SZKGI & Anor v Minister for Immigration & Anor
[2007] FMCA 1635
•15 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKGI & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1635 |
| MIGRATION – Interpreter – alleged difficulties – whether material errors occurred showing miscarriage in decision-making process – weight a matter for the Tribunal – bias – judge to bring an impartial mind to the question – bias not established. |
| Migration Act1958 (Cth), ss.36(2), 424A, 425, 426, 427, 474 |
| Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 Soltanyzand v Minister for Immigration and Multicultural Affairs [2001] FCA 1168 Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 Abalos v Australian Postal Commission (1990) 171 CLR 167 Tefonu Pty Limited v Insurance and Superannuation Commissioner (1993) 44 FCR 361 Minister for Aboriginal Affairs & Anor v Peko-Wallsend Limited & Ors (1986) 162 CLR 24 SZFZF v Minister for Immigration & Anor [2007] FMCA 856 |
| First Applicant: | SZKGI |
| Second Applicant: | SZKGJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 656 of 2007 |
| Judgment of: | Turner FM |
| Hearing date: | 13 June 2007 |
| Date of last submission: | 1 August 2007 |
| Delivered at: | Sydney |
| Delivered on: | 15 October 2007 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondent: | Ms A. Mitchelmore |
| Solicitors for the Respondent: | Ms M. Palmer of Sparke Helmore |
ORDERS
The application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 656 of 2007
| SZKGI |
First Applicant
| SZKGJ |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed on 26 February 2007 for an order to show cause why a remedy should not be granted in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) signed on 10 January 2007 which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa. The applicant has not filed an amended application.
The first named applicant was born on 25 April 1960; his wife (who is the second named applicant in these proceedings) was born on 17 December 1966. Both claim to be from China, of Han ethnicity and Christian faith.
The applicants arrived in Australia on 17 February 2006 and lodged protection visa applications with the Department of Immigration and Multicultural Affairs on 29 March 2006. The applicant wife did not submit her own claims for refugee status, but was included in the application of her husband (hereinafter “the applicant”). The applicants have one daughter, who was studying in Australia at the time the protection visa applications were made. In a statutory declaration attached to the application, the applicant claimed (CB 29-35):
·that his father use to be one of the “major leaders” of a Christian church and had been involved in “a long-term struggle for genuine religious freedom”; that as a result, his family was subjected to persecution by the Chinese authorities;
·that he participated in the pro-democracy movement in 1989; that afterwards he was subjected to investigation by the Public Security Bureau (PSB), suspended from teaching, and forced to join a two-week political study class;
·that he came to Australia in 1989 “in order to completely get rid of various kinds of unfair treatment” in China; that in 1991 he was officially baptised in the Christian Assembly of Sydney;
·that in 1996 the applicant returned to China because of his father’s illness and was immediately subjected to investigation by the PSB for involvement in “overseas anti-government religious or political organisations”;
·that he tried to attend the official church in China but “could not tolerate them”; that in early 2000 he organised his own Bible study group; that his group strove for “genuine religious freedom and independent religious activities”; that he was discovered teaching the Bible to his students in 2004, and as a result, was detained for a period of three weeks during which he was physically and mentally mistreated;
·that after his release, the applicant secretly organised a propaganda group in 2005; that the group eventually came to the attention of the PRC authorities and the applicant was forced to flee.
This application was refused by a delegate of the first respondent on 3 July 2006 (CB 37-51).
On 2 August 2006 the applicant filed an application for review of the decision of the Minister’s delegate with the Refugee Review Tribunal (CB 53). The applicant gave oral evidence before the Tribunal on 27 September and 19 October 2006.
By decision signed on 10 January 2007 the Tribunal affirmed the decision of the Minister’s delegate refusing to grant the applicant a protection visa. In considering the applicants claims, the Tribunal found (CB 135-147) (highlighting added):
Nationality
Based on the information on the applicant’s file, the Tribunal is satisfied that the applicant is a national of China. The Tribunal accepts the applicant’s evidence that he departed China and gained entry to Australia on his own legally obtained Chinese passport.
Interpretation at the hearing
In his statutory declaration, dated 28 November 2006, the applicant complained about the performance of the Mandarin interpreter at the hearing on 27 September 2006. Specifically, the applicant claimed that the interpreter was not able to properly and correctly interpret relevant questions put by the Tribunal and the applicant’s answers to those questions. The applicant further claimed that on some occasions the interpreter added to confusion between the Tribunal and the applicant and the interpreter could not clearly explain some of the issues to the applicant.
The Tribunal is acutely aware of potential difficulty with interpretation in the course of taking evidence during hearings. Experience is that when difficulties arise due to the quality of interpretation, they become apparent in the early stages of the hearing. At the conclusion of the Tribunal’s introduction to the hearing on 27 September 2006, which had been interpreted by the interpreter to the applicant over several minutes, the Tribunal asked the applicant whether he had any difficulty understanding the interpreter. The applicant advised that he did not. The Tribunal then asked the applicant to advise the Tribunal immediately if he had any difficulty understanding the interpreter at any stage of the hearing. The Tribunal also asked the interpreter to let the Tribunal know if he had any difficulty understanding the applicant.
During the hearing, the exchanges between the interpreter and the Tribunal showed no signs of any difficulty. The applicant did not indicate or state that he had any difficulty understanding the interpreter and the interpreter, who was NAATI accredited Level 3, did not indicate any difficulty in understanding the applicant. The Tribunal notes that the hearing ran for approximately 3 hours and that exchanges between the applicant and the interpreter were fluid throughout the entirety of the hearing.
The Tribunal did not perceive during the course of the hearing any apparent difficulty in the quality of the interpreting or the applicant’s ability to understand the interpreter. The applicant answered the Tribunal’s questions relevantly and without delay, and the applicant’s responses did not demonstrate a lack of clarity in communication.
The Tribunal also notes that at the second hearing, conducted on 19 October 2006 and with a different interpreter, the applicant did not raise any concerns about the quality of interpretation provided at the hearing on 27 September 2006. Indeed, the applicant did not raise any concerns about the interpreter until responding to the Tribunal’s section 424A letter, dated 13 November 2006, which advised the applicant of various apparent inconsistencies in his evidence.
In the circumstances, the Tribunal is satisfied that the interpreting in this case was professional and satisfactory, and did not in any way impede communication during the hearing. The Tribunal does not accept that the interpretation afforded at the hearing on 27 September 2006 was defective or deficient in any way.
Credibility
The Tribunal does not consider it appropriate to take an overly stringent approach to questions of credibility. The Tribunal recognises the need to be sensitive to special considerations which may arise out of the difficulties of proof which applicants face, problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia. Although it is important to adopt a liberal attitude when assessing refugee status it should not lead to an uncritical acceptance of all claims: see for example, Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 per Beaumont J at 451, Sellamuthu v MIMA (1999) 90 FCR 287 per Hill J at para 40.
Overall, the Tribunal found the applicant not to be a credible witness. The Tribunal has made allowances for nervousness and other matters which may have prevented the applicant from giving evidence and presenting arguments effectively. However, despite these matters, the Tribunal finds that the applicant has not been an entirely truthful witness and cannot accept that the applicant gave an accurate description of events as they happened in China. Whilst the Tribunal accepts that some of his claims are true, it finds that some claims have been invented for the sole purpose of strengthening the applicant’s protection visa application.
Pre 1989 claims
The applicant claims that his family of origin was subject to persecution by the PRC authorities because his father was one of the leaders of the Christian church in Pingtan County. He claims that his family was exiled on 2 occasions, once in 1957 before the applicant was born and secondly during the Cultural Revolution.
The Tribunal accepts that this claim is plausible. However, independent country information indicates that the Cultural Revolution phase ended in China in 1978 and that being related to persons persecuted during the Anti-Rightists campaign no longer carries a stigma in China (DFAT, 1994, Country Profile: China, June & CX27869; UK Home Office Report, October 2002). This country information is still current.
The Tribunal notes that the applicant obtained a teaching qualification during the early 1980’s and that he was able to subsequently gain employment as a teacher. This indicates that the applicant did not suffer any significant adverse consequences arising out of his family’s treatment during the Cultural Revolution, which was a long time ago. Although the Tribunal accepts that the applicant’s family is likely to have suffered persecution on account of their Christian religion during the Cultural Revolution era and earlier, given relevant country information and the applicant’s education and employment history, the Tribunal considers that there were no adverse consequences for the applicant in China as a result of his family’s treatment during the Cultural Revolution.
1989 activities
In his statutory declaration, dated 29 March 2006, the applicant claimed that following the suppression of the pro-democracy movement by the PRC authorities, he was subject to an investigation by the Public Security Bureau (“PSB”) and questioned by them a few times as a result of his participation in pro-democracy demonstrations in Fuzhou City in May 1989.
However, at the hearing on 27 September 2006, when asked by the Tribunal whether he had any personal dealings with the PSB following the suppression of the pro-democracy movement by the PRC authorities. The applicant initially responded that he had not. When asked whether the PSB had questioned him during this period, the applicant responded that they had not. He had also not experienced any difficulties with the school authorities during the period June 1989 to September 1989 because the schools were closed and there was not a clear picture at that time. It was not until September 1989 that he was told that he would have to attend a 2 week political study group. When the Tribunal pointed out that this was inconsistent with the applicant’s statutory declaration, he responded that at the time he had been very confused and he supposed that he was briefly asked questions by the PSB before school restarted in September 1989. When the Tribunal pointed out that earlier in the hearing he had stated that he was not questioned by the PSB, the applicant responded that he could not remember at the time that everyone who was involved had to be questioned. When asked by the Tribunal when this had occurred, the applicant responded that although it happened a long time ago, he could now recall that it was at the end of June or the beginning of July 1989. He had to report to the work unit at the local police station 4 or 5 times and sometimes twice per day.
The Tribunal considers it implausible that the applicant could have initially forgotten that he had been required to report to his local police station up to twice per day following the suppression of the pro-democracy movement. Considering the likely significance of such events for the applicant personally and his professional career as a teacher, and the applicant’s detailed recall of other events, the Tribunal is of the view that if such events had really transpired, the applicant would have readily recalled their occurrence.
The fact that the applicant could not initially recall having been questioned by the PSB and then subsequently gave inconsistent and contradictory evidence regarding the PSB’s investigation of him following the suppression of the pro-democracy movement leads the Tribunal to conclude that the applicant was not the subject of an investigation and questioning by the Chinese authorities in the aftermath of the pro-democracy movement in 1989.
When asked whether he had experienced any difficulties obtaining a passport to travel to Australia in December 1989, the applicant stated that he did because he had a black mark against him. He had been suspended from teaching for 2 weeks and had to work as a cleaner. However, the applicant also gave evidence that he applied for a passport in June or July 1989, which was prior to his allegedly being informed in September 1989 that he had to attend a political study group and prior to his alleged suspension from employment. In light of this inconsistent evidence, the Tribunal does not accept that the applicant experienced any difficulties in obtaining a passport in 1989.
In the circumstances, the Tribunal does not accept that the applicant was of interest to the Chinese authorities throughout the period June 1989 to December 1989. Specifically, the Tribunal does not accept that the applicant was required to report to the local PSB 2 or 3 times a day, or at all, throughout the period June 1989 to September 1989. On that basis, the Tribunal does not accept that the applicant was of interest to the Chinese authorities in 1989 and it is not accepted that the applicant had any difficulties obtaining a passport in June 1989.
Events following the applicant’s return to China in May 1996
In his statutory declaration, dated 29 March 2006, the applicant claimed that following his return to China from Australia in May 1996 he was subject to an investigation by the Pingtan PSB which lasted for about a half year. During that period he was interrogated by the PSB many times and on many occasions was forced to write self-criticism reports. However, at the hearing on 27 September 2006, the applicant stated that after a few interrogations and his admission of his involvement in illegal religious activities in Australia, the police investigation stopped and the police told him that they were not going to do anything at that stage.
In its s 424A letter, dated 13 November 2006, the Tribunal notified the applicant that the applicant’s claims at hearing were inconsistent with the evidence contained in his statutory declaration of a lengthy investigation with many interrogations and the requirement on many occasions to write self-criticism reports. In his statutory declaration, dated 28 November 2006, the applicant claimed that he might not have explained clearly at the hearing on 27 September 2006 what had happened to him following his return to China in May 1996. He was, in fact, subject to a 6 month investigation by the Pingtan PSB and was interrogated many times and forced to write self-criticism reports throughout that period. However, the PSB was mainly concerned about political rather than religious issues and it was only during the later part of the investigation that he was questioned about whether he had been involved in overseas anti-government religious organisations.
The Tribunal notes that the applicant’s claim that he was not questioned about his involvement in overseas anti-government religious organisations until the latter part of the 6 month investigation by the Pingtan PSB is in stark contrast to the evidence he gave at the hearing on 27 September 2006. On that occasion, the applicant claimed that on the first occasion that he was questioned by the local PSB after returning from Australia, the interrogating officer told him that the authorities had been tipped off that he had participated in an illegal religious movement in Australia and then applied for refugee status.
The applicant’s failure to give consistent evidence in his statutory declaration, dated 29 March 2006, at the hearing on 27 September 2006 and then again in his statutory declaration, dated 28 November 2006, leads the Tribunal to conclude that these events did not really occur. Specifically, the Tribunal does not accept that the applicant was subject to a 6 month investigation (or at all) by the Pingtan PSB upon his return from Australia in May 1996. The Tribunal does not accept that the applicant was interrogated by the Chinese authorities many times (or at all) or that the Chinese authorities were aware that the applicant had applied for refugee status in Australia.
On the evidence before the Tribunal and, in particular, the evidence provided by the Christian Assembly of Sydney, the Tribunal accepts that the applicant was involved in the Christian Assembly of Sydney during the period 1990 until his return to China in 1996. However, the Tribunal does not accept that the applicant was persecuted or otherwise harmed upon his return to China as a result of that involvement. Specifically, given the findings above, the Tribunal does not accept that the applicant was targeted for an investigation by the Chinese authorities or that he suffered any adverse consequences upon his return to China as a result of his religious activities in Australia.
Warnings by the PSB and the local government about your “anti-government” religious activities in late 2003/mid 2004
In his statutory declaration, dated 29 March 2006, the applicant claimed to have been warned or threatened “many times” by the PSB and the local government not to have “anti-government” religious activities. At the hearing on 27 September 2006, when asked by the Tribunal whether he had received any warnings from the authorities throughout this period about his covert religious activities, the applicant claimed that he received only one verbal warning from the school to stop such activities if he was involved in them. When the Tribunal pointed out the apparent contradiction between this evidence and his statutory declaration, the applicant responded that the Vice Principal of the school was the head of the PSB office and, therefore, the school itself was the authority.
In its s 424A letter, dated 13 November 2006, the Tribunal pointed out that this did not address the inconsistency regarding the number of warnings, which in the applicant’s statutory declaration he claimed were “many”, whilst at the hearing he claimed to have received only one verbal warning. In his statutory declaration, dated 28 November 2006, the applicant claimed that he might have misunderstood “authorities” to mean the school because he always regarded the school as his authority. It was true that he received only one verbal warning from the school; however he was warned or threatened by the PSB and the local religious affairs administrative office on many occasions.
The Tribunal does not accept this explanation. At the hearing the applicant was clear in his evidence that he had received only one warning from the school. The Tribunal then specifically directed the applicant to the evidence contained in his statutory declaration that he had received warnings from the PSB and the local government. The applicant responded that this was not a contradiction because in China, the involvement of the PSB officer is through the school and the head of the PSB office was also acting as the Vice Principal of the school. The Tribunal considers that the applicant’s evidence demonstrates that he understood the distinction between the school authorities, the PSB and the local government authorities. It is not accepted that there was any confusion in the applicant’s mind when he responded to the Tribunal regarding this issue.
Given the contradictions and inconsistencies in the applicant’s evidence, the Tribunal does not accept that he was involved in any religious activities that rendered him of adverse interest to the Chinese authorities in 2003/04. Specifically, the Tribunal does not accept that the applicant was warned by the Chinese authorities (whether that be the school authorities, the local PSB or the local religious affairs administrative office) on several occasions (or at all) throughout this period.
Alleged detention in August 2004
In his statutory declaration, dated 29 March 2006, the applicant claimed that following his release from detention in August 2004, he was targeted for investigation by the PSB on many occasions, and subject to questions and interrogations. However, at the hearing on 27 September 2006, when asked by the Tribunal whether he had experienced difficulties with the Chinese authorities following his claimed release, the applicant responded that after his discharge from detention he acted very carefully and he would not discuss his involvement with his bible group, which had been dismissed. However, whenever he came across these people, they would ask him if he was still involved in these activities. When asked at the second hearing on 19 October 2006 to describe any difficulties or problems he experienced with the Chinese authorities following his alleged release from detention in August 2004 until mid-2005, the applicant responded that although the government was investigating him throughout that period, it was not very obvious at the beginning. He stated that following his release from detention on 25 August 2004, he was required to undertake public self-criticism at a staff-meeting on one occasion, 30 August 2004. He was also asked to attend the principal’s office to “talk over the issues”. The vice-principal talked to him twice and the principal or the vice-principal would caution him on the street from time to time, although not on every occasion that they saw him. When asked to describe what was said during such cautions, the applicant responded that they would tell him that recently there had been problems with Falun Gong and other religious groups and he should not get involved in those activities and should have learned his lesson by now. When asked to describe what the principal or vice-principal would say when he was asked into their office, the applicant responded that they said that after his release the Party would give him a chance, that his self-criticism had only been oral and nothing was in writing. They had to observe his behaviour and he was not to try to influence his students about religious matters.
In its s 424A letter, dated 13 November 2006, the Tribunal highlighted the inconsistencies between the applicant’s claimed investigation, questioning and interrogation by the PSB, as referred to in his statutory declaration, and the evidence he gave at the hearings on 27 September 2006 and 19 October 2006. In his statutory declaration, dated 28 November 2006, the applicant claimed that both the school authorities and the PSB continually gave him trouble following his release from detention in August 2004. In addition to public self-criticism at a staff-meeting and 2 talks with the school principal, he was cautioned by the authorities from time to time. Further, if the PSB had found any anti-government persons or anti-government materials, he would have immediately becomes the target of the PSB and been subject to investigation.
The Tribunal does not accept that this explains or addresses the inconsistencies between the evidence contained in the applicant’s statutory declaration and the evidence he provided at the hearings on 27 September 2006 and 19 October 2006. In his statutory declaration, dated 29 March 2006, the applicant clearly refers to his having been the target of PSB investigations, questioning and interrogation following his release from detention in August 2004. However, when the Tribunal asked the applicant at both hearings whether he had experienced any difficulties with the Chinese authorities following his alleged release from detention in August 2004, on neither occasion did he refer to any PSB investigation of him. Further, in his statutory declaration, dated 28 November 2006, the applicant claims that he would have been subject to investigation by the PSB if any anti-government materials were found. Although the applicant again stated that he had many times become the target of the PSB, he failed to provide any details of such investigations.
Further, when the Tribunal expressed surprise at the hearing on 27 September 2006 that the Chinese authorities would permit the applicant to continue teaching after his being found to be involved in an illegal bible studies group, and his arrest and detention for a period of 3 weeks in August 2004, the applicant responded that he did not think it was unusual because what he was doing was not against the government and he was only pursuing the truth. The applicant also claimed that given the great demand in China for English teachers, and the fact that he had spent so long overseas, the authorities continued to allow him to work.
The Tribunal considers it implausible that the Chinese authorities would be sufficiently concerned about the applicant’s alleged illegal bible studies group to detain, interrogate and torture him for a period of 3 weeks in August 2004, following which he was immediately permitted to return to his employment as a secondary school teacher. The Tribunal does not accept that if the alleged detention had really occurred, the Chinese authorities would permit the applicant to continue in a position of influence, with the potential to infect impressionable young students with ideas contrary to the government’s officially sanctioned position on religious matters.
The inconsistencies between the evidence given at the hearings on 27 September 2006 and 19 October 2006 and the evidence contained in the applicant’s statutory declaration regarding events subsequent to the applicant’s alleged detention in August 2004, and the implausibility of the applicant’s claims regarding the apparently immediate resumption of his employment following such detention, lead the Tribunal to conclude that the alleged detention and events subsequent to it never occurred. In the circumstances, and with particular regard to the inconsistencies in the applicant’s evidence, the Tribunal finds that the applicant invented his claim to have been detained by the Chinese authorities for a period of 3 weeks in August 2004 for the purpose of strengthening his protection visa application. Given the Tribunal’s finding that the detention never occurred, and in light of the inconsistencies outlined above, the Tribunal also does not accept that the applicant was of any interest to the Chinese authorities in 2004.
Petition regarding religious freedom
In his statutory declaration, dated 29 March 2006, the applicant claimed that in 2005 he drafted a petition to the central government in Beijing, seeking freedom of religion in China, and that he was subsequently advised by a friend that the PSB suspected him of involvement in underground religious activities. At the hearing on 27 September 2006, the applicant stated that 3 or 4 people drafted the petition, which was mailed to the authorities in Beijing in late July or early August 2005. He stated that none of the signatories used their real names, but rather signed the petition as “a group of Christian members”. When asked how the central government could have suspected him of involvement, given that he did not identify himself in the petition, the applicant responded that it would be easy to identify him by looking at the stamp affixed to the letter and the paper that the propaganda group used.
In its s 424A letter, dated 13 November 2006, the Tribunal highlighted the implausibility of the applicant’s claim to have been identified as the author of a petition sent to the central authorities in Beijing, in light of available country information regarding the number of Christians in Fujian Province. In his statutory declaration, dated 28 November 2006, the applicant claimed that he really did not know why the PSB had suspected him of involvement in the petition however it might be possible that the PSB had found that the stamp affixed to the petition and the paper used in it had been similar to those in other propaganda materials that had been distributed by his propaganda group. Or it might be that the PSB regarded all people like him with a “black spot” in the past to be suspicious. However, irrespective of what happened, the PSB suspected that he might be a key member in underground religious activities and especially of involvement in activities to distribute the petition in Beijing.
As the Tribunal has found that the applicant was not detained in 2004 and was of no prior interest to the Chinese authorities, it is not accepted that the PSB would have been predisposed to consider him a person likely to have been the author of an unsigned petition that was mailed to the central authorities in Beijing. The Tribunal finds the applicant’s other explanation, that the PSB might have identified him by the stamp that was affixed to the envelope or the paper that was used to distribute the petition, to be wholly unconvincing.
Independent information available to the Tribunal indicates that 10.7% of Fujian Province’s 34,300,000 population identify themselves as Christian (Johnstone, Patrick & Mandryk, Jason 2001, Operation World, 6th ed, Paternoster Lifestyle, Cumbria, ‘China’, p. 169). Further, that Fujian has a thriving and rapidly growing Christian community. Official estimates of numbers of Protestant Christians range from 700,000 - 900,000. (Lambert, T. 1999, China's Christian Millions: The costly revival, OMF Publishing, Monarch Books, London pp. 209-210). In such circumstances, and given the very significant Christian population in Fujian province, the Tribunal considers it implausible that the central Beijing authorities could have identified the applicant in the manner suggested by him, had he really been the author of a petition seeking that the Chinese government allow freedom of religion.
Given the implausibility of the applicant’s claim, the Tribunal does not accept that he was involved in underground religious activities or that he was the author of a petition seeking greater religious freedom from the central Beijing authorities.
The timing of the applicant’s decision to leave China and his obtaining a passport
At the hearing on 27 September 2006, the Tribunal put to the applicant that his passport was issued in June 2005, which was the same month that his 18 year-old-daughter, Wen Du YOU, travelled to Australia to commence studies here. The Tribunal suggested that the timing of these events could indicate that the applicant had formed the intention to return permanently to Australia by June 2005. The applicant rejected any link between these events and stated that at the time he was scared and he had used a student contact to arrange his passport because it would be impossible for him to apply for a passport himself. However, earlier in the hearing the applicant had stated that he did not learn until 27 or 28 September 2005 that he would be subject to an investigation by the Chinese authorities and that he did not decide until late September 2005 or early October 2005 to leave China.
In its s 424A letter, dated 13 November 2006, the Tribunal highlighted this apparent inconsistency in light of available country information regarding the difficulty an individual would experience in obtaining a passport in their own name if they were of interest to the Chinese authorities. In his statutory declaration, dated 28 November 2006, the applicant maintained that there was no link between the timing of his obtaining a passport and his daughter’s departure for Australia. As a result of his unfair treatment at the hands of the Chinese authorities following his detention in August 2004, he was very scared and had used a student contact to arrange his passport. The applicant referred to the country information cited by the Tribunal and claimed that whilst it may have been accurate in 2003, it may not reflect the current situation in China whereby widespread corruption has led to a situation whereby people are readily able to obtain passports by bribing officials.
The Tribunal has found that the applicant was not detained in August 2004 and considers that he was not of adverse interest to the Chinese authorities prior to obtaining his passport in June 2005 for the reasons outlined above. This finding is reinforced by independent information available to the Tribunal which indicates that a person who had come to the adverse attention of the PRC government and “whose exit, in the judgement of the relevant department of the State Council, would be harmful to state security or cause a major loss to national interests” would likely be denied a passport. Whilst it would be possible to illegally obtain a passport in an applicant’s own name, this would be highly risky and expensive, and it would be easier to obtain a passport using someone else’s identity (DIMA Country Information Service 2003, CIR No. 12/03 – Passport and exit procedures, (sourced from DFAT advice of 15 January 2003).
Although the Tribunal accepts that corruption is widespread throughout China, the Tribunal considers that the country information referred to above is still current, and would have been so as at June 2005 when the applicant obtained his passport, in as much as persons of significant adverse interest to the authorities would still likely be denied a passport. In the circumstances, the Tribunal is not satisfied that the applicant was of interest to the Chinese authorities at the time that he obtained his passport in June 2005.
The applicant’s delay in leaving China
Despite having formed the stated intention by late September 2005 or early October 2005 to leave China, and although his wife’s passport issued on 14 November 2005, the applicant did not depart China until 17 February 2006. When asked about this delay at the hearing on 19 October 2006, he stated that progress was slow in the education department’s investigation of him. At the time, they “had a lot of things on their hands” pursuing investigations into other teachers who had allegedly been involved in illegal Falun Gong activities. The applicant also stated that although he and his wife were ready to leave the country by November 2005, he was not quite sure whether his name was on a watch-list at the airport, and so waited for a former student who worked at the PSB border control department to come back from a 2 week holiday to see whether his name was on the watch-list. After discovering that his name was not on the list, the applicant felt “comfortable” leaving the country.
In its s 424A letter, dated 13 November 2006, the Tribunal pointed out to the applicant that his lengthy delay in leaving China could indicate that he was not of interest to the Chinese authorities and that he did not perceive himself to be at risk. The Tribunal also referred to independent country information about the difficulties dissidents would face departing China on passports issued in their own name.
In his statutory declaration, dated 28 November 2006, the applicant claimed that it was difficult for he and his wife to make the decision to leave China. Having spent a number of years in Australia previously, he understood how difficult it would be for him and his wife. As teachers, both he and his wife understood that it would be almost impossible for them to teach again in a different country. He was also scared that his name may be on an airport watch list. However, the key issue is that not long after his departure from China, he was found by the PSB to be a leader of a secret religious propaganda group and the major planner and organiser in activities to distribute a petition in Beijing, such findings being based on the confessions of some of the other Christian members of his group who were arrested. His sister and brother were also questioned at the start of March 2006. He has therefore become the target of the PRC authorities since leaving China and he would be persecuted upon his return.
Independent country information available to the Tribunal indicates that “it is improbable dissidents on wanted lists would be able to exit on passports issued in their own names” (DIMA Country Information Service 1998) Country Information Report No. 64/98 Passport and Exit Permit Issuing Procedures, (sourced from DFAT advice 12 February 1998). Further, the applicant has acknowledged that his name was not on an airport “watch-list”, which indicates that he was not of interest to the Chinese authorities at the time of his departure in February 2006.
The Tribunal has already determined that the applicant was not of interest to the Chinese authorities at the time of his departure for the reasons outlined above. In particular, it is not accepted by the Tribunal that the applicant was the author of a petition seeking greater religious freedom from the central Beijing authorities. This finding is reinforced by the fact that although the applicant claimed that the Chinese authorities had decided by September 2005 to conduct an investigation into his involvement in unlawful religious activities, the Chinese authorities failed to place him on an airport “watch list”.
Given the Chinese authorities’ lack of interest in the applicant throughout the period September 2005 to February 2006, the inconsistencies in the applicant’s evidence and his overall lack of credibility, the Tribunal does not accept that he was involved in an underground religious propaganda group. This, in combination with the Tribunal’s finding that the applicant was not the author of a religious petition to the central Beijing authorities, leads the Tribunal to conclude that his siblings were not questioned by the Chinese authorities following his departure in March 2006 and his allegedly unlawful activities were not confessed by other group members following his departure from China. The Tribunal considers that these claims are spurious and were made with the express and sole purpose of strengthening the applicant’s protection visa application.
The alleged letter from the applicant’s employer terminating his employment
At the hearing on 19 October 2006, the applicant claimed that his brother had recently advised him that he had received notification that the applicant had been sacked because of his Christian beliefs and for organising underground activities. On 30 October 2006, the applicant’s representative sent a photocopy of a document, which had been translated, and which purported to be the Changle City No. 1 High School Board’s decision, dated 6 September 2006, to sack the applicant.
In its s 424A letter, dated 13 November 2006, the Tribunal referred to independent country information about the ease with which fake or forged documents could be obtained in China. In light of the applicant’s claim that he became aware in September 2005 that the Chinese authorities intended to investigate him, and in light of the fact that he had been absent from his employment without permission to do so since February 2006, it might be considered unlikely that the Chinese authorities would wait until September 2006 to terminate his employment. This was especially the case given the applicant’s claim in his statutory declaration that the authorities became aware of his role as “the leader of the secret religious propaganda group” shortly after his departure from China following confessions by other group members.
In his statutory declaration, dated 28 November 2006, the applicant maintained that the document was genuine. He could not explain why it was dated 6 September 2006, however it may be for the reason that there are only 2 terms in China, one starting in March, the other in September, and the authorities might need some time to investigate his case thoroughly from March 2006 and made the decision when the new term started.
The Tribunal does not accept this explanation. It was the applicant’s case in his statutory declaration, dated 29 March 2006, that shortly after his departure from China in February 2006 various members of the religious propaganda group had been arrested and confessed his involvement as the leader of the group and the major planner in organising the distribution of a religious petition. Therefore, according to this evidence, the Chinese authorities would have been in possession of critical evidence against the applicant as early as March 2006. In such circumstances, the Tribunal does not accept that the Chinese authorities would wait until September 2006 to terminate the applicant’s employment.
Further, independent information available to the Tribunal indicates that fake or forged documents can readily be procured in China. (DIMIA Country Information Service 2000, Country Information Report No. 301/00 – Summonses in China (sourced from DFAT advice of 5 June 2000) and DFAT 2004, DFAT Report No. 327 – RRT Information Request: CHN17017, 7 October).
Given the Tribunal’s earlier findings about the applicant’s credit, the timing of the production of this document and the ease with which false or forged documentation can be obtained in China, the Tribunal considers the document regarding the applicant’s alleged dismissal from employment (for reasons of having established an illegal religious organisation and for the unlawful distribution of religious propaganda) to be a forgery and accords it no weight.
The applicant’s religious activities in Australia
The applicant submitted evidence of his and his wife’s ongoing involvement with the Christian Assembly of Sydney following their February 2006 arrival in Australia and the Tribunal accepts that they are both practising Christians. However, the Tribunal does not accept that their involvement with the Christian Assembly of Sydney will lead to their persecution at the hands of the Chinese authorities in the event that they are returned to China. The country information reports referred to earlier establish that while there is monitoring and control of religious activity and that some religious leaders are prone to be detained in China, supervision of religious activity is minimal, and registered and unregistered churches are treated similarly by the authorities. In this regard, the Tribunal accepts the country information that Christianity is growing quickly in China and possibly faster than any other part of the world. Christian followers have risen by 20 to 30 fold in the past 25 years; there are 50,000 religious sites and more than 30 million bibles have been printed (CX95533); underground home churches are estimated to number between 30 and 50 million (CX90871); church pews are packed to capacity, many Christians had nowhere to worship but at home, and “house churches” operate throughout the country (‘China: Christianity Blossoms in China’ The Atlanta Journal).
Although unregistered churches continue to face some government interference and crackdowns from the authorities and treatment of unregistered groups varied regionally, Fujian province is not identified as one of those areas (UK Home Office, Country Information and Policy Unit China country Assessment; International Religious Report 2005). In Fujian province, registered and unregistered churches operate side by side (UK Home Office, Country Information and Policy Unit China country Assessment).
In light of the Tribunal’s finding that the applicant was not of interest to the Chinese authorities upon his return to China in 1996 (following upon a 5 year involvement with the same church that he is currently involved in, the Christian Assembly of Sydney), and in light of independent country information, the Tribunal finds that there is no real chance that the applicant would face persecution as a practising member of an underground Christian church in China now or in the reasonably foreseeable future.
Overall, the Tribunal is not satisfied that the applicant has been persecuted in the past for reasons of his religious profile by the Chinese authorities. The Tribunal is of the view that the chance that the applicant will be persecuted for this reason in the reasonably foreseeable future is remote. It follows that the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for reasons of his political profile or for any other Convention reason. The Tribunal is therefore not satisfied that the applicant has a well-founded fear of persecution for a Convention reason.
Conclusions
Having considered the evidence as a whole, the Tribunal is not satisfied that the first named applicant is a person to whom Australia has protection obligations under the Refugees Convention. Therefore the first named applicant does not satisfy the criterion set out in s.36(2) for a protection visa.
No specific Convention claims were made by or on behalf other applicants. The fate of the other applicant's application therefore depends on the outcome of the first named applicant’s application. As the first named applicant cannot be granted a protection visa, it follows that the other applicant cannot satisfy the alternative criterion set out in s.36(2)(b) and cannot be granted a protection visa.
The applicant then filed the application in this Court, seeking judicial review of the Tribunal’s decision pursuant to Migration Act 1958 (Cth) (the “Act”).
The application
In his application, the applicant set out five grounds as follows:
(1)The Tribunal failed to comply with its obligations under s.425 of the Act.
Particulars:
(a)I have not been provided recording tapes in relation to my first and second hearing before the Tribunal. Therefore, it’s hardly for me to cite exact evidences that the interpreter at the first hearing failed to interpret my claims accurately and properly.
(b)However, it is the fact that the Tribunal has never indicated my clearly that I have any rights to complain about the interpreter’s ability at the Tribunal’s hearing; and
(c)The Tribunal failed to consider my situation properly. If I intended to use the performance of the interpreter as an excuse for my inconsistent claims, why would I have only raised my concern about the quality of the interpretation provided at the first Tribunal hearing instead of the ones provided at two Tribunal hearings?
(2)The Tribunal failed to consider my evidences, properly and fairly.
Particulars:
(a)The Tribunal questioned about my credibility based on its finding that “some claims have been invented for the sole purpose of strengthening the applicant’s protection visa application”. But, the Tribunal did not provide any substantial evidences in support of its finding.
(b)The Tribunal failed to consider that my fear of being persecuted on return is mainly based on my experience that it has been started since I returned to China from Australia in 1996. It is definitely unfair if the Tribunal has given too much weight to my experience before it in its decision.
(3)The Tribunal misstated independent country information.
Particulars:
(a)The Tribunal’s finding has regarded following piece of country information as the reason or part of reasons:
…10.7% of Fujian Province’s 34,300,000 population identify themselves as Christian…Further, that Fujian has a thriving and rapidly growing Christian community. Official estimates of numbers of Protestant Christians range from 700,000-900,000…
(b)The Tribunal then stated in its decision:
In such circumstances, and given the very significant Christian population in Fujian province, the Tribunal considers it implausible that the central Beijing authorities could have identified the applicant in the manner suggested by him, had he really been the author of a petition seeking that the Chinese government allow freedom of religion…Given the implausibility of the applicant’s claims, the Tribunal does not accept that he was involved in underground religious activities or that he was the author of a petition seeking greater religious freedom from the central Beijing authorities…
(c)The Tribunal, however, ignored obviously that the above-mentioned independent country information is mainly in relation to official church recognised by the Chinese government; but what I have been involved in China is an unofficial church.
(d)Furthermore, the Tribunal failed to consider that the independent country information cited by the Tribunal does not have any direct relations to my individual claims.
(4)The Tribunal failed to use up-to-date independent country information in assessing my claims.
Particulars:
(a)The Tribunal has used the independent country information sourced from DFAT advices of 15 January 2003 to assess my claims in relation to my departure from China. However, my departure from China was actually happened in 2006; and the situation in China has completely changed and much more different from the situation reflected in the information dated early in 2003.
(5)The Tribunal made its decision with bias.
Particulars:
(a)It may not be unusual that a forgery document could be easily obtained in China, but it must be unfair if the Tribunal presumed my document must be forge (sic- forged) without any reasonable evidences.
(b)Furthermore, without any direct contacts with the church in Australia, it must be unfair if the Tribunal doubted my motive of attending the church in Australia.
In summary, I have never ever agreed that my application has been assessed by the Tribunal fairly and carefully.
The applicant has not filed an amended application.
Applicant’s oral submissions
In his oral submissions the applicant submits that s.425 was breached because “if RRT doesn’t have sufficient evidence to give a judgement, then it has to invite the applicant for a hearing” (Transcript 1, line 27). The applicant was invited to a hearing on 27 September 2006 (CB 59) and attended at that hearing (CB 106). No breach of s.425 has been shown.
The applicant complains that the Tribunal did not consider country information released in March 2007 (Transcript 5). As this information was released after the Tribunal issued its decision, the Tribunal could not consider it.
The applicant complains that the decision of the Tribunal was not objective, which the Court takes to include an allegation of bias (Transcript 8, line 15). No particulars are provided and no evidence has been filed to comply with the requirement that an allegation of bias must be “distinctly made and clearly proven”: SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 at [22], citing Minister for Immigration and Multicultural Affairsv Jia Legeng (2001) 205 CLR 507. The Court accepts also that it “will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision”: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38].
To establish bias the applicant would have to show that the Tribunal “acted dishonestly or arbitrarily or capriciously”: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 per Tamberlin, Mansfield and Jacobson JJ at [56-59].
“The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided”: Re Refugee Review Tribunal & Anor; ex parte H & Anor (2001) 179 ALR 425 at [27].
There is nothing to show that a “fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided”: Re Refugee Review Tribunal & Anor; ex parte H & Anor (2001) 179 ALR 425 at [27], citing Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; (2000)176 ALR 644 at 647 [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ. Bias has not been established. This claim is rejected.
The applicant complains that the Tribunal did not investigate his religious activities in Australia (Transcript 8, line 25).
The High Court stated in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43]:
Secondly, whilst s.427 of the Act confers power on the Tribunal to obtain a medical report, the Act does not impose any duty or obligation to do so. Rather, s.426 provides that, even if an applicant requests that the Tribunal take oral or written evidence from a witness (such as a medical practitioner or psychiatrist), the Tribunal is not required to obtain such evidence. Thus, the Tribunal is under no duty to inquire.
The applicant then sought to put an article before the Court that had not been written at the time of the hearing before the Tribunal, and therefore was not before the Tribunal (Transcript 8, line 30). The Court cannot consider information that was not put before the Tribunal.
During oral submissions to the Court, the applicant sought to refer to what was said by his interpreter before the Tribunal. The Court refused to accept that evidence without an interpretation by an accredited interpreter with an affidavit by the interpreter attesting as to its accuracy. The Court granted the applicant 21 days to have that interpretation prepared (Transcript 12, line 33). An order was made by the Court on 13 June 2007 that the applicant “file and serve by 4 July 2007 a transcript of the Tribunal’s hearings on 27 September 2006 and 19 October 2006, to be verified by an affidavit of an accredited interpreter”. The applicant filed a written submission on 29 June 2007. An affidavit by an accredited interpreter as to the interpretation of the Tribunal hearings was not provided. The first respondent filed written submissions in response to the unverified translation filed by the applicant. The first respondent accepts that the interpreter is an accredited Level 3 interpreter and that the transcription of the parts of the hearing conducted in English are substantially accurate. The first respondent “does not take issue with the transcription of Chinese passages into English”.
The purpose of the orders of 13 June 2007 was to enable the applicant to present evidence of the Tribunal’s conduct of the hearing which the applicant alleges shows that the Tribunal was biased against him. The Court accepts the submission for the first respondent that even if all the errors alleged to be made in the interpretation of the hearing on 27 September 2006 occurred, the question is whether the interpretation “was so incompetent that he was prevented from giving his evidence”: Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 at [38]. As stated in Perera at [45], the “departure must relate to a matter of significance for the applicant’s claim or the Tribunal’s decision”.
The Tribunal hearing on 27 September 2006 was followed by a hearing on 16 October 2006. The applicant makes no complaint about the second hearing (Transcript 14, line 11). The central claim made by the applicant which the Tribunal did not accept, that is mentioned in Appendix C of the interpretation, is his claim to having been of interest to Chinese authorities after the pro-democracy demonstrations in 1989 (Annexure C, pages 4-5). The first respondent submits that the errors alleged to have been made cannot be considered to be material, and points out that the discussion on this issue was extensive (Transcript 21-32). The first respondent contends that as few errors on the issue are noted in Appendix C, the bulk of the exchange was correctly interpreted. The Court accepts that submission. It has not been shown that the applicant was prevented from giving his evidence on that issue. The Tribunal stated that it “does not accept that the applicant was of interest to the Chinese authorities in 1989” (CB 138.8), and set out its reasons for reaching that conclusion. It has not been shown that errors in interpretation led to that conclusion.
The area in which it is alleged the interpreter made most errors was the applicant’s knowledge of Christianity (Appendix C, pages 8-12, 15). However, the Tribunal accepted that both the applicant and his wife are practising Christians (CB 146.3). The alleged inaccuracies in the interpretation did not therefore prevent the applicant from proving that the applicant is a practising Christian.
The Tribunal then “accepts the country information that Christianity is growing quickly in China and possibly faster than any other part of the world” (CB 146.4). The Tribunal found that “there is no real chance that the applicant would face persecution as a practising member of an underground Christian church in China now or in the reasonably foreseeable future” (CB 146.8). The Court notes the very cautious approach taken by the Tribunal in relation to interpretation at the hearing (CB 135.10 – 136.9). The Tribunal did not accept that the interpretation at the hearing on 27 September 2006 was deficient in any way (CB 136.9).
The Court accepts the submission for the first respondent that
the applicant has not established that ‘material errors occurred in the interpreting of [his] statements and, therefore, that miscarriage in the decision-making process had occurred’: Soltanyzand v Minister for Immigration and Multicultural Affairs [2001] FCA 1168 at[18].
The Court finds nothing in the transcript of the hearing of 27 September 2006 that establishes bias, or would give rise to a reasonable apprehension of bias. The applicant has not provided a transcript of the later hearing. The Court refers to its finding that bias has not been established in ground five of the application (post), in particular, the passage from the decision in SZFZF (post).
The first respondent referred to the following passage in the decision in Re Refugee Review Tribunal; ex parte H (2001) 179 ALR 425 at [31]:
Where, however, parties are not legally represented in inquisitorial proceedings, care must be taken to ensure that vigorous testing of the evidence and frank exposure of its weaknesses do not result in the person whose evidence is in question being overborne or intimidated. If that should happen, a fair-minded lay observer or a properly informed lay person might readily infer that there is no evidence that the witness can give which can change the decision-maker’s view.
As stated above, the transcript of the hearing on 27 September 2006 does not establish bias.
Returning to the applicant’s oral submissions, the applicant complains about the Tribunal finding a connection between the date when his daughter came to Australia and when the applicant applied for his passport (Transcript 12, line 37). The relevant passage is at CB 143.2. It is not apparent that the Tribunal made a finding of fact that the coincidence showed an intention to return permanently to Australia in June 2005. If it did make that finding, it was a finding of fact properly open on the material and is not open to review.
The applicant complains about an alleged finding of the Tribunal that a document provided by him is fake (Transcript 13, line 4). The applicant complains that the Tribunal found that the letter the applicant wrote to Chinese authorities to be fake because it found that the letter from his employer to be fake (Transcript 8, line 22). The Court accepts the submission for the first respondent that the Tribunal did not make a finding as to the authenticity of the petition the applicant alleged he sent (CB 142). As is shown by the passage (at CB 142.8) the Tribunal there was concerned about the applicant’s claim that he came to the attention of the PSB because he sent the petition.
As to procedural fairness, the Tribunal raised its concerns about the petition in a s.424A letter (CB 86.5), and raised its concerns about the letter from his employer terminating his employment, and put to the applicant country information as to the ready availability of forged documents in China (CB 88). The Tribunal did not conclude that the petition was fake because of its finding that the letter from his employer was fake. The Tribunal gave the letter separate consideration and reached conclusions on it for reasons irrelevant to the petition (CB 146.2). Such a finding is a finding of fact for the Tribunal. The Court holds that the finding of fact by the Tribunal as to the validity of the document was properly open to it on the material before it and is not subject to review. “The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances”: Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27].
Findings as to the grounds in the application
Ground one
Ground one alleges a breach of s.425 of the Migration Act. Section 425 provides:
Tribunal must invite applicant to appear
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2)Subsection (1) does not apply if:
(a)the Tribunal considers that it should decide the review in the applicants favour on the basis of the material before it; or
(b)the applicant consents to the tribunal deciding the review without the applicant before it; or
(c)subsection 424C(1) or (2) applies to the applicant.
(3)If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
The particulars of this ground relate to alleged difficulties with the interpreter at the hearing on 27 September 2006. The Court accepts the submission for the first respondent that to establish reviewable error, the applicant would have to persuade the Court “that material errors occurred in the interpreting of the appellant’s statements and, therefore, that miscarriage in the decision-making process had occurred”: Soltanyzand v Minister for Immigration and Multicultural Affairs (ante) at [18].
The issue in relation to the interpreter has been dealt with under ‘Oral Submissions’ above.
The Tribunal dealt with the question of interpreters and stated that it was “acutely aware of potential difficulty with interpretation” (CB 136). The Tribunal “asked the applicant to advise it immediately if he had any difficulty understanding the interpreter at any stage of the hearing,” and then asked the interpreter to “let the Tribunal know if he had any difficulty understanding the applicant” (CB 136). Neither told the Tribunal of any problems.
The Tribunal conducted a second hearing on 19 October 2006, with a different interpreter. The applicant did not then raise any concerns about the quality of the interpreting at that hearing or about the quality of the interpreting at the hearing on 27 September 2006.
A s.424A letter was sent to the applicant on 13 November 2006 (CB 84). The applicant’s migration agent responded on 29 November 2006 (CB 90) with the statutory declaration by the applicant of 28 November 2006 (CB 91), which raised for the first time the problems that the applicant alleged that he had with the interpreter on 27 September 2006 (CB 96 para.13). As a result of the Court’s finding that the interpretation did not prevent the applicant from giving evidence, the Court finds that s.425 was not breached. Ground one is rejected.
Ground two
Ground two alleges that the Tribunal failed to consider the applicant’s evidence “properly and fairly”. Particular (a) complains about the adverse findings of credibility by the Tribunal. The Court refers to the decision of the Federal Court of Australia in W148/00A v MIMA (2001) 185 ALR 703 at [64] per Tamberlin and R.D. Nicholson JJ as follows:
The tribunal decision turned on the question of credibility. A finding as to credibility is a finding of fact and, as the authorities indicate, a reviewing body must not set aside such a finding simply because it thinks that the probabilities of the case are against, or even strongly against, the finding. As the High Court stated in Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479; 112 ALR 641 at 646 per Brennan, Gaudron and McHugh JJ:
If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the findings must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”.
See also Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179; 96 ALR 354. This latter case was concerned with the scope for review of a decision founded in part on demeanour where the court at first instance had an opportunity to observe witnesses and form an impression as to the reliability of evidence given in response to questioning. Often a conclusion as to the credibility of a witness will depend not only on the body language and general impression conveyed by a witness in the way in which questions are answered but also on a careful consideration of the factual background or available information, coupled with ordinary experience as to likely patterns of response. Such an impression cannot be communicated by consideration of the transcript alone.
The Tribunal set out its reasons for not accepting the applicant’s evidence (CB 145.1). It has not been established that the Tribunal “has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence”. Particular (a) is rejected.
Particular (b) complains that the Tribunal gave “too much weight to my experience before” (i.e. before he first came to Australia). As stated in Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 per French J at [27]:
The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.
The Court refers also to the following passage in Tefonu Pty Limited v Insurance and Superannuation Commissioner (1993) 44 FCR 361 per Beazley J at [54]:
The weight which is to be given to a relevant factor is a matter for the Tribunal, unless it can be said that the Tribunal's decision is manifestly unreasonable. (Minister for Aboriginal Affairs and Anor. v. Peko-Wallsend Limited and Ors (1985-1986) 162 CLR 24 at 41; Associated Provincial Picture Houses, Limited v. Wednesbury Corporation (1948) 1 KB 223 at 230, 233-234).
In other words, the decision must be so unreasonable “that no reasonable body could have come to it”: Ibid at [41]. That is not so in this case. Particular (b) is rejected.
Grounds three and four
Grounds three and four allege that the Tribunal “misstated independent country information” and “failed to use up-to-date independent country information.”
In the applicant’s written submissions, the applicant seeks to rely on the “Country Report on Human Rights Practices for China by US Department of State, released in March 2007.” That report was released after the decision of the Tribunal was handed down. No complaint can be made that the Tribunal did not have regard to material not before it.
These grounds, therefore, are that the Tribunal mis-stated independent country information because it did not have regard to country information that had not been released when the Tribunal handed down its decision.
Insofar as the applicant claims that the Tribunal looked at country information that related to official religions, and not at information about unofficial groups of which he alleges he was a member: the material relied on by the Tribunal drew distinctions between official and unofficial religious groups (CB 131-132). It also looked at a UK Home Office Report in 2003 that relates specifically to the Fujian Province (CB 132) that stated that “the government generally tolerates the existence and activities of unsanctioned churches as long as the services are small and there is no higher level organising” (CB 132.2). Grounds three and four are rejected.
Ground five
Ground five alleges bias. The applicant complains that the Tribunal’s findings are “unfair”. The Court applies the decision of Justice Von Doussa in SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38] as follows:
Reasons for decision reflect conclusions reached at the end of the decision making process, and if the decision is against the party complaining, the expression of adverse findings on credit and fact are an inevitable part of the expression of the reasons. The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision. Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed, that without more is unlikely to demonstrate that the decision maker had embarked on the case with a closed mind, not open to persuasion.
The Court quotes from its decision in SZFZF v Minister for Immigration & Anor [2007] FMCA 856:
This ground therefore alleges bias. No particulars are provided and no evidence has been filed to comply with the requirement that “an allegation of bias must be clearly made and distinctly proven”: SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 at 22, citing Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507. The Court accepts also that it is a rare and exceptional case in which actual bias can be demonstrated solely from the published reasons of the decision: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38].
“To establish bias the applicant would have to show that the Tribunal ‘acted dishonestly, arbitrarily, or capriciously’”: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 per Tamberlin, Mansfield and Jacobson JJ at [56-59].
“The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided”: Re Refugee Review Tribunal & Anor; ex parte H & Anor (2001) 179 ALR 425 at [27].”
There is nothing to show that a “fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided”: Re Refugee Review Tribunal & Anor; ex parte H & Anor (2001) 179 ALR 425 at [27], citing Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; (2000) 176 ALR 644 at 647 [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ.
The finding of the applicant’s motive for joining the church in Australia was a finding of fact properly open to the Tribunal. That finding does not show bias. Bias, actual or reasonable grounds for an apprehension, has not been established.
The applicant complains that it was unfair for the Tribunal to find that the letter of termination of employment that the applicant produced was forged, alleging that there was no reasonable evidence to support that finding. The Tribunal set out its reasons for the finding at CB 145.3–146.2. Those findings of fact were properly open. Bias has not been established. Ground five is rejected.
Conclusion
The Court finds that the Tribunal’s decision is a privative clause decision, and has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
Accordingly, the application is dismissed.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Turner FM
Acting Associate: Mary Giang
Date: 15 October 2007
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