SZQUJ v Minister for Immigration and Citizenship

[2012] FCA 483

FEDERAL COURT OF AUSTRALIA

SZQUJ v Minister for Immigration and Citizenship [2012] FCA 483

Citation:		SZQUJ v Minister for Immigration and Citizenship [2012] FCA 483
Appeal from:		SZQUJ v Minister for Immigration and Citizenship [2012] FMCA 173
Parties:		SZQUJ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 424 of 2012
Judge:		FOSTER J
Date of judgment:		9 May 2012
Legislation:		Migration Act 1958 (Cth), s 424A(1), s 424AA
Cases cited:		SZQUJ v Minister for Immigrationand Citizenship [2012] FMCA 173
Date of hearing:	9 May 2012
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	24
Counsel for the Appellant:	The Appellant appeared in person (with the aid of a Mandarin interpreter)
Solicitor for the First Respondent:	Ms N Johnson of Sparke Helmore
Solicitor 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 424 of 2012

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZQUJ
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	FOSTER J
DATE OF ORDER:	9 MAY 2012
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs of and incidental to 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 424 of 2012

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZQUJ
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	FOSTER J
DATE:	9 MAY 2012
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of a Federal Magistrate, delivered on 1 March 2012 (SZQUJ v Minister for Immigration and Citizenship [2012] FMCA 173), by which the Federal Magistrate dismissed an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) dated 28 September 2011.  The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Citizenship (the Minister), who is the first respondent to this appeal, dated 15 March 2011, not to grant the appellant a Protection (Class XA) visa. 

2. The appellant is a citizen of China who arrived in Australia on 17 October 2007 on a student guardian visa.  That visa expired on 31 July 2009. 

3. On 31 January 2011, the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship.  As I have already mentioned, on 15 March 2011, a delegate of the Minister refused that application. 

4. On 12 April 2011, the appellant applied to the Tribunal for a review of that decision.  The appellant’s written claims for protection were set out in a typed statement of approximately one and a half pages in length.  In that statement, the appellant claimed that her husband was a Falun Gong practitioner who had been arrested in China in January 2008.  She said that, on 13 March 2008, he had been sentenced to imprisonment for 18 months because he was a Falun Gong practitioner.  She claimed that he had been released on 8 July 2009. 

5. According to the appellant, in July 2010, the appellant’s husband contacted her and asked her to mail to him some of Master Li’s lectures because his Falun Gong compilations had been confiscated by the police.  The appellant claimed that she then mailed certain Falun Gong materials to her husband in July 2010, as he had requested, and, when that exercise proved successful, she sent further materials to him in September 2010.  The appellant claimed that, on 28 November 2010, her husband was again arrested, on this occasion for spreading illegal publications.  She said that he was later sentenced to jail for three years as a “stubborn Falun Gong practitioner”. 

6. The appellant claimed that, on 10 January 2011, her brother-in-law had telephoned her from China and informed her that the police there had issued a summons for her to report to the Public Security Bureau of Fuqing by 10 March 2011 for interrogation in Fuqing in relation to her sending illegal documents to China. 

   THE DELEGATE’S DECISION

7. On 9 February 2011, the delegate invited the appellant to attend an interview scheduled for 10 March 2011.  The appellant attended at that scheduled interview and gave information to the delegate in an endeavour to support her claims. 

8. On 15 March 2011, the delegate made a decision refusing to grant the appellant a protection visa.  The delegate did not believe that the appellant’s husband was a Falun Gong practitioner or believer and did not accept that he had been arrested or detained.  The delegate based this finding on the appellant’s lack of knowledge of Falun Gong and its doctrines and practices and upon her vague responses to the delegate about her husband’s alleged Falun Gong activities.  Also, the delegate did not accept that the appellant had posted any Falun Gong material to her husband or to anyone else in China.  In addition, the delegate found that the appellant’s three-year delay in lodging a protection visa application undermined her asserted subjective fear of persecution.  The delegate was ultimately not satisfied that she had a well-founded fear of persecution. 

   THE PROCEEDINGS IN THE TRIBUNAL

9. By letter dated 10 May 2011, the Tribunal invited the appellant to attend a hearing before the Tribunal scheduled for 22 June 2011.  The appellant accepted that invitation and attended at the Tribunal on 22 June 2011 in order to give evidence and to present arguments in support of her application.  At the conclusion of this first hearing day, the Tribunal adjourned the review for 14 days to allow the appellant a further opportunity to provide documents to the Tribunal. 

10. On 26 June 2011, the appellant appointed a second migration agent to assist her in connection with her application for review.  She had previously appointed a migration agent on 31 January 2011.  

11. On 8 July 2011, the Tribunal wrote to the appellant in accordance with s 424A(1) of the Migration Act 1958 (Cth) (the Migration Act) inviting her to comment on information obtained from her son’s protection visa application and associated Tribunal review proceedings.  In that letter, the Tribunal invited the appellant to comment upon a finding in her son’s Tribunal review proceedings to the effect that certain documents which her son had provided to the Department in connection with his protection visa application were not genuine.  In particular, the Tribunal had found that a document submitted by the appellant’s son purporting to record a criminal conviction against her husband was not genuine.  In the letter, the Tribunal explained that this matter was relevant because it raised concerns in the mind of the Tribunal about the appellant’s credibility and about the credibility of her claim that her husband had been arrested, detained and convicted as a Falun Gong practitioner.  The appellant never responded to that letter, notwithstanding that she had the assistance of at least one migration agent at all relevant times. 

12. On 5 August 2011, the appellant submitted to the Tribunal a translated copy of a “Summon Certificate” dated 10 January 2011. 

13. By letter dated 2 August 2011, the Tribunal invited the appellant to attend a further hearing on 18 August 2011. That hearing was subsequently rescheduled to 19 September 2011. At the further hearing held on 19 September 2011, the Tribunal made further disclosures pursuant to s 424AA of the Migration Act of information relevant to its deliberations. The essence of these disclosures was the apparent inconsistencies between the appellant’s evidence to the delegate at the interview and her evidence given at the first Tribunal hearing.

14. Ultimately, the Tribunal found the appellant’s evidence to be unreliable and lacking credibility.  The Tribunal found that the documents produced by the appellant’s son purporting to be evidence of his father’s arrest and sentence were not genuine and that this finding inevitably cast doubt on the appellant’s claims.  The Tribunal did not accept that the appellant’s husband was a Falun Gong practitioner.  As a result, the Tribunal did not accept the appellant’s claim that she sent documents to her husband in China nor did it accept her claim that her husband had subsequently been arrested.  Furthermore, the Tribunal did not accept that the appellant herself was now wanted by Chinese authorities because of her participation in these events.

15. The Tribunal also took into account the delay in the appellant’s application for a protection visa and the sequence of events leading to that application.  The appellant arrived in Australia in October 2007 on a student guardian visa but did not apply for a protection visa until January 2011 (three and a half years later) by which time she was an unlawful non-citizen.  In the end, the Tribunal reasoned that if the appellant had, indeed, feared persecution as she claimed, she would have applied for a protection visa much earlier.  In her defence on this point, the appellant submitted to the Tribunal that at that time she did not know how to apply for a protection visa nor did she have funds to do so.  The Tribunal did not accept this explanation for the delay on the part of the appellant. 

    THE PROCEEDINGS IN THE FEDERAL MAGISTRATES COURT

16. In the Federal Magistrates Court, the appellant advanced three grounds of appeal as follows:

    1.RRT refuses my application without considering my evidences [sic] carefully.  It is unfair. 

    2.RRT doubt that i was persecuted in China based on my late protection visa application.  They didn’t consider my situation.

    3.RRT does not consider my situiation [sic] carefully.  I will be put into the jail if I go back to China.

17. The Federal Magistrate briefly traversed the history of the appellant’s claims and her time in Australia and, at [7] of his Reasons for Judgment, considered the import of the Tribunal’s finding in the appellant’s son’s Tribunal matter to the effect that certain documents produced by her son in support of his claims for protection were not genuine.  The Federal Magistrate quoted, at [7], material from [81] of the Tribunal’s decision in the present case.  The Federal Magistrate, confronted as he was with unsatisfactory grounds for judicial review, did his best to see whether the appellant had a case. 

18. In relation to Ground 1, the Federal Magistrate said:

    I have considered the whole of the Tribunal’s decision record. It is quite clear that it did consider all the evidence put to it by the applicant. It not only gave her two hearings but it provided her with a letter under s.424A and asked her questions on the basis of s.424AA. What the applicant is really saying is that she cannot understand why she was not believed. That is what she put to me today. She was not believed for the reasons given by the Tribunal. Those reasons were available to it on the evidence produced. Under those circumstances there is no jurisdictional error. Coming to those conclusions this court cannot interfere, as to do so would be to be providing impermissible merits review.

19. The Federal Magistrate then dealt with the matter of delay and made the point, correctly in my view, that the Tribunal was entitled to take into account the delay between the date of the appellant’s arrival in this country (October 2007) and her application for a protection visa (31 January 2011).  The Federal Magistrate treated the third ground as rising no higher than the first.

    THE APPEAL IN THIS COURT

20. On 16 March 2012, the appellant filed a Notice of Appeal in this Court seeking to challenge the decision of the Federal Magistrate.  The grounds of appeal relied upon by the appellant in this Court are:

    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

21. No particulars of any of these very general grounds are provided.  It is impossible to deal with grounds of appeal put in this general way.  They provide no proper basis for the Court’s consideration of the appeal.  The appellant did not provide any Written Submissions for the assistance of the Court although she had been directed to do so.  The only submissions which she made orally at the hearing before me today were:

    •         “What I told the Tribunal was true.”

    •         “The decision of the Tribunal is unfair.”

    These submissions do not advance the appellant’s case on appeal.

22. I have carefully looked at the Decision Record of the Tribunal in order to see whether, perhaps tucked away in the Tribunal’s Reasons for Decision, there might be some legitimate cause for complaint on the part of the appellant.  I see no such legitimate cause for complaint.  This was the position arrived at by the Federal Magistrate for the reasons which I have summarised.  The Federal Magistrate found no jurisdictional error on the part of the Tribunal. 

23. I see no error in the Federal Magistrate’s decision.  It is not open for the appellant to come to this Court in order to seek a wholesale review of her application for a protection visa on the merits.  That is what she is attempting to do and it is not a permissible course. 

24. For these reasons, I will dismiss the appeal with costs.  There will be orders accordingly. 

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster.

Associate:
Dated:        9 May 2012