SZLPQ v Minister for Immigration and Citizenship

[2009] FCA 574

FEDERAL COURT OF AUSTRALIA

SZLPQ v Minister for Immigration and Citizenship [2009] FCA 574

SZLPQ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1220 OF 2008

MCKERRACHER J
29 MAY 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1220 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLPQ
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MCKERRACHER J
DATE OF ORDER:	29 MAY 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed. 

2.The appellant is to pay the costs of the first respondent to be taxed if not agreed.

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

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1220 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLPQ
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MCKERRACHER J
DATE:	29 MAY 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1. The appellant is a Chinese citizen.  He arrived in Australia on 22 February 2007.  On 19 March 2007 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship (the Department).  A delegate of the first respondent refused the application for a protection visa on 1 June 2007.  On 28 June 2007 the appellant applied to the Tribunal for a review of that decision.  The Tribunal affirmed the decision of the delegate.

2. This appeal is from a judgment of a Federal Magistrate delivered on 17 July 2008 (SZLPQ v Minister for Immigration & Anor [2008] FMCA 948). His Honour dismissed an application for judicial review of the decision of the Refugee Review Tribunal (the Tribunal) handed down on 16 October 2007.

   THE PROGRESS OF THE HEARING OF THIS APPEAL

3. This appeal was originally listed for hearing on 5 November 2008.  On that morning a written request from the appellant was received for an adjournment of the hearing as he had sustained a leg injury.  Although the request was not supported by any formal medical evidence, the appellant was given the benefit of the doubt and the hearing was adjourned to Monday, 2 March 2009 at 10.15 am at the William Street location of the Federal Court of Australia, New South Wales District Registry. 

4. Once again the appellant did not appear.  Inquiries revealed that the communication from the Court had notified the appellant that the hearing would take place at the Queens Square location of the New South Wales District Registry.  Further inquiries at Queens Square revealed that there was no sign of the appellant attending at that location. 

5. The matter was therefore re-listed for the third time on Thursday, 5 March 2009 at not before 11.00 am and a letter was sent from the Court notifying the appellant of the need to attend at the William Street premises.  When inquiries were made that day prior to the 11.00 am listing of the appeal, the appellant advised that on the Monday, 2 March hearing date and time he had attended at the Goulburn Street location of the Federal Magistrates Court because that was where he had previously appeared.  He also advised that he had not received the communication from the Court which was sent on Monday advising him that the matter would be re-listed for hearing on Thursday, 5 March 2009.  That is not surprising as the interval was relatively brief. 

6. With the assistance of an interpreter, the appellant was contacted by telephone.  He had between the Monday and the Thursday since travelled to Perth for work.  An inquiry was made as to whether he would be content to make any further oral submissions in support of his appeal by telephone and to effectively appear at the appeal by telephone.  The appellant consented to that course but indicated that as he was at work, he would not be able to speak for very long.  The view I took of the matter, notwithstanding the appellant’s consent to appearing by telephone, and the consent to that course by the first respondent, was that it was not a satisfactory means of dealing with an appeal on a matter of real seriousness to the appellant.  On that basis I adjourned the matter again. 

7. The matter was re-listed for hearing yet again at Queens Square on 28 May 2009.

8. On this occasion, once again the appellant did not appear in person.  Once again, he was in Perth.  He was telephoned by the Court.  By telephone in open court the appellant sought a further adjournment until a date after 20 August 2009.  He explained that this was the first date that he could return from Perth to Sydney without risking loss of his current employment.  He said that he had given the Court notice of his request by phone ‘last week’ but as no one at the Court could speak Mandarin, his request could not be understood.  I asked him why he left his request for a further adjournment until only a week before the hearing when he had received notification of the hearing date in March 2009.  He indicated that he thought a week’s notice was sufficient and that he was unable to find anyone who could interpret his request at an earlier time. 

9. The first respondent again opposed a further adjournment of the appeal hearing.  This would have been the fourth adjournment and an adjournment for a considerable period of time.  It was observed that there has been no admissible evidence to support any of the earlier explanations for non-appearance.  On the one occasion that it was not the appellant who requested the adjournment, he had received incorrect advice as to the location of the hearing.  But even then, he had in any event, apparently attended an altogether different location.  The appeal could have been dismissed for failure to appear on previous occasions.

10. I indicated to the first respondent, as I had done to both the first respondent and the appellant at the previous hearing in March that as the appellant was working in Perth I would be willing to hear the appeal in Perth within a very short time frame.  Counsel indicated that such a course would be unlikely to be acceptable to the first respondent due to the ongoing costs burden.  The preferred position was to oppose the adjournment and proceed with the appeal by telephone in accordance with the appellant’s previously expressed wish or to apply for dismissal of the appeal for the appellant’s failure to appear.

11. To the appellant I reiterated that the appeal could be conducted within the next two weeks in Perth.  Once again (as he had done in February) he pointed out that he did not know where the Court in Perth was located.  I made it clear to him that the Court could provide him with very clear directions as to the location of the Western Australia District Registry.  I pointed out to him that I would not be disposed to allow an adjournment until late August and that if he did not accept the offer to appear in Perth where he was living and working, that it would in all likelihood be his last opportunity to argue this appeal in person. 

12. The appellant made it clear once again, that his preference was to argue the matter by telephone rather than to appear in Perth within the next week or two. 

13. On those grounds I refused the appellant’s further application for an indefinite adjournment to a date not before 20 August 2009.   I proceeded to hear the appeal.

    THE APPELLANT’S CLAIMS

14. The appellant claimed to have a well-founded fear of persecution for a convention reason within the meaning of the Convention Relating to the Status of Refugees 1951, amended by the Protocol Relating to the Status of Refugees 1967 (the Convention).  This was said to be due to his practice of Falun Gong.  The appellant claimed that he was introduced to Falun Gong in August 1999 when his uncle and nephew were sent to ‘labour reform’ because of their Falun Gong beliefs and activities.  He claimed that in February 2003 he and other practitioners went to the rural area of Shenyang to spread Falun Gong.  He claimed that on 20 May 2003 he and another person were surrounded by the local police and beaten badly.  The appellant said he was beaten with an electric rod for nearly one hour and spent two days in detention.  He said he was sentenced to two years labour reform where he was tortured.  After he was released, the local police monitored him, came to his home and harassed and threatened him.  Sometimes they detained him for three to ten days without any legal reasons.  He claimed that if he returns to China he will be put in gaol or hospital and his organs will be removed for commercial purposes.

15. However, at the Tribunal hearing the appellant claimed that he was not introduced to Falun Gong until 2002.  He claimed that he stood guard for his uncle and nephew while they practised Falun Gong.  He was able to watch them but was not ‘at a high enough level’ to join the exercises and would ‘tarnish Falun Gong’ if he were to do the exercises.  He claimed that the 20 May 2003 incident occurred while he was standing guard and that eight people, including him were arrested.  He claimed he was tortured in prison and after 8 or 9 months he signed a confession after which time he was not beaten.  He said that he could not find employment after being released because people believed he practised Falun Gong.  

    BEFORE THE TRIBUNAL

16. The Tribunal found that the appellant was not a witness of truth and had fabricated his claims about his practice of Falun Gong to support his visa application.  The Tribunal found the appellant’s evidence to be inconsistent and implausible, noting that he had offered differing accounts of his level of involvement in Falun Gong; he lacked basic knowledge of Falun Gong; his evidence was internally inconsistent and his evidence was inconsistent with the independent information obtained by the Tribunal.

17. Given this adverse credibility finding, the Tribunal did not accept any of the appellant’s claims about his involvement in Falun Gong, or that he had ever been arrested, detained, or mistreated, or was of any adverse interest to the Chinese authorities.

18. The Tribunal therefore affirmed the decision of the delegate not to grant to the appellant a protection visa. 

    ON REVIEW BY THE FEDERAL MAGISTRATES COURT

19. Before the Federal Magistrate the appellant claimed that:

    1.the Tribunal decision was affected by jurisdictional error; and

    2.the appellant was denied procedural fairness.

20. The Federal Magistrate reviewed the Tribunal’s decision record and found no evidence of a jurisdictional error.  His Honour was satisfied that the Tribunal had not failed to apply the correct tests.  It had not failed to consider the material that was before it.  It had not failed to arrive at conclusions reasonably open to it on the evidence.  It had not failed to observe those sections of the Act which applied to it.

21. The Federal Magistrate observed that the Tribunal had provided the appellant with a s 424(1) notice and otherwise relied on evidence given by the appellant at the hearing and independent country information. Neither category of information is required to be provided to the appellant. His Honour also found that the Tribunal had complied with s 425 of the Migration Act 1958 (Cth) (the Act) as it had invited the appellant to a hearing where he was given an opportunity to give evidence and present arguments. His Honour was satisfied that all relevant issues were identified by the Tribunal. His Honour concluded that the appellant had not been denied procedural fairness.

22. At the hearing before the Federal Magistrate the appellant also pressed the genuineness of his claim and the incorrectness of the Tribunal’s decision.  His Honour found that a challenge to the Tribunal’s findings in this regard would be to ask the Court to engage in an impermissible merits review. 

23. His Honour was unable to discern any jurisdictional error in the Tribunal’s decision and dismissed the application.

    GROUNDS OF APPEAL

24. The notice of appeal in this Court raises, in essence, the following grounds:

    1.The Tribunal was biased;

    2.The decision of the Federal Magistrate was not fair;

    3.The Federal Magistrate failed to consider the appellant’s application reasonably.

25. Although the first ground is directed to a complaint about the Tribunal, for the purposes of this appeal it will be considered as alleging an error on the part of the Federal Magistrates Court to detect the bias. 

26. At the hearing before me I reminded the appellant of his grounds of appeal but invited him both to address those grounds and raise anything else at all in support of his appeal.  The appellant stressed that both of his legs had been broken in prison by Chinese officials as he was a Falun Gong practitioner and that recovery of the use of his legs was only now returning to him. 

27. I note that this serious claim was not made or recorded in his own protection visa application and also does not appear in the account of his evidence given by the Tribunal in its reasons.  Other references to alleged torture and beatings do appear.  However, given the jurisdictional basis for this appeal, I will put to one side those factual observations.

28. The appellant went on to stress that if he was returned to China he would be tortured and killed because of his religious beliefs. 

29. I explained that it was important for the Court to know what he wanted to say on the topic of the manner in which the Tribunal had been unfair in its procedure.  He indicated that the Tribunal had required him to draw the Falun Gong symbol and he had only been able to recall the inside of it not the outside.   To decide against him on that basis was said to be manifestly unreasonable.  

30. What the Tribunal said on the topic of the emblem appears in its record as follows: ‘The applicant was asked to draw the Falun Gong emblem.  He drew the Buddhist (swastika) sign.  He was later shown the correct Falun Gong emblem’. 

31. Had this been the only basis for the Tribunal arriving at its decision, the complaint may well have had more force.  But it was only one part of a collection of observations and reasons upon which the Tribunal reached its conclusion on the credibility of the appellant.  The appellant complained that ‘Australia’ was failing to recognise its human rights obligations.  I refuted this, explaining that Australia does recognise such rights but that if the Tribunal had a reasonable basis for not believing him, it was not open to this Court to allow the appeal on the credibility or merits basis.

32. Counsel for the first respondent also made the point in response that it was not now open to advance for the first time the ground of bias or any other ground not raised in the court below:  VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158.

33. Given my conclusion that there is absolutely no merit in the bias ground, it is unnecessary to also preclude the unrepresented appellant from arguing the ground.  I would, as a matter of fairness, allow more latitude for an unrepresented litigant in person who does not speak English than for counsel in a case in which there had been an express abandonment in the Court below of the particular point.  I reiterate that there is not the slightest merit in the bias ground.

    ANALYSIS

    Ground 1 - Bias

34. Actual bias involves pre-judging such that the decision-maker has a closed mind to the issues raised and is not open to persuasion so that he or she is disabled or unwilling to have regard to other relevant circumstances: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507.

35. Apprehended bias exists where a fair minded lay observer, informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, would apprehend that the Tribunal might not bring an impartial mind to the resolution of the question to be decided: Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425.

36. The circumstances of the present case give no indication of actual or apprehended bias on the part of the Tribunal.  

37. In its decision the Tribunal did not accept any of the appellant’s claims about his involvement in Falun Gong.  The Tribunal found the appellant’s evidence to be inconsistent and implausible, noting that he had offered differing accounts of his level of involvement in Falun Gong; he lacked basic knowledge of Falun Gong; his evidence was internally inconsistent and his evidence was inconsistent with the independent information obtained by the Tribunal.  The Tribunal did not accept the appellant was a truthful witness and found no evidence the appellant had suffered or would suffer persecution in China.

38. The findings of the Tribunal had an evidentiary basis.  They were open to the Tribunal on the evidence and material before it.  The Tribunal appears to have given full consideration to all of the appellant’s evidence and discussed with the appellant each of the matters that led to the decision.  There is no substance to the suggestion that the Tribunal did not bring an open, independent mind to the decision, or that a well-informed lay observer would perceive the Tribunal to be biased.  

39. The ground fails.

    Ground 2 and Ground 3 – not fair and not reasonable

40. The decision-maker must not make unsupported, unreasonable and capricious decisions or conclusions or fail to address significant evidence: NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470.

41. The Tribunal’s conclusion was, however, based on a consideration of the plausibility of the appellant’s claims as well as an assessment of the truth and inconsistency of the appellant’s oral and written evidence.  The Tribunal addressed all of the evidence before it and its decision was based on a factual analysis of the claims made by the appellant.  This analysis was set out in the Tribunal’s reasons for decision.  There is no indication in the decision of the Tribunal of any critical flaws in its reasoning process.  

42. If the lack of fairness is a suggestion of bad faith, that ground also fails.  In order for bad faith to be established it must be shown that the Tribunal acted dishonestly, arbitrarily or capriciously; SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749.

43. The absence of any evidence to support the claim makes it very difficult for the appellant to make out this ground.  There is no evidence in the reasons for the Tribunal decision that gives any indication of a decision made in bad faith.

44. As to procedural fairness, s 424A(1) of the Act requires the Tribunal to provide an applicant with clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.  The Tribunal must ensure as far as is reasonably practical that the applicant understands why the information is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review.  

45. There are several exceptions.  One is where the information was provided by the appellant for the purpose of the review or in the process that led to the decision under review (s 424A(3)(b) and s 424A(3)(ba) of the Act).  Another is where the information is not specifically about the appellant or another person but about a class of persons (s 424A(3)(a)).

46. Under s 425 of the Act the Tribunal must invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review.

47. The learned Federal Magistrate found no evidence of a breach of s 425(1) or s 424A of the Act and consequently no evidence of a denial or breach of procedural fairness.

1. The Tribunal provided the appellant with a s 424A notice, which detailed the inconsistencies in the appellant’s evidence and the Tribunal’s concerns in this regard.  The Tribunal appears to have gone beyond its obligations in this regard as the information related to information provided by the appellant and independent country information.  The appellant had an opportunity to respond to this notice and did so.  There was no breach of s 424A.

2. Based on the information contained in the Tribunal decision, the Tribunal appears to have given the appellant sufficient opportunity to present his case and has fully understood the nature of the claims and explored these claims with him at the Tribunal hearing. The appellant was given an opportunity to present his arguments in relation to the issues identified by the Tribunal and therefore there is no breach of s 425 or other provisions of Div 4 Pt 7 of the Act.

3. The ground is not made out.

4. There are no errors of law discernable from either the decision of the Tribunal or of the learned Federal Magistrate.  The Tribunal identified with particularity all of the appellant’s claims and supporting material before it; explored the appellant’s claims with him at a hearing; put to the appellant the nature of independent country information that did not support the appellant’s claims; raised with the appellant its doubts over his evidence; made findings based on the evidence and material before it; and applied the correct law to its findings in reaching its conclusion that it was not satisfied that the appellant was a person to whom Australia has protection obligations under the Convention.

5. Similarly, the Federal Magistrate considered fully the grounds in the application for judicial review, and correctly dismissed the application on the basis that the Tribunal’s decision was not affected by jurisdictional error.

6. In my opinion, his Honour's conclusions were correct.

   CONCLUSION

7. The appeal will be dismissed.  The appellant is to pay the costs of the first respondent to be taxed if not agreed. 

I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.

Associate:

Dated:        29 May 2009

The Appellant failed to appear
Counsel for the First Respondent:	J P Knackstredt
Solicitor for the First Respondent:	Clayton Utz

Date of Hearing:	28 May 2009
Date of Judgment:	29 May 2009