SZNWZ v Minister for Immigration

[2010] FMCA 481

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNWZ v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 481

MIGRATION – Review of Refugee Review Tribunal decision – refusal of Protection (Class XA) visa – no reviewable error – application dismissed.

The Applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZNWZ”.

Migration Act 1958 (Cth), ss.91X, 424A

Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12
Minister for Immigration & Citizenship v SZNVW [2010] FCAFC 41
NAMJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 983
Refugee Review Tribunal; ex parte H (2001) 179 ALR 425
SZFDE v Minister for Immigration & Citizenship [2007] HCA 35

Applicant: SZNWZ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2214 of 2009

Judgment of: Lloyd-Jones FM

Hearing date: 8 April 2010

Delivered at: Sydney

Delivered on: 16 July 2010

REPRESENTATION

Solicitors for the Applicant: The Applicant appeared in person with the assistance of a Mandarin interpreter.

Counsel for the Respondents: Ms A Mitchelmore

Solicitors for the Respondents: Australian Government Solicitor (Ms E Warner Knight)

ORDERS

1. The application filed on 11 September 2009 is dismissed.

2. The Applicant is to pay the first Respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2214 of 2009

SZNWZ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. The Applicant is a citizen of the Peoples’ Republic of China (PRC) and was born on 5 November 1982.  In the Applicant’s Protection (Class XA) visa application, the Applicant claimed that she is an active human rights activist and has been a subject of attention to the PRC authorities. The Applicant, her neighbour and friend in Fuqing reported to the PSB in Nanping City that her neighbour had been assaulted by Yun Fei Zhou and shortly after Yun Fei Zhou and his affiliates broke into the Applicant’s home and kidnapped her neighbour.

2. After learning that her neighbour and other innocent girls were forced to work at Yun Fei Zhou’s night club, the Applicant drafted petitions for the girls to strive for their human rights.  In September 2008 an investigation group was sent to Nanping city but the night club continued to run and the girls were subjected to persecution by Yun Fei Zhou.  On 27 September 2008 Jun Zhan and the police raided the Applicant’s home and confiscated her computer, printer and copy machine.  The Applicant was forced to confess to her anti-government activities to the PSB in Nanjing City.  The Applicant alleges that on 28 September 2008 she was detained for more than a month in Nanping City.  During this time, the Applicant claims that she was mentally tortured, mistreated and persecuted by Jun Zhan.  She claims she signed a statement confessing that she had motivated them to join the anti-government movement.

3. On 31 October 2008, the Applicant was released on bail but had to remain in her house in Nanping City and was required to report to the PSB at Nanping City once a week.  The Applicant claims that her neighbour’s relative, Mr Cun Jia Ye, assisted the Applicant to leave China for fear of persecution on a passport with a different name.

4. A Court Book (“CB”) was prepared by the first Respondent’s solicitors and marked Exhibit “A”.  This is the only evidence before the Court.

5. The Applicant arrived in Australia on 12 November 2008 and applied for a Protection (Class XA) visa on 2 January 2009.  On 31 March 2009 a delegate of the Minister for Immigration & Citizenship refused the application for a Protection visa and the Applicant was notified of this decision by way of letter on 31 March 2009 2009.  The Applicant applied for a review of this decision with the Refugee Review Tribunal (“the Tribunal”) on 24 April 2009 and the Tribunal affirmed the delegate’s decision not to grant the Applicant a Protection visa on 17 August 2009.  It is this decision, RRT case number 0903099, a decision of Angela Cranston that is the subject of these proceedings.

6. At the first court date directions hearing, the Applicant was granted leave to file an amended application. However the Applicant did not avail herself of this opportunity and therefore relies on the grounds contained in his original application which state:

   1. There is no evidence that the Tribunal has taken a genuine attempt to consider my evidence independently, fairly and properly.  The Tribunal’s decision was affected by apprehended bias. 

   Particulars

   The Tribunal’s decision has mainly two grounds.  Firstly, the Tribunal raised the issue in relation to my interview at the Department with the Delegate of the Minister; and secondly, the Tribunal raised the issue that my case seemed to be similar to another case.  Regarding the first issue, I gave my further evidence after the Tribunal’s hearing as follows:

   I accept that the Departmental interview I was asked to describe what I wrote in the petition as follows:

   Q: Could you please in one or two sentences tell me what was the contents of the petition?

   A: Demanding to protect and respect women’s basic human rights and interests, to stop cruelly harming or killing the women, to punish severely those killers and criminals who have cruelly harming or killing the women.

   Interpreter: To protect the basic rights of women and stop doing any activities inflicting damage on women and who ever mistreated or persecuted women should be bought (brought) to justice and severely dealt with.

   Firstly, at the Departmental interview, I just asked to describe the contents of the petition in one or two sentences.  Secondly, the departmental interview was a telephone interview.  I talked with a case officer over the phone through an interpreter who was on the phone.  I have never ever had such an experience in the past; and I was really unable to get used to communicating with someone in such a particular way.  So, at the Departmental interview, I sometimes was indeed in great difficulties in making my claims or giving my oral evidences.  Thirdly, during the Tribunal’s hearing while I was asked the similar question about the contents of the petition, the Tribunal gave me plenty of time to do so.  I therefore, was able to describe the contents of the petition in details.

   Fairly and independently looking at the Tribunal’s decision, there has been no evidence that the Tribunal has any genuine attempt to consider my particular difficulties at the Departmental interview, because the interview was conducted in a way that I talked with a case officer over the phone through an interpreter who was also on the phone.  I have never ever had such an experience in the past; and I was really unable to get used to communicating with someone in such a particular way.  So, at the Departmental interview, I sometimes was indeed in great difficulties in making my claims or giving my oral evidences.  But, during the Tribunal’s hearing, while I was asked the similar question about the contents of the petition, the Tribunal gave me plenty of time to do so.  I therefore, was able to describe the contents of the petition in details.

   Regarding the second issue, I gave further evidence after the Tribunal’s hearing as follows:

   I have considered the Tribunal’s concern that my overall story including the sequence of events and the overall narrative in relation to why I strove for human rights and women’s rights is very similar to the other case.  As a result “…the Tribunal may find that it is highly unlikely if not implausible that such similarities in two cases conducted by the same migration agent could occur”.

   Frankly speaking, I was unable to make any comments on another case for a protection visa in which my migration agent acted (RRT Case 0801115 signed 1 April 2008).  However, based on the Amensty International Report released on 18 October 2007 (…) it can be founded that:

   Violence and discrimination against women.

   Women suffered discrimination in employment, education and access to health care.  The trafficking of women and girls remained widespread particularly from North Korea (see below).  Domestic violence continued to be prevalent and was said to be a primary cause of suicide among women in rural areas.

   It was reported in May that dozens of women in the Guangxi Zhuang Autonomous Region in south-west China were subjected to forced abortions under the supervision of local family planning officials, in some cases in the ninth month of pregnancy.

   Also, according to the information from independent source (Country of Origin Information Service: Border and Immigration Agency: Apollo House; 36 Wellesley Road, Croydon CR 9 3RR, United Kingdom, email: [email protected] website: (…) it can be found that:

   Women

   Legal rights

   26.01 Article 48 of the Constitution states, “Women in the People’s Republic of China enjoy equal rights with men in all spheres of life, political, economic, cultural, and social, including family life”. [1a] (The Constitution) in September 1980 the Chinese government ratified the Convention on the Elimination of All Forms of Discrimination against Woen (CEDAW). [27a] (United Nations Inter-Agency Project on Human Trafficking in the Greater Mekong Sub-Regions) Women’s rights are also protected by the Law on the Protection for Women’s Rights and Interests, effective as of 1 October 1992. [5f] However, as noted by the US State Department (USSD) Report 2006, published on 6 March 2007, “…women frequently encountered serious obstacles to the enforcement of laws…Some observers noted the agencies tasked with protecting women’s rights tended to focus on maternity-related benefits and wrongful termination during maternity leave rather than on sex discrimination, violence against women, and sexual harassment. Women’s rights advocates indicated that in rural areas, women often forfeited land and property rights to their husbands in divorce proceedings”. [2e] (Section 5)

   Violence against women

   26.17 According to a report published by the state sponsored All China Women’s Federation (ACWF) in December 2006, 38.4 per cent of people surveyed admitted reporting to violence to resolve disagreements with their spouses, while nearly half believed it was reasonable for husbands to beat their wives.  The official China Daily newspaper reported the findings of this survey on 4 February 2004.

   According to US State Department Report 2006 (China) (…) published on 6 March 2007, it can be found that:

   Women

   Violence against women remained a significant problem.  There was no national law criminalizing domestic violence but the Marriage Law provides for mediation and administrative penalties in cases of domestic violence.  In August 2005 the NPC amended the Law on the Protection of Women’s Rights specifically to prohibit domestic violence, although critics complained that the provision fails to define domestic violence.  More than 30 provinces, cities, or local jurisdictions passed legislation aimed at addressing domestic violence.  According to a 2004 survey by the All-China Women’s Federation (ACWF) 30 percent of families had experienced domestic violence and 16 percent of husbands had beaten their wives.  The ACWF reported that it received some 300,000 letters per year complaining about family problems, mostly domestic violence.  The actual incidence was believed to be higher because spousal abuse went largely unreported.  According to experts, domestic abuse was more common in rural areas than in urban centres.  In response to increased awareness of the problem of domestic violence, there were a growing number of shelters for victims.  Most shelters were government run, although some included NGO participation.

   The government had made gender equality a policy objective since 1949.  The constitution states “women enjoy equal rights with men in all spheres of life.”  The Law on the Protection of Women’s Rights and Interests provides for equality in ownership of property, inheritance rights, and access to education.  Policies that once allotted work-unit housing only to the husband have become gender-neutral, and an April 2005 Supreme Court interpretation emphasized that housing rights were shared equally, even in cases of divorce.  The State Council’s National Working Committee on Children and Women coordinated women’s policy.  The ACWF was the leading implementer of women’s policy for the government.  Nonetheless, many activists and observers were concerned that the progress made by women over the past 50 years was eroding.  They asserted that the government appeared to have made the pursuit of gender equality a secondary priority as it focused on economic reform and political stability.

   The Law on the Protection of Women’s Rights and Interests was designed to assist in curbing gender-based discrimination.  However, women continued to report that discrimination, sexual harassment, unfair dismissal, demotion, and wage discrepancies were significant problems.  Social organizations and the government made efforts to educate women about their legal rights.  In high-profile case in September a Chinese actress made sexual harassment allegations against a China Central Television (CCTV) director on her blog.  Although the director threatened to sue the actress for “libel”, the case has not gone to court.  Hundreds of thousands of internet users expressed support for the actress.

   Nevertheless, women frequently encountered serious obstacles to the enforcement of laws.  According to legal experts, it was difficult to litigate a sex discrimination suit because the vague legal definition made it difficult to quantify damages.  As a result very few cases were brought to court.  Some observers noted the agencies tasked with protecting women’s rights tended to focus on maternity-related benefits and wrongful termination during maternity leave rather than on sex-discrimination, violence against women, and sexual harassment.  Women’s rights advocates indicated that in rural areas, women often forfeited land and property rights to their husbands in divorce proceedings.

   According to US State Department Report 2007 (China) (…) published on 11 March 2008, it can be found that:

   Women

   Rape is illegal, and some persons convicted of rape were executed.  The law does not expressly recognize or exclude spousal rape.  According to official statistics, 32,352 cases of rape were reported to police in 2006.  Violence against women remained a significant problem.  There was no national law criminalising domestic violence, but the Marriage Law provides for mediation and administrative penalties in cases of domestic violence.

   In August 2005 the NPC amended the Law on the Protection of Women’s Rights specifically to prohibit domestic violence, although critics complained that the provision failed to define domestic violence.  More than 30 provinces, cities, or local jurisdictions passed legislation aimed at addressing domestic violence.  In 2006 and 2007, several provinces, including Shaanxi, Guangdong, Gansu and Zhejiang, passed regulations requiring police to respond immediately to domestic violence calls or face punishment.  According to a 2005 survey by the All-China Women’s Federation (ACWF) 30 percent of 270 million families had experienced domestic violence and 16 per cent of husbands had beaten their wives.  The ACWF reported that it had received some 300,000 letters per year complaining about family problems, mostly domestic violence.  The actual incidence was believed to be higher because spousal abuse went largely unreported.  According to experts, domestic abuse was more common in rural areas than in urban centres.  An ACWF study found that only 7 percent of rural women who suffered domestic violence sought help from police.  In response to increased awareness of the problem of domestic violence, there was a growing number of shelters for victims.  Most shelters were government run, although some included NGO participation.

   According to US State Department Report 2008 (China) (…) published on 25 February 2009, it can be found that:

   Women

   The government appeared to criminalize rape, but no information was available on details of the law and how effectively the law was enforced.  Women in prison camps were subject to rape and forced abortions.

   Violence against women was a significant problem both inside and outside the home.

   It is for the reasons that violence against women are quite common in China, particularly in rural areas such as my hometown in Fuqing or in Nanping area; that women “…frequently encountered serious obstacles to the enforcement of laws…” ; that “…According to a report published by the state-sponsored All China Women’s Federation (ACWF) in December 2003, 38.4 per cent of people surveyed admitted resorting to violence to resolve disagreements with their spouses, while nearly half believed it was reasonable for their husbands to beat their wives…”; that “…According to a 2005 survey by the All-China Women’s Federation (ACWF) 30 percent of 270 million families had experienced domestic violence, and 16 percent of husbands had beaten their wives.  The ACWF reported that it received some 300,000 letters per year complaining about family problems, mostly domestic violence.  The actual incidence was believed to be higher because spousal abuse went largely unreported.  According to experts, domestic abuse was more common in rural areas than in urban centres.  An ACWF study found that 7 percent of rural women who suffered domestic violence sought help from police.  In response to increased awareness of the problem of domestic violence, there was a growing number of shelters for victims.  Most shelters were government run, although some included NGO participation…” and that even today, “…Violence against women remained a significant problem…”, it would be not unusual that my experience and the reason why I strove for human rights and women’s rights are similar to the other cases in some aspects.

   As a matter of fact, fairly looking at the case given by the Tribunal the background or basis of the two cases are completely different even if some sentences might be used in a similar way when they have been translated into English.  It is just like that the writer used the exact same words to describe the exact same situation, such as “…Violence against women remained a significant problem…” in the US State Department Reports for different years.

   In support of my above-mentioned claims, I provided a copy of my statement, which I wrote in Chinese and which I provided to my migration agent while he prepared my application for a Protection visa on my behalf, as evidence that all of claims in my protection application are based on my own experiences in China.  I further stated as follows:

   My application, particularly the Statutory Declaration which has been in English and which has attached to my primary application, is prepared by my migration agent based on the above-mentioned statement which I have written in Chinese.  My claims in my application might be expressed by the migration agent in the way similar to another application; and I think it may be for the reason that people normally like to express similar things in similar way.  That’s some identical paragraphs or phrases were used in two different application.  In order to clarify this particular situation, I hereby submit a translation which I wrote in Chinese and which I provided to my migration agent while he prepared my protection application.  This has been done by a NAATI translator.

   The following matters are very common in China, particularly in Fujian are:

   In China, particularly by Fujian, many and many people, particularly men, indulge in gambling; and “Majiang” is the most popular gambling game in throughout the country in China; and many and many men indulge in drinking; and many and many women become victims of domestic violence while their men lost money in gambling or got drunk;

   - In China, particularly in Fujian, the police are extremely corrupt; and the police take advantage of their position to gain high profit for themselves or their families;

   - In China, particularly in Fujian, it is very common that a man vents his anger on his woman while he lost money in gambling.  In such a situation what can a woman do? Escaping to her mother family’s home or friend’s place must be only choice for most of whom;

   - In China, particularly in Fujian, the men regard the women as their own properties.  Many of men even regard their women, such as wives or lovers, as their slaves who must be obedient to them completely.  If they found their women dared to resist against them, then they would be very upset.  In such a situation, it is very much common practices for these men to break into the places, in which their women have been protected, and then vent their angers on damaging furniture, the door, windows or other properties and then took their women away;

   In China, particularly in Fujian, it is also quite common that the men threaten the people who dared to protect or support to help their women who had resisted against them;

   In China, even in Fujian, not everyone is willing to tolerate unfair treatment, particularly domestic violence against them.  Therefore, it is not unusual that some women have tried their best to strive for basic human rights and women’s basic rights and against corrupt officials.

   In China, writing petition is most common practice for our ordinary people to strive for our basic human rights;

   In China, under the Communist dictatorship, it is very common that the people like me who dare to strive for their basic human rights have been subjected to interrogation, detention or even imprisonment; and

   -In China, it is very dangerous to get involved in any movement to strive for basic human rights under the Communist dictatorship; and thus we have to try every means to protect ourselves.  On the other hand, in China, the authorities, particularly the police, always alleged the organizers like me as the person behind the movement.

   Again, violence against women are quite common in China, particularly in rural areas such as in my hometown in Fuqing or in Nanping area; and thus it would be not unusual that my experience and the reason why I strove for human rights and women’s rights are similar to the other case in some of aspects.

   Fairly and independently looking at the Tribunal’s decision, there has been no evidence that the Tribunal has any genuine attempt to consider all of above-mentioned evidence in support of my claims.

   2. There is no evidence that the Tribunal has taken a genuine attempt to consider my evidence independently, fairly and properly.  The Tribunal’s decision was affected by apprehended bias.

   Particulars

   In support of my claims, I provided the Tribunal a copy of a report from Suzanne T Dang who was a psychologist in support of my claims.  According to the report, the Psychologist stated that:

   In my opinion [SZNWZ] symptoms are suggestive of the diagnosis of a Major Depressive Episode as well as Postraumatic Stress Disorder.

   I asked [SZNWZ] to complete two psychometric measures (both translated into Chinese with good validity), namely the Chinese DASS21 and the Chinese Impact of Event Scale – Revised (IES-R, Weiss & Marmar, 97; translated Wu & Chan 01).  These measures indicated that her depressive and anxiety symptoms were both in the “Extremely Severe” range.  On the Chinese IES-R, her scores on the “Intrusion” and “Hyperarousal” scales were above the recommended cut-off points, indicating the presence of PTSD symptoms.

   I…am very concerned about her mental state, and would normally recommend a review with a psychiatrist as well as ongoing cognitive-behavioural therapy.  Unfortunately [SZNWZ] and her friend told me that she cannot afford to continue to see me (or anyone in private practice) for ongoing intervention.  She is also unable to leave home independently, presumably due to her high levels of anxiety and complete lack of English skills.

   The Tribunal refused to consider the report mainly on two grounds.  Firstly, the Tribunal thought that I could reply the Tribunal’s question at the Tribunal’s hearing; and secondly I could submit my Statutory Declaration after the Tribunal’s hearing.  But, fairly looking at the Tribunal’s decision there is no evidence showing that the Tribunal has taken any genuine attempts to consider that I have completely lost my control in the late part of the Tribunal’s hearing; and that my Statutory Declarations, which had submitted to the Tribunal, were prepared in a peaceful circumstance without too much mental and psychological pressure and also with assistance of my migration agent.

Delegate’s decision

1. By a letter dated 31 March 2009, a delegate of the Minister notified the Applicant that her Protection visa application had been refused (CB 73).  The delegate was not satisfied that the Applicant was or would be considered to be of adverse interest to the Chinese authorities.  Nor was it satisfied that she would be persecuted on account of her claimed political opinion.  The delegate was not convinced that the Applicant, “an educated 26 year old professional Han Chinese person who appears to have had little or no interest in such issues previously would be sufficiently motivated to represent a group of women and seek their protection from an abusive and / corrupt employer” (CB 88).  This was particularly the case when those actions would, if true, have undertaken “a considerable risk of personal harm, given reports of the Chinese authorities obtaining and persecuting human rights defenders” (CB 88).

Tribunal decision

1. The Applicant appeared before the Tribunal on 18 June 2009 to give evidence and present arguments in support of her application.  The Tribunal was conducted with the assistance of an interpreter in the Mandarin and English languages (CB 184).  On 18 June 2008, after the hearing the Tribunal sent the Applicant a letter inviting her to comment on information, which would, subject to any summons or response she made, be the reason, or be part of the reason for affirming the decision under review (CB 128-131).  On 14 July 2009 the Applicant’s agent Priscilla International Co Pty Ltd forwarded a response including a statutory declaration affirmed by the Applicant and a number of documents (CB 132-141), including a report prepared by a consultant, clinical psychologist, Suzanne T Dang dated 17 June 2009 in relation to a consultation with the Applicant on 15 June 2009 (CB 139-141).

2. On 24 July 2009, the Tribunal sent a second s.424A to the Applicant inviting her to comment on further information that would, subject to any comments or responses she made, be the reason or part of the reason for affirming the decision under review (CB 143-147). On 7 August 2009 the Applicant’s agent forwarded a response which includes a statutory declaration affirmed by the Applicant (CB 158-169). By letter dated 17 August 2009 the Tribunal notified the Applicant of its decision to affirm the decision of the Minister’s delegate (CB 176).

3. The Tribunal was satisfied that the Applicant’s evidence remained consistent over time with what was described in her Protection visa application.  However, when the Tribunal asked her to elaborate on matters not described in her application, the Applicant’s answers were vague and lacking in detail, or appeared unlikely and inconsistent with the injuries she said she had sustained or the level of fear she had sought to ascribe to herself or the other women (CB 199 at [50]).  Although the Applicant claimed that her friend had been seriously hurt by the nightclub owner in June 2008, the Applicant was unable to give details as to the medicine she applied to her neighbour’s injuries, and the Tribunal considered it unlikely that the Applicant would have failed to seek medical attention for the neighbour in light of such alleged serious injury (CB 199 at [50]).

4. The Tribunal indicated that if the Applicant’s responses of such matters were the only issue with her evidence, it may have given her the benefit of the doubt (CB 199 at [51]).  However, the Tribunal was also troubled by the fact that the Applicant’s claim mirrored claims made in an earlier case, for which the Applicant’s migration agent was the authorised recipient (CB 199 at [51]).  Like the application before it, the Applicant in that case became involved in agitating for women’s rights after seeing a neighbour subjected to domestic violence by a local bully.  By reason of the assistance she provided to her neighbour the local bully came to the Applicant’s home with some other men destroying her property and beating her.  Although the Applicant in that case did not directly write petitions to protect against the position of women in China, she claimed that she persuaded a direct relative who was a university graduate to write a letter on her behalf (CB 200 at [52]).

5. The Tribunal noted that the statements, that the respective Applicants made in support of their Protection visa applications contain similar material (CB 201 at [52]). Ultimately, the Tribunal found that the Applicant’s overall story, including the sequence of events and overall narrative was very similar to other applications, and was also similarly expressed (CB 201 at [54]). The Tribunal did not accept the explanation that the Applicant proffered in relation to the similarity in responses to its s.424A correspondence, noting that the explanation was inconsistent with what she had said at the hearing about how her application had been prepared (CB 203 at [56]).

6. The Tribunal concluded that the Applicant was not credible and that her claims had been fabricated (CB 203 at [58]).  In reaching that conclusion, the Tribunal considered the psychologist’s report and noted that the psychologist expressed the view that the Applicant’s reported symptoms were suggestive of a diagnosis of the major depressive episode and post traumatic stress disorder by pointing out that this was not in itself a diagnosis.  The Applicant had completed two psychometric measures which indicated that she had depressive and anxiety symptoms in the extreme range (CB 203 at [58]).  The Tribunal considered whether the Applicant was competent to give evidence at the hearing and follow the hearing.  The Tribunal was ultimately satisfied that any problem that the Applicant had did not prevent her from giving evidence and presenting her case (CB 204 at [59]).

Consideration

1. At the first court date directions hearing on 1 December 2009 the Applicant indicated that she wished to participate in the NSW RRT legal advice scheme and accordingly she was allocated a panel advisor under that scheme.  The Applicant attended a conference with an advisor on 29 January 2010 in the presence of a Mandarin-English interpreter.  On 2 February 2010 the Applicant was provided with written advice from the advisor.  Although the Applicant was granted leave to file and serve an amended application including any additional grounds of review by 22 January 2010, the Applicant elected not to pursue this option.  The Applicant was also requested to file and serve in the Registry a short outline of submissions and list of authorities seven days before the hearing.  This request was not complied with.

2. The application contained two identical grounds of review which are differently particularised.  The ground of review is as follows:

   There is no evidence that the Tribunal has taken a genuine attempt to consider my evidence, independently, fairly and properly.  The Tribunal’s decision was affected by apprehended bias.

   The first set of particulars, the Applicant relies on the issue that the Tribunal raised with her regarding the interview of a delegate, and the similarities between her application and another application heard by the Tribunal twelve months previously. In the second set of particulars the Applicant claims apprehended bias in the Tribunal’s approach to the psychologist’s report that she provided in response to the Tribunal’s first s.424A letter. The Applicant contends that there was no evidence to show that the Tribunal had genuinely attempted to consider her loss of control in the late part of the Tribunal’s hearing and her statutory declaration.

3. When invited to make oral submissions the Applicant indicated that she had lodged her application and that she had stated her grounds of review in that document.  However she wished to address a number of issues that were contained in the Respondent’s written submissions that were filed and served on her.  The first of those issues that she wished to raise was that there were some errors in the translation when she undertook the telephone interview with the department officer.  When requested to identify which paragraph of the submissions she was referring to the Applicant indicated that there was a paragraph indicating that when she gave evidence before the Tribunal, her evidence was weak and lacking in detail.  The Applicant indicated that she received a letter from the Tribunal inviting her to make comments on that information.  In response she wrote to the Tribunal explaining the interpretation problem and she believed that the Tribunal had accepted her explanation about that issue.

4. The second issue raised by the Applicant was that included in the Respondent’s submissions, was a comment indicating that the Applicant’s case both before the Tribunal and the Department was similar to other applications previously heard.  The Applicant acknowledged that she had been given two opportunities to respond to the letters from the Tribunal and that she had provided an adequate explanation.  However, she claims the Tribunal did not consider her responses seriously or carefully.  Consequently, it was submitted by the Applicant that the Tribunal’s failure to consider her response indicated that the Tribunal member was biased against her application.  The Applicant stated that she did not believe that the Tribunal member considered her application with an impartial mind and that the Respondents should present evidence to prove that the Tribunal member seriously considered her application fairly.  The Applicant stated that she believed that the Tribunal member had predetermined her application before the hearing commenced. 

5. The Applicant indicated that she had provided a psychologist report to the Tribunal but the Tribunal member did not consider the Applicant’s mental state during the hearing.  She complains that she was provided with only two brief adjournments during the hearing and that people who did not suffer from an impairment would be entitled to request more frequent breaks during the course of the hearing.  In light of the psychologist’s report and her psychological problems she should have been given more than two adjournments during the hearing. 

6. Ms Mitchelmore, appearing for the Minister indicated that she relied upon her written submissions and she would make supplementary oral submissions. Initially, Ms Mitchelmore replied to the oral submissions made by the Applicant. The first of these relates to the alleged errors in translation in the course of an interview with the delegate of the Minister. This issue is raised in the grounds of review. The Applicant addressed this in paragraph [1] of her statutory declaration dated 14 July 2009 which was supplied in response to the first of the s.424A letters that the Tribunal sent to the Applicant (CB 124).

7. In the second paragraph of the statutory declaration, the Applicant raised the issue in respect of the problems with interpretation.  She communicated with the Minister’s delegate by telephone hook up which included an interpreter.  The Applicant claims that her response was not considered by the Tribunal member, however, this passage is reproduced in the decision at paragraph [42] (CB 191).  The Tribunal makes a finding in relation to this issue at paragraph [50] of its decision (CB 199).  

8. In the first set of particulars, the Applicant complained that the Tribunal did not attempt to consider the particular difficulties that she experienced with the delegate during the interview. However, the Applicant described those difficulties in her response to the Tribunal’s first s.424A letter. The Tribunal had raised its concerns about details she had provided to the delegate including the contents of the petition she wrote, compared with her response on the same issue to the Tribunal. The Tribunal considered the response, and sets it out in its decision record (CB 191 at [42]). While the Tribunal accepts that the delegate had asked her to describe those contents in one or two sentences, it took the view that if a public investigation of the nightclub was of utmost concern to the Applicant, and was her primary aim, she should have been able to tell this to the delegate, “as opposed to her somewhat nebulous response which was to protect basic women’s’ rights and stop activities inflicting damage and bring those mistreated women to justice” (CB 199 at [50]). I am satisfied that it is open to the Tribunal to reach that conclusion and it made no error in doing so.

9. I agree with the submissions made by Ms Mitchelmore that the Tribunal considered this matter which is evidenced by the fact that it is set out in the decision record.  To the extent that the Tribunal may not have expressly dealt with every piece of evidence put forward by the Applicant, the Tribunal is not obliged to.  In its reasons it is not required to set out a finding on every piece of evidence that the Applicant puts forward.  Moreover, the Tribunal is under no further obligation to provide a further explanation if an explanation advanced by an Applicant is accepted. 

10. The Applicant’s issues regarding the Tribunal’s findings that her application was similar to other previous applications that have been before the Tribunal.  A very similar application has been made approximately one year earlier where the migration agent was the same for both applications.  The Tribunal gave the Applicant two opportunities after the hearing to comment in writing.  The Tribunal set out both of the Applicant’s responses in its decision record (CB 191 at [42]; CB 197 at [45]) but ultimately did not accept them.  The argument advanced by the Applicant is that it is for the representatives of the Minister to present evidence to show that the Tribunal had approached her application fairly.  Unfortunately this is a mistaken belief.  Rather, it is the reversal of that onus that is applicable in these proceedings.  It is for the Applicant to establish that the Tribunal’s decision was affected by apprehended bias.  Based on the material before the Court, it is apparent that in the course of the hearing the Tribunal raised this issue with the Applicant and gave the Applicant an opportunity to comment. 

11. The Tribunal sent two letters to the Applicant which contain material that it had in its possession that relates to that earlier application. It raised with the Applicant its concerns that it had about the similarities between the earlier case and that of the Applicant’s. The Tribunal’s decision sets out the contents of its two s.424A letters and the responses that the Applicant provided. The response to the first letter is set out at paragraph [42] (CB 191) and the second response is set out at paragraph [45] at (CB 197). The Tribunal’s findings commenced at paragraph [51] (CB 199) where the Tribunal notes that the claims made by the Applicant mirrored those that were made in an earlier case conducted by the same migration agent. In paragraphs [55]-[57] the Tribunal deals with the Applicant’s responses to a request for information that the Tribunal put to her and does not accept those answers (CB 202-203).

12. I accept the oral submissions made by Ms Mitchelmore that the Tribunal’s approach to the issue of similarity was appropriate and complied with the Tribunal’s obligations under the Act.  A hypothetical fair minded lay observer that was properly informed as to the nature of the proceedings, would not apprehend that the Tribunal had not brought an impartial mind to the matters before it.

13. The next issue to be addressed is Applicant’s submission regarding the report of a psychologist.  The argument advanced by the Applicant was that she did not believe that the Tribunal considered her mental state when the hearing was being held.  During the hearing there were three adjournments.  In the decision record at [30], there is a reference to an adjournment for ten minutes (CB 186).  Then at paragraph [35] at the conclusion of the hearing, there was a brief adjournment for approximately three minutes.  At paragraph [37] when the Tribunal attempted to continue the proceedings, it became clear that there was a requirement for a further adjournment for another ten minutes.  There is no further reference in the Tribunal’s decision for any other request or further adjournments and a transcript has not been placed before the Court. 

14. The psychologist’s report was not forwarded to the Tribunal until after the hearing.  In the context of discussing that report, in its reasons, the Tribunal indicated that it had considered whether the Applicant was competent to give evidence both at the hearing and subsequent to the hearing (CB 204 at [59]).  The Tribunal undertook that assessment after the hearing where the Applicant demonstrated her distress.  The Tribunal was ultimately satisfied that any problem that the Applicant does have did not affect her ability to give evidence and present her case (CB 204 at [59]).

15. I am satisfied that this is a finding of fact and it is open to the Tribunal to make, having considered the Applicant’s attendance and performance at the hearing in light of the psychological evidence that it obtained subsequent to the hearing.  The Applicant alleges apprehended bias on the part of the Tribunal in relating to its approach it took to the psychological evidence.  However, a hypothetical fair minded lay observer would not apprehend that the Tribunal did not bring an impartial mind to the issue.  The Applicant would have to satisfy the Court that a hypothetical fair minded lay person, properly informed as to the nature of the proceedings, and the matters and conduct in issue, might reasonably apprehend that the decision maker might not bring an impartial mind to the resolution of the question to be decided: Refugee Review Tribunal; ex parte H (2001) 179 ALR 425 at [27] – [28]. The Applicant has not filed any evidence in support of this allegation. I am satisfied that the Tribunal’s approach does not give rise to an apprehension of bias.

16. In considering the question of apprehended bias in the context of the decision in which credibility is decisive, it is important to bear in mind that proceedings before the Tribunal are inquisitorial.  As the Court stated in Refugee Review Tribunal; ex parte H (supra) at [30] :

    [30] Where, as in the present case, credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented — often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question. Similar questions by a judge in curial proceedings in which the parties are legally represented may more readily give rise to an apprehension of bias than in the case of inquisitorial proceedings.

17. It is clear from the Tribunal’s decision record that the Applicant attended and participated at the hearing.  She apparently became upset at the conclusion of the hearing.  In response, the Tribunal took a brief adjournment.  The Tribunal then continued, after seeking the Applicant’s permission, but again was required to further adjourn the proceedings when it became clear that the Applicant could not continue.  This adjournment was for a further ten minutes.  That occurrence did not of itself mean that the Applicant was unfit to participate in the hearing and the hearing continued, ambient only for a brief period, because it was nearing its normal conclusion. 

18. The second issue that the Applicant claims demonstrates apprehended bias is the Tribunal’s approach to the psychiatrist’s report.  The Applicant contends that there was no evidence to show that the Tribunal had taken any genuine attempt to consider her loss of control in the late part of the Tribunal’s hearing.  Furthermore, the Applicant contends that it did not consider that her statutory declaration, submitted to the Tribunal, was prepared with the assistance of her migration agent in peaceful circumstances without mental and psychological pressure.

1. The Applicant contends that she completely lost control in the latter part of the Tribunal’s hearing.  The only evidence as to what occurred is contained in the decision record.  It appears from paragraphs [35]-[37] (CB 189), that the Tribunal took two breaks.  While it is not entirely clear, it may be that the second break was taken because the Applicant could not continue (at [37]).

2. The Applicant has not filed any evidence, such as a transcript, to support her contention, as to what occurred at the hearing, nor has she filed any evidence to the effect that she was unfit to participate in the hearing: see Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553. Although there is no competency requirement in the Act with respect to the conduct of the hearing (see Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12), the Tribunal considered that question and it was satisfied that any problem that the Applicant had did not affect her ability to give evidence and present her case (CB 204 at [59]).

3. In the psychologist’s letter, the psychologist observed that although the Applicant presented as a poorly oriented woman she relaxed somewhat after the first twenty minutes and engaged quite well for the rest of the 75 minute interview (CB 139).  There is nothing in the report to the effect that the Applicant was unfit to attend or participate in a hearing.  The Applicant has not put on any further evidence to support the proposition that she was unfit to participate in the Tribunal hearing.  Having been provided with the psychologist report after the hearing, the Tribunal’s assessment that the Applicant was effectively able to give evidence and present her case is an aspect that must be taken into consideration by this Court and I rely on the decision in NAMJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 983 per Branson J at [68]:

   [68] I accept the submission of the Respondent that, in making a judgment as to the fitness of the Applicant to take part in the hearing before the Tribunal, I should accord weight to the view taken by the Tribunal. The Tribunal was satisfied that the Applicant knew the purpose of the hearing and had been able to give a comprehensive and lucid account of his claims. I do not consider that this assessment is rendered improbable by the conclusions that I have reached above based on the expert evidence placed before me.

4. Like the matter currently before this Court, NAMJv Minister for Immigration & Multicultural & Indigenous Affairs (supra) was a case in which evidence was led by the Applicant before her Honour to the effect that the Applicant had been unfit to participate in the hearing and similar evidence had also been given before the Tribunal.  I am satisfied that the matter before this Court can be distinguished from the decision in Minister for Immigration & Multicultural & Indigenous Affairs v (supra) in which there was evidence presented to the primary judge but not before the Tribunal to show the Applicant’s father in that case had died four days before the hearing. The psychological evidence was that the Applicant was in no condition to handle the interview, she was unable to think clearly, was unprepared and did not even know what day it was. 

5. Since the hearing of this matter the Full Federal Court handed down its decision: Minister for Immigration & Citizenship v SZNVW [2010] FCAFC 41 which involved a consideration of cases such as Minister for Immigration & Multicultural & Indigenous Affairs v SCAR, NAMJ v Minister for Immigration & Multicultural & Indigenous Affairs (supra) and SZFDE v Minister for Immigration & Citizenship [2007] HCA 35 In that case the Minister was appealing the decision of this Court quashing the decision of the Tribunal on the basis that there was a breach of s.425 of the Act. His Honour Keane CJ at [20] states:

   [20] In my respectful opinion, s 425 of the Act did not require the Tribunal to press the respondent to call further evidence of his psychological problems or to expand his arguments relating to the ramifications of his problems for any aspect of the case he sought to present. Nothing in this court’s decision in SCAR supports the contrary view, and in the recent decision of Gilmour J in SZMSA v Minister for Immigration and Citizenship [2010] FCA 345, especially at [20]–[25], the contention that an applicant’s psychological difficulties were such as to deprive him of the “meaningful opportunity” required by s 425 of the Act was rejected, correctly in my respectful opinion, on the footing that the applicant’s condition was not shown to be such as to deny him the capacity to give an account of his experiences, to present argument in support of his claims, to understand and to respond to questions put to him.

6. Then at [33] His Honour states:

   [33] Similarly, in NAMJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 56, at [51]–[52], Branson J observed that it was unlikely that the legislature intended that a hearing before the Tribunal could not proceed by reason of “some measure of psychological stress and disorder in the applicant.”

Conclusion

1. Although the Applicant is a self represented litigant, and appears in the Court to present her case with the assistance of an interpreter, her detailed application has been prepared by an experienced migration agent that presents many matters before this Court.  She has also been provided with the assistance of an independent legal advisor under the Court sponsored legal advice scheme and with the benefit of that advice elected not to file an amended application but to proceed with a detailed application prepared by her migration agent.  When invited to make oral submissions, the Applicant did this competently from prepared notes and addressed the substantial issues contained in her grounds of review. 

2. Again when invited to respond to the submissions made by Counsel for the Respondent the Applicant again competently addressed the oral submissions.  She elaborated on the circumstances of the telephone interview with the Minister’s delegate and interpreter.  She complained that it did not give her the opportunity to meet face to face with the delegate or the interpreter and that this did not give her sufficient time to present her argument.  She contrasted this with the hearing before the Tribunal.  The Applicant’s complaint was that the Tribunal member and subsequently Ms Mitchelmore did not address the key issues but instead concentrated on matters that were not central to her application being her persecution in China. 

3. I am satisfied that all the issues raised by the Applicant in her application in her grounds of review, have been correctly addressed by the Tribunal and no jurisdictional error is apparent on the materials placed before the Court.  Consequently, the application should be dismissed with costs.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM

Associate: 

16 July 2010