FEDERAL COURT OF AUSTRALIA SZQJD v Minister for Immigration and Citizenship [2012] FCA 617 Citation: SZQJD v Minister for Immigration and Citizenship [2012] FCA 617 Appeal from: SZQJD v Minister for Immigration and Citizenship & Anor [2012] FMCA 127 Parties: SZQJD v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: NSD 441 of 2012 Judge: COWDROY J Date of judgment: 15 June 2012 Legislation: Convention relating to the Status of Refugees 1951 Migration Act 1958 ss 65, 91R Cases cited: Ainsworth Nominees Pty Ltd (t/as Aristocrat Leisure Industries) v Crouch (1995) 11 NSWCCR 640 Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387 Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293 Minister for Immigration and Multicultural Affairs v Khawar (2001) 187 ALR 574 Date of hearing: 25 May 2012 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 25 Solicitor for the Appellant: The Appellant appeared in person Solicitor for the First Respondent: Minter Ellison IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 441 of 2012 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZQJD Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: COWDROY J DATE OF ORDER: 15 june 2012 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The Appellant pay the costs of the First Respondent. Note: Settlement and 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 441 of 2012 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZQJD Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: COWDROY J DATE: 15 june 2012 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The appellant appeals from orders of Federal Magistrate Emmett made on 28 February 2012 which dismissed an application for judicial review of a decision of the second respondent, the Refugee Review Tribunal ('the Tribunal'). The Tribunal had affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Citizenship ('the Minister'), which refused to grant the appellant a protection visa. 2 The appellant is a citizen of China who first arrived in Australia on 8 September 2007 being the holder of a Student Guardian visa issued on 24 August 2007. The appellant's son was then a student in Australia. 3 On 22 October 2010 the appellant lodged an application for a Protection (Class XA) visa under s 65 of the Migration Act 1958 (Cth) ('the Act') with the Department of Immigration and Citizenship. A delegate of the Minister refused the application for a protection visa on 19 January 2011. On 17 February 2011 the appellant applied to the Tribunal for a review of that decision, and such application was unsuccessful. BACKGROUND 4 The appellant claimed her husband had become embroiled in a dispute with the son of the mayor of their city of residence, Gaoshan. The appellant's husband had been asked to redecorate the mayor's son's home. The appellant's husband was paid a 25% deposit and worked day and night to finish the work. When the appellant's husband had completed the job the son complained about the quality of the workmanship. The appellant's husband argued with the mayor's son and as a result the appellant's husband was assaulted. Some of the appellant's husband's workers were also beaten. The appellant's husband had to pay his sub contractors and suppliers. As a result the appellant and her husband experienced financial hardship. 5 The appellant claimed that her husband requested payment from the mayor and his son, but they threatened to bring a lawsuit against the appellant's husband if the husband continued asking for payment. Subsequently, there was another altercation between the appellant's husband and the mayor's son, which resulted in the appellant's husband's arrest. At the time the appellant was in Australia. When she received word of her husband's arrest, she returned to China. The appellant told the Tribunal that she managed to gain his release through paying a bribe. 6 Subsequent to these events, the mayor's son was killed in a car crash. The appellant stated that the authorities suspected foul play and investigated her and her husband. The appellant stated that the appellant's husband was charged with murder but was then released on bail for medical treatment. The appellant returned to Australia on 24 November 2007. The appellant fears returning to China because she secretly left China following these incidents and claims that she may be charged as her husband's accomplice. REFUGEE REVIEW TRIBUNAL 7 The appellant appeared before the Tribunal on 16 May 2011 to give evidence and present arguments with the assistance of an interpreter fluent in the Mandarin and English languages. The appellant confirmed that the authorities were no longer interested in the appellant's husband because the authorities found there was no evidence against him. Her husband is now in Singapore. The appellant indicated she was worried because she claimed she was on the official wanted list. 8 The Tribunal observed that if there was no evidence against her she too would be released in the same way that her husband was released. The Tribunal noted the justice system had worked in her husbands favour despite the conduct of the mayor. 9 The appellant's claims before the Tribunal concerning her husband then changed. Before the Tribunal the appellant claimed that her husband had been released due to illness and had escaped China using a false passport. The Tribunal observed that such new claims were inconsistent with the appellant's previous assertions. 10 The Tribunal found that the appellant's later claims regarding her husband were inconsistent with her earlier claims and were made in response to the Tribunals concerns. Such claims were rejected by the Tribunal. The Tribunal also concluded the appellant was not telling the truth about the events she recounted, and further found that the persecution claimed was not directed at the appellant nor for any reason arising under the Convention Relating to the Status of Refugees 1951 ('the Convention') and there was nothing to indicate that the appellant was politically active. The Tribunal was also not satisfied there was a failure of state protection. 11 The Tribunal also observed that the appellant had not sought protection when difficulties first arose, to which the appellant claimed she did not know how to make such an application. The Tribunal did not accept her explanation; observing that the Chinese community in Australia is large and the appellant's son is educated. The Tribunal also observed that the delay of three years between the appellant's return to Australia on 24 November 2007 after the events in China which the appellant claimed put her at risk of harm and the lodgement of her protection visa application, and also the fact that the appellant only made the application when she became liable to be deported after her son's student visa was cancelled, was inconsistent with the existence of a genuine fear of persecution in China. 12 Further, the Tribunal found that even if the appellant's claims had been accepted, the harm which she feared did not occur as a result of a reason arising under the Convention. It observed that the dispute related to the payment of monies allegedly owing to her husband by the mayor's son and of animosity between those parties. The Tribunal was satisfied that the circumstances of the dispute were personal and were not related to the Convention. 13 The Tribunal concluded that the appellant was not someone to whom Australia owed protection obligations under the Convention and affirmed the decision not to grant the appellant a Protection (Class XA) visa APPLICATION TO THE FEDERAL MAGISTRATES COURT 14 On 20 June 2012 the appellant applied to the Federal Magistrates Court of Australia for judicial review of the Tribunal decision. That application contained the following grounds: 1. The Refugee Review Tribunal (RRT) failed to comply with the duties imposed by section 430(1). 2. The RRT unfairly states the claimed persecution is not directed for a Convention reason. I suffered discrimination from local government and faced persecution because of my anti-corruption appealing. After all, the Convention based persecution exists where the state authorities fail to provide protection against non-Convention related harm, if that failure is the result of Convention persecution. I am an individual who bears this failure of state protection as a result of discriminatory failure. 3. The RRT states I gave 'contradictory evidence at Tribunal hearing about the outcome of the police interest in her husband following the death of Gao's son', i.e. '…she stated initially that he was arrested… and that he is no longer wanted because there was no evidence against him. She subsequently said… because he was sick.' There is no conflict as my husband is innocent and was ill during his prison. 4. The RRT states it is 'highly implausible' that '… the party who was actually in China would have been treated more leniently than the one who was not'. This statement underestimates the risk of being persecuted by local police and authorities. My husband has been sick and cannot run away. I recognise it is not lenience but a trap from prior experience. 15 The appellant participated in the Courts Refugee Review Tribunal Legal Advice Scheme and consequently received free legal advice, and appeared unrepresented but assisted by an interpreter before the Federal Magistrate. The Federal Magistrate found that a fair reading of the Tribunal's decision record set out its reasons, findings and evidence on which those findings were based. The Federal Magistrate noted that the appellant appeared to disagree with the Tribunal's findings in ground two. The Federal Magistrate held the Tribunal had made comprehensive adverse credibility findings against the appellant. The Federal Magistrate held that this finding was open to the Tribunal on the evidence before it. 16 The Federal Magistrate considered that ground three and ground four were in the nature of a disagreement with the Tribunal decision and invited merits review which could not be entertained. The Federal Magistrate concluded the appellant's grounds did not reveal any jurisdictional error in the Tribunal decision and dismissed the application. APPEAL TO THIS COURT 17 On 20 March 2012 the appellant filed a notice of appeal in this court which contained the following ground: I suffered jurisdictional error as the Refugee Review Tribunal (RRT) did not recognise my fear of persecution. The Federal Magistrate Court (FMC) did not correct RRT's error. In Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293, in the course of discussing the nature of persecution in the Convention, the plurality stated: Whether the different treatment of different individuals or groups is appropriate and adapted to achieving some legitimate government object depends on the different treatment involved and, ultimately, whether it offends the standards of civil societies which seek to meet the calls of common humanity. As the Local authorities deliberately acted against my family (arrest and detention), I have fear of serious harm under the Convention reason. THE HEARING 18 The appellant did not provide the Court with any written submissions. The appellant attended court unrepresented but assisted by an interpreter. The appellant was provided with the opportunity to make oral submissions. However, she was unable to provide any meaningful submissions to the Court. 19 Accordingly the Court will address the only ground of appeal which refers to the decision of the High Court of Australia in Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293. This ground of appeal has some apparent similarity to the second ground of appeal considered by the learned Federal Magistrate. 20 If the appellant seeks by such ground to assert that she belongs to a particular social group as considered in Chen Shi Hai then such ground was not raised before the Federal Magistrate and leave would be required to raise an issue not previously relied upon. In order for a grant of such leave, it is necessary for an appellant to demonstrate that the ground has reasonable prospects of success and also to provide an explanation why the ground was not raised earlier: see Ainsworth Nominees Pty Ltd (t/as Aristocrat Leisure Industries) v Crouch (1995) 11 NSWCCR 640. 21 In the present circumstances the Federal Magistrate found that the source of the alleged discrimination did not relate to a Convention reason. Further, the Federal Magistrate found as a primary issue that the appellant was not a credible witness. In these circumstances, the claims of the appellant could not succeed and for this reason the Court would not grant leave, if leave was required to raise this issue. 22 Section 91R of the Act requires that the persecution involves serious harm to the person and significantly the persecution involves systematic and discriminatory conduct (see s 91R(1)(b), (c)). It is true that 'serious harm' is defined in s 91R(2) of the Act to include a threat to the person's life or liberty (s 91R(2)(a)); significant physical harassment or physical ill-treatment of the person (s 91R(2)(c), (d)). However, in the present circumstances there is no evidence of any 'systematic and discriminatory conduct' which is an essential ingredient in the definition of persecution contained in s 91R(1) of the Act. Accordingly on both grounds, namely the lack of credit worthiness of the appellant and the absence of any persecution as defined, the decision of the Tribunal and of the Federal Magistrate was not infected with jurisdictional error. 23 It should also be observed that even though the Tribunal concluded that there was no Convention nexus in respect of the appellant's claimed fears, persecution as defined in the Convention can arise where state authorities fail to provide protection against non-Convention related harm, if such failure was the result of persecution under the Convention: Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387; Minister for Immigration and Multicultural Affairs v Khawar (2001) 187 ALR 574. 24 However the Tribunal found that even if there had been any failure of state protection, it was not the result of systematic or discriminatory failure or in fact any failure to protect the appellant for a Convention reason. Accordingly even on such alternative basis the appellant's claims would not satisfy the Convention. Such finding was confirmed by the learned Federal Magistrate who observed that it was consistent with the decision of the High Court of Australia in Khawar. 25 The Court is unable to discern any error in the finding of the Federal Magistrate. It follows that there is no jurisdictional error and that the appeal must be dismissed with costs. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy. Associate: Dated: 15 June 2012