ACM19 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1049
•17 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ACM19 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1049
File number(s): SYG 46 of 2019 Judgment of: JUDGE SKAROS Date of judgment: 17 October 2024 Catchwords: MIGRATION – Judicial Review – Protection Visa – Whether the Administrative Appeal Tribunal decision was affected by bias – Whether the Tribunal findings were illogical, irrational or unreasonable – whether there was a breach of obligations in ss 424A and 424AA- No jurisdictional error established – Application dismissed Legislation: Migration Act 1958 ss 36, 65, 91R (3), 424A, 424AA, 425 Cases cited: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
Plaintiff S157/2002v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2
Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609
Division: Division 2 General Federal Law Number of paragraphs: 101 Date of hearing: 2 October 2024 Solicitor for the Applicant: Self-represented litigant Solicitor for the First Respondent: Ms Saunders, Minter Ellison Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 46 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ACM19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINSTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE SKAROS
DATE OF ORDER:
17 OCTOBER 2024
THE COURT ORDERS THAT:
1.The name of the First Respondent is amended to ‘Minister for Immigration and Multicultural Affairs’.
2.The application filed on 9 January 2020 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE SKAROS:
By application filed on 9 January 2019, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 18 December 2018. The Tribunal affirmed a decision of a delegate of the first respondent (the Minister) in refusing to grant the applicant a Protection (Class XA) (subclass 866) visa (the visa) under s 65 of the Migration Act 1958 (the Act).
BACKGROUND
The applicant is a 47-year-old male citizen of the People’s Republic of China (China). He first arrived in Australia in February 2014 as the holder of a Temporary Business Entry visa, otherwise known as an APEC Business Travel Card (ABTC). On 20 May 2014, the applicant departed Australia and returned on 10 October 2014, and on 10 January 2015 the ABTC expired.
On 30 January 2015, the applicant applied for the visa. In summary, the applicant claimed that if he returned to China he would be arrested because he was the leader of the Local Church in China.
On 27 November 2015, the applicant attended an interview with the delegate.
On 19 January 2016, the delegate refused to grant the applicant the visa. In summary, the delegate refused to grant the applicant the visa because they found that the applicant’s claims to fear harm in China for reason of religion lacked credibility.
On 11 February 2016, the applicant applied to the Tribunal for review of the delegate’s decision.
On 1 November 2017, the Tribunal invited the applicant to attend a hearing and requested that he provide written submissions.
On 28 November 2017, the applicant’s representative provided written submissions to the Tribunal including a statutory declaration of the applicant, supporting letter from the ‘responsible brothers’ of the Local Church in Sydney and photos of the applicant’s church activities in Australia. The applicant also provided medical documents to the Tribunal and informed them of a diagnosis of [medical condition] and asked that the Tribunal consider the case on humanitarian grounds.
For various reasons, including those relating to Member unavailability and the applicant’s health condition, the hearing before the Tribunal was rescheduled on several occasions. Eventually, on 7 December 2018, the applicant attended a hearing before the Tribunal. The applicant was assisted by an interpreter and his representative attended the hearing.
On 18 December 2018, the Tribunal affirmed the decision of the delegate and notified the applicant of the same.
THE TRIBUNAL’S DECISION
The Tribunal identified the criteria for a protection visa, that the applicant must either satisfy the ‘refugee’ criterion or meet the ‘complementary protection’ grounds for protection. The relevant definition of ‘refugee’ and the complementary protection grounds under the Act were set out.
The Tribunal identified that it must have regard to Ministerial Direction No.56 made under s 499 of the Act, and accordingly it must take into account the policy guidelines titled PAM3 Refugee and Humanitarian - Complementary Protection Guidelines, and PAM3 Refugee and Humanitarian - Refugee Law Guidelines and any relevant country information assessments. The Tribunal identified that it had regard to the Department of Foreign Affairs and Trade Country Report (DFAT Report) – China dated 21 December 2017.
The Tribunal identified that the key issue on review was the credibility of the applicant and whether, on the claims that are accepted, the protection criteria are fulfilled.
The Tribunal then summarised the applicant’s immigration history, including his arrival on an ABTC, his departure in May 2014, his return in October 2014, and the lapse of his ABTC. The Tribunal also summarised the applicant’s education, employment history, and personal circumstances.
After noting the letter from the ‘responsible brothers’ of the Local Church in Sydney, the Tribunal set out the applicant’s claim for protection as provided in the visa application. Relevantly, the applicant claimed that in 2006 a colleague of his became a Christian of the Local Church and, as his involvement increased, he ‘actively developed’ meeting groups in Shandong Province. He claimed the Local Church was regarded as an ‘evil cult’ by the Chinese authorities and eventually this branch of the Local Church was discovered by the Public Security Breau (the PSB) and many of the churchgoers were arrested. The applicant’s colleague fled to where the applicant had been residing and they met at work.
This colleague evangelised the applicant and helped him ‘understand God’s love, God’s plan and God’s full salvation’ and this changed the applicant completely. In January 2011, the applicant and his colleague attended secret church meetings. In February 2011, the applicant was baptised and has been a faithful Christian of the Local Church since.
The meetings that the applicant attended had about 20 members, the meetings were held once a week, and the location frequently changed to avoid the attention of the PSB. From January 2012, the applicant and his colleague established a Local Church meeting group in his hometown, and in January 2013, they set up a second meeting group with the applicant being the ‘responsible brother’ of that group. The applicant departed Australia in May 2014 and on 6 October 2014 the applicant’s colleague, and others involved in the Local Church, were discovered and arrested by police because the applicant had been organising training for new believers.
The applicant was informed by someone with contacts at the PSB, Mr Li, that those who were arrested had given confessions resulting in the applicant coming to the attention of the police. He was urged to leave the country and on 9 October 2014, the applicant departed China. The applicant cannot return to China as he is regarded as a major leader of an ‘evil cult’ and would be arrested and imprisoned by authorities. Since he left, the applicant’s family have been subjected to investigation by the PSB and his home has been searched. The applicant continues to attend the Local Church in Australia.
The Tribunal had regard to the available independent country information and noted that some religious groups are banned by law in China and designated as ‘evil cults’ – followers can be sentenced to imprisonment. The Local Church, otherwise known as the ‘Shouters,’ are banned as a cult in China. There is no method for challenging the designation of an ‘evil cult’ and there was a large crackdown on ‘evil cults’ in 2014. DFAT Country information was unable to verify the extent to which the ‘Shouters’ are still active in China. The applicant’s home province is listed as ‘moderate’ in terms of religious persecution.
The Tribunal then described, in some detail, six distinct concerns that it had regarding the credibility of the applicant’s claims.
Firstly, the applicant’s claim to have converted to an ‘evil cult’, the Local Church at age 33, from having no religious background was not convincing to the Tribunal. The applicant was unable to give a reasoned explanation for his decision to convert and did not explain why he did not start attending a registered church or a more mainstream house or underground church. The Tribunal accepted that there was potential for a sudden conversion to a religious faith and that there are limitations in making assessments regarding the genuineness of a conversion process. This issue was not given significant adverse weight, but it was considered cumulatively with other credibility concerns.
Secondly, the Tribunal had difficulty accepting the applicant’s claim that he converted/attracted 30 members to the Local Church in a town of 20,000 in circumstances where the applicant said that when he started attending the Local Church in a different area there were only 20 or so participants in a city comprising five million people. The Tribunal noted that the area where the conversions took place had a population of about 20,000, the Local Church was a banned ‘evil cult’, and the independent information suggested that the Local Church was not a widespread or mainstream Christian organisation. Further, the Tribunal considered that there would be a very small proportion of the general public that would join the banned Local Church, whether they had a religious background or not.
Thirdly, the applicant lacked knowledge of more mainstream underground and house churches operating in his area and in China generally. The Tribunal said it asked questions of the applicant and his answers suggested a complete ignorance of other underground and house churches other than the Local Church. Country information suggested that such churches are common. This undermined the applicant’s claims to have been meaningfully involved in the Local Church for four years in China and of being a ‘responsible brother’ of a branch for two years.
Fourthly, the applicant did not have any involvement in the Local Church in Sydney on his arrival in early 2014 for three months. This lack of involvement in the context of the applicant having years of claimed involvement in the Local Church in China, including setting up meetings and being a ‘responsible brother,’ was of concern to the Tribunal. The Tribunal also had concerns with the applicant’s evidence that he only became aware of the Local Church in Sydney, when he returned to Australia in October 2014, after someone handed him flyer on the street. It was concerned that the applicant did not do his own research to locate the Local Church when first arriving in Sydney.
Fifthly, the applicant provided inconsistent evidence with regard to Mr Li, between his written statement and his oral evidence. In his written claims, the applicant said Mr Li assisted him to come to Australia on the ABTC and warned him to leave China in October 2014. In his oral evidence, the applicant stated that the Mr Li was not involved with the applicant’s first visit to Australia on the ABTC.
Sixthly, the applicant’s evidence that twice-yearly visits by the police in China to his wife’s residence and several visits to his younger brother, were implausible. The applicant said that these visits were a matter of police routine and that the purpose of these visits were to persuade the applicant to return to China. The Tribunal accepted the possibility of a small number of visits, but found continuing visits were implausible because government systems would inform authorities if the applicant had returned to China.
The cumulative effect of the six credibility concerns resulted in the Tribunal finding that the applicant was not a credible witness. The Tribunal did not accept any of the applicant’s claims regarding events in China, that he became a member of the Local Church, set up branches of the Local Church, or that he was a ‘responsible brother’. It was not satisfied that Local Church members were detained as alleged or that there was any intent to arrest or prosecute him. The Tribunal was not satisfied the applicant came to Australia in October 2014 because of, or to escape, these difficulties.
The Tribunal was not satisfied that the applicant would face a real chance of serious or significant harm because of any past events in China.
The Tribunal then turned its mind to the applicant’s involvement in the Local Church in Australia since 2014. The Tribunal noted that s 91R(3) of the Act had, in effect, disallowed the Tribunal from considering the applicant’s conduct in Australia, unless it was satisfied that the applicant engaged in the conduct otherwise than for the purpose of strengthening his claim to be a refugee.
The Tribunal considered that the applicant had engaged in Local Church activities in Australia solely for the purpose to strengthen his claim to be a refugee and that this was ‘opportunistic’. The Tribunal was not satisfied the applicant would be involved in the Local Church if he returned to China.
For these reasons, the Tribunal was not satisfied that the applicant met the refugee or the complementary protection criterion in s 36(2)(a) and s 36(2)(aa) of the Act, respectively.
APPLICATION TO THIS COURT
The application filed 9 January 2019 contains 16 grounds of judicial review. Many of these are not ‘grounds’ as such, but a mixture of submissions and particulars to the principal ground of bias on the part of the Tribunal.
The applicant also filed an affidavit, sworn on 9 January 2019, which annexed a copy of the Tribunal’s decision record.
Orders made by a Registrar of this Court on 7 February 2019 provided for the Minister to file and serve the Court Book by 7 March 2019. The Orders also provided for the applicant to file and serve any amended application, submissions, and supporting evidence, including a transcript of the Tribunal hearing, by 4 April 2019.
The Minister filed the Court Book on 7 March 2019. Nothing was filed by the applicant in compliance with those Orders.
Further Orders were made by a Registrar of this Court, which provided for the Minister and the applicant to file and serve written submissions and a list of authorities. A variation of those Orders was made extending time for the parties to file and serve written submissions.
On 1 August 2024, the Minister filed written submissions and a list of authorities.
On 17 September 2024, the applicant filed written submissions. As those submissions were not filed within the period specified in the Orders, the applicant required leave of the Court to rely on those submissions. The Minister did not oppose leave being granted and the Court so granted.
The parties appeared before the Court at the hearing on 2 October 2024. The applicant appeared in person. He was assisted by an interpreter in the English and Mandarin languages. A solicitor, Ms Saunders, appeared on behalf of the Minister.
The Court Book, filed on 7 March 2024, was tendered by the Minister at the hearing and was marked Exhibit CB.
Being mindful that the applicant was unrepresented, the Court explained to him how the hearing would proceed and the role and powers of the Court in judicial review proceedings.
CONSIDERATION
The Court can only grant relief if it can be established that the decision of the Tribunal is affected by jurisdictional error: Plaintiff S157/2002v Commonwealth of Australia (2003) 211 CLR 476.
In Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 (SZMTA) at [81], the High Court, per Nettle and Gordon JJ explained that:
The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker includes identifying a wrong issue; asking the wrong question; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; and failing to observe some applicable requirement of procedural fairness.
An example of common law procedural fairness which can sometimes arise in migration matters is when the Tribunal’s decision is affected by actual or apprehended bias: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 (Jia Legeng) at [112].
Disagreement with the Tribunal decision, is not, of itself, sufficient to establish jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu (1999) CLR 611 at [40].
Further, as explained to the applicant at the hearing, the Court does not consider the merits of the Tribunal decision or determine an applicant’s claims for protection: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
GROUNDS OF REVIEW
The application for judicial review sets out the following grounds, which are reproduced without alteration:
1. I believe the Tribunal’s decision, in reviewing my case for a protection application, was made out of bias. I believe the Tribunal had already made up their mind before reviewing my case. I believe the Tribunal entered the review of my protection application with some preconceived ideas about my application, or about me as a person, and constructed their judgements under the influence of this preconception.
2. The following are evidences for my belief. The following information can be found in the decision record of my case.
3. Firstly, the Tribunal refers to a “credibility concern” involving my conversion to Christianity. The Tribunal considers it to be incredible that I was converted to Christian sect that is considered to be an ‘evil cult’ despite my lack of association with religion in the past. In the same paragraph, the Tribunal recognises its “limitations of making assessments as to the genuineness of a conversion process.”
4. It seems contradictive to me that the Tribunal accepts its limitations in making judgements based on the genuineness of a conversion process yet continues to incorporate their assessment of my conversion process into its decisions about me as a credible witness. The fact that the Tribunal has chosen to include their evaluation of my conversion process in the decision record is indicative that this information has been a reason, or part of a reason, for their suspicions of my credibility. Therefore, it is pretty reasonable for me to assume that this piece of information holds significant weighting in their decision making process despite the Tribunal claiming otherwise.
5. The Tribunal's willingness to refer to my conversion process as a part of the decision is very concerning to me as the applicant because I believe such information will always contain bias. From the Tribunal’s statements on this matter, it seems like they are aware of the likelihood to be biased, but I with to give my perspective on my case because as it affects me deeply. As I have claimed on many occasions, my conversion to the Local Church was because I was chosen by God. Before I converted to Christianity, I fought many battles within myself and I felt much pain from these internal struggles. It was God who relieved me of my pains and my struggles, and it was He who guided me onto a path to something great. I cannot describe God's touch into words and I cannot explain why God has chosen to save me. God's decision and plans are not for me to figure out, but for me to follow with a thankful heart. God's plans are not only indescribable by me, but also by any other true Christians who have felt God's mercy and His guidance. That is why I cannot fully explain my conversion to the Local Church. I can recall the events that lead to this conversion, but I can never explain the mysteries of God that calmed my internal turmoil and relieved me of my pain. To some extent, I believe the Tribunal is aware of the mysteries of God and the indescribable nature of His miracles. Hence, it seems very disingenuous to me that they're Tribunal would continue to force me to explain why I was converted when they are fully aware the “why” is very hard to explain. If I were to make a comparison, it would be similar to asking for my explanation as to why I was assigned the specific Tribunal member that I was during my hearing. I do not have the answers, it just occurred to me that the Tribunal member who sat in front of me sat there. It was not up to me nor it was decided by me, but I followed the process with a trusted heart.
6. Secondly, the Tribunal refers to credibility concerns involving my recruitment of 30 believers into the Local Church. The Tribunal believes it is implausible that I could have recruited 30 people to join the Local Church given the outlawed status of the Local Church, the number of people in my town (of about 20,000 people) and the period of time (about one year) I had done it in.
7. Here, the Tribunal drawers from the context that prior to my recruitment there were only “20 or so Local Church believers from a population of more than 5 million”. I would like to point out the population of “5 million” is a wrong representation about the population of my hometown. My hometown once has around 20,000 people living in it and the Tribunal is aware of this. Hence, I am unsure why the Tribunal continuously refers to a population of 5 million. Besides this, the Tribunal is evidently making judgements based on its own biases of the situation. The Tribunal repeatedly refers to the statistic of “20 or so Local Church believers” but the statistic itself is just a piece of information and does not give evidence on its own. The Tribunal must make its own conclusion from this statistic and its evidence the Tribunal has chosen to make the conclusions that prove my claim to be incredible. To offer opposing perspective, perhaps there was not as many active evangelizers prior to Mr Zhang and me. Perhaps the people I recruited were already chosen by God but were never provided with an avenue to join the Local Church. Regardless, I believe it is unfair to base a decision of credibility on a piece of information that is rooted in subjectivity. The Tribunal claims it is incredible based on a lone statistic of an area and the people in that area that they themselves are not even familiar with. Giving the Tribunal’s reliance on this information, it seems unreasonable to me that the Tribunal would only suspect my ability to recruit 30 more believers. Why not push the agenda further and suspect the existence of underground religious groups entirely? The label “evil cults” was introduced by the Chinese Government as early as 1950s and judging by the small amount of followers since then, it seems reasonable that these “evil cults” would have slowly died off and only the registered religious organisations would remain in this day and age. Yet, these underground churches and religious groups have survived generation after generation because God's influence cannot be constrained by the Chinese communist party.
8. Thirdly, the Tribunal refers to a credibility concern involving my lack of awareness of “mainstream underground or house churches operating in my vicinity”. The area in reference here is Jiang Xi.
9. To provide context of Jiang Xi, this is an area that has a history rooted in politics because it is the birthplace of the Chinese Communist Party. In Chinese, Jiang Xi is referred to as the “Red Base of the Communist Party”. Consequently, Jiang Xi is watched closely the Chinese government to ensure that this area is very closely associated with the ideas and policies of the Communist Party. With the control of religion being one such policy, it is very rare to hear about underground religious organisations unless a person is involved in it. Even then, a religious person would more likely interact with other members of their religion. This is why it is actually very common for religious people to keep to their own community. Even the recruiting process is done very carefully and only to people who are deemed to be trustworthy. Hence, it is very normal for members of the Local Church, including me as well as many of my brothers and sisters, to be unaware of other underground churches or religious organisations. The Tribunal’s omission of this information communicates to me that the Tribunal either did not know about it or decided to ignore it. Both of these are indications are bias and I believe it is unfair.
10. Fourthly, the Tribunal refers to a credibly concern involving my “not (having) made (my) own specific enquiries to locate the Church in Sydney” but relying on “someone (handing) out flyers in the street” despite having stayed in Sydney for three months.
11. Here, the Tribunal is outright revealing its biases about me and claims. The Tribunal here relies on no concrete evidence other than their assumptions of what I should be doing if I was credible. The Tribunal has created a behaviour profile that belongs to their idea of a “credible witness” and is relentlessly adhering to it, blatantly dismissing any other factors or possible actions that I may have taken. For context, the situation the Tribunal alludes to is my second visit to Australia in October of 2014, where I stayed in Sydney for there months. The Tribunal does not consider that I am a stranger to this place, that I cannot speak the language, that, at first, I may have found it unnecessary or uncomfortable to locate a Church in an alien environment or that the flyer I receive revealed a perfect situation that I did not originally intend. To make judgements about my character based on a set of behaviour that the Tribunal attributes to their imaginary “credible witness” whom was constructed out of the Tribunal’s subjective reaction to my information is, perhaps, the most blatant example of bias.
12. Fifthly, the Tribunal refers to a credibility concern involving an alleged inconsistency about [Mr] Li's involvement in my first visit to Australia. The Tribunal claims I had stated Mr Li was not involved in my journey to Australia at the hearing but I had stated Mr Li organise my APEC Business Travel Card in my written claim.
13. The Tribunal has misunderstood the situation. The Tribunal has mistaken two separate situations into one. Whilst it is true that Mr Li was involved in my APEC Business Travel Card, Mr Li was, in fact, not involved with my entering into Australia at all. There is no inconsistency here because I had never claimed Mr Li was involved in my arrival in Australia. The Tribunal later put me that my written claim described Mr Li's involvement in my obtaining my APEC Business Travel Card, but this is not inconsistent with my claims at the hearing because Mr Li was involved in my APEC Business Travel Card indeed. He helped me obtain an APEC Business Travel Card but did not help me into Australia. These are two separate events at the Tribunal must have conflated with one another.
14. Sixthly, the Tribunal refers to a credibility concern involving my claims of my family in China receiving harassment from the Chinese Government. Specifically, the Tribunal is unsatisfied with the claims that my family in China is harassed annually because the Tribunal “accepts the possibility of one or two visits to (my) wife or younger brother by police after (I) fled to Australia. However, it would be clear to police from government systems that (I) was out of the country and government systems were inform the police when (I) returned.”
15. Here, the Tribunal either is not fully familiar with the behaviour and attitude of the Chinese police or the Tribunal is not considering it. The Chinese Police is notorious for its harsh treatment of people they believe to be criminals. They frequently harass their families and cause troubles. The Chinese Police Force pays visits with very malicious intents often to inflict harm or cause fear. It is actually very common for the Chinese police to act this way and I am unsure as to why the Tribunal would be suspicious at this. The Chinese Police is more comparable to the mafia than it is an actual organised institution committed to public safety. I believe the Tribunal is aware of this fact and has chosen to ignore it as a result of its a bias.
16. For the reasons listed above, I am convinced the Tribunal has reviewed my case under heavy influences of their own bias and assumptions of very important information in my case. I am inclined to believe the Tribunal has preconceived ideas about my character or about my claims and are very comfortable with assuming incredibility in my claims. I am unsure why the Tribunal has chosen to treat me this way, but I can say I feel this entire process has been very unfair to me.
[sic]
The applicant’s written submissions, which are reproduced without alteration, state:
1. The key issue in this case is whether a fair-minded lay person might think that the Tribunal did not bring a fair and impartial mind to the making of the decision.
2. As it has been stated in the first respondent's written outline of submissions (the ‘Minister's submission’) (Paragraph 14), the Tribunal concluded that I ‘was not a credible witness, having found that, cumulatively, its six credibility concerns were damaging to’ my claims concerning my involvement with the Local Church (a.k.a. "Shouters") in China.
3. In the Minister's submission (Paragraph 13), so-called ‘six credibility concerns' were listed. One of those was as follows:
(c) His lack of knowledge of more mainstream underground or house churches was inconsistent with and undermined his claims...
4. Apparently, the Tribunal is of a view that the Local Church, which I have been involved in China, does not belong to any of ‘mainstream underground or house churches’, which the Tribunal himself has a personal concept based on his own subjective assumptions. This is the evidence that the Tribunal has an obvious and strong prejudice against the Local Church.
5. As a matter of fact, the Local Church is the mainstream church not only in China but also in the whole world. According to the Bible, the "Church" has two key characteristics:
Universality: There is only one "Church" of Jesus Christ throughout the entire universe. It should not be named after any particular denomination or founder, just as a wife should not take on the surname of any man other than her husband. Instead, it should be referred to as the "Church in a certain place" (e.g. the Church in Jerusalem, the Church in Corinth, the Church in Ephesus, etc.). This is analogous to the moon, which is singular in the universe. Although it may appear differently in various locations on Earth, such as Beijing or Taipei, it is still the one and only moon in the universe.
Locality: The "Church' is the body of Christ. The Local Churches around the world and all the saints are part of this one body of Christ.
Furthermore, the Tribunal has in fact considered the information of ‘mainstream underground or house churches’, which the Tribunal himself has a personal concept based on his own subjective assumptions, being the reason, or a part of reason, for affirming the decision that is under review. However, the Tribunal failed to give me clear particulars of the information, failed to ensure me to understand why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and failed to invite me to comment on or respond to it.
7. In conclusion:
1) The Tribunal failed to bring a fair and impartial mind to the making of the decision as he has obvious and strong prejudice against the Local Church, and
2) The Tribunal failed to give me a genuine opportunity to comment or respond to the particulars of the information that the Tribunal considered being a reason, or part of reason for affirming the decision that is under review.
In oral submissions, the applicant stated that there was ‘serious prejudice’ as the Tribunal had a subjective view of his evidence, including his decision to join the Local Church. The applicant said that God had chosen him, he was moved by the beliefs of the Local Church and the Tribunal erroneously thought the process should have been more complicated. He said he was moved by a poem or paragraph from the Bible. He said the Local Church was deemed evil by the Tribunal, which is not correct, and that it was a mainstream church. The applicant took issue with the Tribunal’s view that it was not possible, in a small town of 20,000 people for him to recruit 20 to 30 members. He also took issue with the Tribunal’s consideration of why he did not attend the Local Church on his first trip to Australia.
The applicant submitted that the Tribunal misunderstood his evidence about Mr Li, namely that Mr Li helped him organise the APEC travel card but did not assist him with going through customs the first time he travelled. However, the applicant claimed that Mr Li helped him through customs the second time he travelled because his life was in danger. The applicant submitted that there was no contradiction in his evidence as found by the Tribunal.
The applicant submitted that the Tribunal misunderstood his evidence and consequently did not believe that the police in China came to his home to request his return. He stated there would always be a case open against him and, unless arrested, the legal proceedings against him cannot be finalised.
The applicant submitted that the Tribunal doubted that he attended the Local Church in China as he did not know much about mainstream or family churches. The applicant submitted that it was the Tribunal’s subjective view that the Local Church was not a mainstream or family church and that this was indicative of the Tribunal’s strong prejudice against the Local Church. He said the Local Church was in fact the mainstream church in China and Australia.
The applicant submitted that, under the Act, the Tribunal was required, but failed, to provide information to him which relates to the decision it made. The Court understood this submission as relating to the procedure in ss 424A and 424AA of the Act and asked the applicant to identify the information he thought the Tribunal should have put to him in accordance with those procedures. In response, the applicant said the Tribunal’s rejection of the Local Church as a mainstream church. He said it was clear that the Tribunal had a strong prejudice against the Local Church, that it had already formed a view that the Local Church was “evil” and did not give him a chance to respond. The Court observed that there was no transcript in evidence before it and that it could not identify where, in the decision record, the Tribunal had formed a subjective view that the Local Church was evil. The applicant said the Tribunal did not believe that he (the applicant) would choose to go to a Local Church because the Tribunal thought it was evil. The applicant said the Local Church was a mainstream church in China and that this was misunderstood by the Tribunal.
Assessment of the grounds of review
As the applicant was unrepresented, the Court has read the grounds and submissions as broadly as possible. Underlying the applicant’s complaints is an allegation of bias on the part of the Tribunal. The submissions also allege a misunderstanding of the applicant’s evidence, the making of findings without evidence, a failure to comply with procedural fairness obligations, including those in ss 424 and 424AA of the Act, and unreasonableness. The Court has considered these grounds of jurisdictional error by reference to the grounds raised by the applicant in his originating application and recent oral and written submissions.
Grounds one, two and sixteen
Ground one alleged that the Tribunal’s decision was affected by bias. Ground two merely stated that the subsequent grounds provide evidence (as found in the decision record) that the Tribunal was biased, and ground sixteen alleged that the Tribunal’s biases and assumptions led it to make unfavorable credibility findings regarding the applicant’s claims for protection.
An allegation of bias must be distinctly raised and clearly proved: Jia Legeng at [69].
To establish actual bias, the applicant is required to demonstrate that the Tribunal was so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever arguments may be presented: Jia Legeng at [72].
Apprehended bias will be established if it can be demonstrated that a hypothetical fair-minded lay person, properly informed as to the nature of the proceedings or process, might reasonably apprehend that the Tribunal might not have brought an impartial mind when conducting the review. It is an objective test of possibility and not probability: Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]-[30].
The particulars (or the examples) provided by the applicant to substantiate the allegation of bias on the part of the Tribunal, as set out in grounds three to fifteen, appear to relate to the Tribunal’s adverse credibility findings with respect to the applicant’s claims for protection. The Court has considered each of these grounds/particulars further below at [70] to [94], however, it is noted that the applicant, despite Orders providing for him to do so, has not put on transcript evidence of the Tribunal hearing. The Court, therefore, does not have the benefit of ascertaining whether the manner in which the Tribunal conducted the hearing, including its style of questioning or how it put concerns to the applicant, might disclose that it did not approach its task with a mind open to persuasion or that a fair-minded lay observer might so reasonably infer.
In the absence of a transcript, the Court has considered the grounds of review by reference to the Tribunal’s statement of decision and reasons, noting that it is a rare and exceptional case where bias can be demonstrated solely from the published reasons of a decision: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 (SCAA) at [38].
A fair reading of the decision record does not suggest that the Tribunal had prejudged the applicant’s claims for protection or that its mind was not open to persuasion. The Tribunal’s reasons set out the relevant law with respect to the criteria for a protection visa. It also set out a detailed account of the applicant’s background, his claims for protection and the evidence provided in support of those claims. In assessing the applicant’s claims and evidence, the Tribunal stated the following at [26]:
In considering the overall the credibility of the applicant the Tribunal is cognizant of the words of Beaumont J in Randhawa v MILGEA at 451, in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for… [but this should not lead to]…an uncritical acceptance of any and all allegations made by supplicants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191 where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.
The approach taken by the Tribunal does not suggest that it was committed to a conclusion already formed, such that, it was incapable of being persuaded differently by the applicant’s evidence.
In its assessment of the applicant’s claims and evidence, the Tribunal considered, correctly, that it was for the applicant to provide as much detail as necessary to establish his claims for protection: Prasadv Minister for Immigration and Ethnic Affairs 65 ALR 549 at 25 and that it was not required to accept uncritically the claims made by the applicant: Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 at 451.
In its reasons, the Tribunal set out aspects of the applicant’s claims it considered implausible, unconvincing or inconsistent. At paragraphs [27] to [56], which are also summarised above at [20] to [27], the Tribunal set out six concerns which undermined the credibility of the applicant’s claims for protection. It was the cumulative effect of these concerns that led the Tribunal to find that the applicant was not a credible witness and to reject his claims of being involved with the Local Church in China and the events he claimed had occurred there.
The decision record indicates that the Tribunal discussed with the applicant some of its concerns, that the applicant was given an opportunity to address those concerns, and that the applicant’s responses were taken into account by the Tribunal in its reasoning.
The Court accepts, as submitted by the Minister, that the Tribunal gave cogent reasons for rejecting the applicant’s claims and that there was nothing in the decision record which suggests that the Tribunal’s credibility findings were illogical, irrational, or unreasonable.
The mere fact that the Tribunal made adverse findings in respect of the applicant’s claims and ultimately found that he was not a credible witness does not, of itself, give rise to an inference of bias: SCAA at [38]. There is nothing on the face of the decision record, which suggests that the Tribunal had approached its task other than with a mind open to persuasion.
In considering the decision record overall, the Court is not satisfied that it discloses any actual or apprehended bias on the part of the Tribunal.
Grounds one, two and sixteen do not establish jurisdictional error.
Grounds three, four and five
By these grounds, the applicant took issue with the Tribunal’s approach, at [28]-[32] of its decision, in assessing his claims of conversion to Christianity, namely the beliefs of the Local Church, in China. The Court does not consider that the Tribunal’s questioning of the applicant and its concerns regarding his claimed conversion to the Local Church, which the applicant had indicated in his claims was considered an ‘evil cult’ in China, disclosed any prejudgement, preconceived view, or bias on the part of the Tribunal. The Tribunal acknowledged the limitations of making assessments as to the genuineness of a conversion process and, despite the applicant’s assumption that this consideration held significant weight, the Tribunal plainly indicated that it had not given significant adverse weight to this aspect of the applicant’s claims. Rather, it considered it cumulatively with other more significant concerns it had about the applicant’s claims and evidence.
The reasons given by the Tribunal as for why it did not find the applicant’s claims of conversion in China to be convincing was open on the evidence before it. The Court accepts the Minister’s submission that the Tribunal’s consideration of the applicant’s conversion claims was not illogical or irrational, nor arbitrary or capricious. It also accepts that the concerns raised regarding this claim are not sufficient to establish bias or unfairness on the part of the Tribunal.
Grounds three, four, and five do not establish jurisdictional error.
Grounds six and seven
By these grounds the applicant took issue with the Tribunal’s consideration of his claim to have recruited 30 people to the Local Church in his hometown over a period of one year. The applicant alleged that the Tribunal’s assessment of the evidence in respect of this claim was biased, unreasonable, subjective, and without basis.
The Tribunal found that the applicant’s evidence lacked credibility in respect of the applicant having recruited, over the course of a year, 30 members to the Local Church in his home town, which had a population of 20,000 people, given there were only 20 or so participants of the Local Church in other urban areas with populations of around 5 million. The evidence regarding population sizes, upon which the Tribunal made its comparative assessment, appears to have been given by the applicant to the Tribunal at the hearing, as set out in the decision record at [34]. In these circumstances, it cannot be said that the Tribunal’s consideration of the evidence was biased, subjective or without basis. Nor can it be said that the Tribunal’s reasoning was illogical or that its adverse credibility finding was not open to it on the evidence.
While the applicant may vehemently disagree with the Tribunal’s assessment of his evidence in respect of this claim, a disagreement in and of itself, is not a basis for finding jurisdictional error.
Grounds six and seven do not establish jurisdictional error.
Grounds eight and nine
By these grounds the applicant alleged that the Tribunal was biased and unfair in making an adverse credibility finding, based on the applicant’s lack of awareness of mainstream underground or house churches operating in his vicinity. The applicant also submitted that in his area, which is watched closely by the Chinese government, it was rare to hear about underground religious organisations and that it was normal for members of the Local Church, including him, to be unaware of other underground churches or religious organisations. The applicant alleges that the Tribunal failed to take this information into account.
There is no evidence before the Court suggesting that the Tribunal had information before it which indicated it was normal for members of the Local Church to be unaware of other underground churches or religious organisations, and that it had failed to consider that information. Grounds eight and nine do not disclose a failure to consider information.
In its reasons at [40], the Tribunal indicated that the applicant demonstrated complete ignorance of other underground and house churches despite country information, set out at [41] of its decision, indicating there was a proliferation of underground or house churches for both Protestant and Catholic organisations, which range in size from around 30 to several thousand members. The Tribunal also relied on country information, which indicated there were between 30 and 60 million unregistered Protestant Christians in China.
The Tribunal found the applicant’s lack of knowledge about underground or unregistered churches in China had undermined his claim to have been involved in the Local Church for four years in China and to have been a ‘responsible brother’ of a branch for two years. The Court finds no bias, actual or apprehended, can be discerned from the Tribunal’s consideration of the evidence before it regarding this concern or from its adverse credibility finding.
Grounds eight and nine do not establish jurisdictional error.
Grounds ten and eleven
By these grounds the applicant alleged bias on the part of the Tribunal for its consideration, in a manner adverse to the applicant, of how he became involved with the Local Church in Sydney (on his second trip to Australia) and for not seeking out the Local Church on his first trip, even though he was in Australia for nearly three months. The applicant alleged that the Tribunal had a preconceived view of how a credible person should conduct themselves and failed to consider any other possible explanation. The applicant alleged that the Tribunal failed to consider that he was a stranger to the city, did not speak the language, may have found it unnecessary or uncomfortable to locate a church in an alien environment, and that him receiving a flyer about the Local Church turned out to be the perfect situation.
At [44] of its decision, the Tribunal set out its concern about the applicant not having had any involvement in the Local Church in Sydney on his first trip to Australia in early 2014. The Tribunal put to the applicant its concern and gave him an opportunity to respond. The Tribunal considered the applicant’s response at [45]-[46], being that the focus of that trip was on the porcelain business. The decision record does not indicate that the applicant told the Tribunal that he had not become involved with the Local Church in Sydney because he was a stranger or because of language issues, or the discomfort of being in an unfamiliar environment. These explanations do not appear to have been provided to the Tribunal when it put its concern to the applicant, and it was not for the Tribunal to speculate on all the possible reasons why the applicant did not seek out the Local Church on his first trip to Australia.
The Tribunal was not satisfied with the explanation given by the applicant at the hearing (as set out at [46]-[47] of its reasons) and considered that it undermined his claimed involvement with the Local Church in China and his claim to have been a ‘responsible brother’.
The Court is not satisfied that bias, actual or apprehended, has been demonstrated from the Tribunal’s consideration of the evidence in respect of this concern. It was open for the Tribunal, on the evidence before it, to find that the applicant’s conduct undermined his claims. The Tribunal’s reasoning and adverse credibility finding does not disclose any preconceived ideas of how the applicant should have conducted himself, nor does it disclose any illogical reasoning or unreasonableness on the part of the Tribunal.
Grounds ten and eleven do not establish jurisdictional error.
Grounds twelve and thirteen
By grounds twelve and thirteen, the applicant alleged that the Tribunal misunderstood (or conflated) his evidence regarding the involvement of Mr Li. The applicant submitted that while Mr Li had organised his APEC travel card, Mr Li was not involved with his travel or entry into Australia. He submitted that these were two separate events
The decision record at [49] indicates that the Tribunal asked the applicant a question about whether Mr Li had ‘any involvement in the applicant’s first trip to Australia’, to which the applicant said he had not. After a request from the applicant’s migration agent for the Tribunal to rephrase the question, which it did, the applicant gave evidence that the arrangements to come to Australia on the first occasion had been organised by his company and not by Mr Li. The applicant said that Mr Li was only involved in advising him to come to Australia on the second occasion. The Tribunal records, at [50] of its decision, that it put to the applicant that his oral evidence was inconsistent with his written claim that Mr Li had organised everything for his first trip (CB 21). In response to the concern, the applicant said that Mr Li did organise the APEC card for his first trip.
In considering the applicant’s response at [51] of its decision, the Tribunal formed the view that the applicant had provided inconsistent evidence about Mr Li’s involvement in making arrangements for his first trip to Australia. While the Tribunal regarded this as a ‘peripheral issue’, it nevertheless considered the inconsistency in the evidence to be relevant to the applicant’s credibility.
Having regard to the question asked by the Tribunal about the involvement of Mr Li and the response given by the applicant, it was open for the Tribunal to find that the evidence given by the applicant at the hearing was inconsistent with his written claims. The applicant’s explanation that he was referring to two different events was not one that had been provided to the Tribunal when it put its concern about the inconsistency of the evidence to him. Nor does the evidence suggest that the Tribunal should have ascertained that the applicant was referring to two separate events. The Tribunal’s consideration of the evidence regarding the involvement of Mr Li does not disclose any error on the part of the Tribunal.
Grounds twelve and thirteen do not establish jurisdictional error.
Grounds fourteen and fifteen
By these grounds the applicant alleged failure on the part of the Tribunal for not being fully familiar with information about the behaviour and attitudes of the Chinese Police and for not considering, or choosing to ignore, such information due to its bias. The allegations relate to the Tribunal’s concerns regarding the applicant’s claim of several visits by police to his wife and brother in China.
The decision record at [53]-[55] indicates that the Tribunal had regard to the applicant’s evidence about the number of visits made by police to his wife and to his brother. There is no indication in the decision record that the applicant provided any other evidence about the behaviour and attitude of Chinese police towards him or his family which the Tribunal failed to have regard to or deliberately ignored. It was open for the Tribunal, on the evidence before it, to express its doubts about the applicant’s claim that the Police visited his wife and brother in China. The doubts expressed in respect of this claim do not of themselves disclose a bias on the part of the Tribunal.
Grounds fourteen and fifteen do not establish jurisdictional error.
Further grounds
Additional grounds raised in the applicant’s written and oral submissions alleged that the Tribunal, due to its prejudice against the Local Church, misunderstood that the Local Church is a mainstream church. It was also alleged that the Tribunal failed to give the applicant a genuine opportunity to comment on the particulars of information about mainstream underground or house churches upon which the Tribunal relied to affirm the decision under review.
As considered above, there is no evidence which suggests that the Tribunal had formed a prejudicial view of the Local Church that impacted its assessment of the applicant’s claims for protection. The reference in the Tribunal’s decision to the Local Church being known an ‘evil cult’ is in reference to the applicant’s own claims that ‘the Local Church is regarded as “evil cult” by the PRC authorities’ and that he has been regarded as one of the major leaders of ‘evil cult’ (CB 20 – 21).
As to the applicant’s submission that the Local Church was a mainstream church, this was not the evidence provided to the Tribunal. In assessing the credibility of the applicant’s claim to have been involved in the Local Church in China, the Tribunal questioned the applicant about his knowledge of mainstream, underground, or house churches. It was open to the Tribunal to find that the applicant’s knowledge was lacking and undermined his claims. The Tribunal’s assessment of the evidence and its questioning of the applicant does not disclose any bias, actual or apprehended, on its part. Nor does it demonstrate a misunderstanding by the Tribunal of the evidence before it pertaining to the classification of the Local Church.
As to the allegation that the Tribunal breached its obligation under ss 424A and s 424AA of the Act to put to the applicant information it relied upon in its reasoning regarding mainstream, underground or house churches, the Court accepts the Minister’s submission that the information regarding the types of churches in China came from the DFAT Country report. The Tribunal’s decision record references, at footnotes 22 and 23 of [41], the relevant information relied upon by the Tribunal in its reasoning. The Court accepts the Minister’s submission that the DFAT is country information not specific to the applicant and comes within the exceptions provided for in s 424A(3)(a) of the Act. It is also well established that information which involves the Tribunal’s subjective appraisals, thought processes and determinations, defects, gaps, or lack of detail in an applicant’s evidence is not ‘information’ for the purposes of s 424A of the Act: SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18]. The obligation in s 424A(1) of the Act has not been enlivened in the circumstances of this case.
To the extent that the applicant’s complaint alleges a breach of the Tribunal’s obligation in s 425 of the Act to afford him procedural fairness, this is not made out. The decision record at [40] and [42] indicates that the Tribunal raised with the applicant its concerns pertaining to the applicant’s lack of knowledge of other religious groups in China given his claim to have been ‘meaningfully religiously involved, as a member of the Local Church for four years and spending two years as a “responsible brother”’.
The further grounds raised do not establish jurisdictional error.
CONCLUSION
As none of the grounds raised by the applicant establish jurisdictional error, the Court dismisses the application for judicial review.
I certify that the preceding one hundred and one (101) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Skaros. Associate:
Dated: 17 October 2024
0
11
1