SZLIR v Minister for Immigration
[2008] FMCA 857
•26 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLIR & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 857 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – whether apprehended bias, error of law or absence of natural justice. |
| Migration Act 1958 (Cth), ss.91R, 424A, 425 |
| Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387 Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982 SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 |
| Applicants: | SZLIR, SZLIS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2911 of 2007 |
| Judgment of: | Barnes FM |
| Hearing date: | 22 May 2008 |
| Delivered at: | Sydney |
| Delivered on: | 26 June 2008 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondents: | Ms A Mitchelmore |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That the application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2911 of 2007
| SZLIR & SZLIS |
Applicants
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Refugee Review Tribunal handed down on 23 August 2007 affirming a decision of a delegate of the first respondent not to grant the applicants protection visas. The applicants are mother and daughter. For convenience the first applicant, the applicant mother, is referred to as the applicant.
The applicants, who are citizens of the People’s Republic of China, arrived in Australia on 21 January 2007 and applied for protection visas on 31 January 2007. Only the applicant made claims to be a refugee in connection with the protection visa application. She claimed that in China she had worked as a midwife and that her work also included performing abortions under the “Birth Control” policy in China and sterilisations. She had felt guilt and was under pressure but had to keep working in her job because it was such a competitive labour market. She claimed that her marriage ended in divorce in November 2003 and that she was in a very hard situation.
She claimed that early in 2005 a named former patient (referred to in this judgment as Ms “G”) invited her to have a meeting with her aunt (whose full name she provided and who is referred to in this judgment as Ms “H”). She later came to know that Ms H was a devout Christian and a key member of a church known as the “Local Church” or “the Shouters”. She claimed that Ms H had experienced many difficulties due to her religious beliefs and practices because the Local Church was regarded as an illegal, anti-government church by PRC authorities. From February 2005 the applicant started participating in secret gatherings organised by Ms H including bible study and weekly worship. She claimed she was baptised in July 2005 and that as a Christian she opposed abortion and forced sterilisation.
The applicant claimed that in January 2006 Ms H organised a special propaganda group of the church and that she and Ms G were invited to join. The applicant, Ms H and Ms G were the first members of the group. The purpose of the group was to spread the gospel to medical workers in the region and to stop abortions and sterilisations. She claimed that Ms G was the group leader at the beginning and that for the first six months they organised Bible study and religious gatherings for medical workers. The groups extended to about 30 members who became members of the local church. She claimed that from July 2006 they started distributing religious propaganda material to hospitals and official health agencies, but that “considering our own safety, all of those propaganda materials were in the name of ‘Voice from Christians’ Hearts’”. She claimed however that activities of the propaganda group and such propaganda materials had “gradually come to the attention of the PRC authorities”.
The applicant claimed that in October 2006 she was informed by another named former patient (referred to in this judgment as Ms “L”) whose husband worked at the local Public Security Bureau (PSB), that the PSB had set up an investigation group to investigate the source of the propaganda material. The applicant passed on the news to those in her propaganda group and started secretly making arrangements to go overseas in case she was in trouble. She claimed that she contacted a friend in another city (who had previously obtained passports for her and for her daughter) to arrange everything for her.
The applicant claimed that on or about 6 November 2006 Ms G was arrested by the PSB while worshipping at home and that the police found that according to her phone bills she had kept in frequent touch with the applicant. On this basis the applicant was said to be suspected of being involved in Ms G’s illegal anti-government religious activities.
The applicant claimed that she was also arrested on 6 November 2006 and detained separately from Ms G for 24 days. She claimed that she was severely persecuted by the police, but that she denied everything and was protected by her friends and helped by Ms L’s husband. She claimed she learned that the PSB did not have any evidence she had been involved in illegal, anti-government activities and that on 30 November 2006 she was released with the help of Ms L and her husband. However she claimed that the “police have paid more and more attention to me since then; and I have continually been questioned by them quite often (at least ten times before my leaving for China). So, I had to ask my friend in Shenzhen to assist me, as well as my daughter, to go to the overseas as soon as possible”.
The applicant left China on 20 January 2007. She claimed that she would be subject to persecution on return to China. She claimed that three members of the propaganda group had been arrested by the PSB since her departure and that their confession had put most of the members in the propaganda group in danger. In particular, she claimed that Ms H had been arrested on 28 January 2007. She claimed the police had tried to arrest her the same day because Ms H and the applicant had been regarded as the “main leaders and founders of the propaganda group” and as the people who must take responsibility for the propaganda materials.
The application was refused by a delegate of the first respondent on 11 April 2007. The delegate was not satisfied that the applicant would be persecuted by the authorities for religious reasons. He referred to a number of factors that were said to raise doubts as to the credibility of her claims and the genuineness of her fear and was not satisfied that the applicant feared persecution on Convention-related grounds. The delegate was not satisfied that the applicant was a person of interest to the Chinese authorities, having regard to country information indicating that a person attributed with an adverse profile by the authorities would not be able to depart on a passport in his or her own name. The delegate also found that the applicant’s claims in relation to her activities as a Shouter were “flimsy and unsubstantiated” and noted the absence of evidence for her claims and the fact that the applicant had provided no information to indicate whether she was practising Christianity in Australia. She was said to have made no attempt in the two months since her arrival in Australia to make any contact with the Local Church’s representatives in Australia.
Tribunal review
The applicant and her daughter sought review by the Tribunal. The applicant provided the Tribunal with written statements dated 30 June 2007 signed by two persons who described themselves as “responsible brothers” of the Local Church in Sydney confirming that she and her daughter had been “meeting regularly” with the church since February 2007. The applicant and her daughter attended a Tribunal hearing on 13 July 2007.
The applicant provided the Tribunal with court documents relating to injuries she had sustained due to a domestic violence incident and in relation to her divorce and a copy of her midwifery qualifications. She claimed that she feared domestic violence from her husband, but had not reported such past incidents to the police because she was afraid of her husband and also that she had not had any contact with him after the divorce because she was afraid of him.
On 20 July 2007 the Tribunal wrote to the applicant under s.424A of the Migration Act 1958 (Cth) inviting the applicant and her daughter to comment on certain information that the Tribunal considered would, “subject to any comments” they made, be the reason or part of the reason for affirming the decision under review.
In light of the grounds of review it is necessary to refer in some detail to matters raised in that letter. The Tribunal listed a number of matters that arose out of evidence at the Tribunal hearing. It referred to confusion and inconsistencies in the applicant’s evidence as to who introduced her to the Shouters’ faith. The Tribunal recorded that the applicant had said she was introduced to the faith by a patient who later became a close friend of hers, but when asked for the name of that person the applicant gave Ms L’s full name and also gave a full name for the aunt that was not the same as the name she had given in the protection visa application statement. She confirmed that she was certain about these names. When the Tribunal later asked if Ms L was of the Shouters faith the applicant then said it was not Ms L who had introduced her to her aunt but another friend called Ms G.
The letter stated that in the hearing the Tribunal had put those inconsistencies to the applicant. The Tribunal recorded the applicant’s explanation “I didn’t hear it correctly … I misunderstood”. The Tribunal indicated that it would further consider the matter and the explanations provided, but was of the view that the inconsistencies were significant and that this could raise doubts about the claims and the applicant’s credibility generally.
The letter also referred to the fact that in the hearing the applicant had provided two letters of support about involvement with the Local Church in Australia and that it had suggested to her that it could be that she had produced such evidence in an attempt to address the delegate’s concern about the lack of evidence that she had any contact with the Local Church in Australia and that this could raise doubts about her claims and credibility generally. It noted that the fact that the applicant did not provide any evidence to the Department before the decision of 11 April 2007 to support her claims that she had been involved with the church since February 2007 could raise doubts about her claimed involvement. It also raised the possible application of s.91R(3) of the Act.
The letter referred to the applicant’s evidence at the hearing that she was detained for 24 days in November 2006 and that after her release she was questioned by the police and monitored and often asked for questioning. The Tribunal recorded that when she was asked when she was questioned the applicant said that having been released on 30 November 2006 she was asked to be questioned on 4 December 2006 and questioned every four or five days thereafter. The Tribunal observed that it had put to the applicant that she had not given such details about being questioned in the protection visa application and that this might suggest that she was “making things up”. The s.424A letter noted that the hearing was an opportunity to elaborate and expand and provide further details on the claims, but that the statement in support of the protection visa application appeared to be comprehensive such that it was difficult to understand the applicant’s failure to provide such details and indicated that this could suggest that the applicant was fabricating claims in the course of the hearing and that this raised doubts about the claims and the applicant’s credibility.
The Tribunal also put to the applicant in the s.424A letter that her claim she could leave China because she was not “wanted” by the authorities was incongruent with her evidence that she was continually questioned after her release. It put to her that the fact she was able to depart China without any difficulties could suggest she had not been of any adverse interest to the authorities and that this could raise doubts about her credibility.
The s.424A letter also addressed issues in relation to the applicant’s daughter. First the Tribunal put to the applicant its concern that her daughter’s evidence in relation to the applicant’s religious activities in China appeared to be confused and somewhat evasive, raising doubts about the claims. It also referred to the fact that the applicant’s daughter had said at the hearing that she was a Shouter herself and had become so in Australia and that the fact that this was a new claim that was not made at the primary stage could raise doubts about the claim’s veracity and require consideration of the effect of s.91R(3) of the Act. The Tribunal advised the applicant that this information could raise doubts about the veracity of her claims and credibility generally and invited her to give written comments.
The applicant responded by a statutory declaration sworn on 3 August 2007 in which she apologised for her confusion at the hearing when asked when she discovered the Shouters faith, confirming that it was through Ms G and her aunt Ms H and claiming “at the early period of the hearing, I was very and very nervous and confused sometimes. Please kindly understand me”.
The applicant also said that her protection visa application was lodged at the end of January 2007 and that she started attending the Local Church in Australia in February 2007 but that at the time of her protection visa application she did not know where the Local Church was in Australia and thus did not have any evidence about it in her primary application. She claimed that she had tried to provide a detailed written statement from the beginning, but was in difficulty because of her situation and mood. She pointed out that in her protection visa application she had said she had been continually questioned by the police at least ten times before leaving China.
In relation to her departure from China, the applicant suggested that two reasons “might have made it possible” for her to leave on a passport in her own name: first that the PSB did not have any evidence showing that she had been involved in illegal anti-government activities before her departure, so that while she might be suspected they might not put her on the “blacklist” and, secondly because there was corruption in China, including among police at the PSB and customs officials and so her friend “could assist me to leave China through bribery”.
The applicant claimed that because her daughter was at boarding school in China she knew nothing of the details of her mother’s religious practices in China and also that her daughter’s psychological health might have been damaged by her parents’ unfortunate marriage so that she sometimes could not answer questions directly or express ideas clearly. She claimed that her daughter became a Shouter after she went to the Local Church in Australia in February 2007. This was not mentioned in her protection visa application because it occurred after the protection visa application was lodged.
The Tribunal decision
In its reasons for decision the Tribunal set out the applicant’s written claims and summarised the evidence given by the applicant and her daughter at the Tribunal hearing and the s.424A letter and the applicant’s response.
In its findings and reasons the Tribunal found that the applicants did not have a well-founded fear of persecution. First it addressed concerns about the credibility of the applicant and her daughter.
It observed that it had conducted a relatively lengthy hearing and had the opportunity to see the applicant and her daughter. It stated that considering the evidence as a whole and after carefully considering the claims it reached an adverse credibility finding. The Tribunal found the applicant’s oral evidence to be “inconsistent with some of her written claims” and that “at times she was vague and confused”.
It detailed matters about which it had specific concerns, including the evidence given at the Tribunal hearing, the extent to which its concerns were raised at the hearing and in the s.424A letter and the applicant’s responses, as well as its conclusions in relation to such matters.
In relation to “confusion and inconsistencies” in the applicant’s evidence about the name of the person who introduced her to the Shouters faith and the name of the aunt the Tribunal recorded that it had considered the applicant’s explanation (that she was confused and nervous at the hearing), but found it unconvincing, being of the view that the inconsistencies were significant and related to a fundamental aspect of the applicant’s claims. This was said to raise doubts about the claims and the applicant’s credibility generally.
The Tribunal also had regard to the fact that the applicant had claimed for the first time at the hearing that she was questioned every four or five days after her release from detention on 30 November 2006.
It considered her explanation that she had not provided all the details in support of her protection visa application (although she had said that she had been “continually” questioned quite often, “at least ten times” before leaving China). The Tribunal found the applicant’s explanations unconvincing (although it did not explain how the applicant’s original claim that she had been questioned at least ten times between 30 November 2006 and 20 January 2007 did not in any way address this concern). The Tribunal acknowledged that a hearing was an opportunity to elaborate and expand and provide further detail, but was of the view that the statement provided by the applicant in support of her protection visa application was extensive and appeared to be comprehensive, such that the Tribunal found “difficult to understand” the applicant’s failure to provide details in the protection visa application about the claims that on 4 December 2006 she was asked to be questioned and subsequently questioned every four to five days. The Tribunal considered that (as it had put to the applicant at the hearing) this suggested that the applicant was “making things up” or “fabricating claims in the course of the hearing”, raising doubts about the claims and her credibility generally.
The Tribunal also found the applicant’s explanation at the hearing for failing to have any Shouter materials to show it (such as the literature she had handed out in China) to be unpersuasive. She claimed that she came to Australia in a hurry and did not bring any material with her. However the Tribunal was of view that if such material existed it was difficult to understand why the applicant had not provided copies and found it reasonable to assume that the applicant “could obtain copies” if such material existed (although there is no indication in the Tribunal discussion as to whether the Tribunal asked the applicant whether she could obtain copies of such material, as distinct from whether she had any such material, at the time of the Tribunal hearing). The Tribunal found the absence of such material raised doubts about her claims and the applicant’s credibility generally.
The Tribunal also had regard to inconsistencies in the applicant’s evidence at the hearing about who was the leader of the promotion group. At the hearing the Tribunal had asked the applicant about who formed the promotion group and she stated Ms H was the group leader. The Tribunal recorded that she subsequently said Ms G was the group leader and when this inconsistency was put to her “said in the beginning there were Ms H, Ms G and the applicant but later Ms G became the leader”. The Tribunal found that the applicant’s responses were “confused” and that this raised doubts about her claims. It was not persuaded by her explanation that she may not have heard properly, considering that the confusion related to a significant aspect of her claims and suggested she was “making up stories”.
The Tribunal referred to independent country information in relation to the applicant’s claim that she travelled using her own passport and observed that it had put to her that people of adverse interest to the Chinese authorities could have difficulties leaving China. The Tribunal found her claim that the authorities did not have substantial evidence against her and hence no right to arrest her to be “incongruent” with her evidence that on 4 December 2006 and every four or five days thereafter she had been questioned and her written claims that after she had been released the police paid more and more attention to her and continually questioned her quite often. It found her explanation that her friend could assist her in leaving China through bribery to be unconvincing “like her other explanations”. The Tribunal was of the view that the fact the applicant was able to depart China without any difficulties suggested that she had not been of any adverse interest to the Chinese authorities, raising serious doubts about her claims and credibility generally.
The Tribunal addressed the applicant’s daughter’s oral evidence about when her mother became a Shouter. The Tribunal recorded that when asked when her mother became a Shouter the daughter had said her mother went to church in February 2007. When asked when her mother became a Shouter in China, she said when her mother came to Australia she practised. When asked again when the mother practised in China the daughter said her mother was “persecuted” in China. The Tribunal noted that she was not answering questions, at which point the daughter said she was “not sure but thought it was 2005”. She did not know who had introduced her mother to the faith.
The Tribunal considered the applicant’s explanations for the shortcomings in such evidence. It was not satisfied that the daughter suffered from any condition (including a psychological condition) which it had to take into account in assessing the claims. While it found it reasonable to suggest that because she was at boarding school in China the daughter could not have known about her mother’s situation, it also found that the daughter’s evidence was confused and somewhat evasive, raising doubts about both applicants’ claims. Given such concerns it placed no weight on the daughter’s evidence as corroborative evidence of the applicant’s religious activities, either in Australia or China.
The Tribunal found that the fact there was no mention throughout the primary stage of the daughter’s “new” claim at the hearing that she had become a Shouter in Australia raised doubts about its veracity and also about the genuineness of the daughter’s alleged religious activities in Australia, suggesting that the daughter did not engage in these activities otherwise than for the purpose of strengthening her claim to be a refugee.
The Tribunal had regard to the applicant’s claims about her involvement with the Local Church in Australia and her evidence in that respect that she started attending the church in February 2007 after her protection visa application was lodged. However the Tribunal was of the view that this did not explain why no supporting documents were provided to the Department before the decision of 11 April 2007. The Tribunal found that this raised doubts about her credibility and about the genuineness of her alleged religious activities in Australia.
The Tribunal then referred to its questioning of the applicant at the hearing in relation to her understanding of Christianity and her claimed faith. It acknowledged that one’s faith was a personal matter that may be expressed in many different ways and that the applicant came from China, a country with “questionable human rights records including its treatment of underground churches” and that such matters naturally impacted on one’s ability to acquire a deep understanding of one’s faith. The Tribunal referred to the fact that the applicant claimed she had been a Christian since 2005. It was of the view that “whilst the applicant knew a number of matters relating to the Local Church faith and Christianity, her knowledge was limited in other respects, suggesting recent acquisition of knowledge and raising doubts about aspects of her claims”. The Tribunal continued:
For example, the Tribunal asked the applicant about her understanding of the significance of baptism, given that she claimed to have been baptised. The applicant explained that it is about the old life and that the body being buried along with Jesus Christ and being resurrected with Jesus Christ. The Tribunal asked her if she understood the doctrine of the Original Sin. The applicant stated “original-self washed away”. The applicant said that once a person is baptised he or she becomes a Christian and they are saved. The applicant said that “Adam is Original Sin”. The Tribunal asked her what Adam did. She said Adam listened to Satan and ate the forbidden fruit. The Tribunal asked if Adam ate the forbidden fruit on his own, she said “by the devil, by Satan”. The Tribunal asked if she knew who Matthew, Mark, Luke and John were. The applicant said that Matthew was one of the Twelve Disciples, John was a doctor and Mark was also a Disciple. The Tribunal asked her if she knew about Luke. The applicant was silent. The Tribunal asked her is she knew if Luke was a Disciple and she stated that Luke was not one of the Twelve Disciples. The Tribunal asked her if she was sure that Luke was not one of the Disciples and the applicant said she was.
In its findings and reasons the Tribunal did not explain what its specific concerns were in relation to this evidence. Earlier in its reasons for decisions the Tribunal had recorded this and other evidence of the applicant at the hearing that was said to be “correct” in relation to matters such as “the doctrine of the Holy Trinity, the Bible and her understanding of the Sabbath and the number of Apostles and the principles of the Shouters faith.”
The Tribunal continued:
The Tribunal asked her who founded the Shouters faith and she correctly said Ni Tuo Sheng. The Tribunal asked her is she knew who Witness Lee was and she said she only knows Ni Tuo Sheng. She said Ni Tuo Sheng developed the religion in China. Jason Kindopp of George Washington University, - in his PhD dissertation notes “The Local Church grew out of the Little Flock movement founded by Ni Tuisheng (known as Watchman Nee) during the 1920’s in Fuzhou (432-3) ……. One of Ni’s associates was Li Changshou (known as Witness Lee), who fled to Taiwan in 1949, ahead of advancing Communist Party troops, and moved to the USA in 1962…….” (Kindopp, Jason 2004 ‘The Local Church: a Translational Protestant sect’, in The Politics of Protestantism in Contemporary China: State Control, Civil Society, and Social Movement in a Single Party State, 16 May, Accessed through Proquest Digital Dissertations Database via Sydney University Library)
The Tribunal concluded that on the evidence as a whole and given the concerns set out in its reasons for decision it was satisfied that the applicant had “fabricated her claims of being a Shouter in China (and any consequential harm) in order to support her refugee claims”. Hence the Tribunal was not satisfied of her claims in relation to joining the Shouters, baptism, participation in religious activities, that she was a Christian or pro-life, that she was invited to join a propaganda group of the Local Church, that she was involved in the activities claimed or ever distributed religious propaganda material. Nor did it accept the applicant’s claims about her awareness of a PSB investigation, her arrest, detention or persecution by the police, or that she had been questioned and monitored after release. It did not accept that Ms H was arrested on 28 January 2007 or that the police had sought to arrest the applicant on the same day because the applicant and Ms H were regarded as main leaders and founders of the propaganda group or responsible for anti-government propaganda material.
The Tribunal summarised that “in essence” it was not satisfied that the applicant had ever practised the Shouters faith or been involved in activities relating to the Local Church in China.
The Tribunal then addressed the applicant’s claims about her religious activities in Australia and the letter referring to her “meeting regularly with” the Local Church in Sydney since February 2007. It found:
Given this evidence and as the applicant has demonstrated some level of understanding of Christianity and the Local Church faith, the Tribunal accepts as being plausible that the applicant has been attending the Local Church in Sydney. For adverse credibility reasons given the fact that the applicant did not provide any supporting material to the Department and without any more evidence in support the Tribunal is not satisfied that she has been involved in those activities since February 2007.
The Tribunal was not satisfied that the applicant had engaged in any of the religious activities in Australia otherwise than for the purpose of strengthening her claim to be refugee and hence found that such activities should be disregarded under s.91R(3) of the Migration Act.
It was not satisfied on the “evidence as a whole” that the applicant was “a genuine believer or practitioner of the Shouters faith” and as such was not satisfied that if she were to return to China there was a real chance she would suffer any harm on this basis.
The Tribunal then addressed the applicant’s claims based on the administration of the one-child policy in China and her claim that she had been forced to perform pregnancy terminations and assist in sterilisation procedures which she found difficult at a personal level. The Tribunal found that it was plausible the applicant had to carry out such duties. It had “doubts” about the number of procedures claimed, but even accepting that she had carried out such procedures it was satisfied that any harm (such as being subjected to unpleasant incidents) which the applicant had suffered was a consequence of China’s one-child policy. The Tribunal found that this policy was a product of a law of general application to control the population of China. The Tribunal referred to country information suggesting that the law was not designed as a punitive measure and found that without evidence of selectivity in its enforcement such a law would generally amount to no more than a non-discriminatory law of general application. It referred to authorities to the effect that enforcement of a generally applicable law does not ordinarily constitute persecution for the purposes of the Refugees Convention.
On the evidence as a whole the Tribunal was satisfied that:
…there is nothing in the applicant’s profile, including but not limited to religious beliefs or practices (claims about which the Tribunal has not been satisfied) that would result in her being persecuted within the meaning of the Convention if she were to return to China and would have to continue performing terminations or assisting in sterilisation procedures. The Tribunal is satisfied that in the applicant’s circumstances, any harm which would be suffered by the applicant would not amount to persecution as stipulated by the Convention. The Tribunal is satisfied that the applicant would not receive disproportionate ill-treatment amounting to persecution.
The Tribunal considered the applicant’s claim that she feared harm at the hands of the families of women who had been subjected to such procedures. It observed that she was not claiming or suggesting that she had been harmed in the past despite performing such procedures since 1980. The Tribunal was not satisfied that there was a real chance of any such harm occurring to the applicant in the reasonably foreseeable future. It noted that the past was a reasonable guide to the future, albeit an applicant need not prove past harm in order to establish potential future harm. The Tribunal was not satisfied that the applicant would be targeted for any Convention reason, including but not limited to any membership of a particular social group, or that she had a well-founded fear on this basis.
The Tribunal then addressed the applicant’s domestic violence claims, in particular that her former husband had been violent and she feared further violence from him. It referred to the documents she provided relating to injuries she had sustained and the divorce agreement with her husband. While it accepted as plausible that the applicant was married to a violent spouse and had suffered injuries as a result of a domestic violence incidence in 2003, it was not satisfied that the serious harm she had suffered was essentially and significantly related to a Convention ground, including but not limited to membership of a particular social group. The Tribunal had regard to the applicant’s evidence that she had not had any contact with her former husband because of fear. It found on all the evidence that it was not satisfied that the applicant would not receive adequate protection from the Chinese authorities that would accord with international standards for any such private harm.
The Tribunal found that the fact that the daughter’s “new” claim that she had become a Shouter was not made at the primary stage raised doubts about its veracity. It was not satisfied that the daughter had engaged in such activities otherwise than for the purpose of strengthening her application for a protection visa and disregarded those activities pursuant to s.91R(3). Nor on the evidence as a whole was it satisfied that the daughter was a genuine believer or practitioner of the Shouters faith. Hence it was not satisfied that if she returned to China there was a real chance that she would suffer any harm on that basis.
The Tribunal was not satisfied that the applicant was forced to leave China or to sell her house for religious reasons or for any other Convention reason. It found there was no Convention-related reason why the applicants could not return to China. It did not accept there was a real chance of Convention-related harm occurring to the applicants in the reasonably foreseeable future.
As it was not satisfied that the applicant mother had a well-founded fear of persecution it followed that to the extent that the daughter was applying as a member of her mother’s family unit she could not succeed.
This application
The applicants sought review by application filed in this Court on 20 September 2007. They rely on an amended application filed on 4 December 2007. They did not file written submissions, but the applicant mother made oral submissions in the hearing. There are two grounds in the amended application. The first is as follows:
1. The Tribunal erred in law in circumstances where it misunderstood the true nature of the review task and proceeded to consider the case from a preconceived opinion and a fixed position so adverse to the applicants that they could not obtain a fair hearing.
Particulars:
a. The member continuously kept interrupting the applicant so as not afford her an opportunity to give fuller details in response to the Tribunal’s questions.
b. To draw adverse credibility findings the Tribunal resorted to the 2004 PhD Thesis of Jason Kindopp of George Washington University (CB115.8)
c. The Tribunal drew adverse consequences about the non-provision to the delegate of documentation corroborating the applicant mother’s involvement with the Local Church in Sydney notwithstanding the delegate decision was made in April 2007 and the documentary evidence attests to the applicant mother “has been meeting regularly with the [Local] church since February 2007” (CB 70).
d. The Tribunal further failed to consider whether the applicants have a well-founded fear and genuine risk of persecution if returned to China in the event the applicant mother does come across her ex-husband in the street.
e. The Tribunal further failed to consider whether the applicant mother has a well-founded fear and genuine risk of persecution if returned to China due to the anger and resentment from the relatives of women who the applicant mother assisted in terminating pregnancies due to the one child policy where the applicant mother herself has two children.
Bias
In essence the applicants contend that the combination of circumstances is such that it could be said that the Tribunal decision was affected by actual bias arising from prejudgment or apprehended bias.
As von Doussa J stated in SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 66 at [36]:
Actual bias arising from prejudgment involves a state of mind by the decision maker whilst exercising the decision making power that is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. "The question is not whether a decision maker's mind is blank; it is whether it is open to persuasion": Minister for Immigration and Multicultural Affairs v Jia (2001) 178 ALR 421 at [71] - [72] per Gleeson CJ and Gummow J. That decision also stresses that a party asserting actual bias on the part of a decision maker carries a heavy onus. The allegation must be "distinctly made and clearly proved": at [69] per Gleeson CJ and Gummow J and [127] per Kirby J.
While it is not necessary to prove an intentional state of mind adverse to the case of the applicants as actual bias may be subconscious provided it is real and may be established by inference from the circumstances including the decision itself (SCAA at [37] and authorities referred to therein), as von Doussa J pointed out in SCAA at [38]:
… it will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision. 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. …
Insofar as this ground intends to take issue with the conduct of the Tribunal hearing the only evidence before the Court of what occurred in the Tribunal hearing is the Tribunal reasons for decision. The Tribunal recorded that it was a relatively lengthy hearing. At a directions hearing the applicant was ordered to file any transcript of the Tribunal hearing by 22 November 2007. While she filed an amended application which elaborated on the claim of bias made in the original application she did not file a transcript of the Tribunal hearing or any affidavit evidence in support of her claim beyond an affidavit annexing a copy of the Tribunal decision.
It is apparent from the Tribunal’s account of what occurred in the Tribunal hearing that the Tribunal commented on various aspects of the applicant’s evidence, indicated concerns that it had with such evidence and stated that it would consider the applicant’s explanations. After the hearing the Tribunal wrote to the applicant under s.424A of the Act giving her an opportunity to comment in writing on matters that were detailed in writing. The applicant took the opportunity to comment. In its reasons for decision the Tribunal addressed the applicant’s comments in relation to each of these matters. The evidence before the Court does not establish that the Tribunal hearing or review process was conducted in a manner which did not in fact allow the applicant the opportunity to persuade the Tribunal that her claims were true. She was given a further opportunity to address matters of concern after the hearing.
As discussed further below, I am not satisfied that the applicant has established on the material before the Court that the Tribunal’s member’s mind was “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented” (see Jia Legeng at [72] per Gleeson CJ and Gummow J).
I have borne in mind, that as their Honours continued, “natural justice would not require the absence of any predisposition or inclination for or against an argument or conclusion”. The Tribunal’s decision and its adverse credibility findings do not give rise to any inference of prejudgment while the matter was under consideration, even though, as discussed further below, issue might be taken with aspects of the Tribunal reasoning process.
I have also considered whether the manner in which the Tribunal fact-finding was conducted could result in a reasonable apprehension of bias. The test for apprehended bias was outlined by the High Court in Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982 at [27] – [31]. It is an objective test of whether a reasonable bystander or fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial and unprejudiced mind to the resolution of the question which the decision-maker is required to decide. However it is not sufficient if such a reasonable bystander “has a vague sense of unease or disquiet”: Jones v Australian Competition and Consumer Commission (2002) 76 ALD 424 at [100] per Weinberg J.
In NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 214 ALR 264 Allsop J, with whom Moore and Tamberlin JJ agreed, stated at [115]:
By and large fact-finding is a task within jurisdiction, though factual error is not necessarily mutually exclusive of jurisdictional error: Re Minister for Immigration and Multicultural Affairs: Ex parte Applicant S 20/2002[2003] HCA 30; (2003) 198 ALR 59. Where fact-finding has been conducted in a manner which can be described, as here, as in substantial respects unreasoned, and mere assertion lacking rational or reasoned foundation, at times as plainly and ex facie wrong and as selective of material going one way, these considerations may found a conclusion that the posited fair-minded observer might, or indeed would, reasonably apprehend that the conclusions had been reached with a mind not open to persuasion and unable or unwilling to evaluate all the material fairly.
However it has not been established that the fact-finding in this case could be so described.
Neither actual or apprehended bias has been established on the basis of all the evidence having regard to the particulars to this ground and the matters raised by the applicant in oral submissions. While the Tribunal findings were findings which, at least in some instances, might not have been made by a different decision-maker, it has not been established that a fair-minded lay observer would reasonably apprehend that the Tribunal’s conclusions were reached with a mind not open to persuasion and unable or unwilling to evaluate the material fairly.
The Tribunal’s assessment of the evidence before it is not such as to show that it lacked an appreciation of the need to weigh all the material (cf the suggestion of Allsop J in NADH of 2001 at [115]). In contrast, in NADH of 2001 Allsop J considered the Tribunal’s rejection of the appellants as Catholics despite their apparently detailed knowledge of central matters of the Christian religion and the Catholic faith. There was in that case a transcript of the Tribunal hearing before the Court on which this assessment could be made. In this case, while the Tribunal rejected the applicant’s claim to have been a member of the Shouters religion or Local Church in China, it acknowledged that, as it summarised in its reasons for decision, she had demonstrated some level of understanding of Christianity and the Local Church, consistent with her claim that she had been attending the Local Church in Sydney. However there were other aspects of her understanding of Christianity and her claimed faith with which the Tribunal took issue. The Tribunal found that the fact that the applicant’s knowledge was limited in some respects suggested recent acquisition of knowledge and raised doubts about aspects of her claims.
While a different decision-maker might have a different view of the nature and importance of particular aspects of the applicant’s religious knowledge, that does not of itself establish actual or apprehended bias. On the evidence before the Court in this case it has not been established that the conclusions of the Tribunal were “arbitrary unreasoned conclusions made without a scintilla of evidence” such as to “lay a foundation for an argument that the decision-maker moulded his or her fact finding to reach a particular result” (NADH pf 2001 at [12]) or that the decision reached was unreasonable in the sense considered by Allsop J. I have also had regard to the fact that a finding of apprehended bias is not dependent on findings so characterised (Allsop J at [12]).
I have considered each of the particulars individually and cumulatively. The first particular to this ground is that the Tribunal member continuously kept interrupting the applicant so as not to afford her an opportunity to give fuller details in response to its questions. It is apparent from the applicant’s oral submissions that this is a reference to the conduct of the Tribunal hearing. Such a complaint was repeated but not elaborated upon by the applicant in oral submissions. However there is nothing in the Tribunal account of the hearing to establish or even to suggest that there is substance in this claim.
Contrary to the applicant’s assertion the Tribunal account of what occurred in the Tribunal hearing indicates that while there may at times have been somewhat robust questioning of the applicant and the Tribunal’s concerns were put to her in relation to many aspects of her claims, she had the requisite opportunity under s.425 of the Migration Act to give evidence and present arguments relating to the issues arising in relation to the decision under review. In particular, according to the Tribunal’s account of the hearing, she had the opportunity to elaborate on her claims and address the Tribunal concerns.
As noted above, the applicant had the opportunity to file a transcript of the Tribunal hearing. She did not do so. Further, in responding to the s.424A letter which took issue with aspects of her evidence at the hearing, the only issue raised by the applicant in relation to the conduct of the hearing was her nervousness and confusion. The applicant is recorded as having suggested that she misunderstood or misheard matters during the hearing as an explanation for inconsistencies or confusion in her claims, but there is no indication on the evidence before the Court that she did not have (or claimed to the Tribunal that she did not have) the opportunity to give further details in response to the Tribunal’s questions or that the Tribunal questioning proceeded in a manner which established or indicated predetermination or a mind not open to persuasion or unwilling to evaluate the material before it fairly.
No apprehended bias or other jurisdictional error is established on this basis on the evidence before the court. Nor is there any evidence that the applicant was in such a state of suffering from a psychological condition at the time of the hearing that she was not given the opportunity required under s.425 of the Act to give evidence and present arguments.
The second particular is that the Tribunal resorted to a particular 2004 PhD dissertation in order to draw adverse credibility findings. The Tribunal referred to this information in assessing the applicant’s understanding of Christianity and her claimed faith, in particular her lack of knowledge of “Witness Lee”. The dissertation described Witness Lee (or Li Changshou) as an associate of Ni Tuo Sheng (the founder of the Shouters religion in China) who left China in 1949 and moved to the USA in 1962. In oral submissions the applicant contended that the Tribunal did not give her an opportunity to fully understand the theories in the dissertation. Insofar as this suggests a failure to comply with s.424A such information is within the s.424A(3)(a) exception.
In assessing the applicant’s knowledge of the Shouters faith the Tribunal had regard to her ignorance of a person described in the decision by his English name of “Witness Lee”. There is no indication in the decision as to whether the Tribunal put this person’s Chinese name (Li Changshou) to the applicant. It appears that she had (not surprisingly given her ethnicity and Mandarin-speaking background) identified the founder of the Shouters as Ni Tuo Sheng (and not by his English name of “Watchman Nee” referred to in the dissertation). However on the evidence before the Court it cannot be concluded that the Tribunal’s reliance on the applicant’s ignorance of this person was such as to raise an apprehension of bias of itself or in combination with the other matters relied on under this ground even if it might be such as to raise a “sense of unease” as considered in Jones v Australian Competition and Consumer Commission (2002) 76 ALD 424.
The Tribunal’s reliance on the applicant’s lack of knowledge of Witness Lee and perceived limits in her knowledge of Christianity as suggesting recent acquisition of knowledge, while a matter on which minds may differ, is not such as to amount to “arbitrary unreasoned conclusions made without a scintilla of evidence” in the sense considered by Allsop J in NADH of 2001. It was the Tribunal’s overall assessment of the evidence given by the applicant at the hearing in relation to her understanding of Christianity and her claimed faith and other aspects of her claims which led it to conclude that she was not a credible witness. While one aspect of that evidence was her responses to questioning about her understanding of Christianity and the Shouters faith, the Tribunal was entitled to have regard to information from third parties when assessing the applicant’s claims. There was evidence before it on which it could form a view that the applicant’s knowledge about the person known as Witness Lee was relevant to the credibility of her claim to be a Shouter (but see NATC v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 52 at [25] – [27]). It cannot be said on this basis that the decision was (either alone or in combination with all other circumstances) manifestly unreasonable (see Minister for Immigration & Citizenship v Le (2007) 164 FCR 151). The source of country information and the weight to be given to such information is a matter for the Tribunal. It has not been established that it committed any jurisdictional error in relying on this information in evaluating the applicant’s responses to questions about the tenets of her faith.
The third particular takes issue with the fact that the Tribunal drew adverse conclusions about the non-provision to the delegate of documentation corroborating the applicant’s involvement with the Local Church. In oral submissions the applicant complained that the Tribunal did not accept her explanation.
At the time the applicant lodged the primary protection visa application (30 January 2007) on her evidence she had not commenced her involvement with the Local Church in Sydney. She claimed that she did so in February 2007. This was before the delegate’s decision in April 2007. The Tribunal had regard to the fact that in the delegate’s reasons for decision concerns were raised about the fact there was no evidence that the applicant had had any contact with the Shouters or the Local Church in Australia. The Tribunal stated that it put to the applicant that this could suggest that she had produced the supporting letters she provided dated 30 June 2007, “confirming” that the applicant and her daughter had been “meeting regularly with the church since February 2007” in an attempt to address the delegate’s concern. The Tribunal was of the view that this could raise doubts about her claims and credibility (although I observe that one might also take the view that it was appropriate for a protection visa applicant to address concerns of a delegate when providing information to the Tribunal). The Tribunal also raised this issue with the applicant in its s.424A letter. It noted her explanation in her response, but considered that it did not satisfactorily explain why documents had not been provided earlier.
The Tribunal was of the view that the fact the applicant had not found the Local Church in Sydney at the time of her application did not explain why no supporting documents were provided to the Department before it made its decision. It found that this raised doubts about her claim of involvement in the Local Church in Sydney since February 2007, her credibility generally and the genuineness of her religious activities in Australia. It ultimately accepted, based on the letters of support and that the applicant had demonstrated some level of understanding of Christianity and the Local Church faith, that she had been attending the Local Church in Sydney. However for what it described as “adverse credibility reasons” (given that she did not provide supporting material to the Department before it made its decision in April 2007 “and without any more evidence in support”) the Tribunal was not satisfied that she had been involved in those activities since February 2007. On the “evidence as a whole” it was not satisfied she had engaged in any religious activities in Australia other than for the purpose of strengthening her claim and hence disregarded her religious activities in Australia under s.91R(3). It was also not satisfied she was a genuine believer or practitioner of the Shouters faith. I note that the Tribunal recorded its concern about the genuineness of her conduct in Australia and doubts about her claims were put to the applicant in the hearing (cf SZJYA v Minister for Immigration and Citizenship (No 2) [2008] FCA 911). It also raised with her the possible implications to be drawn from the absence of such information in connection with the protection visa application and the fact that, despite the time that passed before the primary decision was made, the applicant did not provide any evidence to the Department in relation to her activities in Australia with the church. This does not, however, establish that the Tribunal had closed its mind or appeared to have done so.
The Tribunal considered the applicant’s explanation, but was not of the view that the timing of the application sufficiently explained why no supporting documents were provided by the applicant in relation to her claimed religious activities in Australia. Again reasonable minds might differ as to the inference to be drawn from the lack of earlier evidence and, indeed, from the matters relied on by the Tribunal. However as the Full Court of the Federal Court stated in NAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 354 at [27] (and as was referred to with approval by a subsequent Full Court in NATC v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 52 at [27]):
For a court to set aside a negative decision on the basis that a reasonable decision-maker ought to have achieved the requisite level of satisfaction on the material that was before the actual decision-maker would be to travel far beyond any of the well-established circumstances in which courts can set aside administrative decisions
In one sense the applicant takes issue with a lack of logic in the Tribunal’s reasoning that she should have provided evidence of her religious activities in Australia to the delegate despite the fact that at the time she lodged the protection visa application she had not commenced such activities, as well as its finding that her failure to do so raised doubts about her claimed involvement with the Local Church in Australia and her genuineness. It is, however, well established that lack of logic per se in the reasons of a decision-maker does not give rise to a jurisdictional error (see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356 per Mason J), albeit a jurisdictional error may be established if the satisfaction of the Tribunal is based on findings or inferences of fact “which were not supported by some probative material or logical grounds” as Gummow J acknowledged in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [145].
It has not been established that the Tribunal’s lack of satisfaction in relation to the applicant’s claims in this or any other respect constituted illogical reasoning of the kind discussed in Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/200 (2003) 77 ALJR 1165. This is not a case in which there was no evidence to support the Tribunal’s findings. Nor has it been established that the decision was so unreasonable “that no reasonable authority could ever have come to it” in the sense considered in Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223 as discussed by Kenny J in Minister for Immigration & Citizenship v Le (2007) 164 FCR 151at [60] – [63]. The evidence before the Tribunal is not such as to give rise to an inference that the Tribunal misconceived the applicable test or was not in reality satisfied of the requisite matters, such that it could be said that there was only a purported rather than a real exercise of the powers conferred upon it under the Migration Act. (See the discussion of relevant authorities in relation to reasoning which is illogical or irrational or based on unwarranted assumptions in SZDTZ v Minister for Immigration and Citizenship [2007] FCA 1824 at [17] – [32] per Greenwood J).
The next particular is a contention that the Tribunal failed to consider whether the applicant had a well-founded fear and genuine risk of persecution if she returned to China in the event she came across her ex-husband in the street. The Tribunal clearly considered this claim, but was not satisfied that the serious harm the applicant had suffered by way of domestic violence was essentially and significantly related to a Convention ground, including membership of any particular social group. It had regard to evidence that she had not had contact with her husband because of fear. However on the evidence before it it was not satisfied the applicant would not receive adequate protection from the Chinese authorities that would accord with international standards for any such private harm. The Tribunal’s consideration of these issues on the evidence before it has not been shown to be contrary to authorities such as Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1; Minister for Immigration and Multicultural Affairs v Respondents S152 of 2003 (2004) 222 CLR 1 and Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387. It does not support the claim of bias.
The final particular under this ground is that the Tribunal “failed to consider whether the applicant mother has a well-founded fear and genuine risk of persecution if returned to China due to the anger and resentment from the relatives of women who the applicant mother assisted in terminating pregnancies due to the one child policy where the applicant mother herself has two children” (sic). The Tribunal considered the applicant’s claim to fear harm by reason of her occupation and associated with her past involvement in carrying out the one-child policy. It concluded that the evidence did not indicate that she had faced harm despite doing such work since 1980 and found that the past was a reasonable guide to the future in this respect. Such a conclusion was open to the Tribunal on the material before it. There is nothing in the material before the Court to indicate that the applicant’s claim in this respect was based on the fact that she herself had two children, as distinct from the more general issue of her involvement in performing forced terminations of pregnancy and assisting in sterilisation procedures. No jurisdictional error is established on this basis.
In oral submissions the applicant contended the Tribunal failed to consider her claim that as a hospital midwife she went against government regulations encouraging people to reject abortions. However such claims were made in the context of the applicant’s claims of participation in a special propaganda group of the Local Church. The Tribunal considered, but rejected, such claims as a consequence of its rejection of her claims to be a Shouter in China.
The applicant also contended it was unfair and indicative of bias on the part of the Tribunal to use the applicant’s daughter’s evidence against her. She suggested that her daughter suffered mental illness. The Tribunal did not use the daughter’s evidence against her mother. The Tribunal accepted as plausible that the breakdown of one’s parents’ marriage has an impact on a child and addressed the applicant’s concern about her daughter’s health raised in the response to the s.424A letter. However on the information before it it was not satisfied that the daughter suffered from “any condition(s) including psychological” which it had to take into account in assessing the claims. The Tribunal’s conclusion in this respect (and its finding that in light of the daughter’s “confused and somewhat evasive” evidence, it placed no weight on her evidence as corroboration of her mother’s religious activities in Australia or China) is not indicative of bias.
As indicated, there are aspects of the Tribunal’s reasoning that might be thought to lack logic or to be such on which minds may differ. However the Tribunal decision and its account of the hearing, while revealing that the Tribunal raised concerns with the applicant on several issues, does not establish actual or apprehended bias. The Tribunal is entitled to test the credibility of the applicant’s claim by reference to matters such as inconsistencies, absence of evidence, and knowledge of religious matters and beliefs. Indeed, that is so even if the Tribunal’s understanding of such matters is inaccurate.
The Tribunal’s s.424A letter was not expressed in terms which demonstrated that a fair minded and informed person might reasonably apprehend that the Tribunal member would not bring an impartial mind to bear (cf SZKBE v Minister for Immigration and Citizenship [2008] FCA 317). I note in that respect that as Cowdroy J stated in SZBLY v Minister for Immigration and Citizenship (2007) 96 ALD 70 at [25] (and see SZKBE v Minister for Immigration and Citizenship [2008] FCA 317 at [26] per Cowdroy J): “Because of the inquisitorial nature of Tribunal proceedings, the threshold for a finding of apprehended bias is necessarily higher than it is in curial proceedings” (and see Minister for Immigration and Citizenship v MZXPA (2008) 100 ALD 312). Alerting the applicant to the fact that an adverse inference “may” be drawn is not indicative of prejudgment or such as to establish a “reasonable” apprehension of bias from the perspective of the hypothetical fair-minded and informed person (Minister for Immigration and Citizenship v MZXPA (2008) 100 ALD 312 at [11] – [19] per Sundberg J).
Further, even if aspects of the factual findings and reasoning of the Tribunal might raise “misgivings” of the sort considered by the Full Court in VGAO of 2002 v Minister for Immigration and Multicultural Affairs [2003] FCAFC 68 or a vague sense of unease or disquiet, or if some of its factual conclusions might be seen as less than persuasive, factual error on the part of the Tribunal is not of itself such as to establish jurisdictional error. The Tribunal’s conclusions have not been shown to be “unreasoned conclusion bereft of expressed supporting thought process and of any rational foundation” (cf NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 214 ALR 264 at [35]). Nor can its reasoning be categorised as “perverse” in a manner akin to the Tribunal’s assessment of supporting documentation in NADH of 2001. Even if minds may differ on the weight the Tribunal gave to probative and logically relevant material before it, it has not been established on the material before the Court that it failed to deal with the claims of the applicant or that its task of “reviewing” and “considering” the application miscarried (see VGAO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 68) or that jurisdictional error is otherwise made out.
No jurisdictional error has been established on any of the bases contended for in the particulars to ground one. Nor does the combination of these factors establish actual or apprehended bias or other jurisdictional error.
Whether failure to consider claim
The second ground in the amended application is as follows:
The Tribunal committed a jurisdictional error of law by failing to consider an integer of the applicant mother’s claim.
Particulars
a. the applicant mother claimed that she feared harm at the hands of relatives of women she has assisted in terminating pregnancies under the China one child policy (CB 107.10).
b. It was accepted the applicant mother has two children.
c. In the preceding circumstances the Tribunal failed to consider whether the applicant mother would suffer harm from Convention-based persecution because she belonged o a particular social group – viz., midwives who assist in terminating pregnancies in administration of China’s one child policy but who themselves have more than one child.
d. The Tribunal was not satisfied that the applicant mother would not receive “adequate protection” from the Chinese authorities in the event she was harmed by her ex-husband (CB 119.1).
e. The Tribunal misapplied the test of protection by not considering whether the protection expected to be received from the Chinese authorities constitutes “effective protection” in accordance with the Convention requirements.
There are two matters raised by this ground. First, it is contended that the Tribunal failed to consider whether the applicant would suffer harm constituting Convention-based persecution because she belonged to a particular social group of midwives who assisted in terminating pregnancies in the administration of China’s one-child policy who themselves had more than one child. Second, it is claimed that the Tribunal failed to consider whether the protection the applicant could expect to receive from the Chinese authorities in relation to her claimed fear of violence from her ex-husband constituted “effective protection” in accordance with the requirements of the Refugees Convention.
In relation to the first aspect of this ground there is nothing in the material before the Court to establish either that the applicant made a claim that she was a member of such a particular social group or that such a group constituted a particular social group for the purposes of the Refugees Convention. Nor is it apparent that such a claim arose squarely on the material before the Tribunal in the manner considered in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1.
The written claims made by the applicant and the Tribunal’s account of the Tribunal hearing (which is the only evidence before the Court of what occurred in the Tribunal hearing) do not raise any claim that the basis on which the applicant feared retribution from relatives for women for whom she performed abortions and assisted in sterilisation procedures related to the fact that she herself had two children. It is apparent from the Tribunal reasons for decision that the Tribunal did consider the applicant’s claim that by reason of performing abortions and assisted in sterilisation procedures she feared harm from the relatives of women on whom she had performed those procedures. The Tribunal was satisfied that any harm (such as being subject to unpleasant incidents), which the applicant had suffered as a consequence of China’s one-child policy was a product of a law of general application in relation to which there was no evidence of selectivity in its enforcement. Moreover the Tribunal found that there was nothing in the applicant’s profile (not limited to her claimed religious beliefs and practices) that would result in her being persecuted within the meaning of the Refugees Convention if she were to return to China or indeed that she would have to continue to perform terminations or assist in sterilisation procedures. The Tribunal was not satisfied that in the applicant’s circumstances any harm she would suffer would amount to persecution within the Convention and it was satisfied that she would not receive disproportionate ill-treatment amounting to persecution.
In relation to the particular claim that she feared harm at the hands of families of women who had been subjected to such procedures, the Tribunal had regard to the fact that there was no claim or suggestion by the applicant that she had been harmed in the past despite having been involved in these procedures since 1980 in finding that it was not satisfied that there was a real chance of any such harm occurring to the applicant in the reasonably foreseeable future.
The Tribunal was aware of the possibility that the applicant may be making a claim based on membership of a particular social group, albeit no particular social group appeared to have been specified by her, but on the material before it it was not satisfied that there was a real chance that she would be targeted for any Convention reason on this basis, including but not limited to membership of a particular social group. The fact that the applicant now raises a possible social group is not such as to establish that the Tribunal fell into jurisdictional error.
The second aspect of this ground is a contention that the Tribunal failed to consider whether the protection available from the Chinese authorities would constitute effective protection in accordance with the requirements of the Refugees Convention.
The Tribunal considered the applicant’s claims based on the domestic violence she claimed to have experienced from her husband and to fear. While it accepted that it was plausible that she had suffered such injuries it was not satisfied that the serious harm she had suffered was essentially and significantly related to a Convention ground, including membership of a particular social group. The Tribunal was clearly aware of the possibility that domestic violence perpetrated by family members may give rise to a Convention claim in circumstances where such harm was tolerated or condoned by state authorities in a discriminatory manner and of the need of the state to be in a position to provide protection according with international standards (see Khawar and Minister for Immigration & Multicultural Affairs v Respondents S152 of 2003). There is nothing in the material before the Court to suggest that the applicant raised a claim that the authorities had failed to investigate or condoned or were unable to provide protection in relation to feared domestic violence.
Contrary to the contention in relation to this ground, the Tribunal considered the integers of the applicant’s claims in the respects complained of insofar as they arose on the material before the Tribunal.
No jurisdictional error is established on the basis contended for in ground two.
Other issues
In oral submissions the applicant made a number of contentions which largely reiterated aspects of the grounds in her original or amended application. She contended that the Tribunal did not carefully consider her reply to the s.424A letter. This claim is not made out. The Tribunal addressed the applicant’s response. The fact that it was not persuaded by that response does not establish jurisdictional error.
The applicant also contended that there could have been some sort of confusion and misunderstanding by her at the hearing because of her nervousness and psychological vulnerability as an applicant for a protection visa and that this factor, and her individual case, should have been considered by the Tribunal.
Insofar as this contention relates to the claim of bias, in the absence of a transcript of the Tribunal hearing it is not made out. As indicated above, there is no evidence before the Court to establish that the applicant was suffering any psychological or other condition at the time of the hearing that would have had the effect that the hearing was not such as was required under s.425.
The applicant also contended that it was unfair for the Tribunal to use her “small mistake because of [her] nervousness” as to the name of the person who introduced her to the Shouters as the main reason to reject her application. The Tribunal did not rely on the applicant’s mistake as to the name of the person who introduced her to the Shouters as the “main” reason to reject her application. This (and her evidence about the name of the aunt) was one factor among several that it took into account (as described above). It addressed the applicant’s explanation of nervousness and confusion in the early stages of the hearing. It was open to the Tribunal to have regard to the inconsistency in the applicant’s evidence in the manner that it did.
The applicant also contended that the Tribunal decision was based on an assumption without any evidence that the only reason she was involved in the Local Church in Australia was to apply for refugee status or because her application was rejected by the delegate. This contention is misconceived. The Tribunal did not err in making an assumption without evidence as contended. Under s.91R(3) of the Act the Tribunal was to disregard any conduct engaged in by the applicant in Australia unless she satisfied it that she engaged in the conduct otherwise than for the purposes of strengthening her claim to be a refugee. No jurisdictional error is established on this basis.
The applicant also contended that it was unfair and unreasonable of the Tribunal to expect her to include all details in her protection visa application. As set out above, while minds may differ on the Tribunal’s approach to the absence of specific detail in the protection visa application (in particular in relation to when the applicant was questioned after her claimed release from detention) neither the finding in that respect nor the decision has been shown to be unreasonable in such a way as to constitute jurisdictional error, for example on the basis that no reasonable decision-maker would have reached the decision.
The applicant submitted that the Tribunal erred in assuming, based on independent country information, that it would have been impossible for her to leave the country on her own passport, reiterating the explanations she provided to the Tribunal as to why she was not on a black list and contending the country information was not applicable in her case. However, the Tribunal addressed the country information about leaving China and the applicant’s claims that she was not on a blacklist as the PSB did not have any evidence of her involvement in illegal or anti-government activities. It rejected her explanation as inconsistent with her evidence about questioning by the police after her November 2006 release. Insofar as the applicant seeks merits review, merits review is not available in this Court. It was open to the Tribunal to have regard to the country information in the manner in which it did.
As no jurisdictional error has been established the application must be dismissed.
I certify that the preceding ninety-seven (97) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 26 June 2008
21
1