SZFVA v Minister for Immigration
[2005] FMCA 1228
•30 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFVA v MINISTER FOR IMMIGRATION | [2005] FMCA 1228 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal ignored or misunderstood relevant material or failed to take into account relevant evidence – whether Tribunal decision illogical or unreasonable – whether Tribunal failed to ask the correct question – whether actual or apprehended bias. |
| Migration Act 1958, s.424A(1), s.474(1) |
| SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 Careem v Minister for Immigration & Multicultural Affairs (1999) 58 ALD 343 Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 at 558-559 Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] ALR 264 NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 Minister for Immigration & Multicultural & Indigenous Affairsv NAMW [2004] FCAFC 264 WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 Minister for Immigration & Multicultural Affairs v Jia (2001) 178 ALR 421 SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32 |
| Applicant: | SZFVA |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG550 of 2005 |
| Judgment of: | Barnes FM |
| Hearing date: | 11 August 2005 |
| Delivered at: | Sydney |
| Delivered on: | 30 August 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr B. Saunders |
| Counsel for the Respondent: | Nil |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
That the Refugee Review Tribunal be joined as a respondent to the proceedings.
That the application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG550 of 2005
| SZFVA |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 1 July 1999 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa. Consistent with the decision of the High Court in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 the Tribunal should be joined as a respondent to these proceedings.
The applicant, who is a citizen of the Peoples Republic of China, arrived in Australia in February 1998 and applied for a protection visa. The application was refused and the applicant sought review by the Tribunal. In a statement accompanying his protection visa application the applicant claimed to fear persecution as a result of his membership of and activities in a religious sect known as Yi Guan Dao whose followers believed that the end of the world was near. He claimed that he took part in activities organised by the group such as weekend meetings and study, that the Chinese government ordered all churches to register and that Yi Guan Dao was not officially acknowledged by the Chinese government. He claimed that he “founded a house church” at his home to continue with his religious activities and that during a crackdown this religious practice was detected by the Public Security Bureau (PSB) in December 1997. He and other participants at a meeting were arrested by the police. He claimed that he had been released after paying a heavy fine to the PSB and had then obtained a visa to come to Australia. He claimed that because he had participated in underground religious activities he could be persecuted “as attempting to overthrow” the communist government if he returned to China. He also claimed to fear that he could be charged under Chinese laws and that his fear was well founded due to living under a lawless society and inhuman political system controlled by the Chinese communist party.
The applicant attended a Tribunal hearing on 21 April 1999. The Tribunal recorded that at the hearing the applicant confirmed that the statements in his protection visa application were “basically correct”, but added that his grandfather had been involved in Yi Guan Dao and had been sentenced to 20 years imprisonment in the 1950s, that another five years had been added to his sentence at the time of the Cultural Revolution and that he had died in prison. He claimed that his father had also been persecuted during the Cultural Revolution. The applicant also told the Tribunal that he had joined Yi Guan Dao in 1994 but “their activities had been rather limited” and that since coming to Australia he had joined Tien Tao which he said was the same as Yi Guan Dao. He also told the Tribunal that he had joined the China Democratic Party on 16 August 1998. The Tribunal recounted aspects of the applicant’s evidence about his claims and matters it had put to him.
The Tribunal did not find the applicant to be a credible witness. It gave reasons for this finding. First, as discussed below, it considered that his answers at the hearing as to the number of people who supposedly gathered at his home for meetings demonstrated that he was prepared “to tailor his evidence to what he perceived to be his advantage”. The Tribunal also found that the applicant was vague as to the essential elements of Yi Guan Dao and that the activities in which he said he had taken part would fit within the mainstream of Buddhist beliefs in China. He had described Yi Guan Dao as a branch of Buddhism although also said that its beliefs were the same as Tien Tao which country information indicated was a syncretistic faith. Based on country information the Tribunal did not accept that it was plausible that the applicant would have “got into trouble” with the authorities in China for having small gatherings of seven or eight worshippers in his home as he claimed. The Tribunal did not accept the applicant’s subsequent claims that the gatherings were sometimes larger, comprising more than 20 or even more than 30 people. It considered his evidence in this regard to be self-serving.
The Tribunal did not accept that the applicant was placed under surveillance following the arrest of other members of his group in August 1997, that he himself was arrested in December 1997 and accused of conspiring to overthrow the government or that he was under surveillance at the time he left the country in 1998. It found that, given the usual stringency of border checking in China, it did not accept that the applicant would have been able to leave China travelling on a passport in his own name if he had indeed been under surveillance at the time as claimed. The Tribunal had regard to the applicant’s explanation as to why he had been able to leave China (because he was not on a wanted list and had left the country at a time when monitoring was loosened) but found that if the applicant was sufficiently important for the authorities to place him under surveillance as claimed, although he stated he was never charged with any offence, the Tribunal preferred the advice of the Australian Department of Foreign Affairs and Trade that it was improbable that he would have been able to leave China travelling on a passport in his own name.
The Tribunal went on to find that having regard to the view it had formed of the applicant’s credibility it did not accept his claim that he joined the China Democratic Party (CDP) in August 1998. It took into account the fact that he was vague with regard to the aims of this party and that he did not claim to have had any deep involvement with political activities in China in the past other than shouting slogans at the time of the pro-democracy movement in 1989. Further, the Tribunal found that even if it were to accept that the applicant had joined the CDP, it would not accept that this would result in the adverse attention of the authorities if he were to return to China now or in the reasonably foreseeable future based on independent country information and the fact that there was nothing to suggest that the applicant had any degree of public influence or recognition before he left for overseas such as would attract the attention of the authorities by reason of his membership of the CDP.
For completeness the Tribunal considered the applicant’s claims as an adherent of Yi Guan Dao and as a member of the CDP in totality. However it found that, even taking into account the cumulative effect of such circumstances, it was not satisfied the applicant had a well-founded fear of persecution for a Convention reason if he returned to China. The Tribunal affirmed the decision not to grant the applicant a protection visa.
The applicant sought review of the Tribunal decision by application filed in this Court on 1 March 2005. He now relies on an amended application filed on 5 August 2005. He swore an affidavit on 8 August 2005 addressing the delay in instituting these proceedings.
The amended application raises seven grounds followed by six particulars. However in the course of oral submissions counsel for the applicant indicated that he no longer sought to rely on ground seven (that the Tribunal failed to carry out is function in a bona fide manner). The remaining grounds of the application are expressed generally: that the Tribunal ignored or misunderstood relevant material, failed to take into consideration or understand relevant favourable evidence, that the decision was not made on reasonable grounds, that the decision was illogical, that the Tribunal failed to ask the proper questions and that the Tribunal member was biased against the applicant. It is apparent from the particulars and the applicant’s submissions that in essence it is contended that the Tribunal fell into error in its treatment of four separate issues and also that overall the Tribunal findings and statements establish that the Tribunal was biased or that there was a reasonable apprehension of bias giving rise to jurisdictional error. It is convenient to deal with these contentions under the headings adopted in the applicant’s written submissions.
The credibility issue
It was contended first that the Tribunal fell into jurisdictional error in finding that the applicant was not a credible witness on the basis that he was prepared to tailor his evidence to what he perceived to be his advantage. It was submitted that the Tribunal had gone on to reject explicitly other aspects of the applicant’s claims on the basis of this credibility finding (such as his claimed membership of the CDP) and that it appeared to have rejected other aspects of his claim based on implicit reliance upon the credibility finding (such as his claims about surveillance and arrest) but that the matters upon which the Tribunal made its credibility finding were not logically probative of the issues of credibility, that the Tribunal finding was not based on rational grounds and that the Tribunal ignored or misunderstood the relevant evidence of the applicant. It was argued that in such circumstances it was open to the Court to find that the credibility finding was vitiated by jurisdictional error.
Issue was taken with the manner in which the Tribunal dealt with the applicant’s evidence about people gathering at his home. It was submitted that the applicant had indicated that normally it was seven to eight people who would gather at his home but that sometimes there would have been more than 20 and sometimes there would have been more than 30 and that the evidence supported that the applicant was attempting to give the most accurate estimate of people present. It was contended that the Tribunal had put to the applicant that the Chinese government permitted small groups of 10 to 20 persons to gather and worship privately in their homes and that the finding that the applicant was prepared to tailor his evidence to what he perceived to be his advantage did not account for why he gave evidence that “sometimes there would have been more than 30”. It was submitted that his claim that he held meetings at his home was never challenged. Nor was his claim that the meetings sometimes included more than 30 people and in those circumstances it was said to be “improper” for the Tribunal to find that the applicant was prepared to tailor his evidence to what he perceived to be his advantage. The applicant contended that there was no evidence that there was any internal inconsistency in the evidence of the applicant on this issue.
There are a number of difficulties with this claim. First the Tribunal did not base its adverse credibility finding solely on the applicant’s preparedness to “tailor” his evidence to what he perceived to be his advantage based on his answers as to the number of people who supposedly gathered at his home. While this was one of the factors taken into account, the Tribunal went on to refer to other matters such as the vagueness on the part of the applicant as to the essential elements of Ye Guan Dao and their activities, his lack of knowledge about the beliefs of Tien Tao and the lack of plausibility in the claim that he would have “got into trouble” with the authorities in China for having small gatherings of seven or eight worshippers in his own home based on country information. The Tribunal had regard not only to the “self-serving” nature of part of the applicant’s evidence in relation to the size of gatherings at his home but also to the inconsistency of his claims about surveillance with the fact that he had been able to leave China travelling on a passport in his own name and country information in relation to border checking in China.
The only evidence before the Court of what occurred in the Tribunal hearing is the Tribunal reasons for decision. The applicant does not suggest that the Tribunal reasons for decision do not accurately record what happened at the hearing. As to the particular issue of his evidence as to gatherings at his own home, it is important to note that the Tribunal reasons record that in the hearing, after a discussion of the essential elements of Yi Guan Dao and a question about the applicant’s religious activities, the following exchange occurred:
The Applicant said that he himself had been detained in December 1997 because the fortnightly gatherings had been held in his house. I asked him how many people would gather in his house on these occasions and he said seven or eight.
Questioning then addressed his claims about what happened after he had been arrested. The reasons for decision record that a number of other issues were discussed and then continue:
I put to the Applicant that the information available to me was that the Chinese government generally permitted small groups of 10 to 20 persons to gather and worship privately in their homes (US State Department, Bureau of Democracy, Human Rights and Labor, China, Profile of Asylum Claims and Country Conditions, 14 April 1998, Part III, Section B, Claims Based on Religion). The applicant said that normally it was 7 to 8 people who had gathered at his home but that sometimes there would have been more: it would have been more than 20. I put to the Applicant that it appeared to me that if I had said that the Chinese government permitted groups of up to 30 people to meet he would have said that more than 30 people had met at his home. The Applicant said that sometimes there would have been more than 30.
I put to the Applicant that what I was saying was that it was implausible that he would have got into trouble for having these sorts of gatherings in his home. The Applicant said that they had only had troubles after some of their members had been arrested. They knew Yi Guan Dao was banned. I put to him that Yi Guan Dao was not banned. It was not officially recognised but the government permitted unofficial groups to meet in their own houses … The Applicant said that this permission was limited: if they had had more people it would not have been allowed.
It is apparent from the Tribunal reasons for decision that the applicant initially made a clear and unqualified statement that seven or eight people gathered at his house fortnightly. In other words he did not initially state, as is now contended, that normally it was seven to eight people but sometimes there would have been more than 20. Rather this qualification was suggested after the Tribunal later put to the applicant independent information to the effect that the government generally permitted small groups of 10 to 20 persons to gather and worship privately. Hence the claim that the gatherings were larger than seven to eight people was only made in response to the Tribunal raising independent country information which would have suggested that a gathering of seven to eight people was not such as to lead to difficulties with the authorities in China. Further, the applicant did not claim that more than 30 people met at his home until after the Tribunal said that it appeared that if it had said that the government permitted groups of up to 30 people to meet, the applicant would have said that more than 30 people had met. This claim was not made either on the first occasion the issue of the number of people meeting arose or when the applicant subsequently suggested that more than 20 people would have met at his home. In light of the manner in which the applicant made these claims it was open to the Tribunal to find that the applicant was prepared to “tailor” his evidence to what he perceived to be his advantage and to reject as self-serving his evidence that the gatherings were sometimes larger than seven to eight people. The Tribunal findings in relation not only to the applicant’s evidence about the number of people who gathered at his own home but also more generally in relation to his credibility were open to the Tribunal. Credibility is a matter for the Tribunal par excellence (Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407). The findings were open to the Tribunal on the material before it for the reasons that it gave (Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 at 558-559). Contrary to the contention of counsel for the applicant it has not been established that the Tribunal ignored or misunderstood the relevant evidence of the applicant or that it made its credibility finding based on matters which were not logically probative or that its findings were not based on rational grounds: see Careem v Minister for Immigration & Multicultural Affairs (1999) 58 ALD 343 at [9].
In relation to this and the following grounds counsel for the applicant has categorised a number of Tribunal findings in terms of illogicality, irrationality or unreasonableness. In that respect I note the observations of Gleeson CJ in Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [9]:
To describe as irrational a conclusion that a decision-maker is not satisfied of a matter of fact, or a state of affairs, because the decision-maker does not believe the person seeking to create the state of satisfaction, or to describe the process of reasoning leading to such a conclusion as illogical, on judicial review of an administrative decision, might mean no more than that, on the material before the decision-maker, the court would have reached the required state of satisfaction. Ordinarily, however, it will be necessary to go further, as in the respects mentioned by Dixon J. If, in a particular context, it is material to consider whether there has been an error of law, then it will not suffice to establish some faulty inference of fact. On the other hand, where there is a duty to act judicially, a power must be exercised “according to law, and not humour”, and irrationality of the kind described by Deane J in Australian Broadcasting Tribunal v Bond may involve non-compliance with the duty. Furthermore, where “the true and only reasonable conclusion contradicts [a] determination” then the determination may be shown to involve legal error. It is often unhelpful to discuss, in the abstract, the legal consequences of irrationality, or illogicality, or unreasonableness of some degree. In a context such as the present, it is necessary to identify and characterise the suggested error, and relate it to the legal rubric under which a decision is challenged.
In any event, in this instance no irrationality of the kind discussed by Deane J in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 367 has been established. (Also see Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 at [37], [52] and [173] and Allsop J in NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] ALR 264 at [129] to [135]). It has not been established that the Tribunal failed to reach its state of satisfaction in a reasoned fashion, acted capriciously or reached an opinion “arbitrarily or by whim or, with the exception of proper credit findings, by intuition” (NADH per Allsop J at [135]) either in making the findings challenged under this ground or (as discussed below) otherwise. Nor has it been established that the Tribunal determination was “irrational, illogical and not based on findings or inferences of fact supported by logical grounds” (Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32 at [38] per Gleeson CJ). The Tribunal laid a foundation for the findings it made based on country information and its observations of the way the applicant answered particular questions.
It has not been established that the credibility finding was vitiated by jurisdictional error in the manner contended. The contention that the way in which the Tribunal put various propositions to the applicant showed that the member was attempting to damage the credibility of the applicant in a manner constituting bias or giving rise to an apprehension of bias is discussed below.
The surveillance issue
It was contended that the Tribunal fell into jurisdictional error by finding that the applicant was not “placed under surveillance following the arrest of other members of his group in August 1997 … [and] …under surveillance at the time he left the country in 1998”. It was submitted that the “surveillance” finding ignored or misunderstood relevant material, failed to take into consideration or understand relevant favourable evidence, was illogical and unreasonable and was “informed by the wrong question”.
It was submitted first that the finding in relation to surveillance was influenced by the credibility finding which was itself vitiated by jurisdictional error. This aspect of the claim is addressed above. No error is established by this contention. Rather the adverse credibility finding was based on a number of matters and has not been shown to be affected by error.
It was then contended, apparently on the basis that it did not make specific findings of fact rejecting each of these particular claims, that the Tribunal appeared to have accepted a number of aspects of the applicant’s claims about Yi Guan Dao and his activities. In particular it was claimed that the Tribunal appeared to have accepted the applicant’s claim that he joined Yi Guan Dao in 1994, founded a church at home, that two members were arrested before he obtained a visa, that Yi Guan Dao was not officially acknowledged by the Chinese government, that the neighbourhood committee had paid attention to people going in and out of his home and that the police had come to his home to see the statues of the gods he had there. It was contended that if the Tribunal did not accept such claims it had failed to cite an evidentiary basis for rejecting those claims, to provide adequate reasons why those claims were rejected or to provide the applicant with an opportunity to comment on the basis for such rejection.
However, what was critical in relation to the applicant’s claims to fear persecution based on his activities with Yi Guan Dao was that the Tribunal did not accept that he was placed under surveillance following the arrest of other members of his group in August 1997, that he himself was arrested in December 1997 and accused of conspiring to overthrow the government or that he was under surveillance at the time he left the country in 1998. At the same time it found that it was not plausible that he would have got into trouble with the authorities in China for having small gatherings of seven or eight worshippers in his own home. The Tribunal specifically considered the applicant’s circumstances as an adherent of Yi Guan Dao in a manner which proceeded on the basis of accepting that he was such an adherent. It was not necessary for it to make specific findings on aspects of his claims not critical to its decision.
As the Full Court of the Federal Court pointed out in WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 at [46] it is not necessary for the Tribunal to refer to every contention made by an applicant in its reasons and “there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact” (cf Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason”.
In this instance it was not necessary for the Tribunal to make specific findings on those aspects of the claims (such as that he had joined Yi Guan Dao and founded a church at home) that were consistent with its acceptance of the applicant’s claimed adherence to Yi Guan Dao and its consideration of the totality of his circumstances as an adherent. Such matters were “subsumed in findings of greater generality” (WAEE at [47]).
As to the claim by the applicant that Yi Guan Dao was not officially acknowledged by the Chinese government, in its outline of the evidence before it the Tribunal observed that in practice the Chinese government imposed restrictions on religious practice outside the officially recognised and government-controlled religious institutions and that (as the applicant had been advised in the decision of the delegate) the Australian Department of Foreign Affairs and Trade had confirmed that the religion to which the applicant claimed to belong, Yi Guan Dao, was not currently registered with the Chinese authorities and indeed was banned when the Communist party came to power in 1949. In other words the Tribunal did not reject this aspect of the applicant’s claims. However, as it went on to state, country information from the Department also advised that adherents of Yi Guan Dao would face only a very remote chance of being persecuted in China unless they intended to practise their religious beliefs in a way which the authorities considered to be anti-government. It was in the context of this country information that the Tribunal was not satisfied that the applicant’s circumstances as an adherent of Yi Guan Dao having small gatherings of seven or eight worshippers in his own home would provide a basis for a well-founded fear of persecution. Similarly it was in light of such information (and information about border checking) that the Tribunal rejected the applicant’s claim to have been placed under surveillance following the arrest of other members of his group. It was not necessary for the Tribunal to address the particular claims about the arrest of others, or the interest of the police or neighbours beyond this finding. Insofar as explicit findings were not made on the issues raised in this ground no jurisdictional error is established.
Nor was it necessary for the Tribunal to give the applicant the opportunity to comment on the basis of its rejection of those claims which it did not accept. The Tribunal is not obliged to put its thought processes to the applicant for comment either under s.424A(1) of the Migration Act 1958 or under natural justice principles.
It was contended for the applicant that country information in relation to the government’s suppression of unofficial churches, particularly in the part of China from which the applicant came and the evidence that Yi Guan Dao was banned as an anti-government organisation, was evidence to suggest that followers of Yi Guan Dao were likely to be subject to surveillance and that in light of this independent information there was no reasonable basis for the Tribunal to find that the applicant was not under surveillance following the arrest of other members and at the time he left the country. Reference was made to a DFAT report of 21 June 1991 (CX44) in relation to religion in China in support of this contention. The part of that report relating to the government’s attitude to unofficial churches deals with the government’s attitude to unofficial Christian churches. The report deals elsewhere with Buddhism (and the applicant claimed that Yi Guan Dao was a branch of Buddhism). While the report does state generally that, particularly in some areas, the authorities had stepped up the repression of unregistered religious activities, a subsequent report of 13 October 1994 (CX3020) also referred to by the Tribunal, not only stated that Yi Guan Dao was banned as an anti-government organisation in the early 1950s but also that followers of Yi Guan Dao practice their faith in private with no apparent anti-government agenda and, importantly, “the likelihood of the applicant being persecuted on his return would seem very remote, unless he intended to practice Yi Guan Dao in a way which the authorities considered to be anti-government”. In light of this information and the country information on departure procedures and exit conditions and the Tribunal’s rejection of the applicant’s claims to have done more than to have been an adherent to Yi Guan Dao and to have had groups of larger than seven or eight people in his home, the findings that the applicant was not under surveillance following the arrest of other members of his group in August 1997 or that he was arrested in December 1997 as claimed or that he was under surveillance at the time he left the country in 1998 were open to the Tribunal on the material before it. It has not been established that there was no reasonable basis or no basis for these findings, that they cannot be supported on the evidence, that the Tribunal ignored or misunderstood relevant material, that it failed to take into consideration or understand relevant favourable evidence or that the findings were illogical and unreasonable in a manner constituting jurisdictional error as contended. It has not been established that the Tribunal fell into jurisdictional error in its consideration of the “surveillance issue”.
The arrest issue
It was contended that the Tribunal fell into jurisdictional error by finding that the applicant was not “arrested in December 1997 and accused of conspiring to overthrow the government”. It was said that this finding ignored or misunderstood the relevant material, failed to take into consideration or understand relevant favourable evidence, was illogical and unreasonable and was informed by the wrong question. Again it was also contended that the finding appeared to be influenced by the credibility finding which was vitiated by jurisdictional error and again there is no basis for this claim. The crux of this contention appears to be that although the applicant was recorded by the Tribunal as having told it that he was “detained” in December 1997 he did not claim to have been “arrested” in 1997 yet the Tribunal made a finding about “arrest”. However in the applicant’s statement accompanying his protection visa application he claimed that in December 1997 “other participants and I were arrested by the police at the meeting”. The Tribunal did not fall into error in referring to the applicant’s claim as a claim that he was “arrested”.
It was also contended that the Tribunal erred in that the applicant was never questioned by the Tribunal in relation to the bail paid to secure his release or in relation to the accusations made against him whilst detained. First the factual basis for such a contention is not established in the absence of the transcript of the Tribunal hearing. This is not a case in which I am satisfied that an inference should be drawn on the material before the Court that the issue was not canvassed (see NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 and compare Minister for Immigration & Multicultural & Indigenous Affairsv NAMW [2004] FCAFC 264). While the applicant does not dispute the accuracy of the Tribunal account of the hearing this does not mean that the Court should infer that the account of what occurred is complete in all respects. The applicant swore an affidavit but gave no evidence about the hearing. There is no transcript before the Court. In any event, even if the applicant had established that these issues were not addressed, given that the Tribunal rejected the applicant’s claim that he was arrested, it is not clear how it can be said to have fallen into error in failing to address further consequences of an event which it found had not occurred. The Tribunal properly considered whether the applicant was, as he had claimed, arrested in December 1997. It also understood (as it recorded in its reason for decision) the applicant’s claim that after his arrest he had been detained. However given that the arrest claim was rejected, it did not need to go on to address what happened thereafter as contended. In fact the reasons for decision record that the Tribunal did ask the applicant whether he had ever been charged with any offence and he said that he had not but that after he had been bailed he was under surveillance. The Tribunal addressed his claim of surveillance. It was open to the Tribunal to ask questions concerning the detention or arrest of the applicant but it has not been established that the Tribunal erred in the manner in which it went about its task.
In the alternative it is argued that there was no reasonable basis for the Tribunal to find on the evidence before it that the applicant was not arrested in December 1997 and accused of conspiring to overthrow the government. However, as explained above, the Tribunal had found that it was not plausible and contrary to country information that the applicant would have “got into trouble” with the authorities in China for having small gatherings of seven or eight worshippers in his own home and rejected his subsequent claims that the gatherings were sometimes larger. In light of such findings, its rejection of his claim that he was arrested as claimed was open to it on the material before it. No jurisdictional error is established in the manner in which the Tribunal dealt with this issue.
The travel issue
It was contended that the Tribunal fell into jurisdictional error by finding that the applicant would not “have been able to leave China travelling on a passport in his own name if he had indeed been under surveillance” in that this finding ignored or misunderstood the relevant material and was illogical and unreasonable. It was acknowledged that the Tribunal reasons for decision indicated that the Tribunal had put to the applicant in the hearing that independent information from DFAT suggested that, given the usual stringency of border checks in China, it was improbable that people on wanted lists would be able to exit travelling on passports in their own names. However it was contended there was no evidentiary basis for the Tribunal’s finding. It was contended that the country information relied on stated “Generally speaking, individuals who have obtained Chinese passports and exit permits to leave China … have been thoroughly vetted by the security authorities … and we assume they would not be on any ‘wanted list’ if they were to return to China”. However it was submitted that the applicant did not claim to be on any wanted list, had in fact told the Tribunal that he was not on a wanted list and that there was no evidence indicating that he was on any wanted list or indicating that if one were under surveillance in China one would also be on a wanted list or precluded in any way from leaving China on a valid passport.
There are a number of difficulties with this contention. The part of the country information report (DFAT cable BJ15671 dated 12 February 1998, CX278 which was prepared in response to DFAT’s cable CE765911 of 2 December 1997 requesting information) referred to in the applicant’s written submissions is in fact part of a question, and quotes the views of the US State Department. The critical part of the DFAT country information report and the part that was put to the applicant in the Tribunal hearing (according to the reasons for decision) is part of the response by DFAT to the enquiry as to whether a dissident wanted by Chinese authorities could leave PRC using a Chinese passport issued by PSB in his/her own name and to some further questions about past escapes of dissidents from the PRC. The response was to the effect that the Department was unaware of any wanted dissidents leaving China over the last two years, that given the prevalence of corruption in China it was plausible that individuals could leave China on passports obtained through corrupt officials although “given the usual stringency of border checking in China, it is improbable dissidents on wanted lists would be able to exit on passports issued in their own names”.
The Tribunal clearly understood that the applicant claimed that he was not on any wanted list. It referred to his explanation about being able to leave China at the time of loosened monitoring during the Chinese spring festival. However it was open to the Tribunal on the material before it to find that if the applicant was sufficiently important to be placed under surveillance, even though he claimed that he was never charged with any offence, it was (on the basis of the country information) improbable that he would have been able to leave China travelling on a passport in his own name. It was also consistent with the information from the US State Department that those who had obtained Chinese passports and exit permits to leave China had been thoroughly vetted by the security authorities. The Tribunal did not find that the applicant was on a wanted list, but rather that if a person was under the sort of surveillance that the applicant claimed to be under it was improbable that he would have been able to leave China travelling on a passport in his own name. No jurisdictional error is established in the manner in which the Tribunal made this finding.
The bias issue
It was contended that the alleged jurisdictional errors and/or the cumulative conduct of the Tribunal member combined with the nature of certain statements and questions taken from the Tribunal reasons for decision indicated actual or apprehended bias on the part of the Tribunal member.
In Minister for Immigration & Multicultural Affairs v Jia (2001) 178 ALR 421 Gleeson CJ and Gummow J stated at [72]:
The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion.
Actual bias is not easily established. As von Dousa J stated in SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38] “It will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision”. The test for apprehended bias was discussed by the High Court in Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 426 at [27]-[31]. Relevantly, the test is formulated by reference to whether a fair-minded lay person properly informed as to the nature of the proceedings, the matters in issue and the conduct complained of might “reasonably apprehend” that the decision-maker “might not bring an impartial mind to the resolution of the question to be decided”.
In this instance no jurisdictional error has been established on any of the other grounds contended for by the applicant. There is no transcript of the Tribunal hearing before the Court. The only evidence of what occurred in the Tribunal hearing is the Tribunal summary of the conduct of the hearing. This means that the Court does not have before it the entire context in which issues were raised with the applicant. Nevertheless, even if the Tribunal hearing was entirely in accordance with the account that appears in the Tribunal reasons for decision, the aspects of the questioning with which the applicant takes issue, taken together and in conjunction with all of the findings and statements of the Tribunal is not such as to establish either actual or apprehended bias.
The applicant first takes issue with the following statement in the Tribunal decision:
I put to him that nevertheless his evidence was that he had not joined until he had been aged in his mid-thirties. The Applicant said that his parents had not wanted a second generation involved. They had been very strict with him and after he had married he had not had the time or the chance to seek further. Then by chance when he had been aged in his mid-thirties he had got the opportunity. I suggested to him that on the basis of this answer it would be fair to say that religion was not an important part of his life.
The applicant took particular issue with the last sentence, claiming that his case was founded on a claim of persecution because of the applicant’s membership of Yi Guan Dao, that he had given evidence that his grandfather had been gaoled for 20 years for being a member and had died in prison and that in that context the question indicated that the Tribunal member had closed his mind to the evidence being given by the applicant.
However it is necessary to have regard to the questions that led up to this passage. The Tribunal recorded that the applicant had claimed to have joined Yi Guan Dao in 1994. It asked him whether he had taken part in any religious activities before he joined Yi Guan Dao in 1994. The applicant said he had not, and the Tribunal had asked him what had made him decide to join Yi Guan Dao in 1994 in his mid-thirties. The applicant said that when he had been a child his mother had told him about Yi Guan Dao and that after he had grown up he had always wanted to seek Yi Guan Dao. Thereafter followed the passage set out above commencing “I put it to him”. In that context it is clear that the Tribunal’s suggestion relates to the fact that it was not until he was aged in his mid-thirties that the applicant took up religion. This is apparent from the applicant’s response which was that he said “that when he had been married and busy with work he had not had the time but when he had had the time he had wanted to seek it”. As the High Court stated in Ex parte H at [30] where credibility is in issue (as here) “the person conducting inquisitorial proceedings will necessarily have to test the evidence presented – often vigorously”. Taken in context the passage complained of is not indicative of actual or apprehended bias.
The next passage with which the applicant takes issue is recorded by the Tribunal as follows:
I asked the applicant again why he had applied for a visa to visit Australia when he had, before he had any problems. He said that the Government was already paying attention to him and some of the other sect members had been arrested. Because his grandfather had died in prison he had been scared that they might do something about him. That was why he had obtained his visa. I asked him when his grandfather had died in prison and he said that this had been when he had been aged three years old. I asked him whether he was saying that he had applied for a visa to visit Australia in 1997 because his grandfather had died in prison in 1961.
Again the applicant contends that the final question indicated that the Tribunal member had closed his mind to the evidence being given by the applicant. The applicant had applied for a visa to visit Australia prior to his claimed arrest and detention in December 1997. He was granted such a visa in September 1997. In the context of the applicant’s response to the question about the timing of his application for a visa being that because his grandfather had died in prison he had been scared they might do something about him it was not indicative of bias for the Tribunal to raise with the applicant what might be seen as the implausibility of a claim that he was scared they might do something about him because his grandfather had died in prison, when his grandfather had died some considerable time ago. The applicant responded by saying that his grandfather died in 1971 (when he was 13) not 1961.
As stated in Ex parte H at [30], “The need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question”. This is not a case in which it has been established that “vigorous testing of the evidence and frank exposure of its weaknesses” resulted in the applicant being “overborne or intimidated”. While the Tribunal questioning suggests that the Tribunal had a concern about the plausibility of this aspect of the applicant’s claim as presented to it, it is not such as to establish that the Tribunal had a mind incapable of alteration or that its conduct may give rise to an apprehension of bias.
It is apparent from the Tribunal reasons for decision and the account of what occurred in the Tribunal hearing that the applicant had the opportunity to give evidence and address issues and that the Tribunal quite properly put to him matters of concern and independent country information for comment. Such matters do not establish either bias or apprehended bias.
The applicant contended that the Tribunal made many findings against the applicant that were “harsh” and a cumulative consideration of such findings and these statements suggested that the Tribunal was fixed on rejecting the applicant’s claim for a protection visa. This claim is not established. Rather the material before the Court indicates that the Tribunal properly put issues of significance and critical matters to the applicant in the course of the hearing and that, while it rejected the applicant’s credibility, it did so for reasons that were open to it on the material before it. Neither actual nor apprehended bias has been established.
As no jurisdictional error has been established the decision is a privative clause decision to which s.474(1) of the Migration Act 1958 applies and the application must be dismissed.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 30 August 2005
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