SZLSP v Minister for Immigration

[2014] FCCA 609

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZLSP & ANOR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 609

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal was biased and had based its decision on a credibility finding which was unreasonable or illogical.

Legislation:

Migration Act 1958, ss.36, 474

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Minister for Immigration & Multicultural Affairs v Jia Legeng (2005) 205 CLR 507
Johnson v Johnson (2000) 201 CLR 488
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611

First Applicant: SZLSP

Second Applicant: SZLSQ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1387 of 2013

Judgment of: Judge Cameron

Hearing date: 5 March 2014

Date of Last Submission: 5 March 2014

Delivered at: Sydney

Delivered on: 2 April 2014

REPRESENTATION

The First Applicant appeared in person

Counsel for the First Respondent: Mr J. Smith

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1387 of 2013

SZLSP

First Applicant

SZLSQ

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicants, who are husband and wife, are citizens of China who arrived in Australia on 7 April 2007.  On 13 April 2007 they lodged applications for protection visas with what is now the Department of Immigration and Border Protection, alleging that they feared persecution in China because of the first applicant’s religious opinions.  On 9 July 2007 the applicants’ applications were refused by a delegate of the first respondent (“Minister”).  The applicants then applied to the second respondent (“Tribunal”) for a review of that departmental decision.  They were unsuccessful before the Tribunal and have applied to this Court for judicial review of the Tribunal’s decision.

2. The Tribunal decision the subject of these proceedings is the fourth such decision relating to the applicants.  The first Tribunal decision dated 7 November 2007 was quashed by consent on 4 November 2008, the second Tribunal decision dated 13 February 2009 was quashed by order of this Court on 24 September 2009 and the third Tribunal decision dated 30 December 2010 was quashed by the Federal Court on 2 May 2012.

3. In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

4. For the reasons which follow, the application will be dismissed.

Background facts

1. The facts alleged in support of the applicants’ claim for protection visas are set out on pages 3-27 of the Tribunal’s decision, a copy of which was annexed to the first applicant’s affidavit filed on 20 June 2013.  Relevant factual allegations are summarised below.

2. The first applicant made the following claims in his protection visa application and in a statement attached to that application:

   a)he was introduced to Falun Gong by a friend and commenced practising with twenty other people in a park every morning;

   b)in 1999, after the Chinese government began to repress Falun Gong, he and six or seven other people began practising in the “cove” of a mountain.  He had organised all the activities except when he was away on business trips;

   c)on a morning in June 2003 he and three other employees at a sales centre which he supervised once a week were practising in a room at the centre when three police officers broke in and arrested them;

   d)he was detained for three days during which he was interrogated, punched, kicked, beaten with an electric rod and starved.  Because he could not bear the torture, he signed a letter stating that he would not go against the government, would not practise or organise Falun Gong activities and that he would report to the police once a week.  He signed the letter because the police told him that if he did not they would stop his wife from attending work and his children from attending school;

   e)because the police were afraid that his injuries would be noted by other people, when they released him they told him that until his injuries had healed, he could not contact anyone, leave his house or go to work;

   f)after his release he and other people secretly printed some material asking people to support Falun Gong which he then placed in the doors of residential buildings;

   g)he was arrested again in September 2005 when he went to a police station to support some fellow Falun Gong members who had been arrested;

   h)after his arrest the police went to his home where the second applicant expressed her support for his Falun Gong practice.  She was pushed by one of the police officers, hit the corner of a table and fractured the bridge of her nose.  The police told her to divorce him.  She blacked out and was eventually taken to hospital where they found that her brain was swollen;

   i)every time there was a big event in China the second applicant had been required to report to the police;

   j)he was terminated from his employment because of his Falun Gong practice and the second applicant’s employment was terminated because she had refused to divorce him.  Because of their desperate situation they escaped from China;

   k)he had lived at the same address with the second applicant from July 2005 until their departure from China in 2007.

   l)since he and his wife had arrived in Australia someone had continuously called his sister-in-law asking about their whereabouts.  A police officer had told her to tell him (the first applicant) that if he had any action against the government, they would “never let him off”.

3. In the statement attached to her protection visa application the second applicant essentially repeated the claims made by the first applicant in relation to the harm she had suffered when the police visited their home.  She claimed that she was not a Falun Gong practitioner but supported the first applicant’s practice.  The second applicant claimed that she had not felt secure and because the police had been threatening her sister, she and the first applicant were scared and did not dare return to China.

4. The applicants also claimed in their applications that they had left China using passports which were in their own names and that they had had no difficulties obtaining those passports.  The first applicant’s passport was issued on 6 December 2006 and he claimed that it was his first passport.  The second applicant’s passport was issued on 15 January 2003.  They were both granted Australian tourist visas on 3 April 2007 and departed China legally on 6 April 2007. 

5. The applicants produced to the Department five photographs which they claimed depicted the second applicant.  The photographs showed her lying on a hospital bed with a bandage over her nose and a mark behind her ear.

First Tribunal

1. As already noted, the delegate refused the applicants’ applications on 9 July 2007.  On 20 August 2007 the first applicant provided a statement responding to the concerns expressed in the delegate’s decision.  In it he claimed:

   a)he started practising Falun Gong in 1996 and, although the number of people he practised with at the park varied, there was always a core group of about six or seven people.  As the head of the sales department at his workplace, he had often travelled and so his practice had not been regular;

   b)he stopped practising at the mountain cove in 2003 and from then would sometimes practise with three staff members at his employer’s sale centre;

   c)he did not have any documentary evidence of his arrests because the police did not follow procedures when arresting Falun Gong practitioners and he had not been provided with a copy of the guarantee letter he signed;

   d)after his employment was terminated in 2003, he was unemployed but did anything he could to earn money including carpentry, gyprocking and using a tricycle to deliver goods and to carry people; and

   e)he obtained his passport by paying a former classmate 2,000RMB to organise it.  He also paid his classmate 5,000RMB to arrange all the other “relevant formalities” for him to leave China.

2. After the first Tribunal’s hearing, the first applicant provided a further statement dated October 2007 in which he explained inconsistencies in his evidence.  He claimed:

   a)he had stopped working in 2003 but had been formally terminated in 2005.  After he signed the guarantee letter the director of the company told him that he and his wife could not continue to work there but did not have to go through the administrative and human resource formalities at the time;

   b)after he was arrested in 2005, the police notified his employers and they posted a notice on a bulletin board at his work and held a staff meeting to announce that he and the second applicant had been dismissed because of their Falun Gong activities; and

   c)the mention in his first statement of the second applicant having had to report to the police was a mistake arising out of a translation error.  It had been he who had had to report.

Second Tribunal

1. During the proceedings before the second Tribunal the applicants produced two photographs which they said had been taken in Sydney in September 2007 and depicted the first applicant holding banners supporting Falun Gong and criticising the Chinese Communist Party.

Third Tribunal

1. The first applicant provided a fourth statement, dated 13 December 2010, in which he claimed that since his arrival in Australia he had been practising Falun Gong at home after finishing work and often attended meetings on Sundays in Auburn and Chinatown.  He claimed that he had attended all major Falun Gong events in Sydney.

2. The applicants also produced statements dated 7 December 2010 from two people who said they were Falun Gong practitioners who had often attended big Falun Gong events in Sydney with the first applicant.  The two witnesses stated that they believed that the first applicant would suffer persecution if he returned to China.

Fourth Tribunal

1. Prior to their hearing before the Tribunal the applicants produced:

   a)seven statutory declarations and two letters from various people attesting that the first applicant was a Falun Gong practitioner; and

   b)several photographs including three of the first applicant taking part in Falun Gong activities with a group of people on 13 May 2012, one of which showed him with a group of people holding a banner.

2. The applicants attended a hearing which was held over two days.  On the first hearing date, on 20 December 2012, the first applicant made the following claims:

   a)he and the second applicant met in 1995 and started living together in 1996.  He was already a Falun Gong practitioner when they started living together;

   b)the second applicant had obtained a passport in January 2003 because she had been planning to travel to Russia with a friend but had ultimately not done so.  He then said he was not sure if she had gone to Russia because he had travelled a lot for work.  He later said, after being shown her passport and application form, that in December 2006 she had been taken to Russia by a friend who wanted to calm her down because she had been upset by his persecution;

   c)he had previously held a passport which he had obtained with the intention of leaving China but it had been damaged.  He initially said he could not remember when he obtained it and when it was damaged but then said he obtained it in 2005 or 2006 and it had been damaged in 2006;

   d)he and the second applicant had made the decision to leave China in September 2005 but he had had to wait for the person he had paid to organise their travel;

   e)between 1996 and 2007 he had read Zhuan Falun two to three times a week.  From 2007 he practised nearly every night and read Zhuan Falun three to four times a week.  When he was before the third Tribunal in 2010 he had been unable to talk about Zhuan Falun because he had been nervous and his mind had gone blank;

   f)the second applicant did not know a lot about Falun Gong because she was not a practitioner and was not willing to practise;

   g)his step-daughter, who had a different name to his, had been studying in Australia since 2008.  She had returned to China in 2011 for a month and when she returned to Australia had told him that he should not go back as he would be persecuted.  She knew he was a Falun Gong practitioner and although he had not told her about his arrests he thought she might know about them; and

   h)he and the second applicant did not telephone their family in China often because they were afraid their calls might be intercepted.

3. The second applicant made the following claims on the first hearing day:

   a)she could not remember when she first became aware that the first applicant was a Falun Gong practitioner but thought it might have been in 1998 or 1999;

   b)she had obtained her passport in 2003 with the intention of travelling to Russia with a friend but had not done so.  She eventually went there in December 2006 with her friend who was a businessman.  He had invited her on the trip and paid for it.  The first applicant had been aware of her trip;

   c)she had not had problems leaving and returning from her trip because she was not a Falun Gong practitioner and was not blacklisted;

   d)the first applicant had obtained his first passport before he was persecuted because he had intended to join her and her friend on their trip to Russia;

   e)the authorities had last visited her sister to enquire about them in 2007;

   f)when her daughter returned from China she had told her and the first applicant that they could not return there because the government continued to suppress Falun Gong; and

   g)her daughter did not know the entirety of what had happened to her and the first applicant but did know that she had been beaten and injured and that the first applicant had been arrested for being a Falun Gong practitioner.

4. On the second hearing date on 7 January 2013 the first applicant made the following additional claims:

   a)when arrested in 2005 he was held for several hours.  After he was released he was required to report to the local police every week but every time he did so he was abused.  He escaped and moved somewhere else in about October 2005.  After he escaped he became a wanted person;

   b)since his arrival in Australia he had participated in seven or eight Falun Gong activities, including participating in the birthday celebrations each year;

   c)he usually practised alone at home but in 2007 had sometimes practised with two friends.  For about three or four months in 2007 he had also practised in a small park;

   d)he had distributed Falun Gong material in Australia between ten and twenty times; and

   e)if he returned to China he would be arrested and gaoled because he was a Falun Gong practitioner and was already on the Chinese government’s blacklist.  There were Chinese spies in Australia.

5. The second applicant made the following additional claims:

   a)from 2003 until 2007 the first applicant had been required to report weekly and on holidays.  Because she was not at home all the time she did not know if he had observed those requirements but said that if he had been on the run and not reported she would have known about it because he would have been arrested; and

   b)she did not fear for herself but feared for the first applicant if they returned to China.  There were spies in Australia who might know about the first applicant’s activities here and if he returned to China he would be arrested.

6. The applicants’ daughter also appeared before the Tribunal on 7 January 2013 and gave the following evidence:

   a)she had lived with the applicants from about 1999 until about 2002 and had been registered on the same hukou with them until 2008 when it was transferred to her maternal grandfather;

   b)she had returned to China to visit family on three occasions: for three weeks in March 2010; for five weeks between June and August 2011; and for one month between January and February 2012.  She had not experienced any problems during her visits and had not been questioned at the airport;

   c)she knew that the first applicant was a Falun Gong practitioner because she had seen him practising in China and in Australia.  She knew her mother had been beaten and her mother told her in 2008 that it was because of the first applicant’s Falun Gong practice; and

   d)she was able to return because the first applicant was her step-father and in China the relationship between step-parents and children was not as close.  However, it would be dangerous for her parents to return to China.

7. On 16 January 2013 the Tribunal wrote to the applicants seeking their comments or response to certain information.  In a reply received by the Tribunal on 5 February 2013 the first applicant claimed:

   a)in her evidence at the second hearing the second applicant had meant that the first applicant had reported to the police from 2003 to 2005 when they lived at their home.  He had not reported after they left their home on October 2005;

   b)he had earlier said he had not left China earlier than he did because he had needed to organise a passport but in fact had meant that he had had to organise a passport and a visa.  He had not known that a passport and visa were two different things;

   c)his step-daughter had had no problems travelling back to China because she was not a Falun Gong practitioner, had never had contact with the police, her household registration was separate from his, she was his step-daughter and in China if a person broke the law it did not mean “the whole clan would be implicated”; and

   d)he and the second application had given inconsistent and varying evidence because they had been nervous, they had been tired from lack of sleep the night before the hearings, their minds had not been clear, they had attended several hearings which were each conducted over several hours, they had difficulty concentrating, their memories had been affected, their education levels were low and there might have been interpretation issues which led to misunderstandings.

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicants are persons to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”) or s.36(2)(aa) of the Act. The Tribunal’s decision was based on the following findings and reasons:

2. The Tribunal did not accept the claims made by the applicants because it was not satisfied that they had been truthful.  It found that the applicants had given vague, changing, inconsistent and implausible evidence about key matters and concluded that they had fabricated their claims in order to remain in Australia.  In this connection:

   a)the applicants gave inconsistent evidence about the first applicant’s reporting requirements from 2003 until they left China.  The Tribunal did not accept the applicant’s explanations for the inconsistencies.  It noted that in their protection visa application forms the applicants had claimed to have lived at the same address in China from July 2005 until they left China which it found was inconsistent with their claim to have moved from their home in October 2005.  The Tribunal found that while it was possible that the applicants had only been referring to their registered address and not to their physical address, the second applicant’s evidence at the Tribunal hearing had clearly been that the first applicant had been reporting to the police from 2003 until 2007;

   b)the first applicant gave inconsistent evidence about the second applicant’s trip to Russia, first claiming that he did not know about the trip, then saying he did not know because he had been away on a business trip before saying he remembered that she had travelled to Russia because she had been worried about his persecution.  The first applicant’s latter evidence was also inconsistent with the second applicant’s evidence that she had travelled as a companion of a friend who was travelling for business.  The Tribunal found the applicants’ explanations for their inconsistent evidence to be unsatisfactory and concluded that the second applicant’s trip to Russia undermined the first applicant’s claims to have been avoiding the police and to have been desperate to escape China;

   c)the Tribunal found the first applicant’s evidence in relation to his decision to leave China, his delay in leaving China and the details of his passports to be vague and lacking in detail.  In this connection:

   i)the first applicant initially said that he could not remember when his first passport was issued and damaged before saying it had been issued in 2005 or 2006 and damaged in 2006.  Given that the first applicant claimed that the reason he had obtained his passports was to flee China, the Tribunal considered his vague evidence indicated that he was not a truthful witness;

   ii)the first applicant gave vague evidence about when he made the decision to leave China, which the Tribunal found undermined his claim to have made that decision as a consequence of fearing harm and of having suffered past torture; and

   iii)the Tribunal noted that when the first applicant was released from detention in September 2005 the second applicant already had a passport and, based on the fact that the first applicant did not deny it, it found that the first applicant also had his first passport at that time.  The Tribunal considered that the applicants could have taken steps to leave China after the serious events alleged to have occurred in September 2005 and did not accept their explanations for failing to do so.  The Tribunal found that the applicants’ delay in leaving China suggested that they did not have a genuine fear in China because the first applicant was not a Falun Gong practitioner and they had not suffered the harm they claimed;

   d)the Tribunal found that the applicants gave contradictory and vague evidence concerning the Chinese authorities’ interest in them after they had left China.  The Tribunal did not accept that the applicants’ explanations for their vague and contradictory evidence explained why, if they claimed that they would be harmed on their return, they were unable to provide clear and coherent evidence about the enquiries that had been made about them or why they were not interested enough to find out if the authorities had shown any interest in them since they had been in Australia.  The Tribunal considered that the applicants could not support their claims with details because their claims about the authorities’ interest in them, as well as the harm they claimed to have suffered in the past and their claim that the first applicant was a Falun Gong practitioner, were untrue.  The Tribunal also found that the applicants’ failure to produce evidence to suggest that the authorities were interested in them suggested that the authorities had not monitored, or were unaware and uninterested in, any Falun Gong activities of the first applicant since he had been in Australia;

   e)the Tribunal specifically found that the second applicant was not a witness of truth because her vague, changing, inconsistent and implausible evidence.  Further, the Tribunal:

   i)did not accept that the second applicant would have allowed her daughter to return to China on three occasions if, as she claimed, she had been harmed, her husband arrested and harmed and her sister harassed and threatened by the police there;

   ii)noted that the second applicant was unable to tell it anything about Falun Gong except for a few basic facts.  In light of the significant effect she claimed it had had on her life, the Tribunal was concerned that she knew nothing about it apart from the few words she was able to say to it.  Whilst accepting that a spouse did not have to have intricate, or even basic, knowledge of their spouse’s faith, after taking into account the other difficulties with the second applicant’s evidence the Tribunal found that her lack of knowledge indicated that the applicants’ claims had been fabricated; and

   iii)found that the vagueness and lack of detail in the second applicant’s evidence was contrary to what it considered a person who had genuinely lived the claimed experiences would have been able to say and indicated that the second applicant had fabricated her claims; and

   f)the Tribunal considered the reasons given by the applicants for the deficiencies in their evidence – nervousness, fatigue, unclear minds, numerous hearings that took several hours, headaches, difficulty concentrating, interpreter errors and low education levels – but did not accept that those explanations overcame the deficiencies in their evidence.  It found that the applicants had been able to answer questions throughout its hearing except when anomalies in their evidence were put to them for explanation.

1. The Tribunal noted that at a hearing before the third Tribunal the first applicant had been unable to provide detail about Zhuan Falun despite claiming to have been reading the book since 1996 but two years later at its hearing was able to provide much more detail about its contents.  The Tribunal considered that if the first applicant had been a committed Falun Gong practitioner who had been reading Zhuan Falun for fourteen years by December 2010 (at the time of the third Tribunal’s hearing), he would have been able to tell the third Tribunal more about Zhuan Falun than he was able to.  The Tribunal did not accept the first applicant’s explanations for his answers at the third Tribunal’s hearing.  It found that his evidence about the contents of Zhuan Falun before the third Tribunal did not demonstrate a level of knowledge that a person who claimed to have been reading the book for fourteen years would be expected to have.  The Tribunal concluded that the evidence indicated that the applicant had learnt about Zhuan Falun after the hearing in 2010 for the purposes of his application and was therefore able to provide some information at its hearing.

2. Whilst the Tribunal was prepared to accept that the first applicant had attended a minimal number of public Falun Gong activities in Australia, based on the opportunity it had had to test his claims, the Tribunal did not accept that he was a genuine Falun Gong practitioner or that he had been one in China.  Given the first applicant’s lack of credibility the Tribunal was not satisfied that his conduct in learning about Falun Gong and attending those minimal activities was done other than for the purpose of strengthening his refugee claim.  The Tribunal therefore disregarded the first applicant’s conduct in Australia.

3. The Tribunal noted that the applicants’ daughter had travelled to China on three occasions and had not had any problems.  It did not accept the applicants’ explanations for their daughter’s ability to travel freely to China.  The Tribunal noted that the applicants’ own evidence, that the second applicant had been harmed and that her sister had been harassed and threatened, indicated that the authorities had not confined their attentions to the first applicant or to people with the same surname.  It also noted that the daughter had the same surname as her mother who also claimed to be of interest to the authorities.  In light of the fact that the applicants had left China using their own names and the further fact that their daughter who had previously been on their hukou had not hidden her travel to Australia, the Tribunal found it most unlikely that the Chinese authorities would not have been aware that the daughter had returned three times and used the opportunity to detain and interrogate her.  The Tribunal found that the daughter’s return to China indicated that there was no concern for her safety because the first applicant was not a Falun Gong practitioner and the applicants had had no previous encounters with the authorities and were not sought by the authorities.

4. Based on photographs produced by the applicants purporting to show the second applicant injured and on the daughter’s evidence that the second applicant had been beaten in 2005, the Tribunal accepted that the second applicant had been in hospital for some time but due to the applicants’ lack of credibility it did not accept that it was for the reasons claimed.  The Tribunal also noted the applicants’ daughter’s evidence that the first applicant was a Falun Gong practitioner but because of the applicants’ lack of credibility found that the daughter had given that evidence to support their stay in Australia.  Based on the applicants’ lack of credibility the Tribunal also gave no weight to the letters and photographs produced by the applicants or to the second applicant’s evidence about the first applicant’s practice of Falun Gong in China.

5. Whilst noting country information that the Chinese authorities monitored Chinese citizens overseas, the Tribunal nevertheless did not accept that there was a real chance that the Chinese authorities would be aware of the first applicant’s minimal Falun Gong activities in Australia.  It noted that the first applicant had not indicated that the authorities were aware of his name or had contacted his relatives about him and they had not interrogated his daughter about his activities in Australia on her regular returns to China.  The Tribunal found on the basis that the applicants’ tourist visas had expired in 2007 and the fact that they had not had a substantive visa since then, that it was possible that they would be interviewed on their return to China and placed under short-term surveillance.  It found that there was a possibility that the first applicant would tell the authorities about his protection visa application but found that country information suggested that the Chinese government was well aware that its citizens made false protection visa applications for many reasons and therefore would not necessarily believe that a person had brought disrepute to the Chinese state.  The Tribunal did not accept that during their arrival at the airport, their possible interview and their subsequent short-term monitoring, the applicants would suffer serious harm or that the authorities would consider that the first applicant was a Falun Gong practitioner.

6. The Tribunal did not accept that there was any reason for the second applicant to fear persecution or any harm in China.  In this connection it did not accept that the applicants had been truthful about their claims, including their claims that the second applicant had previously been harmed, dismissed from her job and brought to the attention of the police.  The Tribunal noted that the second applicant had not claimed to have been involved in Falun Gong activities in Australia and had not previously come to the attention of the authorities by reason of her own activities.  Having found that the first applicant was not a Falun Gong practitioner and that there was no real chance that his minimal activities in Australia would come to the attention of the Chinese authorities, the Tribunal did not accept that the second applicant would come to the authorities’ attention due to the first applicant’s Falun Gong activities in Australia.  The Tribunal did not accept that the second applicant had been dismissed from her job and could not return to it.  It did not accept that she would suffer serious harm for financial reasons as she had relatives in China and would be accompanied by the first applicant.

Proceedings in this Court

1. In their amended application the applicants alleged:

   1.The decision of the Refugee Review Tribunal (“the Tribunal”) was affected by jurisdictional error in that the Tribunal’s assessment of the first applicant’s knowledge or deeds about Falun Gong based on the Tribunal’s assessment of the applicants’ credibility in relation to other matters was unreasonable and or clearly illogical and or made in the absence of significant evidentiary foundations: see MIAC v SZMDS (2010) 240 CLR 611.

   Particulars

   a.The applicants rely on the letter addressed as “Dear Judge” annexed to this amended application.

2. The applicants’ pleaded allegation of jurisdictional error on the part of the Tribunal had two elements.  The first was that the Tribunal’s decision was based on a credibility finding which was illogical or unreasonable with the consequence that its ultimate finding on the review had no logical basis.  The second was that that credibility finding lacked “significant evidentiary foundations”. 

3. The applicants attached to their amended application a letter which specified the matters said to support the allegation of illogicality and unreasonableness.  It also made submissions which challenged the Tribunal’s findings and essentially alleged that it had been biased against them.  The terms of that letter are set out as an annexure to these reasons. 

Bias

1. It is convenient to address the allegation of bias first.  It is unclear whether the allegation is of actual bias or of an apprehension of the possibility of bias.  Actual bias in the nature of prejudgment, which seems to be the sort of bias which is alleged, involves a mind which is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence might be presented: Minister for Immigration & Multicultural Affairs v Jia Legeng (2005) 205 CLR 507 at 532 [72]. For the applicants to make out an allegation of apprehended bias it is necessary for them to demonstrate that a fair minded lay observer who was properly informed as to the nature of the proceeding, the matters in issue and the conduct said to give rise to an apprehension of bias might reasonably apprehend the possibility that the Tribunal was not bringing an impartial and unprejudiced mind to the resolution of the question it was required to decide: Johnson v Johnson (2000) 201 CLR 488; Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425.

2. Whichever sort of bias is in fact alleged, the evidence and considerations to which the applicants referred in their letter do not persuade me that the Tribunal undertook the review with a closed mind or that a reasonable lay observer might have perceived the possibility that it was doing so.  The length of the Tribunal hearing can be explained by the accretion of evidence and claims since the applicants lodged their protection visa applications and the need for the Tribunal to explore them.  Further, as the applicants’ credibility had clearly been in issue from the time of the delegate’s primary decision in 2009, the Tribunal’s enquiries were not irrelevant to the question it had to decide, namely whether the applicants faced persecution or significant harm if they were to return to China.

Illogicality and unreasonableness

1. The first applicant’s claims had two elements, the first being his claim to have been a genuine Falun Gong follower when in China and the second being his claim to have been persecuted in China as a consequence of his involvement with Falun Gong.  Each of the matters which the applicants particularised in their letter had clear relevance to whether those claims ought to be believed.  Dealing with them in turn:

   a)the applicants’ daughter’s unimpeded visits to China were inconsistent with the applicants’ evidence that they were afraid to telephone China and their allegations that people associated with the first applicant, even if they had different surnames as his step-daughter had, had been questioned as to the applicants’ whereabouts;

   b)the length of time the applicants had known each other was relevant to the second applicant’s ignorance of the first applicant’s claimed Falun Gong beliefs;

   c)the incongruity of the different levels of the first applicant’s knowledge of Falun Gong at different times in the review process was relevant to the claimed length of his adherence to those beliefs;

   d)the second applicant’s knowledge of Falun Gong, or lack of it, was relevant given that her exposure to it dated from no later than 1999 and possibly from as early as 1996, when she and the first applicant started to live together; and

   e)as the Minister submitted, given the nature and extent of the Tribunal’s findings about the applicants’ credit there was nothing irrational or unreasonable in the Tribunal’s decision to not accept the evidence of the witnesses who stated that the first applicant was a Falun Gong practitioner.

2. For the above reasons the allegation that the Tribunal’s decision lacked “significant evidentiary foundations”, even if that provided a basis for an allegation of jurisdictional error, is not made out.

3. Further, because those matters were relevant to the credibility of the applicants’ claims, reliance on them did not, on its own, render the Tribunal’s credibility findings illogical or unreasonable in the sense discussed in Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 by Heydon, Crennan and Bell JJ.

Conclusion

1. Jurisdictional error on the part of the Tribunal has not been demonstrated.

2. Consequently, the application will be dismissed.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date: 2 April 2014

ANNEXURE

Dear Judge,

My name is [the first applicant]. I am a refugee applicant.  My case has been heard for more than 6 years and I have come to court for many times.  My case ended with success every time in the court, however, was rejected for all sorts of reasons at the Refugee Review Tribunal.  Especially in the two hearings in 2013, the RRT Member spent 4 to 5 hours to query me with all kinds of questions.  Although I gave them reasonable answers to their questions, they just refused my application with unfair reasons.  Hence, I decided to appeal to the court against her unjust judgment and the discrimination against me.

With regard to a series questions asked by the Member in two hearings in 2013, I would like to make a further explanation:

1.The Member asked me why [first applicant’s step-daughter] hadn’t been questioned or persecuted by Chinese police when she came back to China.  I explained to her in the hearing that first, [first applicant’s step-daughter] was not a Falun Gong follower and she came to Australia just for further study.  Second, I am her step-father.  My family name is … and hers is ….  Her returning to China has nothing to do with my Falun Gong practice.

2.The Member also asked me when I met my wife and got acquainted with her.  I said that was our privacy.  Moreover, it had no association with my Falun Gong practice and we didn’t have to answer that question.  However, she required me to answer.  Although I felt it was an unreasonable requirement, I still answered all the questions.

3.The Member asked me why I did not show good knowledge of Falun Gong in 2010 hearing, yet performed well in 2013 hearing.  With regard to this issue, my deal [sic] judge, I have to say I really don’t know what to do.  The Member would judge me as not a real Falun Gong follower if I answered badly.  However, if I answered well, she would say that I had read books about Falun Gong in order to obtain protection.

4.The Member questioned why my wife [the second applicant] had no idea about Falun Gong.  My explanation is that she is not a follower of Falun Gong so it is normal if she doesn’t show any knowledge of Falun Gong.  My wife had stated that she was not a Falun Gong follower in 2007 hearing.  But she always supports me in practicing [sic] Falun Gong.

5.The Member asked us to find witnesses to prove that I was a Falun Gong follower.  My fellow Falun Gong practitioners and friends in China volunteered to be my witnesses when hearing this news.  Nevertheless, the Member did not accept it as evidence.  She judged me as not a Falun Gong follower, merely from the things unassociated with Falun Gong.

From what has been stated above, we can easily see that those questions raised by the Member are irrelevant to the knowledge or deeds about Falun Gong, which cannot be used as evidence to prove that I am not a Falun Gong follower or I will not be persecuted in China.  I believe that her reasoning is based on no ground.  Your Honor, you can interpret what really happened from the appealing documents I had handed in.

Dear judge, I have been suffering pain, fear, and long-waits in every hearing in these 6 years.  I miss my home very much because my 90-year old mother expects so much to see me arriving home as soon as possible.  However, I am afraid to return to my native country because of the persecution.  I fear to live a vagrant life at home.  Therefore, I sincerely hope that you can give me a just sentence, allowing me to stay in Australia and to be protected.  I will be grateful and serve Australia with whole heart.

Appealer: [first applicant]