SZOYO v Minister for Immigration & Citizenship [2011] FCA 1239 (31 October 2011)

Last Updated: 23 November 2011

FEDERAL COURT OF AUSTRALIA

SZOYO v Minister for Immigration & Citizenship [2011] FCA 1239

Citation:		SZOYO v Minister for Immigration & Citizenship [2011] FCA 1239
Appeal from:		SZOYO v Minister for Immigration & Anor [2011] FMCA 521
Parties:		SZOYO v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number(s):		NSD 1069 of 2011
Judge:		KATZMANN J
Date of judgment:		31 October 2011
Legislation:		Migration Act 1958 (Cth) ss 36(2), 476(1)
Cases cited:		Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129
Date of hearing:	31 October 2011
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	7
Counsel for the Appellant:	The appellant appeared in person with the assistance of an interpreter.
Solicitor for the First Respondent:	Mr R Baird of Clayton Utz
Counsel for the Second Respondent:	Submitting appearance

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1069 of 2011

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZOYO Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	KATZMANN J
DATE OF ORDER:	31 OCTOBER 2011
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant pay the first respondent’s costs.
3. Pursuant to r 40.02 of the Federal Court Rules, the first respondent’s costs be fixed in the sum of $2,635.
   

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 1069 of 2011

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZOYO Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	KATZMANN J
DATE:	31 OCTOBER 2011
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant is a citizen of the People’s Republic of China who claims to fear religious persecution in China. He purports to have followed his father into an underground Christian church with links to Taiwan, to have been threatened by locals in his village and to have been denied protection by the authorities. He arrived in Australia on 3 March 2009 on a student visa. The visa expired in December 2009 and he remained in the country unlawfully. Nine months later, on 23 September 2010, he was found by officers of the Department of Immigration and Citizenship and taken into detention. On 7 October 2010 he applied for a protection visa. To qualify for a protection visa he had to show that he was a non-citizen to whom Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Refugees Protocol (see s 36(2) of the Migration Act 1958 (Cth) (“the Act”)), and that he satisfied the additional criteria imposed by s 91R of the Act. Relevantly, this means he had to show that he had a well-founded fear of persecution on religious grounds, that the persecution involved serious harm to him and that the persecution was systematic and discriminatory.
2. A delegate of the first respondent (“the Minister”) refused the application. The appellant sought a review of the delegate’s decision by the second respondent (“the tribunal”) but his review application was also refused. He then applied to the Federal Magistrates Court for constitutional writs under s 476(1) of the Act, but he was unsuccessful there, too. He now appeals from that judgment to this Court. The sole ground of appeal is in the following terms (without alteration):

I don’t quite agree with Federal Magistrates Court’s decision.

3. To succeed in the application in the Federal Magistrates Court the appellant had to show that the tribunal fell into jurisdictional error: Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476. His application did not refer to any such error. Indeed, the only ground he recited in the application was that the tribunal just repeated the reasons that supported the Department. The federal magistrate rejected this contention, noting that the tribunal clearly conducted its own review. Despite this, her Honour explored the possibility that the appellant might have been suggesting that there was a lack of procedural fairness. She found that the material before the court did not support any such suggestion. She remarked (correctly) that the fact that the two decision-makers reached the same conclusion does not establish bias (whether actual or imputed) or a lack of fairness. And she observed that the tribunal’s decision record showed that it raised its concerns with the appellant and gave him an opportunity to address them.
4. An appeal to this court from the Federal Magistrates Court is not a new hearing, it is a re-hearing where error must be shown before this court may intervene: SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129 at [11]. The appellant provided no particulars in his notice of appeal and filed no submissions.
5. At the hearing of his appeal he was invited to identify the errors on the part of the federal magistrate but said he was unable to think of any. Despite two further opportunities to explain his case, he opted to say nothing. I have reviewed for myself the reasons of the federal magistrate and of the tribunal. I can see no error in the federal magistrate’s reasons. The tribunal rejected the appellant’s claim because it did not believe him. It recited numerous inconsistencies in his account. It took the view that his evidence was not only internally inconsistent but in one respect contradicted independent country information. Evidence was given not only by the appellant but also by his brother. The tribunal noted the evidence of the brother but, as he largely recounted what the appellant had told him, the tribunal was not swayed by what he said. These conclusions were open to the tribunal on the material before it.
6. I am satisfied that this appeal is without merit. Consequently it must be dismissed. There is no reason why the appellant should not pay the Minister’s costs. The Minister applied for a fixed costs order under r 40.02 of the Federal Court Rules. Having reviewed the affidavit read in support of the application I am satisfied it is proper to make that order. I note that the sum sought ($2,635) represents 65% of the professional costs his solicitor estimates would be recovered on taxation.
7. I therefore order that the appeal be dismissed and that the appellant pay the Minister’s costs in the sum of $2,635.
   

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann.

Associate:

Dated: 31 October 2011