SZREZ v Minister for Immigration and Citizenship
[2012] FCA 1344
•28 November 2012
FEDERAL COURT OF AUSTRALIA
SZREZ v Minister for Immigration and Citizenship [2012] FCA 1344
Citation: SZREZ v Minister for Immigration and Citizenship [2012] FCA 1344 Appeal from: SZREZ v Minister for Immigration & Anor [2012] FMCA 862 Parties: SZREZ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: NSD 1529 of 2012 Judge: BARKER J Date of judgment: 28 November 2012 Catchwords: MIGRATION – judicial review – Federal Magistrates Court – failure to state error of law – no jurisdictional error Legislation: Migration Act 1958 (Cth) Cases cited: SZREZ v Minister for Immigration & Anor [2012] FMCA 862 Date of hearing: 28 November 2012 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 37 Counsel for the Appellant: The Appellant did not appear Counsel for the First Respondent: Ms M Stone Solicitor for the Respondents: DLA Piper Australia
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD1529/2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZREZ
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
BARKER J
DATE OF ORDER:
28 NOVEMBER 2012
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant to pay the respondents’ costs, 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
NSD1529/2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZREZ
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
BARKER J
DATE:
28 NOVEMBER 2012
PLACE:
SYDNEY
REASONS FOR JUDGMENT
APPEAL FROM THE FEDERAL MAGISTRATES COURT
The appellant, who is self-represented, appeals to this Court against a decision of the Federal Magistrates Court on the ground, as it appears in the notice of appeal:
A writ mandamus the Refugee Review Tribunal and Minister for Immigration and Citizenship again to rehear my application according to law.
Two orders are sought which, again as they appear in the notice of appeal, are as follows:
1.I request Federal Court a writ mandamus to the DIAC and RRT make the decision again on my case for the humanitarian, and fair.
2.I request Federal Court to review my case. I believe Court will take humanitarian consideration of my case and make a fair decision. Because the Minister for immigration and Citizenship and Refugee Review Tribunal are did not considered for reasonable of my application for protection visa.
The stated ground of appeal and the two orders sought would, if reversed, appear more accurately to state the grounds of appeal and the order sought. In other words it would appear the appellant considers that the decision initially made by the Refugee Review Tribunal and before that on behalf of the Minister were not made fairly and according to law, and that the Federal Magistrate failed to detect the relevant error, and so the appeal to the Federal Magistrate should be upheld and the Tribunal’s decision be set aside and the matter reheard by the Tribunal.
To the extent that the stated ground of appeal and orders sought are based on a belief that this Court has a jurisdiction or power to review the merits of the decision made by the Tribunal or the Minister, the appellant is mistaken. This Court can only correct errors of law made by the Court below.
It is critically important that an appellant, on an appeal like this, clearly state the error or errors of law said to have been made of the Court below when stating the grounds of the appeal. Plainly enough, that has not been done or done adequately here.
Indeed, in the outline of submissions filed by the lawyer for the Minister in this appeal it is submitted that the notice of appeal does not point to any error on the part of the Federal Magistrate nor assert any jurisdictional error on the part of the Tribunal and that the appellant has not filed any written submissions or other material to clarify the grounds of the appeal.
The Minister thus contends that the findings of the Federal Magistrate were correct for the reasons given and, to the extent that the appellant continues to take issue with the factual findings made in the Tribunal, this Court cannot entertain them. As to the latter proposition, as noted above, this submission is plainly correct.
When the appeal was called on for hearing on 28 November 2012 the appellant failed to appear. I was advised by counsel for the Minister that telephone calls placed by her prior to the hearing to a mobile telephone of the appellant were not answered. In those circumstances I made an order dismissing the appeal with costs. In doing so, I relied on the appellant’s non‑appearance but also the lack of merit of the appeal, as explained below.
It is useful then to have some regard to the circumstances in which this appeal has come to the Court in order to understand whether, despite these observations, there is some complaint about an error on the part of the Federal Magistrate or some apparent error of a jurisdictional nature on the part of the Tribunal that the Federal Magistrate failed to detect, that may be reasonably inferred from the papers that have been filed in the proceeding by or on behalf of the appellant.
The appellant is in his early 40’s. In May 2011 he applied for a protection (Class XA) visa under the Migration Act 1958 (Cth) (the Act). In his application he provided usual information required of an applicant. To the application he attached a statement. That statement was typed in English.
In his statement, the appellant stated his name, date of birth, when he registered to marry and the fact that he had a son, as well as where he came from in the People’s Republic of China.
He indicated he came to Australia on a 570 Student Visa in 2010, but now does not dare return to China.
The reasons given for not daring to return to China were that in 2004, when with friends he mentioned that “without purpose, the members of Falungong had suffered by Chinese Government”. He says he did not expect that he would be reported by someone to the police for stating this.
He said he was regarded as “organiser and propagandising Falungong against the government in public” and was taken by the police and detained for three days. He says he gave a confession by torture and gave a guarantee to pay CNY5,000 before he was released.
He further said that, when his wife was pregnant for more than six months, she was required to have an abortion due to birth control. He states that at first the government said that if he paid fines of CNY25,000 his wife would not be required to undertake the abortion but, after he did so, his wife was still required to undertake that operation. He then says that he “lost my child and my wife was suffered a lot”.
He stated he then sought justice but was convicted of the “groundless crime of disrupting public service”. He says he was detained for five days and again required to give a confession and sign a guarantee and paid a fine of CNY3,000.
Finally, the appellant stated that because there were no registered churches where he lived, his wife organised some Christians to do service in a private underground church, “but she was taken by the local government on 22 May 2011”. He complained in his statement that his wife could not “get her free religion”. He said “She is still being detained now”.
The appellant said that because of “this situation, I cannot dare to return to China. If I did, I must go to the government to ask for a reasonable justice, then I will definitely be treated unfairly and even persecuted”.
The Minister’s delegate rejected the protection application and advised the appellant that he was not satisfied that the appellant met the relevant criteria for the grant of the protection visa as set out in Australian migration law, especially having regard to the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees.
The decision record for that decision noted that the applicant had also been interviewed, with the assistance of a Mandarin interpreter, and at the interview he had reiterated and expanded on his claims. The Minister’s delegate found that the appellant was a citizen of the People’s Republic of China but found he did not have well founded fear of persecution if he were to return to China. Amongst other things, he noted the appellant’s earlier visits to Singapore from China.
Generally speaking the delegate did not find the appellant to be a reliable witness. He doubted the appellant’s evidence about there being a mistake in his application form concerning travel to Singapore. The delegate was satisfied the appellant was able to travel without difficulty overseas from 2000 to the present. While the appellant maintained his claims, the appellant accepted he was neither a Christian nor a Falun Gong practitioner.
The delegate noted that central to the applicant’s claims was that his wife was a Christian but following interview the delegate was not satisfied that she was or had ever been arrested on account of her alleged Christian faith.
The Minister’s delegate also noted that during interview the appellant raised new claims about facing persecution in China because of the history of his ancestors.
Finally, the delegate noted that the appellant only applied for the visa application after he had been in Australia for about one year, at a time that coincided with the expiry of his student visa.
The appellant then sought review of the delegate’s decision in the Refugee Review Tribunal. At an interview the Tribunal member elicited information or evidence to the following general effect:
·That the appellant’s wife and child were still in China.
·The appellant travelled to Australia on a student visa but had not done any study in Australia since arrival.
·The appellant could not find a job so he worked as a removalist and some other jobs.
·The appellant’s company in China had sponsored him to study English; however, the appellant did not reject a suggestion from the Tribunal that he wanted to get employment in Australia and wanted to stay in Australia.
·The appellant said he did not fully decide that he wanted to stay in Australia until his wife was arrested during 2011.
·The appellant repeated his evidence about being informed on for his Falun Gong comments and said that he believed in truthfulness, compassion and tolerance.
·The appellant said the police knew about his comments the day after the dinner and that five or six of his friends were also arrested and he thinks they were interrogated.
·The appellant said he was detained at the local police station for five days.
·The appellant gave other details that he had not previously provided and when challenged about this told the Tribunal that now he was being questioned about it, it came to mind.
·He repeated his evidence about his wife being forced to have an abortion.
·When the Tribunal referred to country information which suggested that abortions are no longer carried out and that people may be required to pay a fine, the appellant said it happened in 2006 in the rural areas. He rejected a proposition from the Tribunal that rural areas are more liberal than large cities in this regard.
·The appellant confirmed that he paid a fine but he never received a receipt. He gave further evidence about that transaction.
·The appellant could not produce any evidence of his wife having an abortion and there was some considerable further discussion about that, during which the Tribunal challenged the appellant to the effect that he was changing his story.
·As to being detained for five days, the appellant said he was released because his father pulled some strings. This was about the time the demands were being made for his wife to have an abortion or pay a large fine.
·He could not provide specifics about his wife’s religious activities.
·There was discussion about he and his wife being detained.
The Tribunal found that the appellant was not a “person of credibility”. The Tribunal pointed to how his evidence often changed in response to the Tribunal’s questions or concerns and there were significant inconsistencies, which the Tribunal set out in some detail at [60] of its decision record: 1110119 [2012] RRTA 463 (27 January 2012).
The Tribunal noted that the appellant’s claims were unsupported by any documentary evidence.
Finally, the Tribunal found that the appellant had been “untruthful in his claims and the Tribunal rejects the entirety of the claims”.
As a result, the Tribunal did not consider that the appellant had a well founded fear of persecution if he were to return to China.
The appellant then sought judicial review of the Tribunal’s decision in the Federal Magistrates Court of Australia, which application was dismissed: SZREZ v Minister for Immigration & Anor [2012] FMCA 862.
After reciting details of the earlier application and review, the Federal Magistrate noted that the grounds for judicial review were:
1.The RRT did not carefully consider my real situation.
2.The RRT made the decision with baseless conjectures and suspicions of my case.
3.The RRT has been completely ignored my real situation, and did not make analyses of my specific case.
The Federal Magistrate also noted that in a supporting affidavit the appellant complained that the Tribunal’s decision “is racial discrimination and did not deal with of my case for humanitarianism”.
The Federal Magistrate noted that at the hearing of the judicial review application, the appellant submitted he had told the truth to the Tribunal and that he had not been able to obtain documents supportive of his claims.
The Federal Magistrate understood from the judicial review application that the appellant was alleging that the Tribunal’s review was not undertaken in good faith and so was not conducted as required by the Act, but the appellant was complaining about the merits of the decision reached and might also have been complaining about bias on the part of the Tribunal.
The Federal Magistrate, however, upon review of the materials before the Court could see no basis to any of these complaints and considered jurisdictional error on the part of the Tribunal was not revealed.
In my view, having also reviewed the same materials I can see no basis to the complaints or any jurisdictional error by the Tribunal, or any error of law by the Federal Magistrate.
In these circumstances, no error on the part of the Court below in dismissing the judicial review application having been identified and no jurisdictional error on the part of the Tribunal being shown, and the appellant not having appeared on the appeal, the appeal should be dismissed with costs.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker. Associate:
Dated: 28 November 2012
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