SZHBB v Minister for Immigration

[2006] FMCA 308

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHBB v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 308

MIGRATION – RRT decision – Chinese applicant claimed religious persecution as a Christian – disbelieved by Tribunal – questioning by Tribunal of religious beliefs, knowledge and practice – reasonable apprehension of bias and unreasonableness not established – no jurisdictional error found.

Acts Interpretation Act 1901 (Cth), s.8
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.474(1), 483A, Pt.8
Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41

Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12
NADH v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264

Applicant: SZHBB

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2430 of 2005

Judgment of: Smith FM

Hearing date: 24 February 2006

Delivered at: Sydney

Delivered on: 24 February 2006

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Mr J Mitchell

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application is dismissed.

2. The applicant must pay the first respondent’s costs in the sum of $4,950.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2430 of 2005

SZHBB

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application filed on 31 August 2005 under s.483A of the Migration Act 1958 (Cth), which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal dated 13 July 2005 and handed down on 4 August 2005. The Tribunal affirmed a decision of a delegate which refused to grant a Protection Visa to the applicant.

2. Section 483A has been repealed by the Migration Litigation Reform Act 2005 (Cth), but the repeal does not affect the continuance of this proceeding (see Sch.1 cl.41 of the amending Act, and Acts Interpretation Act 1901 (Cth), s.8).

3. The Court has under s.483A the same powers as the Federal Court under s.39B of the Judiciary Act 1903 (Cth). They are subject to limitations under Part 8 of the Migration Act, which have the effect that I do not have power to set aside the Tribunal decision and send the matter back to the Tribunal unless I am satisfied that the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant's refugee claims should be believed nor whether he qualifies for a Protection Visa.

4. The applicant arrived in Australia on a three month business visa in December 2004.  On 19 January 2005 he applied for a Protection Visa.  No agent is shown as helping him complete his application form, nor does it appear that he received professional assistance when appealing to the Refugee Tribunal. 

5. In this Court, he was offered the opportunity to get free legal advice but declined that assistance.  He has appeared today without any apparent assistance in preparing and presenting his case. 

6. In his visa application he explained in one, confused, paragraph his reasons for claiming protection in Australia so that he did not have to return to his country of nationality, the People's Republic of China.  He said:

   I was accused of being a member of underground church and was detained for two months in April 2004 when we were having gathering at our self set up church.  When I was very young, I became interested in religious activities because we liked to get together with friends.  Because we did not have formal church and at that time, any religious activities were not allowed in China, we could only got together and set up our own church.  Every Sunday, we got together for praying; we also helped each other and helped people in need of our help.  The Chinese authorities believed that we had close relationship with overseas churches, they regard our church as illegal underground church and anyone found to have connections with these activities must be punished.  During the two months when we were detained, we could not call nor see family members and relatives.  I was seriously mistreated.  I suffered serious persecution.  When I was in China, I was always active in asking for freedom of religion.  Other than normal religious activities, we also like to get together to discuss about freedom of religion and freedom of political opinions.  We had to hide ourselves very well just because we were not allowed to discuss these matters openly.  We lost freedoms of speeches, freedom of religion and freedom of political opinions.  I knew that I would suffer more persecution from the Chinese authorities if I continued to stay in China.  As soon as I was released, I gave my passport for my friend to apply for visa to come to Australia for protection.  I sincerely hope that my application can be considered favorably.

7. A delegate refused his application on the 26 February 2005.  In her reasons, the delegate set out extensive information about the situation in relation to religious freedom in China, and pointed to the vagueness of the claims made by the applicant as to his religious activities. 

8. When the applicant appealed to Refugee Review Tribunal he did not present any more details, nor any evidence to corroborate his involvement in a Christian Church, either in China or in Australia.  His application attached a brief paragraph of the same nature as had been attached to his visa application. 

9. The applicant was invited to a hearing on the 17 June 2005, and was told to bring his passport.  He did attend, and the Tribunal set out its account of the hearing over seven pages of its reasons.  The account is a summary of the questions and answers, and in the absence of a transcript I have difficulty assessing the "flavour" of the Tribunal's questioning and the applicant's responses.  I had drawn the applicant's attention to the possible need for a transcript in the course of earlier directions hearings, and the applicant was given directions allowing him to file a transcript.   However, he did not have one to present to the Court, and did not present any other evidence as to what happened at the hearing.

10. The Tribunal at several points summarised its questioning about his religious practices:

    I asked the Applicant if he could tell the Tribunal what religion he practices.  He stated “our religious believers get together and help each other.”  I asked the Applicant what his religion was called.  He replied “Jesus”.  I asked the Applicant if he could tell me something about his religion.  He stated: “Nothing really.  Just get together by ourselves, haven’t formally established a church.”  I asked the Applicant what people get together.  He replied many people, including friends and teenagers.  His wife does not attend the gatherings.  He is the only person from his family involved in these gatherings.

    I asked the Applicant when he became involved in these activities.  He became involved in the year 2000 when he was about 24 years old.  I pointed out to the Applicant that he stated in his protection visa application “when I was very young I became interested in religious activities”.  The Applicant stated that he was young when he joined and had heard about the activities from neighbours who were already involved in these gatherings.  I asked the Applicant how he would describe his religion.  He replied “religion?”  I asked the Applicant if he read the Bible.  He stated that he did not have a Bible to read.  He stated that he tried to read the Bible in the beginning but could not continue because he found lots of the words difficult to read. 

    I asked the Applicant what he could tell the Tribunal about his knowledge of Jesus.  The Applicant stated that he knew very little about Jesus.  I asked if he could tell the Tribunal what he actually knew about Jesus.  He stated all he knew was that Jesus was crucified on the cross and came back to life again.  I asked the Applicant if there was anything else he could tell the Tribunal about Jesus.  He replied “nothing else”.  I asked the Applicant if he regarded himself as a Christian.  He stated that he believed his religion and did not only believe in Jesus, but listened to lectures on how to behave and be a good person.  I asked the Applicant to tell the Tribunal what other beliefs his religion held.  He replied that the religion teaches people not to do wrong things.  I mentioned to the Applicant that parents and teachers taught children as they grew up not to do wrong things.  The Applicant stated the religion is something different.  I asked what was different.  He replied that in school one is taught to be a good child and if one picks up money one should return it.  He stated the teaching of the people in his church was more interesting.  I asked what these people were called.  He stated they are Christians.  I asked what kind of Christians.  He replied that he did not know.  I suggested to the Applicant that it seemed to the Tribunal that he did not know a lot about the religion he claimed to practice.  He replied he believed religion and mainly believed that a person must help others.  I asked the Applicant what made this religion so different in China when most Chinese practice that particular philosophy anyway.  The Applicant stated there were a few people in China who would not like to help each other.  I asked the Applicant to state who they were.  He replied “cadres”.  I asked the Applicant what they do.  He stated they are paid by the government and do not do anything.  I asked the Applicant to expand on that particular point.  He stated, for example the tax officer will issue a fine ticket without any reason and there is not much freedom for religious believers. 

    I asked the Applicant if he was claiming that he will be persecuted because of his religious beliefs.  He stated he believes in Jesus and agreed that he did not know much about him.  I asked the Applicant where the members of his group met for prayers on Sundays.  He stated they got together in different houses and there were often more than fifty people present.  They congregated at about 6:30 pm.  I asked the Applicant what prayers they recited.  He stated he did not know.  I mentioned to the Applicant he had stated in his claims that the group got together to pray.  The Applicant replied that they prayed every Sunday but they did not try to remember or recite the prayers.  I asked the Applicant if he could name any of the prayers.  He stated he did not remember.  I asked the Applicant how many prayers were recited.  He stated that he had never counted.

    …

    I asked the Applicant to tell the Tribunal what religion he practiced.  He replied “Jesus”.  I referred the Applicant to folio 22 of the Departmental file where in his protection visa application, in the section “religion”; he omitted to provide any detail of any religion.  The Applicant stated it was probable they missed it when they completed the form.  He said he did not understand and asked for help from a friend who understood English.  I mentioned to the Applicant that he had completed the rest of the form but missed out the section dealing with religion.  The Applicant stated that the person who helped him probably missed it.  He also stated that he himself did not understand English. 

    I asked the Applicant if he attended any church in Sydney.  He replied: “Not at the moment”.  When I asked why he did not attend, he stated it was probably not the right time yet. When asked why, he said; “because I still think difficulties in my mind”.  I asked the Applicant if he could tell the Tribunal what difficulties were in his mind.  He stated that he did not know how to explain it.  I asked if he could attempt to explain it.  He stated that his friends believe in Buddhism and don’t have much contact with the outside world and the Applicant has suffered problems in China.  I mentioned to the Applicant there is a large Chinese community in Sydney, quite a number of who practice Christianity in Sydney.  He stated that he did not know about this as he did not have much contact in Sydney.  I mentioned to the Applicant this indicated to the Tribunal that he was not very serious about his religious beliefs.  He replied that he is serious but they all speak English at church and he does not understand. 

11. The Tribunal also set out its questioning of the applicant concerning his claimed detention and interrogation and his responses.  At the end of its summary of the hearing, the Tribunal referred to putting to the applicant its concerns about the truth of his claimed religious practice and his responses:

    I informed the Applicant that I had concerns about his application.  I mentioned that he claimed to fear persecution because of his religious beliefs and named his religion as “Jesus”.  However, when I asked him about Jesus he knew very little about him.  The Applicant stated that believing in a religion is different from knowledge of a religion.  I mentioned to the Applicant that he did not even know what his religion is.  I mentioned to the Applicant that he was very vague and non-specific about his religious beliefs.  The Applicant stated that they were told to help each other.  He stated that whenever he opened the Bible he felt confused.  I mentioned to the Applicant that I found it surprising that he would have difficulty reading the Bible.  The Applicant replied that he had only completed junior high school.  I asked the Applicant which Bible he tried to read.  He stated he could not remember.  I asked when he had tried to read the Bible.  He stated that he had done so in the year 2000.  I asked if that was the only time he tried to read the Bible, and he replied “yes”.  I mentioned to the Applicant that this evidence did not indicate much of an interest in the Bible.  He replied that he was not only interested in the Bible.

12. The Tribunal's findings and reasons cover three pages.  At several points at the start and end of this section, the Tribunal made it clear that it rejected the applicant's general credibility and “consequentially, rejects all of his claims”.   The reasons it gave for this conclusion were: 

    In dealing with this application the Tribunal has formed the view that the Applicant lacks credibility and his claims cannot be accepted.  The Applicant’s evidence was implausible, contradictory, inconsistent and vague.  This leads me to reject his claims and to affirm the delegate’s decision not to grant the Applicant a protection visa.

    The following matters lead me to a finding that he is not truthful:

    •   When asked at the hearing what religion he practiced, he replied “Jesus”.   Apart from stating that his group helped other people he was unable to elaborate any further about details of the religion and its beliefs.  The Applicant was unable to state which denomination of the Christian religion he claimed to belong.

    •   In his protection visa application he stated that the Chinese authorities believed that the group had a “close relationship with overseas churches”.  During his evidence at the hearing he stated initially that the authorities suspected that the group had contact with foreign politicians from Taiwan.  After some discussion between the Applicant and the Tribunal about the difference in the content of his protection visa application and his evidence at the hearing, he added that the police also suspected the group’s contact with a church in Taiwan, but was unable to name any particular church.

    •   The Applicant stated that he believed in Jesus but agreed that he did not know much about Jesus.  When asked what prayers were said he said he did not know.  He went on to say that they prayed every Sunday but he did not try to remember the prayers.     He could not name any of the prayers and stated that he could not say how many prayers were recited, because he never counted.  The Applicant in his evidence stated that he joined the group in 2000, yet was unable to provide any evidence whatsoever regarding the prayers recited.  I find this implausible.

    •   In his protection visa application he stated that he was “accused of being a member of an underground church and was detained for two months in April 2004.”  When asked by the Tribunal at the hearing what the group was doing when they were arrested he stated that they were talking about state affairs.  Later on in his evidence he stated that they were talking about political affairs and church affairs when they were detained.

    •   The Applicant’s evidence that he only tried to read the Bible on one occasion in the year 2000, and that he found it difficult to read, leading to his feeling confused, is implausible.  I am not convinced that a person who claims to practice a Christian religion would show such scant interest in the Bible.

    •   His explanations for not attending church in Sydney were unpersuasive.  His evidence that he still holds difficulties in his mind, and his statement, when asked to explain the difficulties, that he did not know how to explain them, is unconvincing.  His attempt to try to explain his difficulties was vague and evasive. 

13. The central complaint in the applicant's application and amended applications filed in this Court is that “the Tribunal officer had bias against me”.  This complaint is often made without any substance, but in the present case there is a serious issue to consider. 

14. The applicant pointed, as evidence of bias, to the fact that he was not believed, and suggests that this shows ‘bias’.  He complained that the Tribunal failed to consider his claims from a favourable light.  In particular, the applicant's amended application and his oral submissions claimed that the Tribunal failed to consider favourable explanations for some of his responses which the Tribunal considered were vague and inconsistent.  He argued that there had been a failure of communication between him and the Tribunal at many points, so that the Tribunal “did not understand what I wanted to say”.

15. Reading the Tribunal's summary of the hearing, there may be an element of truth to this explanation of his unsatisfactory responses.  I also consider that it might have been possible for a Tribunal of fact to have reconciled the applicant's answers, so as to conclude, for example, that his description of his interrogation presented a basically coherent picture of the political concerns of the security officers, and that there were no substantial inconsistencies or contradictions.

16. However, I am not persuaded that it was not legally open to this Tribunal, as the appointed decider of fact, to form its adverse assessment of the applicant's responses.   I consider that it was open to it to regard his responses as being vague and inconsistent, and as reflecting adversely upon his truthfulness.  This is a situation where I have to remind myself that the Tribunal had the benefit of seeing how he behaved in the course of the hearing, and that I do not have the benefit of a transcript of the actual hearing. 

17. The applicant has not been able to present a detailed argument attacking the Tribunal's adverse assessment of his Christian beliefs, knowledge and religious practices.  Here again, I think it might have been open to a differently constituted Tribunal to have formed the view that the applicant identified clearly the central message of most Christian churches, particularly of a fundamentalist kind: “that Jesus was crucified on the cross and came back to life again”.   It might also have been open to a different Tribunal to form the view that in some churches the offering of prayers is an activity in which prayers are not numbered nor named and may be ex tempore, so as not to give as much weight to the deficiencies in his evidence concerning his prayers which were identified by this Tribunal. 

1. These, and other, aspects of the Tribunal's questioning, and its ultimate reasoning in relation to the applicant's responses about his adherence to a Christian church, caused me some unease as to the assumptions underlying some of its questions and the weight that it gave to some of his responses. However, I have decided that my concerns do not go beyond the province given to the Tribunal to make findings of fact, and that they do not reveal conduct of the review by the Tribunal in a manner which vitiated its exercise of its jurisdiction. 

2. When considering these issues, I was assisted by the judgment of Allsop J in NADH v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264, with whom Moore and Tamberlin JJ agreed. That was a case where the Court received full evidence of a Tribunal's questioning of applicants who claimed a fear of persecution in China arising from their adherence to the Roman Catholic faith. They presented corroborative evidence of their practice of their religion, and also revealed significant knowledge of Roman Catholic practice. In a lengthy judgment, Allsop J examined the evidence and the Tribunal's reasoning when rejecting the claims from the perspective both of unreasonableness and apprehended bias. He said:

   [115]     By and large fact-finding is a task within jurisdiction, though factual error is not necessarily mutually exclusive of jurisdictional error: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59; 73 ALD 1; [2003] HCA 30. Where fact-finding has been conducted in a manner which can be described, as here, as in substantial respects unreasoned, and mere assertion lacking rational or reasoned foundation, at times as plainly and ex facie wrong and as selective of material going one way, these considerations may found a conclusion that the posited fair-minded observer might, or indeed would, reasonably apprehend that the conclusions had been reached with a mind not open to persuasion and unable or unwilling to evaluate all the material fairly. How else, the fair-minded observer might ask, can one explain the largely unreasoned rejection of documents as vague, when they plainly were not, and as not saying the appellants were Catholics, when expressly or impliedly they did?; and how does one explain not dealing with answers which revealed an apparently detailed knowledge of the Christian religion and the Catholic faith, when a conclusion is drawn that persons are not Christian based on weighing some answers to questions of less than central importance? The answer to these questions might be that the tribunal lacked an appreciation of the need to weigh all the material. If that were the case it would itself support a conclusion of jurisdictional error. The answer might also be the lack of an ability or willingness to deal with the material before it with a mind open to persuasion fairly evaluating all the material.

3. Allsop J earlier agreed with the primary judge that the tone of some of the questioning of the Tribunal in that case was "bizarre".  He accepted that. in a case such as the present, questioning about religious beliefs, knowledge and practices is open to a Tribunal, and may often be the only method of testing the refugee claim.  He said at [93]:

   I accept that if a Tribunal is to test a person's assertion as to adherence to a religion, such a process (however idiosyncratic in particular case it may appear) is open to the Tribunal if the Tribunal thinks it may be of assistance.  It is the way this material was selectively used, to which I will come, that is most troubling.

4. Allsop J's ultimate conclusion was that the ground of apprehended bias had been made out.   This was the cumulative conclusion of criticisms of many elements in the Tribunal’s reasons, and applied the test in relation to apprehended bias.  

5. His Honour did not, therefore, rest his judgment upon a conclusion in relation to the separate ground of jurisdictional error which might loosely be called “unreasonableness”.   However, it is useful for me to set out two paragraphs where he identified a relevant test, and explained why the Tribunal's reasoning in the case before him might appear to satisfy it:

   [135]     It is unnecessary to dispose of this case to decide this issue. Nevertheless, there is much to be said for the proposition that the case could be decided on the well-known High Court authorities referred to at [12] above which are reflected in the necessity of this tribunal to act judicially in the sense referred to by Gleeson CJ in Applicant S20 and Lord Halsbury LC in Sharp v Wakefield. The tribunal was required to reach its state of satisfaction in a reasoned fashion (even if, for the purposes of this discussion, exhibiting a degree of illogicality). It was obliged not to act capriciously, that is, it was obliged not to reach an opinion arbitrarily or by whim or, with the exception of proper credit findings, by intuition.

   [136]     Here, the tribunal did not rely on seeing the witnesses to disbelieve them. That process of assessment of witnesses can at times necessarily include assessment based on impression and, to that extent, be intuitive, at least in part. That did not happen here. A supposed process of reasoning was used to conclude that both these people were not Christians or Catholics. It was a process, in significant part, that was bereft of supporting material and rational or reasoned foundation, and was inexplicably selective of the oral evidence. There is much to be said for the proposition that it betrayed so inadequate a dealing with objective material as to amount to an arbitrary or capricious conclusion. This is not a matter of illogicality or harsh fact finding. Illogicality of some kind can be seen in the reasoning processes of many decision-makers, administrative and judicial. Perfect accord with the requirements of logical reasoning is a standard few can achieve in the daily life of decision-making. Sometimes identification of illogicality is merely no more than understanding how an error was made within the jurisdictional task provided. Here, it could be said that the flaw was more fundamental. The foundation of the rejection of the claims was by a supposed process of reasoning which, in significant and central respects, was no process of reasoning at all. The documents were rejected by assertion largely bereft of any reasoned foundation, as can be seen from a reading of them and the application of a very modest amount of common sense. The selective, unexplained and unreasoned concentration on the so-called unsatisfactory answers on religion and the unreasoned assertion of what flowed from them, ignoring in this process the balance of the answers was not so much illogical, as unreasoned assertion lacking any intellectual foundation. To assert conclusions of this kind in this way may be seen as not to engage in a reasoning process, but to assert conclusions by a process that is no more than an intuitive, arbitrary or capricious response to the task.

6. When I consider the evidence of the present Tribunal's questioning of the applicant, so far as I can assess it from its own description, and when I consider the reasons given for its conclusion rejecting the applicant's credibility, I am not persuaded that the analysis performed by Allsop J in NADH produces the same outcome in the present case.   Undoubtedly the present applicant's evidence was vague, particularly about his religious practices and background.  Undoubtedly he did not show more than the most elementary knowledge of Christian belief and practices.  He had no evidence whatsoever presented as corroboration of his claims.   In my opinion it was open to a reasonable fact finder in the tradition of the Tribunal to arrive at the conclusions of this Tribunal for the reasons which it gave.    They do not satisfy tests of irrationality amounting to capriciousness, within the authorities identified by Allsop J.  I am not persuaded, in the language Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at 38, that “the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds”.

7. In relation to apprehended bias, I am unable to find that a fair minded lay-observer might have formed a reasonable apprehension that the RRT had closed its mind to considering the applicant's claims, and might not genuinely have attempted to perform its function of weighing up the applicant’s evidence to decide whether it was truthful.

8. For the above reasons, I do not consider that the complaints made by the applicant have established jurisdictional error affecting the Tribunal’s decision. I must therefore find that the Tribunal's decision is a privative clause decision under s.474(1), for which relief is barred and I must dismiss the application.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Iliya Marovich-Old

Date:  10 March 2006