SZQRR v Minister for Immigration and Citizenship
[2012] FCA 430
•17 May 2012
FEDERAL COURT OF AUSTRALIA
SZQRR v Minister for Immigration and Citizenship [2012] FCA 430
Citation: SZQRR v Minister for Immigration and Citizenship [2012] FCA 430 Appeal from: SZQRR v Minister for Immigration & Anor [2012] FMCA 99 Parties: SZQRR v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: NSD 342 of 2012 Judge: ROBERTSON J Date of judgment: 17 May 2012 Catchwords: MIGRATION – application for extension of time to file leave to appeal – application for leave to appeal – whether judgment of Federal Magistrate attended by sufficient doubt Legislation: Migration Act 1958 (Cth) s 36(2)(a)
Federal Court of Australia Act 1976 (Cth) s 24(1A)
Federal Court Rules 2011 r 35.13
Federal Magistrates Court Rules 2001 r 44.12(1)(a)Cases cited: Décor Corporation Pty Ltd v Dart Industries Inc (1981) 33 FCR 397 followed Dates of hearing: 1, 17 May 2012 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 24 Counsel for the Applicant: The Applicant appeared in person with the aid of an interpreter Solicitor for the First Respondent: Ms E Baggett of DLA Piper Australia 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 342 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZQRR
ApplicantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
ROBERTSON J
DATE OF ORDER:
17 MAY 2012
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application for extension of time in which to file the notice of appeal be granted.
2.The application for leave to appeal be dismissed.
3.The applicant 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 342 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZQRR
ApplicantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
ROBERTSON J
DATE:
17 MAY 2012
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This was an application for an extension of time to apply for leave to appeal and an application for leave to appeal from orders made in the Federal Magistrates Court of Australia on 14 February 2012 (SZQRR v Minister for Immigration & Anor [2012] FMCA 99). Those orders were that the application be dismissed under rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001, with the applicant to pay the first respondent’s costs in the sum of $3,123.
The rule under which the Federal Magistrate acted provides:
44.12 Show cause hearing
(1) At a hearing of an application for an order to show cause, the Court may:
(a)if it is not satisfied that the application has raised an arguable case for the relief claimed — dismiss the application; or
(b)if it is satisfied that the application has raised an arguable case for the relief claimed — adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or
(c)without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.
(2) To avoid doubt, a dismissal under paragraph (1) (a) is interlocutory.
The Federal Magistrate was not satisfied that the application raised an arguable case for the relief claimed and dismissed the application.
The “notice of appeal” to the Federal Court was filed on 2 March 2012. The grounds of appeal were as follows:
1. RRT made a jurisdictional mistake which is in breach of the law of justice.
2. The Magistrate failed to consider the errors made by RRT.
3. The Magistrate breached the principle of justice in breach of
I shall read ground 3 as if it said “the Magistrate breached the principle of natural justice”.
By virtue of s 24(1A) of the Federal Court of Australia Act 1976 (Cth), the applicant needed leave to appeal from the interlocutory decision of the Federal Magistrate. The applicant also needed an extension of time to file the application for leave to appeal because under r 35.13 of the Federal Court Rules 2011 an application for leave to appeal from an interlocutory decision must be filed within 14 days of the date on which judgment was pronounced.
The notice of appeal from the Federal Magistrates Court was accepted for filing in the Federal Court on 2 March 2012. However, the applicant was advised by telephone and letter dated 6 March 2012 that as the decision of the Federal Magistrate had been dismissed pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules, this was an interlocutory decision and it would be necessary for further forms to be filed. At the same time an application for leave to appeal would also be required. The applicant was notified that the notice of appeal originally filed would be accepted as the “draft” notice as required by the extension of time application.
I grant an extension of time in which to file the application for leave to appeal so as to permit that application to be made. The extension of time was not opposed. The period of time involved is very short. The short delay was described by the legal representative of the Minister as a technical point and no prejudice was pointed to by her. In my view it is in the interests of justice that the applicant be permitted to apply for leave to appeal from this interlocutory decision. I shall return below to the separate but related question of whether leave to appeal should be granted.
On the hearing of the application to this Court, I invited the applicant to make the submissions she would make if leave to appeal were granted.
The decision of the Tribunal
On 1 September 2011, following a hearing on 2 August 2011, the Refugee Review Tribunal (the Tribunal) decided to affirm the decision not to grant the applicant a Protection (Class XA) visa. The findings made by the Tribunal in its decision of 1 September 2011 were relevantly as follows:
20. The applicant was born on 13 December 1961 in Shanghai, China. She speaks, reads and writes Mandarin. She arrived in Australia on a Visitor Visa on 8 January 2011 with a passport issued in her own name by the Chinese authorities in May 2010. Her visa was issued in Shanghai in June 2010. She has had nine years of formal education. The applicant has a daughter on a student visa in Australia and a husband in China.
22.She claims she was seriously persecuted by the Chinese government because of practising Falun Gong. She claims she came to Australia to apply for a protection visa from the Australian government. The applicant claims she suffered diseases due to her overwork in 1979 for which she could find no treatment. She claims that in July 2002 she set up a limited company. In 2007 she claims her husband developed severe rheumatism. She claims that her husband's sickness was cured due to Falun Gong and his health improved. She claims that her husband then advised her to practice Falun Gong. She claims she has practised Falun Gong with her husband since the year 2009. She claims after practising Falun Gong for 4 months she felt better and her health problems were cured. She claims she then concentrated on studying other stances of Falun Gong and reading some books written by Hongzhi Li. She claims this taught her to be truthful, kind and tolerant and she was hoping to strengthen her body through Falun Gong without involvement of political issues.
23.She came to Australia on 6 August 2010 for sightseeing. She returned to China on 2 November 2010. She claims that her husband and she were reported by other people because of publicising Falun Gong and practising Falun Gong. She claims that in the afternoon of 1 December 2010 she and her husband were caught by five policemen from their company. She claims they were sent to Shanghai City Kangxinzin Village Police Station. She claims they were interrogated for the whole night. She claims they were forced to confess. She claims her husband told them that he actively publicised Falun Gong because it could treat diseases and that there were no people backing them. She claimed that the police believed that her husband was a die-hard. She claims they used a baton to beat her husband. She claims her husband was found guilty of organising Falun Gong gatherings, publicising Falun Gong and disturbing social security. She claims her husband refused to sign the warranty to stop practising Falun Gong and he was sentenced to one year and five months in prison. She claims she was also found guilty of practicing Falun Gong without reporting. She claims her husband was put in Shanghai Qingpu prison and she was detained in Shanghai City Yangpu No.2 Detention House.
24.She claims she was detained for 15 days. She claims the Falun Gong practitioners in her prison were often beaten by police. She claims that if she said anything about Falun Gong she was not allowed to eat or go to the toilet and was made to pee in her trousers. She claims she was brainwashed every day and forced to listen to radio tarnishing Master Hongzhi LI. She claimed she was tortured physically and psychologically and she therefore signed a warranty to stop practising Falun Gong against her will. She claims she was released on 17 December 2010.
25.She claims her husband suffered more than her. She claimed no one was allowed to visit Falun Gong practitioners who were in her husband's team. She claims he was tortured. She claims he is now lame in his left leg.
26.She claims that as her husband was in prison their company could not survive. She claims they were arrested by police in front of many people. She claims that due to this she lost many contracts. She claims that the business collapsed. She claims she suffered a mental collapse. She claims her family fell apart under the persecution of the Chinese government because of practicing Falun Gong. She claims that she then decided to leave China. She claims that as she had a visitor visa she was able to return to Australia.
The Tribunal then described at length the course of the hearing on 2 August 2011 and the matters that were put to the applicant during that hearing. The Tribunal indicated to the applicant that it had some concerns with her credibility, including what the Tribunal described as discrepancies between her oral evidence and her statement attached to her application for protection. The Tribunal put to the applicant “the inconsistencies in the evidence that she had provided to the Department and Tribunal in relation to her company, documents she provided to the Department, and her oral evidence”.
The Tribunal accepted that the applicant was a Chinese national and assessed the claims against the People’s Republic of China as her country of nationality. The Tribunal found that the applicant was not a witness of credit and that her oral evidence was inconsistent, confused and in many instances not forthcoming. The applicant provided only her own unsubstantiated scant evidence, the Tribunal said.
The Tribunal found that the applicant’s evidence in relation to the claimed arrest and detention of herself and her husband was unconvincing and lacked substance. The Tribunal found that the applicant had not been truthful in her dealings with the Department and the Tribunal. Due to the applicant’s confused and inconsistent evidence in relation to her husband and her lack of knowledge at the oral hearing of his circumstances in detention, the Tribunal did not accept that she would be at risk of harm if she returned to China due to her being his wife or perceived as being a member of his family unit.
In relation to Falun Gong, the Tribunal found that the applicant’s responses were unconvincing and added further discrepancies to the inadequate and confused evidence provided by the applicant. In this respect also the Tribunal found that the applicant was not a witness of credit. The Tribunal did not accept that the applicant practised or participated in Falun Gong. The Tribunal said:
66. The Tribunal acknowledges that it may be difficult for applicants to articulate the principles and meaning behind the practise of Falun Gong during the hearing situation. However, the Tribunal had not asked for precise obscure information or knowledge just a general discussion; given the above, the Tribunal would expect a Falun Gong practitioner who had practised since 2009 would have been able to articulate some understanding of the general principles and theory of Falun Gong. The Tribunal would also expect a Falun Gong practitioner whose evidence is that she has done the exercises for her health since 2009 and continues to do some in private in Australia would have good knowledge of those exercises. The applicant did not know how many exercises there were and the one sitting exercise she demonstrated was not the same as the sitting exercised outlined in the Master Li's book.
The Tribunal did not accept that the applicant was, or currently is, a Falun Gong practitioner. It followed that the Tribunal did not accept that the applicant was detained, tortured and questioned in 2010 for practising Falun Gong or for any other reason. Nor did the Tribunal accept that if the applicant returned to China now or in the reasonably foreseeable future there was a real chance that the applicant would be perceived to be a Falun Gong practitioner or that she would be persecuted for reasons of any real or imputed religious beliefs or membership of any particular social group for the purposes of the Refugees Convention (“the Convention”) on the basis of her claimed involvement with Falun Gong. As the applicant had not claimed any other reason for refusing to return to China, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason if she did return to China.
The Tribunal was not satisfied that the applicant was a person to whom Australia has protection obligations under the Convention. Therefore the applicant did not satisfy the criterion set out in s 36(2)(a) of the Migration Act 1958 (Cth) for a protection visa. As I have said, the Tribunal affirmed the decision not to grant the applicant a Protection (Class XA) visa.
The proceedings in the Federal Magistrates Court
On review by the Federal Magistrates Court, there were three grounds:
1. RRT refuses my application without considering my evidences carefully. It is unfair.
2. RRT [distracts] me to ask questions which is not relevant to my application eg: When did my husband and I know each other.
3. RRT doubts my credibility based on the inconsistent information of my family that I gave, which is not relevant to case.
The learned Federal Magistrate said:
[9] In my view, on the material before it, the Tribunal was entitled to conclude that the applicant’s claims had been invented. The Tribunal purported to go through a process of oral disclosure at the hearing, pursuant to s.424AA of the Migration Act. To the extent that such disclosure was required, I am satisfied that the Tribunal met its obligation. I am not persuaded that the Tribunal took into account any irrelevant considerations or had regard to irrelevant material. The applicant has failed to demonstrate an arguable case of jurisdictional error by the Tribunal.
[10] It follows that the application should be dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”). I so order.
The appeal to the Federal Court
On appeal to the Federal Court, the applicant put the following matters in support of her application. She said she was not satisfied with the decision; it was a very hard judgment and she could not go back now. She also said that her memory was not very good. She was 51 years of age and she did not remember. She said she was a Falun Gong practitioner from her heart, and you could not tell whether she was a Falun Gong practitioner from her appearance. She said, “I am saying I am a Falun Gong practitioner”.
I turn to the grounds which I have set out in [3] above.
As to ground 1, that “the RRT made a jurisdictional mistake which is in breach of the law of justice” the applicant has failed to demonstrate any error in the conclusion of the Federal Magistrate that there was not an arguable case of jurisdictional error by the Tribunal. To the extent that the matters complained of were the grounds put to the Federal Magistrates Court, which I have set out in [15] above, a reading of the reasons for judgment of the Federal Magistrate shows that the evidence was considered. In addition the matters complained of were plainly relevant to the Tribunal’s task, in that they formed part of the background to the applicant’s claim. Those grounds before the Federal Magistrates Court had not been shown to be arguable and Ground 1 in this Court has not been made out.
Grounds 2 and 3 of the notice of appeal from the decision of the Federal Magistrate also have not been made out.
I reject the submission that the Federal Magistrate failed to consider the errors made by the Tribunal (ground 2): plainly the Federal Magistrate considered the contentions that there were errors but rejected those contentions.
As to ground 3, no basis has been shown for the contention that the Federal Magistrate denied natural justice or procedural fairness to the applicant.
On the present appeal no error has been demonstrated in the judgment of the Federal Magistrate.
Orders
The orders I make are that the application for an extension of time to file the application for leave to appeal be granted but that the application for leave to appeal from the Federal Magistrate’s interlocutory decision be refused. That decision is not attended by sufficient doubt to warrant the exercise of the discretion to grant leave to appeal. As to the breadth of the discretion see Décor Corporation Pty Ltd v Dart Industries Inc (1981) 33 FCR 397 at 399. The applicant must pay the first respondent’s costs.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson. Associate:
Dated: 21 May 2012
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