FEDERAL COURT OF AUSTRALIA

SZLIR v Minister for Immigration & Citizenship [2008] FCA 1666

SZLIR and SZLIS v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1098 of 2008

EDMONDS J

12 NOVEMBER 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellants pay the first respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

Introduction

1                     The appellants appeal from the judgment of Federal Magistrate Barnes that was delivered on 26 June 2008: see SZLIR & Anor v Minister for Immigration & Anor [2008] FMCA 857.

Background

2                     On 21 January 2007, the first appellant (now 48 years of age) and her (now 19 year old) daughter arrived in Australia from China.

3                     On 30 January 2007, they lodged an application for refugee status with the (then) Department of Immigration and Multicultural and Indigenous Affairs (‘the Department’) pursuant to the Migration Act 1958 (Cth) (‘the Act’), together with a separate statement outlining the first appellant’s claims.

4                     The second appellant makes no separate claims, instead relying upon her membership of the first appellant’s family group.  Accordingly, for the purposes of these reasons, the first appellant will be referred to singularly, as the appellant.

5                     On 11 April 2007, a delegate of the first respondent (‘the Minister’) refused the grant of a protection visa.  On 11 May 2007, the appellant applied to the Refugee Review Tribunal (‘the Tribunal’).

6                     On 21 May 2007, the Tribunal invited the appellant to attend a hearing of the Tribunal and informed the appellant by letter that it was not able to make a favourable decision based solely on the information before it, which the appellant accepted.

7                     On 13 July 2007, both appellants attended a hearing of the Tribunal at which they gave oral evidence and also provided further documents.  On 20 July 2007, the Tribunal wrote to the appellants pursuant to s 424A of the Act inviting them to comment on information.

8                     On 3 August 2007 the first appellant replied, via her migration agent, submitting a Statutory Declaration to the Tribunal.

9                     On 23 August 2007, the Tribunal handed down a decision made on 13 August 2007.   That decision affirmed the decision of the delegate not to grant the protection visa.

The Tribunal’s decision

10                  The Tribunal:

(a)                Found, overall, that the appellants did not have a well-founded fear of persecution.

(b)               Had concerns about the credibility of both appellants and observed that it had conducted a relatively lengthy hearing during which it had the opportunity to hear from both appellants.  The Tribunal found the appellant’s oral evidence to be ‘inconsistent with some of her written claims’ and at times ‘vague and confused’.

(c)                Considered the appellant’s explanation about the name of the person who introduced her to the Shouters faith and the name of the aunt (namely, that the appellant was confused and nervous at the hearing), but found that explanation to be unconvincing.

(d)               Had regard to the fact that the appellant had only claimed to have been questioned every four or five days after her release from detention on 30 November 2006, for the first time at the Tribunal hearing.  In considering the appellant’s explanation (that she had not provided all the details in support of her protection visa application), the Tribunal found the explanation unconvincing.

(e)                Found the appellant’s explanation at the hearing for failing to have any Shouter materials to produce, to be unpersuasive.  The appellant claimed to have come to Australia in such a hurry that she had not had an opportunity to bring any material with her.  The Tribunal found the absence of such material raised doubts about the appellant’s claims and her general credibility.

(f)                 Referred to independent country information regarding the appellant’s claim to have travelled on her own passport and was of the view that the fact the appellant was able to depart China without difficulty suggested that she had not been of adverse interest to the Chinese authorities, raising serious doubts about her claims and credibility generally.

(g)                Addressed the second appellant’s oral evidence about her mother being a Shouter and, having considered the second appellant’s explanations for the shortcomings in her evidence, was not satisfied that she had suffered from any (psychological) condition which it needed to take into account in assessing the appellant’s claims.

(h)                Found that the fact there was no mention throughout the primary stage of the daughter’s ‘new’ claimat hearing to have become a Shouter in Australia, raised doubts about the veracity of such a claimand also the genuineness of the second appellant’s alleged religious activities in Australia.  The Tribunal found this suggested that the second appellant had not engaged in the Shouter activities in Australia, otherwise than for the purpose of strengthening her claim to be a refugee.

(i)                  Found, based on the evidence as a whole, that the appellant had ‘fabricated her claims of being a Shouter in China (and any consequential harm) in order to support her refugee claims’.

(j)                 Was not satisfied that the appellant had ever practised the Shouter faith or been involved in activities relating to the Local Church in China.

(k)               Was not satisfied that the appellant had engaged in any religious activities in Australia otherwise than for the purpose of strengthening her claim to be a refugee and therefore disregarded the conduct pursuant to s 91R(3) of the Act.

(l)                  Addressed the appellant’s domestic violence claims and, whilst accepting as plausible that the appellant had been married to a violent spouse and had suffered injuries as a result of domestic violence, was not satisfied that any serious harm she had suffered was essentially and significantly related to a Convention ground, including but not limited to membership of a particular social group.

(m)              Was not satisfied that the appellant was forced to leave China or to sell her house for religious reasons or for any other Convention reason.

(n)                Found there was no Convention-related reason why the appellants could not return to China and did not accept there was a real chance of Convention-related harm occurring to the appellants in the reasonably foreseeable future.

Application to the Federal Magistrates Court

11                  By an Amended Application filed in the Federal Magistrates Court on 4 December 2007, the appellant raised two grounds of review that can be summarised as:

(1)               An allegation of bias: see SZLIR at [47]; and

(2)               an allegation that the Tribunal erred by failing to consider an integer of the appellant’s claims: see SZLIR at [80].

12                  The learned Federal Magistrate gave substantial consideration to these grounds.

13                  In respect of ground 1, the learned Federal Magistrate:

(a)                Considered the general principles surrounding establishment of actual bias: see SZLIR at [48] – [50] and apprehended bias: see SZLIR at [53] – [55].

(b)               Noted that to the extent the appellant took issue with the Tribunal’s conduct of the hearing, the only evidence before the Court was the Tribunal’s record of decision and the appellant had not sought to provide any further evidence to the Court of the conduct of the hearing: see SZLIR at [51].

(c)                Found the evidence before the Court did not establish that the Tribunal’s hearing process had been conducted in a manner that did not allow the appellant the opportunity to persuade the Tribunal her claims were true (especially given the Tribunal had put matters to the appellant for comment pursuant to section 424A of the Act, post-hearing): see SZLIR at [52].

(d)               Found that, whilst a differently constituted Tribunal may have reached different factual findings, that did not establish that a fair-minded lay observer would reasonably apprehend that the Tribunal’s conclusions were reached with a mind not open to persuasion: see SZLIR at [56] –[58].

(e)                Considered the first particular to ground 1 that complained of the manner in which the Tribunal’s hearing had been conducted (alleging variously that the Tribunal had interrupted the appellant at the hearing and had questioned her in a robust fashion).  However, her Honour found that there was nothing arising from the Tribunal’s record of decision to bear out the allegation.

(f)                 Considered the second particular to ground 1 that complained of the Tribunal’s use of particular information to which the Tribunal had regard in its assessment of the appellant’s knowledge of Shouter Christianity: see SZLIR at [63]. The learned Federal Magistrate found that the Tribunal was entitled to have regard to third party information in assessing the appellant’s claims and that there was evidence before the Tribunal upon which it could form a view as to the appellant’s knowledge.  Further, her Honour found that the decision was not manifestly unreasonable (citing Minister for Immigration & Citizenship v Le (2007) 97 ALD 112 at [60] – [63] per Kenny J: see SZLIR at [65].

(g)                The third particular complained that the Tribunal had drawn adverse conclusions regarding the appellant’s failure to provide corroborating documents to the delegate, more specifically, that the Tribunal had not accepted the appellant’s explanation for the failure: see SZLIR at [66].  Her Honour found that the Tribunal had considered the explanation, and found that the evidence before the Court did not give rise to an inference that the Tribunal’s reasoning was so irrational or illogical that it constituted only a purported exercise of the Tribunal’s powers under the Act: see SZLIR at [63] – [71].

(h)                The learned Federal Magistrate found that the Tribunal clearly considered whether the appellant had a well-founded fear, and whether there was a genuine risk, of persecution on her return to China: see SZLIR at [72].

(i)                  In relation to the final particular to this ground the learned Federal Magistrate found that, contrary to the appellant’s assertion, the Tribunal had considered whether the appellant’s claim to fear harm by reason of her occupation and her past involvement in carrying out the one-child policy may result in herfacing harm and concluded, based on evidence, that she did not: see SZLIR at [73].

14                  As to the second ground, which alleged constructive failure, the appellant alleged that the Tribunal had failed to consider the matters referred to in the preceding sub-paragraph.  In that regard her Honour reached the same conclusion: see SZLIR at [81], [82].  The second particular to ground 2 related to whether the Tribunal failed to consider the availability of effective State protection in accordance with the Convention requirements.  Her Honour concluded that there was no material before the Court to demonstrate that the appellant had raised a claim that authorities had condoned, were unable to provide protection against, or had failed to investigate domestic violence: see SZLIR at [87].  Her Honour noted that by contrast, the Tribunal had considered the interest of the appellant’s claims insofar as they arose on the material: see SZLIR at [88].

Appeal to this Court

15                  By a Notice of Appeal filed in this Court on 16 July 2008, the appellants appeal from the whole judgment of Federal Magistrate Barnes and raise three grounds of appeal:

(1)               The Federal Magistrate erred in finding that the Tribunal had made its decision properly and fairly;

(2)               There is no doubt that the Tribunal erred in law in circumstances where it misunderstood the true nature of the review task and proceeded to consider the case from a pre-conceived opinion and a fixed position so adverse to the appellants that they could not obtain a fair hearing.

(3)               There is also no doubt that the Tribunal committed a jurisdictional error of law by failing to consider an integer of the appellant’s claims.

16                  On the hearing of the appeal, the appellant repeatedly alleged that the Tribunal had displayed unfairness towards her in reviewing her application and had adopted a pre-conceived position adverse to her interests as to amount to bias.  While the appellant referred to various aspects of her application which she claimed were infected by these alleged errors, these references did not go beyond the Tribunal’s reasons for decision.

17                  In the circumstances, the Court is limited to the grounds of appeal which, as indicated below, have their own difficulties.

Ground 1

18                  The first ground is essentially a complaint that the learned Federal Magistrate failed to find in the appellant’s favour.  To the extent that it is not particularised, the Minister assumes that the second and third grounds of appeal allege the jurisdictional errors that are said to have arisen from the learned Federal Magistrates decision, such that her finding that the Tribunal’s decision was proper and fair, is affected accordingly.  Having heard the appellant’s oral submissions, I think that assumption must be right.

Grounds 2 and 3

19                  Both grounds essentially repeat the grounds which were advanced in the court below, albeit now not particularised.

20                  In the absence of particulars, it is difficult to address precisely what error is alleged on the part of the learned Federal Magistrate. Moreover, her Honour addressed every particular of the grounds (in the manner they were articulated in the court below) at considerable length.  The overarching finding to be drawn from the learned Federal Magistrates’ reasons was that, whilst a different Tribunal could equally have come to different conclusions, that was not sufficient to give rise to a jurisdictional error in circumstances where:

(a)                The Tribunal’s decision was based on the material before it; and

(b)               there was no evidence before the Court to support the allegations made that were not readily discernible from the Tribunal’s reasons for decision.

21                  The Minister submitted that those findings are incontrovertible observations. Moreover, the Minister submitted that the principles discussed and applied by her Honour were uncontroversial to the point of being trite law.  I agree.

22                  The appellants were unable to point to any other aspect of the learned Federal Magistrate’s judgment that demonstrates a mis-application of the law.  The Minister submitted that the decision of the Court was a thorough consideration of the appellant’s many allegations and is free from jurisdictional error.  I agree.

Conclusion

23                  In the circumstances, the appeal must be dismissed with costs.

Associate:

Dated:         12 November 2008