SZQXF v Minister for Immigration and Citizenship

[2012] FCA 818

FEDERAL COURT OF AUSTRALIA

SZQXF v Minister for Immigration & Citizenship [2012] FCA 818

Citation:		SZQXF v Minister for Immigration & Citizenship [2012] FCA 818
Appeal from:		SZQXF v Minister for Immigration [2012] FCMA 332
Parties:		SZQXF v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 597 of 2012
Judge:		GILMOUR J
Date of judgment:		31 July 2012
Legislation:		Migration Act 1958 (Cth) ss 1R(3), 424A, 424B, 441A(5)
Cases cited:		Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 SZQXF v Minister for Immigration [2012] FMCA 332 VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158
Date of hearing:	31 July 2012
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	35
Counsel for the Appellant:	The appellant appeared in person
Counsel for the First Respondent:	Ms N Johnson
Solicitor for the First Respondent:	Sparke Helmore Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 597 of 2012

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZQXF
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GILMOUR J
DATE OF ORDER:	31 JULY 2012
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed

2.The appellant pay the costs of the first respondent, to be taxed if not agreed. 

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 597 of 2012

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZQXF
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GILMOUR J
DATE:	31 JULY 2012
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of a Federal Magistrate given on 16 April 2012: SZQXF v Minister for Immigration [2012] FMCA 332. Federal Magistrate Raphael dismissed the appellant’s application which sought judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) dated 7 November 2011. The Tribunal affirmed a decision of a delegate of the first respondent (‘the Minister’) dated 23 August 2011 not to grant the appellant a Protection (Class XA) visa.

   Background

2. The appellant is a citizen of the People’s Republic of China (PRC) who arrived in Australia on 7 March 2008 on a student visa valid until 29 March 2011.  The appellant was detained as an unlawful non-citizen on 21 July 2011, and lodged an application for a protection visa with the Department of Immigration and Citizenship on 4 August 2011.  The appellant appointed a migration agent to assist in connection with that application.  A delegate of the Minister refused the application for a protection visa on 23 August 2011.  On 31 August 2011, the appellant applied to the Tribunal for a review of that decision.

3. The appellant claimed she was a follower of Catholicism. She claimed her father played a leading role in the underground church, and that her mother was a pious follower also.  The appellant claimed that her father had been detained by the authorities which had resulted in him being fired from his job, her mother had been threatened, and the appellant had been forced to leave school as a result of her faith.  The appellant claimed that in 2008 she came to Australia with her mother to study and practice her religion freely.  Before the Tribunal, the appellant claimed also to be pregnant, and to fear persecution on the basis of having a child out of wedlock.  The appellant also claimed to fear persecution on return to the PRC as a failed asylum seeker.

   The delegate’s decision

4. On 12 August 2011, the delegate invited the appellant to attend an interview scheduled for 17 August 2011.  The appellant attended this interview and gave evidence in support of her claims.

5. On 23 August 2011, the delegate made a decision refusing to grant the appellant a protection visa.  The delegate did not accept the appellant’s claims of persecution, finding that they were “generally implausible and inconsistent with relevant country information relating to the situation of Catholics in Fujian province”.  The delegate found also that the appellant did not have a profile that would be of adverse interest to the Chinese authorities, and concluded that she had lodged an application for a protection visa to prevent or delay her removal from Australia.

   The Tribunal’s decision

6. On 31 August 2011, the appellant lodged an application with the Tribunal to review the delegate’s decision.  The appellant again appointed a migration agent to assist in connection with that application.

7. By a letter dated 5 September 2011, sent by facsimile to the appellant’s authorised recipient, the Tribunal validly invited the appellant to attend a hearing before the Tribunal scheduled for 28 September 2011.  The appellant accepted that invitation, and her representative provided a written submission together with the appellant’s statutory declaration to the Tribunal prior to the hearing.  The appellant attended the Tribunal on 28 September 2011, to give evidence and present arguments in support of her application.

8. By letter dated 5 October 2011, sent by facsimile to the appellant’s authorised recipient, the Tribunal invited the appellant to comment on or respond to information pursuant to s 424A of the Migration Act 1958 (Cth) (‘the Act’). The letter invited the appellant to comment on inconsistencies in her evidence, comments she made in her Compliance Client Interview and Department movement records showing that her student visa was granted on 5 February 2008. This letter complied with the relevant statutory requirements as the invitation was validly given and complied with: ss 424A, 424B and 441A(5) of the Act.

9. By a letter dated 20 October 2011, sent by facsimile to the appellant’s authorised recipient, the Tribunal validly invited the appellant to attend a hearing before the Tribunal scheduled for 31 October 2011.

10. The appellant, through her representative, provided a response to the s 424A invitation on 21 October 2011 and attended the further hearing before the Tribunal on 31 October 2011.

11. In a decision dated 7 November 2011, the Tribunal affirmed the delegate’s decision to refuse the appellant’s application for a Protection (Class XA) visa.  On the basis of comprehensive adverse credibility findings, the Tribunal rejected the appellant’s claims to have practised Catholicism in the PRC; did not accept that her father was a leader in an underground Catholic Church in the PRC, and lost his job as a result of his religion; that any members of the appellant’s family had been detained, harassed or persecuted as a result of their religious beliefs; that the appellant was forced to leave school in the PRC as a result of her family’s religious beliefs; and that the appellant or her father were persons of interest to the PRC authorities.

12. The Tribunal found that the appellant provided “unconvincing and inconsistent evidence on a number of occasions” including inconsistencies in evidence provided to the Department and the Tribunal about her father’s claimed detention in the PRC; why she claimed she had to stop her studies in the PRC; her father’s employment; and her contact with her mother.

13. The Tribunal found the fact that the appellant had been dishonest in her previous dealings with the Department by providing false identification documentation to Departmental compliance officers and claiming that she had no other family in Australia despite her mother being in Australia unlawfully, reflected adversely on the appellant’s overall credibility.  

14. The Tribunal found that although the appellant had some knowledge of Christianity, she appeared to lack the knowledge expected of a person raised as a Catholic with devoted parents.  The Tribunal found that the appellant appeared to have little interest in Catholicism, as she rarely attended church in Australia, she had not sought to obtain a copy of the Bible and she did not attend Catholic services in detention.

15. The Tribunal noted that at the appellant’s Compliance Client Interview she had stated that she was willing to return to the PRC, that there was no reason why she could not return and that she was intending to return there at the beginning of 2012 after working in Australia.  The Tribunal considered that if the appellant held genuine fears about returning to the PRC on the basis of her Catholic faith and the persecution of her family she would not have stated that she was willing to return to the PRC and that there was no reason why she could not do so.  The Tribunal considered that the timing of the protection visa application after the appellant’s detention, when viewed with the statements she made at the time of her detention, indicated that the appellant had fabricated her claims in order to remain in Australia. 

16. The Tribunal was willing to accept that the appellant had attended some kind of Christian or Catholic church services in Australia but disregarded this conduct pursuant to s 91R (3) of the Act as it was not satisfied that she had engaged in this conduct otherwise than for the purpose of strengthening her claim to be a refugee.

17. Despite the appellant providing no documentary evidence of her pregnancy, the Tribunal was prepared to accept that she was pregnant at the time of the second Tribunal hearing and that there was a real chance in the reasonably foreseeable future that the baby would be born.  The Tribunal accepted that the appellant would be required to pay a social compensation fee in relation to the birth of her child if she returned to the PRC because the child would be born to unmarried parents below the legal age of marriage.  However, the Tribunal found that the imposition of such a fee was a legitimate national policy of the government which would not be discriminately applied to the appellant for a Convention reason. 

18. The Tribunal did not accept that the appellant would be subject to a forced abortion on return to the PRC. The Tribunal also found that the imposition of a social compensation fee to be paid after the birth of the child did not amount to persecution within the terms of s 91R(1) of the Act, and that possible future societal disapproval for having a child underage and out of wedlock did not amount to serious harm.

19. Further, the Tribunal found that as the appellant was not a high profile critic of the PRC authorities she would not be of adverse interest to them on return as a failed asylum seeker.

20. Accordingly, the Tribunal was not satisfied that the appellant had a well-founded fear of persecution if she returned to the PRC for any Convention-related reason.

    Proceedings before the Federal Magistrate

21. On 1 December 2011, the appellant filed an application in the Federal Magistrates Court seeking judicial review of the Tribunal’s decision.  It contained three purported grounds of review in the following terms:

    1.Jurisdictional Erro

    2.Denial of natural justice. I am not agree the decision which from the RRT

    3.Failing to take into account very relevant facts of the matter.

    (Transcribed without amendment)

22. In rejecting the first ground of review, the learned Federal Magistrate found that it was not for the Court to speculate upon what was meant by the ground in the absence of any particulars.

23. The Federal Magistrate also noted that no particulars were provided in relation to the second ground of review so as to identify the alleged breach of natural justice. The Federal Magistrate noted that the appellant had been afforded two hearings and an opportunity to comment on matters pursuant to a s 424A letter. The Federal Magistrate found that the Tribunal had complied with s 422B of the Act and the subsequent sections which amounted to a code in respect of the natural justice hearing rule. Accordingly, the ground was rejected.

24. In relation to the third ground, the Court again noted the absence of particulars and noted that the appellant had failed to give any more information about what the ground meant in her oral submissions to the Court.

25. Accordingly, the learned Federal Magistrate concluded that there did not appear to be any ground upon which it could be found that the Tribunal made an error of law and dismissed the application with costs.

    Application to this court

26. On 26 April 2012, the appellant filed a notice of appeal which contained one ground for review:

    1.The court made a wrong Judgement (sic) on my credibility.

27. As the Minister submits, and I accept, this ground misconceives the role of the Federal Magistrates Court in judicial review proceedings.  The learned Federal Magistrate did not make any such judgment on the appellant’s credibility but noted that the Tribunal had made adverse credibility findings with regard to the appellant’s evidence.  It was not the role of Raphael FM, nor is it the role of this Court on appeal, to make a finding on the merits of the appellant’s claims to be a refugee.  It is well established that the Court cannot review the merits of the Tribunal’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. There being no error established in the reasons for judgment of Raphael FM, this ground of appeal is not made out.

28. The notice of appeal also contains an attachment which set out a further six purported grounds of review in the following terms:

    1.Error of law in the decision it self and in the manner in which the REFUGEE REVIEW TRIBUNAL and the FEDERAL MAGISTRATES COURT OF AUSTRALIA conducted the hearing and matter as the applicant has no full knowlodge of the legal proceeding before the court as the translation lose the meaning of her statements,

    2.Failing to take into account very relevant facts of the matter at the REFUGEE REVIEW TRIBUNAL and the FEDERAL MAGISTRATES COURT OF AUSTRALIA.

    3.Taking into account irrlevent facts of the matter.

    4.Failing to take into account Australia obligation under the International Convenant on Civial right and Political rights ICCPR under Article 2, 6 and or 7 of the ICCPR if I the applicant returned to China,

    5.Failing to take into account the Commonwealth obligation under the Internationl Convenant and the convention aginst Torture and other Cruel, un-hunman or Degrading Treatment or Punishment CAT I the applicant returned to China

    6.Failing to take into account relevant facts of the matter and the mental health condition of the applicant at time of application, at the time of tribunal review and the time of appearing beofe the court.

    (Transcribed without amendment).

29. The first ground alleges a problem with interpretation at both the Tribunal and Federal Magistrates Court hearings.  No such ground was argued before Raphael FM.  Further, a reading of the Tribunal’s decision indicates that the hearing occurred uneventfully and that the appellant was not prevented from providing meaningful responses to the questions asked.  Accordingly, this ground must fail.

30. The second and third grounds are not particularised and do not identify what “relevant facts” the Federal Magistrate allegedly failed to consider and what “irrelevant facts” were considered.  These grounds cannot succeed. 

31. The appellant’s fourth and fifth grounds essentially constitute an impermissible invitation to the Court to review the factual findings and merits of the Tribunal’s decision.  The Court cannot engage in merits review:  Wu Shan Liang at 272.

32. The final ground alleges that the Tribunal and the Court failed to consider the appellant’s mental condition.  There was no claim and no evidence before the Tribunal or the Court to the effect that the appellant suffered from a mental condition.  In those circumstances this ground must fail. 

33. The appellant also filed an affidavit in support of the notice of appeal which sets out a further five purported grounds of appeal in the following terms:

    1.The Court made a wrong judgment on my credibility,

    2.Breach of natural justice and Denial of procedural fairness,

    3.Failure to take into account relevant considerations

    4.Failure to take into account proper evidence

    5.Failure to make proper fact findings and relied on incorrect evidence from the files of the department of Immigration and citizenship.

    (Transcribed without amendment)

34. The first ground is addressed at [27] above. The remaining four grounds are again without any particulars. They fail to identify any error on the part of the Federal Magistrate. Leave of the Court is required to the extent that any of these grounds were not in their terms raised in the proceedings below. The Minister opposes leave being granted on the basis that it is not “expedient in the interest of justice” to allow these grounds to be argued and determined for the first time on appeal as they have no reasonable prospects of success: VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158 at [46]-[48]. I accept this submission, and to the extent that leave is required to raise any of these grounds of appeal I would not grant leave.

35. No error has been demonstrated in the Federal Magistrate’s judgment and no jurisdictional error on the part of the Tribunal has been identified.  Accordingly, the appeal will be dismissed with costs.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.

Associate:

Dated:       2 August 2012