SZLQJ v Minister for Immigration
[2009] FMCA 968
•13 October 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLQJ v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 968 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal approached its decision with an apprehension of bias. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91R(3); 91S; 424A; 474; pt.8 div.2 |
| Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 |
| Applicant: | SZLQJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 892 of 2009 |
| Judgment of: | Emmett FM |
| Hearing dates: | 11 September 2009 & 21 September 2009 |
| Date of Last Submission: | 21 September 2009 |
| Delivered at: | Sydney |
| Delivered on: | 13 October 2009 |
REPRESENTATION
| Applicant appeared on his own behalf |
| Counsel for the Respondent: | Mr J. Smith |
| Solicitors for the Respondent: | Ms M. Palmer, Sparke Helmore |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 892 of 2009
| SZLQJ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 10 March 2009 and handed down on 11 March 2009.
The applicant claims to be a citizen of the People’s Republic of China (“China”) and of Christian faith and Korean ethnicity (“the Applicant”).
The Applicant arrived in Australia on 1 August 1998, having departed legally from Beijing on a passport issued in his own name and a temporary business visa issued on 24 June 1998.
On 4 April 2008, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.
On 19 May 2008, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.
On 23 May 2008, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
On 12 August 2008, the Refugee Review Tribunal affirmed the decision of the Delegate not to grant a protection visa.
The Applicant sought judicial review of that decision and, on 24 November 2008, Federal Magistrate Scarlett remitted the matter to the Refugee Review Tribunal for determination according to law.
On 11 March 2009, the Refugee Review Tribunal, differently constituted (“the Tribunal”) affirmed decision of the Delegate not to grant a protection visa.
On 17 April 2009, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Applicant’s application for a protection visa
The Applicant provided a statement in support of his protection visa application in which he claimed he feared persecution by the Chinese authorities for his practice of Christianity in China. The Applicant claimed that:
a)The Applicant’s parents had run a “house church” in China since soon after they moved there in 1940 for “a close knit circle of well known friends/acquaintances”.
b)Soon after the Applicant married in 1994, his parents returned to Korea and he and his wife organised a house church in their home that met twice weekly and had “a wide range of people attending, with more less known people and outsiders than my parents’ house church”.
c)In March 1996, the Applicant, his wife and a fellow ethnic Korean Christian were arrested. He claimed his wife was allowed to return home on payment of a fine but the Applicant and the other man were charged with running an illegal church and detained for six months.
d)The Applicant claimed the other man returned to Korea following his release and, when he tried to return to China in 2006, was detained again. The Applicant’s parents returned to China when the Applicant was detained.
e)The Applicant was mistreated, beaten and tortured during his detention.
f)Following his mother’s death in 1997, the Applicant started a new underground church.
g)The Applicant’s new church met in various homes and was split into three groups.
h)One of the groups was discovered, but as the Applicant was not with them he was not arrested, however, he did realise he was in danger.
i)The Applicant hid at a friend’s house in a remote area for over a year.
j)In July 1998, contacts used bribery to organise a passport and visa for the Applicant.
k)The Applicant was given a contact in Sydney who organised him to meet with a migration agent who had him sign a blank document, which he subsequently discovered had been used to file a protection visa application with false claims.
l)When the Applicant enquired six months later, the migration agent told him that no decision had been made but that she would inform him “when it is out”.
m)Following his detention in March 2007, on 5 April 2007, the Applicant lodged a protection visa application cover sheet and a request for application through the Immigration Advice and Application Assistance Scheme.
n)The Applicant is in continuing danger in China.
o)Previous members of his house church have been detained in the past and are forced to attend the state-sanctioned church; his family have all been questioned by Chinese authorities; and, in September 2007, the Applicant’s wife was required to provide a recent photo of the Applicant to Chinese authorities.
In March 2007, the Applicant was apprehended and detained in Villawood Detention Centre.
The Delegate’s decision
On 24 April 2008, the Applicant attended an interview with the Delegate.
On 19 May 2008, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Convention.
The Tribunal’s review and decision
On 23 May 2008, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
On 22 December 2008, the Tribunal wrote to the Applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing on 19 February 2009 to give oral evidence and present arguments.
On 19 February 2009, the Applicant attended the Tribunal hearing and gave evidence. At the Applicant’s request a further hearing was held on 4 March 2009.
The Tribunal noted that it had before it the Refugee Review Tribunal files, the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.
The decision of the Tribunal is accurately summarised by counsel for the First Respondent in his written submissions as follows:
“The Tribunal found that the applicant was not a member or organiser of an underground church in China and had no involvement in the illegal Christian activities there. It accepted, on the other hand, that the applicant had been involved in religious activities in Australia after he was placed in immigration detention in 2007 but was not satisfied that this had been engaged in otherwise than to strengthen his claim to be a refugee. For that reason, it disregarded that conduct in accordance with s.91R(3) of the Migration Act 1958. It concluded that the applicant had no well founded fear of persecution because of his religion or any other Convention related reason should he return to China and so affirmed the decision of the delegate.”
The proceeding before this Court
The Applicant was unrepresented before this Court, although had the assistance of a Mandarin interpreter.
On 29 April 2009, the Applicant attended a directions hearing before me and was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit. At that time, the Applicant was directed to ensure that any transcript of the Tribunal hearing upon which he may wish to rely was verified by affidavit. No further application, evidence or submissions were filed by or on behalf of the Applicant.
At the directions hearing, I referred the Applicant to the Court’s legal advice scheme for free legal advice. The Applicant has participated in the Court’s legal advice scheme and received advice.
At the commencement of the hearing, the Applicant confirmed that he relied on the ground contained in an application filed on 17 April 2009 as follows:
“The Tribunal erred when showing apprehended bias by reason of pre-judgment”
The ground was interpreted for the assistance of the Applicant and the Applicant was invited to make submissions in support of the ground and in support of the application generally. The Applicant confirmed that he had filed no evidence or submissions in support of his application.
The Applicant then sought to tender an unverified copy of what he said was a transcript of the Tribunal hearing. The First Respondent had not been provided earlier with a copy of the document and was not in a position to concede its accuracy. Accordingly, the hearing was adjourned and directions were made that the First Respondent file and serve any evidence upon which the First Respondent intended to rely and that each party file and serve submissions in support. The Court also provided to the Applicant, headed in his own language, the contact details of legal services providers and interpreting and translation services.
On 16 September 2009, the First Respondent filed the affidavit of Felicity Elizabeth Edwards, sworn 16 September 2009, together with supplementary submissions. No further document was filed by or on behalf of the Applicant.
Ms Edwards’ affidavit annexed a copy of the transcript sought to be tendered by the Applicant with handwritten amendments and corrections made by Ms Edwards after she had listened to the hearing CDs and compared them with the transcript provided by the Applicant.
At the commencement of the adjourned hearing, the Applicant renewed his tender of the transcript of the hearing. That document was admitted and marked exhibit 1A. The First Respondent read the affidavit of Ms Edwards. The Applicant was unable to indicate to the Court whether or not he agreed with the amendments and corrections made to exhibit 1A by Ms Edwards following her listening to the hearing CDs. In the circumstances, I accept the unchallenged affidavit evidence of Ms Edwards that the Applicant’s transcript as amended and corrected by Ms Edwards is an accurate transcript of the hearing before the Tribunal.
Ground of the application – apprehended bias
In the affidavit filed by the Applicant on 17 April 2009 in support of his application for judicial review, the Applicant sought to particularise those aspects of the Tribunal’s hearing upon which he relied as supporting his allegation of bias. That affidavit stated as follows:
“1. I appeared at the RRT on two separate dates – 19 February 2009 and 4 March 2009.
2. The combined hearing totalled more than 5 hours
3. At the beginning of the first hearing, the RRT member said that he had some questions but would give me the chance to tell my story in my own words.
4. The RRT member asked only closed questions and I had no opportunity to elaborate. He stopped my attempts to elaborate with “Ok, Ok”.
5. I thought he was trying to trap me. Several times, he asked me to confirm dates that he had wrong. For example: He asked me “When did you first join the Church – 1995?”. But I had already written “1992” in my statement.
6. He asked me what happened when I was detained in China. I told him that I was locked in a small room with no sunshine, I was interrogated, I was not allowed to sleep, I was tortured for a few months. He then said “What else happened”? When I said that they were the main things, he repeated what I had said but left out the torture, and then asked me if that was all. I hadn’t noticed his omission and said “Yes”. Then he told me that I was now leaving out torture and my story was not consistent.
7. At the end of the first hearing, he stopped my witness Mr Piao from giving further evidence, telling him to put it in writing.
8. My migration agent objected that we had been in a hearing for 3 ½ hours, that Mr Piao had been given insufficient time to say what he wanted to say and that I had been given no time to say anything in my own words, despite his preliminary remarks.
9. He then said that a second hearing would be held.
10. The only opportunity he gave me to say what I wanted was at the end of the second hearing. By then I was too exhausted and too stressed to be able to think of anything to say.”
At the commencement of the adjourned hearing, the Applicant was invited to say whatever he wished in support of his application. Other than to say that the Tribunal said that the church to which the Applicant belonged in Belmore existed only to help applicants for protection visas, the Applicant made no submission. Dealing first with that assertion, the transcript discloses the following exchange between the Tribunal Member and the Applicant’s witness:
“W: The church has started only 2008 because we came to conclusion that we need to care for those people who were released from Villawood Detention Centre.
M: So this is the church in Belmore. So the church in Belmore was begun…
W: Last year.
M: So the reason you’ve created this church in Belmore was to cater solely to people who’d been released from immigration detention. Is that correct?
W: Yes.”
The Applicant confirmed that it was the exchange quoted above upon which he relied in complaining that the Tribunal said that the Applicant’s church in Belmore existed solely to help protection visa applicants. As is clear from the above extract, the transcript discloses that all that the Tribunal Member was doing was seeking to clarify the evidence of the Applicant’s witness. The Applicant’s witness agreed with the attempt by the Tribunal Member to summarise the witness’s evidence. There is nothing in that exchange to support any allegation of bias on the part of the Tribunal Member.
Otherwise, the Applicant’s particulars of bias as alleged in his affidavit are addressed below.
In paragraphs 3 and 4 of his affidavit filed on 17 April 2009, the Applicant stated that the Tribunal Member said that he had some questions but would give the Applicant the chance to tell his story in his own words. The Applicant went on to assert that the Tribunal Member then asked only closed questions and that the Applicant was not given an opportunity to elaborate and that his attempts to elaborate were stopped by the Tribunal Member with “Ok, Ok”.
The transcript of the Tribunal hearing does not support the allegations of bias particularised in the Applicant’s affidavit. Below is a summary and analysis of the manner in which the Tribunal Member conducted the hearing and examples of the sort of questions asked by the Tribunal Member and exchanges between the Tribunal Member and the Applicant, his witness and legal adviser.
The Tribunal Member commenced the hearing by first swearing in the interpreter and the Applicant. The Tribunal Member introduced himself by name and stated that in carrying out the review he would be looking at all information available to him, including the Applicant’s protection visa application and the previous Tribunal decision and the decision of the Delegate. The Tribunal Member then explained the procedure of the hearing in a detailed and comprehensive manner. The Tribunal Member told the Applicant he would also be having regard to the interview that the Applicant had when he was in Villawood immigration detention in 2008 and the evidence that the Applicant and his witnesses would provide at the hearing. The transcript also discloses that the Tribunal Member explained the meaning of the word “refugee”. The Tribunal Member told the Applicant he was only going to raise points in respect of which he needed more explanation or clarification in relation to the things the Applicant had already claimed and would not necessarily be covering all the Applicant’s claims in detail.
The Tribunal Member then told the Applicant that he would first ask him to explain in his own words about his concerns about returning to China, his experiences there and why he believed he is a refugee. The Tribunal Member then said he would put some questions to him and that some of those questions would be specific and some more general. The Tribunal Member told the Applicant that if he didn’t understand a question or any part of a question he should say so straight away and stop the Tribunal Member from going further until any confusion had been resolved. The Tribunal Member said that at the end of the hearing he would give the Applicant an opportunity to talk about anything else he wished to raise that was relevant to his case and which had not already been discussed in detail. The Tribunal Member also told the Applicant that at the end of the hearing he would ask the Applicant’s adviser, first, if she thought there were any more questions that the Tribunal Member should put to the Applicant or his witnesses; and, secondly, if there were any other matters that she believed the Tribunal Member should look at more closely.
The Tribunal Member said that the hearing should be able to be completed in about 2 ½ hours “but if we do need to take some more time that shouldn’t be a problem”. The Tribunal Member then confirmed with the interpreter that he had another engagement in 3 ½ hours time and had to leave at 1.30pm. The Tribunal Member then satisfied himself that there was no difficulty with the interpreter understanding the Applicant or the Applicant understanding the interpreter and explained to the Applicant the role of the interpreter.
The Tribunal Member then asked the Applicant’s witness to wait outside.
The Tribunal Member then acknowledged to the Applicant that the Applicant had said that he was misled by his first migration agent. The Tribunal Member assured the Applicant that he was only looking at the second application for protection that he had made when he was in immigration detention. The Applicant answered, yes. The Tribunal Member then explored with the Applicant the circumstances in which that further application was made and noted that the Applicant said his statement had been prepared by a student. The Tribunal Member then confirmed with the Applicant that everything said in his application and statement was all true. The Tribunal Member then asked the Applicant if there was anything he wished to change that he had claimed at the interview or in his documents and the Applicant responded, No.
The Tribunal Member then asked a series of questions that on any view were open ended and invited the Applicant to say whatever he wished in support of his claims. Those questions and answers were as follows:
“Tribunal Member: Thanks [Applicant]. Now if I could just ask you to tell me when you, at that time that you came to Australia, what did you fear would happen to you?
Applicant: I fear that if I return to China I will be persecuted.
Tribunal Member: Yes I’m really talking about going back to that time which was now 11 years ago, 10 and a half years ago what did you fear back at that time.
Applicant: Because I organised the church activities so the PSB was in pursuit of me. In 1996 because I organised church activities I was detained by the PSB for 6 months.
Tribunal Member: Right. And so what do you feel would happen to you if you went back to China now?
Applicant: If I went back to China now I would be arrested by the PSB. I would be put in gaol.
Tribunal Member: How do you know that that would happen?
Applicant: Because Chinese government doesn’t respect religious leader.
Tribunal Member: But how do you know that you would be arrested and gaoled 10 or 11 years later?
Applicant: In 2007 when I was at Villawood Detention Centre the police still came to my home searching – they came to my wife and took the photographs.
Tribunal Member: So you fear harm because of your organisation on behalf of a Christian church. Do you fear harm in China for any other reason apart from that?
Applicant: No.” (Emphasis added)
The Tribunal Member’s questions are short, clear, open-ended and invite relevant information from the Applicant.
The Tribunal Member then went on to ask the Applicant some more specific questions about his life in China and his family. The Tribunal Member then asked “And then what happened in 1996?” and explored with the Applicant his employment history. The Tribunal Member then explored with the Applicant his parents’ involvement in operating a house church and their connection with a church in South Korea. The Tribunal Member then explored with the Applicant his knowledge of his parents’ church in Korea.
The Tribunal Member then asked the Applicant, “And what was the connection between that church and the church your parents ran in their house?”. The Applicant himself became a Christian. The Tribunal Member explored with the Applicant why he wasn’t a Christian from his earliest days and why he was not baptised by his parents as a Christian if he was brought up in such a religious household.
The transcript then shows that several questions later the Applicant asked to have a question put again to which the Tribunal Member immediately responded “Yes, sure” and then re-put the question.
Peppered throughout the transcript are questions from the Tribunal Member such as “And what actually happened?”; “Yes and what happened then?”; “What else happened?”; “Is that all that happened?”; “Can you explain that?”; “Can you comment on that?”; “How did he do that?”
Further, occasionally the Applicant would ask the Tribunal Member to repeat the question, whereupon it was immediately repeated by the Tribunal Member. During the course of exchanges with the Applicant, the Tribunal Member put matters of concern that he had to the Applicant about his evidence and invited the Applicant to respond.
At the end of that process the Tribunal Member brought in the Applicant’s witness and asked him what was the evidence that he wished to give. The Tribunal Member asked the Applicant’s witness about his observations of the Applicant’s religious activities in the Korean church and any other religious activities in which the witness had observed the Applicant. The Tribunal Member then explored that evidence with the Applicant’s witness.
The Tribunal Member then asked the Applicant’s adviser whether there were any questions that she thought the Tribunal Member should put to the witness. The adviser answered that the witness could be asked why he thought the Applicant would face persecution if he returned to China. The Tribunal Member then said to the witness “Mr Bao if you could tell me very briefly why you think [the Applicant] might face harm if he goes back to China.” The witness purported to give an irrelevant answer. The Tribunal Member then said “I’m sorry I don’t want to interrupt you, but let’s just focus on [the Applicant]. Is there any reason why [the Applicant] would be harmed if he went back to China – if you could just summarize?” The witness then answered “Yes I think he finding harm if he returns, yes absolutely.” The Tribunal Member then went on to try and elicit from the witness the substance of his evidence in that regard.
The Tribunal Member then discussed with the adviser the fact that the interpreter had to leave at 1.30pm and that the adviser had indicated that she wished to make further comment. The adviser then responded that there were more questions and more evidence that the witness wanted to give and that the Applicant had not had an opportunity to make any statement except answer questions. The Tribunal Member asked the Applicant’s adviser what were the other questions the adviser wished to have put to the Applicant’s witness. The Tribunal Member sought to clarify the substance of those questions and concluded that it may be best for the witness for him to put anything further in writing.
The Applicant’s adviser then requested that a further hearing be held to give the Applicant’s witness a further opportunity to explain what he wished to explain and for the Applicant to “truly be able to feel that he can actually explain his feared persecution” and to allow the adviser to make some comments. The Tribunal Member agreed to that request and adjourned the hearing to another date.
Prior to adjourning the hearing, the Tribunal Member asked the Applicant if there was anything else the Applicant wished to say or add that had not been discussed in detail. The Applicant responded that he had said all he wished to say. However, despite that answer, because the adviser informed the Tribunal Member that the adviser was of the view that the Applicant had more to say, the Tribunal Member stated “Well I certainly don’t want to prevent the client from putting his case madam adviser and I did ask him if there was anything he wanted to say... we’ll have another hearing”.
The further hearing was held on 4 March 2009. That hearing commenced with the Tribunal Member saying to the Applicant, inter alia, that when his witness had finished giving his evidence that the Tribunal Member would give the Applicant another opportunity to make any points he wished to make, to add anything he wished to add and for his adviser to identify any further questions she wished to have put.
Again, the Tribunal Member commenced by ensuring that the interpreter and the Applicant had no difficulty in understanding each other. The Tribunal Member then had a further exchange with the Applicant about his religious practices in Australia and his claim to be familiar with the Korean language and his experience with the church in Campsie and Belmore.
At the end of that exchange, the Tribunal Member told the Applicant that he would now bring in his witness. The Tribunal Member then asked the witness “What evidence do you want to give in this case.” At the end of the witness’s evidence, the Tribunal Member asked open ended questions about the church in Belmore, including asking the witness “Was there anything else you wanted to say?”
At the end of the witness’s evidence, the Tribunal Member asked the Applicant’s adviser if there were any questions she thought that the Tribunal Member should be put to the witness. The Tribunal Member then put all the questions suggested by the Applicant’s adviser to the witness, including repeating the question of any difficulties the witness thought the Applicant might face and why in China.
At the completion of that further exchange with the witness, the Tribunal Member said that he had a further question for the Applicant about the number of people whom he saw attend Belmore church. The Applicant’s adviser then sought to clarify the Applicant’s evidence with the support and assistance of the Tribunal Member.
The Tribunal Member then had a lengthy exchange with the Applicant’s adviser during which the Applicant’s adviser sought to clarify and expand upon the Applicant’s evidence.
At the end of the Tribunal member’s exchange with the Applicant’s adviser, the Tribunal member again asked the Applicant if there was anything more he wished to say that was relevant that had not already been discussed in detail. The Applicant answered, No.
The Tribunal member then told the Applicant that he had listened very carefully to everything that had been said at the hearing. The Tribunal Member said that he had taken notes and would be looking very carefully at all the written information and recordings of the previous hearing and the interviews the Applicant had had with the Department. The Tribunal Member then ended the hearing.
The transcript of the Tribunal hearing makes clear that the Tribunal Member gave the Applicant every opportunity to say whatever he wished in support of his claims; gave the Applicant’s witness every opportunity to say whatever he wished in support of the Applicant’s claims; and, gave the Applicant’s adviser every opportunity to say whatever she wished in support of the Applicant’s claims.
Moreover, the Tribunal Member put to the Applicant and his witness any further questions suggested by the Applicant’s adviser and acceded to the Applicant’s adviser’s request for a further hearing. Occasionally, the Tribunal did ask questions where the Tribunal Member stopped the answers to questions where those answers were not responsive to the questions asked.
In paragraph 5 of his affidavit, the Applicant stated that he thought the Tribunal Member was trying to trap him. That belief by the Applicant does not by itself support an allegation of bias on the part of the Tribunal Member. The Applicant referred in particular to a question that he said the Tribunal Member asked about when he first joined the church suggesting that it was in 1995. The Applicant asserted that the Tribunal Member would have known that the Applicant had already written 1992 in his statement; the implication being that the Tribunal Member was trying to trap the Applicant by putting to him a date that the Tribunal Member knew to be wrong. However, this assertion by the Applicant misstates the evidence. It was the Applicant who stated that his parents went to Korea in 1995. The transcript makes clear that the Tribunal Member did no more than seek to clarify the Applicant’s evidence.
In paragraph 6 of his affidavit, the Applicant appears to be complaining that, in summarising his evidence, the Tribunal Member left out the Applicant’s claim of torture and that when the Tribunal Member asked the Applicant if that was all, the Applicant did not notice the Tribunal Member’s omission of his allegation of torture, and answered “Yes”, the Applicant said that the Tribunal Member then told the Applicant that, because he had left out a claim of torture, his story was not consistent. In relation to that complaint by the Applicant, the transcript discloses as follows:
“Tribunal Member: And what actually happened?
Applicant: People knocked at the door and the police came and we were told to lie down face the wall. We were taken away to the local police station. They asked what did we do, what we were doing. They took the bibles. They torture and I was sent to detention centre.
Tribunal Member: Yes and what happened then?
Applicant: I was locked in a small room – no sunshine – they interrogated me, didn’t let me sleep. They ask questions on the church. They wanted me to give up my belief like this – torturing me for a few months.
Tribunal Member: Right what else happened?
Applicant: That’s the major things happened.
Tribunal Member: So when you were in detention for 6 months, you were locked in a room without daylight, you were interrogated, they didn’t let you sleep and they wanted you to give up your belief – is that all that happened?
Applicant: Basically yes.
Tribunal Member: Are you sure about that? Because you claimed earlier you were tortured.
Applicant: Yes
Tribunal Member: But now you’re saying that you were just locked in a room without light, interrogated and they wanted you to give up your belief.
Applicant: Yes.
Tribunal Member: Well the two things don’t seem to be quite the same Mr [Applicant]. Can you explain that?
Applicant: I was often beaten up by them.
Tribunal Member: I mean I just asked you a minute ago what happened to you and you didn’t mention being beaten up at all. I asked you if that all that happened – you said yes. I asked you if you were sure – you said yes. Why are you saying you were beaten up now?
Applicant: Maybe I didn’t hear it clearly.
Tribunal Member: You say you were beaten up is that right?
Applicant: Yes.
Tribunal Member: How did they beat you up?”
A fair reading of that exchange does not suggest that the Tribunal Member was seeking to trick or mislead the Applicant. The Tribunal was doing no more than seeking to explore with the Applicant the precise nature of his claims and to put to the Applicant the concerns that it had about those claims. Moreover, there is nothing in the transcript to suggest that the Applicant misunderstood the Tribunal Member’s questions. In the circumstances, it was open to the Tribunal Member to have regard to that evidence by the Applicant and any inconsistencies that the Tribunal Member reasonably found to exist in that evidence.
In paragraph 7 of his affidavit, the Applicant stated that the Tribunal Member stopped his witness from giving further evidence telling him to put it in writing. The witness was not stopped from giving further evidence. As had been indicated at the beginning of the first hearing, the interpreter had to leave at 1.30pm. As is clear from the summary above of the hearing, the Applicant’s witness was invited to come to a further hearing, which he did, and gave further evidence.
Paragraph 8 of the Applicant’s affidavit appears to make a similar complaint that the Applicant’s migration agent had complained to the Tribunal Member that the Applicant’s witness had been given insufficient time to say what he wished and that the Applicant had not been given any time to say anything in his own words despite the preliminary remarks of the Tribunal Member. As the Applicant states in his affidavit, the Tribunal Member then said a second hearing would be given. In the circumstances, as is clear from the summary above of the hearing, the Applicant and his witness were both given sufficient time at two hearings to say whatever they wished in support of the Applicant’s claims.
In paragraph 10 of his affidavit, the Applicant stated that the only opportunity to say what he wanted was at the end of the second hearing by which time he was too exhausted and too stressed to be able to think of anything to say. A fair reading of the transcript of both Tribunal hearings does not support the Applicant’s allegation that the only opportunity he was given to say what he wished was at the end of the second hearing. As is clear from the summary above of the hearing, the Tribunal Member regularly asked the Applicant open-ended questions inviting elaboration on the part of the Applicant. On several occasions the Applicant was asked whether there was anything further he wished to say, including at the end of the first hearing. Moreover, the transcript discloses the Applicant did not make any complaint to the Tribunal Member at the end of the second hearing about being too exhausted or too stressed to be able to think of anything further to say.
A fair reading of the transcript of the hearing and the Tribunal Member’s decision record do not disclose any prejudgment on the part of the Tribunal Member in the sense that the Tribunal Member was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented.” (Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 at [69], [71]-[72], [127]).
A fair reading of the transcript of the hearing and the Tribunal’s decision record do not suggest that the Tribunal approached its review task other than with a mind open to persuasion. There is no evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal Member, might reasonably apprehend that the Tribunal Member may not have brought an impartial mind in determining the application for review (Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 at [27]-[32]; NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115]).
I also accept the submission made by Mr Smith in his written submissions as follows:
“A further point should be made concerning the expression by the applicant of his own opinion about the Tribunal’s conduct. That opinion is irrelevant because, even though it may be genuinely held, the test of apprehension of bias is one considered through the eyes of the hypothetical fair-minded observer. This point was explained by Basten JA in McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504 at 520, [83]:
“Thirdly, it must be borne in mind that the attribution of information to the fair-minded observer is for the purpose of deciding whether there is a real possibility that he or she would apprehend that the decision-maker might have a closed mind. Ultimately, it is the affected party whose confidence in the system may be seen to be most nearly affected. Nevertheless, reference to the views which might be held by a party to a dispute will tend to weaken the objective nature of the test. Thus, a party might have a particular belief about the proper decision, perhaps based upon a level of detailed information which should not properly be ascribed to the fair-minded observer. Nor is it necessary to consider whether a party would hold a reasonable apprehension in the circumstances where others might not.””
In the circumstances, the Applicant’s allegation of apprehended bias is rejected.
Applicant’s further complaints made at the hearing
At the conclusion of the First Respondent’s submissions, I invited the Applicant to say anything further he wished in support, either in response to the submissions of counsel for the First Respondent, Mr Smith, or anything further in support of his application generally. The Applicant responded that he felt the Tribunal had overlooked many factors of his claims in making its determination, including his release report and other documents in support of his religious activities. The Applicant then said that he was a member of a religious group and that the Tribunal Member had not asked him any questions about the Bible which indicated that the Tribunal Member had prejudged his case. The Applicant then reiterated the complaints made in his affidavit filed on 17 April 2009.
In relation to the Applicant’s complaint that the Tribunal Member did not ask him any questions about the Bible as supporting his allegation of prejudgment on the part of the Tribunal, I accept the submission of counsel for the First Respondent that it is the whole of the conduct of the hearing that must be seen and considered in determining whether or not the Tribunal approached its determination with a mind open to persuasion. The fact that the Tribunal Member did not ask the Applicant a question about the Bible cannot indicate to a bystander reasonably well informed that the Tribunal Member did not approach the review process, the hearings and its determination with a mind open to persuasion.
Otherwise, the Tribunal in the Findings and Reasons section of its decision, found the Applicant’s evidence to be “vague and confused” and noted various inconsistencies in the Applicant’s oral evidence given to the Tribunal. The Tribunal noted inconsistencies in the Applicant’s oral evidence with claims made in his visa application statement. The Tribunal found these inconsistencies were in respect of matters which could reasonably be expected to be of particular importance to the Applicant as they related to his claimed religion and fear of serious harm. The Tribunal found that the vagueness of his account of those claims, despite the passage of time, raised doubts about his credibility.
The Tribunal noted that it had taken into account the documents submitted by the Applicant, including an alleged certificate of release from detention issued on 18 September 1996. However, the Tribunal had concerns about the authenticity of the document having regard to its recent appearance some 12 years after the Applicant’s claimed release and the fact that it was nearly identical to a release certificate that the Tribunal Member had seen in another case differently constituted on 16 December 2008. The Tribunal accepted the evidence of the Document Examination Unit as inconclusive in demonstrating that the document was fraudulent. However, having regard to country information before it that falsified documents were easy to obtain and the Tribunal’s other concerns about the Applicant’s credibility, the Tribunal determined to place no weight on that document. That information was put to the Applicant in a letter dated 16 July 2008 sent to the Applicant pursuant to s.424A of the Act and to which the Applicant responded.
The Tribunal also had regard to a letter provided by the Applicant said to be from a person in China who witnessed the Applicant’s baptism and Christian practice. The Tribunal noted that the letter was not supported by any certified English translation. Although the Tribunal did not conclude that the letter was not authentic, given the Tribunal’s concerns about the credibility of the Applicant’s claims, the Tribunal was not satisfied that any weight could be placed on the document as supporting the Applicant’s claims.
Ultimately, the Tribunal was not satisfied that the Applicant was a member or organiser of an underground church in China as claimed or that he had any involvement in any illegal Christian activities. The Tribunal was not satisfied that the Applicant was ever harmed by authorities for that reason or that he ever went into hiding to escape the Public Security Bureau.
The Tribunal accepted that the Applicant had been involved in religious activities after he was placed in immigration detention in Australia in 2007 and that, following his release from detention, he attended a Korean-language church in Belmore. However, the Tribunal did not accept the Applicant’s claims of having attended a Korean church in Campsie, nor was it satisfied that he had ever held religious meetings in his own home. The Tribunal did accept that the Applicant involved himself in a range of Christian denominations both while in immigration detention and subsequently. However, the Tribunal was not satisfied that the Applicant’s conduct in engaging in Christian activities in Australia had been otherwise than to strengthen his claims to be a refugee. The Tribunal correctly noted, therefore, that, in accordance with s.91R(3) of the Act, it must disregard that conduct in assessing the Applicant’s claims to be a refugee.
The Tribunal, having rejected the Applicant’s claims of being a member or organiser of an underground church in China or otherwise involved in any illegal Christian activity in China, was not satisfied that the Applicant was arrested for any such reason or suffered past harm for any such reason. The Tribunal did not accept that the police had been harassing the Applicant’s family members or were in any way searching for him.
The Tribunal concluded that there was not a real chance that the Applicant would suffer serious harm in China because of any involvement with Christianity.
The Tribunal then affirmed the decision under review.
The Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
Conclusion
A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant at two hearings; and, had regard to all evidence and material provided in support, including oral evidence from the Applicant’s witness and submissions by the Applicant’s adviser, both of whom attended and spoke at both hearings. The Tribunal put to the Applicant matters of concern it had about his evidence, both at the hearings and in writing, and noted the Applicant’s oral and written responses. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 13 October 2009
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