SZLLV v Minister for Immigration & Citizenship [2008] FCA 1199 (14 August 2008)

Last Updated: 14 August 2008

FEDERAL COURT OF AUSTRALIA

SZLLV v Minister for Immigration & Citizenship [2008] FCA 1199

SZLLV v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 918 OF 2008

GORDON J
14 AUGUST 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 918 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLLV Appellant

AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	GORDON J
DATE OF ORDER:	14 AUGUST 2008
WHERE MADE:	SYDNEY

OTHER MATTERS:

1. In the interests of the administration of justice, the appellant be referred to the Registrar of the Federal Court for referral to a legal practitioner on the Pro Bono Panel for legal assistance under Order 80 of the Federal Court Rules.

2. The nature of the legal assistance for which the referral is made is for representation generally in the matter, and the drawing of necessary documents and, if appropriate, representation on hearing.

THE COURT ORDERS THAT:

3. The matter be listed for hearing in the next Full Court period (3-28 November 2008).



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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 918 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLLV Appellant

AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	GORDON J
DATE:	14 AUGUST 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an appeal against an order of Federal Magistrate Emmett of 30 May 2008 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") of 31 August 2007. The Tribunal affirmed a decision of a delegate of the first respondent ("the first respondent") to refuse to grant the appellant a protection visa under the Migration Act 1958 (Cth) ("the Act").

PROCEDURAL HISTORY

2 The appellant is a citizen of the People’s Republic of China ("China") who first entered Australia on 19 November 2006. On 29 December 2006, the appellant lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs (as it was then known). The first respondent refused the application for a protection visa on 27 March 2007.

3 On 27 April 2007, the appellant applied to the Tribunal for a review of that decision. On 31 August 2007, the Tribunal affirmed the decision of the first respondent. The appellant sought review of the Tribunal’s decision and on 30 May 2008, by order of Emmett FM, the Federal Magistrates Court dismissed the application. She now appeals to this Court against the dismissal of her claim for judicial review.

4 Before the Tribunal, the appellant had claimed to fear persecution in China for her religious beliefs. She claimed to be a pious Catholic and a supporter of the Roman Catholic Church. The appellant claimed that:

1. in August 2004, she joined the underground Catholic Church in China where she attended gatherings at the Church on Tuesdays and Fridays and attended Church on Sundays to worship;

2. in China in May 2005, she was arrested and detained for one month because she had participated in religious activities in China where such activities were banned;

3. in October 2006 in China, her friend was arrested. However, she was not arrested because a friend of hers who worked in the Public Security Bureau ("PSB") as a secretary recommended that she "run";

4. whilst in Australia, she attended Church at Flemington once a week;

5. she feared returning to China because she would be arrested as a result of her involvement with the underground Catholic Church in the Mawei District in Fuzhou.

THE TRIBUNAL DECISION

5 The Tribunal affirmed the decision of the first respondent on the basis that the appellant had not provided a truthful account of her experiences in China. The Tribunal concluded that the appellant displayed minimal knowledge of the Catholic faith.

THE COURT BELOW

6 Before the Federal Magistrate, the appellant’s grounds were not properly particularised. The Federal Magistrate summarised the grounds in the following terms:

1. A failure by the Tribunal to fairly consider the [appellant’s] evidence, in particular, making an incorrect finding in relation to the [appellant’s] involvement with the Catholic faith whilst in China.

2. None of the interpreters were Catholic or had basic knowledge of Catholicism and therefore were unable to assist the [appellant] at the hearing.

3. The interpreters were of poor quality, poor performance or poor knowledge with the result that the Tribunal made an incorrect finding about the [appellant’s] knowledge of the Catholic faith.

4. The Tribunal failed to comply with s 424A(1) of the Act in that the Tribunal did not provide the [appellant] with the inconsistencies in her evidence or country information to which it had regard.

7 The Federal Magistrate dismissed each ground of appeal.

THIS APPEAL

8 The Notice of Appeal filed in this Court on 19 June 2008 specifies six grounds, namely:

1. The ... Federal Magistrates (sic) erred in finding that the decision of ... the Tribunal is not affected by jurisdictional error and is therefore a privative clause decision.

2. According to my evidence in support of my protection application, I have stated that:

On 5 May 2005, I was arrested by the PSB from my home, because I was suspected to join the Mass organised by Ms. Lin. I was detailed together with Ms. Lin at the same cell. I was scared at the beginning, but Ms. Lin encouraged me and told me that the PSB had not held any substantial evidences against me, but only suspected me owing to my close relationship with her. She also told me that two of other religious sisters, who had been arrested by the police at the same time together with Ms. Lin, were very impregnable and they refused to tell anything to the PSB.

From 5 to 31 May 2005, I was detained by the PSB for nearly one month, and subjected to mistreatment by the police, physically and mentally. However, encouraged by Ms. Lin, I refused to confess anything to the PSB. Finally, with helps of the underground Catholic Church, I was released in the end; but Ms. Lin together with other two religious sisters were secretly sentenced to 3 year imprisonment and sent to a labour camp in Jiangxi Province in June 2005.

3. It is for the reason that I have been subjected to mistreatment by the police, physically and mentally while I was detained during that period that I am unable to think normally if I have to be under huge pressure in a particular nervous circumstance. It is the case in the Tribunal’s hearing, because I have been under huge pressure in a particular nervous circumstance. In that particular difficult situation, it would be definitely impossible for me to demonstrate my religious knowledge.

4. In support of my claim, I have submitted a copy of Patient Medical Treatment Record Book as evidence that I was subjected to persecution while I was detained by the Chinese police from 5 to 31 May 2005 and that my health has seriously been damaged since then.

5. Unfortunately, neither the Tribunal nor the learned Federal Magistrates (sic) have considered my particular health problems properly and fairly.

6. My religious knowledge is the heart of the Tribunal’s decision. If the Tribunal had properly and fairly considered the negative influence of my health on my ability to demonstrate my religious knowledge under huge pressure in a particular nervous circumstance, then the Tribunal would have made a proper finding that I am a Catholic either in China or in Australia.

9 The contents of the Notice of Appeal are discursive. There is, it seems, one principal ground of complaint – that neither the Tribunal nor the Federal Magistrate considered the appellant’s particular health problems properly and fairly and the impact they had on her ability to give evidence.

10 The appeal came on for hearing on 13 August 2008. From the outset of the hearing, the appellant appeared to be unwell. During the hearing of the appeal, it was necessary to adjourn twice as her condition worsened and she became physically and emotionally distressed. I do not know whether the appellant has a diagnosed medical condition. There is no doubt that every litigant faces stress, especially litigants where their application for a protection visa is the question in issue but I cannot say whether the appellant's condition during the hearing in this Court was caused only by stress or by other causes.

11 When asked whether she had submitted medical evidence to the Tribunal or the Federal Magistrates Court about her medical condition, the appellant referred to a Patient Medical Treatment Record submitted by her to the Federal Magistrates Court. The Federal Magistrate described that document simply as:

The document purported to attach a copy of "Patient Treatment Record Book" in respect of the [appellant] dated 5 May 2005, together with a photograph of what purports to be "The Second People’s Hospital of Fujian Province".

12 Her honour dealt with that document in the following terms:

I have considered the document. However, a fair reading of the Tribunal’s decision record makes clear that this material was not provided to it by the [appellant] in support of a review application. Nor does the [appellant] contend that it was. It cannot be an error for the Tribunal to fail to consider material not provided to it by the [appellant]. In the circumstances, it is not material that can support the [appellant’s] contention to this Court that the Tribunal’s decision is affected by jurisdictional error.

13 The appellant then said that she could not afford medical treatment in Australia. That is not surprising. As the appellant is on a bridging visa with no entitlement to work, she is denied access to Medicare.

14 There is a presumption, unless and until the contrary is proved, that a litigant of full age is competent to manage his or her affairs: L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114 at [26]. Other than the observations of the appellant I have identified earlier, there is no medical evidence to rebut the presumption. And I cannot say that this is a case where the lack of capacity is so clear that medical evidence is not called for: L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114 at [23] - [27]. None the less, I retain serious concerns about the capacity of the appellant to conduct these proceedings.

15 In those circumstances and given the appellant’s limited access to medical treatment in Australia, I propose to make the following orders:

1. In the interests of the administration of justice, the appellant be referred to the Registrar of the Federal Court for referral to a legal practitioner on the Pro Bono Panel for legal assistance under Order 80 of the Federal Court Rules.

2. The nature of the legal assistance for which the referral is made is for representation generally in the matter, and the drawing of necessary documents and, if appropriate, representation on hearing.

3. The matter be listed for further hearing in the next Full Court period (3-28 November 2008).

16 A principal reason for referring the appellant to a legal practitioner on the Pro Bono Panel for legal assistance is to enable that legal practitioner to consider what course should now be taken including, if appropriate, considering whether application for the appointment of a guardian under the Guardianship Act 1987 (NSW) is required and if it is, what consequences that may have for these proceedings.

17 The observations made during the course of the hearing are, in my view, sufficient reason for dealing with the matter in the manner outlined. However, they are not the only reasons that point to the same conclusion. The appellant has since the outset complained of medical problems. As noted by the Federal Magistrate (at [52]), the Tribunal took account of the fact that the appellant was nervous and distressed. The Tribunal took breaks during the hearings on 19 June 2007 and 30 July 2007, each of which lasted for three hours. The hearing on 19 July 2007 lasted for two hours and did not include a break. As stated by the Tribunal in its Findings and Reasons (at p 21):

The [appellant] indicated that her lack of knowledge was due to her being unwell. The Tribunal does not accept this explanation. The [appellant] has not provided any medical evidence that she suffers from a medical condition that would cause her to have memory problems or any evidence that she was unable to give evidence to the Tribunal. ... The [appellant] has also indicated that her inability to display her knowledge of Catholicism and Christianity was because she was nervous at the hearing and due to her lack of education. Whilst the Tribunal accepts that the [appellant] being nervous in the hearings may have affected the [appellant’s] ability to recall some details, it does not accept that it explains her demonstrating such a limited knowledge. ... The Tribunal is of the view that even taking into account the [appellant’s] nerves at [the] hearing and her lack of education, her limited knowledge of Catholicism and Christianity she displayed at [the] hearing is inconsistent with her claims to have been involved with an underground Catholic Church in China since 2004, with her attendance being as frequent as three times per week for a period of time.

18 In relation to the appellant’s other health problems, the Tribunal’s reasons for decision record that it indicated to the appellant that there was no medical evidence to support her explanation that her lack of knowledge of Christianity and Catholicism was due to memory loss caused by a medical condition. On no less than three occasions the Tribunal either asked the appellant whether she wished to produce medical evidence to support her alleged medical conditions or reminded her that she had not produced any medical evidence despite being given opportunities to do so. No medical evidence was provided to the Tribunal.

19 As I noted earlier, the appellant’s principal ground of complaint appears to be that neither the Tribunal nor the Federal Magistrate considered the appellant’s particular health problems properly and fairly and the impact they had on her ability to give evidence. Having regard to what transpired during the course of the hearing of the appeal, the seriousness of the issues raised and the appellant’s grounds of appeal, these are further reasons why the appeal should be adjourned for further hearing after the appellant’s position has been considered by a legal practitioner on the Pro Bono Panel in the manner outlined above.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gordon.

Associate:

Dated: 14 August 2008

Counsel for the Appellant:	In Person
Counsel for the First Respondent:	Mr R Baird
Solicitor for the First Respondent:	Clayton Utz

Date of Hearing:	13 August 2008
Date of Judgment:	14 August 2008