SZSFQ v Minister for Immigration and Citizenship
[2013] FCA 488
FEDERAL COURT OF AUSTRALIA
SZSFQ v Minister for Immigration and Citizenship [2013] FCA 488
Citation: SZSFQ v Minister for Immigration and Citizenship [2013] FCA 488 Parties: SZSFQ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: NSD 425 of 2013 Judge: BARKER J Date of judgment: 21 May 2013 Catchwords: MIGRATION – application for extension of time to seek leave to appeal – applicant claimed well-founded fear of persecution on account of her Falun Gong practice in China – whether sufficient doubt as to correctness of judgment below – whether substantial injustice would be suffered by applicant if leave were refused Legislation: Federal Court of Australia Act 1976 (Cth) s 24(1)(d), s 24(1A)
Federal Court Rules 2011 (Cth) R 35.13, R 35.14
Federal Magistrates Court Rules 2001 (Cth) R 44.12(1)(a)Cases cited: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
SZSFQ v Minister for Immigration & Anor [2013] FMCA 143Date of hearing: 21 May 2013 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 31 Counsel for the Applicant: The Applicant appeared in person with the assistance of an interpreter Counsel for the First Respondent: Ms A Carr Solicitor for the First Respondent: DLA Piper Australia
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 425 of 2013
BETWEEN: SZSFQ
ApplicantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
BARKER J
DATE OF ORDER:
21 MAY 2013
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application for an extension of time be dismissed.
2.The applicant pay the first respondent’s costs of the application 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 425 of 2013
BETWEEN: SZSFQ
ApplicantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
BARKER J
DATE:
21 MAY 2013
PLACE:
SYDNEY
REASONS FOR JUDGMENT
OVERVIEW
The applicant applies pursuant to R 35.14 of the Federal Court Rules 2011 (Cth) (FC Rules) for an extension of time within which to seek leave to appeal from the judgment and orders of the Federal Magistrate (as his Honour then was) dated 22 February 2013: SZSFQ v Minister for Immigration & Anor [2013] FMCA 143. His Honour dismissed, pursuant to R 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (as it then was) (FMC Rules), an application for judicial review of a decision of the second respondent (Tribunal) dated 24 October 2012.
The requirement for leave arises from s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (FCA Act). Under s 24(1)(d) of the FCA Act, the Federal Court relevantly has jurisdiction to hear and determine appeals from judgments of the Federal Magistrates Court (now the Federal Circuit Court) exercising original jurisdiction under a law of the Commonwealth, such as the Migration Act 1958 (Cth). Pursuant to s 24(1A) of the FCA Act, an appeal shall not be brought from such a judgment that is an interlocutory judgment unless the Federal Court or a Judge of the Federal Court gives leave to appeal.
The applicant also requires an extension of time because the application for leave to appeal was lodged outside of the 14 day limit set under R 35.13 of the FC Rules in relation to applications for leave to appeal.
For the reasons given below, the application is dismissed.
APPLICATION FOR A PROTECTION VISA
The applicant is a female citizen of the People’s Republic of China (China). She initially applied for a Protection (Class XA) visa on 29 November 2011. The visa was refused by a delegate of the first respondent on 2 May 2012.
The applicant claimed to fear harm in China on the basis that she would be imputed by the authorities as a Falun Gong practitioner should she return to China.
The applicant claimed that her aunt was a Falun Gong practitioner, who had been detained for her Falun Gong activities in the past.
The applicant claimed that she ran a market shop with her husband, and that one day she was given two bank notes with Falun Gong slogans written on them. The police came to her shop and accused the applicant of putting the slogans on the bank notes, and took her to the police station for questioning.
The applicant claimed that she subsequently found Falun Gong flyers and a CD in her doorway, and she watched the CD. She claimed that a community surveillance team came to her house and caught her watching the CD and she was detained and interrogated.
REVIEW IN THE REFUGEE REVIEW TRIBUNAL
The applicant then sought review of the delegate’s decision in the Tribunal.
In a decision dated 24 October 2012, the Tribunal affirmed the decision not to grant the applicant a protection visa.
The Tribunal found that the applicant’s evidence, that she was caught with bank notes bearing Falun Gong slogans and that she had been caught watching a Falun Gong CD, was not credible, on the basis that the applicant’s account regarding these events was implausible and internally inconsistent. The Tribunal found that the incident involving the CD did not occur and that the applicant was not arrested and detained.
The Tribunal did not accept that the applicant would be perceived to be a Falun Gong practitioner, on the basis of her lack of knowledge about Falun Gong. The Tribunal accordingly rejected the applicant’s claim to have been arrested and questioned by the police on the two occasions claimed.
The Tribunal did not accept that the applicant had practiced Falun Gong in Australia.
The Tribunal concluded that the applicant would not participate in Falun Gong activities in the reasonably foreseeable future in China or in Australia, and would not be targeted by the authorities for her actual or perceived practice of Falun Gong.
JUDICIAL REVIEW IN THE FEDERAL MAGISTRATES COURT
The applicant applied for judicial review of the Tribunal’s decision by an application filed on 20 November 2012. The grounds of that application were set out by the Federal Magistrate at [8] and [9] of his Honour’s judgment as follows:
8.I will read the entire contents of both the orders and the grounds onto the record. The ‘orders’ sought by applicant are as follows:
‘1, I don’t think the immigration and RRT’s decision are fair to me because my risk and fears due to my Falun Gong background has not carefully considered.
2, RRT did not consider that my family has been much affected due to my Falun Gong history and I will be persecuted and life challenged if I return to origin in China.
3, RRT member failed to consider my explanation of getting involvement in Falun Gong practice and activities in Australia because of my concern and fear upon Chinese spy and intelligence working in secret monitoring Falun Gong activities elsewhere and I have a big concern that my family in China will be affected if I become an target to be monitored in practice.’9.The grounds of the application are:
‘1, I am a Chinese citizen and FalunGong practitioner who has been targeted and threatened by Chinese government in China. I was affected and faced risk due to my Aunt’s Falun Gong background and was arrested by police.
2, my hometown in China was the most targeting area where Falun Gong practitioner have been brutally persecuted, and anyone with Falun Gong background are targeted, controlled and under surveillance. such horrible situation has never been changed, and decayed.
◦ 3, The Chinese Government still looks for me if I return and I dare not go back and wish to insist my belief in Australia.’The Federal Magistrates Court convened a show cause hearing on 22 February 2013.
The Federal Magistrate found that the applicant had not advanced an arguable case of jurisdictional error by the Tribunal and accordingly dismissed the application pursuant to R 44.12(1)(a) of the FMC Rules.
The Federal Magistrate found that the applicant’s three pleaded grounds did no more than repeat her claims to fear persecutory harm.
His Honour also considered the matters raised by the applicant under the heading “orders sought” in her application form, and found that these matters took issue with the merits of the Tribunal decision. His Honour found that there was no evidence that the assertion made by the applicant in her application to the Federal Magistrates Court as to why she did not engage in Falun Gong activities in Australia had been advanced before the Tribunal.
APPLICATION TO THIS COURT
The applicant by application filed on 12 March 2013 seeks an extension of time within which to apply for leave to appeal against the judgment and orders of the Federal Magistrate.
The first two proposed grounds of appeal identified in the draft notice of appeal repeat the applicant’s claims and take issue with the Tribunal’s conclusion that the applicant was not a Falun Gong practitioner. The third proposed ground of appeal alleges, without particulars, that the Tribunal was biased and made a jurisdictional error. The fourth proposed ground of appeal alleges, again without particulars, that the Court below did not “point the RRT decision’s error”.
The Minister opposes the grant of an extension of time and the grant of leave to appeal on the basis that the substantive appeal is without merit.
In Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, the Full Court held that leave to appeal from an interlocutory judgment requires the applicant to show that there is sufficient doubt as to the correctness of the judgment below to warrant review and, further, that if the judgment below is assumed to be wrong substantial injustice would be suffered by the applicant if leave to appeal were refused.
In the present application for leave, the Minister submits that the applicant has failed to show any doubt about the correctness of the judgment below, and has failed to show that substantial injustice would be suffered by the applicant if leave to appeal were refused.
The applicant’s first two grounds of appeal take issue with the merits of the Tribunal decision, and do not point to any error on the part of the Court below.
The applicant’s third ground of appeal makes a bare assertion of error on the part of the Tribunal, and the fourth ground makes a bare assertion of error by the Court below. These grounds fail to raise any doubt about the correctness of the judgment of the Court below.
In relation to the allegation of bias made in the third ground, this allegation is not particularised and no evidence has been advanced by the applicant to establish any bias on the part of the Tribunal.
At the hearing of the application, the applicant made submissions that broadly repeated the complaints made in the Court below and in the proposed appeal grounds but otherwise raised no new issues of substance.
Consequently, the applicant has failed to identify any appellable error by the Court below and thus that any substantial injustice will be caused if leave to appeal is refused.
CONCLUSION AND ORDERS
For the reasons given above, the application should be dismissed with costs.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker. Associate:
Dated: 22 May 2013
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