SZRAT v Minister for Immigration and Citizenship

[2013] FCA 134

FEDERAL COURT OF AUSTRALIA

SZRAT v Minister for Immigration and Citizenship [2013] FCA 134

Citation:		SZRAT v Minister for Immigration and Citizenship [2013] FCA 134
Appeal from:		SZRAT v Minister for Immigration and Citizenship [2012] FMCA 928
Parties:		SZRAT v MINISTER FOR IMMIGRATION AND CITIZENSHIP
File number:		NSD 1557 of 2012
Judge:		DOWSETT J
Date of judgment:		19 February 2013
Date of hearing:	19 February 2013
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	8
Counsel for the Appellant:	The Appellant appeared in person
Solicitor for the First Respondent:	Ms M Stone of DLA Piper Australia
Counsel for the Second Respondent:	The Second Respondent did not appear

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1557 of 2012

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZRAT Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent

JUDGE:	DOWSETT J
DATE OF ORDER:	19 FEBRUARY 2013
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed; and

2.the appellant pay the 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 1557 of 2012

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZRAT Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent

JUDGE:	DOWSETT J
DATE:	19 FEBRUARY 2013
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of a Federal Magistrate refusing to make orders setting aside or staying the effect of a decision of the Refugee Review Tribunal (the “Tribunal”).  That decision was dated 9 December 2011 and affirmed a decision of a delegate of the first respondent to decline to grant a protection visa to the present appellant.  At para 2 of the Federal Magistrate’s reasons for judgment she said:

   The [appellant] a citizen of the People’s Republic of China last arrived in Australian on 16 March 2011.  He applied for a protection visa in May 2011.  In support of this protection visa application he claimed to be opposed to the Chinese Communist Party and to have expressed such views publicly in China.  He claimed to have organised and participated in meetings of people opposed to the government and to have expressed anti-government views on the internet.  He claimed that in 2010 he was taken to the police station and questioned due to participating in anti-government meetings.  He made claims about what had occurred to others who had been involved in such arrests and protests.

   The applicant was invited to attend an interview for the purpose of considering his application however he sought a postponement of the interview because of the fact that he had obtained acupuncture treatment for a sprained ankle.  The delegate was not prepared to postpone the interview and so a decision was made refusing the application without an interview.  He then applied to the [Tribunal] for a review of that decision.  That application was unsuccessful simply because the [Tribunal] did not accept his account of events.  In those circumstances it was unable to conclude that he was a person to whom Australia owed protection obligations. 

   The departmental decision was therefore affirmed.

2. The appellant applied to the Federal Magistrates Court for orders setting aside or otherwise staying the orders upon the following grounds:

   ·first, that the relevant department had failed to take into account his health and denied him an opportunity to have an interview; 

   ·second, that the Tribunal had failed to consider the evidence provided by him; and

   ·third, that he believed that both the department and the tribunal had failed to give him fair treatment. 

3. The Federal Magistrate concluded with respect to the first ground, that the appellant had been invited to attend a hearing in the Tribunal.  He had also received an invitation to a hearing prior to the departmental decision.  As the Federal Magistrate pointed out at para 18 there can be no question that he was denied an opportunity to appear in the Tribunal where he had every opportunity to put his case.

4. The second ground appears to be based upon his assertion in this Court that other people have been successful in relying upon evidence similar to his.  This submission fails to recognize the fact that the Tribunal simply was not willing to act on his evidence.  Upon that basis the Federal Magistrate rejected the submission.  As to the third ground, the Federal Magistrate held that a general allegation of failure to provide fair treatment was not a proper basis for an allegation of jurisdictional error.  In those circumstances the Federal Magistrate refused the relief sought.

5. By his notice of appeal to this Court the appellant advances the following grounds: 

   ·first, that he believes the procedure is not fair to him; and

   ·second, that he will be harmed if he is returned to China. 

6. As to the first, I again observe that a general allegation of unfairness is no basis for judicial intervention.  As to the second, the Tribunal has found that it cannot act on his evidence.  There is therefore no basis for his assertion of a well-founded fear of persecution for a Convention reason.   

   ORDERS

7. The appeal be dismissed. 

8. The appellant pay the respondent’s costs of the appeal.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:        26 June 2013