SZONX v Minister for Immigration & Citizenship [2011] FCA 135 (23 February 2011)

Last Updated: 24 February 2011

FEDERAL COURT OF AUSTRALIA

SZONX v Minister for Immigration & Citizenship [2011] FCA 135

Citation:		SZONX v Minister for Immigration & Citizenship [2011] FCA 135
Appeal from:		SZONX v Minister for Immigration & Anor [2010] FMCA 876
Parties:		SZONX v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 1685 of 2010
Judge:		BUCHANAN J
Date of judgment:		23 February 2011
Legislation:		Migration Act 1958 (Cth)
Cases cited:		SZONX v Minister for Immigration and Anor (No 2) [2010] FMCA 877 SZONX v Minister for Immigration and Anor [2010] FMCA 876
Date of hearing:	18 February 2011
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	10
Counsel for the Appellant:	The appellant appeared in person.
Solicitor for the First Respondent:	Mr G Johnson of DLA Phillips Fox

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1685 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	BUCHANAN J
DATE OF ORDER:	23 FEBRUARY 2011
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal is dismissed.
2. The appellant pay the costs of the first respondent of and incidental to the appeal as taxed if not agreed.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1685 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	BUCHANAN J
DATE:	23 FEBRUARY 2011
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant is a citizen of China who came to Australia on 2 November 2007 on a Student Guardian visa. Her son came to Australia at that time on a Student visa but, she informed the Refugee Review Tribunal (“the RRT”), failed to complete his course and then remained in Australia unlawfully. The appellant’s visa was due to expire on 31 July 2009. On 24 July 2009 she applied for a Protection (Class XA) visa. The basis of her application for a Protection visa was that she had become a believer in the Christian faith in August 2006 following her husband’s earlier conversion in February 2003. Although she had planned to return to China in July 2009 she received advice that her husband had been arrested and tortured and that she would face persecution in China on account of her own religious beliefs if she returned.
2. On 7 October 2009 a delegate of the first respondent (“the Minister”) refused to grant the appellant a protection visa. The delegate found that the appellant was not a committed Christian, had not been involved, while in China, in conduct which would lead to adverse consequences for her, did not have a genuine fear of harm and that there was not a real chance of persecution occurring.
3. The appellant applied to the RRT for review of the delegate’s decision. On 1 July 2010 the RRT affirmed the decision of the delegate that the appellant should not be granted a protection visa. The RRT, like the delegate, did not believe the appellant’s claim to be a committed or practising Christian. A number of reasons were given in explanation of this conclusion which dealt with the content and quality of the appellant’s assertions, the material provided by her in support of those assertions and the responses she gave to the RRT to questions about her claimed beliefs. The RRT’s conclusions about those matters were conclusions about the merits of the appellant’s claims. Those conclusions were not open to challenge in proceedings for judicial review unless the RRT made a jurisdictional error which, in a relevant way, affected the processes which it followed or its ultimate decision.
4. Following the rejection of her application by the RRT the appellant, on 30 July 2010, made an application to the Federal Magistrates Court of Australia (“the FMCA”) for judicial review of the RRT’s decision. The grounds for the application were stated in the following way:
   1. I AM CHRISTIAN. RRT REFUSED MY APPLICATION UNFAIR.
      
   2. RRT DID NOT WEIGH MY EVIDENC [sic], SAYING MY DOCUMENT IS NOT TRUE. IT IS NOT FAIR.
      
   3. I WILL BE PUT IN DETENTION CENTRE IN CHINA IF I RETURN BACK TO CHINA.
      
5. These grounds do not, on their face, disclose any jurisdictional error in either the processes followed, or the decision reached, by the RRT. Nevertheless, each of the grounds was considered in some detail by the FMCA. Each ground was, correctly in my respectful view, identified as a complaint which did not raise any jurisdictional issue for attention. At the hearing before the FMCA the appellant, somewhat belatedly, made a complaint that the quality of interpreter assistance provided to her by the RRT was inadequate. The FMCA gave consideration to whether the appellant should be allowed to rely upon this additional complaint but decided that it was without sufficient substance to require attention and that in any event the appellant had provided no adequate explanation for why such a complaint was made only at the last minute. The FMCA accordingly refused the appellant leave to raise the matter as a ground in support of the application for judicial review. The judgment of the FMCA refusing the appellant leave to rely upon the additional ground in support of her application for judicial review was delivered on 27 October 2010 (SZONX v Minister for Immigration and Anor (No 2) [2010] FMCA 877) and the judgment rejecting her application for judicial review was delivered on 12 November 2010 (SZONX v Minister for Immigration and Anor [2010] FMCA 876).
6. On 3 December 2010 the appellant filed an appeal in this Court against the judgment of the FMCA delivered on 12 November 2010. The grounds of appeal were stated as follows:
   1. RRT had bias against me and did not make fair decision for my application
      
   2. I clarify all my points at the hearing of the Federal Magistrates Court, but the Judge refused my application on my hearing date. It is not fair.
      
   3. I believe that my application was not considered reasonably by the Judge at the Federal Magistrates Court. I fear to go back to China. Chinese Government persecutes underground house church members.
      
7. Apart from the allegation that the RRT was biased against her, none of the grounds of appeal make any cogent suggestion of appellable error by the FMCA or identify any jurisdictional issue which might be relevant to the present appeal. The allegation of bias by the RRT was not a matter upon which the appellant relied before the FMCA. The suggestion that her application for judicial review was not considered “reasonably” by the FMCA rises no higher than a mere assertion to that effect unsupported by any form of particularisation. In any event, the suggestion has no substance. Although the appellant made little contribution to the proceedings before the FMCA, it is apparent that the FMCA gave careful attention to her circumstances.
8. Contrary to a direction made on 7 December 2010, the appellant did not file any written submission in support of her appeal. At the hearing of the appeal the appellant had nothing to say, except to assert briefly her belief that she had been unfairly treated.
9. The merits of the decision made by the RRT, and the conclusions to which it came, are not matters for review by this Court. The appellant has not identified either any jurisdictional error made by the RRT or any error made by the FMCA in its own assessment of whether the RRT committed jurisdictional error. There is no apparent substance in the allegation that the RRT was biased against the appellant and no other defect of a jurisdictional kind which has either been identified by her or which appears from the face of the record.
10. In the circumstances, the appeal must be dismissed. It is appropriate to dismiss it with costs.
    

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.

Associate:

Dated: 23 February 2011