Asg19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2019] FCCA 3175

FEDERAL CIRCUIT COURT OF AUSTRALIA

ASG19 v MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS & ANOR [2019] FCCA 3175

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether Administrative Appeals Tribunal had regard to all material provided in support – whether Administrative Appeals Tribunal gave the applicant an adequate chance to respond to concerns it had about the applicant’s evidence – whether Administrative Appeals Tribunal approached its task with any prejudgment – whether the Administrative Appeals Tribunal’s decision is affected by bias – whether an invalid certificate issued under s.438 of the Migration Act 1958 (Cth) gave rise to any practical injustice to the applicant - no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.438, 474, 476

Cases cited:

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs

(1994) 52 FCR 43

Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559

Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155

Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347

CQG15 v Minister for Immigration and Border Protection (2016) 253 FLR 496

ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174

DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2

SCAA v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 668

Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001)

205 CLR 507

Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425

NADH of 2001 & Ors v Minister for Immigration and Multicultural and

Indigenous Affairs (2004) 214 ALR 264

MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081

Minister for Immigration and Border Protection v SZMTA [2019] HCA 3

Applicant: ASG19

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 414 of 2019

Judgment of: Judge Emmett

Hearing dates: 1 May 2019, 3 July 2019, 30 October 2019

Date of Last Submission: 30 October 2019

Delivered at: Sydney

Delivered on: 12 November 2019

REPRESENTATION

Applicant: Appeared in person with the assistance of an interpreter

Counsel for the Respondents: Mr Greg Johnson

Solicitors for the Respondents: DLA Piper Australia

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 414 of 2019

ASG19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Administrative Appeals Tribunal dated 8 February 2019 (“the Tribunal”), affirming a decision of a delegate of the first respondent (“the Delegate”) made on 12 February 2016 refusing the applicant a Protection (Class XA) (Subclass 866) visa.

2. The applicant is a citizen of China and of Catholic faith and Chinese ethnicity, who fears harm from Chinese authorities in China.

3. The relevant procedural background and a summary of the Tribunal’s review and decision are accurately summarised in the submissions of the first respondent, as follows:

   “Background

   2. The applicant is a male citizen of China who arrived in Australia on a Subclass 600 visitor visa on 22 January 2015.

   3 On 2 March 2015 the applicant applied for a Protection (subclass 866) visa. In a statement the applicant made the following claims, in summary:

   3.1 After the birth of his son, to escape the punishment of the Family Planning Laws, the family travelled to Bohe Town. However village cadres received a tip off that the laws had been violated. In November 2001 the applicant's wife was forcibly sterilised.

   3.2 On 1 May 2013 police entered a bible study class, the worshippers were taken to the police station, the applicant and his wife were separated for interrogation and the applicant was beaten.

   3.3 The applicant's father contributed money and labour to the creation of a gathering place. On 14 April 2014 a group of people came and started to destroy the building. During an altercation, the applicant's father was pushed to the ground with his head hitting a stone. The applicant's father passed away. The applicant, after the funeral, asked about the progress of the father's case, however the police had not done anything. The applicant went to the township government and Fuqing City government several times to complain.

   3.4 On 6 July 2014 police entered a prayer gathering, the applicant was detained overnight, forced to kneel and slapped on the face. The next day the applicant was taken before the chief police officer, who warned the applicant not to attend underground Catholic activities and warned the applicant not to lodge any further petition regarding his father's death.

   3.5 The applicant attends Sunday services at St Dominic's Catholic Church in Sydney. The applicant would not attend the official churches controlled under the Catholic Patriotic Association as the organisation remained incompatible with the basic doctrine of the universal Catholic church.

   4. On 12 February 2016 a delegate of the Minister refused to grant the applicant the visa.

   5. On 3 March 2016 the applicant applied to the AAT for review of the delegate's decision.

   6. On 19 December 2018 the AAT invited the applicant to attend a hearing.

   7. On 8 February 2019 the AAT affirmed the delegate's decision.

   The decision of the Tribunal

   8. The AAT noted that there was a section 438 certificate on the Department's file. The AAT considered there was nothing adverse in the information contained in the documents covered by the certificate and found the certificate invalid. In these circumstances the AAT considered it unnecessary to advise the applicant of its existence: [4].

   9. The AAT noted that the interpreter in the hearing acknowledged she was having difficulty interpreting the language regarding the Catholic Church and advised she did not think she could further assist. The AAT adjourned the hearing to arrange for a suitable interpreter: [25].

   10. The AAT noted the hearing was reconvened with the assistance of an interpreter who identified as having the appropriate skills to interpret in matters where Catholicism was relevant. The AAT noted there were no concerns raised by the representative or the applicant during the resumed hearing regarding interpretation: [26].

   Consideration of claims and evidence

   11. The AAT formed the view that the applicant had not pursued his father's death since arriving in Australia as the incident did not occur. The AAT was not satisfied that the applicant's father was a senior church member involved in building a gathering place. The AAT did not accept that the applicant was warned by the Chief police officer to not pursue his complaints. The AAT considered the claim was fabricated: [71].

   12. On the basis of support letters from Father McGee, Jieqiong Zhang, Jinzhang Chen and Xingfu Xue the AAT accepted the applicant had been attending St Dominic's Catholic Church in Flemington. However, the AAT was not satisfied the applicant was a practising Roman Catholic prior to coming to Australia and was not satisfied the applicant was a genuine adherent of the Catholic faith: [72].

   13. The AAT found the applicant's oral evidence regarding his claims to have been interrogated to be unpersuasive. The AAT formed the view that the applicant had manufactured this evidence: [73].

   14. The AAT took into account Mr Xue's assertions that the applicant and his wife were devout Catholics in China. However the AAT was not satisfied that this evidence overcame its concerns about the applicant's lack of evidence to support his claims that he was a practising Roman Catholic for over 18 years before coming to Australia. Overall the AAT was of the view that the applicant's oral evidence describing his Catholic practice in China was vague, limited and not indicative of a person who practised as an underground Catholic in China for over 18 years: [74].

   15. The AAT also of the view that the applicant was unable in his oral evidence to expand on the similarities and aspects shared by the Catholic Patriotic Association and the Roman Catholic Church because, prior to coming to Australia, he was not practising Catholicism. Accordingly the AAT was not satisfied that he set up a gathering in Guangdong as claimed or that he was warned by the Chief of police to stop practising in the underground Catholic church: [75].

   16. Overall the AAT formed the view that the applicant commenced attending a Catholic Church in Australia. The AAT also formed the view that the applicant had been attending a Catholic Church in Australia for the purpose of strengthening his claim to be a refugee. The AAT was satisfied that this was not his only purpose for attending church and noted from his written references from fellow Catholic Chinese community members that he had formed friendships in the church community. Accordingly, the AAT had not disregarded his attendance at the church. However, overall the AAT was not satisfied the applicant was a genuine adherent of the Catholic faith: [77].

   17. Given the country information on the family planning laws and forced sterilisation in China, and the consistency of the applicant's evidence, the AAT was prepared to accept that the forced sterilisation of the applicant's wife may have occurred. However, it noted that the applicant had no other claims to make regarding concerns he had with the authorities in the past regarding violations of family planning laws. The AAT was not satisfied the applicant genuinely feared returning to China because of any past violation of family planning laws: [79].

   18. The AAT was not satisfied there was a real chance of persecution were the applicant to return and concluded the applicant did not meet the definition of refugee: [80].

   Complementary protection criterion

   19. The AAT accepted that the applicant's wife may have been forcibly sterilised in about November 2001. However the AAT noted that there was no evidence to suggest that there was a real risk that the applicant may suffer significant harm in the future in relation to any past violation of the family planning laws. The AAT was not satisfied that the applicant had suffered significant harm in the past in relation to religion or imputed political opinion because of his relationship with his father and/or petitioning the authorities regarding the circumstances of his father's death. The AAT was not satisfied that the applicant would practice Catholicism if removed from Australia and was not satisfied that there was a real risk he would suffer significant harm: [85].”

The proceeding before this Court

1. The applicant was unrepresented before this Court, although had the assistance of a Mandarin interpreter.  

2. On 21 March 2019, the applicant attended a directions hearing before a Registrar of this Court. On that occasion, the applicant was provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language. The applicant was also given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the Tribunal hearing, as well as submissions in support. The matter was set down for a show cause hearing on 1 May 2019 at 9:30am before me.

3. On 1 May 2019, the show cause hearing was dispensed with. On that occasion, orders were made for the filing of any additional evidence to be relied upon, the filing of submissions and the matter was resumed on 3 July 2019 at 10:15am before me.

4. At the hearing on 3 July 2019, I explained to the applicant that the role of this Court is very different to that of the Tribunal, and that it is not for this Court to reconsider his claims and reach different findings or conclusions. I also explained to the applicant that the only issue before this Court is whether or not the decision of the Tribunal was made according to law. I explained to the applicant that this Court has no power to interfere with the decision of the Tribunal, unless the Court is satisfied that the decision of the Tribunal is affected by a mistake going to its jurisdiction. I further explained to the applicant that disagreement with the findings and conclusions of the Tribunal rarely, by itself, establishes such a mistake.

5. The applicant confirmed that he relied on the grounds contained in an Amended Application, filed on 5 April 2019, as follows:

   “1. The Tribunal failed to properly consider submitted supporting letters from my church members in Sydney, especially support letter from Mr Xingfu Xue, whose statement referred to an incident in 2013 due to my Catholic religion. However, there was no assessment by the Tribunal as to whether, or not, she believe the information set out in Mr Xue's statement. Therefore, the Tribunal failed in its fundamental role of being obliged to consider all relevant evidences.

   The Tribunal erred in finding that I was not a practising Catholic in China by failing to properly considered those supporting letters, which clearly express their opinion of me being a genuine Catholic. Being a genuine Catholic means attending Mass and receiving holy communion regularly. Only a baptised Catholic can receive holy communion in Mass. If I am not a Roman Catholic in China as the Tribunal assumed, I will not be able to receive holy communion in Australian Church and those letters will not refer me as a genuine Catholic. This error was so critical in reaching the Tribunal's decision on my case, so it is a jurisdictional error.

   2. The Tribunal failed to let me to know what her real concerns are and failed to give me adequate chance to respond to its doubt. The core concerns of the Tribunal is her doubt of I being a practising Catholic in China. In reaching her wrong conclusion, the Tribunal erred in asking wrong questions or misunderstanding the facts:

   2.1 In paragraph 32, I correctly stated that there was no presiding bishop in my diocese in Fujian. That is the true fact. But the Tribunal wrongly jumped to the conclusion that I was not practising Catholic in China because I am not aware of the names of the Bishop. She doesn't understand the particular situation of lack of Bishop appointment in underground Catholic in China.

   2.2 In Paragraph 40, in order to understand why I refused to attend registered Church in China, she, wrongly, asked me about the similarities between the Catholic Patriotic Association and Roman Catholicism. She then draw negative finding on me based on my answers on related questions. I believe that the Tribunal erred in asking wrong questions. If the Tribunal wanted to understand the reason for an underground Catholic refusing to attend official Church in China, it should ask about the differences, rather than similarities, between those two entities.

   I was a genuinely practicing Roman Catholic in China before I came to Australia. Therefore, she failed to let me know, clearly, about her core concern, which in turn denied my opportunity to provide more evidence on this matter. This matter is so critical in reaching her decision on my case, so it is another jurisdictional error.

   3. The Tribunal member has bias on me. Because sometimes I couldn't fully understand some of her questions, due to my personal capacity and interpreter issues in first hearing, I could not give her clear answers, which made her to gradually form bias on me. For examples:

   In Paragraph 35, when she asked me about the cause of death on my father's death certificate, I struggled to give her answers before there is no death certificate issued in China. During the hearing, I was too focus on trying to find the answers for her, so I didn't realize that she asked the wrong question.”

6. Each of the grounds was interpreted for the applicant and the applicant was invited to make submissions in support of each of the grounds and in support of the application generally.

7. In support of Ground 1 the applicant said that the Tribunal had not read letters of support provided by him. In support of Ground 2 the applicant said that the underground church did not have a bishop and that he was telling the truth. In Ground 3 the applicant said that there was no death certificate in China and that if the Tribunal had asked about differences he could have told them more.

8. During the course of the hearing on 3 July 2019, I expressed some concern that the Tribunal had found that the applicant’s oral evidence on the bishops to be “vague and unpersuasive” in circumstances where the Tribunal had accepted that the applicant was able to name two bishops and had stated that there was a bishop in Fujian. It was in light of that concern, that orders were made by me on 3 July 2019 directing the parties to file and serve any further evidence and submissions and the matter was stood over for further hearing to 30 October 2019 before me.

9. At the resumed hearing on 30 October 2019, the applicant remained unrepresented. The applicant confirmed that he had not filed any further documents in this matter and continued to rely on the grounds contained in his Amended Application.

10. The first respondent filed further submissions and an affidavit of John Tsaousidis, affirmed 22 August 2019 annexing the transcripts of the two hearings before the Tribunal.

Ground 1

1. Ground 1 asserts that the Tribunal failed to consider supporting letters of his Catholicism provided by the applicant, particularly the letter from Mr Xue. In support of Ground 1 the applicant said that the Tribunal had not read the letters.

2. The Tribunal in fact referred to letters provided by the applicant from Mr Chen and Father McGee and summarised the nature of the contents. Mr Chen’s letter stated that the applicant was an active participant and contributor to the Western Sydney Catholic Chinese community and that in his view the applicant is a Roman Catholic. Father McGee’s letter stated that the applicant regularly attended the Chinese mass every Sunday at Saint Dominic’s Catholic Church and has done so since January 2015. Father McGee stated that the date the applicant first attended Saint Dominic’s Church was given to him by the applicant.

3. The Tribunal also referred to the letters from Mr Zhang and Mr Xue, noting that they stated that the applicant attended the Catholic Church in Australia and is part of the Western Sydney Catholic Chinese community. The Tribunal noted that Mr Xue also stated that he knew the applicant from Guangdong province and that the applicant and his wife were devout Catholics.

4. Based on the letters of those identified persons the Tribunal then accepted that the applicant had been attending Saint Dominic’s Catholic Church in Flemington and accepted that the applicant was able to describe the sacrament of reconciliation and that he is familiar with some aspects of Catholicism. The Tribunal accepted that Saint Dominic’s Catholic Church is attended by a large number of Chinese speaking Church goers and that although Father McGee could not state that he was aware that the applicant had begun attending in January 2015, as he is unlikely to be able to remember all the names of his parishioners. The Tribunal accepted that Mr Zhang and Mr Xue believed that the applicant is a genuine Catholic.

5. However, the Tribunal was not satisfied that the applicant was a practicing Roman Catholic prior to coming to Australia and is not satisfied that the applicant is not a genuine adherent to the Catholic faith. The Tribunal found that when asked about his Catholic practice in China, the applicant indicated he belonged to an underground Catholic church and that they read the Rosary and Bible. The Tribunal stated that it had to prompt the applicant for further evidence about his Catholic practice in China, following which the applicant indicated that he also worshiped the body of Christ on the cross.

1. To the extent that Ground 1 asserts that the Tribunal failed to consider the applicant’s supporting letters, such a complaint is not made out on the face of the Tribunal’s decision record. Ground 1 is more in the nature of a disagreement with the Tribunal’s finding that he was not a practicing Catholic in China.

2. The Tribunal found that the applicant had manufactured the evidence of being taken to the police station in May 2013 and beaten and having been interrogated over night for about an hour in July 2014. The Tribunal found the applicant’s oral evidence unpersuasive and found the fact that the applicant was unable to recall the questions asked during the alleged interrogation was because the incident did not occur.

3. The Tribunal also referred to the applicant’s evidence when asked about his Catholic practice in China to be merely that he belonged to the underground Catholic Church and that they read the Rosary and the Bible.

4. Ultimately, the Tribunal stated that even taking into account Mr Xue’s assertions that the applicant and his wife were devout Catholics in China, it was not satisfied that this evidence overcame the Tribunal’s concerns about the applicant’s lack of evidence to support his claims to be a practicing Roman Catholic for over 18 years before coming to Australia in 2015. The Tribunal found the applicant’s oral evidence describing the applicant’s Catholic practice in China to be vague, limited and not indicative of a person who practiced as an underground Catholic in China for over 18 years.

5. It is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 per Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).

6. The Tribunal’s findings were open to it on the evidence and material before it, and for the reasons it gave. The Tribunal’s findings were probative of the issues before it. A fair reading of the Tribunal’s decision record makes clear that Tribunal engaged in an active intellectual process of weighing the competing evidence before it and for providing reasons for its ultimate finding (see CQG15 v Minister for Immigration and Border Protection (2016) 253 FLR 496, 507-9, [36]-[38]; ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109, 130-131 [83]; DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2, [30]).

7. Accordingly, Ground 1 is not made out.

Ground 2

1. Ground 2 asserts that the Tribunal did not let the applicant know what concerns it had and failed to give the applicant an adequate chance to respond. In Ground 2.1, the applicant states that the applicant’s answer that there was no presiding bishop in the diocese in Fujian was correct and that the Tribunal was wrong to conclude that the applicant was not a practicing Catholic in China because the applicant was not aware of the name of the bishop.

2. In oral submissions in support, the applicant stated that when the Tribunal asked about the Fuzhou bishop that the applicant had given the correct answer that there was no bishop but that the Tribunal had not believed the applicant. The applicant stated that the Tribunal asked the applicant about Fuzhou and then asked the applicant about the Fujian bishop. The applicant said that Fuzhou was small, Fujian was large and that the applicant had given the right answers. The applicant said that the Fuzhou bishop died and that is why there was no bishop in Fuzhou.

3. During the course of the hearing on 3 July 2019 before me, I expressed some concern that the Tribunal had found that the applicant’s oral evidence on the bishops to be “vague and unpersuasive” in circumstances where the Tribunal accepted that the applicant was able to name two bishops and stated that there was a bishop in Fujian. It was in light of that concern, that orders were made by me on 3 July 2019 directing the parties to file and serve any further evidence and submissions and the matter was stood over for hearing to 30 October 2019 before me. As stated above, the applicant did not file any further documents. The first respondent filed further submissions and an affidavit annexing the transcript, as stated above.

4. True it is that the applicant answered that there was no bishop in Fuzhou when asked “and who was your bishop”. However, the Tribunal then asked “Isn’t there? There is no underground bishop in Fujian?” The applicant’s answer was to identify an archdiocese bishop in Fuzhou in the context of the applicant’s initial answer that there was no bishop in Fuzhou. The applicant then stated that the bishop in Fuzhou was his bishop. That was a material change to the applicant’s answers and, in the circumstances it was open to the Tribunal not to be persuaded by the applicant’s evidence concerning the bishops.

5. The Tribunal expressly put to the applicant that he was vague about there being a bishop. The applicant responded that the bishop had passed away in 2010. When asked if that was the first or second bishop, the applicant said it was the second bishop.

6. The transcript discloses that the applicant’s answers were less than clear in that when the applicant was initially asked whether there was a bishop in Fuzhou he answered no, and then went on to name two bishops. Whilst the Tribunal’s second question related to whether there was an underground bishop in Fujian, instead of in Fuzhou, the applicant named a bishop in the underground church in Fuzhou as Shoucheng Huang, who the applicant identified as his bishop. The applicant then said that the previous bishop of the underground church was Shudao Wang. The applicant said Shudao Wang had passed away, being the second bishop. As stated above, the evidence was unclear and allowed for the Tribunal’s finding that it was vague and unpersuasive.

7. The Tribunal’s finding was that the applicant’s evidence on the bishops was “vague and unpersuasive”. However, the Tribunal did not make an adverse credit finding on that issue but remained unconvinced and found that the applicant’s evidence was insufficient to satisfy the Tribunal that the applicant was a practicing Catholic in China.

8. In Ground 2.2, the applicant asserts that the Tribunal wrongly asked about the similarities about the Catholic Patriotic Association and Roman Catholicism and drew negative findings based on the applicant’s answers.

9. In his written submission in support of his visa application, the applicant stated that he would never attend “official churches controlled under the Catholic Patriotic Association, because such organization remains absolutely incompatible to the basic doctrine of the universal Catholic church.”

10. The Tribunal noted that when it asked the applicant about similarities between the Catholic Patriotic Association (the state registered church) and the Roman Catholic Church (the underground church). Other than a belief in Jesus Christ, the applicant was unable to identify shared aspects of Catholicism by both churches, in particular rituals and sacraments. The Tribunal found that the applicant was aware of the Catholic Patriotic Association because he stated that the organisation was incompatible with the basic doctrine of the universal Catholic Church. The Tribunal found that the applicant’s written submission suggested that he was familiar with the Catholic Patriotic Association because he concluded that it was incompatible with the Roman Catholic Church.

11. The Tribunal found that if the applicant was genuinely practising Catholicism in China for nearly 18 years and had consciously decided not to attend the registered Catholic Church, he would have known more about these similarities. The Tribunal also found that the applicant was unable in oral evidence to expand on the similarities and aspects shared by the two churches because he was not practicing Catholicism in China. For those reason, the Tribunal was not satisfied that the applicant set up a gathering in Guangdong or that he was warned by the chief of police to stop practising in the underground Catholic Church.

12. The Tribunal’s concerns about the applicant’s evidence in relation to the applicant’s inability to identify similarities between the Catholic Patriotic Association and the Roman Catholic Church in circumstances were it was the applicant who had stated that they were “absolutely incompatible” were open to the Tribunal on the evidence before it. The Tribunal specifically put to the applicant that they shared sacraments, that being a “very significant aspect that they share” and said to the applicant that it would be reasonable to expect him to know that. The applicant answered “Because I did - I - I did ask a member of our underground church. I didn't participated in their activities.” The Tribunal then put to the applicant that having stated that they were incompatible suggested that the applicant had done some research about the churches so that they could be compared. The applicant answered that “We have different shepherd. We have different highest leaders.”

13. Again, that evidence by the applicant did not satisfy the Tribunal that the applicant was a practising Catholic in China.

14. The transcript discloses that the applicant’s answers on that issue were capable of supporting the Tribunal’s lack of satisfaction of the applicant’s Catholicism in China.

15. Accordingly, Ground 2 is not made out.

Ground 3

1. Ground 3 asserts that the Tribunal was biased against the applicant.

2. In support of Ground 3, the applicant submitted that the Tribunal had asked the applicant about the cause of death on his father’s death certificate and that the applicant had struggled to give answers because there is no death certificate issued in China. The applicant stated that he had been focused on trying to find answers and did not realise that the Tribunal had asked the wrong question.

3. In support, the applicant had said that there was no death certificate in China and that if the Tribunal asked about the differences, the applicant could have said more. 

4. The Tribunal’s decision record discloses that the Tribunal asked the applicant about what was recorded as the cause of death on his father’s death certificate and that the applicant retold events leading up to his father’s death as stated in his written submission provided in support of his visa application. The applicant did not state the cause of death. The Tribunal noted that it explained to the applicant that it wanted him to answer the question of what was recorded as the cause of death on his father’s death certificate. The Tribunal records that the applicant then stated that his father was injured when the back of his head hit a rock. The Tribunal stated that the applicant did give the date his father was injured and the date of death. The Tribunal again noted that the applicant had not answered the question about the cause of death on the father’s death certificate and noted again that his father was injured when the back of his head hit a rock.

5. The actual exchange about the father’s death between the Tribunal and the applicant is as follows:

   “[THE TRIBUNAL MEMBER]: Now, you've said that your father died. What- what did he die from? What was recorded on the death certificate? Sorry, I - - -

   THE INTERPRETER: Yes. When the govenunent-we-we were establishing we were setting up the - our prayer hall on the 14th of April 2014, and the government came to - to the demolish, and his - the - the - the back of his head hit a rock, and he was sent to the emergency of the hospital for a few days, and on the 18th of April, he passed away.

   [THE TRIBUNAL MEMBER]: Okay. Sorry, sir, but when I ask you a question, I want you to listen to the question I ask and answer that question.

   THE INTERPRETER: Yes.

   [THE TRIBUNAL MEMBER]: Because you didn't answer the question I asked. You repeated almost word for word what's in your written statement, and you were able to remember precisely the day the police turned up, and sta1ted smashing up everything. Earlier today 1 asked you about a - a date when your wife was sterilised, and you 40 said you couldn't remember dates because it was a long time ago, but you were very precise then in the date you gave, and it might suggest that you've memorised what’s in this written statement, because you didn't answer the question I asked. The question I asked was what was the cause of death?

   [THE APPLICANT]: Sorry.

   [THE TRIBUNAL MEMBER]: What was recorded on the death certificate

   THE INTERPRETER: The-the- the back of the head hit a rock.”

6. While the transcript may disclose a little confusion on the part of the applicant as to what he was being asked, there was every opportunity for him to answer that in China death certificates were not issued. In any event, there is nothing about this part of the transcript that discloses bias on the part of Tribunal.

7. A claim of bias is serious and requires evidence. The mere fact that the Tribunal makes adverse findings in respect of the applicant does not give rise to an inference of bias or, by itself, suggest that the decision-maker approached its task other than with a mind open to persuasion (see SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J).

8. There is no evidence before this Court of any complaint made by the applicant that he could not understand any of the questions asked by the Tribunal at hearing.

9. A fair reading of the Tribunal’s decision record does not disclose any prejudgment on the part of the Tribunal in the sense that the Tribunal was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented.” (see Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 at [69], [71]-[72], [127] per Gleeson CJ and Gummow J).

10. A fair reading of the Tribunal’s decision record does not suggest that the Tribunal approached its task other than with a mind open to persuasion. There is no evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind in determining the application for review (see Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]-[32] per Gleeson CJ, Gaudron and Gummow JJ; NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115] per Allsop J, with whom Moore and Tamberlin JJ agreed).

11. Accordingly, Ground 3 is not made out.

Section 438 Certificate

1. A certificate was issued pursuant to s.438 of the Act on the basis that the disclosure of information would be contrary to the public interest as the document contained information relating to an internal working document and business affairs. The Tribunal found the certificate not to be valid and further found that the documents referred to did not contain any adverse information and that it was unnecessary to advise the applicant of the existence of the certificate.

2. The Tribunal was correct to conclude that the certificate was invalid where it related to internal working documents (see MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081).

3. One folio contained information about the applicant’s identity and the second folio was a template relating to a checklist. Those documents were irrelevant to the issues before the Tribunal and could not have affected the outcome of the decision.

4. As stated above, the Tribunal stated there was nothing adverse in the information contained in the documents.

5. True it is that the issuing of such a certificate triggers an obligation of procedural fairness on the part of the Tribunal in the terms identified by Bell, Gageler and Keane JJ in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 at [3] (“SZMTA”):

   “3. The Full Court was also correct to take the view that an incorrect notification results in jurisdictional error if, and only if, the incorrect notification is material, again in the sense that it operates to deprive the applicant of the possibility of a successful outcome.”

6. Materiality, in the case of an invalid notification, is essential to the existence of jurisdictional error. A breach is material to a decision only if compliance can realistically have resulted in a different decision (see SZMTA at [2], [45] – [49] per Bell, Gageler and Keane JJ).

7. In the circumstances, the Tribunal’s decision record makes clear that the documents were not taken into account. Nor was there a realistic possibility that the Tribunal’s decision could have been different if the documents had been taken into account (Minister for Immigration and Border Protection v SZMTA [2019] HCA 3).

8. Accordingly, there is no jurisdictional error arising in relation to the issuing of an invalid certificate under s.438 of the Act.

Conclusion

1. A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the applicant; explored those claims with the applicant at a hearing; and, had regard to all material provided in support. The Tribunal put to the applicant matters of concern it had about his evidence and noted the applicant’s responses. The Tribunal identified independent country information to which it had regard.

2. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.

3. In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

4. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no power to interfere.

5. The proceeding before this Court should be dismissed with costs.

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:

Date: 14 November 2019