SZKSQ v Minister for Immigration and Citizenship

[2008] FCA 1101

FEDERAL COURT OF AUSTRALIA

SZKSQ v Minister for Immigration and Citizenship
[2008] FCA 1101

SZKSQ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 530 OF 2008

RARES J
23 MAY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 530 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKSQ
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES J
DATE OF ORDER:	23 MAY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the costs of the first respondent fixed in the sum of $4,210.

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 530 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKSQ
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES J
DATE:	23 MAY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)

1. This is an appeal from a decision of the Federal Magistrates Court refusing to grant the appellant constitutional writ relief in respect of a decision of the Refugee Review Tribunal handed down on 17 August 2006 which affirmed the decision of a delegate of the Minister made on 13 February 2006 to refuse the appellant’s husband and herself protection visas:  SZKSQ v Minister for Immigration [2008] FMCA 420.

2. The appellant is a citizen of the Peoples’ Republic of China who arrived in Australia with her then de facto husband in December 2005.  They applied for protection visas later that month based on the husband’s claim to have been a practitioner of Falun Gong and to have been persecuted in China as a result.  The application for the protection visa contained a detailed letter by the appellant and her husband based solely on his circumstances.  She applied for a protection visa as a member of the husband’s family unit.

   THE DELEGATE’S DECISION

3. The delegate considered the husband’s claims and was not satisfied that he had a well-founded fear of persecution.  She noted that the wife had only applied as a member of his family unit and therefore failed to meet the criterion provided in s 36(2)(b) of the Migration Act 1958 (Cth), namely that her husband was entitled to a protection visa.

   THE APPLICATION TO THE TRIBUNAL

4. The appellant and her husband filed a joint application for review of the delegate’s decision with the tribunal in March 2006.  Her husband was applicant 1 and the appellant, applicant 2.  In the application form that the appellant signed, she declared that unless she advised the tribunal otherwise, she authorised it to communicate with applicant 1, namely her husband or his authorised recipient, about the application.  Originally, the applicants had a migration agent, but in May 2006, the husband wrote to the tribunal advising it of a change of contact details and gave his own name as the contact with the post office box address at Cabramatta together with his mobile phone number.  No detail of any separate address was given for the appellant.

5. The husband attended the tribunal hearing on 18 May 2006 and gave it the following information.  He told the tribunal that his wife had not been informed that she had been invited to attend the hearing to give evidence and present arguments about any claims that she had to refugee status.  The tribunal accordingly invited them both to a further hearing on 16 June 2006.  The invitation was sent the day after the first hearing, on 19 May, and was addressed to both the husband and the wife, by name, at the post office box at Parramatta.  On 8 June 2006, the husband and wife responded that they wanted to come to a hearing and both attended at the hearing on 16 June.  The tribunal took evidence from each of them.

   THE HEARING BEFORE THE TRIBUNAL

6. During the course of the hearing, the tribunal asked the wife about her observations of the husband’s practice of Falun Gong and other circumstances in which he claimed to have experienced persecutory treatment.  It also asked the appellant about her and husband’s claim that they had gone on a trip to the Mariana Islands.  The tribunal asked a number of questions about both the husband’s evidence at the previous hearing and his claims.  It noted that it had asked the appellant whether she thought she would be persecuted, were they to return to China, and she had responded that she did not know because she did not practice Falun Gong, but maybe her husband would be threatened.

7. The tribunal also raised with the appellant a concern that had occurred to it, which may have raised a claim of her own to a protection visa.  It noted that the appellant had not put forward any claims of her own to refugee status in the protection visa application, but that, in light of the husband’s evidence at the first hearing that she had been sterilised, it seemed possible to the tribunal that she may have had some claims arising out of the circumstances following the birth of their daughter.

8. However, the tribunal concluded that, having taken evidence from both her husband and her about the issue at the second hearing, it was not satisfied that that was the case and the tribunal was not satisfied that the appellant had a well-founded fear of persecution for a convention reason.  It gave several reasons for that conclusion, first, that in many ways her evidence about the incident, the subject of the tribunal’s concern, was unsatisfactory.  The tribunal said that even the nature of any operation undergone by the appellant was unclear, noting that the husband had referred variously to sterilisation, a contraceptive ring and his wife’s womb having been sealed or ligated.

9. The tribunal referred to the fact that the appellant had also referred to an operation in a number of ways, but finally agreed that she had an intra-uterine device inserted.  The tribunal observed that she had claimed to have been unconscious before the operation and did not know whether an anaesthetic had been administered or what had been done to her.  She had claimed that the reason she knew that she had undergone an operation was that she felt uncomfortable afterwards.  The tribunal observed that the appellant had not sought medical advice about the device in Australia or sought to have it removed.  The tribunal was not satisfied about the nature of the procedure, if any, which was performed on the appellant after the birth of their child and it was not satisfied that any such procedure had been carried out against her will.

10. The tribunal also said that, in view of the unsatisfactory evidence of both the husband and the appellant, it could not be satisfied as to the reason any medical procedure was carried out, observing that at one point the husband had claimed that the reason for the procedure was because of his practice of Falun Gong and certain of his evidence about that, which the tribunal did not find satisfactory.  The tribunal also noted that at other points in their evidence, both the husband and the wife suggested the procedure had been done in accordance with the one-child policy.  It noted that if that was the case, it was satisfied this was done pursuant to a law of general application in China and that it would not constitute persecution directed against the appellant for a Convention reason, referring, correctly, to Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225.

    THE S 424A LETTER

11. After the hearing, but before it gave its decision, the tribunal wrote to the husband and his wife by separate names in one letter addressed to the Cabramatta post office box seeking comments under s 424A of the Act.  The tribunal said that it considered that the information, upon which it sought comment, could be a reason or part of the reason for affirming the decision under review.  It explained that the information consisted of apparent inconsistencies between information provided by the husband in his written statement submitted with his protection visa application, in his oral evidence at the two hearings, as well as other inconsistencies between the oral evidence given by the husband and the wife at the hearings.  It also explained that some of the information consisted of evidence of the appellant and her behaviour at the hearing at which she attended.

12. The tribunal’s letter set out a number of inconsistencies between the husband’s written statement and oral evidence saying that those inconsistencies might lead it to conclude that he was not telling the truth.  The letter then turned to the evidence of the appellant.  It said that she had told the tribunal that her husband had been detained several times during their marriage, but could not provide specific details of the detentions.  It noted that she had told it that the longest period of detention was six months and that that was probably in 2004, but that she did not know where he was detained.  The tribunal said that previously the appellant had said her husband had been detained for six months upon their return to China from the Mariana Islands, although when reminded that that return had occurred in November 2005, shortly before they came to Australia, she stated that he was probably only detained for few days.

13. The tribunal pointed out that the appellant had said her husband had been detained for about 10 days, around the time that their daughter had been born in March 2004.  And it also said that her husband had not mentioned being arrested or detained in November 2005 on his return from the Mariana Islands.  The tribunal explained that that information was relevant, because, if it were true that the husband had been arrested and detained in China during the period he was married to the appellant, it would have expected that the appellant would be aware of those detentions, and also that they would both give consistent evidence about the details of the detention.  The tribunal said that the appellant’s lack of knowledge about the husband’s detentions and the differences in their evidence might lead it to conclude that neither of them was telling the truth.

14. Next, the tribunal observed that when it asked the husband at the second hearing about his claimed detentions, the appellant had written a note on a piece of paper, in which she attempted to prompt him with a certain answer concerning her claim that he had been detained on their return from the Mariana Islands, and that initially, when the appellant had been asked by the tribunal to give it the note, she refused.  The tribunal pointed out that that evidence was relevant because it suggested that the appellant was not telling the truth when she claimed that her husband had been detained on return from the Mariana Islands.  The tribunal noted that the appellant had said her husband had to report to the police after his release from detention, but she did not know how often, since he had not told her and had left the house in secret.

15. The tribunal observed that that information was relevant because it would expect that the appellant would be aware of any requirements for her husband to report regularly to the police, and the fact that she was not so aware might lead it to conclude that neither of them had been telling the truth about this.  The tribunal then noted the appellant had said that her husband practised Falun Gong once every two or three weeks, or once a month in a park near Cabramatta, and that she knew this because she went with him.  She had also told the tribunal that sometimes he went to the Chinese Consulate in the city, and that she first said she had gone with him four or five times, but later said that she had gone to the Consulate only once, and that the other times he went there by himself. 

16. The tribunal said that the appellant had told it that her husband had practised Falun Gong, at home, less than once a week and then that he did it on average two or three times a week and that he did not practice his Falun Gong more often because he had to earn money.  The appellant also told it that her husband rarely read books about Falun Gong because he did not have time.  The tribunal observed that, in contrast, the husband had told it that he practised Falun Gong three times in Australia at the Chinese Consulate, and then the tribunal had told him that his wife said he practised in a park at Cabramatta.  The tribunal then asked him whether he claimed to have done so.  Later, the tribunal pointed out that the husband also said that he never practised anywhere otherwise than outside the Chinese Consulate and in Chinatown, and that his wife had never been with him at a Falun Gong practice.  The tribunal said that his evidence was that he had practised at home once a month.

17. The tribunal observed that, as it had explained at the hearing, the information concerning the husband’s practice of Falun Gong was relevant because his evidence about where and how often he practised was different from that of his wife’s.  The tribunal stated that it would have expected that, if they were telling the truth about the husband’s practice of Falun Gong, their evidence would have been consistent.  The tribunal also observed that it would have expected a genuine Falun Gong practitioner to make time to read the books and practice.

18. Next, the tribunal referred to the appellant’s statement that a contraceptive device had been inserted in her after the birth of their daughter, and that was because she had one child and was not allowed to give birth to another.  The tribunal observed that that information was relevant because, considered together with the husband’s evidence that he had not mentioned his claimed detention at that time (since it had nothing to do with Falun Gong), it suggested that the fitting of a contraceptive device was connected with the application of the “one child” policy and was not a punishment inflicted because the husband was a Falun Gong practitioner.

19. The tribunal invited the appellant and her husband to comment on the information referred to above in writing and in English.  It told them in the s 424A letter that, if they made comments, it would consider their comments carefully, adding:

    “Your reply will be regarded as a joint response from [the husband] and [the appellant].”

    THE HUSBAND ALONE RESPONDS TO THE S 424A LETTER

20. Next, the tribunal received a letter written only by the husband.  The husband’s letter said that there were differences between his wife and himself and:

    “Now I am considering cancelling my wife’s refugee application because we have separated.”

21. He then addressed the matters raised by the tribunal in the s 424A letter.  He referred to the fact that his wife had fallen in love with another person in Australia and no longer cared about him, including whether he applied for a protection visa.  He said it might have been believable that she had provided misleading evidence that could affect his evidence, and that some of her words, “… resisted the truth.”  He said that he was very upset that his wife had betrayed him and left him and that:

    “The most important is that she hates me because of my belief in Falun Gong.  She thinks it is all because of Falun Gong that we had to leave our hometown relatives while endure lots of pressures.”  (sic)

    The letter concluded by asking for information as to how the husband could cancel his wife’s application.

    THE TRIBUNAL’S DECISION

22. The tribunal referred to this letter as “the applicant’s response” in its statement of decision and reasons.  It summarised, among other things, the fact that the appellant had left her husband because she loved someone else, and hated him because his practice of Falun Gong had brought so many problems to them.  The tribunal noted that the letter communicated that the appellant did not care about the husband any more and gave evidence that was not helpful for this reason.  It noted that the husband no longer wanted to include her in the application. 

23. In its findings and reasons the tribunal said that, after considering the evidence put forward on behalf of the husband in his protection visa application, in his oral evidence over the two hearings and the oral evidence of the appellant, it had decided that neither of them was a credible witness.  And, in my opinion, its reasons for coming to such a conclusion were ones which reveal no jurisdictional error and are clearly and adequately explained by the tribunal in its reasons.  It found that the husband was not a Falun Gong practitioner.  In those circumstances, that being the fulcrum upon which his claim was based, necessarily, his claim failed. 

24. The tribunal summarised its findings saying that the husband was not a credible witness and that it did not accept his central claims.  It found that he was not a genuine or committed Falun Gong practitioner, did not currently practice Falun Gong, and would not seek to do so if returned to China.  It found that, were he to return to China, he was not at risk of persecution as a Falun Gong practitioner, or for any other Convention reason apparent from the evidence.  And it found that he had not been detained, or otherwise persecuted as a Falun Gong practitioner, prior to his departure from China.

25. Turning to the appellant, the tribunal found that she was not at risk of persecution because of an association with a Falun Gong practitioner, and that she did not have a well-founded fear of persecution in connection with any birth‑controlled procedure she may have undergone previously, as the credible evidence did not establish that such a procedure had been performed, or that it had been carried out for any Convention reason.  The tribunal, accordingly, concluded that neither the appellant, nor her husband, was a person to whom Australia owed protection obligations and it decided to affirm the decision of the Minister.

    THE PROCEEDINGS BELOW

26. The appellant contended before the trial judge that the tribunal had had serious doubts about the credibility of her claims and evidence, but that she would be at risk of persecution were she returned to China.  She argued that the tribunal doubted her claim without any proper grounds or detailed investigation.  The appellant wrote a letter by way of submission to her Honour, noting that her husband was a Falun Gong practitioner, but that she had left him because she loved someone else and hated him because his practice of Falun Gong had brought many problems to her.  She said that she was scared to go back to China because she was his wife and the Chinese authorities knew all about their situation.

27. The trial judge dealt with the grounds in the application.  She rejected the first ground on the basis that she found that the tribunal had thoroughly reviewed all the evidence provided by the appellant and her husband and had arrived at a conclusion which was open to it without committing any jurisdictional error.  Her Honour pointed out, correctly in my opinion, that the mere fact that an applicant for review disagrees with factual conclusions and ultimate findings does not amount to a jurisdictional error.  She said that the Court had no role to engage in a merits review of the decision of the tribunal.

28. In relation to the second ground, I see no error in her Honour’s rejection of that ground for the reasons that she gave.  The second ground was determined by her Honour after considering the way in which the tribunal dispatched its letter under s 424A and received the reply.  She found that it had been open to the appellant, at any time before or after she separated from her husband, to withdraw the direction in the change of contact details form which the husband had provided to the tribunal at the May 2006 hearing, and to provide her own contact details to the tribunal, but she had not done so.  Her Honour concluded that the tribunal had addressed the s 424A letter in accordance with the appellant’s last address for service provided to it in accordance with s 441A(4)(c)(i) of the Act and that accordingly, her Honour was satisfied that the s 424A letter had been properly served on the appellant in accordance with the Act.  She noted that the appellant had provided the tribunal with no contact details or even a telephone number.

1. Her Honour accepted the Minister’s alternative submission that the s 424A letter only went to issues of credibility and that the tribunal had not been legally obliged to send it, so that there was no jurisdictional error in the tribunal proceeding to decide the application for review without in fact receiving a response from the appellant.  Her Honour concluded that it had been open to the tribunal to come to its factual findings for rejecting the appellant’s claims for a protection visa, namely because it found that she was a member of the husband’s family unit and his claim had failed, and because the evidence was ambiguous and did not satisfy it concerning the medical procedure she may have undergone.

2. Her Honour also rejected the third ground of the application that the tribunal had proceeded to disbelieve the appellant without proper grounds or detailed investigation.  She said that that ground covered somewhat similar issues to the first and second grounds.  She found that the tribunal was not obliged to engage in merits review but performed an investigative function.  Her Honour referred to the fact that under s 424 of the Act, the tribunal had power to obtain information that it considered relevant, but had no obligation to do so.  She was not satisfied that there was any jurisdictional error in the tribunal’s consideration of the appellant’s claims and dismissed the application.

   THIS APPEAL

3. In her notice of appeal to this court, the appellant argued that her Honour erred because she failed to find the tribunal had committed a jurisdictional error.  Clearly her Honour found that the tribunal had not committed any jurisdictional error.  Next, the appellant claimed that, because she was unrepresented in the Federal Magistrates Court and had not received assistance from a Federal Magistrates Court legal aid service scheme lawyer, her Honour had erred.  The appellant claimed that the trial judge had also erred because she failed to consider the unique situation faced by her when she attended the tribunal and what had occurred afterwards.

4. Before me, the appellant asserted again that she had not received legal assistance in the proceedings before her Honour or indeed before me.  There was no evidence before her Honour as to what, if any, attempts were made by the appellant to obtain legal assistance, but the fact that she did not have such assistance creates no ground on which an appeal could succeed.  I reject that argument.

5. The appellant also sought to raise with me an assertion that she had been persecuted because of a religious belief, the nature of which she did not explain, and that the tribunal had failed to give her a chance to put forward her case.  She asserted that she had only attended at the tribunal to be a witness in her husband’s claim.  None of those matters were the subject of any evidence before her Honour and I reject them as being without substance.  There was no basis on which the appellant put forward any argument that her Honour had erred in coming to the conclusion that the application below should be dismissed.

   NEW ISSUE ON APPEAL

6. However, during the course of argument I raised with counsel for the Minister the concern which her Honour had addressed in her reasons and which I have touched on above.  This arose because it was evident from the husband’s reply to the tribunal’s s 424A letter that not only was he not making a reply on behalf of the appellant, but was doing so contrary to her interests.  That raised a question in my mind as to whether the tribunal was entitled to proceed on the basis that it had complied with any obligation to afford the appellant an opportunity to comment under s 424A(2) of the Act on the information in the s 424A letter. 

7. The appellant did not give any evidence before her Honour that she had provided any address for service or contact details to the tribunal, in order to notify the tribunal that the address given for her and her husband jointly was no longer an appropriate address prior to the time it sent the s 424A letter.  Nor did the appellant give any evidence below that the husband had not brought the letter to her attention despite their estrangement.  While it may be possible to draw such an inference from the content of the letter, in the absence of such evidence, it would not be right to do so.

8. The Act provides clear criteria by reference to which the tribunal must notify applicants for review of invitations to comment under s 424A, or for that matter, under s 424.  In the present case, the latest address for service provided by the appellant that was available to the tribunal at the time it sent its letter under s 424A, was the husband’s post office box.  The tribunal used that address in accordance with s 441A(4)(c)(i).  As her Honour found, despite the terms of the husband’s response, I see no error in the tribunal having proceeded as it did.  After all, it is difficult to see what else the tribunal could have done in the present case.  The appellant knew she had separated from her husband in what appear to be circumstances of some acrimony, yet she took no steps to notify the tribunal as to how it should contact her.  Regrettably she has only herself to blame.

9. The tribunal acted as it was authorised to do under the law by sending its letter to the husband’s address, but jointly addressing both her and her husband in satisfaction of its legal obligations.  In the absence of any evidence that the letter was not brought to the appellant’s attention or that she had provided the tribunal with some other address to which it should have sent her the letter, I am unable to see how, in the circumstances of the present case, the tribunal made a jurisdictional error in the way in which it proceeded.

10. Accordingly, I reject the appellant’s grounds of appeal and dismiss the appeal.  I am satisfied that it is appropriate to make an order that the appellant pay the Minister’s costs fixed in the sum of $4,210 on the basis of the material in the affidavit of Ms Mafessanti.

I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Associate:

Dated:        24 July 2008

The Appellant:	Appeared in person
Solicitor for the First Respondent:	M Mafessanti, Clayton Utz

Date of Hearing:	23 May 2008
Date of Judgment:	23 May 2008