SZQCV v Minister for Immigration and Citizenship

[2012] HCASL 128

SZQCV

v

MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR

[2012] HCASL 128
S101/2012

1. The applicant is a citizen of the People's Republic of China and arrived in Australia on 4 August 2007.  She applied for a Protection (Class XA) visa through a migration agent on 15 December 2010 and again, through a different agent, on 17 December 2010.  On 17 January 2011, a delegate of the first respondent refused the applicant a visa.

2. On 28 February 2011, the Refugee Review Tribunal ("the Tribunal") affirmed the delegate's decision.  However, on 26 May 2011, the Federal Magistrates Court, by consent, quashed the Tribunal's decision and remitted the matter to the Tribunal to be determined according to law.  On 1 August 2011, the Tribunal again affirmed the delegate's decision. The applicant claimed in her first application that she feared persecution in China by reason of her practice of Falun Gong.  However, the applicant subsequently abandoned this claim and claimed instead that she feared persecution for having assisted her father resist a decision of the Chinese government to compulsorily acquire, for inadequate compensation, a property owned by the applicant.  The Tribunal found that the applicant's claims were untruthful and that the applicant had obtained and presented false documentation to support them.  The Tribunal did not accept that the applicant had a well-founded fear of persecution should she be returned to China.

3. On 9 December 2011, the Federal Magistrates Court (Smith FM) dismissed the applicant's application for review of the Tribunal's decision. The ground advanced in the applicant's amended application was that a hearing of the Tribunal on 13 July 2011 was attended by a guard and was therefore not private, contrary to s 429 of the Migration Act 1958 (Cth). Smith FM observed that s 429 does not prohibit the presence of persons at a hearing who are reasonably required for purposes of or in connection with the performance of the Tribunal's functions, including security officers. Smith FM held that the evidence did not establish that the Tribunal erred in assessing that the security officer's presence was reasonably required.

4. On 5 March 2012, the Federal Court of Australia (Reeves J) dismissed the applicant's appeal from Smith FM's decision.  Reeves J found no error in Smith FM's finding that the applicant had not shown that the presence of a security guard at the hearing was not reasonably required.  His Honour also rejected other complaints made by the applicant as either having not been raised before Smith FM or as going to the merits of the Tribunal's decision and therefore being unreviewable.

5. The applicant requires an extension of time in which to file her application for special leave to appeal to this Court.  We grant that extension but dismiss the application.  The application does not raise any question of law which would justify the grant of special leave.  An appeal to this Court would enjoy no prospects of success.

6. Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application. 

W.M.C. Gummow
15 August 2012 S.M. Kiefel