SZHLC v Minister for Immigration and Citizenship

[2007] FCA 774

FEDERAL COURT OF AUSTRALIA

SZHLC v Minister for Immigration and Citizenship [2007] FCA 774

SZHLC v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD564 OF 2007

COLLIER J
21 MAY 2007
BRISBANE (HEARD IN SYDNEY)

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	NSD564 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHLC
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COLLIER J
DATE OF ORDER:	21 MAY 2007
WHERE MADE:	BRISBANE (HEARD IN SYDNEY)

THE COURT ORDERS THAT:

1.The title of the first respondent be changed to “Minister for Immigration and Citizenship”.

2.The appeal be dismissed.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	NSD564 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHLC
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COLLIER J
DATE:	21 MAY 2007
PLACE:	BRISBANE (HEARD IN SYDNEY)

REASONS FOR JUDGMENT

1. This is an appeal against a judgment of Driver FM of 15 March 2007 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) of 31 August 2005 and handed down on 20 September 2005. 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.

2. At the hearing of this appeal I indicated that I would order that the first respondent’s name be amended to “Minister for Immigration and Citizenship”.

   Background

3. The appellant is a citizen of the People’s Republic of China (“PRC”) who arrived in Australia on 18 February 2005. On 31 March 2005 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the first respondent refused the application for a protection visa on 8 April 2005. On 13 May 2005 the appellant applied to the Tribunal for a review of that decision. The appellant’s husband was included in the application to the Department and Tribunal but not before the Federal Magistrate.

4. The appellant claimed to have well-founded fear of persecution in the PRC because she was a Falun Gong practitioner and she had bribed a Public Security Bureau (“PSB”) official to escape arrest over her involvement in organising a Falun Gong demonstration.

5. The appellant claimed to have started practising Falun Gong in 2002, and that it improved her deteriorating health. On 28 December 2004 the appellant and another practitioner organised a Falun Gong demonstration. The next day, the appellant’s brother’s friend in the local PSB advised the appellant that he was unable to ‘cover up’ for the appellant. The appellant claims she bribed this official with RMB10,000 in order to avoid arrest.

6. However, the appellant claimed that the official had been sentenced to prison in March 2005 (the month the appellant lodged the application), and that her bribe was discovered along with her practice of Falun Gong. She claimed she would be arrested once she returned to China.

7. The appellant also claimed that she has since been dismissed from her employment as she had not returned to China within her leave period and that the PSB has been asking about the appellant at her workplace.

   The Tribunal’s decision

8. The Tribunal found the appellant’s claims to be fabricated. It did not accept the appellant was a genuine Falun Gong practitioner or supporter or would become or be considered one in the PRC.

9. The Tribunal accepted the appellant was familiar with the five Falun Gong exercises to the extent that she could perform them fluently. However, the Tribunal stated that the “appellant showed negligible appreciation of the meaning of the individual exercises” and failed to explain why Falun Gong was essential to her. The Tribunal found there was no plausible evidence of the appellant having weighed the potential consequences of taking on behaviour peculiar to a group that was banned and found that one could reasonably expect a person in the PRC in 2002 to have done some thinking on such behaviour.

10. The Tribunal accepted the appellant had been practising in isolation in Sydney but that she did not explain why she had no communication at all with the Falun Gong movement in Australia.

11. The Tribunal was not satisfied the appellant faced a real chance of Convention-related persecution in the PRC and affirmed the decision not to grant the visa.

    The Decision of the Federal Magistrate

12. In her grounds of appeal the appellant reasserted her claim of being a genuine Falun Gong practitioner and raised the grounds that the Tribunal member was biased and made “a few mistakes”. The appellant also stated that she had been depressed, had been diagnosed with breast cancer and would provide further claims after her health improved.

13. On 7 November 2005, the appellant’s sister-in-law on behalf of the appellant filed submissions related to her application. It elaborated on the grounds raised in the application, indicated that the interpreter had made some mistakes during the hearing which caused the appellant to become nervous and that the Tribunal member had some illogical reasoning. The submissions indicated various parts of the Tribunal’s decision which were said to be illogical.

14. The Federal Magistrate permitted the appellant’s sister-in-law to assist the appellant as a McKenzie friend.

15. His Honour could not find any evidence that the Tribunal had a closed mind or any material that would give rise to an apprehension of bias. The Federal Magistrate found the Tribunal’s decision to be thorough, thoughtful and a persuasive examination of the appellant’s claims.

16. In relation to the submissions regarding the interpretation at the hearing, the Federal Magistrate found the Tribunal was not persuaded that the appellant’s nervousness or state of health was an adequate explanation for the implausibility and internal contradictions in the evidence. His Honour found the Tribunal did meet its obligations under s 425 of the Migration Act 1958 (Cth) (“the Act”). The Tribunal had given little weight to the documentary evidence and had rejected the appellant’s claims as fabrications in unequivocal terms. His Honour also found that the Tribunal was not obliged to address the additional written material to revisit that conclusion.

    On appeal in this Court

17. In the notice of appeal filed in this Court on 4 April 2007, the appellant asserted the following:

    1.The judges of RRT & Federal Magistrate Court were biased with closed minds, making incorrect and illogical assertions.

    2.The judgments were made taking irrelevant considerations into account.

    3.The judgments were made without taking relevant considerations into account.

    4.The hearings added unreasonable stress and pressure to me – I was already stressed out due to fear of prosecution from Chinese authority, breast cancer, sudden loss of my mother-in-law without being able to go back to China for her funeral and poor mental health.

18. No written submissions were received from the appellant.

19. On 18 May 2007 a facsimile transmission was received by the Sydney Registry of the Federal Court, apparently from the sister-in-law of the appellant, on behalf of the appellant.

20. The fax said that “Due to bad health condition, she is not able to attend to the court hearing on Monday 21 May 2007. Please find attached doctor’s certificate”.

21. The attached medical certificate, from Dr Nila Arias at Castle Hill, indicated that the doctor had examined the applicant on 17 May 2007. The doctor certified as follows:

    In my opinion she was/is suffering from cancer breast and having treatment at Westmead hosp and also severe depression and will not be able to answer questions on 21.5.07.
    Due to her extreme depression, she has developed quite abnormal responses and I suspect that the court hearing on 21.5.07 - will not truly reflect her true status.

22. In the circumstances of this case, notwithstanding that no affidavit has been filed in respect of this document, no evidence produced as to the qualifications or expertise of the certifying medical practitioner, and that the medical certificate is somewhat unclear as to her current condition, I am prepared to accept that the appellant’s non-appearance in Court is due to medical reasons.

23. There has been no request for an adjournment of these proceedings in relation to the medical certificate. However, I do note that the appellant sought to have the matter adjourned by way of letter dated 24 April 2007 in order to allow her to retain a solicitor at an unspecified later date. This request was refused.

24. Order 52 r 38(1) Federal Court Rules provides:

    (1)  If a party is absent when an appeal is called on for hearing, the Court may:

    (a)  order that the hearing not proceed unless the appeal is again set down for hearing or such other steps are taken as the Court directs; or
    (b)  adjourn the hearing; or
    (d)  proceed with the hearing, either generally or in relation to any claim for relief in the appeal.

25. Counsel for the respondent submitted that the Court should not adjourn the hearing, but rather that the Court should proceed with the hearing in accordance with O 52 r 38(1)(d) Federal Court Rules. In the circumstances, in my view, this is the appropriate course. Counsel for the respondent indicated that he did not seek to make any further substantive submissions but relied on the submissions filed 17 May 2007. I indicated to the respondent that I would consider the matter on the papers before me and deliver my reasons at 2.15 pm this afternoon.

26. Addressing the grounds of appeal of the appellant in turn:

    1.Notwithstanding the claim by the appellant that the Tribunal member and Driver FM were both biased with closed minds, and that they made incorrect and illogical assertions, no particulars were given for this ground of appeal, and in my view there is no substance to the allegation of bias, whether apprehended or actual. Accordingly, I reject this ground of appeal.

    2.In relation to the claim by the appellant that the Tribunal member and Driver FM took into account irrelevant considerations, there is no articulation or identification of any such considerations; nor is it apparent to me that the Tribunal member or the Federal Magistrate did so. Accordingly, I reject this ground of appeal.

    3.In relation to the claim by the appellant that the judgments of the Tribunal member and Driver FM were made without taking relevant considerations into account, there is no articulation or identification of these considerations; nor is it apparent to me that the Tribunal member or the Federal Magistrate failed to take relevant considerations into account. Accordingly, I reject this ground of appeal.

    4.In relation to the claim by the appellant that the hearing placed unreasonable stress and pressure on her, there is no evidence before the Court to conclude that the proceedings either before the Tribunal or Driver FM miscarried due to the appellant’s mental or physical state. I note the apparent medical condition of the appellant as described in the medical certificate of Dr Arias. While this provides an explanation for the failure of the appellant to attend court today, it does not, with respect, assist the appellant in relation to this ground of appeal concerning the proceedings below. Accordingly, I reject this ground of appeal.

27. In the circumstances of this case the appropriate order is that the appeal be dismissed.

    THE COURT ORDERS THAT:

    1.The title of the first respondent be changed to “Minister for Immigration and Citizenship”.

    2.The appeal be dismissed.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

Associate:

Dated:        21 May 2007

Counsel for the Appellant:	The appellant did not appear
Counsel for the Respondent:	JAC Potts
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	21 May 2007
Date of Judgment:	21 May 2007