to affirm the delegate’s decision. Before the Tribunal, the appellant claimed to be a member of an organisation that helped North Koreans. The appellant stated that the situation in China was very strict because the Chinese government did not accept refugees from North Korea and because many Chinese who had a Korean background were the subject of discrimination. The Tribunal questioned the appellant about various aspects of his claims. Amongst other things, it asked him about the typical refugee from North Korea and the preponderance of women refugees; why it had taken him so long to apply for protection after he entered Australia; his political activities in China; and what would happen if he returned to China. The Tribunal accepted that the appellant had visited North Korea in 2003; and that he was from Jilin province in China and may have had some contact with North Koreans there. The Tribunal rejected the appellant’s claim that he had attended meetings, uploaded articles to the internet and helped North Korean refugees once they were in China. The Tribunal rejected his claim because of the inconsistencies that it identified in his accounts about whether he went to meetings before or after he went to North Korea, the nature of the group of people with whom he said he was involved and his role in the group, and the refugees he claimed to have assisted. In this regard too, the Tribunal referred to the appellant’s inability to describe the typical refugee, the length of time between his alleged detention and his departure from China, as well as the time that elapsed before he applied for a protection visa once he arrived in Australia. As a consequence, the Tribunal did not accept that the appellant was detained, as he alleged, in March 2008 and only released on the payment of money. The Tribunal noted the inconsistencies in the appellant’s accounts in this regard. The Tribunal concluded by saying:In summary, the Tribunal is not satisfied that the [appellant] was involved in a group that allegedly met to assist North Koreans into China and where he expressed political views and uploaded articles, nor that he was detained, nor that he and his family were monitored.

Ratio Decidendi

Legal Principle Established

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