SZQIP v Minister for Immigration and Citizenship

JUDGE: Reeves J DATE: 8 MARCH 2012 PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from a judgment of Lloyd-Jones FM pronounced on 6 December 2011. In that judgment, the Federal Magistrate dismissed an application for judicial review of a decision of the Refugee Review Tribunal made on 10 May 2011. In its decision, the Refugee Review Tribunal decided (at [12] of Lloyd-Jones FM's decision, [2011] FMCA 962) that: The applicant has not claimed that she feared harm because the authorities may impute an anti-Government political opinion to her because of her and her husband's assistance to a Falun Gong practitioner. From the applicant's claims and evidence, the essential and significant reason for the harm she fears is that she has committed an offence under Chinese law and may be punished for that. 2 The appellant did not advance any claims that the law would be applied in a discriminatory manner because of any attribute applying to her circumstances. She stated in effect that the law is enforced against all persons who commit harbouring offences and that she would not be singled out for punishment. The Tribunal found that the law against harbouring criminals is a law of general application in China and that there is no real chance that the appellant will face serious harm involving systematic or discriminatory conduct for a Convention reason in relation to the enforcement of this law. 3 In his judgment, Lloyd-Jones FM held, in summary, first, that the Tribunal had complied with its obligations under s 414 of the Migration Act 1958 (Cth) (the Act) (at [17] of the reasons). Secondly, that the Tribunal had also afforded the appellant procedural fairness as required by the Act (at [18] of the reasons). Thirdly, the appellant could not seek to review the Tribunal's decision in relation to the weight it afforded to the evidence before it (at [21] of the reasons). And finally, the appellant was otherwise seeking a merits review of the Tribunal's decision (at [23] of the reasons). 4 The notice of appeal to this Court contains four grounds, as follows: 1. RRT has bias against me and did not make a fair decision for my application. 2. I have disadvantaged background which was exploited by both RRT and Department of Immigration. 3. I believe my case was not considered carefully by the Federal Magistrate Court. 4. My evidence was not sufficiently considered and excluded without procedural fairness. (errors in original) 5 The first thing to be observed about these grounds is that none of them is particularised. This is particularly important with the allegation of bias in ground one, which is a serious allegation involving personal fault on the part of the decision-maker, which must be clearly articulated and proved by admissible evidence: see SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361 at [43]. It may also be noted that the appellant has not adduced any evidence to support this allegation. Finally, this ground was not raised as a ground of review before the Federal Magistrate. The appellant therefore requires leave to raise it for the first time before this Court. For the brief reasons I have just given, this ground has no reasonable prospects of success and I therefore refuse that leave. 6 Ground two appears to pursue the same bias related theme and must be rejected for the same reasons. Alternatively, if that is not what is intended by it, it is so general and amorphous in its terms that it is impossible to deal with it. Ground two must therefore be rejected. As well as being unparticularised, the other two grounds of appeal both fail to identify any error on the part of the Federal Magistrate. Ground three simply alleges "I believe my case was not considered carefully by the Federal Magistrate Court (sic)". However, that ground does not allege or particularise any error on the part of the Federal Magistrate; it merely makes a general criticism of belief about lack of care. 7 Insofar as that belief is a general criticism, I have read Lloyd-Jones FM's reasons for judgment and I consider that his Honour carefully examined the issues raised by each of the grounds of review before him and gave clear and valid reasons for disposing of each of them. These observations also apply to ground four, which was one of the grounds of review raised before the Federal Magistrate. Lloyd-Jones FM considered that issue at [18] of his reasons and quite correctly disposed of it. Grounds three and four must also, therefore, be rejected. In short, the appellant has failed to demonstrate any error on the part of the Federal Magistrate, and for these reasons, this appeal has no merit and must be dismissed. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.