SZHFG v Minister for Immigration - [2009] FMCA 1186

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHFG v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 1186

MIGRATION – Review of decision of Refugee Review Tribunal – Tribunal dealt with applicant’s claims – applicant seeking impermissible merits review – no failure to comply with s.424 – no jurisdictional error – application dismissed.

PRACTICE & PROCEDURE – Adjournment – application for adjournment to obtain written legal advice – reasonable period to obtain legal advice – no explanation for failure to obtain legal advice – applicant experienced in prosecuting matters – applicant had some assistance – application for adjournment refused.

Migration Act 1958 (Cth), s.424

SZKTI v Minister for Immigration and Citizenship [2008] FCAFC 83
S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; 216 CLR 473
SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 702
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39
Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244

Applicant:

SZHFG

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1954 of 2009

Judgment of:

Nicholls FM

Hearing date:

26 November 2009

Date of Last Submission:

26 November 2009

Delivered at:

Sydney

Delivered on:

2 December 2009

REPRESENTATION

Appearing for the Applicant:

In person

Solicitors for the Applicant:

Appearing for the Respondents:

Ms L Buchanan

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application made on 14 August 2009 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5,300.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1954 of 2009

SZHFG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made under the Migration Act (Cth) (“the Act”) on 14 August 2009, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 24 July 2009, which affirmed the decision of a delegate of the first respondent to refuse a protection visa to the applicant.

Background

The applicant is a citizen of the People’s Republic of China (“China”). She arrived in Australia on 12 December 2004 and applied for a protection visa on 20 January 2005 (Court Book – “CB”, CB 1 to CB 26).

The Applicant’s Claims

The applicant’s claims were that she feared persecution in China because of the so-called “one child policy”.
Specifically, she claimed that she faced pressure to undergo forced sterilisation in March 1992 after the birth of her first child. She was refused permission to register the birth of her second child and was heavily fined.
When an official found her to be pregnant for a third time, she barely escaped a forcible abortion. After the birth of her third child, she was again refused permission to register the child and received another heavy fine as penalty. Neither fine has been paid.
She feared forced sterilisation if she were to return to China.

The Delegate

The delegate refused the protection visa application (CB 32 to CB 46).

History Before the Tribunal and the Courts

The applicant applied for review by the Tribunal on 20 January 2005. (The application is not reproduced in the Court Book.)
The applicant’s matter has had a long history before the Tribunal and the Courts:
1)The Tribunal (as first constituted) affirmed the delegate’s decision by decision signed on 4 August 2005 (CB 49 to CB 56).
2)An application for judicial review was dismissed by a Federal Magistrate on 9 May 2007 (CB 57 to CB 65).
3)Before the Federal Court, the applicant’s appeal was successful for reason of a breach of s.425 (by consent). Orders remitting the matter to the Tribunal were made on 18 September 2007 (CB 66 to CB 67).
4)The Tribunal (as second constituted) again affirmed the delegate’s decision by decision signed on 17 December 2007 (CB 229 to CB 251).
5)An application for judicial review was dismissed by another Federal Magistrate on 14 April 2008 (CB 253 to CB 264).
6)This was again reversed on appeal in the Federal Court. Orders by consent were made on 11 August 2008. (This involved a failure to comply with s.424(3) in light of SZKTI v Minister for Immigration and Citizenship [2008] FCAFC 83 – CB 265 to CB 267).
7)The Tribunal (as thirdly constituted) yet again affirmed the delegate’s decision on 24 December 2008 (CB 279 to CB 292).
8)Orders were made by consent on 21 April 2009 by a third Federal Magistrate that the application be remitted to the Tribunal (CB 294). The Minister conceded that the Tribunal failed to consider the applicant’s claim that she wished to have another child, and on return would have difficulties if she did so.
9)The applicant appeared at (another) hearing before the Tribunal (as fourthly constituted, and for the current purposes, “the Tribunal”) on 16 July 2009 (CB 302).
10) The Tribunal’s account of what occurred at the hearing is contained in its decision record ([64] at CB 317 to [90] at CB 321).
The Tribunal understood that the applicant pressed her claims to fear persecutory harm in China on the basis that she would be liable to pay fines in relation to the birth of her two younger children, and that she would face forcible sterilisation or, if she became pregnant, termination.
The Tribunal also considered whether the applicant’s claim to be a Christian, which was raised before a previously constituted Tribunal, would lead to persecutory harm ([116] at CB 328).
The Tribunal accepted much of the applicant’s factual account of what she said had occurred in China. It accepted that she had had brief involvement with a family church in 1994 in China, and had occasional contact with small church groups before coming to Australia. It accepted that she attended church in Australia.
While the applicant had claimed before a previously constituted Tribunal that she had some difficulties in China because of her connections with family churches, it accepted that her unequivocal evidence before it at the latest hearing was that she had no problems of this nature in China, and noted that she was unable to explain why she had previously said that she had ([117]).
The Tribunal found that, based on the applicant’s evidence and some independent information, she did not have a well founded fear of persecution for the Convention reason of religion if she were to return to China ([117]).
In relation to the claim emanating from the breach of family planning laws in China, the Tribunal accepted that she (and her husband) remained liable to pay a “fee” in relation to the births of their second and third children ([119]) because of the relevant population and family planning law.
The Tribunal, however, found that the relevant law would not be imposed on the applicant for any discriminatory reason, or that it would be applied more harshly to the applicant than to others in the general population.
The Tribunal found that she did not claim that she would be required to pay anything more than the standard compensation fees. The Tribunal further found that any action taken against the applicant for failure to pay the fee would not be the result of any discriminatory conduct, but the result of the enforcement of a law of general application. The Tribunal found that the requirement for her to pay the fee would not amount to Convention related persecution ([118] to [126]).
The Tribunal accepted that she had a fear of forced sterilisation in 1994 ([127]).
It noted that she had told a previously constituted Tribunal that she intended to have another child if she returned to China. But it noted her subsequent evidence that she no longer had this intention.
The Tribunal was conscious of what was said by the High Court in S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; 216 CLR 473 and, in particular, that refugee applicants are not required, nor are they expected, to take reasonable steps to avoid persecutory harm, nor are they expected to live “discreetly” to avoid such harm ([129]). The Tribunal understood, therefore, that in considering the claim to fear harm in the future, it was required to consider whether any modification to her behaviour, expressed as avoiding pregnancy, would be because she had a well founded fear of persecution for a Convention related reason.
The Tribunal found that, notwithstanding the situation in the past, there was not a well founded fear of Convention related persecution if the applicant were to return to China in the future ([137]).
The Tribunal’s reasoning was:
1)It was satisfied on the evidence before it that there was no compulsory sterilisation in the applicant’s home province ([131]).
2)The Tribunal was satisfied, on the evidence before it, that the incidence of forced sterilisations and terminations in the applicant’s home province had diminished and was now very low. It found that the chance of sterilisation or, if pregnant, termination, was remote ([132] to [133]).
3)Further, that in the applicant’s particular circumstances (her age, the fact that she last gave birth some twelve years ago, her husband’s employment outside the home province), were circumstances which even “over zealous” family planning officials would be aware of, leading to the finding that it was highly unlikely that they would pursue forced sterilisation on the applicant ([134]).
4)That the applicant’s evidence that she lived at her family home in her home village for at least a year, if not more, before her departure from China, supports this finding that officials would not have any relevant interest in her ([135]).

The Application to the Court

The application is in the following terms:
“1. The Tribunal has failed to comply with the requirements set out in s.424(3)(b) of the Migration Act 1958 (Cth) in that [it] was aware that the applicant has received medical attention for ongoing psychological problems resulting from her fear of being forcibly [sterilised] should she return to China but has not requested a medical report pertaining to this.
2. The Tribunal failed to deal with the psychological harm the applicant will face upon returning to China as a result of submitting every 3 months for an internal examination as required under ‘the one child policy’
3. The Tribunal failed to take into account that the applicant will be impecunious when she returns to China and unable to meet the hefty fines she will face forced sterilisations if caught by the government officials for not obeying ‘the one child policy’
4. The Tribunal failed to take into account that the applicant will be forcibly sterilised or have a pregnancy forcibly terminated in the reasonably foreseeable future if she returns to Fujian province. The Applicant has a genuine fear and will face persecution for a Convention reason on the grounds of her continued religious beliefs. S 91R.
5. The Tribunal failed to consider the Applicant’s circumstances in particular the level of personal and financial har[d]ship she may face persecuted by Chinese government of branch ‘the one child policy’ if she returns to China.”

[Errors in the original.]

Despite opportunity, no amended application, further evidence, or submissions have been filed by the applicant. Written submissions have been filed on behalf of the first respondent.

Before the Court – The Application for an Adjournment

The applicant appeared in person. She was assisted by an interpreter in the Fuqing language. Ms L Buchanan appeared for the first respondent.
At the commencement of the hearing the applicant stated that she had not received advice from the lawyer on the panel of the Court’s RRT Legal Advice Scheme. I understood this to be a reference to written advice.
Although there was no difficulty in extracting this from her, I ultimately understood that the effect of what she was seeking was an adjournment of the hearing to enable her to obtain this advice. She further stated that she was pursuing other legal advice, and wanted an adjournment for this purpose also.
I adjourned for a brief period to enable Ms Buchanan to obtain instructions as it may have been that, notwithstanding the arguments (and legal authority) against the granting of the adjournment, the Minister may have wished to pursue what may best be described as a possible prudent course.
On return, Ms Buchanan, on instructions, opposed the granting of any adjournment. Ultimately, I was persuaded that the adjournment should not be granted.
At the First Court Date the applicant had indicated that she wished to participate in the RRT Legal Advice Scheme. Copies of correspondence from the Court’s Registry reveal that communications were sent to the applicant, the respondent’s solicitors, and a lawyer on the panel of the Scheme.
The applicant confirmed that she had received this letter which contained contact details for the lawyer. The Court Book had been served within the time ordered at the First Court Date in this matter.
There was nothing before the Court by way of submissions, let alone evidence, to show that the period provided by the timetable set out at the First Court Date was other than a reasonable period for such advice to be provided. The time available for this purpose was over six weeks.
The applicant gave no explanation for her own failure to make contact with the panel adviser, as the time for the final hearing approached, if indeed she had not been provided with such advice.
I note, in this regard, that the timetable set out by the effect of the orders made at the First Court Date was extended when the originally scheduled date for the final hearing was changed from 2 November 2009 to 26 November 2009.
Further, this is not the first time that the applicant has appeared before the Courts. It is clear that a referral to a panel lawyer would have been available to her on each of the three previous occasions that she has applied to this Court. The extensive litigation history as outlined above (see [9] above), ranging over a period of well over two and a half years, suggests that the applicant, even granted the deficiency of language difficulty, lack of understanding of the law, and even illiteracy, was quite adept at prosecuting her matters, or obtaining assistance in doing so, not only before this Court, but also the Federal Court (albeit at the early stages of the appeals process).
Nor was the applicant without assistance, or without the capacity to obtain assistance, in Australia. She was accompanied at the hearing by another person. She confirmed that her application had been drafted and physically written by another person. She has been in Australia for just under five years. While lacking education, the applicant presented as a person with some intelligence, who has clearly managed to find ways to successfully conduct and prosecute her affairs and her complaints to the Courts over a long period of time.
Finally, I am guided by what was said in SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 702, a matter on appeal from this Court, per Gyles J, particularly at [3] to [4]:
“3 The first paragraph of the affidavit in support of the application is:
‘I was not given access to free legal advice which is commonly available to applicants through the NSW Legal Advice Scheme. I was denied natural justice at the Federal Magistrates Court.’
4 That contention was put to the learned Federal Magistrate and, in my opinion there is no doubt about the correctness of the view he expressed that there is no right to free legal advice and that the fact that an adjournment was not granted to access free legal advice was not a denial of natural justice.”
In relation to her claim that she sought more time to obtain legal advice from a source other than the panel lawyer, the applicant made no submission, let alone provide any evidence, that she had made any attempt to obtain such advice, or even that she had made any enquiries as to how to go about this.
Despite opportunity, the applicant said nothing to the Court to suggest that there was sufficient certainty attached to this proposal, or that the inability to obtain such advice in the time available was due to any particular difficulty or obstacle. Nor, indeed, that any lawyer had been approached.
Ultimately, if the applicant had wished to pursue this avenue, she had more than a reasonable amount of time to have done so. Nor was her request for a specific time such that the Court could consider if this were reasonable. Her request, at best, in this regard, was vague, lacking in detail, and uncertain.
For these reasons, the adjournment “application” was refused.

Before the Court – The Hearing of the Application for Review

Before the Court, the applicant also stated that she had ongoing psychiatric problems and had brought a certificate to that effect.
I understood that the applicant’s statement was not directed to any request for an adjournment of the final hearing, but rather put in support of the complaint in ground one of the application that the Tribunal failed to take her mental distress, emotional condition, and psychological state into account. (See further below and under ground one.)
During the course of the hearing before the Court, the applicant presented as developing a heightened emotional state. Even taken at face value, however, I did not see this as detracting from her capacity to present her case, subject to the other limitations, which she carried, and as discussed above. (See [35] above.)
The applicant also submitted that she had told the Tribunal of her fears if she were to return to China, that is, that she was worried about her children, and that she would be forcibly sterilised. Yet the Tribunal found that she could return.
If this is a complaint that the Tribunal failed to deal with her claims, even in part, or that it failed to properly deal with her claims, then this must be rejected.
The Tribunal’s decision record reveals that it well understood the applicant’s claims in this regard. On the Tribunal’s unchallenged account of what occurred at the hearing before it, these matters were discussed. (See [68] to [71] and, in particular, [78] to [80].)
The Tribunal accepted the applicant’s concerns in this regard, but for the reasons already referred to above, found that these concerns, and the totality of the applicant’s claims, were not such as to satisfy it that Australia owed her protection under the Refugees Convention.
That the Tribunal understood her concerns in this regard is further evidenced in its recommendation that the applicant’s case be referred to the Minister for consideration of his discretion pursuant to s.417 of the Act. A recommendation that may be said, in the circumstances of what appears in the relevant material in the Court Book, to be generous.
In all, therefore, this complaint made before the Court does not rise above a request for this Court to intervene and substitute its own findings for those of the Tribunal. Such merits review is, of course, not permitted (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259).

Ground one

Ground one asserts a breach of s.424(3)(b) of the Act. The applicant complains that the Tribunal was aware that she had received medical attention for ongoing psychological problems, arising from her fear of forced sterilisation, but did not request a medical report in relation to this.
Before the Court, the applicant submitted that she had told the Tribunal about her fears concerning her children and her physical safety. Further, she also submitted that she was emotionally and psychologically affected and was taking medication.

The applicant’s ground, even as expanded in submissions, does not succeed in showing jurisdictional error on the Tribunal’s part.
First, the applicant did not point to anything before the Court to show that the Tribunal was aware that she had obtained psychological assistance and that she had a medical report. It is the case that the applicant told the Tribunal of her relevant fears. As set out above, the Tribunal properly dealt with this.
Whoever drafted ground one in the application did not understand the applicant’s factual position. Before the Court, the applicant submitted that she consulted a psychiatrist on 5 October 2009. The medical certificate, which she said she had with her, related to that consultation.
The hearing before the Tribunal was on 16 July 2009. The decision was made on 24 July 2009. The certificate in the applicant’s possession now clearly postdates both those events. It cannot, therefore, show jurisdictional error on the part of the Tribunal.
Even if there had been some earlier visit to a relevant medical practitioner, there was no evidence before the Tribunal to that effect, such as to base the complaint contained in ground one.
Second, even based on what can be shown to have been before the Tribunal, the applicant’s claims to fear for her children and her safety, and even if the applicant presented in an emotional state (she “cried when she rang her” children – [89]), this does not create a basis for the applicant now to say that the Tribunal should have made enquiries as to her psychological state.
As to the applicant’s claim that she was on medication before the Tribunal, there is no evidence before the Court to support this claim. But even if there had been, this on its own would not have created the circumstances such as to base the complaint now.
Further, as the Minister submits, the Tribunal was under no general obligation to have conducted enquiries to see if any medical certificate existed (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12).
Third, as the High Court held in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39, the Tribunal is under no general duty to make enquiries. Its duty is to conduct the review.
In this latter regard, I cannot see that there was anything before the Tribunal to suggest that she had received such treatment, such that it could have been said that this became an aspect of her claims. The requirement would have been, in those circumstances, that the Tribunal would have needed to deal with any such integer.
In her evidence to the Tribunal (as thirdly constituted) the applicant said that she had seen other people in her village who had been: “Forcibly sterilized and that afterwards they had problems with her nerves. This distracted her” ([36] at CB 314).
None of this comes close to indicating that the applicant received medical attention for psychological problems, let alone that the Tribunal was aware of it.
In all, I agree with the Minister that, on what is before the Court, there is nothing to show that there was any failure by the Tribunal to properly conduct the review in this regard.
Ultimately, if there was such evidence, and it was of assistance to the applicant, she had ample opportunity to have put it before the Tribunal. During the course of the review, involving four different Tribunal members, the applicant put a number of documents in support of her claims. It cannot be said that she was unaware of how to go about doing this.
Ground one is not made out.

Ground Two

Ground two asserts that the Tribunal failed to deal with the psychological harm that the applicant would face on return, said to arise because of the requirement to submit to a three monthly internal examination under the “one child policy”.
A failure to deal with a claim or an integer of a claim is, of course, jurisdictional error. (See Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244).
The short answer to the applicant’s complaint, however, is that no such claim was made to the Tribunal. There is no reference in the applicant’s claims to three monthly examinations.
The applicant claimed that if she were to return to China, she feared forced sterilisation (see [55]). As referred to above, she made reference to observing other women who had problems with their nerves and was distressed by this ([36]). To the extent, therefore, that it may be said that an aspect of her claim was that she too would suffer with “nerves”, then this would only be (on her evidence) in relation to the consequence of being sterilised, or the anticipation of it.
The Tribunal dealt with this. It accepted that she had this fear in the past, and that it was due to her past experience (see [127]).
But the test for the Tribunal is not whether the applicant held a fear in the past (although this, of course, can be informative), but whether there is a real chance of persecutory harm for a Convention reason in the reasonably foreseeable future if the applicant were to return to China.
In the circumstances, and for the reasons that it gave, it was open to the Tribunal to find that conditions in China, and the applicant’s circumstances, had changed in the intervening years, such that her fear was not well founded.
The applicant’s complaint misconceives, or ignores, the real nature of the Tribunal’s finding in this regard.
Nor, it must be said, is the Tribunal required to scour the various provisions of the relevant Chinese law relating to the so-called “one child policy” and to address each particular of this law to see if it fits the applicant’s circumstances.
Rather, the Tribunal is obliged to deal with the applicant’s claims as presented, or as can be said to clearly arise from the circumstances presented. There was no claim relating to a fear arising from ongoing medical examinations.
This ground does not succeed.

Ground Three

Ground three asserts that the Tribunal failed to take into account that the applicant would be impecunious when she returns to China, and would be unable to meet the “hefty fines” imposed because of the “one child policy”.
As the Minister submits, the Tribunal expressly considered this aspect of the applicant’s claims (See [118] to [126] and in direct particularity: [124] “It is apparent … the social compensation fee may well be beyond the resources of” the applicant and her husband.)
The Tribunal found, for reasons which it clearly gave, that this would not give rise to persecution in the Convention sense. This ground does not succeed.

Ground Four

Ground four asserts that the applicant has a genuine fear of being forcibly sterilised or having any pregnancy terminated if she were to return, and that the Tribunal failed to take this into account.
The latter part of this complaint is plainly factually incorrect. The Tribunal did understand, consider, and take into account, the applicant’s claimed fear in this regard.
The former part of the complaint takes issue with the Tribunal’s factual findings. At best, it does not rise above a request for impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259).

Ground Five

Ground five asserts that the Tribunal failed to consider the applicant’s circumstances, particularly the personal and financial hardship she would face.
The complaint must be rejected. As already set out above, the Tribunal directly addressed the applicant’s circumstances as presented. It expressly dealt with the matters of financial hardship and personal hardship. This ground does not succeed.

Conclusion

The applicant’s grounds do not reveal jurisdictional error in the Tribunal’s decision. Nor, on any plain reading of the Tribunal’s decision, can jurisdictional error be otherwise discerned. The application is therefore dismissed.

I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: C Darcy

Date: 2 December 2009