FEDERAL COURT OF AUSTRALIA

SZSGB v Minister for Immigration and Citizenship [2014] FCA 149

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the costs of the first respondent as agreed or, if not agreed, as assessed.

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 judgment of Judge Lloyd-Jones of the Federal Circuit Court delivered on 8 November 2013: SZSGB v Minister for Immigration & Anor [2013] FCCA 1789 (SZSGB). The primary judge dismissed an application for judicial review of a decision of the Refugee Review Tribunal (Tribunal) dated 26 October 2012. The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) to refuse to grant the appellant a Protection (Class XA) visa (protection visa).

2    The appellant is a citizen of the People’s Republic of China (China). She arrived in Australia in May 2008 as the holder of a Student Guardian Class TU 580 visa. Upon the expiry of her visa she lived illegally in Australia. On 24 October 2011 she applied for a protection visa pursuant to s 36 of the Migration Act 1958 (Migration Act). The Delegate refused the application on 15 February 2012 following the appellant’s failure to attend an interview scheduled for 14 February 2012. The Delegate considered the appellant’s claims to be “vague and lacking in specific details” and that the dearth of specificity cast doubt upon the credibility of the claims. The Delegate considered that there was no real chance of the appellant suffering persecution for a Convention reason upon her return to China, and that her fear of persecution was not well-founded.

Claims

3    The background to the appellant’s application and the claims she made in her supporting statement are set out at [21]-[33] of the Tribunal’s decision record and at [4]-[8] of SZSGB.

4    The appellant is not a Falun Gong practitioner, has no interest in it and has not practised it in China or Australia. In summary, she fears for her safety upon her return to China because she is implicated in supplying material connected with the Falun Gong movement.

5    According to the statement of the appellant which accompanied her visa application:

    The appellant’s mother had been a Falun Gong practitioner from 1997, when she was diagnosed with terminal liver cancer. After the appellant’s mother commenced practising Falun Gong, the cancer disappeared.

    Following the Chinese government “crackdown” on Falun Gong believers in 1999, the appellant’s mother was forced to attend “brainwashing class” and to write a statement that she would give up Falun Gong practices.

    After arriving in Australia in 2008, the appellant encountered Falun Gong materials in Chinatown. She posted these materials to her mother, who reacted favourably. She subsequently supplied her mother with further materials in 2010 (by asking a friend’s son to deliver the materials personally) and in 2011 (by post).

    In 2011, the appellant’s younger brother informed her that her mother had been detained by police due to her possession of Falun Gong materials. The appellant consulted a migration agent who recommended she apply for a protection visa.

Decision of the Tribunal

6    The Tribunal affirmed the Delegate’s decision on 26 October 2012 following a hearing attended by the appellant on 27 September 2012.

7    The Tribunal’s findings are set out at [51]-[63] of its decision record. In summary the Tribunal found the appellant’s claim to have sent Falun Gong material to China on three occasions was not credible because the appellant’s apparent disregard for the safety of her mother and brother, particularly in light of her claims regarding her mother’s past experiences with the Chinese authorities, in addition to the lack or corroborative evidence, seriously undermined the credibility of her claims. It also found that: (1) the delay in seeking protection was inconsistent with a subjective fear of persecution, (2) the appellant had no difficulty in leaving China which indicated that she was of no interest to the Chinese authorities, and (3) she had not been an active Falun Gong practitioner in China or Australia and therefore does not fit the profile of a person at risk of persecution in China through identification as a Falon Gong practitioner. The Tribunal was consequently not satisfied that the appellant would face persecution in China for a Convention reason.

The Current Appeal

8     The appellant filed a notice of appeal on 29 November 2013. She appeals on the following grounds (errors in the original):

1.    My mother suffered cancer. My aunt helped her practise Falun Gong.I posted the copy of Master Li’s speech at a conference at New York to my mother and in October 2010,requested my friend’a son to take a letter to her. A copy of Master LI’s speech was enclosed. The copy caused my mother detained by local police.

2.    I will be persecuted if I return to China. But, The Tribunal member was not satisfied that there will be a real chance I will be subjected to persecution by the authorities for a Convention reason.The Tribunal member failed to take my claims into account and made jurisdictional error while making the decision.

3.    The Federal Circuit Court dismisseed my appeal.

9    The appellant appeared in person at the hearing of the appeal but did not provide written submissions. The Minister’s representative provided written submissions and appeared at the hearing.

Grounds 1 and 2

10    Grounds 1 and 2 are essentially the same grounds on which the appellant relied in her application to the Federal Circuit Court on 22 November 2012 for judicial review of the Tribunal’s decision and an order quashing the decision and a writ of mandamus requiring the Tribunal to determine the appellant’s application according to law.

11    The last sentence of Ground 2 comprised Ground 3 of the appellant’s claims before the primary judge. The primary judge accepted that only that sentence alleged jurisdictional error.

12    The primary judge found that Grounds 1 and 2 (other than the last sentence of Ground 2) merely set out the essential particulars of the appellant’s protection visa and thus invited impermissible merits review.

13    On the question of whether the Tribunal member failed to take account of the appellant’s claims, the primary judge noted the Tribunal’s findings at [56]-[61] of the Tribunal’s decision record dealing with her claims, including whether the appellant would attract the attention of the authorities if she returned to China. The primary judge accepted the Minister’s submission that the Tribunal’s decision was based on the finding that the appellant lacked credibility. The primary judge noted that a credibility finding is a function of the primary decision maker par excellence, relying on the well-known dictum of McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407 at [67]. The primary judge also considered the observations of Tamberlin and RD Nichols JJ (Lee J dissenting) in W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703; [2001] FCA 679 at [64]. Those observations recognise that a credibility finding is a finding of fact and “as the authorities indicate, a reviewing body must not set aside such a finding simply because it thinks that the probabilities of the case are against, or even strongly against, the finding”. The primary judge concluded that the Tribunal had considered all aspects of the appellant’s claim and that no jurisdictional error was apparent.

14    At the hearing of the appeal, the appellant submitted that she was not happy with the result of the Tribunal’s consideration of her claims and reiterated that if she goes back to China she will be persecuted. She said that the Tribunal decision was not fair. Subject to the new claim referred to below, she provided no particulars of these complaints and these submissions do nothing to further Grounds 1 and 2.

15    I find no error in the approach of the primary judge to the issues raised by Grounds 1 and 2 and reject the appellant’s submissions set out at [14] for the same reasons.

New ground

16    At [24] of his reasons, the primary judge dealt with a submission made by the appellant at the hearing in the Federal Circuit Court proceedings:

I invited the applicant to make oral submissions during the hearing. The applicant used this opportunity to explain that when the Tribunal had asked her to provide further evidence she was unable to as she had told the Tribunal of all the things that had happened to her. The applicant claimed that sometimes when the Tribunal Member asked her questions she did not understand what he was asking. I note that there is no ground pleaded by the applicant complaining about the quality or standard of interpretation before the Tribunal, that the applicant was assisted by a NAATI Level 3 qualified interpreter and that no transcript of the Tribunal hearing has been sought to be adduced. Accordingly, I decline to give this submission any further consideration.

17    At the hearing of the appeal, the appellant submitted that some things said to her at the Tribunal hearing were not clear because she could not hear properly; she said she could not understand everything said to her by the interpreter. She claimed to have had a problem with hearing since 2012. She said she did not tell the Tribunal Member about the problem because she was too scared to do so. She went on to say that she was in an emotional state at the hearing and could not hear properly, she was sick, nervous and could not cope; she had been so tense that she had had no feeling in one side of her face, the side on which her hearing was affected. She had not seen a doctor about her hearing problem because she did not speak English and had not known who to approach.

18    After a brief adjournment, the Minister’s representative indicated that if the Court were minded to allow an adjournment for the appellant to provide evidence in support of her claim, the Minister would be prepared to provide a transcript of the Tribunal hearing, but the Minister would seek an order for costs thrown away on the hearing. The appellant was offered the opportunity to provide further evidence, including medical evidence, in support of her claim on the basis that she would be liable for costs thrown away of the proceedings on 27 February 2014. The appellant elected not to seek an adjournment.

19    The Minister submitted that the appellant would require leave to advance this new ground and it should be denied because it was not in the interests of justice that the Court allow this new ground to be advanced on appeal. The Minister argued that: (1) the appellant raised a similar issue before the primary judge and had therefore had the opportunity to include it in her grounds of appeal to this Court or to seek to amend the grounds over a period of months and to provide evidence in support of the ground. She could have approached the Minister for a copy of the transcript of the Tribunal hearing, for instance; and (2) the appellant had been given the opportunity by the Court to seek an adjournment to compile evidence and present the ground appropriately but she elected not to so do. This prejudiced the Minister’s capacity to respond.

20    If the Court were minded to grant leave to advance this ground, the Minister’s representative submitted that there was no evidence before the Court capable of substantiating the factual elements of the appellant’s unsworn statement. The unsworn statement was itself problematic: for instance, the appellant said that she had had a condition affecting her hearing since 2012, but also said that she had not seen a doctor, and there is no medical evidence to support her claim. There is nothing in the Tribunal’s decision record, the only material before the Court, which indicates that the appellant raised the issue during the hearing or that the Tribunal member noticed that the appellant was experiencing difficulty.

21    I have decided that leave should not be granted to the appellant to advance the new claim for the reasons submitted by the Minister’s representative set out at [20]. Further, it is a common experience of applicants at a Tribunal hearing that they will be uncomfortable and experience stress from the environment but it is well established that this will not be enough to vitiate the hearing: see NAMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 983 per Branson J at [51]-[52]. There is no medical evidence, transcript or recording of the Tribunal hearing before the Court which would substantiate a claim that the appellant was effectively denied a hearing as required by s 425 because of any infirmity. It is also not apparent from the Tribunal’s decision record that the appellant was unable to present evidence and argument at the hearing.

Ground 3

22    Ground 3 of the appeal to this Court lacks particulars and therefore can only be construed as a complaint about the outcome in the Federal Circuit Court which does not reveal error capable of sustaining an appeal.

Conclusion

23    For these reasons I dismiss the appeal and order that the appellant pay the costs of the first respondent as agreed or as assessed if not agreed.

Associate:

Dated:    28 February 2014