FEDERAL COURT OF AUSTRALIA

SZMDJ v Minister for Immigration & Citizenship [2008] FCA 1837

SZMDJ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1541 of 2008

RYAN J

27 NOVEMBER 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.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                     This is an appeal from orders made by Smith FM on 8 September 2008, dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”).  The learned Federal Magistrate dismissed an application for judicial review of a decision of the Tribunal, which had been handed down on 18 March 2008.  The learned Federal Magistrate’s decision is reported under the name SZMDJ v Minister for Immigration & Anor (2008) FMCA 1298.  By its decision, the Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship (“the Minister”) to refuse to grant a protection (class XA) visa to the appellant. 

2                     The appellant is a citizen of the People’s Republic of China.  She arrived in Australia on 14 May 2006 with her son, who held a student visa.  On 14 July 2007, the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship.  On 4 October 2007, a delegate of the Minister refused the application, and on 2 November 2007, the appellant applied to the Tribunal for a review of that decision. 

3                     Before the Tribunal, the appellant claimed that in July 2004, a friend in her village, located in Fujian province, had introduced her to a doctor who was a devout Catholic and a member of the Roman Catholic Underground Church.  She claimed that shortly thereafter she began attending gatherings at the Underground Church, and was baptised at Easter 2005.  After this, she assisted her friend to organise a secret group gathering in her village, which grew to 20 members.  After coming to Australia, the appellant claimed, she had actively participated in religious activities at two Catholic churches in Flemington and Lidcombe, and had started a bible study group.  She also claimed that she had kept in contact with her friend and the doctor in her home village, and had sent religious material, as well as a large sum of money to help build a church there. 

4                     In May 2007, the Underground Church in the appellant’s village was discovered by the Public Security Bureau.  On her account, the appellant was informed that the doctor had been arrested, the appellant’s home had been searched, and her husband had been interrogated.  She also claimed that she had been identified as a participant in illegal religious activities, and had consequently developed a well-founded fear that, if she were to return to China, she would be persecuted by reason of her Christian faith, and her active involvement in the Roman Catholic Church.

5                     The Tribunal noted in its reasons that in Fujian province, where the appellant had lived, there was a relatively tolerant attitude towards Christianity, which was practised widely.  However, it found it unnecessary to pursue this issue further because, although the appellant had claimed to have attended church regularly, the Tribunal did not accept that she was either a Catholic, or a Christian.  That was because of what the Tribunal regarded as her significant lack of awareness of Catholic doctrine and practices.  Accordingly, the Tribunal did not accept that she had attended Catholic church services in either China or Australia.  The Tribunal also found that the appellant’s claim to have helped, from Australia, in setting up a church in China lacked detail and was implausible.  The Tribunal, therefore, found that the appellant was not a credible witness and rejected all of her claims in relation to her application for a protection visa. 

The decision of the Federal Magistrates Court

6                     On 14 April 2008, the appellant applied to the Federal Magistrates Court for a review of the Tribunal’s decision.  Before Smith FM, the appellant claimed that the Tribunal had failed to consider the following important evidence;

‘Firstly, I was really under huge pressure; secondly, I am from the countryside of Fujian where I had to speak particular dialect not only in my daily but also in my religious practices;  and thirdly, the interpreter at the Tribunal’s hearing, was unable to interpret some of the religious questions accurately and clearly.’

7                     The appellant also claimed that the Tribunal had failed to comply with its obligations under s 424AA of the Migration Act 1958 (Cth) (“the Act”).  The learned Federal Magistrate found that there was no evidence that the Tribunal had “inaccurately or inadequately” summarised matters arising at the hearing, or that it had failed to give adequate consideration to the appellant’s claims.  His Honour noted that the Tribunal, in assessing the plausibility of the appellant’s claims, had specifically taken into account the fact that she came from a small village and was largely illiterate.  Furthermore, in relation to the quality of the interpreting services at the Tribunal’s hearing, the Federal Magistrate found that there was no evidence that there had been any defect at all.  Nor had the appellant given any particulars of deficient interpreting. 

8                     In relation to the appellant’s claims to have suffered headaches at the Tribunal hearing, his Honour noted that that the Tribunal had stated in its findings and reasons (at [17]);

‘During the hearing, the applicant indicated that:  she had real concerns about the people in China after the events she described and that was why she had headaches;  she had a headache at the hearing;  and she has nightmares.  The Tribunal discussed her headaches:  she explained she had medication the morning of the hearing and that was why she could not remember the Pope.  She also alluded to her headache and medication leading to other lapses of memory.  However, after further questions she indicated she had taken only 2 Panadol the morning of the hearing.  The Tribunal indicated there was no evidence before the Tribunal that two panadol would have affected her ability to understand questions.  She merely stated it can help with a headache.  There is no other evidence before the Tribunal that the applicant has a medical condition or that this condition would hinder her in providing evidence.  The Tribunal does not accept that the problems with the applicant’s evidence were attributable to a headache or medical condition.’

9                     His Honour found that there was no evidence before the Court which raised any real doubt whether the applicant had suffered from an inability to take advantage of the opportunity required by s 425 of the Act, such as had been found in Minister for Immigration and Multicultural Affairs v SCAR (2003) 128 FCR 553 and subsequent cases.   In relation to the alleged breach of s 424AA of the Act, his Honour found that the exclusions in s 424A(3) also applied to exclude any jurisdictional requirement to observe s 424AA as an alternative to the procedure under s 424A(1).  His Honour was therefore unable to identify any information coming within s 424A(1) which should have been put to the applicant in writing under that section or orally under s 424AA. 

10                  In any event, his Honour found, in the absence of a transcript of the hearing, that there was no evidence that the Tribunal had not fulfilled the requirements of s 424AA(1)(a) and (b).  Accordingly, the learned Federal Magistrate concluded that the Tribunal’s decision was free from jurisdictional error and dismissed the application for review. 

The appellant’s submissions

11                  On 29 December 2008, the appellant filed, in this Court, a notice of appeal, in which she claimed;

‘1.        The federal magistrate erred in law.

2.         The federal magistrate was wrong in finding that the Refugee Review Tribunal (“the Tribunal”) acted properly in its findings.

Particulars

1.         The Tribunal erred by making a finding based on INCORRECT information, which has NOT been given by me but MISSTATED by the Tribunal itself. 

2.         The Tribunal erred by failing to comply with its obligations under s.424AA of the Act. 

3.         The Tribunal erred by failing to comply with its obligations under s.424A(1) of the Act. 

4.         The Tribunal erred by failing to comply with its obligations under s.425 of the Act.

5.         The Tribunal failed to consider my claims properly and fairly; 

6.         Tribunal made its findings, actually based on unwarranted assumption;  the Tribunal ignored or failed to consider a claim I made to it;  the Tribunal ignored other relevant materials which was before it;  and the Tribunal misunderstood my claim or made a mistake in relation to an important finding of fact.’

12                  On 30 September 2008, Registrar Morgan gave a direction, amongst others, that the appellant file and serve written submissions no later than five clear working days before the hearing date of the appeal.  However, this direction has not been complied with because, the appellant said, she did not receive notification of the Registrar’s directions.  Nevertheless, in a submission prepared in Mandarin, which was translated to the Court today by an accredited interpreter, Mr J X Chin, the appellant referred to s 424AA of the Act, which she contended, required the Tribunal to indicate, in a clear way, verbally to the applicant the information which the Tribunal considered would be the reason or a part of the reason for affirming the decision under review. 

13                  It was further said that the same section required the Tribunal to ensure that the appellant understood why the information was relevant to the review and the consequences of the information being relied on in affirming the decision that was under review.  It was also said that the appellant should have been given an opportunity to comment on or respond to the information and should have been advised that she might have sought additional time to comment on or respond to the information.  It was said that the Tribunal had failed to comply with the requirements of that section. 

The submissions on behalf of the Minister

14                  In response to the first particular in the notice of appeal, Ms Hanstein, who appeared for the Minister, submitted that this ground of review had not been raised before Smith FM and, in any event, insufficient detail had been provided to support it.  With respect to the second and third particulars, it was submitted that the appellant had identified no error in the Federal Magistrate’s finding at [23] of the reasons below, that there was no information given to, or finding made by the Tribunal, coming within s 424A(1) of the Act, which was required to be put to the appellant pursuant to s 424AA. 

15                  Fourthly, the Minister submitted that the appellant had failed to identify any error in his Honour’s findings that there was no evidence of any supposed defect in the interpreting services provided to the appellant at the Tribunal hearing and had failed to explain how the Tribunal may have been in breach of its obligations under s 425.  In relation to the fifth particular, the Minister contended that;

‘the procedures adopted by the Tribunal as set out in its Decision speak to the contrary.’

The sixth particular in the notice of appeal was not addressed in the Minister’s written submissions. 

16                  In the light of those contentions, the Minister submitted that the Federal Magistrate had been correct in holding that the Tribunal’s decision was not infected by jurisdictional error and the appeal should be dismissed with costs.  The argument in reliance on s 424AA which was advanced this morning in support of the appeal was dealt with by the learned Federal Magistrate in his reasons, at [21] and [22] where his Honour said;

‘21.      The second ground of the application contends that the Tribunal failed to comply with obligations under s.424AA.  As counsel for the Minister points out, a recent decision of Cowdroy J in SZLXI v Minister for Immigration & Citizenship [2008] FCA 1270 exercising the appellate jurisdiction of the Federal Court has held, in paragraphs [23]-[27], in effect, that s.424AA is not a self-standing procedural provision, such that any non-compliance gives rise to jurisdictional error vitiating a decision of the Tribunal.  His Honour appears to have concluded from legislative history that the intended consequence of any non-compliance with s.424AA is only that s.424A(2A) will not apply to excuse a procedure under s.424A(1), whether the non-compliance arises from a discretionary decision not to follow the s.424AA procedure or from defects occurring in the procedure when purportedly followed.  On this construction, the s.424AA procedure operates only as an embellishment or qualification to obligations under s.424A(1).  Counsel for the Minister noted that this construction has been applied in several cases in this Court, and I consider that I should do likewise. 

22.       The construction has the consequence that, even if there were any failure to follow procedures described in 424AA, it would also be necessary to establish that the Tribunal’s decision relied upon some piece of information which would have been required to be put to an applicant under s.424A(1) for written comment.   It also means that the exclusions of s.424A(3) therefore also apply as exclusions to any jurisdictional requirement to observe s.424AA as an alternative to the procedure under s.424A(1).’

Resolution of the appeal

17                  I have carefully reviewed for myself the reasons given by the Tribunal for rejecting the appellant’s application for a protection visa.  Although the basis of her claim to have a well-founded fear of persecution was similar to that considered by a Full Court of this Court in NADH v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 214 ALR 264, there is nothing in the Tribunal’s reasons to suggest that the rejection of the appellant’s claim to be a practising Catholic was perverse.  It should have been apparent to the appellant that the Tribunal was sceptical about her claims and required to be persuaded that they were credible.

18                  The Tribunal had regard to a considerable volume of country information about official government attitudes to Christians, and specifically Catholics, in different parts of China.  However, that was not information specifically about the appellant herself.  It was information which was just about the class of persons, namely Christians or Catholics in China, of which the appellant was a member.  It therefore came within the exemption erected by s 424A(3)(a) of the Act. 

19                  The Tribunal devoted considerable time and space in its reasons to a detailed consideration of the appellant’s claims.  I am not persuaded that there was any lack of fairness or any impropriety in that consideration.  Nor has the appellant, either before the learned Federal Magistrate or on appeal, demonstrated that the hearing before the Tribunal was vitiated by deficiencies in the translation of questions addressed to, or statements made by, the appellant.  On a reading of the reasons of the Tribunal, in accordance with the directions of the High Court in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, the Tribunal did not rely on information either as the reason or part of the reason for refusing the appellant a protection visa, which was not put to the applicant or, in my opinion, would not readily have been understood by her to be critical to the resolution of her application.

20                  In essence, the Tribunal rejected the appellant’s application because it did not accept as credible her testimony in relation to the basis of her asserted well-founded fear of prosecution.  There is no obligation to be found, in either s  424A or s 424AA, to expose to an applicant what would be the reasoning or part of the reasoning which would lead to the Tribunal to accept or reject particular information, including information advanced by an applicant himself or herself.  Accordingly, I can discern no error in the approach taken by the learned Federal Magistrate or, indeed, in the approach of the Tribunal.  It follows that the appeal must be dismissed with costs.

Associate:

Dated:         3 December 2008