DJC16 v Minister for Immigration
[2019] FCCA 3213
•12 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DJC16 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3213 |
| Catchwords: MIGRATION – Application for review of decision of the Administrative Appeals Tribunal – whether the Tribunal’s findings regarding the first applicant’s credibility were unreasonable – whether the Tribunal misinterpreted certain evidence – whether the Tribunal’s findings regarding certain facts and evidence were logical and probative of the material before it – whether the Tribunal failed to make further inquiries regarding certain claims – whether the Tribunal’s findings regarding country information were illogical – grounds seek impermissible merits review – whether the decision was affected by actual bias on the part of the Tribunal member – no jurisdictional error revealed – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 476 |
| Cases cited: SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; (2013) 212 FCR 235; (2013) 299 ALR 246; (2013) 138 ALD 1 |
| First Applicant: | DJC16 |
| Second Applicant: | DJD16 |
| Third Applicant: | DJE16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3086 of 2016 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 23 October 2019 |
| Date of Last Submission: | 23 October 2019 |
| Delivered at: | Sydney |
| Delivered on: | 12 November 2019 |
REPRESENTATION
| First Applicant: | In person |
| Counsel for the Respondents: | Mr N. Swan |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application made on 9 November 2016 is dismissed.
The first and second applicants pay the first respondent’s costs set in the amount of $7206.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3086 of 2016
| DJC16 |
First Applicant
| DJD16 |
Second Applicant
| DJE16 |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) on 9 November 2016, which seeks review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 11 October 2016, which affirmed the decision of the Minister’s delegate (“the delegate”) not to grant the applicants a protection visa.
In evidence before the Court is a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”).
Background
The first applicant is a citizen of the People’s Republic of China (“China”) (item 20 at CB 14). The first applicant has three children, including a daughter born in 2004 (item 12 at CB 251) to her husband, who resides in China ([5] at CB 363), and two children (a son and a daughter) to the second applicant (her de facto partner) ([13] at CB 364).
She arrived in Australia on 30 May 2007 (item 28 at CB 15). She first applied for a protection (Class XA) visa on 8 June 2007 (CB 1 – CB 33). On 23 June 2007, a delegate of the Minister refused to grant the first applicant a protection visa (CB 35.5, and CB 34 – CB 46 generally). The first applicant applied to the (then) Refugee Review Tribunal, which on 3 October 2007 determined that it had no jurisdiction to review her decision. She was notified of this on 4 October 2007 (See CB 47 – CB 51).
The second applicant is the de facto partner of the first applicant. He is a citizen of China (item 19 at CB 73). He applied for a protection visa on 28 July 2011 (CB 60 – CB 94). On 26 September 2011, a delegate of the Minister refused to grant him a protection visa (CB 99 – CB 110). On 3 February 2012, the (then) Refugee Review Tribunal affirmed the decision of the delegate (CB 174 – CB 199).
The first and second applicants lodged a further application for protection visas on 28 October 2013 (CB 200 – CB 238). They raised a number of matters in support of their application, including (at CB 220 – CB 223):
6.1 Persecution in relation to the first applicant’s Catholic religion. The first applicant claimed to be a Catholic. She claimed that she was forced into a marriage after the death of her father. She asserted that her husband and his family were angry at her because of her Catholic faith and “forced” her to “quit”, as they are Buddhist. She claimed that in January 2007 she was arrested and fined for participating in a church member’s family gathering, resulting in her being “expelled” from work. Her relationship with her husband continued to deteriorate. The first applicant suffered domestic abuse from her husband in “May 2009”. The husband remained in China.
6.2 The first applicant met her de facto partner at the Catholic Church in Flemington after she came to Australia. They began living together “since New Year of 2009”. She claims that her husband in China refused to divorce her, and threatened that he would harm the first applicant and their daughter. She claimed that her husband in China would “kill my baby” if he were to find out that she was pregnant with the child of her de facto partner.
6.3 The first applicant claimed that she would face “great danger” in China as it is “illegal to live with de-facto boyfriend and Chinese law will persecute me”. She also claimed that “law will not recognize my baby” and that the government would “not allow [her] child to be born” and “force [her] to do abortion”.
The third applicant was born on 25 March 2014 (item 2 at CB 248). He is the son of the first and second applicants. He was included in the application for a protection visa on 8 September 2014 (CB 247 – CB 265).
The applicants’ application for a protection visa was refused on 5 November 2014 by the Minister’s delegate (CB 267 – CB 298). The applicants applied for review of the delegate’s decision by the Tribunal on 1 December 2014 (CB 299 – CB 306). On 27 April 2016, the applicants were invited to attend a hearing before the Tribunal on 17 June 2016 (CB 311 – CB 314).
All three applicants attended the hearing on 17 June 2016. The first and second applicants gave evidence with the assistance of an interpreter in the Mandarin language (CB 318). On 21 June 2016 the applicants were invited to a resumption of the adjourned hearing on 2 August 2016 (CB 321 – CB 323). The applicants were invited to provide further information and documents at this hearing (CB 323.2 – CB 323.4). The applicants attended this further hearing and provided documents to the Tribunal (CB 326 – CB 328, and see CB 329 – CB 342 for documents).
The first applicant gave birth to a daughter on 8 December 2015, however she was not a party to the application before the Tribunal ([13] at CB 364). The first applicant’s daughter born in 2004 in China was also not included in the protection visa application (item 12 at CB 251).
On 11 October 2016 the Tribunal affirmed the delegate’s decision to refuse the grant of a protection visa (CB 362 – CB 392).
The Tribunal
The Tribunal summarised the relevant background to the applicants’ claims at [5] – [13] of its decision record (CB 363 – CB 364).
The Tribunal found that it did not have power to consider the Refugee Convention criterion in s.36(2)(a), and proceeded on the basis that it could only consider the first (“primary”) applicant’s, and the second applicant’s claims, under the complementary protection criterion in s.36(2)(aa) of the Act ([19] at CB 365). The Tribunal found that in relation to the third applicant (the child), the claims could be considered under both the criteria in s.36(2)(a), and s.36(2)(aa) of the Act ([20] at CB 365).
The first applicant’s claims to protection were variously set out in her application form (CB 220 – CB 223) and in a statement attached to the first applicant’s earlier protection visa application forms (CB 28, CB 52 – CB 55), as well as the second applicant’s translated statement at CB 88 – CB 91, and as given in evidence at the hearing with the Tribunal (CB 329 – CB 342).
The Tribunal found that the first and second applicants had previously applied for, been considered, and refused, protection visas, on the basis of the refugee criterion for the grant of such a visa at that time.
As set out above, it therefore determined that their claims could only be considered under the complimentary protection criterion. That is, with reference to s.36(2)(aa) of the Act (SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; (2013) 212 FCR 235, SZRSN v Minister for Immigration and Border Protection [2014] FCA 527 at [21]).
There is no indication of legal error in the Tribunal’s findings in this regard. Nor, for that matter, do the applicants complain now about these findings.
In relation to the first applicant’s evidence, generally, the Tribunal found her not to be “a witness of truth”, and was “not satisfied that [she] has told the truth in relation to critical aspects of her claims” ([84] at CB 376).
In its decision record the Tribunal understood the applicants’ various claims to fear harm as arising from the following.
One, the first applicant’s claim that she had been a member of the underground Christian Catholic Church in China.
The Tribunal found the first applicant’s evidence to be “vague and evasive”, “not consistent” and her “understanding of the Catholic faith, its basic tenets, her awareness of saints and knowledge of the Bible to be minimal at best” ([86] – [88] at CB 376).
The Tribunal was not satisfied that the first applicant had been a member of an underground Catholic Church in China, or that she had suffered harm as claimed ([88] at CB 376).
Two, however, based on corroborative evidence (letters from church officials in Australia) the Tribunal accepted that the first and second applicants had been attending Catholic Church is in Australia since 2007 and 2012 respectively ([89] at CB 376).
The Tribunal had regard to country information before it and ultimately found that the applicants would not likely suffer significant harm if they were to return to China and practice their beliefs in an underground Catholic Church ([93] at CB 377).
Three, the Tribunal accepted that the first applicant may have had a “difficult relationship” with her husband in China. It accepted that this, and his assaults on her, may have been a significant factor in her leaving China ([94] at CB 377).
The Tribunal accepted that it was possible if she returned to her home village in China that she may be at risk of threats or physical harm from her husband ([97] at CB 378).
The Tribunal also had regard to country information to find that there were civil and legal mechanisms in China that the applicants could utilise. However, on the basis that the Tribunal found that these were “not very effective”, it considered whether the first applicant could relocate in China to avoid harm ([99] at CB 378). [The second applicant would have returned to his home province which did not contain the first applicant’s home village].
The Tribunal found, based on the evidence given by the first and second applicants, that she could reasonably relocate to Fujian province from where her de facto partner, the second applicant, came from, and that she could obtain household registration there ([102] at CB 379).
Four, the Tribunal noted the first applicant’s evidence that she left China nine years ago, maintained contact with her daughter (the daughter of her marriage) by telephone, and occasionally had telephone contact with her husband ([103] at CB 379).
The Tribunal noted that the first applicant’s evidence about when her husband in China divorced her: “…was extremely vague, evasive and inconsistent”. Nor was the second applicant able to assist in this regard. It found the first applicant’s evidence that she could not remember not to be credible ([104] at CB 379).
The Tribunal noted the first applicant’s evidence that she had been in a de facto relationship with the second applicant since 2009 in Australia ([105] at CB 379). The Tribunal accepted that it was unlikely that she was divorced at that time. However, the Tribunal found her evidence as to whether she was divorced by 2014 (when she had her son, the third applicant) to have been: “…deliberately…vague and inconsistent…” so as to: “…make a claim that she would suffer significant harm if she were to be persecuted for bigamy” in China ([106] at CB 379).
The Tribunal had regard to country information on the basis that it accepted she was: “…probably not divorced in 2009 when she commenced her de facto relationship” ([107] at CB 379).
It was not satisfied on the evidence that there was a real risk of significant harm on this basis. It gave reasons for this ([108] at CB 379 to [89] at CB 382 – the paragraph numbering in the Tribunal’s decision record is not sequential).
Five, having regard to country information the Tribunal was satisfied that the first applicant would be able to obtain household registration (“hukou”) for her children in either Fujian or Jiangsu provinces, before paying any compensation fee ([92] at CB 383 to [92] at CB 386 – it must be said the Tribunal must in future pay closer attention to the paragraph numbering).
Six, the Tribunal found, based on country information, that the first applicant would have to pay a social compensation fee for the third applicant. However, also based on country information, it found that the payment could be made by instalment. In that light the payment would not rise to significant harm ([96] at CB 386 – [108] at CB 389).
Seven, the Tribunal considered, and did not accept, the first applicant’s claim that she would suffer social discrimination and social stigma ([112] at CB 390).
Eight, the Tribunal did not accept that the second applicant would suffer significant harm as a result of threats made by the first applicant’s husband. It gave reasons for this ([114] at CB 390).
Nine, the Tribunal found that the third applicant’s claims were based on claimed discrimination and deprivation of services that he would suffer because he would be unable to obtain household registration. The Tribunal found he would be able to obtain such registration. Further, the Tribunal found that any bullying or teasing by his peers would not rise to significant harm. Nor would such harm be likely from his mother’s husband ([116] – [117] at CB 390).
In all, the Tribunal affirmed the delegate’s decision ([119] – [120] at CB 390 – CB 391).
The Grounds of the Application
The grounds of the application appear under two headings in the application to the Court. That is, “orders” sought, and the grounds. The orders sought in reality appear to be further complaints, or grounds, and have been considered as such.
The totality of the grounds are in the following terms:
“Attachment to Grounds of Application
Orders sought by Applicant
I am unable to accept DIBP and RRT’s decisions as I don’t think it is a decision made is considerable, persuasive and comprehensive. I was shocked about the assessments in regard to my credibility and information applied in the given decision. I strongly feel that there must be many misinterpretation and misunderstanding with unfair and abused assessments involved.
About claims related to being a Christian who is a member of the underground Catholic church (item 85-90)
1. Tribunal misinterpreted my given explanation in hearing about former husband resignation and I don’t think I have made anything inconsistent in hearing (item 85-86).
2. Tribunal judgment about my understanding of Catholic faith, its basic tenets, and my awareness of saints and knowledge of the Bible to be minimal at best is unrealistic to my faith as one’s faith cannot be judged by superficial knowledge or education level reached according to biblical teaching. It is apparently a unfair and unrealistic assessment made by an unbeliever or a pagan. As a committed convert, I have received baptism and that is a hard evidence for my faith. On the other hand, tribunal failed to request any further evidence, proof or testimony from either my church party or other resources available in this regard. That is careless considered and against tribunal’s obligation.
3. In fact, my clear explanation has been delivered in hearing that both I and my son are all involved actively in Catholic church assembly and this has been substantially evidenced in writing by our Flemington and Marshfield churches sine we arrived in June 2007. My partner was also attending the Catholic Church at Marshfield since 2012 (item 87-89).
4. Tribunal’s expectation and view on me and my family members was wrong and prejudiced because it was misinterpreted or misunderstood short of investigation. My given church reference has been ignored.
About the claims related to my family violence/abuse in China (item 94-106).
5. Tribunal’s judgment made me go out of breath and overwhelmed as it is untrue and unrealistic. I don’t think I have provided any false or misleading statement in such sensitive issue. I feel upset Tribunal never understand the reality occurred in my struggling life and shown even no compassion or better understanding in my broken marriage. As single mum with a kid, I would like to emphasize my special cultural background in rural area of China which is distinctively applied to Australia. Tribunal misinterpreted my statement and explanation given in hearing, and fails to invite us to make further comment for beneficial of my credibility in marriage and divorce concern. Tribunal’s view or account for this particular issue was unacceptable and creative to additional stress.
About Claim that the primary applicant will suffer social discrimination and stigma as a unmarried mother and my child will suffer discrimination as the child of an unmarried mother (item 109-115)
6. Tribunal failed to give a through and realistic consideration in my special family in particular my marriage status, stress and dilemma. The country information given by Tribunal is unrealistic and should not apply to me. Because both my partner and I were grown up in special environment and we will definitely by affected by the social compensation fees enforced by family control policy in China as we will be considered to be “extra fertility” or out of wedlock if we married.
7. In conclusion, RRT’s decision for my credibility is unacceptable and made me stressful. I don’t think RRT has given a significant understanding and consideration in our current claim and faith. The decision made us in a helpless and stressful situation.
The Grounds of the Application are:
1. As Chinese nationals, my families are all converts of to Catholic faith and involved in church assembly, gospels preaching and delivery in Australia. We have fear to be persecuted due to our faith if we are forced to return to origin as our faith; the Roman Catholic is not recognized in China, underground church activities are targeting and converts are intimidated or highly, potentially persecuted and repressed.
2. I had involved myself in house church in China and experienced arrest. I review the church situation in China has yet been improved until present and this why I have a fear to return for sake of my religion.
3. Threats, repression and risk are imminent and unavoidable in my origin. Underground church followers are targeted by government. For sake of my religious freedom, our mission in gospels, especially our faith in commitment, we apply for protection by Australian government and wish our new claim and situation can be reconsidered.”
[Errors in the Original.]
The applicants had also filed a document on 3 October 2019 in the style of a letter to the Court. This was treated as written submissions. Given the long and, it must be said, dense, narrative style, it is convenient to deal with the submission separately. This is also because the submissions do not appear to directly address the “grounds” of the application.
Before the Court
This matter was first before the Court on 16 March 2017. Various orders were made on that occasion, by consent, setting out a timetable for the filing of documents. Relevantly, those orders provided that the applicants were to file and serve any affidavit containing additional evidence to be relied upon (including any transcript of a Tribunal hearing), and amended application, by 11 May 2017. No such further documents were filed by the applicants.
Various other timetabling orders were made, on 4 May 2017 and 2 September 2019, regarding the filing of documents, and setting the matter down for final hearing. The first applicant and the first respondent filed written submissions prior to the hearing.
At the hearing the first applicant appeared in person. She was assisted by an interpreter in the Mandarin language. While the second applicant, apparently, was in the precincts of the Court with the third applicant, the first applicant said that they had arranged that she would speak for him, and for the third applicant.
At the hearing the first applicant made submissions both initially, and in reply. These are addressed below.
The first applicant made oral submissions to the Court seeking to address some of the matters raised in her application and written submissions. These are considered below in relation to addressing the “grounds” of the application. Other matters are dealt with separately below. The written submissions are also addressed separately below, to the extent that they seek to raise matters not immediately apparent in the “grounds” of the application.
Consideration
Given the nature of the applicants’ “orders sought” and “grounds” of the application, it is convenient to address these in the following way.
One, the applicants assert that the Tribunal’s decision was not “considerable, persuasive and comprehensive”.
If this was possibly meant as some complaint that the Tribunal did not consider all of the claims made, then such a complaint cannot be sustained in light of the evidence before the Court. The Tribunal did consider all of the claims to fear harm.
However, it would appear, having regard to the first applicant’s professed “shock” about the Tribunal’s assessment of her credibility, and the information before it, that what is meant by the applicants is that the Tribunal’s decision was not comprehensive and the like, because it did not find favourably for them.
This of itself, therefore, is no more than a disagreement with the facts as found by the Tribunal, and without more does not reveal jurisdictional error. The matters of the credibility assessment and information before the Tribunal are dealt with below.
Two, the applicants complain about the Tribunal’s findings concerning the first applicant’s claim to being a Christian, who was, and is, a member of the underground Catholic Church. The applicants focused on [86] – [90] (CB 376) of the Tribunal’s decision. A number of points are raised by the applicants here.
First, that the Tribunal misinterpreted the first applicant’s evidence in relation to her husband’s employment resignation. This was apparently with reference to the Tribunal’s decision record at [86] (at CB 376).
What the Tribunal relevantly found was that the first applicant’s evidence relating to the claim of being a practising Catholic in the past in China was “vague and evasive”. It found her evidence at the hearing to be “inconsistent”. It gave an example. This was the first applicant’s description of how her husband resigned from his employment so as to be able to monitor her religious activities, with which he did not agree.
By orders made by a Registrar of the Court on 16 March 2017, the applicants were given the opportunity to file any evidence by way of affidavit, including any transcript of the Tribunal hearing. The order was made with the consent of the applicants.
No evidence by way of affidavit has been filed by the applicants to date. No transcript of the Tribunal hearing has been put into evidence. Nor, given the reference to the audio of the Tribunal hearing in the applicants’ written submissions, was any reference made to it by the first applicant at the hearing before the Court. Nor did she seek to tender any such evidence at the hearing.
What remains, therefore, is that the only evidence before the Court of what occurred at the Tribunal hearing, are the Tribunal’s references in its decision record.
On that evidence, the applicants’ assertion now cannot be made out. The impugned conclusion at [86] (at CB 376) was based on evidence given by the first applicant, as set out at [49] – [50] and [55] at CB 370 to CB 371.
The first applicant may well believe that her evidence was not inconsistent, but the Tribunal’s finding was reasonably open to it on what was before it.
Second, the applicants complain about the Tribunal’s “judgement” about the first applicant’s understanding of the Catholic faith. The complaint is that the Tribunal’s assessment was “unrealistic” and made by “an unbeliever or a pagan”.
The Tribunal’s consideration of the applicant’s claimed Catholic faith and practice is set out at [87] – [97] (at CB 376 to CB 378). Again, despite opportunity, the applicants have not provided any evidence to the Court to challenge the Tribunal’s account of what occurred at the hearing.
On the evidence that is available (see at [47] – [48] at CB 370 and [51] – [52] at CB 370 – CB 371) the Tribunal’s finding that the first applicant’s knowledge of the faith is, and was, “rudimentary”, was reasonably open to it on what was before it. The Tribunal’s analysis was logical and probative of the material before it ([87] – [88] at CB 376).
As the Minister submits, this is not a case where the Tribunal imposed some arbitrary standard about what the first applicant must know about Catholicism so as to be recognised as a Catholic adherent. (See Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108; (2010) 187 FCR 362 at [35]-[38] per Kenny J).
The Tribunal was entitled to explore with the first applicant what she knew about her claimed religion. (See SBCC v Minister for Immigration & Multicultural Affairs [2006] FCAFC 129 at [47], Minister for Immigration and Citizenship v SZOCT [2010] FCAFC 159 at [41], [50] per Buchanan J, MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80 at [47]).
Third, the applicants complain that, in effect, the Tribunal failed to make further inquiries to obtain “testimony” or proof from the “church party or other resources”, to show that the first applicant was a practising Catholic. The complaint is that the Tribunal was obliged to do so.
It is the case that there is no general duty on the Tribunal to make further inquiries so as to make out an applicant’s claim (Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 (“SZIAI”) at [25] and Minister for Immigration & Citizenship v SZGUR [2011] HCA 1 at [20], [74]). It is for the applicant to give the Tribunal sufficient material so that the Tribunal can be satisfied as to the claim made.
Nor is this a case where the limited obligation to make inquiries, as explained in SZIAI, is enlivened. The applicants do not now explain how such an inquiry could be carried out with reference to “other resources” (for “church party”, see below).
Ultimately, the best source as to the first applicant’s understanding of her claimed religious faith, was the first applicant herself. There is nothing in the evidence before the Court to indicate that she was denied a fair opportunity to explain her beliefs and practices.
Fourth, the applicants appeared to have not understood that while the Tribunal had concerns with the first applicant’s inability to demonstrate knowledge about her claimed religious beliefs, consistent with what would be expected of someone who claimed to have been a Catholic practitioner in China for many years, the Tribunal did accept that the first applicant (and the second applicant for that matter) had attended Catholic Church in Australia since their respective arrivals ([89] at CB 376).
This was based on the relevant documentary evidence provided from these churches. The applicants' complaint that the Tribunal ignored the “church references” must be rejected. Nor was the Tribunal required to make any further enquiry given that it accepted what the references stated.
To the extent that this is used as an example of the claim that the Tribunal was prejudiced against them, then such a claim is baseless.
Fifth, what the applicants have also failed to understand, given the claims in the “orders sought”, is that the Tribunal’s finding that they would not suffer significant harm on return to China, for reason of the church attendance in Australia, was reasonably open on the country information before the Tribunal, and for the reasons it gave (see further below). In all, the complaints regarding the Tribunal’s assessment of the first applicant’s claim to be a Catholic do not reveal jurisdictional error.
Three, the first applicant asserts that she does not think that she provided any false or misleading statements to the Tribunal, in relation to the sensitive issue of family violence in China. The complaint appears to be that the Tribunal misunderstood the “reality” of what had happened to the first applicant, and the cultural differences between rural China and Australia. The complaint directs attention to [94] – [106] (at CB 377 to CB 379) of the Tribunal’s decision.
At this part of its decision record, the Tribunal considered the first applicant’s claim to fear harm on return to China from her husband, because of his abuse of her in the past.
The applicants appear not to have understood that the Tribunal accepted that the first applicant had had a “difficult relationship” with her husband before she left China (in 2007) ([94] (at CB 377).
Further, it also accepted that family violence is a significant problem in China, and if the first applicant were to return to her home village, that she may be at risk of physical harm from her husband ([97] (at CB 378).
The Tribunal, however, found that she could reasonably, and safely, relocate to another province, which was the home province of her current de facto partner ([98] – [102] at CB 378 to CB 379). This was reasonably open to the Tribunal on what was before it. The Tribunal’s finding here was not inconsistent with the relevant principles set out in SZATV v Minister for Immigration and Citizenship [2007] HCA 40.
It is clear that, contrary to the applicants’ assertion now, the Tribunal did not make any adverse finding as to the first applicant’s credibility in relation to her claimed fear because of domestic violence in China.
Four, the complaint in the ground also appears to confuse the Tribunal’s findings on domestic violence and relocation with the separate claims relating to her claims to fear harm on the basis of her current relationship being deemed to be “bigamous” by the Chinese authorities (see at [103] – [106] at CB 379).
It is here where the Tribunal made adverse findings as to the credibility of the first applicant’s evidence, in relation to when she divorced her husband, and whether she was still married when she had a child (to the second applicant) in 2014 in Australia.
Again the Tribunal’s finding as to the character of the first applicant’s evidence was, on the evidence before the Court, reasonably open to it for the reasons it gave (see [106] at CB 379 and [41] – [44] at CB 369). In all, no jurisdictional error is indicated in this regard.
Five, the applicants assert that the Tribunal failed to give “realistic consideration” to the claim that the first applicant would suffer social discrimination and stigma as an unmarried mother, and that the third applicant would also suffer discrimination. The complaint directs attention to [109] – [115] (at CB 389 – CB 390) of the Tribunal’s decision. Given the mistakes in paragraph numbering in the Tribunal’s decision record, it appears the complaint is directed to the entirety of [108] at CB 379, and through [83] – [108] at CB 380 – CB 389, and [109] – [115] at CB 389 – CB 390.
The issue arising from this complaint, and having regard to the first applicant’s oral submissions before the Court, appears to be a dispute with country information referred to by the Tribunal, and an expression of grievance with the various factual findings made by the Tribunal.
As to the first matter, as the Minister submits, the choice of, and weight to be assigned to, country information, is for the Tribunal to assess and weigh in the proper exercise of its jurisdiction (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]-[13], SZUFQ v Minister for Immigration and Border Protection [2017] FCA 15 at [62], Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27] and Aporo v Minister for Immigration and Citizenship [2009] FCAFC 123 at [45]).
The Tribunal’s analysis of the applicants’ claims in this context was probative of the evidence of the first and second applicants. The Tribunal gave reasoned and logical explanations for its findings, and as those findings arose from country information before it.
As to the second matter, this no more than an expression of grievance with the Tribunal’s findings, and in reality a request for impermissible merits review. In all, the Tribunal did give “realistic” consideration to the claims to fear harm.
Six, the three stated grounds of the application to the Court are, in essence, an outline, and restatement, of some of the applicants’ claims before the Tribunal. At best, this is another attempt to engage in impermissible merits review. No jurisdictional error is revealed.
The applicants’ written submissions are an expression of a strong disagreement with findings made by the Tribunal, and contain a baseless allegation (in light of the state of the evidence before the Court) of bias on the part of the Tribunal. In seeking to discern some order from the narrative in the written submissions, the following complaints appear to emerge.
One, the Tribunal did not understand Chinese marriage law and, in particular, as it related to the first applicant’s claim that she would be prosecuted for bigamy.
This directs attention to [108] (CB 379) to [84] (CB 380 – CB 382) of the Tribunal’s decision record. Here the Tribunal set out country information to which it said it had regard. The fact that the Tribunal preferred that country information over what the applicant said Chinese lawyers would say about bigamy in China was a matter for the Tribunal.
In this regard, I also note that in documents submitted by the first applicant to the Tribunal, she provided a typed statement as to the effect of Article 258 of the Chinese Criminal Law in relation to bigamy. (The sixth dot point of [36] at CB 368).
The Tribunal specifically referred to country information concerning this article (see [84] at CB 380.5). Again, no jurisdictional error is revealed given that the choice of country information is for the Tribunal to determine. (See VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).
In any event, given, also, the first applicant’s oral submissions to the Court, the real complaint here is with the factual findings made by the Tribunal. As these were reasonably open to the Tribunal on what was before it, no jurisdictional error is revealed.
I note that the applicants’ written submission make reference to the audio of the hearing with the Tribunal. The applicants have not, despite opportunity to do so, sought to put any transcript of the Tribunal hearing before the Court. Nor was any affidavit filed seeking to put such a recording into evidence. Nor did the first applicant refer to the audio in her oral submissions to the Court, let alone seek to produce it to the Court.
In any event, for current purposes, the assertion in the submissions is that the audio would show that the Tribunal misunderstood Chinese law, and this was revealed by what the Tribunal member relevantly said at the hearing.
Importantly, there was no explanation by the first applicant before the Court as to how, or in what way, the Tribunal misunderstood the law, and as to how that would be revealed in the audio.
On the evidence that is before the Court, the Tribunal did have regard to the document concerning the bigamy law, and further, articles about it. Simply, the Tribunal relied on country information which led it to make the findings it did in light of the first applicant’s evidence to it. This complaint really, again, is a challenge to factual findings made by the Tribunal, which were reasonably open to it and probative of the evidence, and for which it gave rational and logical reasons.
Two, the second issue in the written submissions appears to be as follows. The Tribunal applied its own subjective view of how a mother should, or would, act. The first applicant complains, although it is not entirely clear, that at the hearing the Tribunal “repeatedly mentioned” that if she were to return to China and visit her eldest daughter, then this would put her other two children (born in Australia) at risk.
Before the Court, the complaint appeared to be about [101] of the Tribunal’s decision (at CB 378 – CB 379):
“101. The primary applicant claims that she wishes to visit her daughter in China and then her ex-husband would physically harm or even kill her. The Tribunal does not accept this claim. The Tribunal accepts that the primary applicant misses her daughter and suffers some emotional pain about her separation from her daughter. However, she left her three year old daughter in the care of her ex-husband and his family in 2007 and has only had phone contact since then. Her daughter is now 12 years old. The Tribunal does not accept the primary applicant's assertion that she would place her own life at risk in order to visit her daughter, particularly as this would result in all three of her children losing their mother. The Tribunal found the applicant's responses to this question to lack credibility and her claims that her husband would possibly kill her to be fabricated for the purpose of her claim for protection. The Tribunal accepts that the applicant would suffer mental pain at having to remain separated from her daughter until such time as her daughter was old enough to visit her mother independently, but this does not amount to 'significant harm' as defined in in s.36(2A): s.5(1). The primary applicant has not given evidence that there is any dispute between her and her ex-husband about her daughter.”
[Error in the Original.]
It must be said that there is nothing here to indicate that the Tribunal imposed its own views of motherhood on the first applicant, or applied these subjective views to its analysis. Nor, relevant to the complaint as expressed before the Court, did the Tribunal insist to the first applicant that she would bring her other two children to see her eldest child and therefore put them in danger.
Rather, what the Tribunal reasoned was that, in the circumstances (she had left her eldest daughter, who was three years old at the time, with her husband’s family, and not seen her for 10 years) she would not put her own life at risk in order to visit her daughter.
The reference to her other two children was that the Tribunal’s finding was reinforced by the fact that the first applicant would not put her own life at risk, and deprive her children (including her eldest daughter) of their mother, that is, the first applicant. In all, no jurisdictional error is revealed here.
Three, the written submissions assert that the Tribunal member was prejudiced. Before the Court, the first applicant’s oral submissions on this point could only be understood as an assertion of actual bias on the part of the Tribunal member.
The test for bias is well settled (Minister for Immigration v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 (“Jia Legeng”), Ebner v The Official Trustee in Bankruptcy [2000] HCA 63 at [6]). In the case of actual bias, said to arise from prejudgment by the decision maker, such a complaint must be: “...distinctly made and clearly proved” (Jia Legeng at [69] and [127]). This is because an allegation of bias, in contrast to other assertions of legal error, is extremely serious to make, because it is directed to the very integrity of the relevant decision maker.
In the current case, it is clear that the first applicant’s allegation derives from her own unwillingness, or inability, to understand and accept the Tribunal’s reasoning and findings.
It is perhaps understandable that a person aggrieved with a Tribunal decision would seek to characterise the reason for their lack of success before the Tribunal as being because of bias on the part of the Tribunal member. However, bias is not indicated, let alone made out, simply because an applicant is aggrieved with the Tribunal’s decision. In the current case there is nothing to indicate bias on the part of the Tribunal member.
In his submissions, while acknowledging that the first applicant’s assertions were of actual bias, the Minister suggested the Court should consider the complaint in light of an assertion of apprehended bias.
It must be said this is not how the first applicant made her complaint. In any event I cannot see, having regard to the relevant authorities (Jia Legeng, SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 (“SBBS”), VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102 (“VFAB”) and Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 (“Ex parte H”) at [27]-[28]) that such a claim can be made out.
In all, as the Minister otherwise submits, I cannot see on the evidence before the Court that the Tribunal member might not have conducted the review other than: “…as the result of a neutral evaluation of the merits” of the applicants’ claims (Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 at [58] per Gageler J).
Many of the matters raised in oral submissions before the Court by the first applicant have been considered, as set out above. The additional matters were as follows.
One, the first applicant submitted that the current government leader in China has now “cracked down” on underground churches.
This cannot assist in revealing jurisdictional error in the Tribunal’s decision. This submission, even if true, postdates (on what the first applicant indicated) the Tribunal’s decision. In any event, the submission rises no higher than the request for this Court to, impermissibly, substitute its own findings of fact for those of the Tribunal.
Two, to the extent that the first applicant generally took issue with the Tribunal’s adverse credibility findings, then there is nothing in the evidence before the Court to indicate that the Tribunal arrived at those findings in a fashion contrary to what is explained in relevant authorities (CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [36]-[44], ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109 at [83](b), DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30], Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 at [56], and SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089 at [14]-[15]).
Three, the first applicant complained that the Tribunal member “selectively” chose country information on which to rely, and did not take into account what she said.
The matter of country information is addressed above. As to the second element in this complaint, in the circumstances presented in the evidence before the Court, it is not that the Tribunal did not take into account the first applicant’s evidence, rather, that in some particulars it did not accept that evidence as a basis for making favourable findings for the applicants.
As set out above, the Tribunal’s findings were all reasonably open to it on what was before it. The Tribunal gave intelligible reasons for making those findings, probative of the evidence before it. No legal error is revealed in this regard.
Conclusion
In all, no jurisdictional error is revealed in the Tribunal’s decision. It is therefore appropriate to dismiss the application to the Court. I will make that order.
I certify that the preceding one hundred and eighteen (118) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 12 November 2019
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