SZQTG v Minister for Immigration and Citizenship

[2012] FCA 891

FEDERAL COURT OF AUSTRALIA

SZQTG v Minister for Immigration and Citizenship [2012] FCA 891

Citation:		SZQTG v Minister for Immigration and Citizenship [2012] FCA 891
Appeal from:		SZQTG v Minister for Immigration [2012] FMCA 341
Parties:		SZQTG v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 712 of 2012
Judge:		PERRAM J
Date of judgment:		21 August 2012
Catchwords:		IMMIGRATION – Refugees – appeal from Federal Magistrates Court – whether Refugee Review Tribunal denied procedural fairness
Legislation:		Migration Act 1958 (Cth) Pt 7, s 424A
Date of hearing:	14 August 2012
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	10
Counsel for the Appellant:	The appellant appeared in person
Solicitor for the First Respondent:	Ms V Bulut of Clayton Utz
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 712 of 2012

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZQTG
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 712 of 2012

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZQTG Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent

JUDGE:	PERRAM J
DATE:	21 AUGUST 2012
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from the Federal Magistrates Court.  The appellant claims that the learned Federal Magistrate erred in the way he handled her application for constitutional relief.  She had sought in the Court below to have quashed the decision of the Refugee Review Tribunal that she not be granted a protection visa.  In this Court she submits that the learned Federal Magistrate failed to detect errors made by the Tribunal (and before it, the Minister’s delegate) and that it had denied her procedural fairness.

2. These claims do not have any substance.  The reason the Tribunal refused the appellant’s application for a protection visa was that it did not believe that her claims of persecution in China were true.  As I will shortly endeavour to show there was material from which such a conclusion could readily be drawn.  The only substantive issue is whether the route by which that conclusion was reached involved procedural unfairness.

3. It is not, I think, necessary to consider the detailed aspects of Part 7 of the Migration Act 1958 (Cth) which deal with procedural fairness. Regardless of the legal characterisation of the events which occurred the result is the same. There was no want of procedural fairness. The appellant’s principal difficulty is that the Tribunal did not accept her account of her Falun Gong membership. There were reasons which were capable of justifying the Tribunal’s scepticism. These included:

   ·the inability of the appellant to answer basic questions about Falun Gong;

   ·her evidence that she had seen Falun Gong being practised in a park in China in 2007 when the sect was banned in China 1999 and public displays of Falun Gong thereafter did not occur;

   ·the fact that the appellant had travelled to Australia on a passport without any apparent difficulties attending her departure.

4. There were other examples too.  Each matter was put to the appellant for her response. It is true, no doubt, that her responses to the Tribunal were not persuasive or, in many cases, coherent and this might suggest a lack of comprehension on her part.  One of the factors that the Tribunal noted, however, was that the appellant was an educated person with a bachelor’s degree.  It was inclined, therefore, to treat the unsatisfactory performance of the appellant at the hearing as signalling a want not of comprehension, but instead of credibility.

5. The appellant plainly understood that she had performed badly at the Tribunal hearing.  She wrote to the Tribunal and informed it that she had been anxious and depressed at the time but that she was now feeling stronger.  She sought a second opportunity for a further hearing but this was declined on the basis that the Tribunal considered it had already given her a sufficient hearing.

6. From the perspective of what was procedurally fair under Part 7 this was adequate. The Tribunal was not bound to accede to her request. In any event the appellant did not seek to identify in this Court any particular problem with the actual hearing itself. Furthermore, as the learned Federal Magistrate noted, s 424A had been complied with.

7. Nor do I think there was any substance in the ground pursued before the Federal Magistrate that the Tribunal had presumed her evidence to be unreliable.  It is true that the Tribunal formed a negative view as to her credibility but this is neither grounds for thinking it was afflicted by bias, apprehended or actual, nor material from which some other want of procedural fairness might be inferred.

8. Before this Court the appellant pursued a new argument in her oral submissions.  The Tribunal had not given her the opportunity to put before it written submissions and this had denied her some degree of procedural fairness.  I reject this argument.  As Ms Bulut, the solicitor for the Minister, correctly observed not only had the Tribunal afforded the appellant a further two weeks after the hearing but, in fact, the appellant had taken up the invitation on 8 September 2009 by putting in a written submission.  In those circumstances, the factual foundation for the submission is not made good; it should be rejected.

9. I do not in those circumstances detect any error in the reasons of the Federal Magistrate.  Similarly, quite apart from those reasons, I can perceive no jurisdictional error in the approach of the Tribunal.

10. The application must be dismissed with costs.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.

Associate:

Dated:       21 August 2012