FEDERAL COURT OF AUSTRALIA

SZOCL v Minister for Immigration and Citizenship [2010] FCA 1254

THE COURT ORDERS THAT:

1    The appeal be dismissed

2    The appellant 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 Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1    This is a refugee matter. The appellant seeks to have set aside a decision by the Refugee Review Tribunal not to grant her a protection visa. An application by her for such an order was dismissed by the Federal Magistrates Court (SZOCL v Minister for Immigration [2010] FMCA 430) and it is from that adverse outcome that she now appeals to this Court.

2    The appellant is a 42 year old woman from Fujian province located on the coast of the People’s Republic of China. In substance, she claims to have operated a piggery in Fuqing City since about 2000 and to have invested in its development and operation considerable time and effort. In 2006 she says the local Council notified her and her husband of its intention to demolish the piggery on environmental pollution grounds as part of the “Farming Animal Reform Plan”. The piggery was then demolished whereupon she, and other persons in a similar situation, petitioned the authorities. That exercise, however, only resulted in her arrest on public order offences and she was, so she said, locked up for two days and beaten. Subsequently, by her account, she spent a week in a detention camp and was told that if she did not behave on her discharge she would be sent to gaol. As a result of these traumas she says she is afraid of being arrested by the police again. She also complains about the amount of compensation received as a result of the demolition of the piggery.

3    The departmental official who initially determined her visa application was prepared to accept that she may have been perceived by the authorities as expressing a political opinion by participating in a public demonstration so that in detaining her the authorities were not merely prosecuting her for committing a public disorder offence but persecuting her as well for that political opinion. Consequently, he found that the treatment she claimed had been afforded to her “amounts to persecution, as distinct from prosecution”. Despite that conclusion, the departmental official concluded that the prospects of the appellant receiving adverse attention from the authorities on her return were remote. This was because she had no political profile apart from the incident involving the piggery, because she remained in China for another year after that incident occurred apparently without any further problems and because she left China on a validly issued Chinese passport. This last fact was of significance because information available to the departmental official indicated that persons who were regarded adversely by the authorities would not ordinarily be permitted to leave. In those circumstances, the departmental official concluded that there was no real chance of the appellant suffering persecution and that any fear she had in that regard was accordingly not well-founded.

4    The appellant sought, and obtained, a review of this decision by the Tribunal but it was less impressed by the claim than the departmental official had been. It concluded that her account was so riddled with contradictions that it would not accept any of it. In particular, it did not accept that she had ever owned a pig farm so that it could not accept either that the subsequent events involving the piggery’s demolition had ever occurred or, more pertinently, that she had ever been arrested. The Tribunal gave detailed reasons for this adverse conclusion and its process of reasoning does not represent a mere assertion that the appellant lacked credit. In particular, it noted the following problems in her account:

1    In her original application she had stated she had received written notice of the demolition of the piggery but at the oral hearing conducted before the Tribunal she said the notice had been oral.

2    During the hearing before the Tribunal she had said that the notice had been received in June 2006 and the piggery demolished in October 2007 but then, at another juncture, that the piggery had been demolished within days of receiving the notice.

3    In her written statement the appellant had claimed that she had not responded to the notice which had been issued to her. But at the hearing she claimed to have spoken with the person(s) who delivered the oral notice (as opposed to the written notice referred to in her statement) and had said to them she had been doing well and sought from them information as to why she had to stop her pig farm. She also said that she went the next day to plead her case with the authorities.

4    In her written statement she said she had received a small amount of compensation for the demolition of the piggery but at the oral hearing she denied that she had received compensation.

5    In her written statement she said that she had petitioned the Fuqing City government but at the oral hearing she said she approached the police.

6    In her written statement she claimed she had been beaten during her detention but at the oral hearing she said she had not been physically mistreated.

5    The Tribunal confronted the appellant with these inconsistencies during the hearing. Putting the matter generally, her explanations involved lapses of memory, nervousness and a hearing problem brought on by nervousness. The Tribunal did not accept these explanations. Accordingly, it found her testimony not to be in any way credible and concluded, therefore, that she did not face any kind of risk if she returned to China.

6    It was in that context that she then applied to the Federal Magistrates Court for judicial review. Three grounds were suggested: bias on the part of the Tribunal; failure by the Tribunal to consider the risk of her return to China; and, a failure on the part of the Tribunal to give the appellant an opportunity to address its concerns by means of a letter. The learned Federal Magistrate rejected each of these arguments. He found no basis whatever for an allegation of bias. He dismissed the argument that the Tribunal had not assessed the risk of her return to China on the basis that the Tribunal precisely addressed itself to that question (“What is plain is that the Tribunal not only posed this question but answered it”: [2010] FMCA 430 at [28]). As to the third ground, the learned Federal Magistrate noted that s 424A(1) of the Migration Act 1958 (Cth) did bind the Tribunal to provide the appellant with “clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review” but concluded that “information” in that context did not include the Tribunal’s own views about the inconsistencies in the appellant’s account of events ([2010] FMCA 430 at [36]). The learned Federal Magistrate would have rejected the argument on two further grounds as well: first, the information in question was information which the applicant gave for the purpose of the review application and hence fell within the exception to s 424A(1) contained in s 424A(3)(b) (“This section does not apply to information…(b) that the applicant gave for the purpose of the application for review”). Secondly, the Tribunal’s decision in terms recorded the unchallenged fact that the appellant had been given an opportunity to comment on the Tribunal’s concerns about the contradictions in her account at the Tribunal’s hearing.

7    In those circumstances, the Federal Magistrate dismissed the application for orders to set aside the Tribunal’s decision. From that decision the appellant now appeals to this Court. Three grounds are advanced:

1    the trial judge erred in determining that the decision of the Tribunal “was made in accordance with the law”.

2    the trial judge erred in determining that the decision of the Minister “was made in accordance with the law”.

3    the appellant’s evidence was not taken into account in the making of the decision by the Federal Magistrate thereby denying the appellant natural justice.

First ground

8    I propose to treat this as an allegation that the Tribunal committed a jurisdictional error, the only kind of error that Federal Magistrates Court was authorised to correct. The difficulty is that the appellant did not in anyway specify what the error was. The errors relied upon before the Federal Magistrate did not, in my opinion, make good any suggestion that the Tribunal had made any jurisdictional errors. To the contrary, accepting for present purposes that the Act does not authorise the making of a decision by the Tribunal affected by actual or apprehended bias, the difficulty is that the appellant has never identified in what ways it is that the Tribunal was biased or how it behaved in a way which might reasonably be thought to generate an apprehension of bias. There is no doubt that the Tribunal did not believe the appellant but that, without more, cannot – as the learned Federal Magistrate noted – be good enough to make out such a claim. Bereft of any particularity as to what the complaint is I can only endorse what was said by the Federal Magistrate.

Second ground

9    This ground seeks to impugn the decision of the Minister rather than the Tribunal and I assume, in turn, that what is attacked is the decision of the Minister’s delegate, that is, the departmental official who decided the initial claim. There is no utility to this ground. The original decision was entirely supplanted by the Tribunal’s review decision. Even if it were shown that the delegate’s decision was vitiated by jurisdictional error this would have no consequences, for the review mechanism bringing into play the Tribunal would remain fully efficacious: Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338 at 344 per Bowen CJ, 369 per Smithers J and 376-377 Deane J; SZGME v Minister for Immigration and Citizenship (2008) 168 FCR 487 at 495 [25] per Black CJ and Allsop J, 517 [132] per Moore J; Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 344 at 353-354 [29]- [31] per Finn, Mansfield and Gyles JJ; Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed (2005) 143 FCR 314 at 322 [33]- [36] per Hely, Gyles and Allsop JJ, and Uddin v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 149 FCR 1 at 14 [51] per Wilcox and Branson JJ, 16-17 [64] per Bennett J (concurring on that point).

Third ground

10    It is not clear what the evidence is that the appellant says was not taken into account and it is therefore very difficult to understand what is intended by this ground. During the hearing before me I pressed the appellant to identify the evidence to which she was intending to refer but she did not point to any of it in particular. I accept, of course, that a denial of procedural fairness would constitute a jurisdictional error upon which a claim for relief could, in theory, be anchored. However, in order for the matter to be taken any further it would be necessary for the appellant to indicate – even vaguely – what the deficiency actually was. This Court is sympathetic to the position of appellants who must make submissions through interpreters on the operation of principles of administrative law with which many trained lawyers struggle. But at the end of the day the appeal remains the responsibility of the appellant. If the appellant does not or will not indicate what the evidential difficulty is, this Court is constrained in what it can do. As matters stand, this ground is not made out.

Additional matter

11    At the hearing of the appeal the appellant submitted additionally that she did not know whether the translator before the Tribunal had adequately translated the proceeding. Upon being pressed she did not submit that she was positively asserting that the translation was deficient but only that she did not know that it was not. I do not regard this as the assertion of a fresh ground. In any event, there was not the material necessary to consider that question since the transcript was not available. The point, if it be such, was not mentioned below. In the circumstances, it does not warrant further consideration.

Disposition

12    All the nominated grounds not having been made out and with no obvious defects in the Tribunal’s treatment of the appellant’s review application appearing, the appeal must be dismissed with costs.

Associate:

Dated:    18 November 2010