SZQUW v Minister for Immigration and Citizenship
[2012] FCA 847
•10 August 2012
FEDERAL COURT OF AUSTRALIA
SZQUW v Minister for Immigration and Citizenship [2012] FCA 847
Citation: SZQUW v Minister for Immigration and Citizenship [2012] FCA 847 Appeal from: SZQUW v Minister for Immigration & Anor [2012] FMCA 252 Parties: SZQUW v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: NSD 615 of 2012 Judge: YATES J Date of judgment: 10 August 2012 Catchwords: MIGRATION – application for protection visa refused – whether error disclosed in judicial review of a decision of the Refugee Review Tribunal Legislation: Migration Act 1958 (Cth) Date of hearing: 10 August 2012 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 22 Counsel for the Appellant: The Appellant appeared in person with the assistance of an interpreter Solicitor for the First Respondent: Ms L Buchanan of Australian Government Solicitor Solicitor for the Second Respondent: Submitting appearance
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 615 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZQUW
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
YATES J
DATE OF ORDER:
10 AUGUST 2012
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed with 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 615 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZQUW
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
YATES J
DATE:
10 AUGUST 2012
PLACE:
SYDNEY
REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)
This is an appeal from a judgment of the Federal Magistrates Court of Australia (the Federal Magistrates Court) given on 28 March 2012 in which the appellant unsuccessfully sought judicial review of a decision of the Refugee Review Tribunal (the Tribunal) dated 28 September 2011. By that decision the Tribunal affirmed a decision of a delegate of the Minister for Immigration and Citizenship (the Minister) dated 23 June 2011 which refused the grant of a Protection (Class XA) visa to the appellant.
Background
The Tribunal found that the appellant arrived in Australia on 9 March 2011. He travelled on a Chinese passport issued on 14 January 2009. The passport was valid until January 2019. He left China legally and had no difficulties in obtaining a travel document. He arrived in Australia under a Subclass 456 Business visa which was valid until 9 June 2011. On 28 April 2011 he lodged an application for a protection visa with the Department of Immigration and Citizenship. He provided a copy of his passport with that application.
Section 36(2) of the Migration Act 1958 (Cth) (the Act) relevantly provides that a criterion for a protection visa is that the applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Convention). Article 1A(2) of the Convention relevantly defines a refugee as a person who:
… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
Section 91R of the Act expands on the notion of persecution and serious harm when considering Art 1A(2) of the Convention.
The presiding Federal Magistrate summarised the appellant’s claims at [14] of her reasons. There is no challenge to the accuracy of that summary in this appeal. The substance of that summary is as follows:
(a)In 2003 the appellant and his wife opened their own restaurant and they were the only employees.
(b)In 2006 the appellant became extremely ill and, after trying several forms of medication, began practising Falun Gong after taking instruction from one of his customers.
(c)After three months, the appellant’s illness had been cured and he was able to run his business without difficulty.
(d)The appellant then became aware that a customer had stomach cancer and the appellant spent a week teaching the customer how to practise Falun Gong.
(e)On 25 November 2010 the younger brother of the customer informed the appellant that the customer had taught his neighbour how to practise Falun Gong and that the neighbour and the customer had been arrested.
(f)The younger brother of the customer warned the appellant that the appellant might be involved and recommended that he go into hiding.
(g)The appellant and his wife were “frightened to death” of the consequences of being arrested and so a decision was made for the appellant to “go overseas quietly”.
(h)The appellant’s wife’s brother organised his overseas trip through an agent, but the appellant was then required to pay the agent to recover his passport.
(i)The appellant had not raised enough money to come to Australia until 1 March 2011.
(j)On 30 November 2010 the police visited his restaurant and asked his wife to inform them as soon as the appellant returned home.
(k)If the appellant remained in China he would be located and detained by the police, and harshly punished.
As I have noted, on 23 June 2011, the Minister’s delegate refused the appellant’s application for a protection visa. The delegate found that the appellant did not have a genuine fear of harm and there was not a real chance of persecution occurring. He therefore found that the appellant’s fear of persecution, as defined under the Convention, was not well‑founded. He was not satisfied that the appellant was a person to whom Australia has protection obligations for the grant of a protection visa.
The Tribunal’s decision
On 13 July 2011, the appellant applied to the Tribunal for a review of the delegate’s decision. On 28 September 2011, the Tribunal affirmed the delegate’s decision. The presiding Federal Magistrate at [22] of her reasons accepted as accurate the following summary of the Tribunal’s decision:
15. The Tribunal accepted that the applicant was a citizen of China. The Tribunal otherwise did not accept that the applicant was a credible witness and had not been truthful in relation to his experiences in China and his fears about returning to China.
16. The Tribunal’s assessment of the applicant’s evidence was based upon a number of concerns, namely the applicant’s lack of knowledge of all the principles of Falun Gong, the names of the five exercises, or the differences between how men and women perform the exercises … his inconsistent evidence about when he began learning and practising Falun Gong … his difficulties with practising Falun Gong in Australia … his unconvincing evidence about how he began teaching Falun Gong to his customers … his inconsistent evidence about the alleged arrest of his customers and the subsequent visits to his house by the police …
17. The Tribunal considered that the applicant did not hold a genuine fear of persecution because he appeared to state to the Tribunal that he was willing to return to China so long as he could relocate elsewhere …
18. The Tribunal considered that, given that the applicant left China on his own passport and that he did not appear to be on any alert list despite leaving 3 months after the police had allegedly begun visiting his home, he was not a person of interest to the authorities in China …
19. The combination of these issues caused the Tribunal to find that the applicant had been untruthful in his claims and it did not accept that:
a) the applicant was involved in practising or teaching Falun Gong;
b)the applicant was associated with any Falun Gong practitioners who were arrested;
c) the applicant went into hiding;
d)the Chinese authorities have regularly been visiting his home or restaurant;
e) the applicant was a person of interest to the authorities in China;
f) the applicant travelled to Australia to avoid persecution;
g)the applicant would practise Falun Gong if he were to return to China based on its findings that he had [not] practised it in the past or in Australia where he is free to do so …
20. Given this, the Tribunal found that the applicant did not have a well-founded fear of persecution for a Convention reason if he were to return to China now or in the reasonably foreseeable future.
There is no challenge to the accuracy of that summary in this appeal.
The Federal Magistrates Court proceeding
On 2 November 2011 the appellant commenced proceedings in the Federal Magistrates Court for judicial review of the Tribunal’s decision. The grounds of his application were stated as follows:
1.In 2006, I was ill seriously and had to see doctors, but both the western doctor and the Chinese traditional doctor couldn’t cure my illlness. The Falon Gong, practitionwers, Ms Li Hua and her husband advised and taught me to practise Falun Gong. After learning from them for three months, I suffered no dizziness, fitigue or fever.I assisted Mr Chnag Chao who had no money to cure his stomach cancer. In the evening of 25 November 2010, I was told that Mr Chang Chao was located to the local police station.
2.I feared that I would involved and be arrested for what I had done involving of teaching Mr Chang Chao’s practice Falun Gong. I was forced to flee to Australia.
3.The Tribunal member didn’t accept that I had been a Falun Gong Practitioner.
4.The Tribunal member failed to take all my claims and evidence into account, making jurisdictional errors.
In her reasons the presiding Federal Magistrate noted (at [24]-[26]) that despite being made aware at a directions hearing on 30 November 2011 that his application for judicial review contained unparticularised assertions and did not disclose, on its face, any error that was capable of review by the Federal Magistrates Court, the appellant persisted with his application in that form and did not exercise the leave granted to him to file and serve an amended application or to file and serve additional evidence, including a transcript of the hearing before the Tribunal.
The presiding Federal Magistrate found that grounds 1 and 2 of the application contained no more than a restatement of the appellant’s claims. Those grounds contained no complaint about the Tribunal’s decision and did not seek to identify any reviewable error.
Her Honour considered ground 3 of the application to be no more than an assertion that the Tribunal did not accept that the appellant had been a Falun Gong practitioner. Her Honour concluded that the Tribunal’s finding in that regard was open to it on the evidence and the material before it and for the reasons the Tribunal gave.
In that connection, her Honour noted that adverse credibility findings had been made by the Tribunal concerning the appellant’s evidence before it.
Her Honour noted that ground 4 of the application contained a bare assertion that the Tribunal failed to take into account all the appellant’s claims and evidence and thus made jurisdictional errors. This ground was not supported by particulars, evidence or relevant submissions. In her reasons the presiding Federal Magistrate recorded the following:
38.I asked the Applicant what were the claims and evidence that he said the Tribunal failed to take into account. The Applicant said that the Tribunal had not believed what he said. I asked him if he had any other complaint about the Tribunal’s decision beyond his disagreement with its findings and conclusions and he said he did not and had nothing to say. I asked the Applicant if he was intending to assert that the Tribunal had failed to consider any particular claim made by him and he said no.
Her Honour concluded at [47] of her reasons that the appellant had not identified any jurisdictional error on the part of the Tribunal and that his complaints were no more than a disagreement with the findings and conclusions of the Tribunal. Her Honour noted correctly that the Federal Magistrates Court was unable to undertake a merits review of the Tribunal’s decision.
Her Honour concluded at [49]-[51] of her reasons:
49.A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant at a hearing. The Tribunal put to the Applicant matters of concern it had about his evidence and noted the Applicant’s responses. The Tribunal also identified independent country information to which it had regard. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
50.In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
51.The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
Her Honour dismissed the application with costs.
The appeal in this Court
On 18 April 2012, the appellant filed his notice of appeal in this Court. The grounds of appeal are stated as follows:
1.In 2006 I was seriously ill and had to see the doctors, but the doctors couldn’t cure my illness. The Falun ong practitioners advised and taught me to practice Falun Gong for which I suffered neither dizziness nor fever. I assisted Mr Chang Zhao to practice Falun Gong because he had no money to see doctors. In the evening of 25 Dec. 2010, He was located to the police station. I feared to be arrested for what I had done for him, so I had to flee to Australia. The Tribunal member failed to take all my claims and evidence into account making jurisdictional error.
2.The Federal Magistrate Court dismissed my appeal.
These grounds obviously have their source in the grounds stated in the application filed in the Federal Magistrates Court. They repeat the appellant’s general factual contention and the assertion that the Tribunal failed to take into account all his claims and evidence and thus made a jurisdictional error. Although noting that the Federal Magistrates Court had dismissed his application (“my appeal”), the notice of appeal does not identify any error on the part of that court.
The appellant appeared in person today. He was unrepresented but has been assisted by an interpreter. No written submissions have been filed by him. I asked him to identify the errors he claims to have been made by the Federal Magistrates Court in dismissing his application for judicial review. He said that the error was that the Tribunal did not believe his reasons for applying for refugee status. I asked him whether he wished to make any submissions in support of his appeal. He said: “No”.
It is clear from the presiding Federal Magistrate’s reasons that her Honour gave full and careful consideration to the application before her. The appellant has not identified any appealable error in relation to the judgment that was given. It follows that his appeal must be dismissed.
Disposition
The order of the Court is that the appeal be dismissed with costs.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates. Associate:
Dated: 10 August 2012
0
0
1