SZQQH v Minister for Immigration and Citizenship
[2012] FCA 820
•1 August 2012
FEDERAL COURT OF AUSTRALIA
SZQQH v Minister for Immigration and Citizenship [2012] FCA 820
Citation: SZQQH v Minister for Immigration and Citizenship [2012] FCA 820 Appeal from: SZQQH v Minister for Immigration & Anor [2012] FMCA 260 Parties: SZQQH v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: NSD 506 of 2012 Judge: GILMOUR J Date of judgment: 1 August 2012 Legislation: Migration Act 1958 (Cth) Cases cited: Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
SZQQH v Minister for Immigration and Citizenship [2012] FMCA 260Date of hearing: 1 August 2012 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 20 Counsel for the Appellant: The appellant appeared in person Counsel for the First Respondent: Ms A Wain Solicitor for the First Respondent: Minter Ellison Lawyers
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 506 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZQQH
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
GILMOUR J
DATE OF ORDER:
1 AUGUST 2012
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed
2.The appellant pay the costs of the first respondent, to be taxed if not agreed.
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 506 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZQQH
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
GILMOUR J
DATE:
1 AUGUST 2012
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an appeal from the decision of Federal Magistrate Smith delivered on 20 March 2012, dismissing an application for review by the appellant in respect of a decision of the Refugee Review Tribunal (the Tribunal) made on 17 August 2011. The Tribunal’s decision affirmed the decision of a delegate of the first respondent (the Minister) made on 11 May 2011, to not grant a Protection (Class XA) visa.
Background
The appellant is a citizen of the People’s Republic of China (China) who arrived in Australia on a visitor visa on 2 February 2011. On 28 March 2011, the appellant applied to the Department of Immigration and Citizenship (the Department) for a for a Protection (Class XA) visa. On 11 May 2011, a delegate of the Minister made a decision to refuse the application for the visa.
The appellant claimed to fear persecution in China because she had assisted Falun Gong practitioners with the printing of their material. It was alleged by the appellant that while she was working at a printing factory she had met a women who was involved with Falun Gong. It was claimed that in mid 1998 this woman had approached the appellant to print some Falun Gong material, and with the permission of her “chief” she had arranged for this to be done. She claimed that in December 1999 she was taken to a police station where she was interrogated and forced to attend brain washing classes. The appellant claimed that five of her former colleagues had been arrested and questioned over the printing, with all five being fired from the factory by the end of 1999. Despite this, the appellant claims to have continued printing Falun Gong material. The appellant alleged that in early 2007 she received a summons notice from the police and was detained for seven days. In October 2010 the appellant claimed to have returned to the printing factory, and found that it had been “blocked with sticky paper from the government”, and that she feared that she had been reported. The appellant claimed that a further summons had been issued for her after she had arrived in Australia, and that it was for this reason she feared further persecution should she return to China.
The Tribunal’s decision
On 6 June 2011, the appellant sought review of the decision by the delegate. She appointed a migration agent as her representative and authorised recipient in relation to the review.
By letter dated 21 June 2011, the Tribunal invited the appellant to appear at a hearing to give evidence and present arguments relating to the issues arising in her case. The appellant appeared at the scheduled hearing on 2 August 2011, and was assisted by a Mandarin interpreter.
The Tribunal accepted that treatment of people assisting Falun Gong practitioners in China since its banning in 1999 had involved serious harm by the authorities. However, the Tribunal noted that there were inconsistencies with the appellant’s testimony which suggested the appellant had fabricated her claims. The Tribunal rejected the appellant’s claim that she had assisted Falun Gong practitioners, and concluded that she did not face a well-founded fear of persecution within the meaning of the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees should she be returned to China.
The Tribunal observed that the appellant's evidence contained several significant inconsistencies between the appellant’s written visa statements, previous statements to the delegate, and oral submissions made to the Tribunal, which resulted in the Tribunal finding that the appellant was not a “witness of truth”. The appellant claimed that the inconsistencies were caused by a recent bout of Meniere’s disease. The Tribunal did not accept this explanation.
The Tribunal concluded at [83] of its reasons:
For the reasons outlined above on the basis of the cumulative impact of the applicant's inconsistencies in evidence, the Tribunal does not believe that the applicant is being truthful. The Tribunal therefore does not accept that the applicant assisted Falun Gong practitioners in China by assisting them to print materials. It does not accept she was detained at all for the reasons she claims and does not accept she had to attend brainwashing classes, was interrogated or issued with any summonses in 2007 or 2011 for assisting Falun Gong practitioners.
The Tribunal was not satisfied that the authorities in China had any interest in the appellant when she came to Australia, nor that she would be persecuted if she returned to China in the future.
Proceedings before the Federal Magistrate
On 14 September 2011, the appellant filed an application in the Federal Magistrates Court seeking judicial review of the Tribunal’s decision pursuant to s 476 of the Migration Act 1958 (Cth) (the Act). On 20 March 2012, his Honour gave an ex tempore judgment, and made orders that the application be dismissed with costs. On 2 April 2012, his Honour published written reasons for judgment.
The appellant articulated three grounds of judicial review in her application. These are as follows:
1. RRT did not accept that I practiced Falun Gong in China, it is discriminated.
2. RRT through my claims which is a fabrication without considering carefully.
3. I will be put in detention centre in China if I return back to China.
In dismissing the grounds of the application filed in the federal Magistrate Court, his Honour found that the grounds pleaded were without substance, and failed to raise even arguable jurisdictional error: SZQQH v Minister for Immigration and Citizenship [2012] FMCA 260 at [13]. His Honour observed that contrary to the assertion contained in ground 1 of the application, the appellant never claimed to have practiced Falun Gong in China: SZQQH at [14].
His Honour observed that the Tribunal had carefully considered the appellant’s evidence, and that the Tribunal’s adverse conclusion was based on rational reasoning and a firm evidentiary foundation: SZQQH at [15].
The application therefore was dismissed with costs.
Application in this court
The appellant lodged an appeal against all of the orders of the Federal Magistrate by way of a notice of appeal filed on 3 April 2012. The notice contains the following grounds of appeal:
1. Jurisdictional errors made by RRT.
2. The Federal Magistrates Court failed to identify the errors made by RRT.
As at the date of the hearing of her appeal the appellant had not provided any particulars of these grounds nor any submissions.
As the Minister submits, and I accept, these grounds fail to identify with any particularity any appellable error on the part of the Federal Magistrate. Whilst the second ground is addressed to the decision of the Federal Magistrate, it is unclear what form of “jurisdictional error” is sought to be relied upon.
I am, for my part, unable to discern any appealable error in the reasoning of the Federal Magistrate. Rather, and to the contrary, I am satisfied that the conclusion of the Federal Magistrate was correct and supported by cogent reasons.
The Tribunal’s decision turned on its finding that that appellant was not “being truthful” about her claims. The Tribunal, in reaching this conclusion, was entitled to direct its inquiry to the veracity of the appellant's claims regarding past events as that was fundamental to whether her claimed fear of harm was well founded: see for example Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 574-576. Inconsistencies in the appellant's evidence, as were identified by the Tribunal, may logically go to a decision-makers consideration of an applicant's claims: see for example Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558 and 559. Moreover, it is well established that it is not the role of the Federal Court, nor is it the role of the Federal Magistrates Court, to conduct a merits review: cf Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
The appeal, for all these reasons, will be dismissed with costs.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour. Associate:
Dated: 2 August 2012
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