FEDERAL COURT OF AUSTRALIA SZOOU v Minister for Immigration and Citizenship [2011] FCA 241 Citation: SZOOU v Minister for Immigration and Citizenship [2011] FCA 241 Appeal from: SZOOU & Anor v Minister for Immigration & Anor [2010] FMCA 969 Parties: SZOOU and SZOOV v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number(s): NSD 1793 of 2010 Judge: KATZMANN J Date of judgment: 18 March 2011 Catchwords: MIGRATION – Refugees – protection visa – fear of persecution for membership of particular social group and religion – China's "one-child policy" – whether fear of forced sterilisation constitutes a Refugee Convention reason – meaning of "particular social group" PRACTICE AND PROCEDURE – Appeal – New ground of appeal – factors to consider in deciding whether to allow new ground to be raised – expediency and interests of justice Legislation: Migration Act 1958 (Cth) ss 36(2)(a); 36(2)(b); 91R(1)(b); 91R(2); 91R(3); 424A; 474; 476(1) Cases cited: Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 H v Minister for Immigration and Multicultural Affairs (2000) 63 ALD 43 Minister for Immigration and Citizenship v SZNPG [2010] 115 ALD 303 Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Re Refugee Review Tribunal and Another; Ex parte H and Another (2001) 179 ALR 425 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 SZBYR v Minister for Immigration and Citizenship (2007) 96 ALD 1 SLMB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 129 SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415 VAAC v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 168 VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 Water Board v Moustakas (1988) 180 CLR 491 Date of hearing: 17 February 2011 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 45 Counsel for the Appellants: The first appellant appeared in person. The second appellant did not appear. Counsel for the Respondents: Mr James King Solicitor for the Respondents: Sparke Helmore IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1793 of 2010 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZOOU First Appellant SZOOV Second Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: KATZMANN J DATE OF ORDER: 18 MARCH 2011 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellants pay the first respondent's costs. 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 1793 of 2010 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZOOU First Appellant SZOOV Second Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: KATZMANN J DATE: 18 MARCH 2011 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The appellants are mother and son. They are citizens of the People's Republic of China. They arrived in Australia from China's Fujian province on 7 May 2008, travelling on Chinese passports and subclass 580 (student guardian) and student visas respectively. On 16 December 2009 – after they had been in the country for over 19 months – they applied for protection (class XA) visas. 2 To secure protection visas the appellants had to satisfy the terms of ss 36(2)(a) and 91R of the Migration Act 1958 (Cth) ("the Act"). Section 36(2) provides: (2) A criterion for a protection visa is that the applicant for the visa is: (a) a noncitizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or (b) a noncitizen in Australia who is a member of the same family unit as a noncitizen who: (i) is mentioned in paragraph (a); and (ii) holds a protection visa. 3 Australia's obligations under the Refugees Convention as amended by the Refugees Convention ("the Convention") are owed to refugees. Article 1A(2) relevantly defines a refugee as a person who …owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and are unable or, owing to such fear, unwilling to avail himself of the protection of that country… 4 Section 91R(1) excludes for the purposes of the Act and regulations the operation of Article 1A(2) in any particular case unless the reason(s) for the fear is (or are) "the essential and significant reason(s)", "the persecution involves serious harm to the person", and "the persecution involves systematic and discriminatory conduct". Section 91R(2) provides a non-exhaustive definition of "serious harm" for the purposes of s 91R(1)(b). Section 91R(3) provides that any conduct engaged in by the person in Australia is to be disregarded for the purposes of determining whether that person has a well-founded fear of persecution for one or more of the reasons mentioned in Article 1A(2) unless the person satisfies the Minister that she or he engaged in that conduct "otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of [the Convention]". 5 The applications were accompanied by statements from each of the appellants. In her statement the first appellant, whom I shall call the mother, said she was married to the father of the second appellant, whom I shall call the son, and had another child, a daughter, born on 24 November 2007. Both the husband and the daughter remain in China. The mother said that she feared persecution for several reasons. She said she had breached the Chinese government's "onechild policy", in disregard of a number of notices from her local authority requiring her to undergo birth control procedures. She claimed that in 1992 and 2006 she was forced to have abortions, against her husband's Catholic beliefs. Since early 2008 (and since she has been in this country) she said she had received notices requiring her to undergo sterilisation. She also said she had received threats from local government authorities that they would have to pay a larger penalty for breaching the onechild policy, which followed complaints from her husband after the authorities proposed to confiscate their land to build a freeway without offering adequate compensation. She declared that she could not return to China because she would be detained and arrested and forced to undergo sterilisation. 6 The son's claim was dependent on the strength of his mother's, although he did not claim to be dependent on her, so as to invoke the terms of s 36(2)(b) of the Act. 7 In his statement the son (who was 16 when he and his mother arrived in Australia and 18 when the applications for protection visas were lodged) claimed to fear that if he were forced to return to China he, too, would be at risk of harm because his family was in breach of the onechild policy. He said that because of its breach of the policy he was afraid that the social stigma attaching to his family would result in discrimination against him and make it difficult for him to find work. He mentioned, however, that he had returned to China for a month in June-July 2009 to visit his grandmother and sister, but claimed that his mother could not also travel because "she is wanted by the Family Planning office". 8 In a detailed statutory declaration dated 2 March 2010 the mother elaborated on her situation and claimed to also fear persecution because of her religion, a subject not raised in the statement accompanying the visa application. (Indeed, the visa application recorded "N/A" as the answer to the question "your religion" and her accompanying statement referred only to her husband's religion.) She stated that her husband has been a member of the underground Catholic Church since 2006 and, after gatherings of Church members in her home, she also became a believer. She stated that she has been attending a Catholic Church in Australia although has not been baptised. She annexed to her declaration copies of notices relating to her allegations that she would be forced to undergo sterilisation (tubal ligation). Those notices apparently supported her contention that notices were sent to her after she had left China. She asserted that she was afraid that if she were returned to China she would be "detained, tortured and forcibly sterilised". She said that the family's land was being confiscated because of its breach of the onechild policy. 9 The application was considered by a delegate of the first respondent ("the Minister") who, on 18 March 2010, refused it. The appellants applied to the second respondent ("the tribunal") for a review of that decision. In support of that application the mother provided a second statutory declaration "to clarify some issues" raised in the record of the Minister's decision. Annexed to it were additional documents (in Mandarin and English) purportedly corroborating her claims. The tribunal, however, affirmed the decision under review. 10 Consequently, the appellants applied to the Federal Magistrates Court for orders that the decision of the tribunal be quashed and the matter remitted to a differently constituted tribunal for determination according to law. That application was also unsuccessful and it is from that decision that they now appeal to this Court. The tribunal hearing 11 The appellants were represented at the hearing by a registered migration agent, who had also represented them in the interview with the Minister's delegate. Each was questioned through an interpreter the tribunal said was competent in Fuqing, English and Mandarin. 12 The tribunal conducted its hearing over two days (23 and 29 June 2010), adjourning the hearing after three hours on the first day at a point when the mother became upset. 13 On the basis of the passports they carried when entering Australia the tribunal accepted that the appellants were Chinese nationals without the right to enter and reside in any other country, but otherwise rejected their claims. 14 The mother did not impress the tribunal as a truthful or reliable witness. It noted that her claims shifted and changed over time. In the tribunal's view, her overall credibility cast serious doubt on the veracity of her claims (and her credibility as a witness). It found that her evidence contained numerous inconsistencies in relation to significant matters and considered the inconsistencies were not satisfactorily explained. It provided many examples to support its conclusions. It also considered that the delay in the lodgement of the applications for protection visas – 19 months after the appellants arrived here – was inconsistent with the mother's claims to fear persecution in China and undermined her credibility. 15 In addition, the tribunal did not accept the mother was actually a Catholic or a Christian who would seek to practise her beliefs on return to China in a manner which might lead to her persecution. It referred to inconsistencies in her evidence about her church attendance in Australia. It noted a letter from a priest from the church she said she attended that confirmed her attendance there "since November 2009" (one month before she lodged her application for a protection visa) and her interest, but observed that it did not assert she is a Catholic or make any assessment of the genuineness of her faith. It considered that her oral evidence at the hearing demonstrated some knowledge of the Catholic faith but little depth of understanding. It drew attention to her response to the question of religion in the visa application form. It also referred to the statement she made in support of her visa application in which she mentioned her husband's beliefs but not her own when the context called for it. Furthermore, as it did not accept that she attended church in China before her departure, it disregarded her church attendance in Australia, pursuant to s 91R(3) of the Act. It said that even if it accepted that the husband and his family attended church in China, there was no credible evidence to suggest that they faced persecution as a result, or that there was a real chance that the appellants would face persecution. It noted an assertion the mother made that her husband and his mother had been detained and questioned was made for the first time on the resumption of the tribunal hearing on 29 June. As to the claimed confiscation of their land, the tribunal found the mother's evidence "confused and contradictory". For example, first she said that no compensation was offered and later she said that the compensation that was offered was inadequate. First she said the land was being confiscated for the construction of a freeway and later she said that that was just an excuse to take the land; the real reason was their breach of the Family Planning Regulations. 16 The tribunal contrasted the mother's evidence concerning the implementation of the Fujian Family Planning Regulations with independent evidence, including the Regulations themselves, although it did accept that the Regulations were implemented inconsistently at the local level. It doubted the authenticity of allegedly original documents served on relatives of the family by the authorities because the translation indicated they referred to an incorrect section of the Regulations. Consequently, it found that the documents could not overcome the deficiencies in the mother's evidence. It was also satisfied that any penalty imposed on the mother for breach of the onechild policy would not constitute persecution for a Convention reason, as it resulted from the implementation of a law of general application, referring to the High Court's decision in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 ("Applicant A"). The tribunal did not accept that the policy would be applied selectively or discriminatorily to the mother. 17 In the case of the son the tribunal indicated that questioning revealed he had little understanding of the claims his mother was making and was unable to explain why he feared discrimination. He professed not to know the nature of the family planning problem or whether he had had any trouble with the government after the birth of his sister. He said he attends church "not very often" and never did so in China. He also knew little of the circumstances surrounding the confiscation of the family farm. The tribunal found him to be "a most unimpressive witness", extremely vague in his oral evidence to the point of appearing evasive, and did not consider that his claims and evidence established a well-founded fear of persecution for a Convention reason. In this regard, the tribunal noted that he was unable to articulate what persecution he feared, or why he might be subjected to persecution. In particular, the tribunal noted that the claims made in his application for a protection visa were inconsistent with his evidence. The application to the Federal Magistrates Court 18 In the application filed in the Federal Magistrates Court the mother pleaded the following grounds of review (without alteration) on her own behalf and on behalf of her son: (1) I have two children. the China authorities said that I had breached the one child police of China government. I was forced to have abortions in 1992 1nd 2006. I was wanted by the China Family Planning authorities. My husband and me are all the members of underground church in China. After my arrival of Australia, I often attend the Catholic activities. The abortions were also against our beliefs. My fam land was to be reclaimed for the building a freeway. We can't complianed for it. If we do, we will levy a bigger penalty for breach of the one child policy. (2) I have breached the one child police and we're members of underground church in China for which the China authorities can persecuted me. Therefore, I have a well founded of persecution in China. (3) The Tribunal member didn't take all my above-mentioned facts into account according to S91R of the Migration Act. The Tribunal member made jurisdictional error while considering my application for a protection visa. 19 The federal magistrate rejected the first ground on the basis that it did not reveal a ground of review and the second, similarly, because it sought impermissible merits review. He also emphatically rejected the third, noting the thorough account of the appellants' claims that appears in the tribunal's decision record and the fact that the tribunal "dissected each of their claims and dealt with them". He said at [11]: By no stretch of the imagination could it be said that the facts had not been taken into account. The Tribunal rightly, to my mind, identified by reference to Applicant A & Anor v Minister for Immigration (1996-97) 142 ALR 331, the difficulties in making a finding of that breach of the one child policy constituted a convention related form of persecution. 20 He concluded at [12]: The Tribunal came to certain factual conclusions that were based upon its assessment of the applicants' evidence and its comparison of independent country information. It decided, as it was entitled and indeed obliged to do if it so thought, that neither applicant was a credible witness. All these findings were available to it on the evidence. In my view the applicants have not been able to satisfy me that the Tribunal fell into jurisdictional error in the manner in which it reached its decision. The appeal 21 The appellants seek orders, setting aside the federal magistrate's decision and remitting the matter to a differently constituted tribunal for determination according to law. 22 Only the mother appeared at the hearing of the appeal. She made oral submissions through a Mandarin interpreter. 23 The notice of appeal recites the following grounds (without alteration): 1. I breached the one child police and I am a member of underdround church in China for which the China authorities persecute me. Therefore, I have a well-founded fear of persecution in China. 2. The Refugee Review Tribunal member failed to take my claims into account and refused my application. The Refugee Review Tribunal member had a bias towards my application of protection visa. He didn't make his decision according to S91R of the Migration Act 1958. 3. The Refugee Review Tribunal member made a jurisdictional error in his decision. 4. The Judge of the Federal Magistrates Court confirmed the decision of the Refugee Review Tribunal member. 24 Appeals to this Court from the Federal Magistrates Court are in the nature of a rehearing but error must be shown: SLMB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 129 ("SLMB") at [11]. 25 There is nothing exceptional in the federal magistrate's decision. In my view its characterisation of the tribunal's reasons was apt. The Federal Magistrates Court only has power to review a decision of the tribunal for jurisdictional error. This is the result of the application of the privative clause in s 474 of the Migration Act 1958 ("the Act") and s 476(1) of the Act. See also Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. No such error was shown. In the circumstances the outcome was inevitable. 26 For the following reasons the grounds do not support the orders sought. Ground 1: Breach of the onechild policy/membership of an underground church 27 The first ground raises no error on the part of the federal magistrate. The mother acknowledged as much at the hearing when she said in response to a request that she identify the errors in the federal magistrate's decision: If I was sent back home I would receive persecution so I need protection. I need to stay here. And also I cannot find any errors but I do need protection. And I have been prosecuted in China. 28 It is plain that this ground of appeal is concerned with the tribunal's findings of fact. The mother's submission was no more than a plea for a reconsideration of the facts and the federal magistrate had no power to reconsider them. 29 The question of a fear of persecution because of a breach of the onechild policy raised another fundamental problem. The federal magistrate referred to it at [11] of his reasons and the tribunal also recognised it. It is this. Not all people who have a well-founded fear of persecution will be refugees. As the High Court noted in Applicant A at 257, discrimination, even discrimination amounting to persecution – no matter how dire – will not suffice unless it is for one of the reasons included in Art 1A(2) of the Convention: Whilst fear of forced sterilisation may amount to a fear of persecution, a person who fears it will only be considered to be a refugee if the reason for it is race, religion, nationality, membership of a particular social group or political opinion. In Applicant A the High Court observed that the onechild policy was a policy of general application. By a majority it held that those who feared involuntary sterilisation for refusing to abide by the onechild policy did not form "a particular social group" within the meaning of Art 1A(2) because what united them was not a common characteristic setting them apart from society as a whole or some external feature that might give rise to a perception that they belong to a particular social group, but their common fear. The appellants' claim, insofar as it was based on the family's failure to conform to the onechild policy, was doomed to fail. Ground 2: Failing to take claims into account 30 As the federal magistrate found, this contention is entirely without merit. The tribunal considered each of the appellants' claims. At the hearing the mother explained her position in this way: The tribunal said I have lodged the false documents as evidence and the reason I went to church in Australia was to strengthen my claims. I did go to church every week. 31 Once again, this is a complaint about the fact-finding. It was not open to the federal magistrate to make different findings. Ground 2: Bias 32 The appellants claim that the tribunal was biased against them. This ground was not raised in the court below. As I observed earlier, this appeal is in the nature of a rehearing. The capacity to agitate new points on appeal is subject to strict limits. Where the point could have been met by calling evidence below it cannot be raised for the first time on appeal. Where the facts have been established "beyond controversy" or the point is one of construction or law, an appellate court may entertain it, if it finds it expedient and in the interests of justice to do so, but not otherwise: Water Board v Moustakas (1988) 180 CLR 491 at 497 and the cases referred to there; H v Minister for Immigration and Multicultural Affairs (2000) 63 ALD 43 at [6]-[8]; VAAC v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 168 ("VAAC") at [23]-[27]. 33 The Minister does not argue that this point could have been met by calling evidence below. The question, then, is whether it is expedient and in the interests of justice to allow the appellants to raise it now. The Minister submits otherwise. In order to determine the question, it is relevant to consider the prospects of success on the appeal of the new argument, the explanation given by the appellants for failing to raise it before the federal magistrate, prejudice to the respondent in allowing them to do so, the potentially serious consequences for the appellants if leave were refused, and the integrity of the appellate process: VAAC at [26]. The Minister did not submit that he was prejudiced but the appellants offered no explanation for the new claim. I turn to consider its prospects. 34 Where a decision-maker is guilty of bias, whether actual or apprehended, he or she will have committed a jurisdictional error: Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 ("Jia"). Bias, however, must be "distinctly made and clearly proved": Jia at [69], [127]. A finding of actual bias requires that the Court satisfy itself that the tribunal was so committed to a conclusion already formed that its mind was incapable of alteration, whatever evidence or arguments might have been presented to it: Jia at [72]. As Gleeson CJ and Gummow J observed in Jia at [72], "natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion". There is no evidence of actual bias. 35 Neither is there evidence that could give rise to a reasonable apprehension of bias. In such a case the appellants would need to prove that a fair-minded lay observer, with knowledge of the non-curial nature of the tribunal and its inquisitorial processes, might reasonably apprehend that the tribunal might not bring an impartial mind to the determination of the issues: Re Refugee Review Tribunal and Another; Ex parte H and Another (2001) 179 ALR 425 at [26]-[27]. In a case where the sole foundation for the argument is the tribunal's reasons for decision, it would be rare for bias, whether actual or apprehended, to be made out: Minister for Immigration and Citizenship v SZNPG [2010] 115 ALD 303 at [18]. The appellants have not alluded to anything that might raise any such apprehension. 36 In the circumstances, the new point has no reasonable prospect of success. 37 Notwithstanding the potentially serious consequences for the appellants if leave were refused, in view of the absence of an explanation and, more importantly, the lack of prospects, leave should be refused. Ground 2: Failure to make a decision according to s 91R of the Migration Act 38 This allegation is equally unfounded. As I said earlier, and as the federal magistrate also observed, the tribunal carefully considered all the claims. There is nothing to indicate that it misdirected itself as to the terms or effect of s 91R. 39 At the hearing in this Court the mother stated that the tribunal promised her she would be given another chance, asked her to go home and talk to her lawyer, and told her it would send her a letter asking her to respond, but no such letter ever arrived. 40 This is another matter which was not raised before the federal magistrate. Orders were made in that court on 16 September 2010 requiring evidence (including transcript) to be filed and served. The appellants adduced no evidence to support the contentions now made. In the record of tis decision (at [117]), the tribunal noted: The applicant's adviser was invited to make oral or written submissions but did not wish to do so. She was advised that the Tribunal may need to write to her pursuant to s 424A, however this was considered not to be necessary. [Emphasis added.] 41 Section 424A of the Act provides that in certain circumstances the tribunal must give an applicant particulars of any information that the tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review. A breach of s 424A will constitute a jurisdictional error: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294. However, the requirement to provide the particulars may be met orally and it does not apply to all classes of information. That is clear from the terms of the section and also from the authorities. See, e.g. SZBYR v Minister for Immigration and Citizenship (2007) 96 ALD 1 at [21]; VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at 477 and SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415 at [106]. 42 The Minister opposed the grant of leave to raise this matter on appeal. In all the circumstances leave should not be granted. No explanation was given for the failure to raise the point below. The point is one which could have been met by evidence. In any case, the mother never identified a contravention of s 424A and none is apparent on the material before the Court. Ground 3: Jurisdictional error 43 No other potential error of this kind has been alleged. When asked to speak to this ground at the hearing the mother confessed to being unable to understand it and repeated her plea to send the matter back to the tribunal because, she said, she needed protection. Ground 4: The order 44 This ground raises no error. Conclusion 45 The appellants have been unable to identify any appealable error on the part of the federal magistrate. Consequently, the appeals must be dismissed with costs. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann. Associate: Dated: 18 March 2011