SZRHQ v Minister for Immigration and Citizenship
[2012] FCA 1309
•20 November 2012
FEDERAL COURT OF AUSTRALIA
SZRHQ v Minister for Immigration and Citizenship [2012] FCA 1309
Citation: SZRHQ v Minister for Immigration and Citizenship [2012] FCA 1309 Appeal from: SZRHQ v Minister for Immigration & Anor [2012] FMCA 745 Parties: SZRHQ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: NSD 1355 of 2012 Judge: NICHOLAS J Date of judgment: 20 November 2012 Date of hearing: 20 November 2012 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 17 Counsel for the Appellant: The appellant appeared in person with the assistance of an interpreter Solicitor for the First Respondent: DLA Piper Australia Solicitor for the Second Respondent: The Second Respondent submitted save as to costs
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1355 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZRHQ
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
NICHOLAS J
DATE OF ORDER:
20 NOVEMBER 2012
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant pay the first respondent’s costs.
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 1355 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZRHQ
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
NICHOLAS J
DATE:
20 NOVEMBER 2012
PLACE:
SYDNEY
REASONS FOR JUDGMENT
(Revised from transcript)
This is an appeal from a judgment of a Federal Magistrate given on 20 August 2012, dismissing an application for judicial review filed by the appellant on 28 March 2012.
The appellant is a Chinese citizen who arrived in Australia in July or August 2007 on a student visa. The student visa was extended on 4 September 2007. It remained in force until 15 March 2010. He ceased studying in April 2009. On 27 July 2011 the appellant applied for a protection visa. A delegate of the first respondent made a decision to refuse the application for the protection visa on 28 September 2011.
On 25 October 2011, the appellant applied to the Refugee Review Tribunal (Tribunal) for a review of the delegate’s decision. On 29 February 2012, the Tribunal affirmed the decision of the delegate not to grant the appellant a protection visa.
The appellant now appeals to this Court against the dismissal of his application for judicial review.
BACKGROUND
The appellant claimed to be a Christian. He claimed that he had originally come to Australia for the purpose of study, but that he now feared returning to China because of his religious beliefs. The appellant claimed that while he was in Australia his parents were arrested and detained in China because they were Christians who attended “underground house gatherings”. The appellant claimed that he too would be persecuted if he was required to return to China.
The Tribunal did not accept the appellant’s parents had been arrested and detained as claimed by the appellant. In explaining why it did not accept the appellant’s evidence, the Tribunal referred to the three or four year delay between the time when the appellant claimed his father was detained (2007/2008) and the time when the appellant applied for a protection visa (2011). It reasoned that if his evidence concerning the arrest and ill-treatment of his parents was correct, the appellant would have investigated the possibility of remaining in Australia before February or March 2011, which is when he claimed to have found out about the possibility of obtaining a protection visa. As I already mentioned, the appellant applied for a protection visa in July 2011.
The Tribunal was also of the view that the appellant was not a Christian. It said that the appellant was vague when asked why he became a Christian. It said that he was unable to explain why he became a Christian, other than reciting his claim that his father had been sick and was cured by God. The Tribunal also commented on what it considered to be the appellant’s limited knowledge of Christianity.
The Tribunal found that there was no real chance that the appellant would be persecuted for his religion or any other Convention reason if he returned to China now or in the reasonably foreseeable future.
PROCEEDING IN THE FEDERAL MAGISTRATES COURT
In his application to the Federal Magistrates Court, the appellant relied upon the following grounds:
1.I suffered unfair judgement in my case with Refugee Review Tribunal (the Tribunal). The Tribunal unreasonably stated that I attended church in sole purpose of strengthening my claims to be a refugee (paragraph 58 of Decision Record). This did not reflect the truth, and it was not logical either. I had attended church in Padstow since 2007, more than three years before the submission of my Protection visa application. At that time, I did not hear about the Protection visa.
2.There is another unfair judgement made by the Tribunal. The Tribunal questioned me about the persecution happened to my parents in China (paragraph 59 of Decision Record). It is common that the parents would not give child the details of their horrible experience as they did not want to have their child anxious. The Tribunal ignored this common sense. Thus, the Tribunal did not fairly examine my case.
(errors in original)
The Federal Magistrate found that the grounds relied upon by the appellant invited impermissible merits review and did not raise any arguable jurisdictional error. His Honour found that the Tribunal’s reasoning was not illogical or unreasonable and that it did not lack any evidentiary foundation. His Honour was not satisfied that the Tribunal’s decision was affected by any jurisdictional error.
THE NOTICE OF APPEAL
The Notice of Appeal filed on 10 September 2012 advanced the following grounds:
1.RRT and Federal Magistrate Court are questioning towards my beliefs in Christianity and my parents’ persecution is unfair.
2.I joined my church in 2007 and in 2010 I applied for protection visa. I am a true Christian. This evidence was negligently ignored by RRT and the Federal Magistrate Court.
(errors in original)
The appellant was not legally represented at the appeal before me but was assisted by an interpreter. He did not file any written submissions but there was an affidavit sworn by the appellant that was filed with his notice of appeal. The affidavit asserts that the Federal Magistrate “did not consider all information provided fairly”, that the Tribunal was biased against the appellant, and that the Tribunal did not make a “fair decision”.
In oral submissions made to me today, the appellant contended that it was unfair of the Tribunal to reject the written statement submitted by him to the Tribunal for the purposes of the review. He did not elaborate upon that contention in any respect.
CONSIDERATION
The appellant has not identified any error in the judgment of the Federal Magistrate nor can I discern any such error. I agree with the Federal Magistrate that the appellant’s application for judicial review did not raise any arguable jurisdictional error. In particular, I agree that there was nothing illogical or unreasonable about the Tribunal’s decision. It is apparent that the Tribunal did not consider the appellant to be a reliable witness. This explains why it was not satisfied that he was a person to whom Australia owes protection obligations under the Convention.
The allegation of bias made in the appellant’s affidavit was not raised below and may not be raised in this Court without leave. There is no reason why the appellant should be granted leave to raise this point for the first time on appeal.
The appellant’s complaint that the Federal Magistrate did not consider all information fairly was not elaborated upon in the appellant’s oral submissions. There does not appear to be any substance to this complaint.
The appeal will be dismissed. The appellant must pay the first respondent’s costs.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas. Associate:
Dated: 23 November 2012
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