SZQRC v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 The appellant appeals against a decision of Nicholls FM made on 20 April 2012. His Honour dismissed the appellant's application for review under s 476 of the Migration Act 1958 (Cth) (the Act), seeking review of a decision of the Refugee Review Tribunal (the Tribunal). The Tribunal affirmed a decision of the Minister's delegate refusing the appellant a protection visa.

Background Matters 2 The appellant is a citizen of the People's Republic of China (China). She came to Australia on 6 June 2009 on a student guardian visa, accompanying her son. 3 The appellant's visa was due to expire on 31 December 2010. Shortly before that date (and after living in Australia for almost 18 months), she lodged an application for a protection visa. In support of her visa application the appellant forwarded a written statement, which included the following claims: she was a traditional Chinese medical practitioner, having graduated from Guangming University of Traditional Chinese Medicine and commenced an internship at Jilin Railway Hospital in China in July 1989, where she then worked for 15 years; in December 2001 she believed that she witnessed "an illegal operation" being performed at the hospital. At that time she was not aware of the type of operation performed, but she registered her concerns in a letter to the head of the hospital. She was subsequently transferred to the "service department" of the hospital, where her assignment was to raise rabbits used for experiments. She remained in that position for two years; in 2003 the appellant lodged a complaint with a superior at another hospital (where she thought she would get justice), but instead she says that she was "expelled"; she raised her complaint in August 2004 at a government office. She claims that the next day she was detained by police and imprisoned and beaten. It was at this point, that, following discussions with a cellmate who was a Falun Gong practitioner, she became aware for the first time of what she had observed at the hospital back in 2001, which she says was an illegal transplant of an organ from a Falun Gong practitioner; after being released from detention three months later, she was required to report regularly to the police and she says that she was unable to open a new clinic and also that her son was subject to discrimination by his school teachers; and in November 2008, having obtained a passport by paying bribes, she left China with her son, after obtaining the relevant Australian visa documents with the help of an agent. 4 The Minister's delegate decided on 24 March 2011 to refuse to grant a protection visa to the appellant. The delegate found the appellant not to be a witness of truth and that she had not provided a plausible or credible account of her circumstances in China. She also found that the appellant's claims were vague, inconsistent and lacked credible detail and that her evidence was contradictory. The delegate also pointed to the appellant's 18 months delay in applying for a protection visa after her arrival in Australia as being inconsistent with her claims to hold a genuine and significant fear for her life and safety in China. 5 On appeal to the Tribunal, the appellant attended and participated in a hearing before the Tribunal on 19 July 2011, assisted by an interpreter in the Mandarin language. On 18 August 2011, the Tribunal affirmed the decision of the Minister's delegate. The Tribunal provided reasons for its decision. It will be necessary to refer to the Tribunal's reasons in a little more detail later, but it is sufficient for this introductory purpose to note the following relevant findings by the Tribunal. The Tribunal found the appellant's evidence to be "unreliable" and "vague and lacking in detail". The appellant was found not to be a credible witness. The Tribunal rejected her claims that she was a traditional Chinese medical practitioner and that she had worked for 15 years at the Jilin Railway Hospital. Because of the Tribunal's adverse credibility findings, it gave little weight to a document provided by the appellant which was directed to establishing her education qualifications. The Tribunal rejected each of the appellant's claims in support of her application, finding that the appellant was not a truthful or credible witness and, therefore, her factual account of claimed events was not accepted. Like the Minister's delegate, the Tribunal also relied upon the appellant's delay before seeking a protection visa as being inconsistent with a genuine fear of persecution. 6 As noted above, the appellant then sought judicial review in the Federal Magistrates Court. She raised the following three unparticularised grounds of review: 1. The Second Respondent has ignored relevant considerations in making the decision. 2. The Second Respondent acted in breach of the rules of procedural fairness. 3. The Second Respondent had bias against me and failed to consider my claims. 7 In those proceedings, the appellant relied on an affidavit which attached both a Chinese transcript of the Tribunal hearing, as well as an English version. There was no evidence that either version had been prepared by a qualified independent expert interpreter or translator. The Federal Magistrate refused to accept the Chinese version into evidence, it being written in Mandarin. The English version was admitted into evidence to enable the appellant to argue her case even though the Federal Magistrate pointed out that it "falls short of what could assist the Court in relation to what was said at the hearing". 8 The Federal Magistrate also had before him a transcript of the Tribunal hearing prepared by Auscript. 9 The Federal Magistrate's reasons contain a lengthy summary of the oral submissions made to the Court by the appellant (who represented herself). After considering those oral submissions, the Federal Magistrate concluded that he was unable to see any jurisdictional error in the Tribunal's decision arising from the appellant's oral submissions. The Federal Magistrate then dealt with the individual grounds set out in the judicial review application, together with various complaints set out in the appellant's written submissions. Those complaints concern: (a) the attitude of the Tribunal member and certain questions concerning "moxibustion"; (b) the "five elements" of traditional Chinese medicine; (c) documents concerning the appellant's medical qualifications; and (d) three matters which occurred at the Tribunal hearing. 10 The first of the appellant's complaints related to the attitude of the Tribunal member who heard her review application and also to various matters surrounding the Tribunal's questioning of the appellant in respect of the appellant's knowledge of the meaning of the term "moxibustion" (which apparently is a traditional Chinese medicine therapy using moxa or mugwort herb and is said to play an important role in such medicine). 11 The Federal Magistrate understood the first aspect of this complaint concerning the Tribunal member's attitude to relate to the appellant's claim that the Tribunal member looked "very tired" and "cough (sic) a lot" during the hearing. This part of the complaint was rejected by his Honour on the basis that there was nothing in the material before the Court to suggest that the appellant had been denied a fair hearing because of any indisposition on the part of the Tribunal member. 12 The second aspect of this particular complaint related to an exchange between the Tribunal member and the appellant after the member asked the appellant the following question: Can you explain what moxibustion is? 13 The appellant was unable to answer the question. In the Federal Magistrates Court, the appellant contended that her inability to answer the question was because the interpreter was unable to translate the English word "moxibustion" into Chinese and also because of the appellant's limitations with English. 14 Nicholls FM found that this aspect of the appellant's first complaint did not involve any jurisdictional error. That was primarily because the issue of moxibustion was not relied upon by the Tribunal in its analysis of the appellant's claims. Nor did it form part of the Tribunal's reasons in reaching its adverse finding that the appellant was not a practitioner of traditional Chinese medicine. His Honour concluded that the appellant's complaint on this matter did not involve any failure by the Tribunal to take into account a relevant consideration (ground 1 in the judicial review application), nor did it amount to procedural unfairness (ground 2 in the judicial review application) (see [64]-[67] of Nicholls FM's reasons). 15 At this point the Federal Magistrate saw it convenient to then address the appellant's third ground of judicial review, namely the claim that the Tribunal was biased and failed to consider the appellant's claims. In [68] of his reasons, Nicholls FM stated that he considered that the relevant tests for bias, and the apprehension of bias, were well settled. Instead of setting out at this point of his judgment what his Honour understood to be the terms of those tests, his Honour made reference to a series of cases which deal with the topic, including Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69] and [127] and Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425. Then in [69] of his reasons, Nicholls FM stated his conclusion on the appellant's claims of actual and apprehended bias in the following terms: It cannot be said on a plain reading of either transcript of the hearing that the Tribunal failed to bring, or would be perceived by a well-informed lay observer to have failed to bring, an impartial mind to these proceedings. 16 Accordingly, Nicholls FM rejected the appellant's claims of both actual and apprehended bias. On one view, his Honour's conclusion appears to misstate the relevant test for apprehended bias because his Honour uses the phrase "would be", whereas the proper test is now generally expressed in terms of the language of "might". Whether this gives rise to an appellable error on the part of the Federal Magistrate is a matter to which I will return later in these reasons for judgment. 17 The appellant's second complaint related to an exchange between the Tribunal member and the appellant, as recorded in the transcript, regarding the Tribunal's request that the appellant explain the theory of the "five elements" in the context of Chinese traditional medicine. The appellant complained that the Tribunal member's question revealed an incorrect understanding on the member's part of the "five elements". She argued that the Tribunal member must have relied on incorrect information or relied on only one view of many of the constituent parts of the elements of traditional Chinese medicine. 18 While accepting that this matter was one of several matters relied upon by the Tribunal in reaching its ultimate conclusion that the appellant did not demonstrate relevant knowledge of traditional Chinese medicine as would be expected of someone claiming to have her qualifications and experience, Nicholls FM found that the appellant's complaint did not involve any jurisdictional error for the following two reasons: (a) even if the Tribunal's approach demonstrated an incorrect understanding of the "five elements" this was only one element of many elements underpinning the Tribunal's ultimate conclusion that the appellant's knowledge of traditional Chinese medicine was "limited" and not commensurate with her claimed years of experience; and (b) in any event, even if there were some factual error in this aspect of the Tribunal's findings, that would not of itself, and on its own, be sufficient to constitute a jurisdictional error. 19 The appellant's third complaint was that the Tribunal did not ask to inspect documents which she had brought to the hearing and which she said were relevant to her claimed qualifications as a practitioner in traditional Chinese medicine. 20 She complained that she had with her a graduation certificate from a particular University, but said that the Tribunal never asked to see it. The Federal Magistrate rejected this argument on the basis that it was not part of the Tribunal's role to make out the appellant's case for her and that, in any event, a copy of the graduation certificate had been included in the materials which were before the Tribunal. The appellant also complained that the Tribunal did not ask to inspect a copy of her internship certificate, but his Honour found that this did not present a jurisdictional error in circumstances where the Tribunal did not even know of its existence. 21 The appellant's fourth complaint related to various aspects of the Tribunal hearing. In particular, the appellant complained that: (a) the interpreter has incorrectly interpreted the appellant's answer concerning her knowledge of the classifications of herbal medicines; (b) the appellant asserted that the Tribunal member "didn't have a good impression of me"; and (c) the appellant attempted to give evidence in the Federal Magistrates Court as to her years of practice of Chinese medicine in China and to explain why some of her answers to questions at the Tribunal hearing may have been deficient. 22 The Federal Magistrate dealt with each of those three issues and reached the following conclusions. As to the first, his Honour found that no jurisdictional error was involved even if there was a deficiency in the interpretation because the Tribunal's conclusion regarding the appellant's limited basic knowledge of traditional Chinese medicine was amply supported by other independent bases which were not challenged by the appellant. In other words any error in interpretation as alleged by the appellant was not a material error. His Honour added that, in any event, this complaint should fail because there was no probative evidence before the Court to support the appellant's claims of incorrect interpretation. 23 As to the second aspect of the appellant's complaint (namely that the Tribunal member did not have a good impression of her), his Honour assumed that the appellant was referring to the Tribunal's expression of its concerns about the credibility of her evidence. His Honour found that bias, or the apprehension of bias, was not made out simply because the Tribunal was fulfilling its legal obligations of putting the appellant on notice of the issue that ultimately disposed of the review and he referred to the High Court's decision in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152. 24 As to the third aspect of this complaint, the Federal Magistrate ruled that no jurisdictional error was involved. Rather, the appellant was seeking to invite the Court to engage in an impermissible merits review. 25 Accordingly all three matters were rejected.