FEDERAL COURT OF AUSTRALIA

BZAAA v Minister for Immigration and Citizenship [2011] FCA 447

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs, fixed in the sum of $6,104.00.

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 an appeal against a decision of Burnett FM dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 1 April 2010. 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. He arrived in Australia on 14 April 2008 on a Student Guardian Visa in order to be with his daughter, who was studying in Australia at the time. On 5 August 2009, the appellant applied to the Department of Immigration and Citizenship for a Protection (Class XA) Visa. The Minister refused to grant the appellant a protection (Class XA) Visa under s 65 of the Migration Act 1958 (Cth). On 9 November 2009, the appellant applied to the Tribunal for a review of the delegate’s decision.

3    In his protection visa application, the appellant claims that he was persecuted in China for his Christian beliefs and that he fears to return. His wife and another child continue to live in China. The appellant claims that he and his family (including those family members who have remained in China) have been practicing Christianity since 1990, and that he has been involved in Church activities since 1994.

4    The appellant claims that on 5 April 2008 he was worshipping with others at his friend’s home in China when six police officers entered the house and arrested all occupants. The appellant said that he was beaten by the police and was not given any food whilst in custody. He claims that he was sentenced to three days detention and was released on 9 April 2008, and that he flew to Australia on 13 April 2008. His friend was sentenced to two years “re-education through labour”. The appellant claims that the police know that he is friends with this man, and that they will charge him with being an accessory to organising an illegal gathering. He claims that neighbours and his wife have told him that the police still search his home in China to see if he has returned.

Refugee Review Tribunal

5    The appellant was scheduled to appear before the Tribunal on 12 January 2010, but did not appear at the hearing in Brisbane. Rather it appears that the appellant experienced some confusion over the location of the hearing and he presented at the Tribunal Registry in Sydney. Notwithstanding this confusion, the Tribunal hearing was rescheduled to take place in Brisbane the following day. There is no dispute that the appellant attended the rescheduled hearing on 13 January 2010.

6    The Tribunal was satisfied that the appellant was a citizen of China, and that he was a Christian. However, the Tribunal found that there are a number of factors at odds with the appellant’s claims concerning the difficulties experienced by him and other members of his group in China. The Tribunal noted, for example, that the appellant’s wife and child, still practicing Christians, continue to live in China apparently without persecution, and were in fact present when the alleged arrests took place. The Tribunal noted further that the appellant has not applied for a protection visa for his daughter who continues to live in Australia notwithstanding that she no longer holds a valid visa. Finally, the Tribunal noted that the appellant also had applied for, and received, a passport from the consulate of the People’s Republic of China in Sydney prior to the expiry of his previous passport.

7    In light of these facts the Tribunal was not satisfied that the appellant had a well-founded fear of being persecuted in China for any Convention reason, and therefore he was not a person to whom Australia owed protection obligations under the Refugee Convention. Accordingly the Tribunal affirmed the decision of the delegate.

Federal Magistrates Court

8    On 22 April 2010 the appellant filed an application for judicial review of the Tribunal’s decision. Before the Federal Magistrate, the appellant’s principal complaints in respect of the Tribunal’s decision were, in summary, as follows:

1.    He was interviewed by the Tribunal for five hours without having the opportunity to eat. The appellant claimed that the purpose of this course of action was to starve him, make him dizzy and confused, and thus enable the Tribunal to more easily refuse his application. In this respect it was clear that the Tribunal was biased against him.

2.    He had asked the Tribunal to slow down, as he had difficulties understanding. The Tribunal refused to do so. The Tribunal did find a local interpreter but the interpreter was not professional and the appellant had to repeat things until the interpreter could interpret correctly.

3.    It was not reasonable for the rescheduled hearing to be conducted on the day following the original scheduled date.

9    In relation to ground 1 his Honour held that it is a rare case where actual bias can be demonstrated solely from the published reasons of a decision. In any event, his Honour observed that the bias needs to be firmly established. From the review of the Tribunal’s comprehensive reasons for decision, there was no basis for concluding that the decision demonstrated a lack of good faith or closed mind in the form of pre-judging the appellant’s application.

10    In relation to ground 2, the Federal Magistrate found that the appellant was required to demonstrate that the interpreter was so inadequate that he was prevented from giving evidence. Perfect translation is not required – rather it will suffice if the translation is sufficiently accurate to permit the idea or concept being translated to be communicated. His Honour found that the Tribunal had little difficulty in developing an adequate appreciation of the ideas or concepts that were being communicated to it through the translator, and it follows that the appellant was not effectively prevented from giving his evidence.

11    In relation to ground 3, the appellant appeared to have agreed to the time and place of the rescheduled hearing. His Honour observed that it is necessary that the appellant be afforded a real and meaningful opportunity to attend the hearing. His Honour found that the fact that the appellant engaged in and settled upon the rescheduled hearing date evidenced that the date presented him with a real and meaningful invitation to attend the hearing.

12    Having found that the Tribunal decision was not affected by jurisdictional error, his Honour dismissed the application for review.

Notice of Appeal

13    By Notice of Appeal filed on 2 March 2011, the appellant raised the following grounds of appeal against the decision of Burnett FM:

1.    The Tribunal had bias against me and did not make a fair decision for my application

2.    I clarify all my points at the hearing of the Federal Magistrates Court, but the Judge refused my application on my hearing date. It is not fair.

3.    I believe that my application was not considered reasonable by the Judge at the Federal Magistrates Court. I fear to go back to China. Chinese Government persecutes underground house church members.

(errors in original)

Consideration

14    Before me the appellant was self-represented. The Minister was represented by Ms Wheatley of Counsel.

15    In oral submissions the appellant focussed on the first ground of appeal. This is not surprising, because in respect of grounds of appeal 2 and 3 it is clear that:

    Neither of these grounds raise appellable issues.

    To the extent that any meaning can be adduced from these grounds of appeal, it appears that the appellant is inviting the Court to conduct a merits review of his claims. As the only basis upon which an appeal lies from a privative clause decision within the meaning of s 474 is jurisdictional error of the Tribunal, it is not open to the Court to conduct such a merits review: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10].

    To the extent that the appellant is complaining that the failure of the Federal Magistrate to accept his submissions was unfair, in the absence of further particularisation I am unable to identify grounds upon which findings of his Honour, which were open on the material before the Court, constitute appellable errors.

16    In respect of the first ground of appeal, the appellant submitted in summary that:

    When he returned to Brisbane from Sydney after his confusion concerning the location of the hearing, he was very tired, and did not arrive home until midnight. He then rose at 6.00 am the following morning to travel from his home in Kilcoy to Brisbane for the rescheduled Tribunal hearing at 10.00 am.

    He did not want the hearing rescheduled to the following day, but wanted it held a few days later.

    He was told by Tribunal staff not to leave the building in which the Tribunal is located until the hearing was concluded. Accordingly, he did not obtain anything to eat until the hearing concluded around 5.00 pm.

    The interpreter provided initially was not helpful to him because of the appellant’s limited knowledge of Mandarin.

17    In my view this ground of appeal is without merit. I form this view for the following reasons.

18    First, it is well established that bias, an aspect of bad faith, is a serious allegation involving personal fault on the part of the decision-maker. It must be clearly articulated and proved by admissible evidence. In the absence of any evidence as to the conduct of the Tribunal at the hearing or otherwise, no bias should be inferred solely from factual findings that were open on the material before the Tribunal: Minister for Immigration and Multicultural and Indigenous Affairs v Jia Legeng (2001) 205 CLR 507 at 519 and 531-532, re Refugee Review Tribunal, ex parte H (2001) 179 ALR 425 at 434, VFAB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102 at 107. In this case I am unable to identify any grounds upon which bias, either actual or apprehended, can be established in the conduct of the Tribunal. Rather, it seems clear that the Tribunal sought to accommodate the appellant in arranging the rescheduling of the hearing. While the appellant sought to give evidence from the bar table that he did not want the rescheduled hearing to proceed on 13 January 2010, the Tribunal in its Reasons for Decision states:

[105]…Far from indicating any concern about proceeding with the hearing on 13 January 2010 or any wish to postpone the hearing to another time, the applicant indicated to the Tribunal that he had a preference for the matter to be heard on that day. In his letter of 17 February 2010, the applicant referred to being exhausted at the time of the hearing and claimed that his mental state was not quite stable. However, when the Tribunal proposed to adjourn the hearing to another day, he expressed a desire for the hearing to proceed. It was on this basis that the Tribunal made arrangements to obtain another interpreter on that day. When the hearing was resumed with a Fuqing interpreter, the applicant indicated that there were no concerns he wished to raise and that he was very satisfied. He did not express concerns about exhaustion or his mental state.

19    In the absence of proper evidence produced by the appellant as to his unwillingness to attend a rescheduled hearing on 13 January 2010, I accept the version of events as described in the Tribunal’s Reasons for Decision. I do not accept the appellant’s submission that he was not in a fit state to attend the rescheduled hearing on 13 January 2010, or that he had so informed the Tribunal on that day.

20    Second, I am not satisfied that the Tribunal acted improperly in any way by rescheduling the hearing to the following day. While the statutorily prescribed period for advice of the hearing is seven working days (Regulation 4.21(b)(i)), in circumstances where the hearing is rescheduled the prescribed period does not have to be given again. Rather, a reasonable period of notice must be given: Minister for Immigration and Multicultural and Indigenous Affairs v SZFML (2006) 154 FCR 572 at [76]-[83]. While the appellant lives outside Brisbane, the hearing was rescheduled to commence at 10.00 am, which provided the appellant ample time to reach the Tribunal premises from Kilcoy. There appears to be no question that the appellant required further time to prepare his case before the Tribunal. Further, it appears from the material on the file that the Tribunal consulted the appellant in respect of the rescheduling of the hearing. I am not satisfied that the Tribunal acted unreasonably in rescheduling the hearing to the day following the original hearing date.

21    Third, notwithstanding the appellant’s belief that the Tribunal denied him the opportunity to eat on the day of the hearing, I am not persuaded that the Tribunal acted in any way unfairly to the appellant. If the appellant believed that the Tribunal would not excuse him from the premises to obtain lunch, he was clearly suffering from a misunderstanding. It was apparent from the submissions of the appellant that he had not inquired of the Tribunal concerning arrangements for lunch, or leaving the premises to obtain food for himself. While unfortunate, in my view no impropriety in the conduct of the Tribunal has been demonstrated.

Conclusion

22    The grounds of appeal of the appellant are without merit. The appellant should pay the costs of the first respondent, fixed in the sum of $6,104.00.

Associate:

Dated:    4 May 2011