FEDERAL COURT OF AUSTRALIA

SZGWQ v Minister for Immigration and Citizenship [2008] FCA 656

SZGWQ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 28 of 2008

RYAN J

13 MAY 2008

SYDNEY

THE COURT ORDERS THAT:

1.     The appeal be dismissed.

2.     The appellant pay the first respondent’s costs, to be taxed in default of agreement.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                          This is an appeal from orders made by Raphael FM on 20 December 2007 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”);  see SZGWQ v Minister for Immigration & Anor [2007] FMCA 2135.  By a decision made on 28 September 2006, the Tribunal had affirmed a refusal of 25 March 2004 by a delegate of the then Minister for Immigration and Multicultural Affairs (“the Minister”) to grant a protection visa to the appellant. 

Background

2                          The appellant is a national of the People’s Republic of China and claims to have a teenage daughter and husband who reside in China.  The appellant arrived in Australia on 11 March 2004 and applied for a protection (class XA) visa on 18 March 2004.  In her visa application, the appellant claimed to be a practitioner of Falun Gong, having begun practising in the first half of 1999 and having practised in the street.  According to her account, Falun Gong members in China had been persecuted, their materials had been confiscated and they had been tortured and interrogated.   The appellant claimed to have left China legally.

3                          On 25 March 2004 a delegate of the Minister refused the appellant’s application for a protection visa. 

Proceedings in the Tribunal

4                          On 8 April 2004 the appellant applied to the Tribunal for review of the decision of the delegate of the Minister.  On 25 May 2004 the Tribunal (“the first Tribunal”) without conducting a hearing, published its decision, affirming the decision of the delegate.  On 9 March 2005 the Federal Magistrates Court made orders quashing the decision of the first Tribunal, and remitting the matter to the Tribunal for reconsideration and determination in accordance with law. 

5                          On 7 June 2005 the appellant attended a hearing before the Tribunal (“the second Tribunal”), and claimed that she was a Falun Gong practitioner and had been doing Falun Gong exercises every night until she had been detained in September 2003.  She said that she had been detained for a month, had nearly been killed, and had subsequently been required to report daily to the authorities. 

6                          In her second application for review before the Tribunal, the appellant expanded on her previous claims saying that she had been able to escape persecution temporarily but that her friend had been detained and dismissed from his work.  The appellant also said that she had been arrested in a raid in early September 2003 whilst practising Falun Gong in a friend’s backyard with 13 to 14 other people.  She had been “beaten almost to death” by Public Security Bureau (“PSB”) officers, and then detained, interrogated and beaten repeatedly for a month.  After her release she had been unable to locate her friend and her neighbours, friends and family had been questioned by police about her.

7                          The appellant claimed to have opened a business in China which had been interrupted by her detention in September 2003 after which she had closed the business in October 2003 due to police harassment.  With the assistance of friends she obtained a job in a factory which necessitated her moving 1000 kilometres from the town in which she had grown up.  When the Tribunal pointed out that this information had been omitted from her original application the applicant explained that she had written out in Chinese the things which she considered important and her then migration agent had translated it without her having had an opportunity to check the accuracy of the translated account. 

8                          On 30 June 2005 the Tribunal handed down its decision, affirming the decision under review.  On 11 April 2006 the Federal Magistrates Court made orders by consent quashing the decision of the Tribunal of 30 June 2005, and again remitting the matter to the Tribunal for reconsideration and determination according to law.

9                          On 31 May 2006 the Tribunal (“the third Tribunal”) invited the appellant to attend a hearing on 19 June 2006.  On 13 June 2006 the appellant responded to that invitation indicating her intention to attend.  However, on 15 June 2006, her migration agent sent a facsimile message to the Tribunal requesting an adjournment of the hearing because the appellant was suffering from a psychosomatic illness, and enclosing a medical certificate that the appellant was unfit for work from 13 June 2006 to 13 July 2006.  The Tribunal contacted the appellant and her general practitioner to ascertain when the appellant would be fit to attend a hearing, and the date of her proposed psychiatric consultation.

10                        On 21 July 2006 the Tribunal invited the appellant to comment on information relevant to the credibility of her claims, to which she responded on 4 August 2006.

11                        On 9 August 2006, the Tribunal invited the appellant to provide further information in  writing, rather than attend a hearing, stating;

‘As the obligation to invite the applicant to a hearing has been discharged and she has been invited to comment upon information as required by s 424A of the Act the Tribunal is in a position to proceed to make a decision in this matter, subject to your client providing any further information upon which she may wish to rely.’

12                        On 24 August 2006 the appellant’s migration agent indicated that the appellant wished to attend a further hearing, and therefore, on the same date, the Tribunal invited the appellant to attend a hearing on 31 August 2006.  The hearing was subsequently adjourned for unrelated reasons to 20 September 2006. 

13                        On 20 September 2006 the appellant attended a hearing before the third Tribunal, and gave further evidence in relation to her knowledge and understanding of Falun Gong.

14                        On 10 October 2006 the third Tribunal handed down its decision, affirming the decision of the delegate of the Minister to refuse to grant the appellant a protection visa.  The Tribunal did not accept that the appellant had been a Falun Gong practitioner in China or in Australia.  The Tribunal accepted that the appellant had run her own clothing business until October 2003.  However, it did not accept that she had left that business to work in a factory due to her Falun Gong involvement.  The Tribunal observed that her lack of knowledge of basic Falun Gong practices led it to the conclusion that the appellant had fabricated her claims in order to acquire a protection visa.  This finding was strengthened by her limited participation in Falun Gong since arriving in Australia.

15                        As the Tribunal did not accept that the appellant was a Falun Gong practitioner, it did not accept that she had suffered persecution because of her practice of Falun Gong.  It also regarded her accounts of having moved from the town where she had been raised to the city in order to find work as incompatible with her claim to have been followed and harassed by PSB officers.

16                        The Tribunal considered the appellant’s responses to its questions and found that she had departed China legally.  This was again considered incompatible with monitoring by the Chinese authorities due to her alleged Falun Gong membership.  The Tribunal found that, if the appellant were to return to China, she would not practise Falun Gong, and would not be perceived by the Chinese authorities to be a Falun Gong practitioner.  Accordingly, the Tribunal rejected the appellant’s claim to have a well-founded fear of persecution for a Convention reason, namely her adherence to the principles of Falun Gong.

Proceedings in the Federal Magistrates Court

17                        On 13 November 2006 the appellant sought judicial review of the third Tribunal’s decision, and relied upon an amended application filed on 19 April 2007.  The appellant claimed that she had been misunderstood by the Tribunal, that the Tribunal had failed to comply with ss 424A and 425 of the Migration Act 1958 (Cth) (“the Act”), and that there was a reasonable apprehension of bias on the part of the Tribunal.

18                        Raphael FM was not persuaded that any jurisdictional error had infected the Tribunal’s decision.  His Honour noted that the Tribunal had made “every effort” to accommodate the appellant’s ill-health.  The appellant had not complained afterwards that her ill-health had disadvantaged her in the proceedings before the Tribunal, and there was no evidence before Raphael FM that suggested that she had been unable to represent herself properly at the Tribunal hearing.  Further, there was nothing on the face of the Tribunal record which was capable of supporting a claim of reasonable apprehension of bias.  Accordingly, on 20 December 2007 his Honour dismissed the application.

Proceedings before this Court

19                        On 9 January 2008 the appellant filed a notice of appeal in this Court, appealing from the whole of the orders of Raphael FM of 20 December 2007.  The grounds of the appeal listed in the notice are;

‘1.        The learned Federal Magistrates erred in finding (at [10] of his Honour’s reasons for judgement).  The Refugee Review Tribunal (“the Tribunal”) failed to assess my claims as a genuine Falun Gong practitioner properly and fairly.

2.         The learned Federal Magistrates erred in finding (at [11] of his Honour’s reasons for judgement).  The Tribunal failed to comply with its obligations under s.424A(1) of the Act.  What I have claimed is the Tribunal failed to provide particulars of the information which the Tribunal has considered as a reason or part of reason in its decision.

3.         The learned Federal Magistrates erred in finding (at [12] of his Honour’s decision for judgement) that the Tribunal failed to arrange a fair hearing for me to give my oral evidence in support of my claims or to present my arguments against the issues arising from the review.

4.         The learned Federal Magistrates erred in finding (at [13] of his Honour’s reasons for judgement).  The Tribunal’s decision has included apprehension of bias.’

The orders sought by the appellant in her notice of appeal are;

‘1.        That the decision be set aside.

2.         The matter be remitted to the differently constituted Refugee Review Tribunal for determination accordance with the law.

3.         An order that the respondent pay the costs of this application.

4.         Such further or other order as the Court deems fit.’

20                        On 15 February 2008 Deputy District Registrar Morgan directed that the appellant file and serve written submissions no later than five clear working days before the hearing date, unless otherwise directed.  The appellant has not filed or served any written submissions, and has failed to comply with this order.  When asked about that omission today, she was unable to give any explanation.  However, at the hearing of her appeal today, the appellant made oral submissions through an interpreter to the effect that the Magistrates Court had erred in failing to detect an error in the Tribunal’s assessment of her adherence to Falun Gong.

21                        She further contended that the Tribunal had failed to make allowance for her poor health when it found that she had not adhered to Falun Gong in China and when it placed weight on her failure to practise Falun Gong in Australia.  It was also claimed that the Tribunal had not complied with s 424A because it had failed to explain how the information to which it had pointed was relevant to its determination of her application.  She also invoked s 425 of the Act in support of her contention that, in light of her ill-health at the time, she had not been given an effective invitation to give evidence and present arguments relating to the issues arising in relation to the application for a protection visa.

22                        The Minister has filed written submissions and has amplified those in the course of oral submissions today. 

23                        In relation to ground one of the notice of appeal, the Minister contends that, the learned Federal Magistrate did not err in holding that the Tribunal’s reasoning was clear, and unaffected by error.  The Minister submits that the Tribunal’s finding as to the veracity of the appellant’s claim to be a Falun Gong practitioner was a finding of fact which subsumed the entirety of her claims;  see Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407, at [67].  The Minister submits that the fairness of that finding should not be reviewed by the Court;  see Attorney-General (NSW) v Quin (1990) 170 CLR 1, at 35-36.  According to Counsel for the Minister, the Tribunal was not obliged to make findings in respect of each factual contention raised by the appellant in circumstances where the central premise of her claims had been rejected;  see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, at [68], [73]-[74] and [91];  Durairajasingham at [65]–[67];  WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630, at [47];  Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396, at [79].  The Minister submits that, having rejected the central premise of her claim, it was open to the Tribunal to find that the appellant’s prospective fears of persecution were unfounded;  see Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, at 575-577.

24                        In relation to the appellant’s second ground of appeal, the Minister contends that the learned Federal Magistrate did not err in his finding that there had been no contravention of s 424A(1) of the Act;  the Tribunal’s rejection of the appellant’s claim to be a Falun Gong practitioner was based on its appraisal of her claims made before the three separately constituted Tribunals, and that appraisal was not “information” for the purpose of s 424A(1);  see SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609, at [17]–[18].  The Minister contends that the material submitted and testimony given by the appellant to the three separate Tribunals was subject to the exception in s 424A(3)(b) of the Act, in that it was given by the appellant for the purpose of her application for review and therefore was not subject to s 424A(1) of the Act;  see SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 107, at [39];  SZJBE v Minister for Immigration and Citizenship [2007] FCA 190, at [17].

25                        In relation to ground three of the notice of appeal, the Minister submits that the Federal Magistrate did not err in finding that there had been no contravention of s 425 of the Act.  The Minister submits that the appellant had attended two previous hearings and the Tribunal had discussed with her the determinative issues that had been identified in her application for review.  The Minister contends that the Tribunal had allowed the appellant an opportunity to give testimony in relation to the issues that were to be determinative of her application, and that there is insufficient evidence for any contrary inference;  see NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241, at [21]. 

26                        As to the fourth ground of appeal, the Minister submits that the Federal Magistrate did not err in finding that there was no evidence to support a finding of apprehended bias.  The Minister submits that there was no transcript evidence before the Court below that was capable of indicating actual or apprehended bias on the part of the Tribunal;  see SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749, at [43];  the fact that the Tribunal made adverse credibility findings, that were open on the evidence, does not indicate bias or apprehended bias;  see VFAB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102, at [21];  SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668, at [38];  WABC of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 286, at [3].

Disposition of the appeal. 

27                        Neither this Court nor the Federal Magistrates Court is entrusted with a rehearing of questions of fact, such as the genuineness of an appellant’s or an applicant’s adherence to a religion or philosophy such as Falun Gong.  The Tribunal in this case was apprised of the fact that the appellant had been certified as unfit for work until 13 July 2006 and, in fact, that the Tribunal hearing did not take place until 20 September 2006 after a written request dated 24 August 2006 for a hearing had been made by solicitors acting for the appellant.  There was no evidence before the Tribunal to suggest that the appellant was still suffering from ill-health at the date of the adjourned hearing on 20 September 2006. 

28                        Section 424A of the Act does not oblige the Tribunal to bring to the notice of an applicant, information which the applicant has given in evidence to a previously constituted Tribunal.  That is information given by an applicant for the purpose of his or her application for review;  see SZJBE v Minister for Immigration and Citizenship [2007] FCA 190, at [17].  The complaint invoking s 425 of the Act must be rejected for lack of evidence as already explained in relation to the appellant’s contention that she was prevented by ill-health from effectively representing herself at the hearing before the Tribunal on 20 September 2006. 

29                        The applicant’s contention that the decision of the Tribunal was affected by apprehended bias was not pressed in her oral submissions before the Court today.  However, I consider that, for the reasons explained by the learned Federal Magistrate, there is no substance in that ground of appeal and it too must be rejected.  As each of the appellant’s attacks on the validity of the Tribunal’s decision or the correctness of the reasons of the Federal Magistrates Court has failed, the appeal must be dismissed with costs.

Associate:

Dated:         15 May 2008