SZQVX v Minister for Immigration and Citizenship

[2012] FCA 913

FEDERAL COURT OF AUSTRALIA

SZQVX v Minister for Immigration and Citizenship [2012] FCA 913

Citation:		SZQVX v Minister for Immigration and Citizenship [2012] FCA 913
Appeal from:		SZQVX v Minister for Immigration and Citizenship [2012] FMCA 408
Parties:		SZQVX v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 771 of 2012
Judge:		JACOBSON J
Date of judgment:		20 August 2012
Legislation:		Migration Act 1958 (Cth), ss 424A, 425, 430
Cases cited:		Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609
Date of hearing:	20 August 2012
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	26
Counsel for the Appellant:	The appellant appeared in person.
Counsel for the First Respondent:	Ms V Bulut of Clayton Utz
Counsel for the Second Respondent:	No appearance

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 771 of 2012

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZQVX
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JACOBSON J
DATE OF ORDER:	20 AUGUST 2012
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs in the sum of $2,100 pursuant to r 40.02 of the Federal Court Rules 2011.

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 771 of 2012

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZQVX
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JACOBSON J
DATE:	20 AUGUST 2012
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from orders made by a Federal Magistrate (Nicholls FM) on 14 May 2012.  His Honour dismissed an application for judicial review of a decision of the Refugee Review Tribunal, dated 20 October 2011.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the appellant a protection visa. 

2. The appellant is a citizen of China.  He claimed to have a well-founded fear of persecution apparently on political or religious grounds.  The claims made by the appellant were initially attached to his protection visa application and set out in [3] of the decision of the Federal Magistrate.

3. It is unnecessary to repeat the claims save to say briefly that the appellant said he owned a brick manufacturing business in China which he had to close in June 2010 because of a change in the government’s environmental laws.  He said he was not given adequate compensation by the government and that he protested this and, as a result, was harassed by local government authorities.  He also said that after his business closed he became a Christian and that in October 2010 his house was raided while he was hosting a church meeting and he was arrested and beaten. 

4. In addition, he made a number of other claims including one which was of particular importance.  This was that, in March 2011 after he came to Australia, his family called him from China to tell him that his business was shut down and that his wife had been told by local government authorities that he “believed in evil religion” and would be arrested upon return to China.  The Tribunal invited the appellant to attend a hearing on 15 September 2011.  The Tribunal’s reasons at [36] to [40], which appear on pages 86 to 87 of the appeal book, contain an account of what was said at the hearing. 

5. Importantly, at [36] the Tribunal says that it asked the appellant why he did not want to return to China and that he stated that a legal representative in China had informed him that he was charged and convicted of disturbing the public order.  The appellant stated that this had occurred in May 2011 and the Tribunal asked why he did not provide that claim to the delegate who had interviewed him over a month later on 23 June 2011.  The appellant then stated that he told the delegate about that claim, but the Tribunal commented that it had listened to a recording of the interview with the delegate and the appellant had not presented the claim during the interview.

6. The Tribunal said that it reminded the appellant of what he told the delegate, namely, that his family had informed him in March or April 2011 that it was not safe for him to return to China because he had been accused of involvement “with an evil cult.”  The Tribunal then recorded, at [37], that the appellant stated that as far as he could recall he provided the same complaints throughout the processing of his application. 

7. The Tribunal wrote to the appellant on 19 September 2011 after the conclusion of the oral hearing. The letter was sent pursuant to the terms of s 424A of the Migration Act 1958 (Cth). The letter invited the appellant to comment on or respond to certain information which the Tribunal considered may be a reason for affirming the decision of the delegate. The particulars of the information were that the appellant did not provide a consistent account of his claims during the processing of his visa application.

8. The letter went on to state that the appellant told the Tribunal at the hearing that he had been informed in May 2011 that he had been charged and convicted with an offence of disturbing the public order in China, but that in his interview with the delegate he said his family had informed him in March or April of 2011 that it was not safe to return to China because he had been accused of involvement with “an evil cult.”  The letter also states that at the hearing in the Tribunal the appellant did not raise claims relating to religion and that he stated that religion was no longer a concern to him. 

9. The appellant replied to the letter from the Tribunal by letter dated 21 September 2011.  The appellant’s explanation to the Tribunal was that he may have been confused “when facing the question or the interpretation” that he did not mean religion.  He also said that he was nervous and could not recall things.  The letter appears at page 78 of the appeal book.  The essence of the Tribunal’s reasons commences at [48] in which the Tribunal states that it indicated to the appellant at the hearing and in the letter to which I have referred that the appellant did not present a consistent account of his claims and that the Tribunal had doubts as to whether he was presenting a credible account of his circumstances in China. 

10. At [51] of its reasons, the Tribunal stated that it was not satisfied that the inconsistencies in the appellant’s evidence came about because of communication difficulties, memory loss or nervousness.  The Tribunal found at [52] that the appellant did not present his claim consistently because the claim was “contrived” and introduced at the Tribunal hearing to enhance his application.  The Tribunal also found at [53] that the appellant’s earlier claim relating to religion was contrived, again to enhance the application.  The Tribunal did not accept as credible the appellant’s claims that he attracted the adverse interest of the PRC authorities because he was involved in religious activities and it was not satisfied that the appellant was at risk of harm from the authorities in China on account of his religion. 

11. The Tribunal accepted at [54] that the appellant had been in conflict with the local government authorities regarding the closure of his business and his claim for compensation.  However, the Tribunal was not satisfied that the appellant was targeted by the government or that its policies were intending to harm him.  The Tribunal found that the government’s decision was based on environmental policies which were a legitimate exercise of the government’s functions. 

12. The Tribunal at [55] stated that it did not accept the appellant’s claims that his brickworks were forced to close by a change in government policy and that he was harassed by local government officials when he protested against the policy and made demands for more compensation.  Significantly, the Tribunal found that the appellant’s difficulties with the local government authorities had effectively ended before he departed for Australia in February 2011.  The Tribunal went on to say that the circumstances which led to his conflict with the authorities no longer existed by the time the appellant left China.  The Tribunal was satisfied that the appellant was not a person of adverse interest to the local authorities when he departed China on his trip to Australia in February 2011. 

13. There were two grounds of review in the application in the Federal Magistrates Court. The first ground was that the Tribunal failed to comply with the duties imposed on it by s 430(1)(d) of the Act. The appellant explained this further in his grounds of review by stating that there had been confusion between the Tribunal and the appellant about the reason he feared persecution.

14. The second ground of review was that the Tribunal’s finding that the appellant did not provide a credible account of his circumstances in China was unfair.  He also said the Tribunal took an overly stringent approach to the question of credibility.  The Federal Magistrate observed at paragraph 14 that the stated grounds of review appeared to be “deficient” because they did not give rise to any arguable claim of jurisdictional error.  The Federal Magistrate observed that despite an opportunity given to the appellant to amend the application, the appellant did not do so and did not file anything that properly asserted jurisdictional error on the part of the Tribunal. 

15. Nevertheless, the learned Federal Magistrate went on to deal with the two grounds of review asserted by the appellant. As to the first ground, namely failure to comply with the obligations in s 430(1)(d) of the Act, the Federal Magistrate stated at [17] that a plain reading of the Tribunal’s decision revealed that it did refer to the evidence and materials on which the findings of fact were based. The learned Federal Magistrate also observed at [18] that in any event, this ground did not of itself constitute jurisdictional error: see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [68] to [69].

16. The learned Federal Magistrate went on to deal with the other aspects of the first stated ground of review.  He observed that the Tribunal’s findings were reasonably open to it.  He pointed out at [24] that the probative basis of the Tribunal’s finding was the appellant’s own evidence.  He directed some criticism at the Tribunal’s migration agent at [24] by pointing out that the agent did not appear to accept that inconsistencies in the appellant’s account of his claims were the critical fact which had led the Tribunal to reject his application.  His Honour also found that there was nothing illogical in the Tribunal’s decision within the explanation of the ground of illogicality stated by the High Court in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.

17. The Federal Magistrate went on to say at [26] and following that the second ground of review overlapped with the first ground.  The substance of the Federal Magistrate’s reasons appear at [32] to [33] which provided: 

    32.      Apart from asserting a mere challenge to the Tribunal’s findings, the applicant has provided no evidence to the Court, for example a transcript of the hearing before the Tribunal or, in terms of the inconsistencies, a transcript of the interview with the delegate, to challenge the Tribunal’s account of what occurred at these events. Noting that, in relation to the delegate’s interview, the Tribunal was reporting on a recording of that interview which was before it.

    33.      In this context, on the material before the Court, the Tribunal did consider the applicant’s explanation for the inconsistencies in his accounts. There is no jurisdictional error simply because the Tribunal did not accept these explanations. I cannot see that the applicant’s complaint of an overly stringent approach can be sustained in the circumstances presented.

18. The Federal Magistrate also addressed the appellant’s submissions before the Federal Magistrates Court;  he rejected those submissions at [36] to [42].  He pointed out in particular at [39] that there was no possibility of any failure of procedural fairness in the hearing before the Tribunal.  This was because the appellant knew the case against him and was given the opportunity to respond to it.

19. The notice of appeal states two grounds of appeal.  The substance of the first ground is that the applicant had given a consistent account of his claims to the delegate and to the Tribunal.  He says that the Tribunal failed to give him an opportunity to present a transcript of the interview with the delegate in order to “rebut RRT’s comments and allegation”.  He asserts that this was a failure to accord him procedural fairness.  The second ground of appeal is “illogicality”. 

20. The appellant appeared in person this afternoon.  He was assisted by a Mandarin interpreter.  The interpreter was not physically present in court but was on the end of a telephone link.  There did seem to be some minor difficulties in the translation because of the fact that the interpreter was not physically present.  However, I am satisfied that the appellant understood the argument and submissions put against him by the Minister’s solicitor and that he had a full opportunity to address the submissions as well as to present his own argument on the appeal.

21. Not surprisingly, as a person without any legal training, the appellant seemed to have some real difficulty in understanding the jurisdictional limits which affect the powers of the Federal Magistrates Court in an application for judicial review and the powers of the court on an appeal.  Nevertheless, it seems to me to be plain that the appeal must fail.  In substance, this is because the grounds raised by the appellant in his notice of appeal seek to re-agitate the complaints which he made in his hearing in the Federal Magistrates Court and, indeed, in the Tribunal itself.

22. The essence of what the appellant put to me this afternoon was that the decisions of the Tribunal and the Federal Magistrate were unfair, but for the reasons that were given by the Federal Magistrate the matter is, in my opinion, not affected by any unfairness which could possibly be said to give rise to a jurisdictional error. 

23. The first ground of appeal appears to make a claim of denial of procedural fairness arising from the Tribunal’s failure to give him a transcript of his interview with the delegate.  In my opinion, it is clear from the Tribunal’s reasons and from the terms of the letter of 19 September 2011 to which I’ve referred that the appellant was given full particulars of the critical matters upon which the Tribunal based its decision.

24. The Tribunal complied with its obligations under s 425(1) of the Act and it also gave the appellant full particulars of its concerns about the inconsistencies in his evidence as given to the delegate and the different terms of the evidence which he gave to the Tribunal. It may be that the Tribunal was not bound to provide the appellant with these particulars which, on one view, did not amount to information within the terms of s 424A: see SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18].

25. I do not consider that the requirements of procedural fairness which are contained within the relevant part of the Act required the Tribunal to do anything further.  In particular, I do not consider that the Tribunal was bound to provide the appellant with a transcript of his interview with the delegate.  This is especially so in circumstances where the appellant’s remarks are fully recorded in [36] and [37] of the Tribunal’s reasons to which I have already referred.  As the High Court said in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [40] it is for an applicant for a protection visa to establish the claims that are made.

26. The second ground of appeal raises what is said to be illogicality.  For the reasons given by the learned Federal Magistrate this ground has not been made out.  There is nothing in the decision of the High Court in Minister for Immigration and Citizenship v SZMDS which would suggest that the ground of illogicality is enlivened in the present case.  Accordingly, in my opinion, the appeal must be dismissed with costs.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Associate:

Dated:        20 August 2012