SZHAU v Minister for Immigration and Multicultural Affairs

[2006] FCA 345

FEDERAL COURT OF AUSTRALIA

SZHAU v Minister for Immigration & Multicultural Affairs

[2006] FCA 345

SZHAU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD 2646 OF 2005

STONE J
4 APRIL 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2646 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZHAU APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS FIRST RESPONDENT
REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT
JUDGE:	STONE J
DATE OF ORDER:	4 APRIL 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2646 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZHAU APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS FIRST RESPONDENT
REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT

JUDGE:	STONE J
DATE:	4 APRIL 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant’s application for a protection (Class XA) visa was rejected by a delegate of the first respondent and then by the Refugee Review Tribunal on 1 October 1998.  Nearly seven years later, on 29 August 2005, the appellant filed an application for review of the Tribunal’s decision in the Federal Magistrate’s Court.  Emmett FM dismissed the appellant’s appeal and on 30 December 2005 the appellant filed a notice of appeal in this Court.

2. The appellant, a citizen of the People’s Republic of China, claims to belong to the Han ethnic group and to be a Christian.  She claims to fear persecution by the Government of the People’s Republic of China on the basis of her religion, arising out of the Government’s attempts to eradicate ‘unauthorised Christian churches’. 

   The Tribunal’s Decision

3. The Tribunal found that three significant claims made by the appellant at the hearing and which had not been raised prior to the hearing, were not credible.  The claims were that:

   1.in 1996 the appellant was arrested and detained for three months for her participation in a "a house church" and subsequently escaped from custody;

   2some individuals had accused the appellant of being active in developing the house church and that this is why the appellant was detained in 1996; and

   3.the appellant was forced to have two abortions after her second child was born.

4. In rejecting these claims the Tribunal emphasised the quality of advice that it believed the appellant would have received from the adviser who had represented her from the commencement of her primary application to the Tribunal hearing.  The Tribunal did not accept that the appellant would not have told the adviser of these claims if they were true.  Speaking of the adviser, the Tribunal said:

   ‘He accompanied the applicant to her Tribunal hearing and has prepared several written submissions for her.  He is Chinese himself and is a NAATI Level 3 interpreter so there is no reason to suspect that the applicant and her adviser had any communication problems.  The Tribunal expects that the applicant’s adviser would have thoroughly advised the applicant of the refugee definition and of the need to tell her whole story truthfully.  The Tribunal would have expected that the applicant would have discussed her reasons for leaving China with her adviser and he would have advised her of the requirements that she had to meet before she could be granted refugee status in Australia.’

5. The Tribunal rejected the claims about the appellant's arrest and detention and described her account of her escape from custody as "implausible and far-fetched".  The Tribunal also rejected the appellant's claims to have had two abortions forced upon her.  The Tribunal commented:

   ‘For the same reasons discussed above about the quality of the advice which the applicant has received from her adviser throughout her case, the Tribunal does not accept that the applicant would have failed to tell her adviser or the primary decision maker about this claim previously if it were true.’

6. The Tribunal referred to the fact that the appellant and her adviser were given leave to make a written submission to the Tribunal on the issue of the appellant’s claimed forced abortions but the written submissions that were received from the appellant’s adviser did not mention the claims about forced abortions.  The Tribunal further observed that the remainder of the appellant’s evidence was:

   ‘also of a quality which suggests to the Tribunal that she rehearsed much of her evidence and she became confused when the questions asked by the Tribunal deviated from the script which she had hoped the Tribunal would follow.’

7. The Tribunal also found that on the appellant’s own evidence, she had attended house church services between 1990 and 1997 in China without hindrance and, upon independent country information, that there would be no impediment to the appellant practising her religion upon her return to the People’s Republic of China.  Finally, the Tribunal found that any prosecution that the appellant might face upon her return to China, because of her alleged escape from prison and her illegal departure from China, would not amount to persecution for a Convention reason.

   THE FEDERAL MAGISTRATE’S DECISION

8. Before the Federal Magistrate the appellant, represented by counsel, raised three grounds of appeal:

   1. that in contravention of s 418(3) of the Migration Act 1958 (Cth) (‘the Act’) the Tribunal was not provided with the Part B documents referred to in the Tribunal’s decision. Consequently, the Tribunal did not comply with s 424(1) of the Act when it found that a favourable decision could not be made on the information in the papers alone.

   2.   that the appellant was denied procedural fairness because the Tribunal failed to disclose to the appellant the adverse independent country information to which the Tribunal had regard.

   3. that the Tribunal contravened s 420(2)(b) of the Act because it failed to act according to substantial justice and the merits of the case.

9. In respect of the first ground of review, her Honour found that the then s 424(1) of the Act required only that the Registrar consider the documents provided under ss 418 and 423 of the Act for the purpose of determining whether or not the Tribunal could make its decision on the papers alone. However, in this case the Tribunal did not make its decision on the papers alone - it took oral evidence from the appellant. Her Honour further found that there was no evidence to suggest that the Tribunal was not provided with the s 418 documents and accordingly rejected this ground of appeal.

10. With respect to the second ground of appeal, her Honour considered that, as s 422B of the Act was not in effect at the time of the Tribunal decision, the common law requirements of procedural fairness and natural justice applied. Her Honour found that these principles of natural justice ‘require that those matters that operate upon the mind of the Tribunal by way of concern, or which may lead to an adverse finding in respect of the Applicant, be put to the Applicant with an opportunity for the Applicant to respond.’  Her Honour found that the Tribunal complied with these requirements by putting to the appellant the relevant independent country information and its concerns as to her credibility.  The appellant and her adviser were afforded an opportunity to respond to this material.  Accordingly her Honour rejected this ground of appeal.

11. Although it had not been addressed by counsel in oral submissions, Her Honour addressed the final ground of appeal since it had not been formally abandoned.  Her Honour found that the Tribunal made findings of fact that were open to it and which were capable of forming the basis of the Tribunal’s conclusion that it was not satisfied that the appellant was a person to whom Australia owed protection obligations and therefore rejected this ground of appeal.

12. Her Honour also went on to observe that even if she had found the Tribunal’s decision to have been affected by jurisdictional error, she would have exercised her discretion to refuse prerogative writ relief on the basis of the appellant’s delay in seeking review of the Tribunal’s decision. 

    THIS APPEAL

13. The appellant filed a notice of appeal on 30 December 2005.  The first respondent was content for the notice of appeal to be treated as an appeal from a final decision, despite some equivocation as to whether Emmett FM’s decision ought to be considered as a final or as an interlocutory decision.  On that basis, and because the appellant does not have the benefit of legal advice, I am prepared to give the appellant any leave she may have required to file her notice of appeal. 

14. The notice of appeal claimed that the Tribunal had made certain specified errors, namely:

    1.   that the Tribunal constructively failed to exercise its jurisdiction by not considering the appellant’s claim to fear prosecution by reason of PSB spies informing the Chinese Government as to the appellant’s Falun Gong activities.

    2.   that the Federal Magistrate committed an error of law, by asking herself the incorrect question in assessing the likelihood of the appellant successfully avoiding persecution in circumstances where the Tribunal had failed to reach a state of satisfaction that the appellant was genuinely committed to the practice of Falun Gong.

15. Neither of the grounds of appeal summarised above was raised before the Federal Magistrate.  The reason for this became obvious at the hearing shortly after the appellant began reading submissions that made no reference to the grounds listed in the notice of appeal.  It is apparent that, although the notice of appeal was signed by the appellant, it was not filled out by her but by her friend.  The appellant was puzzled by the reference to Falun Gong; she said that she had never been a member of this group and that she was a Christian.  When asked to say what she wished to substitute as her grounds of appeal, the appellant was not coherent however she continued to read to the Court from some written submissions she had prepared.

16. After discussing the matter with Mr Jordan, who appeared for the first respondent, I allowed the appellant to read her prepared submissions so that I could determine if they related to claims made earlier and considered by the Federal Magistrate.  The appellant’s written submissions largely consisted of assertions that go to the merits of the Tribunal’s decision.  In so far as there was a claim of legal error, it was a claim that she had been denied procedural fairness in the Tribunal by not having been given the opportunity to explain the impact the alleged forced abortions had on her.  

17. Although the question of procedural fairness had been raised before the Federal Magistrate, that claim had related to an allegation that the appellant had not been given an opportunity to respond to adverse independent country information.  As Mr Jordan pointed out, a claim to have been denied an opportunity to make submissions about the impact of the abortions is, strictly speaking, a new ground of appeal and one that, in his submission, does not have any substance.  

18. I accept this submission. The Tribunal’s reasons for dismissing the claim based on the forced abortions are discussed above at [4]. According to the Tribunal, not only was the appellant's adviser allowed to make submissions at the hearing before the Tribunal but was also given permission to make written submissions after the hearing. As explained above, although written submissions were received they did not contain any reference to abortions. The appellant has not contended otherwise and in the circumstances I find that the appellant was given ample opportunity to explain her position regarding the alleged abortions. In my view, this claim is entirely without merit and therefore the appellant should not be given leave to amend her notice of appeal in relation to this claim.

19. Although the appellant did not raise any other ground of appeal, or make any submissions from which another ground of appeal could be discerned, as she does not have legal representation, in the interests of justice I have reviewed the Tribunal’s reasons for myself and am satisfied that the Federal Magistrate was correct to dismiss the application for the reasons she gave and which I have summarised above. 

20. The appeal must be dismissed with costs.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:
Dated:             4 April 2006

The appellant appeared in person
Counsel for the First Respondent:	Mr D Jordan
Solicitor for the First Respondent:	Sparke Helmore
Date of Hearing:	29 March 2006
Date of Judgment:	4 April 2006