SZQOP v Minister for Immigration and Citizenship
[2012] FCA 861
•8 August 2012
FEDERAL COURT OF AUSTRALIA
SZQOP v Minister for Immigration and Citizenship [2012] FCA 861
Citation: SZQOP v Minister for Immigration and Citizenship [2012] FCA 861 Appeal from: SZQOP v Minister for Immigration and Citizenship [2012] FMCA 281 Parties: SZQOP v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: NSD 590 of 2012 Judge: GRIFFITHS J Date of judgment: 8 August 2012 Catchwords: ADMINISTRATIVE LAW – decision by Refugee Review Tribunal to refuse to grant protection visa – decision by Federal Magistrate to dismiss appellant’s application for review – whether Federal Magistrate considered appellant’s claims of denial of procedural fairness Cases cited: SAAP v Minister for Immigration and Indigenous Affairs (2005) 228 CLR 294
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609Date of hearing: 8 August 2012 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 11 Counsel for the Appellant: The Appellant appeared in person with the assistance of an interpreter Solicitor for the First Respondent: Ms A Crittenden of Clayton Utz Counsel for the Second Respondent: The Second Respondent submitted save as to costs
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 590 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZQOP
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
GRIFFITHS J
DATE OF ORDER:
8 AUGUST 2012
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant pay the first respondent’s costs of 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 590 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZQOP
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
GRIFFITHS J
DATE:
8 AUGUST 2012
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an appeal against a decision of Nicholls FM made on 5 April 2012 in which the appellant’s application for judicial review was dismissed. That judicial review application related to a decision by the Refugee Review Tribunal (Tribunal) refusing the appellant a protection visa. The background facts may be briefly stated. The appellant is a citizen of the People’s Republic of China (China) and she arrived in Australia on 16 October 2010 using a false passport. She sought a protection visa, which was refused by the Minister’s delegate on 4 April 2011. She appealed to the Refugee Review Tribunal and accepted an invitation to appear before the Tribunal and present her case.
On 29 July 2011, the appellant was notified that her application to the Tribunal had been refused, and thus the decision of the delegate was affirmed. Judicial review was then sought by the appellant in the Federal Magistrates Court, which, as I have noted, ultimately led to a dismissal of her application on 5 April 2012. The appellant now appeals to this Court against the decision of Nicholls FM. It is important to understand at the outset that the proceedings before the Federal Magistrates Court did not and could not constitute a full appeal against the Tribunal’s decision. The judicial review jurisdiction being exercised by the Federal Magistrates Court necessitated that if the appellant was to be successful, she needed to establish a jurisdictional error on the part of the Tribunal.
The basis for the appellant’s claim for a protection visa is set out at some length in the decision of the Tribunal and also the Federal Magistrate. I need not set out all those matters here. It is sufficient for me to say that the fundamental basis for the claim for a protection visa relates to claims made by the appellant that she feared persecution in China on the basis of her religion. She provided a written statement in support of her protection visa application which detailed certain events which she says occurred in China amounting to abuse because of her religious beliefs.
The Tribunal did not accept that the appellant was a credible witness. The Tribunal concluded that the appellant’s evidence significantly lacked cohesion and that she had fabricated her claims. Ultimately, the Tribunal concluded that there was not a real chance that the appellant would be persecuted in the reasonably foreseeable future for any Convention reason, including her religious beliefs, if she were to return to China.
As noted above, the appellant sought judicial review in the Federal Magistrates Court. She raised three grounds, which in brief terms were, first, that the Tribunal had considered her case unfairly and doubted her claims without substantive evidence. The second ground was that she had been denied procedural fairness by the Tribunal. The third ground of judicial review was that the Tribunal had not considered her situation in China, and that she would be jailed if she returned there. The Federal Magistrate gave detailed reasons why he did not accept any of those three alleged judicial review errors. His Honour gave careful consideration to relevant legislative provisions and judicial authorities bearing upon the appellant’s complaints, including her claim that she had been denied procedural fairness.
The appellant’s notice of appeal to this Court identifies three grounds of appeal. First, that the Tribunal is said to have been biased against the appellant due to her lack of representation; secondly, that the Federal Magistrate failed to consider the errors made by the Tribunal; and thirdly, that the Federal Magistrate failed to identify what is said to be a denial of procedural fairness.
As the Minister pointed out in the written submissions which were filed in the proceedings before me, the appellant’s first ground of appeal is a fresh ground. As it was not raised in the Court below, it requires this Court’s leave to be raised here. It is well-established that one of the relevant matters to consider in determining whether to grant such leave is whether the proposed new ground has any merit.
The appellant has failed to particularise the proposed first ground of appeal, and has provided no evidence at all to support it. It is also difficult to understand the object of the first ground of appeal, in circumstances where the transcript before the Tribunal records that at the commencement of the hearing, the Tribunal member offered an adjournment to the appellant because her representative was not available on that day. The appellant was expressly asked by the Tribunal member whether she would like to proceed that day without her representative, or rather adjourn the hearing to another day. The appellant is recorded as responding to that question by saying, “I wish I can have a hearing today.”
There is no evidentiary material in the appeal book which suggests that this proposed ground of appeal has any merit. In the circumstances, I refuse leave for this ground to be raised as a fresh ground in the notice of appeal.
As to the second and third grounds of appeal, as best I can understand them, they appear to be directed to challenging the decision of Nicholls FM to reject the appellant’s claims that her case had been considered unfairly and that she had been denied procedural fairness. As I have noted above, Nicholls FM in his reasons for judgment carefully dealt with the appellant’s claims on these matters, brought to account the relevant provisions of the Act bearing upon matters of procedural fairness, and considered relevant case law dealing with procedural fairness principles in this context, including decisions of the High Court in cases such as SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 and SAAP v Minister for Immigration and Indigenous Affairs (2005) 228 CLR 294.
I consider that the appellant has failed to establish any appellable error in the Federal Magistrate’s reasons for rejecting her judicial review application, not only in respect of the specific complaint of procedural unfairness, but also in respect of the second judicial review ground raised by her. I do not see it as necessary to set out at great length in this judgment the reasons given by Nicholls FM relevantly on these matters. No appellable error has been demonstrated in respect of his Honour’s decision.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths. Associate:
Dated: 16 August 2012
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