SZLIJ v Minister for Immigration - [2008] FMCA 923

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLIJ v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 923

MIGRATION – Review of decision of Refugee Review Tribunal – no evidence of bias – no apprehension of bias – no failure to consider evidence – weight a matter for the Tribunal – no denial of procedural fairness – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.424A, 65, 36(2), 422B, 425
Migration Regulations 1994 (Cth), reg.4.35D

Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28
Minister for Immigration Multicultural Affairs v Jia (2001) 205 CLR 157
SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361
Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431
VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507
SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225
NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Randhawa v Minister for Immigration and Ethnic Affairs (1994) 52 FCR 437
Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407
Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61
SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62
SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26
VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63

Applicant:

SZLIJ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2860 of 2007

Judgment of:

Nicholls FM

Hearing date:

17 March 2008

Date of Last Submission:

17 March 2008

Delivered at:

Sydney

Delivered on:

11 July 2008

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Counsel for the Respondents:

Ms V McWilliam

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application made on 17 September 2007, and amended on 4 January 2008, is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2860 of 2007

SZLIJ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made under the Migration Act 1958 (Cth) (“the Act”) on 17 September 2007, and amended on 4 January 2008, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal) signed on 7 August 2007, and handed down on 21 August 2007, which affirmed the decision of the delegate of the respondent Minister to refuse a protection visa to the applicant.

Background

The first respondent has filed a bundle of relevant documents in this matter (the Court Book – “CB”) from which the following background may be discerned.
The applicant is a national of the People’s Republic of China who arrived in Australia on 13 February 2007 (CB 11.4), and applied for a protection visa on 13 March 2007. (The application is reproduced at CB 1 to CB 22.) The applicant was assisted by a migration agent in making this application (CB 35). Her claims to protection were set out in a statement (reproduced at CB 23 to CB 27).

Applicant’s claims to protection

The applicant claimed that after finishing school she was employed in a particular electronic organ shop run by a “Ms Chen” who was a Christian and a “secret member” in an underground Christian church where, in particular, she conducted a choir composed mainly of young people. The applicant claimed to have been introduced to Christianity by her, and in December 2004 was baptised and became a Christian.

In January 2005 Ms Chen asked her to be in charge of a children’s choir attached to the underground church that met at various places including the homes of other participants in the church.
The applicant claimed further that in October 2005 she went to Malaysia as an overseas student and continued her religious practices in the local church. In April 2006 she returned to China on “holiday”, and “secretly” brought with her religious “propaganda materials”.

At that time she was also assisted by Ms Chen to organise a class to teach hymns to children and young people in the underground church.
She returned to Malaysia in May 2006, and while she continued her studies sent further religious propaganda materials to China (at the “instruction of Ms Chen”). The applicant claimed that in November 2006 she again returned to China and found that Ms Chen had already closed her shop because the authorities had paid attention to the shop, and following Ms Chen’s departure for a “remote village”, she took Ms Chen’s place to manage the choir of the underground church. She claimed that in December 2006 Ms Chen was arrested by the Chinese security authorities, and that the authorities discovered the applicant’s “frequent contacts” with Ms Chen, and suspected that the applicant might have been “deeply involved” in her “illegal activities”.
She claimed to have been arrested by the PSB in January 2007 and interrogated by the police. After being detained for 10 days she was released because she insisted that she was only an employee of Ms Chen’s. On release she was warned not to become involved in any illegal activities, and was directed by the PSB to assist them to investigate Ms Chen.
However, the applicant then found that the “police always gave me troubles” and she was subjected to questioning by the security authorities on about three occasions. Also in January 2007, the girlfriend of a person who assisted in the delivery of materials from Malaysia to China was arrested, and the applicant feared that the authorities would therefore find out about her role in transporting the religious propaganda into China, and would know about her role in the underground church. Therefore, in February 2007, she left China.
She was subsequently informed by her family, in March 2007, that the police had come to her home, and that she “had been regarded as a major activist of the underground church”. She subsequently found that the person who assisted in the transportation of goods was also arrested, and therefore feared similar harm to occur to her if she were to return to China.

The Delegate’s Decision

The application for a protection visa was refused. The delegate’s decision record is reproduced at CB 41 to CB 48. The reason for the decision appears to be that, with regard to independent country information available to the delegate, the applicant’s claims to protection were rejected on the basis that “the applicant’s profile would [not] lead to a real chance of Convention-based persecution should she return to China” (CB 47.3) Further, that the applicant having left China lawfully on a passport issued in her own name indicated that she did not have a profile that was of interest to Chinese authorities at the time. This led the delegate to have “considerable concerns as to the veracity of the applicants (sic: applicant’s) claimed reasons for leaving China” (CB 47.4). The delegate also found that she had credibility concerns regarding the applicant’s allegation that her family was approached by police “many times since early March”, given that the applicant’s claimed conversation with the family was said to have taken place on 3 March 2007, which would only allow two or three days for the “many visits of the police to have occurred” (CB 47.6).

The Tribunal

The applicant sought review by the Tribunal on 4 May 2007. Again, she was assisted by a migration agent (CB 53 to CB 57). The applicant also submitted the following material to the Tribunal in support of her application for review: a number of books, photos and letters (see CB 119 to CB 138). The applicant was invited to, and attended, a hearing before the Tribunal on 12 June 2007 (CB 74). The Tribunal’s account of what occurred at the hearing is set out in its decision record at CB 99.2 to CB 104.6.
Following the hearing, the Tribunal wrote to the applicant by letter dated 18 July 2007 inviting her to comment on information which it said, subject to any comment she may make, would be the reason, or part of the reason, for affirming the decision that was under review (CB 77 to CB 80). The applicant responded by way of statutory declaration provided under cover of a letter from her migration agent (CB 82 to CB 88).
The Tribunal (see in particular CB 108.8 to CB 116) understood the applicant’s claims to fear harm to be based on a fear of persecution from the police who would arrest her on her return to China because of her involvement in an underground Christian church, and in particular, the past responsibilities as a leader of the children’s choir, and in smuggling prohibited Christian materials (CB 108.10 to CB 109.1). The Tribunal found that it considered “the applicant’s evidence to be of low reliability”, and found variously that much of her evidence was “exaggerated”, and that on occasions “she appeared to be retelling a rehearsed narrative”. On other occasions, that “she appeared evasive and confused in her responses, sometimes trying to correct and embellish on them during the course of the discussion” (CB 109.3). The Tribunal nonetheless accepted that the applicant was a Christian, but for reasons which it explained in some detail found her “association with Christianity” to be “recent and superficial” (CB 111.3).
In arriving at this conclusion the Tribunal’s analysis reveals it considered her evidence as follows:
1)Her familiarity with Christian concepts and practices was limited. While it made allowances for her relatively recent introduction to Christianity, it formed the view, on the basis of the evidence that she had given at the hearing, that “her knowledge was recently acquired and patchy” and that “[s]he did not have the familiarity and context of a longer term or more seriously committed Christian” (CB 109.6).
2)Found it difficult to “elicit meaningful information from the applicant about her religious practice in China”, that her descriptions were given “in almost rote fashion”, and that she appeared “reluctant to be drawn further”. It found it “highly spurious that a person knows about those aspects of a church that could give rise to claims of persecution, yet has little familiarity with other aspects” (CB 109.7).
3)Accepted that letters provided by the applicant (one from Pastor Lee in Malaysia, and one from the Reverend Ku in Sydney) as being evidence that the applicant attended their respective churches, and was involved in their activities. The Tribunal (despite some reservations as to whether what was stated in one of the letters was only repeating a statement based on what the applicant “requested Pastor Serena to write in support of this application”), nonetheless found that the applicant had been involved in the activities as claimed. However, it placed little weight on either letter as independent corroboration of the applicant’s claims regarding “her activities in China or what she will do in the future if she returns there” (CB 109.9).
4)Had regard to a large number of photographs that the applicant had presented to it at the hearing, but given what variously was depicted, could not find that the photographs supported the applicant’s claims to be relevant to her claims to have participated in Christian activities, or to have Christian links (CB 109.10 to CB 110.5).
5)
Placed no weight on the Chinese language papers, brochures, and booklet the applicant provided as “evidence” of her faith.

It found that the applicant had given “unreliable evidence” as to her association with “these texts”. (These appear to be part of the texts that the applicant smuggled into China, and that she carried with her to Australia.) The Tribunal did not find the applicant’s evidence credible in this regard, and did not accept her explanations as to how she was able to have carried these materials. The Tribunal found that the applicant did not have such texts with her in China, but that she had arranged for someone to send them to her from Malaysia “for the purposes of a refugee application” (CB 110.5 to CB 111.3).
The Tribunal did not accept the applicant’s claims regarding her involvement in “clandestine or unauthorised Christian activities in China”, and understood these claims to be related to the conducting of a children’s choir and smuggling prohibited religious materials. For the reasons that it gave the Tribunal found that the applicant “had only low profile involvement with a church in China, whether registered or unregistered” (CB 111.4). The Tribunal variously found the applicant’s evidence to be “dubious” and “unconvincing”. While it accepted that she had musical interests, did not accept the scenario involved in her claims that she came to the attention of the authorities because of her involvement with the choir. The Tribunal in particular found that the applicant’s explanations did not adequately explain “why the authorities targeted XC [the applicant’s employer] and the applicant, yet failed to act against the rest of the church” (CB 112.1).
The Tribunal further noted that the applicant changed her evidence in her letter in response to its “s.424A letter”. It considered the applicant “advanced these points to redress the weakness in her evidence” (CB 112.3). In all, the Tribunal rejected the applicant’s claim to have been involved in any clandestine or illegal activities associated with the children’s choir (CB 112.4), and further rejected her claim to be involved in smuggling prohibited religious materials into China because of “its adverse view of her credibility generally and because of its particular concerns that the nature and timing of this claim is contrived” (CB 112.5).
The Tribunal did not accept that the applicant had suffered any past harm in China for any reason of her religion, nor that anyone else associated with the applicant had suffered such harm. The Tribunal gave detailed reasons for this (CB 112.6 to CB 114.8). The Tribunal rejected the applicant’s claimed past harm in China, and did not accept that the authorities called on her home since her arrival in Australia. While it accepted that the applicant had contacts with Christians in Malaysia and Australia, and that she had become closely involved in social musical activities of church groups, and also accepted that she had had some involvement with the Christian church in China (as a person “whose interest in Christianity is relatively recent and is still developing” (CB 115.1)), but found that for the reasons which it gave in some detail there was no real chance that the applicant would face persecution for reason of her religion if she were to return to China (CB 115.2 to CB 116.3).
The Tribunal’s summary was expressed as follows (CB 116.4):
“[T]he Tribunal accepts – albeit with some difficulty – that the applicant is a low profile, recent Christian convert who has participated in modest church activities in her locality in Fujian in the past, without any obstacles. The Tribunal finds that she can return to China and resume this religious practice, or develop her involvement in musical or social activities if she so chooses, without a real chance of persecution. The Tribunal does not accept the applicant’s claim that she and other church members have had to refrain from certain activities in the past to avoid persecution, and it does not accept that she will have to do so in future.”
In all, therefore, the Tribunal concluded that the applicant was not a person to whom Australia owed protection obligations under the Refugees Convention, and therefore affirmed the delegate’s decision not to grant the applicant a protection visa.

Hearing before the Court

At the hearing before the Court the applicant appeared unrepresented. She was assisted by an interpreter in the Mandarin language. Ms V McWilliam of Counsel appeared for the first respondent.

The matters raised in the application to the Court were pressed in greater detail in the amended application, and I understood from what the applicant submitted at the hearing before the Court, that it was the complaints as ultimately expressed in the amended application that she wished to press before the Court.
By way of submissions, the applicant read from a prepared statement (which I understood to have been written in Chinese characters by her), and this was translated for the Court by the interpreter. The applicant’s complaints emphasised that the Tribunal was biased against her.

In support of this claim the applicant made the following specific points:
1)The Tribunal’s “judgment” was “baseless” because it “believed” that what was stated in the letter from the Pastor from Malaysia to prove that she attended church in Malaysia yet the Tribunal stated that this letter was demanded by her and was written according to her request.
2)The Tribunal “ignored” her important evidence and that therefore its decision was unfair.
3)Its decision, as it related to her religious knowledge, “was based on only a couple of simple questions”, and its judgment was wrong.
4)The Tribunal “ignored” that the interpreter at the hearing could not interpret “special religious terminology”.
5)The Tribunal did not take into consideration “key points” of her application, and the “written evidence from the two pastors”.
6)Took issue with the Tribunal’s findings in relation to the photographs provided by her, and the religious propaganda materials. She said its decision in this regard was based on “assumptions”, asserting that the photographs and religious propaganda materials “are the key evidence” which “prove” her religious activities.
7)The Tribunal did not provide her with a fair chance to comment on these key issues.
8)Somewhat in contradiction, that in any event, when the applicant responded to the Tribunal’s “s.424A letter”, she gave “a detailed explanation of many issues”, but the Tribunal did not take this into consideration in making its findings
At the hearing, the Court had the benefit of submissions by counsel on behalf of the first respondent, and written submissions drafted by counsel and filed on his behalf.

The Application

The stated grounds in the amended application:
“-There was an error of law in the Tribunal’s decision constituting a jurisdictional error.
-There was procedural error in the Tribunal’s decision constituting an absence of natural justice.”
It is with reference to the particulars that follow (and the applicant’s submissions before the Court) that the applicant’s complaints can be best understood as follows.
1)Bias, apprehension of bias, bad faith.
2)The Tribunal failed to have regard to the applicant’s evidence fairly and properly in relation to the two letters that the applicant provided from the pastors in Malaysia and Sydney.
3)The Tribunal’s decision “includes” an apprehension of bias which in particular arises from the Tribunal’s finding as to the applicant’s religious knowledge (which was based “only on a few questions), its rejection of photographic evidence and the religious promotion material, and that the Tribunal “ignored significant evidence that the interpreter was unable to interpret special religious terms correctly”.
4)The Tribunal failed to provide her with a fair chance to present her arguments in relation to the issues arising in the review in that the Tribunal failed to “genuinely and fairly” consider her claims and evidence as they were put to the Tribunal in response to its “s.424A letter”.

Complaint – Bias, apprehension of bias, bad faith

As was pressed at the hearing before the Court, the applicant’s general complaint encompassing all of her other complaints, and said to arise from the other complaints, is that the Tribunal was biased, or that an apprehension of bias could be discerned, or that it acted in bad faith.
I have regard to relevant authorities in relation to these matters (Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28, Minister for Immigration Multicultural Affairs v Jia (2001) 205 CLR 157, SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361 at [43]-[44], Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431, VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102).
Such complaints, as is often said, are serious and require evidence for them to be made out. Beyond assertion, the applicant has not provided any evidence to support her claims in this regard. It is, of course, an exceptional circumstance that bias can be made out only having regard to the Tribunal’s decision record (SCAA v Minster for Immigration Multicultural and Business Affairs [2002] FCA 668 at [38]).
Further, to the extent that the applicant’s complaints are directed to the Tribunal’s rejection of the applicant’s evidence, then it is, as Ms McWilliam submitted, that the mere fact of adverse findings at the end of a matter, and as expressed in a decision record, does not give rise to any inference as to the state of mind of the decision maker before, and while the matter was under consideration, nor indeed of any pre-judgement of the issues that fell for decision (see SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38], per von Doussa J).
These complaints are not made out.

Failure to consider evidence

In relation to the particulars to ground one in the amended application, the applicant complains that the Tribunal based its decision on “unwarranted assumption”, that it failed to look at the evidence that she had submitted, being the two letters from the pastors. In particular, the applicant complains that while the Tribunal accepted that the letters from Pastor Lee and Reverend Ku were evidence that the applicant had attended their respective churches, and was involved in their activities, and further noted that both letters spoke of the applicant’s active contribution to church activities, particularly in the area of church music, and spoke favourably of her character, and even further that the Tribunal made a finding that the applicant had been involved in these activities, but in spite of all this, the Tribunal decided to give “little weight on either letter”, and did so without giving any reasons.
The Tribunal certainly accepted both letters to be evidence that the applicant had attended the respective churches, as claimed, in Malaysia and Sydney (CB 109.8). The Tribunal certainly found that the applicant had been involved in these activities (CB 109.9). However, the applicant’s complaint that the Tribunal decided to place little weight on either letter, misrepresents the actual finding by the Tribunal. Further, the assertion that it did so “without giving any reasons” is not supported by what is before the Court.
First, the Tribunal finding that it placed little weight on either letter, was plainly expressed as being: “independent corroboration of the applicant’s claims regarding her activities in China or what she will do in the future if she returns there” (CB 109.9). It is plainly not inconsistent of the Tribunal to have found that the applicant had engaged in certain activities in Malaysia and Sydney, but that given that these activities occurred outside of China, and plainly, in context, given its other concerns about the applicant’s evidence relating to what she said had relevantly occurred in China, to then place little weight on either letter as going to the issue of future harm in China if she were to return there. Far from being an “unwarranted assumption” the Tribunal’s finding was plainly cogent, and open to it, and directed to the issue that it was jurisdictionally required to consider. This was whether the applicant would face a well-founded fear of harm for a Convention reason if she were to return to China.
Further, the giving of weight to evidence before it is, of course, a matter for the Tribunal as the relevant finder of the fact (NAHI v Minister For Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11] ). The Tribunal properly exercised its power within the jurisdiction given to it.
Nor is it correct to say the Tribunal failed to look at the evidence that she had provided. The Tribunal plainly looked at the two letters and accepted what was claimed to the extent, as stated, that it was evidence that the applicant had attended churches in Malaysia and Sydney.

To the extent that the applicant’s complaint implies that the Tribunal failed to look at the evidence in the sense of accepting that the evidence was relevant to support her claims as they relate to China, and therefore the Tribunal should have placed greater weight on the issue of her activities in China, then such a complaint does not rise above a request for impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shan Liang”)).
The applicant also complains that the Tribunal rejected the letter from Pastor Lee based on “nothing but its assumption”, which is said to be:
“obviously based on what the applicant requested Pastor Serena to write in support of this application and what she told her about her past in China …”
The letter from Pastor Lee is reproduced at CB 135. The relevant part of the letter giving rise to the applicant’s complaint about how the Tribunal dealt with the letter in this regard is:
“Before she came to Malaysia, [the applicant] was committed to serving in the children and youth ministries.”
Any plain reading of the Tribunal’s decision record reveals that the Tribunal reasoned that, given “Pastor Serena” was writing on 8 April 2007 (the date of the letter), that the reference to the applicant’s prior involvement of “serving in the children and youth ministries”, was plainly a reference to the time before the applicant went to Malaysia. In context, therefore, it could only have been a reference to what the applicant had done in China.
In all the circumstances (and in the absence of any indication to the contrary), it was open to the Tribunal to find, as is implicit in its finding, that Pastor Lee could not have personally known, or observed, the applicant’s activities in China, given that she was in Malaysia, and that there was no evidence that she had ever visited the applicant previously in China. In fact, the letter states that “As the Pastor in charge of the Chinese congregation [at the church in Malaysia] I came to know her” (CB 135.5). (Clearly she did not know the applicant before she came to Malaysia.)
In these circumstances, it was reasonable for the Tribunal to consider that Pastor Lee could only have known of what the applicant had done in China based on what the applicant herself had told her (in the absence of any evidence that anyone else would have, or could have, told Pastor Lee). The Tribunal’s finding in this regard was not a “baseless assumption” as the applicant complains, but was a finding that was plainly open to it on what it was before it. This complaint does not to assist the applicant’s case before the Court either on its own, nor as part of the applicant’s more general complaint of bias on the part of the Tribunal.

Apprehension of bias: Based on a “Few Questions”

Particular two in the amended application specifically asserts that the Tribunal’s decision was affected by an apprehension of bias, said to be because the Tribunal based its findings in relation to the applicant’s religious knowledge on “a few questions which seemed completely arbitrary”. Second, that it “ignored significant evidence that the interpreter was unable to interpret special religious terms correctly”. Third, that the well-informed lay observer would reasonably apprehend that its rejection without any reasons or evidence of the applicant’s claim to have served in children and youth ministries, and to have contributed to church music, were strongly supported by two “significant church leaders”. Further that such bias would be apprehended because the Tribunal rejected the photos and religious promotion material that the applicant provided in support of her claims without any genuine attempt to consider the important documentary evidence, and was based on nothing “apart from its assumption or its own prejudice”.
To the extent that the applicant complains about the interpreter at the Tribunal hearing, and asserts that the interpreter was unable to interpret certain terms correctly, the Tribunal’s obligation, in this regard, is to provide an interpreter who can provide a level of interpretation that is competent. Such interpretation being seen to be competent if “adequate or satisfactory when judged against the relevant standard” (see Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507 per Kenny J at [31]).
Beyond the mere assertion made in the amended application, or in oral submissions before the Court, the applicant has not brought any evidence to this Court to support such assertion that the level of interpretation at the hearing was incompetent, or that it was inadequate or unsatisfactory in relation to the interpretation of special religious terms, or indeed in relation to any other matter at the hearing before the Tribunal.
Nor is there anything in the material that is before the Court, to support any such assertion. Further, there is nothing in the only account of what occurred at the hearing (that is, the Tribunal’s own account – unchallenged by any other evidence brought by the applicant) to support the applicant’s complaint. Nor does this account reveal any complaint in this regard made by the applicant to the Tribunal during the course of the hearing.
Importantly, the applicant was represented by a migration agent during the course of the review. Indeed the migration agent sent the applicant’s response to the Tribunal’s “s.424A letter” under cover of her own letter to the Tribunal. Such response was plainly well after the hearing. With the benefit of a registered migration agent assisting her, the applicant made no complaint to the Tribunal in this regard. I note that the hearing occurred on 12 June 2007, and the response to the “s.424A letter” was sent some nearly 3 weeks later on 1 August 2007. Indeed the Tribunal’s decision was not handed down until 21 August 2007, in which case there was more than sufficient time for the applicant to have raised any complaint with the Tribunal.
The applicant also complains that the well-informed lay observer would reasonably apprehend bias because the Tribunal based its findings in relation to the applicant’s knowledge of Christianity on “a few questions which seemed completely arbitrary”.
First, it should be noted that the Tribunal did not affirm the decision under review simply because it made only a finding in relation to the applicant’s religious knowledge. As set out above at [14] to [19], the Tribunal’s decision was based on a range of factors.
Specifically, the Tribunal’s account of the hearing in relation to the applicant’s religious knowledge (which it must be remembered was only one part of the range of factors which led the Tribunal to reject the applicant’s claims) is reported at CB 101.3 to CB 101.4. For example, the Tribunal alerted the applicant (amongst other things) to its disquiet that the applicant “did not appear to know Christmas Day until it had drawn this to her attention” (CB 101.4). Noting again that this was only one small part of the totality of the Tribunal’s findings in relation to the applicant’s claims.
On this issue, to the extent that the applicant asserts an apprehension of bias based on what she said occurred at the hearing, there is nothing before the Court in terms of evidence (as already referred to above) to support the applicant’s claims. To the extent that the applicant appears to also assert apprehended bias based in the Tribunal’s decision record, then this also does not succeed for the reason already referred to above (see [29] above and the reference to SCAA).
In any event, the applicant’s complaint that the Tribunal justified its findings in relation to the applicant’s religious knowledge based on a few arbitrary questions (and that this is revealed also with reference to its reasoning) is not made out. The Tribunal accepted that the applicant was a Christian (CB 109.4). It found that she had developed a “basic interest in and an attachment to the key tenants of the faith.”

It accepted these claims despite “serious misgivings about her evidence” (CB 109.4).
What the Tribunal found however, ultimately, was that the applicant’s relevant knowledge about Christianity (in addition to a number of other relevant factors) was such as to show only an association “with Christianity” that was “recent and superficial” (CB 111.4), leading to a finding that the applicant “had only low profile involvement with a church in China, whether registered or unregistered”.
The Tribunal gave detailed reasons for these findings. It found, based on the evidence provided by the applicant at the hearing (the Tribunal’s account is unchallenged by any evidence to the contrary), that the “applicant’s familiarity with Christian concepts and practices was limited” (CB 109.4). It observed that she had “considerable difficulty defining her faith beyond the fact that the authorities oppressed it and she did not appear to know or recognise key aspects of Christianity or to be able to place them in context”.
There is material before the Court (being the Tribunal’s account of what occurred at the hearing), to show that it was open to the Tribunal to form “the view that the knowledge was recently acquired and patchy”, and that it found it difficult “to elicit meaningful information from the applicant about her religious practice in China” (CB 109.6). The material before the Court therefore does not support the factual assertions made by the applicant in this regard.
The applicant also complains that the Tribunal rejected the evidence provided by “two significant church leaders” by way of their letters. Letters which were said to support the applicant’s “core claims”, and that it did so without giving any reason or “evidence in support of its findings”.
First, it must be noted that the relevant statutory scheme (ss.65 and 36(2) of the Act) requires the Tribunal to reach a requisite level of satisfaction that the criterion set out, relevantly in s.36(2) (that is, in effect, that the applicant meets the definition of “refugee” as set out in the Refugees Convention), such that in these circumstances a protection visa must be granted (SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15]-[16], NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 at [4]-[5], Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73).
In doing this, the Tribunal is not required to uncritically accept any, or all, of the applicant’s claims. Nor to find evidence to “disprove” an applicant’s claims, as the applicant asserts in the amended application (Randhawa v Minister for Immigration and Ethnic Affairs (1994) 52 FCR 437 at 451).
Further, to the extent that the applicant again complains that the Tribunal rejected the corroborating evidence provided by the two church leaders, that is not supported by any plain reading of the Tribunal’s decision record. As already referred to above the Tribunal accepted that the letters from the two pastors were evidence that the applicant “had attended their respective churches as claimed and was involved in their activities” (CB 109.8). But for the reasons as already referred to above (see [31] to [40]), the Tribunal found that little weight could be placed on these letters as they went to the issue of the applicant’s activities in China, or what she would do there in the future if she were to return. Plainly, the Tribunal gave reasons for how it dealt with this corroborating evidence, contrary to the applicant’s assertion now. To the extent therefore that the applicant now complains that her core claim of “serving in the children and youth ministries” in China was corroborated by what was set out in the two letters, such a complaint does not succeed.

Bias in respect to materials submitted

The applicant also complains that the Tribunal was biased (did not bring an independent mind) in considering the photos and religious promotion material that the applicant submitted, which she says was the “most important documentary evidence in support of my claims”, and that the Tribunal based its conclusions on nothing but its “own assumption” or its “own prejudice”.
The Tribunal plainly had regard to the photographs which the applicant had submitted at the hearing (CB 109.10). The Tribunal’s analysis was that ultimately the photographs, given what was depicted in them, did not support her claim that they “showed her religious activities in Malaysia” (CB 100.7, and CB 110.1 to CB110.4). As the Tribunal told the applicant during the course of the hearing (at CB 100.7):
“The Tribunal observed that they appeared to show university students, and invited the applicant to draw to its attention any religious aspects of the photographs.”
That the Tribunal formed this view was plainly based on its observation of what was depicted in the photographs (which are reproduced at CB 120 to CB 134). Plainly, the Tribunal was not required to uncritically accept the applicant’s assertion that the photographs depicted something other than was plainly to be observed from the photographs. What the applicant terms as an “assumption” made by the Tribunal is plainly a disagreement with the Tribunal’s view of what is depicted in the photographs, a view that was plainly put to the applicant at the hearing, and in relation to which she was invited to comment.
The Tribunal also considered the “religious promotion materials” provided by the applicant to the Tribunal in support of her claims (CB 110.5 to CB 111.3). It plainly gave the applicant the opportunity both at the hearing, and by way of its subsequent “s.424A letter”, for the applicant to explain the relevance of these documents to her claims, and how they could be said to support her claims (see CB 100.4 to CB 100.7, and CB 105.3 to CB 105.7).
Plainly, the Tribunal was unimpressed with the applicant’s credibility at the hearing, a finding of fact within the proper exercise of its jurisdiction (see, also for example CB 114) (Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407 at [67], per McHugh J). No bias is revealed simply because the Tribunal did not accept that the applicant’s claims were such as to engender a well-founded fear of harm for a Convention reason if she were to return to China, nor that documents submitted by the applicant assisted in this regard.
The applicant also complains that the Tribunal failed to provide her with a “fair chance” to present “her arguments against the issues arising from the review.” The applicant appears to take issue in this regard with the Tribunal’s treatment, and to also assert apprehension of bias.
To the extent that the applicant has provided (in the amended application) the full text of her response to the Tribunal’s “s.424A letter”, and to the extent that this may be said that the applicant is inviting the Court to form its own view of her response as against her claims and what was said at the hearing, this plainly is a request for impermissible merits review (Wu Shan Liang).

The applicant’s complaint that the Tribunal did not consider, or was not persuaded, by what was put in her response to its s.424A letter, in my view does not amount to anything more than a complaint that the Tribunal was not persuaded by what she had said.
First, the Tribunal plainly is not obliged to uncritically accept anything or everything that an applicant says to it. Second, it is clear that the Tribunal did have regard to the matters raised in her letter. It plainly recorded her response in its decision record (CB 105 to CB106), and referred to it in various parts of its analysis (see in particular CB 107, CB 110.8 to CB111.3, CB 114.3 to CB 114.6). I note further (see below at [72]-[76]) the Tribunal gave the applicant the opportunity to address the “issues arising from the review” at the hearing.

This complaint also does not succeed.
The applicant’s submissions which pressed her complaints at the hearing before the Court did not add any additional matters to those already discussed above.

Procedural Fairness

To the extent that the applicant’s complaints may be said to include an assertion that she was denied procedural fairness, I note that this is a case to which s.422B of the Act applies making the matters set out in Division 4 of Part 7 of the Act the exhaustive statement of the natural justice hearing rule (absent bias) (Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 at [59]-[67], SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [8], SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35 at [48]).
In relation to s.424A of the Act the Tribunal’s decision was plainly based on information:
1)Obtained from the applicant, either at the hearing or documents that she submitted at the hearing, and otherwise, during the course of the review. Such information falls within the exception contained in s.424A(3)(b) from the obligation in s.424A(1).
2)On independent country information available to it. Such information comes within the exception contained in s.424A(3)(a) (being non-in personam information) from the obligation in s.424A(1).
3)Information otherwise obtained which was the subject of a s.424A letter thus fulfilling the Tribunal’s s.424A(1) obligations in this regard (CB 77 to CB 79).
It should also be noted that, as was said in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 at [18], the Tribunal’s evaluation of the material before it and its adverse view of the applicant’s evidence is not “information” for the purposes of enlivening s.424A(1) (endorsing VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214, per Finn and Stone JJ at [24]).
In relation to s.425 of the Act, I note that the applicant was invited to, and attended a hearing before the Tribunal. On the material before the Court the relevant requirements in Division 4 of Part 7 relating to a hearing – ss.425 and 425A (and reg.4.35D of the Migration Regulations 1994 (Cth)) – were met.
In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63, the High Court explained the Tribunal’s procedural fairness requirements pursuant to s.425 of the Act. I note relevantly at [33] and [35]:
“33 The Act defines the nature of the opportunity to be heard that is to be given to an applicant for review by the Tribunal. The applicant is to be invited ‘to give evidence and present arguments relating to the issues arising in relation to the decision under review’. The reference to ‘the issues arising in relation to the decision under review’ is important.
…
35 The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are ‘the issues arising in relation to the decision under review’. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.”
Following the delegate’s decision, the applicant would have clearly been on notice that at issue was that her claims of involvement in an underground Christian Church in China were not such as would lead to a real chance of Convention-based persecution (CB 47.3), that her commitment to Christianity was at issue (CB 47.4), that her account of having been arrested in 2006 for religious reasons was at issue (CB 47.5), and that the credibility of some of her other claims was also at issue (CB 47.6). These were all issues that were at issue before Tribunal
But further, on the only relevant evidence available to the Court, that is the Tribunal’s account of what occurred at the hearing, it is clear that the Tribunal at the hearing, discussed the applicant’s factual account of her activities in China, Malaysia and Australia as it went to her claim for protection. Importantly it squarely raised its concerns with the applicant’s evidence during the course of the hearing.
The Tribunal plainly questioned the applicant about her church activities in China (CB 99), the letters from the pastors in Malaysia and Sydney (CB 99 and CB 100), the religious texts and photographs (CB 100). It noted in relation to the photographs: “… that the photographs appear to show general social activities” (CB 100.7).

It: “alerted the applicant to its disquiet that the applicant did not appear to know Christmas Day until it had drawn this to her attention” (CB 101.4). It put to the applicant: “that the applicant’s voluntary return to China on 2 occasions suggested that she did not fear persecution there, for religious or other reasons, including for any constraints on her religious practice, up to the end of 2006” (CB 101.8).
As to the applicant’s manner of giving evidence at the hearing that “the Tribunal noted that the applicant had hesitated in providing this information …” (CB 101.10). It “pressed the applicant” on her evidence as to why the employer had difficulties in China as a choir leader, yet the priest of the church appeared able to continue functioning (CB 102.3). It further questioned the applicant about her claimed arrest and detention (CB 102 to CB 103). The Tribunal said “it alerted the applicant to its concerns about much of her evidence …” (CB 103.8), and further, “expressed doubts that the applicant had in fact taken Christian materials with her from China as claimed” (CB 104.3). Ultimately, at the end of the hearing, the Tribunal flagged that it would likely write to the applicant “post-hearing”, and that this would also provide an opportunity to give further explanations.

It repeated its concerns about the credibility of her claims, particularly in light of the applicant’s travel history (that is, her return to China). It also alerted the applicant to country information concerning the treatment of Christians in China (CB 104.5).
Plainly, the applicant would have been squarely on notice during (and following) the hearing as to the issues arising in relation to the review such that the Tribunal satisfied its procedural fairness obligations pursuant to s.425 of the Act.

Conclusion

On the material that is before the Court, the applicant’s grounds and complaints are not made out. Any plain reading of the Tribunal’s decision record indicates that it undertook a comprehensive and detailed examination of all of the applicant’s claims, considered her evidence, but ultimately did not find the applicant to be credible.

It further accepted independent country information that showed that both registered or unregistered churches in the applicant’s home area in China were tolerated. The Tribunal’s findings were all open to it on the material before it, and it can only be said that the Tribunal gave comprehensive reasons for its decision.
I cannot discern jurisdictional error in what the Tribunal has done, as it is alleged to arise from the applicant’s application and submissions to the Court, or otherwise. To succeed before the Court the applicant would need to show (or the Court would need to otherwise discern) jurisdictional error on the part of the Tribunal. As no such error is discerned, this application is dismissed.

I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: A Douglas-Baker

Date: 11 July 2008