SZHGK v Minister for Immigration & Multicultural Affairs

[2006] FCA 1741

FEDERAL COURT OF AUSTRALIA

SZHGK v Minister for Immigration & Multicultural Affairs
[2006] FCA 1741

SZHGK v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS AND ANOR
NSD 1008 OF 2006

RARES J
21 NOVEMBER 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1008 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHGK
Appellant

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES J
DATE OF ORDER:	21 NOVEMBER 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The Refugee Review Tribunal be added as the second respondent.

2.The appeal be dismissed and costs fixed in the sum of $3,000.

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 1008 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHGK
Appellant

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES J
DATE:	21 NOVEMBER 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1. This is an appeal from the Federal Magistrates Court, SZHGK v Minister for Immigration [2006] FMCA 770. The appeal was heard by the same Federal Magistrate as heard the appellant's husband's appeal in SZHGL v Minister for Immigration [2006] FMCA 776. The matters were decided on the same day, 5 May 2006, by his Honour. I dismissed the husband's appeal yesterday for reasons which I then gave. It does not raise the same issues as the present appeal but I note that the Tribunal was constituted by the same member as constituted the Tribunal in the present case, although the decision here was made on 27 June 2003, handed down on 24 July 2003 and in the husband's case made on 7 July 2003 and handed down 28 July 2003.

2. The appellant is a citizen of the People’s Republic of China who arrived with her husband on 1 April 2002.  On 14 May 2002 she lodged an application for a protection visa which was rejected by a delegate of the Minister.  In July 2002 the appellant sought a review before the Refugee Review Tribunal.  As I have said on 27 June 2003, the Tribunal decided to affirm the decision not to grant a protection visa.  In claims which the appellant made as part of her protection visa application, she said that she was a member of the Christian religious sect, the Shouters, and that she had been involved with smuggling of Bibles to Fuqing.

3. Some of her friends, she claimed, had been detained and sentenced to imprisonment and her concerns for her safety led her to seek protection in this country.  She claimed in the protection visa application that she was a key person in the membership and had been involved with the smuggling of Bibles.  In her application for review made to the Tribunal she said she was a member of ‘Shouters’.  She said that she helped to smuggle the Bibles to Fuqing and was involved with underground religious activities in that city which were prohibited in China.  That caused her to be worried about her safety and to come to Australia for protection.  She also expressed concern about the consequences of her being returned to China and of evidence being found against her of smuggling Bibles to Fuqing.

4. The appellant attended a hearing before the Tribunal.  No transcript of that hearing is available in the appeal papers because, as his Honour noted, he had given an opportunity to the appellant to present such a transcript and he made directions expressly allowing that to be done.  He explained to the appellant, when she attended the first Court date in early November last year, that this could happen but that she did not take advantage of the opportunity to provide a transcript.  That is a matter which has caused me some concern, which I raised with counsel for the Minister during the course of argument today.

5. In the Tribunal's decisions and reasons for decision, the member recounts the fact that the Tribunal had before it the departmental file which included the original protection visa application.  The Tribunal also recorded the appellant's claims that she would be arrested and imprisoned for helping smuggle Bibles from Shenzhen to Fuqing up until October 2001.  Her assistance was to lift the Bibles in and out of cars to transport them which she had claimed to have done two or three times.

6. The Tribunal recorded that the appellant assisted in the smuggling of Bibles because they were hard to come by in China and that she had been a Christian all her life as had her mother and grandmother before her.  The Tribunal recorded also that the appellant attended church in Lidcombe most of the time and that she was a Christian, not a Catholic.  The Tribunal noted her claim that she had not been allowed to worship openly and that members of her church group in China used to gather at night.  She claimed to the Tribunal in October 2001 some of those smuggling Bibles were arrested and that she was afraid that they would reveal her name and implicate her in this activity.

7. The Tribunal also noted that it had asked her whether she belonged to the Christian group known as the Shouters and she had said, ‘Yes’ but that she told the Tribunal she did not know why they were called ‘Shouters’.  The Tribunal recited a large amount of country information before turning to its findings and reasons which it stated very shortly.  It said that the appellant may have been a practising Christian in China but that it was not satisfied that she had come to any harm or been prevented from practising her religion.  It said it found the appellant's evidence on that point unpersuasive.

8. It accepted that some Christians, and in particular members of the religious group known as the Shouters had been arrested, detained and otherwise persecuted in China but noted that the appellant had claimed to belong to that group but did not know why they were so called.  The Tribunal did not accept that.  It said that it found the appellant's evidence to be inconsistent and unconvincing and then continued ‘in the circumstances I am not satisfied that the [appellant's] claims are true.  I do not accept that the [appellant] has been persecuted in the past’.

9. In conclusion, the Tribunal noted, that it did not accept that the appellant was a Shouter or was involved in smuggling Bibles or had fled China to avoid any harm or that there was any real chance that she would be persecuted should she return.  It concluded that it was not satisfied that the appellant had a well founded fear of persecution and accordingly it determined that she was not a person to whom Australia had protection obligations under the Refugees Convention. 

10. His Honour carefully reviewed any grounds of appeal in the judgment below.  He noted that the appellant had been assisted at the hearing before the Tribunal by her migration agent, Ms Orchid Sit, and that there was no evidence suggesting that the appellant's husband was also present or made available to give evidence during the hearing which lasted 52 minutes.

11. His Honour considered in detail the grounds of appeal and outline of submissions which were jointly made by the appellant and her husband to his Honour in the cases which he was hearing, apparently either together or consecutively.  He rejected all of the grounds of appeal.  He observed that the appellant, when appearing before him, had difficulty in giving a coherent answer to anything he asked her.  I also found it difficult to glean from the appellant any response as to why the appeal should be allowed.  She was, to my observation, somewhat overwhelmed and overcome by the whole experience of having to appear in Court and seemed to me to be very timid and shy.

12. The appellant’s notice of appeal raised two grounds:  first, that the Tribunal should not have relied on the country information to come to the conclusion that she was not entitled to a protection visa, and, secondly, that the Tribunal did not investigate whether she was a member of Shouters.  These were identified as errors in his Honour's reasoning and as failures to consider those matters. 

13. The Tribunal is authorised to have regard to country information of a general character by s 424A(3)(a) of the Migration Act 1958 (Cth) where it is not specifically about the applicant or another person, and it is just about a class of persons of which the applicant or another person is a member. I am of opinion that the country information which the Tribunal set out, in over 12 pages of text, was of such a character as came within s 424A(3)(a), and it was therefore open to it to consider without requiring it to give the appellant notice in writing under s 424A(1) of any information in that material which the Tribunal considered would be a reason or part of a reason for affirming the decision that was under review. I see no basis on which to uphold this ground of appeal.

14. I am considerably more troubled about the second ground of appeal.  The Tribunal does not recite at any point any part of the appellant's claim to have been a key person in the membership of the religious organisation.  Counsel for the Minister has said with some force that, because the appellant did not know why the group was called ‘Shouters’, the Tribunal was entitled to form an adverse view of the appellant's claims.  And, as the Minister points out, the mere content of the Tribunal's decision and reasons document cannot be taken to be an exhaustive account of all that happened at the hearing.

15. In this case, his Honour made specific directions which would have entitled the appellant to put before him a copy of the transcript of the hearing, so that there would be material before the Federal Magistrates Court and any appellate Court, authoritatively identifying the investigation which the Tribunal undertook at the hearing. 

16. In giving its decision, the Tribunal is obliged to prepare a written statement under s 430 of the Act, setting out its decision and the reasons for the decision, together with the findings on any material questions of fact and referring to the evidence or other material on which the findings of fact were based.

17. In assessing the reasons of the Tribunal, it is important to bear in mind that the Court should not be concerned with the looseness in the language, or unhappy phrasing of the reasons of an administrative decision-maker.  Nor should those reasons be reviewed minutely and finely with an eye keenly attuned to the perception of error.  For as Brennan CJ and Toohey, McHugh and Gummow JJ said in the Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272:

    ‘… the reality is that the reasons of the administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.’

18. The Tribunal had an obligation to deal with the claims which the appellant made.  Part of that obligation was to identify what those claims were from the application for a protection visa, the application for review, and any factual or legal basis put before the Tribunal separately.  A failure by the Tribunal to deal with the claim raised by the evidence and the contentions before it, which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error:  see NABE v Minister for Immigration (2004) 144 FCR 1 at 20 [63].

19. In this case, the appellant's claim to have been a key person in the membership of the Shouters can, as the Minister submitted, be seen to be subsumed in findings of greater generality because there was a factual premise upon which that contention rested that had been rejected (144 FCR 20 [63]). The rejection of the appellant's evidence that she was a Shouter at all and that she was involved in the smuggling of Bibles or had fled China to avoid harm seems to me to fall within the situation to which the Full Court in that case referred.

20. The Tribunal's reasoning process was, at the critical part, quite pithy.  Essentially, it came down to a question as to whether or not it assessed the appellant's credibility favourably to her on her claims.  In complying with an obligation to set out reasons and relevant findings on material questions of fact and referring to the evidence or other material on which those findings of fact were based, in accordance with s 430(1), the Tribunal had first to form a judgment about the credibility of the applicant. 

21. It highlighted the fact that it was not persuaded by her evidence as to her having come to any harm or being prevented from practising her religion and expressed some tentativeness about whether she was a practising Christian in China.  But it found that it did not accept the appellant's claim to belong to the Shouters.  It considered her evidence that she did not know why they were so called and said that that was inconsistent and unconvincing.  That is a finding of fact which was within the jurisdiction of the Tribunal to make. 

22. Having found that fact, it then expressed itself not to be satisfied that the appellant's claims were true and not to accept her claims about being a Shouter or being involved in smuggling Bibles or fleeing China to avoid harm.  The reasons and findings are very short, but I do not think that they are such as I could find to be revelatory of a jurisdictional error.

23. The absence of the transcript of the hearing means that it is impossible to know with certainty whether or not the Tribunal failed to assess, by investigating with the appellant, the question of her claim to be a key person in the membership of the church.  It was for the appellant to deal with that matter by the adduction of evidence, and his Honour afforded her the opportunity to do so, which she did not take up.

24. I cannot part with this case without recording the fact that I have some considerable reservations that the appellant has not really been able to help herself through the process before the Tribunal, notwithstanding the presence of her migration adviser, and in the appeals.  Even today, when I invited her to ask her husband, who I observed outside the Court, to come to assist her, she declined to take that offer up. 

25. I am not able, however, to find that his Honour made any error in the approach to the appellant's claims for constitutional writ relief.  Having, with the assistance of counsel for the Minister, sought to explore in some detail during the course of argument the question of whether there is any jurisdictional error apparent in the Tribunal's decisions or reasons for decision, I have come to the conclusion that there is not and that for these reasons I should dismiss the appeal with costs be fixed in the sum of $3,000.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Associate:

Dated:        13 December 2006

Appellant:	In person
Counsel for the Respondent:	Mr T Reilly
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	21 November 2006
Date of Judgment:	21 November 2006