FEDERAL COURT OF AUSTRALIA

SZOVP v Minister for Immigration and Citizenship [2012] FCA 244

THE COURT ORDERS THAT:

The appeal be dismissed with costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    This is an appeal from a decision of Driver FM dated 10 August 2011 dismissing an application for judicial review of the Refugee Review Tribunal (Tribunal) decision handed down 15 November 2010. The Tribunal had affirmed the decision of a delegate of the Minister for Immigration and Citizenship to refuse the appellant’s application for a protection visa.

Background

2    The appellant is a citizen of China who arrived in Australia on 24 September 2006 on a subclass 580 Student Guardian visa. She left Australia to visit her mother in China in February 2008, and returned in April 2008, again on a subclass 580 Student Guardian visa.

3    The appellant claimed that her father was an intellectual, and that when she was a child he had been imprisoned and publicly humiliated during the Cultural Revolution. The appellant claimed she had missed out on schooling due to bullying by class mates and was illiterate as a result.

4    Further the appellant claimed that her husband had been involved in demolishing houses in China to allow for the widening of roads. The residents of those houses were dissatisfied with their compensation for the loss of their homes and bombed the appellant’s husband’s demolition vehicle. The appellant’s husband and his business partner (who was also the appellant’s nephew) sought compensation from the relevant municipal council in China. When the appellant’s husband and business partner attended the municipal council an argument ensued, a councillor sustained an injury, the police were called and the appellant’s husband fled and has never returned.

5    The appellant claimed that the police attended their home in China and arrested her instead of her husband, and that they beat her and detained her. The appellant alleged the police refused to release her unless her husband attended the police station. The appellant claimed she was then put in Dongpo detention camp in Yong’an City where she developed psychological problems and was eventually released for treatment of those problems. The appellant’s nephew was beaten to death on his way home one night.

6    On 8 December 2009 the appellant lodged an application 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 5 March 2010.

Refugee Review Tribunal

7    On 1 April 2010 the appellant applied to the Tribunal for a review of the decision of the delegate. The appellant attended a hearing with the Tribunal in 14 May 2010 but became unwell and an ambulance was called. A further hearing was held on 3 November 2010. The Tribunal had regard to a letter from a psychologist stating that the appellant had been diagnosed with schizophrenia and that delusions including delusions of persecution might ensue. As a result the Tribunal was unsure of the extent to which the appellant’s evidence was reliable.

8    The Tribunal noted that there was nothing that suggested to the Tribunal that the appellant’s husband had been targeted for a Convention reason. Rather, he was possibly being sought in order that the police could charge him regarding the affray at the office of the relevant municipal council.

9    The Tribunal also considered whether the appellant had been targeted for an imputed political opinion as someone who had challenged government authority. The Tribunal concluded however that the appellant had not been targeted for this reason as there was no evidence that the government imputed any opinion to the appellant or to her husband. The Tribunal did not accept that there was a real chance that the appellant would be persecuted if she returned to China, and as such affirmed the decision of the delegate.

10    The appellant had engaged Ms Weiming Qian as her representative to appear at the Tribunal hearing. The Tribunal noted that Ms Weiming Qian did not attend the Tribunal hearing and that she had been the object of adverse attention in the Federal Magistrates Court (SZOOI v Minister for Immigration & Anor [2010] FMCA 816).

Federal Magistrates Court

11    On 9 December 2010 the appellant applied to the Federal Magistrates Court for judicial review of the Tribunal decision.

12    The Federal Magistrate noted that the appellant’s medical condition and the non- appearance of the appellant’s representative at the Tribunal hearing were of concern. His Honour ordered the Minister to show cause, pursuant to r 44.12(1)(b) of the Federal Magistrates Court Rules 2001 (Cth) why relief should not be granted in relation to the issue whether the Tribunal breached s 425 of the Migration Act 1958 (Cth) (“the Act”) in proceeding with a hearing in the absence of the appellant’s migration agent in knowledge of the appellant’s serious mental disability. The Federal Magistrate also arranged for pro bono legal representation for the appellant.

13    The appellant amended her application in the Federal Magistrates Court on 25 May 2011 to contain the following grounds: (particulars omitted)

1.    The Tribunal failed to conduct the review required by s 414 of the Migration Act.

2.    The Tribunal failed to invite the Applicant as mandated by s 425 of the Migration Act. The purported invitation was vitiated by the Applicants severe mental impairment.

3.    The Tribunal failed to invite the Applicant as mandated by s 425 of the Migration Act. The purported invitation was vitiated by the failure of the Applicant’s representatives to attend.

14    In relation to the first ground of review the Federal Magistrate observed that the Tribunal did not consider whether the appellant had a fear of persecution because of her family background and childhood experience (at [37]). As a result the appellant contended that the Tribunal, in failing to deal with the assertion as a separate claim, overlooked an element or integer of her claims. After examining in depth a number of relevant authorities, including Htun v Minister for Immigration (2001) 194 ALR 244, Dranichnikov v Minister for Immigration (2003) 197 ALR 389, and NABE v Minister for Immigration (No 2) (2004) 144 FCR 1, his Honour concluded:

40. In my view, on a fair reading of the applicant’s claims, her childhood and family experience was only advanced so as to properly inform the Tribunal of her difficult past and her sensitivity to the fate of her husband and eldest son in China. Her present fear of harm derived not from her childhood experience but from her husband’s more recent experience of conflict with local officials over his backhoe work, which was addressed in some detail in the applicant’s written and oral claims. There was, in my view, no substantial, clearly articulated argument relying upon established facts in reference to the applicant’s childhood experience that required consideration as a separate claim of persecution by the Tribunal.

15    Accordingly Honour dismissed the appellant’s first ground of review.

16    In relation to the second ground of review, the Federal Magistrate noted that the Tribunal did not have the benefit of expert evidence from Dr Wu who had examined the appellant after the Tribunal hearing and who had indicated that the appellant’s condition made it difficult for her to deal with questions which required she recount her traumatic past. The Federal Magistrate noted that it was open to the Tribunal to require a medical examination of the appellant and obtain a report, however they were not obliged to do so. The Federal Magistrate found that the Tribunal’s awareness of the appellant’s illness and the medical evidence available to them combined with the appellant’s ability to put forward arguments and give evidence at the Tribunal hearing meant that there was no jurisdictional error (at [48]-[49]).

17    In relation to the third ground of review, the Federal Magistrate considered that the Tribunal was not required to invite the appellant’s representative to attend the Tribunal hearing, and concluded that the absence of the appellant’s representative from the Tribunal hearing did not subvert the Tribunal’s review function. In finding that this ground of review also failed, his Honour observed:

[67] Having regard to its experience at the first Tribunal hearing, the Tribunal might have considered it appropriate to specifically request the attendance of Ms Qian at the second Tribunal hearing so that she might support and assist her mentally disabled client. The Tribunal had the power, pursuant to s.427 (3) to summons Ms Qian to give evidence if it thought that she may have been able to give useful evidence concerning her knowledge of the applicant’s claims and experiences. Where an applicant suffers from a mental disability, the presence of a registered agent assisting the applicant, if only as a support person, could be seen as an advantage. However, I do not accept that the absence of the agent, while unfortunate and meriting criticism, disabled or subverted the Tribunal’s review function. As I have already stated, the Tribunal did not err in a jurisdictional sense in determining that the applicant was capable of participating in the second hearing. Even if the applicant had been incapable of participating in a tribunal hearing (with or without the presence of her agent) that would not in itself have disabled the Tribunal’s review function. In such circumstances I agree with the view previously expressed by this Court that the Tribunal would be obliged to complete its duty of review without an oral hearing: SZOGP v Minister for Immigration & Anor [2010] FMCA 704 at [48]-[52].

18    The Federal Magistrate concluded that the appellant’s grounds did not reveal any jurisdictional error and dismissed the appeal.

Appeal to this Court

19    The appellant filed a notice of appeal in this Court containing the following grounds:

1.    The Tribunal failed to conduct the review required by section 414 of the Migration Act. His Honour, the learned Federal Magistrate in the court below, erred in not so finding.

Particulars

i)    The appellant claimed that she had a well-founded fear of persecution because her father had been imprisoned and publicly humiliated as a counter-revolutionary. She had, for reason of her relationship with her father, also been persecuted and called a counter revolutionary.

ii)    Her father’s persecution was for one or more Convention reasons.

iii)    It is clear – and it should have, and would have been on review, clear to the Tribunal – that the appellant’s claims included claims (and fear) of persecution both for reason of being a member of her father’s family and for reason of imputed political opinion.

iv)    The Tribunal failed to consider these claims.

v)    The learned Federal Magistrate in the Court below erred in not so finding.

2.    The Tribunal failed to invite the appellant to appear as mandated by section 425 of the Migration Act. The purported invitation was vitiated by the appellant’s severe mental impairment. The learned Federal Magistrate erred in not so finding.

Particulars

i)    The appellant is (and was) suffering from schizophrenia

ii)    The Tribunal itself noted that the appellant “appeared to be traumatized and fearful in giving evidence about certain events” and that it was “unclear how much reliability should be placed on all aspects of the appellant’s given the reference in the hospital discharge document to the possibility of her suffering from delusion of persecution and other delusions.”

(Emphasis added.)

iii)    The Court can and should find that, in all the circumstances, the appellant’s psychological condition denied her the opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review.

iv)    The learned Federal Magistrate erred in not so finding.

3.    The Tribunal failed to invite the appellant to appear as mandated by section 425 of the Migration Act. The purported invitation was vitiated by the failure of the appellant’s representative to attend. The learned Federal Magistrate erred in not so finding.

Particulars

i)    The appellant’s representative was not specifically invited to attend. Nor was the appellant’s representative told by the Tribunal that it was not appropriate for the appellant not to have the benefit of the representative at the hearing. The representative did not attend the hearing.

ii)    The Tribunal itself noted:

“In the present matter the failure of the representative to attend is of particular concern to the Tribunal given the vulnerability of the appellant. Her psychological and emotional state was such that it was not appropriate for her not to have the benefit of support from her representative at the hearing.”

iii)    The Migration Agents’ Code of Conduct imposes on a registered migration agent “the overriding duty to act at all times in the lawful interests of the agent’s client.” The Tribunal could have – and should have – invited the appellant’s migration agent to attend the hearing and should have told the migration agent that it was not appropriate for the appellant not to have the benefit of the representative at the hearing. The Tribunal failed to do so.

iv)    The Court can and should find that this failure resulted in the Tribunal’s purported invitation (under section 425) not being a real and meaningful opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review.

v)    The learned Federal Magistrate erred in not so finding.

(Reproduced from original.)

Consideration

20    Both parties were legally represented at the hearing before me.

21    The grounds of appeal before the Court repeat the grounds argued before the Federal Magistrate below. The question for this Court is whether his Honour below erred in his findings in respect of these grounds.

Ground 1

22    The majority of the appellant’s submissions were directed towards this ground of appeal. Ground 1 identifies s 414 of the Act which provides:

Refugee Review Tribunal must review decisions

(1) Subject to subsection (2), if a valid application is made under section 412 for review of an RRT-reviewable decision, the Tribunal must review the decision.

(2) The Tribunal must not review, or continue to review, a decision in relation to which the Minister has issued a conclusive certificate under subsection 411(3).

23    In particular, the appellant refers to her undated statement, received by the Department of Immigration on 8 December 2009, where she claims:

My misery experience in childhood

My father was a so-called ‘intellectual’ when I was a child. The society was dark under the control of the Communist Party. At the end period of the Culture Revolution, the year when I was 8, two people from the commune came to my home and took my father to the commune. They claimed my father was a “counter-revolutionaries” and a rebel. He was sentenced 2 years in prison after being detained for one month. My father was brought to the street to be publicly displayed and ridiculed, with a big sign hanged in front of his chest. People from my village looked down upon our family and treated us as criminals. We lost our dignity as a human being. I was also discriminated by my teachers and classmates at school. Some classmates mocked me as a counter-revolutionary and I kept getting bullied. Finally I was forced to quit my study. I only studied for 3 years before that and therefore became illiterate as I was deprived of my right to receive further education.

….

The above is my personal experience in China which shows the dictatorship of the Chinese regime.

(Errors in original.)

24    It appears that, by ground 1, the appellant claims that the Tribunal failed to conduct a review of the decision of the delegate so far as concerns the appellant’s “claim” concerning her father’s activities, and the persecution she endured because of those activities.

25    At the Tribunal hearing the Tribunal clearly asked the appellant about her father. At [30] of the Tribunal said:

In response to the Tribunal’s question as to what had happened to her father, the applicant said that he was an activist and used to work in a local community group. He was arrested and detained for two years during the Cultural Revolution. The applicant was very young at the time. She recalls that, after her father was arrested, the family home was sealed up and the family was forced to live in an old shabby temple, which had no heating. It was freezing. The applicant was humiliated at school and gave up study. Upon his release, her father was forced to work on the roads, wearing a sign around his neck.

26    It is clear however that the appellant never claimed to fear harm in China in 2010 because of her relationship to her father or her experiences at school. From the material before the Tribunal the appellant’s claims to persecution for a convention reason manifestly arose from the experiences of her husband and nephew in seeking compensation for the destruction of their backhoe in 2004. The appellant was 43 years old at the time of the Tribunal hearings, and the events involving her father had apparently taken place when she was a small child. On any fair reading, the matters noted by the Tribunal were historical rather than forming the basis of the appellant’s claim to refugee status. In my view those matters cannot be said to be a “substantial, clearly articulated argument relying upon established facts” as contemplated by authorities including Dranichnikov and NABE. His Honour’s view that the appellant’s childhood and family experience was only advanced so as to properly inform the Tribunal of her difficult past and her sensitivity to the fate of her husband and eldest son in China, rather than being the source of a present fear of harm, was reasonable and open to his Honour on material before the Court. I do not accept the submission of the appellant that the Tribunal failed to conduct a review in respect of that “claim” as required by s 414 of the Act.

27    The first ground of appeal is not substantiated.

Ground 2

28    In the second ground of appeal the appellant contended that the Tribunal failed to invite the appellant to appear in accordance with s 425 of the Act, in summary because the purported invitation was vitiated by the appellant’s severe mental impairment. Section 425(1) provides that the Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. The appellant also submitted that s 425 must be read with s 427(1)(d) of the Act, which provides that the Tribunal may require the Secretary of the Migration Department to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination. Accordingly, the appellant submitted (in summary) that:

    The Tribunal was aware that the appellant suffered from schizophrenia.

    A psychiatric assessment of the appellant produced to the Federal Magistrates Court stated that the appellant was unfit to give a coherent or adequately detailed account of her experiences and was unfit to give evidence and present arguments in support of her protection visa application.

    The exercise by the Tribunal of its inquisitorial power under s 427(1)((d) would not have been futile, but rather could and would have assisted the Tribunal to provide a fair and just hearing.

    In view of the severity of the appellant’s condition it was not for the Tribunal itself to determine by way of satisfying itself through considering her responses to the initial questions it asked her that she was competent to give evidence.

    In summary – the Tribunal constructively failed to exercise its jurisdiction when it failed to exercise its inquisitorial power under s 427(1)(d) of the Act.

29    Whether the Tribunal is required to engage in further inquiry in particular circumstances was considered by the High Court in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39. In that case the Court observed as follows:

25.    Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.

26.    The first reason is that there was nothing on the record to indicate that any further inquiry by the Tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the Tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the Tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI’s solicitors to the Tribunal’s letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer’s letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the Tribunal's decision was infected by jurisdictional error.

(Emphasis added.)

30    In Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 Gummow J referred specifically to observations of the Court in SZIAI in finding that, in the circumstances of SZGUR, no obligation existed in the Tribunal to obtain a medical report (at [87]).

31    This Court has also considered the interaction of s 425 and s 427(1)(d). In Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575, Keane CJ observed:

20 In my respectful opinion, s 425 of the Act did not require the Tribunal to press the respondent to call further evidence of his psychological problems or to expand his arguments relating to the ramifications of his problems for any aspect of the case he sought to present. Nothing in this Court’s decision in SCAR supports the contrary view, and in the recent decision of Gilmour J in SZMSA v Minister for Immigration and Citizenship [2010] FCA 345, especially at [20]–[25], the contention that an applicant’s psychological difficulties were such as to deprive him of the “meaningful opportunity” required by s 425 of the Act was rejected, correctly in my respectful opinion, on the footing that the applicant’s condition was not shown to be such as to deny him the capacity to give an account of his experiences, to present argument in support of his claims, to understand and to respond to questions put to him.

…

22 None of these provisions of the Act affords support for the view that the Tribunal is duty-bound to press an applicant to call further evidence on an issue or to seek an adjournment of the hearing to enable him to do so, or to seek out such evidence itself. In those cases where the applicant is not disabled by his psychological deficits from giving evidence and presenting arguments, the hearing required by s 425 of the Act is not nullified by a mere failure by an applicant to present his case in the best possible light.

32    In this case it is clear that the Tribunal was aware at the time of the hearing that the appellant suffered from schizophrenia. At [56] of the reasons for decision the Tribunal observed:

Given the applicant’s medical condition, the Tribunal was concerned to establish that she was capable of giving evidence. The medical evidence supplied to the Tribunal indicated that she was no longer in need of the crisis support the Auburn Mental Health Crisis Team had been giving her and that her condition had stabilized or was stabilizing through access she was getting to a regular supply of medication at recommended dosage levels. The Tribunal satisfied itself through considering her responses to the initial questions it asked her that she was competent to give evidence.

33    However, although the appellant contends that further inquiry by the Tribunal pursuant to s 427(1)(d) would have assisted the Tribunal to provide a fair and just hearing, it is unclear how further inquiry would have assisted the Tribunal. The Tribunal clearly took into account the mental state of the appellant in giving evidence and appearing at the Tribunal hearing and formed its own view as the ability of the appellant to do both.

34    Further, in referring to the psychiatric assessment of Dr Wu produced to the Federal Magistrates Court, it appears that the appellant seeks to invoke comments of Keane CJ in SZNVW where, in the context of that case, his Honour observed:

The further evidence subsequently adduced before the magistrate was not apt to, and was not found to, demonstrate an unfitness to “give evidence and present arguments” at the hearing. (at [37])

35    His Honour at [43] recognised that the Tribunal did not have the benefit of the medical opinion of Dr Wu adduced subsequent to the Tribunal hearing, namely that while the appellant was able to deal with simple, straightforward questions directed to matters in the present, she had real difficulty in dealing with questions that required her to recount her traumatic past experiences. His Honour noted Dr Wu’s opinion that this inhibited the appellant from giving an effective account of those experiences. However after considering relevant authorities, his Honour continued at [48]:

In the present case the Tribunal knew that the applicant was mentally ill. Indeed, the hearing record of the Tribunal hearing on 3 November 2010 says that, with an asterisk (CB 93). The Tribunal already had available to it medical evidence which, coupled with the Tribunal’s own questioning of the applicant, enabled it to form a view that the applicant, notwithstanding her schizophrenia, was capable of giving evidence. The Tribunal was not obliged to obtain a further opinion. In addition, I accept from the transcript of the second hearing that, while the applicant suffered apparent distress and confusion at several points, and while she was probably not able to give as effective an account of her experiences as a mentally able person could have given, the applicant was not unable to give evidence, present arguments and answer questions before the Tribunal at the time of the second hearing (see Minister for Immigration v SZNCR [2011] FCA 369 per Tracey J at [30]-[34]; Minister for Immigration v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575).

36    It is important that the Courts be alert to circumstances where a litigant suffers from a mental illness and to whether that litigant is provided with a fair hearing. However in this case the reasoning of the Federal Magistrate is, with respect, sound. I am not satisfied that the Tribunal was duty-bound to conduct additional investigation into the mental health of the appellant pursuant to s 427(1)(d) of the Act. The Tribunal was already on notice that the appellant suffered from schizophrenia and took this into account in its dealings with the appellant. Nonetheless, the Tribunal was satisfied that the appellant was capable of giving evidence and presenting her case at a hearing before it. I am not satisfied that the Tribunal constructively failed to exercise its jurisdiction under s 425 when it did not exercise its inquisitorial power under s 427(1)(d) of the Act.

37    Finally, to the extent that the appellant contends that she was unfit to attend the hearing before the Tribunal – a point not specifically pleaded by the appellant but suggested by the appellant’s submissions – the decision of Branson J in NAMJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 983 is of particular relevance. In that case her Honour held that, in the context of a claim that the Tribunal had failed to issue an invitation in accordance with s 425, it was for the appellant to establish that he or she was unfit to attend the hearing. Her Honour also found that the Court should accord weight to the view of the Tribunal in this respect.

38    In NAMJ, the Court found that the Tribunal was satisfied that the applicant knew the purpose of the hearing and had been able to give a comprehensive and lucid account of his claims (at [68]). This is also clearly the case in relation to the Tribunal hearing and decision the subject of this appeal.

39    In my view ground 2 is not substantiated.

Ground 3

40    While the appellant does not contend that the Tribunal has the power to compel the migration agent of an applicant before it to attend the hearing to support that applicant, nonetheless the appellant submits that the Tribunal is not prevented from inviting the migration agent to be present at the hearing. Further the Tribunal has power under s 427(3) of the Act to compel persons other than the appellant to give evidence. In accordance with the principles articulated in SZGUR, the appellant submits that the Tribunal should have asked the migration agent to attend both in support of the appellant and to give evidence, and that failure to do so was a constructive failure by the Tribunal to exercise its jurisdiction under s 425.

41    In my view comments of the Federal Magistrate at [67] of his Honour’s judgment, and extrapolated earlier in this judgment, comprehensively answer this submission. The Tribunal is not obliged to invite a migration agent to a hearing, and it is difficult to see how the Tribunal can be said to have committed a jurisdictional error in proceeding in the absence of the migration agent in this case. There is nothing on the material before the Court to suggest that the appellant’s migration agent had additional information that the appellant was unable to present herself. No request was made by the appellant (or her migration agent) for the hearing to be adjourned to enable the migration agent to attend.

42    In my view this ground of appeal has no merit.

Conclusion

43    The grounds of appeal in this proceeding are not substantiated. The appeal is dismissed with costs.

Associate:

Dated:    15 March 2012