FEDERAL COURT OF AUSTRALIA

SZHHF v Minister for Immigration and Citizenship [2008] FCA 1818

SZHHF v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1407 of 2008

MIDDLETON J

19 NOVEMBER 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the costs of the first respondent.

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

1                     This is an appeal against a judgment of a Federal Magistrate of 13 August 2008 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) of 22 April 2008.  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.

BACKGROUND

2                     The appellant is a citizen of the People’s Republic of China (‘China’) who arrived in Australia on 22 September 2000.  On 12 October 2000 the appellant applied for a protection visa with the Department of Immigration and Citizenship.  A delegate of the first respondent refused the application for a protection visa on 14 December 2000.  On 15 January 2001 the appellant applied to the Tribunal for a review of that decision.  The Tribunal affirmed the decision of the delegate on 11 April 2007.  

3                     The appellant sought review of that Tribunal’s decision in the Federal Magistrates Court and, on 29 January 2007, the Federal Magistrates Court, by consent, set aside the decision and remitted the matter to the Tribunal to be determined according to law.  The Tribunal, differently constituted, again affirmed the decision of the delegate on 10 May 2007.  The appellant sought review of that Tribunal’s decision in the Federal Magistrates Court and, on 22 November 2007, the Federal Magistrates Court by consent set aside the decision and remitted the matter to the Tribunal to be determined according to law.  Thereafter, the appellant attended a third hearing of the (differently constituted) Tribunal, the decision of which gives rise to this appeal.

4                     The appellant claimed to fear persecution in China due to his pro-democracy activities.  The appellant claimed that he came to oppose the Communist Party after listening to ‘Voice of America’ broadcasts from a young age.  He stated that he joined a pro-democracy movement in 1989, and was committed to a psychiatric hospital.  According to the appellant, the Chinese authorities became aware of his political opinion and he accordingly moved to Lesotho to work with his uncle in 1999.  After moving to Australia, he allegedly became involved in distributing copies of the Falun Gong pamphlet, ‘Nine Commentaries on the Chinese Communist Party’ to a Mr Zhang, a contact in China.

BEFORE THIS TRIBUNAL

5                     The Tribunal noted several concerns which it had with the appellant’s credibility and the evidence led before it, including:

(i)                   the inconclusive nature of the psychologist report from Ms Lei TzeLing dated 22 February 2008 which did not support the appellant’s claims that he had been unable to discuss details of his claims because of his poor memory arising was a result of his detention and mistreatment;

(ii)                   the appellant’s inability to recall details of his claims, finding that the memory loss the appellant claimed was feigned or was by reason of anxiety and not because of mistreatment whilst in detention;

(iii)                   the appellant’s inability to recall his claims regarding his involvement in the 1989 pro-democracy movement;

(iv)                   the appellant’s inability to provide details in relation to the claims relating to his involvement in a printing business in Australia, notwithstanding that the claims had been raised first in his written statement to the Tribunal;

(v)                   inconsistent evidence given by the appellant as to the circumstances surrounding his departure from China to Lesotho; and

(vi)                   inconsistent evidence regarding his employment.

6                     The Tribunal was not satisfied that the appellant was a witness of truth, and consequently did not accept that the appellant had been a member of a pro-democracy movement in China, had been involved in any conduct supporting such movements while in Australia, or had suffered past persecution in China.  Accordingly, the Tribunal did not accept that the appellant held a well-founded fear of persecution in China.

THE FEDERAL MAGISTRATES COURT

7                     Before the Federal Magistrate, the appellant primarily contended that the Tribunal took into account matters that were contained in the previous Tribunal decisions, did not accept the psychologist’s report, and failed to explore his actual and imputed political opinion arising out of his assistance and support to Mr Zhang.

8                     The Federal Magistrate, in considering the Tribunal’s decision in light of the claims made by the appellant, found that none of these criticisms amounted to jurisdictional error on behalf of the Tribunal. 

9                     His Honour found that a fair reading of the Tribunal’s decision did not indicate that it was in any way influenced by previous decisions of the Tribunal.  His Honour stated (at [12]):

Certainly the Tribunal referred to inconsistencies in the applicant's claims evidenced by those decisions but that is not the same thing as being unduly influenced or, what is more probably the applicant's claim, coming to the decision with a closed mind. That is a claim of bias which is not easily proved: Applicant A165 of 2003 v Minister for Immigration [2002] FCA 877 at [59].

10                  In relation to the psychologist’s report, his Honour cited  Subramaniam v Minister for Immigration and Multicultural Affairs [2001] FCA 891 (which followed the decision of North J in Algama v Minister for Immigration (2001) 194 ALR 638) and on appeal Subramaniam v Minister for Immigration and Multicultural Affairs [2002] FCAFC 255 in support of the principle that a Tribunal is not obliged to accept a psychological report.  Rather, the only obligation on the Tribunal is to consider the report, to take it into account, and to explain why it does not accept its conclusions.  His Honour referred to the Tribunal’s findings and reasons in which it stated:

It considers that the applicant has feigned a memory loss because he is unable to remember the details of his written claims and he is concerned that he will give inconsistent evidence. Alternatively, in view of Ms Ling's report, the Tribunal considers that if the applicant does have difficulty recalling his written claims, it is because of an anxiety about the outcome of his protection application, not for a Convention reason.

11                  Finally, his Honour found that as the Tribunal could not be satisfied that the appellant had assisted and supported Mr Zhang, there was no further necessity to explore the effect of any actual or imputed political opinion arising out of those actions.

THE PRESENT APPEAL

12                  In the notice of appeal filed on 8 September 2008, the appellant essentially contends that:

·                    the Refugee Review Tribunal was biased against the appellant and, as a result, did not make a fair decision on his application;

·                    the appellant sought to clarify his points at the Federal Magistrates Court hearing, but the Judge did not allow the appellant to provide further oral submissions.  The Judge refused the application at that hearing and that this was not fair; and

·                    his application was not considered reasonably by the Judge at the Federal Magistrates Court. 

13                  At the hearing of the appeal before me the appellant submitted that the Tribunal had not made a decision independently, and was unduly affected by earlier Tribunal decisions.  At the outset I reject that contention, as it appears from a reading of the Tribunal’s decision it considered afresh the appellant’s circumstances and claims.  In addition the appellant raised matters already considered by and determined on the merits by the Tribunal, including the issue of his memory loss.  Again these contentions must be rejected as they each involved a merits review, which is not the function of this Court.  Further, the appellant submitted the then Tribunal was biased, which was raised in a ground of appeal.

14                  I now turn to address each ground of appeal in turn.

Ground one: bias

15                  This ground was not raised (in terms) for consideration in the Federal Magistrates Court, although the Federal Magistrate considered the question to the extent that grounds two and three below may have alluded to an allegation of bias.

16                  It is to be recalled that an allegation of bias must ‘be distinctly made and clearly proved’: Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507, 531 at [69].  In this case the appellant has not only failed to particularise the manner in which he alleges the Tribunal was biased, there is simply no evidence before the Court to sustain such an assertion.

17                  In rare circumstances bias on the part of the Tribunal may be apparent merely from written reasons: SBBF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358 at [16] per Tamberlin, Mansfield and Jacobson JJ, citing with approval SCAA v Minister for Immigration and Multicultural Affairs [2002] FCA 668 at [38], per Von Doussa J (see also [36]-[37] of SCAA).  This is not one of those circumstances. 

18                  To the extent this ground alleges that the decision was not fair (the basis for which is presumably that the Tribunal did not find in favour of the appellant) then, as was acknowledged in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, 160 at [25], procedural fairness only requires a fair process.  I consider that the process undertaken by the Tribunal was fair.

Ground two: ex tempore decision

19                  I see no basis to conclude the Federal Magistrate did not accord natural justice to the appellant.  The appellant seems to be alleging there was some procedural unfairness, or even bias, demonstrated by the mere fact that the learned Federal Magistrate delivered an ex tempore judgment at the conclusion of the hearing in the court below. 

20                  In SZANH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1280 Sackville J considered this question (at [39]-[43]) finding the following at [39]:

The appellant’s principal complaint about the RRT’s consideration of his claims was that it had made a decision first and had tailored its reasons to fit the decision. This complaint, however, misunderstands the significance of an oral decision handed down at the conclusion of a hearing. As the Magistrate pointed out, it is commonplace for courts and tribunals to announce a decision or give ex tempore reasons immediately the hearing is completed. There are obvious reasons why such a course is desirable. Not the least is that it avoids the uncertainty and anxiety experienced by the parties pending the making of a decision. Sometimes ex tempore or oral decisions are necessary to enable the decision maker to cope with a very heavy workload. The making of such a decision is not of itself indicative of bias or of insufficient attention to the claims made by an applicant.

21                  In my view, ground two cannot be sustained.

Ground three: reasonableness

22                  There is no material to suggest the learned Federal Magistrate did not reasonably consider the application.  There is nothing to suggest that the conclusions of the learned Federal Magistrate were incorrect at law, let alone so unreasonable that no reasonable decision maker could have reached them.  This ground is not sustained.

CONCLUSION

23                  The appeal should be dismissed.

Associate:

Dated:         1 December 2008