FEDERAL COURT OF AUSTRALIA

SZQGE v Minister for Immigration and Citizenship [2011] FCA 1018

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The first respondent be granted leave to file in court the affidavit of Oliver Richard Jones sworn 29 August 2011.

3.    The appellant is to pay the first respondent’s costs in the fixed sum of $3,842.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

REASONS FOR JUDGMENT

1    The appellant arrived in Australia from the People’s Republic of China on 2 February 2008 on a student guardian (subclass 580) visa which was valid until 31 July 2008. On 20 December, 2010, she lodged an application for a protection (class XA) visa. That application was refused by a delegate of the Minister. The decision of the delegate was upheld by the Refugee Review Tribunal (the Tribunal). An application of review to the Federal Magistrates Court was dismissed. This is an appeal from the Federal Magistrate’s decision. The background of the application is set out in the Federal Magistrate’s reasons at [5]-[28]. The appellant appears with the assistance of an interpreter.

The FEDERAL MAGISTRATE’S DECISION

2    The first ground before the Federal Magistrate was whether or not there was information that enlivened s 424A of the Migration Act 1958 (Cth) (the Act). Her Honour concluded that the part of the Tribunal decision apparently the subject of this ground constituted a statement of fact, information given by the appellant to the Tribunal and an evaluation and conclusion by the Tribunal of the evidence before it. None of those matters or the information to which they referred were found by her Honour to enliven s 424A. The Federal Magistrate also found that the Tribunal’s findings were open to the Tribunal on the evidence and materials before it including its adverse credibility findings.

3    A second ground of the application before the Federal Magistrate was an assertion that the circumstances of the case were similar to the circumstances in MZYIA v Minister for Immigration and Citizenship (2011) 121 ALD 291, where Gray J held that the Tribunal’s use of departmental notes that undermined the applicant’s claims to make adverse findings against the applicant enlivened the obligations of s 424A(1) of the Act. However, her Honour found that in this case there was no use of such information. The information cited by the Tribunal was information given to the Tribunal by the appellant.

4    The Federal Magistrate concluded at [52]-[56] that the Tribunal decision was not affected by jurisdictional error. In summary, her Honour stated that:

    The Tribunal outlined the key aspects of the claim that it found not to be credible, being information given to the Tribunal at the hearing.

    The Tribunal rejected as not genuine documents provided by the appellant in support of her claims due to inconsistencies in her evidence and inherent concerns that the Tribunal had about the genuineness of the appellant’s documents. Those concerns were put to the appellant during the hearing.

    The Tribunal understood and explored the appellant’s claims with her at the hearing and then made findings based on the evidence and material before it.

The GROUNDS OF APPEAL

5    As stated in the notice of appeal, the grounds of appeal from the Federal Magistrate’s decision are:

1.    Error of law in the decision it self and in the manner in which the Refugee Review Tribunal and the Federal Magistrates Court of Australia conducted the hearing and matter as the applicant has no full knowledge of the legal procceding before the court as the translation lose the meaning of her satatements.

2.    Failing to take into account very relevent facts of the matter by the Refugee Review Tribunal and the Federal Magistrates Court of Australia.

3.    Taking into account irrlevent facts of the matter.

4.    Failing to take into account Australia obligation under the Internationl Convenant on Civial right and Political rights ICCPR under Article 2, 6 and or 7 of the ICCPR if I the applicant retuned to China.

5.    Failing to take into account the Commonwealth obligation under the Inernational Convenant and the convention aginst Torture and other Cruel, un-hunman or Degrading Treatment or Punishment CAT I the applicant retuned to China.

6.    Failing to take into account relevant facts of the matter and the mental health condition of the applicant at time of application, at the time of tribunal review and the time of appearing befor the court.

6    No particulars of any of the grounds are provided in the notice of appeal. There is no evidence of the mental health condition of the appellant at any time. There is no explanation why these grounds were not raised before the Federal Magistrate. I note from the Federal Magistrate’s decision that the appellant was referred to the Federal Magistrate Court’s legal advice scheme for free legal advice prior to the hearing in that Court and that she was also provided with the contact details of legal service providers and interpreting and translation services in documents headed in her own language.

7    Despite having been given leave to do so, the appellant did not file any evidence or submissions in support of her application in the Federal Magistrate’s Court. She did, however, file an amended application in which reliance on s 424A of the Act informed the first ground and the decision of Gray J in MZYIA informed the second ground.

8    The Minister objects to the new grounds of appeal being entertained in this Court. He accepts that new grounds have been allowed in appeals to this Court where an appellant was unrepresented at first instance but is represented on appeal and the introduction of those grounds is not resisted by the Minister. He submits that the present case is the opposite on two bases. First, the grounds at first instance were the work of counsel specifically assigned to the proceeding and secondly, their introduction is opposed.

9    In Aurpeerapatthana v Minister for Immigration and Citizenship [2011] FCA 887, Jessup J considered the discretion that ought to be exercised in matters under the Act where new points are sought to be raised on appeal to this Court. His Honour considered that the discretion ought to be exercised by reference to the considerations adverted to by the Full Court in NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 at [85] and by reference to what was said by Lander J in SZKMS v Minister for Immigration and Citizenship [2008] FCA 499 at [21]-[25]. In SZKMS, Lander J expressed the view that as the appellate process is to correct error, the appeal court becoming de facto the primary court is undesirable. In Aurpeerapatthana, Jessup J pointed out that whether to grant leave for new grounds of appeal to be raised before the Court is not just a question of whether there is any prejudice to the Minister.

10    However, I will, as did Jessup J, look at the proposed grounds of appeal in order to ascertain whether or not they have prospects of success.

11    As to the first ground, the appellant has not identified any error of law in the Federal Magistrates Court or any basis for jurisdictional error in the Tribunal. The appellant asserts that there was some problem with the translation at the Tribunal. When pressed, the appellant said that she had a feeling that the translation was not correct, but did not point to any particular part of the Tribunal reasons or the Tribunal’s account of the proceedings. I note that at [46] of the Tribunal’s reasons the Tribunal member specifically asked the appellant if she could understand the interpreter. She referred to some ear trouble and requested that the interpreter speak loudly. The Tribunal told the appellant that if she had any problems understanding anything, she should let the Tribunal know. There is no indication in the Tribunal’s account of any further problems referred to and it would seem that the appellant proceeded to give the Tribunal substantial detail in relation to her case. There is no evidence at all of any such matter having been raised in the Federal Magistrate’s Court. There is no basis for this ground of appeal.

12    As to the second ground, the appellant was unable to point to any facts to which this ground refers. There is no indication of any facts that the Tribunal or the Federal Magistrate failed to take into account or wrongly took into account. The only matter to which the appellant referred the Court was again the question of translation. Ground 3 asserts that there was a taking into account of irrelevant facts of the matter. Again, there has been no elaboration of the facts referred to in this ground. Grounds 2 and 3 must fail.

13    Grounds 4 and 5 refer to international treaties to which Australia is a party. The treaties are not part of Australian law except to the extent that they are incorporated by legislation. The relevant legislation is s 36(2)(a) of the Act which directs attention to the Refugees Convention as amended by the Refugees Protocol, not the treaties. The Minister submits that the Tribunal’s findings as to credibility, which were recognised as open to it by the Federal Magistrate, leave the claimed relevance of the treaties without substance. The only matter raised by the appellant at the hearing in relation to these grounds was a reference to “human rights”. I see no basis for grounds 4 and 5. I also note that there was no apparent reference to them before the Federal Magistrate.

14     Ground 6 in part repeats the complaint in grounds 1 and 2. When the Court asked the appellant about any evidence placed before the Tribunal as to her mental health condition, the appellant said that she was under the treatment of a psychologist but did not tell the Tribunal about any problems with her mental health. In the absence of any indication to the Tribunal or the Federal Magistrate that the appellant’s mental capacity was impaired at any relevant time, there can be no complaint that either the Tribunal or the Federal Magistrate failed to take it into account. There is no substance in this ground of appeal.

15    There is no other indication of error by the Tribunal or the Federal Magistrate of a substantive or a procedural nature. Indeed, the appellant does not assert in the grounds of appeal that the Federal Magistrate made any error in her determination of the grounds raised in the application before her.

16    I see no such error in the decision of the Federal Magistrate. In my view the grounds of appeal are without substance and the appellant should not be given leave to rely upon those grounds of appeal to the extent that they were not raised before the Federal Magistrate. Even if leave were given, the appeal would be dismissed. It follows that the appeal is dismissed.

Associate:

Dated:    31 August 2011