SZNTL v Minister for Immigration and Citizenship

[2010] FCA 1040

FEDERAL COURT OF AUSTRALIA

SZNTL v Minister for Immigration and Citizenship [2010] FCA 1040

Citation:		SZNTL v Minister for Immigration and Citizenship [2010] FCA 1040
Appeal from:		SZNTL v Minister for Immigration [2009] FMCA 1153
Parties:		SZNTL v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 1389 of 2009
Judge:		NICHOLAS J
Date of judgment:		24 September 2010
Catchwords:		MIGRATION – judicial review – Refugee Review Tribunal gave no weight to documents relied upon by appellant in support of her claims – whether it was open to Tribunal to do so – alleged failure by Tribunal to “fairly, properly and thoroughly” consider appellant’s claims – duty of Tribunal to review the whole of applicant’s claims – arguable failure of Tribunal to do so not raised by appellant below or on appeal – appeal dismissed
Legislation:		Migration Act 1958 (Cth) ss 65, 66, 91R(1), 412, 430(1)
Cases cited:		Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387 cited Minister for Immigration and Multicultural Affairs v Khawar (2000) 101 FCR 501 cited Minister for Immigration and Multicultural Affairs v Khawar (2009) 210 CLR 1 cited SDAV v Minister for Immigration and Multicultural and Indigenous Affairs (200) 199 ALR 43 cited Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982 cited Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant  S20/2002 (2003) 198 ALR 59 applied Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426 considered Minister for Immigration and Multicultural Affairs v Tedella (2001) 195 ALR 84 cited NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 cited Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 cited Minister for Immigration & Citizenship v SZPNG (2010) 115 ALD 303 cited Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 cited Coulton v Holcombe (1986) 162 CLR 1 cited
Date of hearing:	16 February 2010
Date of last submissions:	3 March 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	42
Counsel for the Appellant	The Appellant appeared in person
Solicitor for the First Respondent:	Sparke Helmore
The Second Respondent submitted save as to costs.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1389 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZNTL
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NICHOLAS J
DATE OF ORDER:	24 SEPTEMBER 2010
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant is to pay the first respondent’s costs of the appeal.

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 Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1389 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZNTL
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NICHOLAS J
DATE:	24 SEPTEMBER 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from the judgment of a Federal Magistrate dismissing the appellant’s application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) which affirmed the decision of the Minister for Immigration and Citizenship not to grant the appellant a protection visa made pursuant to s 65 of the Migration Act 1958 (Cth) (the Act).

2. The appellant applied for a Protection (Class XA) visa on 30 January 2009.  The application contains a number of assertions the effect of which I will briefly outline.  I emphasise that the contents of the appellant’s visa application consist of assertions because the Tribunal, on one possible interpretation of its reasons for decision, rejected everything the appellant said in her application except for the fact that she was a citizen of China. 

   THE APPELLANT’S VISA APPLICATION

3. The appellant was born in Fuqing, Fujian in China in 1984 making her 24 years old at the time her application was lodged.  Fuqing is also where, according to her application, the appellant lived with her parents until she married a man by the name of Chen in January 2005. 

4. Between 2000 and 2004 the appellant’s father was seriously ill.  The costs of his medical care were high and not covered by the state.  By December 2004, after her father had recovered, her family had run up huge debts.  The parents of Chen approached the appellant’s parents around this time with a proposal that the appellant marry Chen in return for a promise by Chen’s family that they would repay all of the debts.  The appellant states that she was by this time in love with a man named Lin with whom she previously attended primary school but that her parents objected to her marrying him because they understood his family was poor.  The appellant initially refused to marry Chen but eventually agreed to do so under intense pressure from her parents. 

5. Chen was, according to the appellant, a “bully” and “an unhealthy man who is unable to have sex”.  He is also described by her as “an irascible man who became angry very easily” who regarded the appellant as a servant rather than a wife.  In her application the appellant states that she was the victim of domestic violence inflicted by Chen who often “tortured” her by “various cruel methods”.  The appellant also states that her parents, whose debts had been repaid by Chen’s parents, were indifferent to her fate.  She states that she sought help from various government agencies including the Women’s Federation and the Civil Affairs Bureau, the Public Security Bureau (PSB) as well as lawyers.  None of those organisations or people offered her any help.

6. The appellant’s application includes an account of what later happened to her.  The appellant states that on 6 February 2008 her husband became drunk and tortured her.  She states that early in the morning of 7 February 2008 she left the home she shared with her husband and went to the police station in Jiangjing seeking protection from her husband.  Among other things, the appellant states that she told the police that she had been tortured by her husband who she described as “abnormal”.  She told them that she was still a virgin even though she had been married for over 3 years.  She states that she sought their protection. 

7. The appellant states that while she was waiting in a meeting room at the police station her husband arrived in the company of the police.  She states that she was then examined and raped by the police on the pretext of determining whether she was a virgin.  She states that she was sent back to Chen’s family the next morning.

8. According to the appellant’s application, it was after her experience at the police station that she sought help from her ex-boyfriend, Mr Lin.  She states that Mr Lin was by this time married but that both he and his wife sympathised with her situation and endeavoured to help her.  The appellant states that Mr Lin believed that the government in Fujian was corrupt and that the appellant needed to go to Beijing in order to seek justice from the central government.  In October of 2008, Chen’s mother was taken to hospital after suffering a heart attack.  The appellant states that while Chen was at the hospital, Mr Lin gave her a train ticket to Beijing and some money.  The appellant states that she left for Beijing on 10 October 2008. 

9. The appellant states that when she arrived at Fuzhou train station, she was intercepted by police who arrested her and sent her to Fuqing PSB.  She states that the police had been bribed by Chen and his family.  She also states that they tortured her in an effort to ascertain who had incited her to run away.  She states that she remained in custody until 31 October 2008 when she was once again sent back to Chen’s family.

10. The appellant states that Mr Lin and his wife were deeply moved by her actions in risking her life to protect them.  She states that Mr Lin decided to help her escape overseas and that he attempted to obtain a passport for her in her true name but that this failed because her name had been put on a watch list maintained by the PSB.  She states that she was considered as a “dangerous person with serious anti-government ideologies”.  The appellant states Mr Lin spent a large sum of money to purchase a passport for her in another name and that on 29 December 2008, assisted by Mr Lin and his wife, she again escaped from her home and went to Shenzhen.  She states that she left China from Shekou in Shenzhen and arrived in Australia on 31 December 2008.

11. The narrative included in the appellant’s visa application concludes with her statement that she has been “regarded as a ‘criminal’ at large by the PSB”, that the police have looked for her “everywhere” and that they have questioned her parents, brother and sister.  She states that she cannot return to China because she will be subjected to persecution on her return. 

    THE DECISION OF THE DELEGATE

12. On 7 April 2009 the appellant was notified in accordance with s 66 of the Act that her application for a protection visa had been refused. Enclosed with the letter was a statement of the reasons for the decision signed by the delegate.

13. The delegate’s reasons, under the hearing “Is the harm feared for a Convention reason?”, include the following statement:

    Claims

    The applicant claimed she will suffer harm at the hands of her abusive husband if she returns to China.

    I find that the Convention ground of membership of a particular social group, namely Chinese women who are subjected to domestic violence, is the essential and significant reason for the harm feared as outlined in subdivision AL of the Migration Act.

14. Later, under the heading “Consideration of the Applicant’s Claims”, the delegate again noted that “[t]he applicant’s fear of return to China is based on the claim that she has been subjected to domestic violence by her abusive husband.”  After referring to the High Court decision in Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387 and the United Nations’ Guidelines on International Protection concerning the definition of a “particular social group”, the delegate stated that Australian courts have a social perception approach in determining the existence of a particular social group which examines whether a group shares a common characteristic which makes them a cognisable group or sets them apart from society at large. He accepted that women who are the subject of domestic violence in China may constitute a particular social group for the purposes of the Convention. In this context the delegate also referred to the decision of the Full Court in Minister for Immigration and Multicultural Affairs v Khawar (2000) 101 FCR 501 (which decision was affirmed by the High Court in Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1). The delegate then stated:

    I accept that women who are victims of domestic violence in China may be a cognisable group within society, and constitute a particular social group for the purposes of the Convention.  While I accept that women who are victims of domestic violence in China constitute a particular social group, it is not sufficient that a person be a member of a particular social group to meet the definition of a refugee.  She must also have a well-founded fear of persecution for reason(s) of their membership or perceived membership of the particular social group.  However, the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is well-founded. 

15. The delegate then stated that the appellant claimed that she fears harm from her abusive husband and that she was unable to seek protection from police.  This was followed by a discussion of country information which made reference to the problem of violence against women and “domestic” violence in particular.  That information showed that there were significant problems in this area though it described in some detail the steps taken at a central and regional level by administrative and judicial authorities to improve the situation. 

16. The delegate then said:

    While I accept that the applicant may have been subjected to domestic violence by her husband during her marriage, I have difficulty accepting some aspects of her claim.  For instance, the applicant stated that she attempted to travel to Beijing to seek assistance but was stopped by police at the train station, and detained and questioned regarding the purpose of her travel.  I find this claim to be implausible given the fact that the applicant had earlier claimed that police had refused to assist her as they considered domestic disputes to be a private matter.  Given their initial disinterest, there is no plausible reason why the police would have any interest in preventing the applicant from travelling or in detaining the applicant.

    Furthermore, based on the country information cited above, there is no evidence to suggest that the applicant would be persecuted with the tacit acceptance of the Chinese authorities, nor is there evidence that the authorities encourage or are powerless to prevent such incidents of domestic violence, which are essentially a private matter.

    On the evidence available, I am satisfied that the applicant, and women in similar situations, can seek protection by exercising their legal option to leave marriages in which they have been physically and emotionally abused.  I am also satisfied that the government neither encourages nor condones acts of domestic violence. 

17. Thus, while the delegate did not reject the appellant’s claim that she had been subjected to domestic violence by her husband, he expressed considerable scepticism about particular aspects of her account of events.  What is clear, however, is that the appellant’s claim was considered by the delegate on the basis that it was founded upon allegations of domestic violence at the hands of an abusive husband.  The delegate went on to find that the appellant does not have a genuine fear of harm and there is no real chance of persecution occurring. 

    THE TRIBUNAL HEARING

18. The appellant applied pursuant to s 412 of the Act to have the delegate’s decision refusing her a protection visa reviewed. By letter of 18 May 2009 the Tribunal invited the appellant to appear before the Tribunal to give evidence and present arguments. The Tribunal hearing took place on 23 June 2009. The appellant was present together with a migration agent who acted for her. The hearing was conducted with the assistance of an interpreter of Mandarin.

19. No transcript of the hearing was in evidence before the Federal Magistrate and none was available to me.  The appeal book contained copies of what purport to be certified translations of two Summons issued by the Fuqing Municipality PSB directed to Mr Lin and another member of his family as well as a “Certificate of Being Released from Detention” certifying that the appellant had been detained by the Fuqing Municipality PSB from 10 October 2008 to 31 October 2008. 

    THE TRIBUNAL’S DECISION

20. The Tribunal hearing took place on 23 June 2009.  The Tribunal’s decision was given the next day.  The Tribunal’s reasons for decision consists of thirty-nine paragraphs.  After referring to the procedural history of the appellant’s application for review, the Tribunal sets out its usual summary of the definition of “refugee” in Article 1A(2) of the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (the Convention) including its description of the key elements of that definition and some principles related to its interpretation and application.

21. Of the four key elements identified by the Tribunal in its reasons, the second is perhaps most relevant.  The Tribunal stated at para [13]:

    Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve "serious harm" to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91 R(l)(c)). The expression "serious harm" includes, for example, a threat to life or liberty, significant physical harassment or ill-treatment, or significant economic hardship or denial of access to basic services or denial of capacity to earn a livelihood, where such hardship or denial threatens the applicant's capacity to subsist: s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

22. The Tribunal’s reasons make no express reference to any of the authorities that have focused on claims for protection made by women who, through their exposure to domestic violence, might be considered to form part of a particular social group:  see, for example, Khawar 210 CLR 1, SDAV v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 43 (FCAFC).

23. At para [19] of its reasons the Tribunal noted that it “has had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources.” At para [22] to [30] the Tribunal sets out details of the appellant’s “primary claim”, her “oral claim” and her evidence. The relevant paragraphs are as follows:

    Primary Claims

    22.The applicant stated in her primary application that she was born in Fuqing, China, on 10 March 1984. She had had nine years of primary and secondary education.

    23.In January 2005, she married a man who was chosen for her by her parents. She stated that she suffered abuse at his hands. She sought help from various sources, to no avail. Eventually, in February 2008, she went to the police. However, her husband arrived and she was raped by the police, on the excuse of finding out if her claim was true that, despite being married for 3 years, she was still a virgin. She was obliged to return to her husband.

    24.A further attempt to escape in early October 2008 was also unsuccessful. She was detained by the police and eventually returned to her husband.

    25.In late December 2008, her husband left her home town on business and she was able to leave China on a false identity with the assistance of friends.

    Oral claims and evidence

    26.At hearing, I went over in detail and at some length the events of the applicant’s last 12 months in China. They included the incidents described in paragraphs 23 and 24 above.

    27.In her account of the latter incident, she left a hospital in Fuqing where her mother-in-law was being treated following a heart attack and travelled by public transport to the home of a former boyfriend, now married. He and she then went to the bus station and caught a bus to Fuzhou, where he bought her a ticket to Beijing, where she intended to complain about her treatment by Fuqing officials and seek justice for herself. However, when she presented her ticket at the station, she was escorted to an office where officers of the Fuqing PSB were waiting for her. They took her back to Fuqing, where she was detained for 3 weeks.

    28.As to her departure from China, she said that her husband had had to go to another town on business and his relatives with whom she lived had had to leave to go to a wedding. They tied her up and locked her in a room. She managed to escape and again sought help from her former boyfriend. They left Fuqing by bus on 28 December 2008 for Shenzhen, where her friend bought her the passport on which she travelled to Australia, a suitcase with some clothes and a ticket. She left for Hong Kong on 30 December.

    29.We discussed country information available regarding government policy on domestic violence and the support available to women suffering abuse. The applicant said that her husband had bought her and treated her accordingly. Women in remote areas were nothing.

    30.The applicant submitted documents regarding her detention and the arrest of her former boyfriend for aiding her. I said that document forgery was very common in China and that I would assess these documents in terms of my conclusions about her other evidence.

1. Under the hearing “FINDINGS AND REASONS” the Tribunal, in para [31], accepts that the appellant is a citizen of China.  The crux of the Tribunal’s reasons for affirming the delegate’s decision appears at para [32] to [37] where it states:

   32.The applicant’s oral evidence was consistent with her written claims, but I do not believe that her claims are based on fact. Her account of her unsuccessful attempt to reach Beijing in October 2008 and of the circumstances of her successful escape to Australia and [sic] not plausible.

   33.To take the first case. She claimed that she left the hospital at 5 p.m., took two means of public transport to reach her former boyfriend’s house. Luckily, he was in, since this was not pre-arranged. He dropped whatever he was doing and, with the blessing of his wife, who knew of the former relationship, left for Fuzhou by bus at about 5.30 p.m., where he bought her a train ticket for Beijing. Meanwhile, her husband, having been alerted by his sister that she had disappeared, knowing somehow that she would head for Beijing via Fuzhou, alerted the PSB, who quickly travelled by car from Fuqing to Fuzhou, taking about an hour, to intercept her at the Fuzhou railway station. I find the time line unconvincing and the proposition that the PSB would go to such trouble to return a runaway wife to her husband even less plausible. The applicant said that they knew she would complain about official corruption and about what had happened to her in February. She was not able to explain to me how they would know that 8 months later or why it should have been assumed that she was heading for Beijing.

   34.As to her departure for Australia, the story is even less plausible. The applicant claimed that her ex-boyfriend had started in early December to make arrangements to get her a passport in her own name, but had found that she was on a black list and that she could not get one. So, when she phoned him on 28 December, they went to a friend in Shenzhen, where, the same day, he bought her a passport with an Australian visa already in it and had her photo substituted for the photo already in the passport. He also booked her flight to Australia and bought her the ticket. He told her that the cost of the passport was RMB80,000. She arrived in Australia on 31 December, via Hong Kong.

   35.I do not accept that such arrangements can be made at that speed. The story as a whole is simply not credible. The applicant had no explanation as to how this was possible when I expressed my doubts at hearing but maintained that this was how she left China. I do not accept that her account was truthful.

   36.In the circumstances, I am not prepared to give any weight to the documents the applicant submitted. I find that her entire account is a work of fiction. I do not accept that the events she described in her application which she says occurred in February 2008 did in fact occur or any of the subsequent events. I do not accept that she intended to go to Beijing to complain of her treatment or of official corruption. I do not accept her claim that, if she were to return to China, she would be imprisoned for any Convention reason.

   37.I find that the applicant does not have a well founded fear of persecution in China.

   THE APPLICATION FOR JUDICIAL REVIEW

2. The appellant was not legally represented before the Federal Magistrate.  The grounds upon which she sought judicial review from the learned Federal Magistrate are summarised in his Honour’s reasons for judgment. First, it was said by the appellant that the Tribunal “failed to create a fair and genuine chance for me while it reviewed my application for a protection visa.”  In particular, it was argued by the appellant that there was no evidence that the Tribunal made any attempt to consider her evidence “fairly, properly and independently”.  Secondly, it was said that the Tribunal’s decision was vitiated by bias.  Thirdly, it was said that the Tribunal ignored important documentary evidence submitted by the appellant. 

   THE FEDERAL MAGISTRATE’S DECISION

3. The learned Federal Magistrate rejected the appellant’s argument that the Tribunal’s decision was affected by bias.  After referring to the High Court’s decision in Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982, his Honour stated that he saw nothing to indicate any apprehension of bias.

4. His Honour also rejected the argument that the Tribunal erred in its treatment of the three documents relied upon by the appellant to which I have already referred.  It will be recalled that in para [36] of its reasons the Tribunal stated that it was not prepared to give any weight to these documents.  The learned Federal Magistrate referred to the decision of the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [12]. His Honour found that the Tribunal gave no weight to the appellant’s documentary evidence because it had rejected her entire claim on the basis that it was not credible.

5. Most of the other arguments advanced by the appellant focused upon the Tribunal’s reasons for rejecting the appellant’s account of events.  The Federal Magistrate noted that these arguments were directed to impermissible merits review. 

   THE APPEAL

6. As was the case before the Federal Magistrate, the appellant was not legally represented at the hearing of the appeal although she had the assistance of an interpreter.  The notice of appeal filed by the appellant contained two purported grounds that were altogether uninformative, the first simply stating that the Federal Magistrate erred in law and the second indicating, as best I can understand it, that the Federal Magistrate was wrong in upholding the Tribunal’s factual findings.   The latter ground of appeal can be put aside on the basis that it is in substance a complaint that the Federal Magistrate refused to undertake a merits review of the Tribunal’s decision.

7. So far as the first ground of appeal is concerned, it was elaborated on in written submissions filed by the appellant prior to the hearing.  Those submissions reiterate the appellant’s allegations of bias and also assert that the Tribunal ignored important evidence, misstated her claims and the evidence and made incorrect findings of fact.  It is also said that the Tribunal did not make any attempt to consider her claims “fairly, properly and thoroughly” and that:

   The key issue should be whether or not the Tribunal has created [sic] a genuine and proper attempt to look at my claims at or after the Tribunal’s hearing.  In my case, the answer is no.

8. The first respondent filed written submissions which noted that the appellant had never particularised before the Federal Magistrate or in the appeal any claim that was raised by her which was not considered by the Tribunal.  That appears to be so and, for reasons which will become apparent, it is a matter of some significance to this appeal.  The first respondent submitted that, in any event, there was no basis for an assertion that the Tribunal committed jurisdictional error by failing to consider any claim advanced by the appellant.

   CONSIDERATION

   Apprehended bias

9. There is no doubt that the learned Federal Magistrate was right to reject the appellant’s complaint that the Tribunal’s decision was vitiated by actual or apprehended bias.  The material relied upon by her for the purpose of making that argument good was slender at best.  That is not to say that the Tribunal’s reasons for decision are satisfactory.  They are perfunctory in their rejection of the appellant’s evidence of her treatment by police and the circumstances of her escape to Australia.  But that does not establish actual or apprehended bias. 

   Documentary Evidence

10. I also agree with the learned Federal Magistrate that there was no jurisdictional error stemming from the Tribunal’s treatment of the documentary evidence relied upon by the appellant.  The Tribunal made express findings rejecting the appellant’s account of events which she described in her application as occurring in February 2008 and subsequently.  These findings expressly encompass the period and the events to which the documentary evidence relied on by the appellant related.  There is no suggestion that the Tribunal overlooked the existence of the documents in question – it clearly had regard to them but declined to give them weight in light of what it considered to be a wholly implausible story.  For present purposes, I take the Tribunal’s rejection of the appellant’s “entire account” as encompassing at least so much of her narrative which begins with her description of the events of 7 February 2008 through to the account of her escape to Australia.  It was open to the Tribunal to approach the documentary evidence in the way it did:  see Applicant S20/2002 at [12].

    Fair, proper and thorough consideration

11. The appellant submitted in her written submissions that the Tribunal erred in that it failed to “fairly, properly and thoroughly” consider her claim.  A similar formulation (“proper, genuine and realistic consideration”) was considered in Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426. The Full Court, which was concerned with an application for judicial review made under Part 8 of the Act as it then stood, held that it was not an available ground of review that the Tribunal had failed to give proper, genuine and realistic consideration to the merits of the case of an applicant for a protection visa. That decision was followed by the Full Court in Minister for Immigration and Multicultural Affairs v Tedella (2001) 195 ALR 84.

12. Both of those decisions were referred to by the Full Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [50]-[51]. The Full Court cautioned against treating language used in judgments as if it was the equivalent of words in a statute and stated that the “touchstone” for determining whether there was reviewable error “must always be the words of the empowering Act and the nature of the function which it confers upon the decision-maker”. At the same time it noted that what was said in Anthonypillai must now be read in light of Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597.

13. Before the Federal Magistrate the appellant adopted a slightly different formulation to that adopted by her in her submissions on appeal; the formulation employed by her below was, according to the reasons of the Federal Magistrate, that there was no evidence that the Tribunal made any attempt to consider her evidence fairly, properly and independently.  As summarised by the Federal Magistrate, the appellant’s submission to his Honour was:

    She claims there is no evidence the Tribunal made any genuine attempt to consider that evidence fairly, properly and independently.  Again, she reiterates her claim the Tribunal made its finding based on unwarranted assumption or an apprehension of bias, rather than look at the documentary evidence. 

    It is apparent that this submission, as put to his Honour, drew upon other submissions made by the appellant concerning the Tribunal’s alleged bias and its treatment of the documentary evidence relied upon by the appellant.  Thus, the first and second arguments put to his Honour by the appellant were closely intertwined.  In substance, it was the appellant’s contention that the Tribunal did not give her evidence fair, proper and independent consideration because it had already made up its mind before the Tribunal hearing occurred.  However, there is no evidence to support that contention. 

14. It is clear that the Tribunal must review the whole of the visa applicant’s claims.  As North and Lander JJ recently said in Minister for Immigration & Citizenship v SZPNG (2010) 115 ALD 303 at [27]:

    Of course, if the RRT failed to consider an element of an applicant’s claim, that would amount to jurisdictional error because Div IV of Pt 7 of the Act requires a review of the whole of the applicant’s claims. In that case, the RRT would have failed to discharge its “imperative duties”: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; 187 ALR 117; 67 ALD 615; [2002] HCA 11; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; 219 ALR 27; [2004] FCAFC 263.

    The Full Court in NABE at para [57] cited with apparent approval the following extract from the judgment of Allsop J (with whom Spender J agreed) in Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at [42]:

    The requirement to review the decision under s 414 of the Act requires the tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration ... It is to be distinguished from errant fact finding. The nature and extent of the task of the tribunal revealed by the terms of the Act ... make it clear that the tribunal's statutorily required task is to examine and deal with the claims for asylum made by the applicant.

    In carrying out its review the Tribunal must deal not only with claims that are expressly articulated by the visa applicant but also those which clearly arise on the materials before it:  NABE at [59]-[63].

15. It is arguable that the Tribunal failed to deal with an aspect of the appellant’s claim that arose out of the material before the Tribunal namely, that the appellant was a member of a particular social group (women subjected to domestic violence in China) with a well founded fear of persecution based upon her membership of that group.  For such a claim to succeed it would be necessary to consider, among other things, the attitude of the Chinese authorities to domestic violence against women with a view to determining whether or not those authorities were implicated in that group’s persecution by reason of having condoned or tolerated it: see, for example, Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1 at [26] per Gleeson CJ. It would also be necessary to consider whether that persecution “involves systematic and discriminatory conduct”: see s 91R(1) of the Act. The delegate addressed this aspect of the appellant’s claims explicitly.

16. However, no argument along these lines was ever put to the Federal Magistrate nor was it raised in the notice of appeal or written submissions filed in this Court.  It may be that the point was never raised before the Federal Magistrate because of something that was said by the appellant to the Tribunal during the course of the Tribunal hearing.  I do not know.  Neither party put any transcript of the hearing before the Tribunal into evidence.  But it is clear from the Tribunal’s reasons that the matter of government policy on domestic violence and the support available to women suffering abuse was raised explicitly by the Tribunal with the appellant during the course of the hearing. 

17. In circumstances where the argument which I have postulated was not raised at all by the appellant before the Federal Magistrate nor developed in this Court in either the notice of appeal or the appellant’s written or oral submissions, it is not an argument which I would allow the appellant to raise on appeal.  There are no special circumstances present in this case which would justify any other course.  The purpose of this appeal is to correct error on the part of the Federal Magistrate rather than facilitate a fresh application for judicial review on different grounds to those which were advanced by the appellant below.  As the plurality observed in Coulton v Holcombe (1986) 162 CLR 1 at 7:

    It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.

18. For reasons which I have briefly touched upon, the Tribunal’s reasons for decision are far from satisfactory. The brevity and perfunctoriness with which it went about its obligations under s 430(1) of the Act leave much to be desired. Nevertheless, in the result, I am not satisfied that the learned Federal Magistrate fell into error. I am satisfied that his Honour correctly rejected each of the challenges raised by the appellant to the Tribunal’s decision.

19. I therefore order that the appeal be dismissed with costs. 

I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas.

Associate:

Dated:        24 September 2010