SZQQZ v Minister for Immigration and Citizenship

[2012] FCA 890

FEDERAL COURT OF AUSTRALIA

SZQQZ v Minister for Immigration and Citizenship [2012] FCA 890

Citation:		SZQQZ v Minister for Immigration and Citizenship [2012] FCA 890
Appeal from:		SZQQZ v Minister for Immigration [2012] FMCA 397
Parties:		SZQQZ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 708 of 2012
Judge:		PERRAM J
Date of judgment:		21 August 2012
Catchwords:		IMMIGRATION – Refugees – appeal from Federal Magistrates Court – whether Refugee Review Tribunal had fallen into jurisdictional error – whether unfairness constitutes jurisdictional error – whether Tribunal denied procedural fairness
Legislation:		Australian Securities and Investments Commission Act 2001 (Cth) s 12BF Fair Work Act 2009 (Cth) Pt 3-2 Independent Contractors Act 2006 (Cth) s 9 Migration Act 1958 (Cth) s 414(1)
Cases cited:		SZQQZ v Minister for Immigration [2012] FMCA 397 affirmed
Date of hearing:	13 August 2012
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	21
Counsel for the Appellant:	The appellant appeared in person
Solicitor for the First Respondent:	Mr R O’Shannessy of Minter Ellison Lawyers
Counsel for the Second Respondent:	The second respondent did not appear

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 708 of 2012

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZQQZ
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	PERRAM J
DATE OF ORDER:	21 AUGUST 2012
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs.

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 708 of 2012

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZQQZ
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

PERRAM J

DATE:

21 AUGUST 2012

PLACE:

SYDNEY

REASONS FOR JUDGMENT

1. The underlying debate between the Minister for Immigration and Citizenship and the appellant concerns the former’s refusal to grant the latter a protection visa or, to put it more colloquially, to accept him as a refugee.  The original decision refusing the appellant a protection visa was made by one of the Minister’s delegates and this decision was confirmed on review by the Refugee Review Tribunal which considered the entire matter afresh on its merits.

2. At least so far as the merits go, the decision of the Tribunal marked the end of the matter.  If, however, the appellant could show that the Tribunal had made a jurisdictional error in reaching its conclusion, the appellant could seek relief in the Federal Magistrates Court to compel the Tribunal to conduct its review again.  The precise scope of the concept of jurisdictional error is unclear but may be summarised shortly, if imperfectly, by asking whether the Tribunal had carried out the review function given to it by the Migration Act 1958 (Cth) (‘the Act’). In this case, the Federal Magistrates Court concluded that no such error could be discerned in the approach of the Tribunal: SZQQZ v Minister for Immigration [2012] FMCA 397. It is from the orders giving effect to that conclusion that the appellant now appeals to this Court.

3. The originating process in this Court is the appellant’s notice of appeal.  In it he seeks only an order that the case be returned to the Tribunal and an order for costs.  I will treat this as seeking orders: that the appeal be allowed; that the orders made by the Federal Magistrate be set aside; that, in lieu thereof, the orders of the Tribunal be quashed by certiorari; and that the matter be remanded to the Tribunal for further consideration by way of mandamus.

4. The ground of appeal upon which the appellant relies is that the decision of Federal Magistrates Court is unfair. The concept of unfairness as a legal standard is not unknown in Australian law. Certain contracts can be reviewed in this Court because they are unfair (see s 9, Independent Contractors Act 2006 (Cth)); in some circumstances, the termination of an employee’s employment may be set aside by Fair Work Australia if the dismissal was unfair (see Part 3-2, Fair Work Act 2009 (Cth)); and certain contracts are made void by federal law if they contain terms which are unfair (see, e.g., s 12BF, Australian Securities and Investments Commission Act 2001 (Cth)).

5. There is, however, no law which gives this Court jurisdiction to hear appeals from the Federal Magistrates Court on the grounds of alleged unfairness.

6. For that reason, at least as a matter of formality, the appellant’s appeal should be dismissed.  In the interests of justice, however, I should consider whether, despite the form of the notice of appeal, any errors appear in the reasons of the Court below which might justify the intervention of this Court.

7. This necessitates attendance to the course of the proceedings in that Court.  Three grounds were put forward by the appellant in that Court as to why the Tribunal’s decision ought be quashed.  The first of these (Ground 1) was that the Tribunal had denied the appellant procedural fairness.  The learned Federal Magistrate reasoned this way at [27]:  ‘In relation to Ground 1, unaided by any particulars, I have been unable to identify any denial of procedural fairness by the Tribunal, insofar as obligations in that respect are required under the provisions of the [Act]’.  The appellant had appeared before the Federal Magistrate unrepresented and I proceed upon the assumption – in no way intending any criticism of the appellant – that his oral submissions may not have elucidated the intricacies of this ground in a way which was of practical benefit to the learned Federal Magistrate.

8. The Federal Magistrate examined the course of the proceedings before the Tribunal on 30 March 2011.  There were a number of features of the appellant’s circumstances which, perhaps, made the case a little more difficult from the Tribunal’s perspective than might ordinarily be usual.  To begin with the appellant was quite young (19 years old).  By itself this may appear relatively unexceptional.  However, combined with certain other facts, the youth of the appellant gave rise to a distinct impression of vulnerability on his part.  These facts concerned the very distressing course of the three years which had passed since he had arrived in Australia in 2007 with his mother.  They had arrived from China at a time when the appellant was 16.  Upon arrival the appellant had been granted access to Australia pursuant to a student visa and his mother a visa as his guardian.  After two years the visa was cancelled and the appellant (and his mother) became unlawful non-citizens liable to be detained in immigration detention.  The appellant remained at large but eventually was apprehended for a criminal offence (although it is not altogether clear, probably the offence of being in possession of goods reasonably suspected of having been stolen) and served three months in a State penitentiary.  Upon his release he was taken into immigration detention at the Immigration Detention Centre at Villawood.  It was whilst he was at Villawood that he lodged his claim for a protection visa.  In the intervening period he lost track of his mother (although it appears that she, too, eventually made an application for a protection visa).  Subsequent to making the application he was granted a bridging visa.

9. For a young male these were no doubt disturbing events and, unsurprisingly perhaps, they left the appellant in a confused and vulnerable state.  So much was concluded by the Tribunal (at [149]).  Further, there was evidence from a psychologist, Dr Wong, that the appellant was a poor historian who could easily be sidetracked by his emotion in answering questions.

10. I mention these matters because the oral hearing which took place before the Tribunal was a protracted and difficult affair extending over four hours.  It is apparent from the Tribunal’s reasons that the appellant was quite distressed by the entire experience with the hearing frequently stopping temporarily to allow the appellant a chance to recover his sang froid.  The Tribunal also repeatedly asked whether the appellant might not wish to adjourn but this was declined.  Having perused the reasons of the Tribunal two matters emerge with some clarity.  The first is that the Tribunal was aware that it would fail to carry out its statutory function of conducting a review (s 414(1)) if the appellant was not capable of meaningful participation in the proceedings.  At [149] it considered in detail, and with sensitivity, what might be called, for want of a better word, the appellant’s disadvantages insofar as the hearing was concerned.  Its conclusion is to be found at [150]: ‘The Tribunal is satisfied that with the ongoing support and assistance of his representative the applicant has been able to fully put his case to the Tribunal’.

11. The second matter is that the Tribunal dealt thoroughly with all the individual integers of the appellant’s claims.  In short compass, the appellant claimed protection on the basis of being a Christian from Fuqing City, Fujian, a coastal province of China on the Taiwan Strait.  He said that he fled with his mother in 2007 after a service being conducted by her at his home was interrupted when 10 police officers beat the door down and arrested a number of those present, including the appellant and his mother.  He alleges that he was thereafter incarcerated for a period by the police and assaulted by them during that time using a knife and a cigarette.  He said that, subsequently, he was released back to freedom and to his father.

12. The Tribunal’s ultimate conclusion was that it did not accept that these events occurred: [158]. Although prepared to accept his adherence as a Christian following his arrival in Australia, it did not accept that he had any substantive such adherence in Fujian. In his favour it found that his recent adherence to Christianity was not motivated by a desire to bolster his application. It specifically concluded that if he were returned to China he would be unlikely to attend church. It did so because it believed that his attendance at church in Australia was largely driven by his desire for fellowship and that this was unlikely to occur in China. It also doubted whether, without his mother, he would be as committed to the faith.

13. One basis upon which it arrived at those conclusions was that it did not believe important aspects of his account.  It gave detailed reasons for reaching that conclusion.  For example, it rejected some evidence the appellant gave about where he lived because it was in conflict with evidence the Tribunal was in possession of from his mother (as part of her claim for a protection visa).  In another section of its reasons it concluded that his evidence that the church meetings at the appellant’s home only occurred when his father (a non-Christian member of the Communist party) was away was implausible.  The reason for this was that the Tribunal did not think that it was likely that such a religious practice could be kept from the father.

14. In my view it would have been possible for the Tribunal either to reject or to accept the appellant’s claims.  But it rejected them and, like the learned Federal Magistrate, I am unable to discern any procedural unfairness in what took place.  Indeed, if I may say with respect, the Tribunal’s reasons display a conscientious anxiety to afford the appellant every procedural advantage given his circumstances.

15. Accordingly, I do not think that the ground of a breach of the rules of procedural fairness could have succeeded before the Federal Magistrates Court.

16. The second ground which was raised before the Federal Magistrates Court was that the Tribunal member had been very impatient with the appellant, had misled him with her questions and was not serious about his case.

17. The learned Federal Magistrate did not think there was any substance in this claim.  I do not think so either.  To read the reasons of the Tribunal is to see a thorough and even-handed attempt to assess the issues at hand.  My reading of its reasons – which constitute the only evidence before me on this matter – is that it attempted to deal with the appellant as fairly as was possible. I do not think that any of its behaviour was misleading.  Its carefully-drafted 38-page single-spaced reasons show the anxious consideration it gave the matter.  Even if the second ground had disclosed an available ground of review it was not made out on the facts.

18. The third ground was that the Tribunal had not provided the appellant with a CD containing a recording of the Tribunal hearing as he had requested.  The Federal Magistrate rejected this on the facts finding that the CD had been sent by registered post to the appellant’s agent on the day after the hearing before the Tribunal and that those assisting him had a copy by the time of the proceedings before the Federal Magistrates Court (although he was ultimately unrepresented in that Court).  I can see no basis for interfering with that factual finding.

19. At the hearing before me the appellant accepted that he had had access to the CD a few days before the hearing in the Federal Magistrates Court.  This had, however, been insufficient to permit him to prepare for the hearing in that Court, since he did not have access to an English translator.  Pressed on why he did not seek an adjournment, he submitted that he had been told that he needed three clear days to ask for such an application by court officials.  The difficulty I have in accepting this argument is my inability to know what the difficulties disclosed by the CD are.  The Federal Magistrate’s hearing was on 3 May 2012 and the hearing in this Court on 13 August 2012.  In the intervening time the appellant has been in possession of the CD and this is more than enough time to deal with its contents. Even assuming, therefore, that there were some procedural difficulty arising from the CD in the Federal Magistrates Court I am unable to gauge what it is.  This argument can only work if it is anchored in some identifiable portion of the CD which it is not.  The appellant argued that he had not been aware he needed to mount such an argument in this Court but in this he is in error.

20. It follows that the alleged difficulties with the CD are not shown to be material.  Also pursued before me was an argument that the Tribunal had not considered the evidence of Dr Wong.  It is quite plain, however, that it did:  see [56]-[57], [149].  I reject the argument.

21. These were the only grounds pursued in the Court below.  The learned Federal Magistrate rejected each of these and, as will be apparent from the foregoing, I believe, with respect, he was correct to do so.  Even if proper grounds of appeal had been put forward in this Court no appeal could have succeeded.  It will follow that the appeal should be dismissed with costs.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.

Associate:

Dated:       21 August 2012