FEDERAL COURT OF AUSTRALIA

SZLTI v Minister for Immigration and Citizenship [2008] FCA 1274

SZLTI v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 964 OF 2008

GILMOUR J

19 AUGUST 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.         The appellant pay the first respondents costs fixed at $2,100.

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 against a judgment of a Federal Magistrate of 6 June 2008 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 13 November 2007.  The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant a protection visa to the appellant.

PROCEDURAL HISTORY

2                     The appellant is a citizen of China who arrived in Australia on 1 March 2007. On 13 April 2007 the appellant lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs.  A delegate of the first respondent refused the application for a protection visa on 9 July 2007. On 10 August 2007 the appellant applied to the Tribunal for a review of that decision. 

3                     Before the Tribunal the appellant claimed that he feared being arrested immediately upon his return to China for his breach of the Birth Control policies, and his incitement of co-workers against the government.   

4                     The appellant claimed that in November 2002, after his second child was born, his wife was forced to have a sterilization operation.  The appellant stated that the operation was unsuccessful and resulted in the birth of a third child.  He alleged that once the authorities discovered the violation of the Birth Control policy, the appellant’s family was denounced to have violated the policy and his wife was forced to undergo a second sterilization operation.  The appellant says that he was fined 50,000 Yuan though he was only able to pay 16,000 Yuan and was forced to work in a furniture factory as a carpenter as punishment.  

5                     The appellant complains that the work conditions at the factory were very low and had allegedly persuaded some of his work colleagues to unite together in order to defend their basic human rights.  The appellant recounts that in November 2006 a friend helped draft an open letter making various demands upon the authorities to respect and protect basic human rights.  The appellant claims that because of that letter, officials from the government and plain clothed policemen went to the factory and asked for two representatives to negotiate with them.  He says that he was selected and he was taken to the Public Security Board where he was physically and mentally tortured and forced to do punitive unpaid jobs at a construction site under surveillance and that he was not allowed to return to his home.  He claims that his family bribed a security guard at the construction site to enable him to escape and also arranged for a visa for him to come to Australia.  He claimed that his family in China have continued to be targeted by police since he left China.

THE TRIBUNAL DECISION

6                     The Tribunal did not accept the appellant as a credible witness, and rejected all his key claims of past harm in China and his fear of persecution if he returned there.  The Tribunal found that there were a number of inconsistencies and contradictions in the statements made by the appellant, both written and orally, to the Department and the Tribunal that indicated that the appellant had not suffered the harm he claimed to have suffered.  

7                     The Tribunal concluded that in its view there was no plausible evidence before it that the appellant has suffered persecution in China for a Convention reason.  Nor in the Tribunal’s view did the evidence establish that there was a real chance that the appellant would suffer persecution for a Convention reason either now or in the reasonably foreseeable future if he returned to his country.

PROCEEDINGS IN THE FEDERAL MAGISTRATES COURT

8                     Before the Federal Magistrate the appellant claimed:

1.         The Refugee Review Tribunal (the Tribunal)’s decision has included a reasonable apprehension of bias.

            Particulars     

                  ∙     The Tribunal made its finding in relation to my credibility mainly on the ground that there are some of inconsistencies or contradictions in my written materials to the Department and oral evidences at the hearing before the Tribunal.

                  ∙     The Tribunal, however, has significantly ignored my important as follows:

As I have claimed at the Tribunal’s hearing, I was not in a good health condition at that time; and I suffered from seriously stomach ache. So, I had some confusion; and especially, during the late part of the hearing, I almost lost control in my mind and even did not know what I had said to the Tribunal…

I also have to emphasize that I am a truthful witness and I have told the truth in that information provided to the Department and the Tribunal. I might have some confusion or my evidences might have some inconsistencies at the Tribunal’s hearing; but they were really because of my poor health conditions as well as my huge mental and psychological pressure.

                  ∙     On the surface, the Tribunal might have read my further evidences provided in my response of s.424’s letter given by the Tribunal. The Tribunal, however, failed to demonstrate that it has a genuine attempt to consider my further evidences as follows:

The birthday of my second child might be wrongly typed in the application. It is “7 November 2002” instead of “7 November 1997”.

At that hearing, I might not quite understand the questions put by the Tribunal. Actually, my wife has been forced to accept sterilization operation respectively for twice: one was happened in November 2002 after my second child has been born; and the other one was in early July 2005 when my son had been reported in late June 2005.

At the hearing, I might have some confusion with the year owing to huge mental or psychological pressure. It should be “in August 2005”, instead of “in August 2004”, when I registered my son. It should be “in July 2005”, instead of “in July 2004”, when I stopped hiding after I had been reported in June 2005.

Similarly, at the hearing, I might have some confusion about the year when I had paid RMB 16,000 to the Birth Control Office. It should be in July “2005” instead of “2004”. I also had some confusion in relation to the date for other events at the hearing; because I was really under huge pressure.

My wife and son actually stopped hiding early in July 2005. Our son was sent to the hospital in late June 2005; but the hospital did not report my son at the beginning; instead, it reported my son early in July 2005.

It was true that my wife and son were detained for 3 days; and I was detained for 2 days. The reason why I did not mentioned in my statutory declaration was because that the detention was not the formal one like being detailed by the Public Security Bureau (“PSB”); instead, it was just informal detention. As a matter of fact, everyone, who has been regarded to violate against “Birth Control Policy”, must be subjected to detention. So, it is quite common practice in China.

I, therefore, have to emphasize that I have three children; my wife had to undergo forced sterilisation operation for twice; my wife, my son and I were subjected to detention; and we were fined by the Birth Control Office and paid a first instalment.

What I have to clarify that:

                        ∙           The Birth Control Office took my RMB 16,000 and sent me to work at a furniture factory in July 2005;

                        ∙           My problems at the furniture factory began in November 2006 when Mr Zeng and I were taken to the PSB and we were denounced to incite the workers against the government. On 1 December 2006, both of us were transferred to a construction site in Putian of Fujian Province.

                        ∙           Both Mr Zeng and I were physically and mentally tortured when were interrogated by the police.

                        ∙           Gaoqi Airport was in Xiamen City. So, I went to Xiamen for three days before I left China; and on 28 February 2007, I left China from Gaoqi Airport. 

I also have to emphasize that I am a truthful witness and I have told the truth in the information provided to the Department and the Tribunal. I might have some confusion or my evidences might have inconsistencies at the Tribunal’s hearing; but they were really because of my poor health conditions as well as my huge mental and psychological pressure.

I am the person owed protection obligations by Australia, because I must be subjected to persecution on my return due to my political opinions and actions against the PRC authorities.

            2.         The Tribunal failed to comply with its obligations under s.425 of the Act.

                        Particulars

                  ∙     It is owing to my poor health situation at the hearing before the Tribunal that I was unable to have a genuine opportunity, which should be entitled under s 425 of the Act, to give my oral evidences in support of my application or to present my argument against the issues arising in the relation to the review.

9                     The Federal Magistrate, considered the Tribunal’s decision in light of the claims made by the appellant and found no evidence to support an allegation of apprehended bias.  The Federal Magistrate stated that the Tribunal took into account all of the appellant’s claims and evidence, as well as the fact that he claimed to be unwell at the hearing.  The Tribunal gave detailed reasons and invited the appellant to comment on inconsistencies in his evidence.  The appellant provided a statutory declaration in response to the Tribunal’s s 424A letter.  In it he clarified a number of matters which he said, in effect, had been the subject of confused evidence by him at the hearing because of his stomach complaint.  The Federal Magistrate was satisfied that the Tribunal took these matters into account and that its findings of fact were open to it on the material before it.  The Tribunal, as the Federal Magistrate noted concluded that the appellant was not a witness of truth.  The Court concluded that the Tribunal did bring an impartial mind in regard to the appellant’s claims concerning his physical and mental state at the hearing.  

10                  The Federal Magistrate stated that mere assertions by the appellant at the hearing and in his s 424A response regarding his state of health did not establish that he was unfit to give evidence at the Tribunal hearing.  There was no evidence that the appellant was not provided with a ‘real and meaningful’ opportunity to present arguments and evidence at the hearing.  The Tribunal identified to the appellant the determinative issues and gave him an opportunity at the hearing to give evidence and make submissions on these issues.  The Federal Magistrate therefore concluded that the Tribunal had not breached its obligations under s 425 of the Act.

THE PRESENT APPEAL

11                  The notice of appeal raised the following grounds:

1.         The learned Federal Magistrates erred in not finding that the Refugee Review Tribunal (the Tribunal)’s decision has included a reasonable apprehension of bias; and

2.         The learned Federal Magistrates erred in not finding that the Tribunal failed to comply with its obligation under s 424A(1) of the Act; and

3.         The learned Federal Magistrates erred in not finding that the Tribunal failed to comply with its obligation under s 425 of the Act.

4.         My application for judicial review has not been considered by the learned Federal Magistrates properly and fairly.

12                  At the hearing of the appeal before me the appellant submitted primarily that his ill-health at the Tribunal hearing had precluded him from giving considered evidence and had led to misunderstandings.  This he said led to a breach of s 424A of the Act because he was not given a fair chance.  He said that the Federal Magistrate did not give consideration to a breach of s 425 of the Act in that he did not get a fair chance because of his ill-health to give proper evidence at the hearing. 

REASONS

Ground 1

13                  This ground of appeal was considered in the Court below.  The test for an allegation of apprehended bias is whether the relevant circumstances are such that a fair-minded and informed person might reasonably apprehend that the decision maker might not bring or have brought an impartial mind to bear on the decision: NADH v Minister for Immigration & Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [14].  

14                  In the present case, the Tribunal’s findings were based on a number of significant inconsistencies in the appellant’s written and oral testimony.  These included substantial errors as to dates, the number of pregnancies experienced by the appellant’s wife, and whether or not the appellant had been detained or gone into hiding.  The Tribunal was aware of the appellant’s claim that he was suffering from a stomach ache and granted the appellant a short break during the hearing.  The Tribunal, however, did not accept that this in itself could explain the range of apparent discrepancies.  The Tribunal’s findings in relation to credibility, including its findings in relation to the appellant’s alleged illness, were a matter for the Tribunal; Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham [2000] 168 ALR 407 at [67].

15                  The Federal Magistrate correctly observed at [22] that any allegation of bias must be distinctly made and clearly proved: SZHPD v Minister for Immigration and Citizenship (2007) FCA 157 citing Minister for Immigration and Multicultural Affairs v Jia Le Geng (2001) 205 CLR 507 at 531 [69].  That has not occurred here.  This ground fails.   

Ground 2

16                  The Tribunal sent the appellant an invitation to comment on information in writing on 21 September 2007.  The letter highlights inconsistent statements and contradictory statements and evidence given by the appellant all of which would not be considered “information”; SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18] however the Tribunal was not in error in sending the letter.   

17                  The appellant’s response to that letter was considered.  Indeed it took the form of a statutory declaration.  It referred at para [12] to the appellant’s claim to have been ill during the Tribunal hearing and set out matters which he considered required to be clarified as a result of confusion in his evidence at the hearing caused by his ill-health.  As the Federal Magistrate correctly observed at [26] the Tribunal carefully considered each of the matters raised in the statutory declaration in reaching is conclusion.  The application had been rejected primarily because the Tribunal had found that the appellant was not a credible witness.  This ground fails. 

Ground 3

18                  The Federal Magistrate correctly noted [37] that the onus is on an appellant to provide evidence that he or she is unfit to give evidence at a Tribunal hearing: NAMJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 140.  The appellant had not provided any evidence beyond his own assertion to the Tribunal of his claim that he was unfit to give evidence.  The Federal Magistrate also, correctly in my view, held that the assertion by the appellant as to the state of his health did not of itself establish that he was unfit to give evidence: Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553.  Accordingly the Federal Magistrate was correct to conclude that the Tribunal has complied with its statutory obligations under s 425.

Ground 4

19                  This final ground of appeal alleges that the Federal Magistrate failed to consider the application for review “properly and fairly”.  To the extent this ground claims bias by the Federal Magistrate, then what I have said already has application.  It is a serious but unparticularised allegation, and I reject it.  

20                  The appeal should be dismissed and the appellant should pay the first respondent’s costs.    

Associate:

Dated:         19 August 2008