SZHNQ v Minister for Immigration and Multicultural Affairs

[2006] FCA 1738

FEDERAL COURT OF AUSTRALIA

SZHNQ v Minister for Immigration & Multicultural Affairs
[2006] FCA 1738

SZHNQ v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD 1535 OF 2006

RARES J
20 NOVEMBER 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1535 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHNQ
Appellant

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES J
DATE OF ORDER:	20 NOVEMBER 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 1535 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHNQ
Appellant

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES J
DATE:	20 NOVEMBER 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1. This is an appeal from a decision of the Federal Magistrates Court, SZHNQ v Minister for Immigration [2006] FMCA 1088. The appellant is a citizen of the People's Republic of China. She arrived in Australia on 11 January 2005 and applied for a protection visa in February 2005. A delegate of the Minister refused her application on 14 April 2005. The appellant sought a review by the Refugee Review Tribunal. On 12 September 2005, the appellant attended a hearing of the Tribunal. Following the hearing, she applied to the Tribunal for a copy of the tape which the Tribunal had of the hearing. She received a copy of the tape. The Tribunal made its decision on the same day that the appellant appeared at the hearing before it, and handed the decision down on 4 October 2005.

2. The basis of the appellant's claim for a protection visa was that she was a member of the Christian church known as The Shouters, and that she had been exposed to a situation in China in which she experienced a well founded fear that she would be persecuted because of her religious practices and belief.  The Tribunal, according to its decision record, explored, during the hearing with the appellant, her knowledge and understanding of Christian doctrine and the Bible.

3. The appellant had claimed that her mother had been persecuted severely in China because of her mother's own religious beliefs.  The appellant's mother had died when she was five.  The appellant, when she appeared before the Tribunal, was 37 years of age.  The appellant claimed that she was a leader of The Shouters church in one of the Chinese provinces.  She claimed that she had led Bible study groups and services for the four years preceding to her arrival in Australia.  During the course of the Tribunal hearing, the member questioned the appellant about aspects of the Bible.

4. The Tribunal formed the view, having heard the appellant, that it was not satisfied that she was involved with the church in China in the manner in which she had claimed.  The Tribunal pointed to what it said was the quite limited detail which the appellant had provided about the Christian faith, and found that she had not satisfied it that she had much, if any, knowledge of the Christian faith.  The Tribunal did not accept that she was a leader of any church in China as she had claimed. 

5. The Tribunal also found that it was not satisfied that the suppression of the appellant's purported religious belief would constitute persecution for her.  It did not accept that she would give voice to her purported religious beliefs should she return, and therefore come to the adverse attention of the Chinese authorities or anyone else.  The Tribunal did not accept that the appellant's religious practice was sincere.  It said that it drew this conclusion because it would have expected her to understand more about what she was purportedly prepared to risk her life for.

6. The Tribunal did not accept that the appellant was harassed by the local Chinese security authorities.  Moreover, the Tribunal said that, given its adverse findings with respect to her lack of knowledge of Christianity and having read the appellant's claims and questioned her at the hearing, it was satisfied that she would not even be capable of commencing a church in China as she claimed.  The Tribunal found that it did not accept that the appellant was a leader or otherwise instrumental in the creation or maintenance of an illegal church in China.

7. In its decision, the Tribunal recorded that it had put its credibility problems with her evidence to the appellant and, after considering her responses, said:

   ‘... I am satisfied the [appellant] has at least embellished if not fabricated most of her material claims, I am not satisfied she is a witness of truth.’

8. The Tribunal went on to say that it did not accept that the appellant had a well founded fear of persecution for a Convention reason.

9. The trial judge gave careful and detailed scrutiny to the appellant's arguments before him for a review of the Tribunal's decision.  He was unable to detect any jurisdictional error in the arguments, which the appellant advanced.  I am satisfied that his Honour arrived at a correct decision, for the reasons which he gave.

10. During the course of argument on the appeal, the appellant raised a number of points.  Essentially, they came down to these arguments:

    (1)Under s 424A of the Migration Act 1958 (Cth) the Tribunal had committed a jurisdictional error by failing to provide to her a copy of its notes or a tape, which actually recorded the contents of the hearing on 12 September 2005.

    (2)The reasons, which the Tribunal gave for rejecting her evidence, were not an accurate recording of her actual evidence.

    (3)       The Tribunal was biased.

11. The first and second points are interrelated. They go to an argument that the Tribunal's reasons and fact finding were not correct. There are no bases, under the Act, for the Tribunal to provide the appellant with a copy of its notes or the tape recording of the hearing for the purposes of s 424A. The Tribunal is entitled to make a decision and to give oral reasons at the time of the hearing, if it choses to do so (see: s 430A(1)(a)).

12. It would be inconsistent with the recognition in the Act that the Tribunal may give a decision orally that an applicant is entitled to receive a copy of the Tribunal's notes or its recording of the hearing for comment, prior to the decision being given. More importantly, s 424A(3)(b) provides that the obligation to give particulars of any information that the Tribunal considers would be the reason or part of the reason for affirming the decision that is under review does not apply to information that the applicant gave for the purposes of the application for review to the Tribunal. The Tribunal is not obliged, by reason of s 424A(3)(b), to provide its notes or a recording of the evidence given by an applicant prior to making a decision adverse to the applicant.

13. The appellant said that, in effect, she had a right to know the contents of what was said by her to the Tribunal, so as to be able to compare that with the Tribunal's recording of what was said.  There may be situations in which an interpreter misinterprets the evidence of an applicant or witness, so that the Tribunal does not receive a true account of the witness' evidence, on which to base its decision.  That may well be a situation in which the Tribunal would not accord to an applicant for review a hearing which the Parliament has said an applicant is entitled to receive.  That could occur if, because of mistranslations of questions and answers, an interpreter has caused the Tribunal not receive a true account of the applicant's or witness’ evidence.

14. In this case, there was no evidence put before his Honour, in the Federal Magistrates Court, to show that the Tribunal's record of what the applicant's evidence to it was anything other than accurate.  During the course of the appeal, I asked the appellant what errors the Tribunal had made in its recording of its evidence before it.  She said that the Tribunal had made an error in finding that was not a real Shouter; did not have knowledge of the Bible; was not an active member of the Shouter's church; had a lack of knowledge of Christian doctrine and of the Bible and had not correctly answered questions before it.  She said that she had answered all the Tribunal's questions correctly and that she was entitled to be shown the Tribunal's notes or to hear its actual tape recording of her evidence to let her confirm whether her answers were correct.

15. However, it was for the appellant to produce evidence to the trial judge that what she asserted was inaccurately recorded by the Tribunal in its decision record was, in fact, inaccurate.  There was no evidence before his Honour, and none before me, that the answers recorded in the Tribunal's reasons for its decision were anything other than accurately recorded.  In those circumstances there is no basis on which it could be concluded that the Tribunal made any jurisdictional error or that his Honour made an error of law.

16. The third argument which the appellant raised was a suggestion of bias in the Tribunal.  The allegation of bias appears to have been based on a failure of the Tribunal to provide the tape or notes, to which I have already referred, and also to follow up the veracity of statements in a letter which the appellant gave to the Tribunal.  The letter was dated 18 August 2005, and was signed by two persons who gave their names, addresses and telephone numbers.  It was not on letterhead, but was addressed ‘To whom it may concern’.  It said that it was to confirm that the appellant ‘attends our Church meeting in Blacktown every Sunday morning’.

17. The Tribunal received this letter from the appellant at the hearing after it asked if she attended church in Australia.  She responded affirmatively, handing the letter up.  The Tribunal referred to the letter as one being purportedly written and signed by two named persons from the church she currently attends in Blacktown and pointed to the fact that it had not been written on letterhead.  It found that, based on the evidence she had provided, the appellant's knowledge of Christianity appeared to be superficial.

18. I am of opinion that there is no basis to support any allegation of bias or other conduct of the Tribunal such as would give grounds for judicial review of its decision, based on the appellant's reliance on the two aspects she advanced for the assertion of bias.  An appearance of bias is one which the law ascribes to a decision-maker who so conducts himself or herself that a reasonable person observing the proceedings might conclude that he or she had made up their mind against one or other person whose rights or interests were involved in their deliberative function.

19. There is no material before me which would suggest that the Tribunal had engaged in any conduct which would give rise to an appearance of bias.  The function of the Tribunal under the Act was to determine whether or not it was satisfied that the appellant was entitled to a protection visa under s 36(2) of the Act.  The mere fact that the Tribunal expressed reasons for its non-satisfaction cannot be a basis to suggest that it acted in a way that was not authorised by law; nor can the fact that the appellant asserts that she was not provided with a copy of a tape-recording of the actual hearing before the Tribunal. 

20. There was no evidence before his Honour or before me that the appellant was not provided with a tape-recording of the hearing, although the appellant sought to tender a copy of what she said was the tape she received from the Tribunal during the course of the appeal.  I rejected that tender.  I am of the opinion that the Tribunal has not been shown to have committed any jurisdictional error and that his Honour was correct to dismiss the application for review.  In my opinion the appeal should 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 Rares.

Associate:

Dated:       13 December 2006

Counsel for the Appellant:	In person
Counsel for the Respondent:	Mr JD Smith
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	20 November 2006
Date of Judgment:	20 November 2006