SZHEV v Minister for Immigration and Citizenship

[2008] FCA 1234

FEDERAL COURT OF AUSTRALIA

SZHEV v Minister for Immigration and Citizenship [2008] FCA 1234

SZHEV v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 522 OF 2008

MIDDLETON J
13 AUGUST 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 522 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHEV
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MIDDLETON J
DATE OF ORDER:	13 AUGUST 2008
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 522 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHEV
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MIDDLETON J
DATE:	13 AUGUST 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal against a judgment of a Federal Magistrate of 28 March 2008 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) signed on 18 May 2007.  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 who arrived in Australia on 30 December 2004.  On 28 January 2005 the appellant lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs (as it was then known).  A delegate of the first respondent refused the application for a protection visa on 3 March 2005.  On 1 August 2005 the Tribunal affirmed the decision of the delegate. On 20 November 2006 the matter was remitted to the Tribunal by consent orders of the Federal Magistrates Court. 

3. Before the Tribunal, the appellant claimed to have a well-founded fear of persecution from the authorities due to her alleged political opinion, her involvement in an organization called ‘The Association of Love’ and because she was a lesbian. 

4. The appellant claimed that she participated in the 1989 pro-democracy movement and supported the students by helping distribute propaganda materials and collecting donations. The appellant claimed that she had been in Beijing during the Tiananmen Massacre, and that her aunt had been accidentally killed by the government who then forced the appellant to sign a statement indicating her aunt and uncle were rioters.  Since then the appellant has been regarded as a political dissident.  The appellant had to attend brainwashing classes, and in 1990 was dismissed from her job.  She claimed to have difficulty finding employment due to her blemished record.  She claimed to have been required to participate in brainwashing classes and regularly detained on the anniversary of the Tiananmen Square massacre.

5. The appellant claimed to also have been targeted by the authorities for being a lesbian.  She claimed that in 1987 she formed a sexual relationship with a co-worker, that she had been regularly investigated and monitored by the Public Security Bureau (‘PSB’), and that she had been thrown out of her dormitory.  The appellant claimed that during the brainwashing classes she met other lesbians and they formed an organisation in 2003 called ‘The Association of Love’, which distributed propaganda materials asking for freedom, human rights and respect.  She claimed she was elected chairman of the organisation and that in 2004 she was interrogated by police.  She claimed that since January 2005 many members of the Association of Love had been arrested, and her partner had been interrogated.  She claimed the PSB searched her home and found she was the founder and leader of the Association of Love.

   TRIBUNAL DECISION

6. The Tribunal did not accept the appellant was a political activist and consequently found she was not a credible witness.  The Tribunal accepted that the appellant was in Beijing at the time of the 1989 pro-democracy movement and that her aunt and uncle were inadvertently shot.  The Tribunal accepted the appellant had been detained for 20 to 24 days in 1989 and that she was required to sign documents confessing her aunt and uncle were rioters.  However, the Tribunal found the appellant had provided no evidence to support her claim that she was regarded as a political dissident or that her dismissal from her job was related to the pro-democracy movement.  The Tribunal was not able to satisfy itself the appellant was then, or subsequently regarded, as a political activist or dissident;  the appellant had not been in a leadership role and the actions of the PSB were not to incriminate the appellant but were to justify the shooting of her aunt.

7. The Tribunal found the appellant’s claims on a range of matters were inconsistent (such as her employment record) and did not accept that her record had been blemished.  Further, the appellant had not been involved in anti-government demonstrations or other activity in Australia.  It found that if she had strong views on human rights she would have been involved in such activity in Australia. 

8. The Tribunal was also not satisfied that the appellant had been subjected to serious harm for being a lesbian. The Tribunal was not satisfied the essential and significant reason the appellant had been dismissed from her job was a Convention reason.  The Tribunal noted that the appellant gave evidence that her partner had not been evicted from the dormitory nor had been dismissed from her employment for being a lesbian.  The Tribunal did not accept the appellant and her partner would have had such significantly different treatment.

9. The appellant gave evidence that she was legally issued with a passport in March 2004, was allowed to leave for Europe (and return to China) and then to Australia without difficulties.  The Tribunal gave consideration to country information and found that if the appellant had been a known lesbian and had been regarded as a political dissident since 1989 she would not have been legally issued with a passport.  Further, if the appellant had suffered persecution, she would not have returned to China in 2004 but rather would have sought asylum in Europe.  If the authorities had been interested in the appellant because of her involvement in the Association of Love, the appellant would not have been able to leave China in 2005.

10. Although the Tribunal accepted the appellant was a lesbian and had met with other lesbians, it found that their organisation was a small group of friends rather than an illegal organisation pursuing human rights.  It found that she had embellished her claims in relation to the Association of Love. The Tribunal considered country information and found that lesbians and homosexuals were not persecuted in China, and that the appellant did not have a well-founded fear of persecution for her involvement with such an organisation.

    THE COURT BELOW

11. In an application filed in the Federal Magistrates Court on 27 June 2007, the appellant claimed that the Tribunal committed jurisdictional error.  Nine particulars were listed, which essentially referred to the alleged failure by the Tribunal to consider the appellant’s evidence and relevant country information, the fact that the Tribunal knew her files had been lost which has jeopardised her privacy and safety, and that the application had never been fairly assessed.

12. The Federal Magistrate, in considering the Tribunal’s decision in light of the claims made by the appellant, dismissed the application.  Her Honour found that the Tribunal had given consideration to relevant country information, and that the choice and weight of country information was a matter for the Tribunal.  The Tribunal did have consideration to the claims raised in particulars three to seven, and found that the appellant sought merits review.  In relation to particular eight, her Honour was unable to discern the nature of the ground alleged but noted no procedural unfairness had occurred or that there was evidence to indicate the appellant had been ‘endangered or that she may be prejudiced in any way’ or evidence to establish bias.  Finally, in relation to the last particular, her Honour found that this sought to challenge the Tribunal’s factual findings, which were open to the Tribunal on the evidence.

    PRESENT APPEAL

13. The notice of appeal raised six grounds of appeal, which can be summarised as follows :

    1.A failure by the Tribunal to consider the evidence properly and fairly, including country information regarding the changes in China, especially in relation to exit procedures.

    2.A failure by the Tribunal to act according to substantial justice and the merits of the case, including absence of natural justice.

    3.The Federal Magistrate did not impartially consider the claims that the Tribunal had lost her files and placed her in a dangerous situation. The Tribunal should take responsibility for losing her file which has placed her privacy in danger.

    CONSIDERATION

14. On the question of evidence, in written submissions dated 5 August 2008 the appellant submitted that the Tribunal failed to consider important evidence upon which the appellant relied.  However, in each of the instances given, the Tribunal did in fact refer to and consider the evidence, but rejected the claims.  Therefore, this is not a case of failing to consider the evidence or the claims, but a case where each of the claims was considered but rejected.

15. The appellant asserted that the Tribunal failed to consider independent sources properly and fairly, and referred also to the most recent ‘Country Reports on Human Rights Practices – 2006’, apparently released in March 2007.

16. The choice and assessment of independent country information is a factual matter for the Tribunal:  NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 and NABD of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 216 ALR 1. Further, the Tribunal is not required to accept claims of the appellant that are inconsistent with the information regarding the situation in the appellant’s country of nationality: NABD of 2002 and Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437.

17. The weight the Tribunal gives to any piece of evidence is a matter for it to decide:  NBKT v Minister for Immigration & Multicultural Affairs (2006) 156 FCR 419 and Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464. Even if it could be established that the Tribunal made an error of fact by relying on incorrect country information, this would not amount to an error of law or a jurisdictional error: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10.

18. The Tribunal examined a considerable amount of country information in its decision and after putting the information to the appellant it accepted the independent country information over the evidence of the appellant.  This the Tribunal was entitled to do.

19. Further, the Tribunal is not obliged to refer in its reasons to every piece of evidence or every contention by an appellant, or to expressly grapple with any evidence contrary to its findings of fact:  WAEE v Minister for Immigration and Multicultural Affairs (2003) 75 ALD 630; [2003] FCAFC 184 at [46]. There is no indication that the Tribunal ignored any claim that it was jurisdictionally obliged to consider. Nor is there any indication that the Tribunal ignored any of the appellant’s evidence, although, even if it had, that would be not a jurisdictional error but rather no more than ‘a failure … to attend to evidence, even probative evidence, and by such route [to] commit a factual error’: Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at [42]. As I have said, all that has occurred is that the Tribunal has not accepted the appellant’s claims.

20. As to failing to accord with substantial justice and the merits of the case, the Tribunal did not fall short of the objectives set out in s 420 and in particular s 420(2)(b), to which the appellant specifically refers. 

21. There appears to be no breach of either s 425(1) or s 424A of the Act and no evidence of a denial of procedural fairness.  The appellant was given ample opportunity to present her case.  The reasons for the Tribunal’s decision clearly demonstrated that it understood the nature of the claims and explored these claims with the appellant.

22. There is no evidence that the Tribunal did not bring an open mind to the proceedings.  The findings of the Tribunal had a clear evidentiary basis and were open to it on the evidence and material before it.  The Tribunal appears to have given full consideration to all of the appellant’s evidence and discussed with the appellant each of the matters that led to the decision.  There is no substance to suggest that the Tribunal did not bring an open, independent mind to the decision, or that a well-informed lay observer would perceive the Tribunal to be biased.

23. As to the allegation that the Federal Magistrate did not bring an open and independent mind to the proceedings, there is no evidence in the judgment of the Federal Magistrate or otherwise that gives rise to any belief of apprehended bias or actual bias.  The Federal Magistrate appears to have brought an open mind to the proceedings and has addressed each aspect of the appellant’s claims impartially.  There is nothing to suggest that a well-informed lay observer would perceive the Federal Magistrate to be biased.

24. As to the lost file, the Federal Magistrate was correct in finding, on the evidence before the Court, that the appellant did not raise any claim before the Tribunal that she or her application may be endangered or prejudiced by the loss of her file.  At the end of its hearing the Tribunal asked the appellant whether there were any other claims or matters she wished to put before the Tribunal, and the appellant raised no matter connected to her lost file.  There is no evidence that the lost file impacted otherwise on the hearing before the Tribunal.

25. Finally, in the written submissions of the appellant dated 5 August 2008, the appellant set out the ‘key issues’ in her case.  Each of these matters was for the Tribunal to consider, which it did, and involves essentially factual enquiries.

26. In my view, the Tribunal undertook a proper, genuine and realistic consideration of the appellant’s claims, which included giving ample opportunity to the appellant for discussion of her evidence.  The appellant’s claims and evidence were considered by the Tribunal before it reached its decision and the conclusions made were open to the Tribunal on the evidence before it.

27. In my opinion, the approach of the Federal Magistrate and her Honour’s conclusion were correct.

28. The appeal should be dismissed.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton.

Associate:
Dated:        15 August 2008

Counsel for the Appellant:	In person
Solicitor for the First Respondent:	DLA Phillips Fox

Date of Hearing:	13 August 2008
Date of Judgment:	13 August 2008