SZQWC v Minister for Immigration and Citizenship

[2012] FCA 852

FEDERAL COURT OF AUSTRALIA

SZQWC v Minister for Immigration and Citizenship [2012] FCA 852

Citation:		SZQWC v Minister for Immigration and Citizenship [2012] FCA 852
Appeal from:		SZQWC v Minister for Immigration and Citizenship [2012] FMCA 288
Parties:		SZQWC v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 606 of 2012
Judge:		KENNY J
Date of judgment:		13 August 2012
Catchwords:		MIGRATION – refusal of a protection visa – appeal from the Federal Magistrates Court – appeal dismissed
Legislation:		Migration Act 1958 (Cth)
Date of hearing:	13 August 2012
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	20
The appellant appeared in person with the assistance of an interpreter
Solicitor for the First Respondent:	Ms A Wain of Minter Ellison
The second respondent submitted to any order the Court might make, save as to costs

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 606 of 2012

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZQWC
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	KENNY J
DATE OF ORDER:	13 AUGUST 2012
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs of 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 606 of 2012

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZQWC
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

KENNY J

DATE:

13 AUGUST 2012

PLACE:

SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of the Federal Magistrates Court dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“Tribunal”).

2. The grounds of appeal were stated as:

   1.Decision made by the Federal Magistrates Court on 10 April 2012 is not fair to me.

   2.I am scared to go back to China because I was discriminated and harmed in China.  I am a Christian.  Chinese government treats Christians very badly.  I will be persecuted if I go back.

   The appellant filed an affidavit in support of his appeal.  The appellant did not file written submissions.

3. At the hearing of the appeal, the appellant was unrepresented, although he had the assistance of an interpreter.   The first respondent appeared and was represented by its solicitor, who relied on written submissions dated 1 August 2012.  The second respondent filed a submitting appearance, save as to costs.

4. For the reasons explained at the hearing of the appeal and stated again here, I would dismiss the appeal. 

   BACKGROUND

5. The appellant is a citizen of the People’s Republic of China.  He arrived in Australia on 15 October 2010 and applied for a protection visa on 10 December 2010.  A delegate of the first respondent made a decision to refuse his application for the visa on 16 May 2011. On 17 October 2011, the Tribunal affirmed the delegate’s decision.

   THE TRIBUNAL DECISION

6. The appellant’s claims were in substance that: (a) he and his wife had their first child in July 2009; (b) when his wife was found to be pregnant with their second child, he was advised that his wife must have an abortion; (c) he had been detained for two days by Chinese authorities after he had failed to inform them where his pregnant wife was staying; (d) the Chinese officials had discovered the whereabouts of his wife after he arrived in Australia, but his wife’s aunt had used her connections to prevent the officials from taking his wife; (e) his second child was born in June 2011, but the Chinese officials would not register the child; (f) he had been attending an Anglican Church in Campsie since he arrived in Australia and intended to continue to attend a church if he returned to China; (g) his wife had been informed that he would not be allowed to work should he return to China, as a result of breaching family planning laws; and (h) he had been detained by the Chinese authorities for a second time, again over a two-day period.

7. The Tribunal found that the appellant was not “a witness of truth” on the basis of the appellant’s lack of credibility.  The Tribunal concluded that there was “no credible evidence that if the [appellant] returns to China there is a real chance he will suffer persecution based on any Convention ground”. 

8. The Tribunal explained that the appellant “gave the appearance of a witness endeavouring to recollect a fabricated account of events rather than someone relating an account of events that had actually taken place” and that his evidence “differed in fundamental and significant respects from that given in his statement”. In particular, the Tribunal noted that the appellant gave two conflicting accounts as to the time when he claimed that the Chinese authorities had located his wife at her hiding place and, when asked about this discrepancy, the appellant introduced “a new account that, in fact, she stayed with two different aunts”. The Tribunal also noted that the appellant gave two conflicting accounts as to whether he had received anything in writing from the Chinese authorities ordering his pregnant wife to have an abortion and, when asked about this discrepancy, again introduced new material. Having regard to its adverse finding about the appellant’s credibility, the Tribunal gave no weight to the letter that the appellant produced from his wife and disregarded the appellant’s church attendance in Australia pursuant to s 91R(3) of the Migration Act 1958 (Cth) (“the Act”).

9. The Tribunal thus concluded that it could not be satisfied that the appellant was a person to whom “Australia has protection obligations under the Refugees Convention” and that the appellant did not satisfy the criterion for a protection visa set out in s 36(2)(a) of the Act.

   THE FEDERAL MAGISTRATES COURT

10. In his review application, the appellant relied on the following three grounds:

    1.Refugee Review Tribunal denied procedural fairness to me.

    2.The RRT member ignored my evidence.  He misdirected me to answer questions.

    3.I have not received the CD as requested.

11. The learned Federal Magistrate dismissed the application on 10 April 2012. In dismissing the application, his Honour found that he was satisfied that the Tribunal complied with its obligations under s 425 of the Act to invite the appellant to a hearing and to provide a real hearing opportunity. His Honour found that there was no doubt that the appellant understood the essential and significant credibility issue upon which the review would turn. Further, the Federal Magistrate found that the Tribunal’s obligations under s 424A of the Act were not engaged because the decision was based on adverse credibility findings made by it based upon the appellant’s own evidence.

12. In relation to the second ground, the Federal Magistrate found that the Tribunal’s reasons for its decision showed that it complied with its statutory obligation to consider the appellant’s individual claims against the criteria for a protection visa and the appellant’s evidence advanced in support of his claims.  Having considered the claims and evidence, his Honour held that it was open to the Tribunal to find that the appellant lacked credibility and to conclude that his claims could not be believed.  His Honour noted that the Tribunal put its concerns about credibility to the appellant at the hearing.

13. With respect to the allegation that the Tribunal misdirected the appellant in relation to questions it asked, the Federal Magistrate noted that the Tribunal’s proceedings were inquisitorial in nature and that the Tribunal was not required to accept the appellant’s claims uncritically.  Further, as the Federal Magistrate noted, it was open to the Tribunal to ask the questions it considered relevant to test the appellant’s claims.  The appellant had been assisted at the hearing by an interpreter and there was no basis to find that the Tribunal had misdirected or otherwise misled the appellant at any stage in the hearing.

14. The Federal Magistrate held that the third matter relied on by the appellant did not disclose any recognised ground of judicial review; that any failure on the Tribunal’s part to provide an audio recording would not amount to jurisdictional error; and, in any event, there was no evidence to support the appellant’s assertion in this regard. Further, even after it was clear that the appellant had in fact received a copy of the recording, the appellant had been unable to identify any issues in relation to the Tribunal’s hearing that might indicate jurisdictional error.

15. Hence, the Federal Magistrate held that the Tribunal’s decision was unaffected by jurisdictional error and dismissed the appellant’s application with costs.

    GROUNDS OF APPEAL

16. The first ground advanced by the appellant on this appeal fails to identify any specific basis for imputing appellable error to the Federal Magistrate.  There is nothing shown in the history of the matter, in the Federal Magistrate’s conduct of the appellant’s hearing, in his Honour’s reasons or elsewhere that would indicate that the hearing was not fair and that there was relevant appellable error.

17. The second ground must also fail.  It fails to identify any jurisdictional error on the Tribunal’s part that the Federal Magistrate ought to have discerned. As I have sought to explain at the hearing today, it is neither the role of the Federal Magistrates Court nor this Court to enter into a review of the merits of the Tribunal’s decision. 

18. Today, when asked to expand upon his reasons for contesting the Federal Magistrate’s judgment, the appellant said that he could not go back to China; that his son has not been registered so he cannot go to school; and that, if he were to go back, there was nothing for him to do.  Further, he had become a Christian and this would concern the Chinese Government.  All these matters were considered by the Tribunal and, for the reasons I have explained, the Tribunal was not satisfied that the appellant was a person to whom Australia owed protection obligations.  Reconsideration of these matters would involve a review of the merits of the Tribunal’s decision, which, as I have said, the Court cannot undertake.  None of the matters to which the appellant referred today might amount to jurisdictional error on the Tribunal’s part or appellable error by the Federal Magistrates Court.

19. The Federal Magistrate clearly had regard to the appellant’s complaints about the Tribunal, but was not satisfied that there was any jurisdictional error shown.  There is no appellable error shown in the Federal Magistrate’s judgment.  The Tribunal’s findings and conclusion were plainly enough open to it on the material before it.  It was open to the Tribunal to focus on the appellant’s credibility regarding past events since this was fundamental to his claim that his fear of persecution was well-founded.  In substance, it was open to the Tribunal to evaluate inconsistencies in the appellant’s account and regard them as relevant to its assessment of the appellant’s credibility in the manner that it did.

    DISPOSITION

20. For the reasons stated, the appeal must be dismissed.

I certify that the preceding 20 (twenty) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.

Associate:

Dated:       15 August 2012