SZMAE v Minister for Immigration
[2008] FMCA 979
•22 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMAE v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 979 |
| MIGRATION – Review of decision of Refugee Review Tribunal – whether jurisdictional error – Protection (Class XA) visa – whether breach of s.424A and s.425 of the Act – procedural fairness – choice, assessment and weight of independent country information – merits review not function of judicial review – whether applicant’s claims properly considered – vulnerability of refugee applicants – difficulties in obtaining documentary evidence to substantiate claims – benefit of the doubt – apprehended bias – applicant must make out own case. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5, 36, 65, 91R, 91S, 414, 424A, 425, 474 |
| QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 VJAF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 178 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 NABD of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 216 ALR 1 NBKT v Minister for Immigration & Multicultural Affairs (2006) 156 FCR 419 (FC) Abebe v The Commonwealth of Australia (1999) 197 CLR 510 Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 SZBYR v Minister for Immigration & Citizenship (2007) HCA 26 SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68 SZBEL v Minister for Immigration & Multicultural Affairs [2006] HCA 63 Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 SZICV v Minister for Immigration & Citizenship [2007] FCAFC 39 Randhawa v Minister for Immigration & Ethnic Affairs (1994) 52 FCR 437 SZHPD v Minister for Immigration & Citizenship [2007] FCA 157 SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 328 Refugee Review Tribunal; ex parte H & Anor (2001) 179 ALR 425 Yao-Jing Li v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275 WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 |
| Applicant: | SZMAE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 508 of 2008 |
| Judgment of: | Orchiston FM |
| Hearing date: | 24 June 2008 |
| Date of Last Submission: | 24 June 2008 |
| Delivered at: | Sydney |
| Delivered on: | 22 July 2008 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondent: | Mr H.P.T. Bevan |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application filed on 3 March 2008 is dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $5,000 payable within five (5) months of the date of these Orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 508 of 2008
| SZMAE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Application
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), as amended, (the Act) seeking review of the decision of the Refugee Review Tribunal (the Tribunal) handed down on 5 February 2008 which affirmed the decision of the delegate of the respondent Minister (the delegate) to refuse to grant a Protection (Class XA) visa to the applicant.
Background
The first applicant was born on 16 September 1983. She claims to be a national of China, of Han ethnicity, and of Christian faith.
The applicant arrived in Australia on 29 May 2007 on a Chinese passport issued in her own name.
The applicant lodged an application for a protection visa on 11 July 2007 on the basis that she was persecuted, arrested and detained for her involvement in the “Local Church” (also known as the “Shouters”). The applicant claims to fear further persecution if she has to return to China (Court Book (CB) 1-30).
On 3 September 2007 the delegate refused to grant the applicant’s protection visa on the basis that she was not a person to whom Australia had protection obligations under the Refugees Convention (CB 36-44)(see Legislative framework).
On 28 September 2007 the applicant applied to the Tribunal for review of the delegate’s decision (CB 46-49).
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 particular opinion, is outside the country of his nationality and is unable or, owing to such fear, is 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 the persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Tribunal proceedings
On 1 November 2007, the Tribunal sent a letter to the applicant inviting her to appear before it on 16 November 2007 to give oral evidence and present arguments (CB 53-54). The applicant attended the Tribunal hearing and gave evidence.
The applicant’s claims and evidence
The applicant's claims were set out in a statutory declaration attached to her protection visa application (CB 27-30) and were also summarised by the Tribunal (CB 70-72), including that:
·she began attending bible study classes in January 2006 at the Local Church and was baptised in May 2006
·in February 2007 she was detained by police from the Public Security Bureau (PSB) for a period of ten days, during which time she was interrogated and beaten
·following her release, she, together with two other members of the Shouters, organised, drafted and distributed 10,000 leaflets calling on the Chinese authorities to protect religious freedom and to release from prison Christian leaders (including the leader of the applicant’s group)
·she departed China in May 2007 when she believed that the PSB would again move to arrest her. Since her departure, the PSB have questioned her husband about her activities
·she will be subjected to persecution if she returns to China due to her religious beliefs and practice.
The Tribunal’s findings and reasons (CB 78-80)
The Tribunal noted that the applicant had provided no supporting or corroborative documents to substantiate her claims of religious activities in China. It considered that the applicant's statutory declaration and oral evidence “lacks specific details and at times is vague” (CB 78). It further stated that her oral evidence was “at times vague, lacking specifics and contradictory” (CB 79). In particular, the Tribunal:
·considered the applicant’s reference to the founder, and organisational structure, of the Shouters to be “hesitant and vague”
·found the applicant’s inability to provide specific details of the location of the Shouters’ meeting house as “unconvincing”, in circumstances where the applicant claimed to have attended the house three times per week
·did not accept as plausible the applicant’s claim that her husband drove her and her child to the meeting house three times per week, given the distance and time involved
·did not accept that the applicant was baptised in the Local Church as her claim to have undergone a single baptism was inconsistent with country information about that church, which promotes multiple baptisms
·found it “unconvincing” that the applicant did not know or could not recall the leaflets’ contents, costs or mode of distribution, in circumstances where the applicant claimed to have been involved in the preparation and distribution of some 10,000 leaflets.
For these reasons, the Tribunal did not accept that
·the applicant has been an active member of the Shouters Church in the PRC or that she was involved in the printing and distribution of illegal religious material
·she had been detained, or that other persons she referred to had been detained by the PSB
·she had been persecuted as claimed for her religious beliefs and practice
·she suffered harm or serious harm by the authorities or non government agents for any Convention-related reason
·the applicant is actively involved in religious activities in the Local Church in Australia, as the Tribunal considered it “unconvincing” that she could not remember her church’s name, claiming it was being refurbished.
In conclusion, the Tribunal found that the applicant does not face a real chance of persecution for Convention-related reasons in the reasonably foreseeable future if she were to return to China. Accordingly, the Tribunal found that her claim of fear of persecution for any Convention-related reason is not well founded.
The proceedings before this Court
The applicant filed the application in this Court on 3 March 2008 setting out 3 grounds of review of the Tribunal’s decision.
The applicant appeared in person before the Court on 24 June 2008 with the assistance of a Mandarin interpreter. Mr Bevan of counsel appeared for the first respondent.
The applicant was invited to say anything she wished to in support of the grounds of review, and generally, after each ground was translated for her.
Grounds of application
A preliminary matter which relates to each of the grounds of application is the extent to which the Court can accept the applicant’s summary of what she asserts are the two main reasons for the Tribunal rejecting her application for review.
In this regard, the applicant refers in the particulars to ground 1 to various "pieces of information as reason or part of reason" for the Tribunal affirming the decision that is under review, but then states that:
In summary, the Tribunal's decision is mainly relied on two pieces of information. Firstly, I do not provide documentary evidences to substantiate my claims; and secondly, my claim of being baptised only for once might be inconsistent with independent evidence of so-called ‘multiple baptisms’ within Shouters.
The particulars of ground 2 equally rely on these same two “pieces of information” to support an allegation of apprehended bias on the part of the Tribunal.
I accept that the Tribunal noted in its Findings and Reasons the following lack of documentary material to substantiate various of the applicant’s claims:
·The Tribunal notes the Applicant has provided no supporting documents to substantiate her claims of religious activities (CB78).
·The Applicant has claimed that she was baptised only once on 28 May 2006. She has provided no copy of a baptism certificate or material from interested parties to substantiate her claim that she was baptised (CB 78).
·The Applicant has provided no documentary evidence to substantiate her claim of secretly drafting, producing and distributing religious pamphlets (CB 79).
·The Applicant has submitted no documents to substantiate her claims of being arrested and detained by the PSB or that her house was searched after her departure [from China]. Nor has she provided any material such as newspaper articles which could support her claims that she and other members of the promotional group and/or [a named person] were involved in illegal religious activities and rearrested (CB 79).
I further acknowledge that the Tribunal made an adverse finding in regard to the applicant’s evidence concerning her claim that she had been baptised once only into the Local Church, on the basis of inconsistent independent country information that a single baptism is not in line with a sect which promotes multiple baptisms (CB 78).
I do not accept however that the above-quoted “two pieces of information”, (namely, lack of supporting documentation; and contradictory evidence regarding the number of Shouter baptisms), sufficiently sets out the reasons for the Tribunal’s decision.
I consider that a fair reading of its Findings and Reasons discloses that, whilst these “two pieces of information” were clearly determinative issues, the Tribunal did not rely solely or even primarily upon them in reaching its decision in this case. For instance, the Tribunal also made clear findings in regard to each of the further following issues:
· The Applicant’s statutory declaration and oral evidence lacks specific details and at times is vague. For example, while the Applicant stated at the hearing that she read the ‘recovery’ version of the bible, her reference to the founder and organizational structure of the local church was hesitant and vague (CB 78).
· The Applicant claimed that her husband drove her (and her child) to the ‘secret’ house 100Km from where she lived to attend religious gatherings, at least a couple of times a week and every Sunday. When asked by the Tribunal, the Applicant did not provide an address or specific details of the ‘secret’ house, other than to state it was in Shadi village. The Tribunal finds this unconvincing and would reasonably expect that if the Applicant had been attending the house three times a week as claimed, she would have detailed knowledge of the house and its whereabouts (CB 78).
· When asked about the distance between her house and the ‘secret’ religious gathering house the applicant replied about 100Km each way and about a two hours drive. The Tribunal does not accept as plausible the Applicant’s claim that her husband drove her (and their child) at least two evenings a week and every Sunday for religious gatherings/meetings given the distance she claims is between her home and the ‘secret’ house (CB 78).
· She claimed that she did not take any pamphlets with her from China, as she feared she would be caught. Even accepting this [emphasis added], the Tribunal finds it unconvincing that if the applicant had distributed such a large number, that she did not know or could not recall its contents, its cost, or how the distribution was organized (CB 79).
· The Applicant’s oral evidence was at times vague, lacking specifics and contradictory (CB 79).
· On the evidence before it the Tribunal does not accept that the Applicant is actively involved in religious activities in the Local Church in Australia. The Applicant claimed to be attending a church every week. However, when asked by the Tribunal which church she attends, the applicant could not remember its name, claiming that it was being refurbished (CB 78).
Each of the grounds of application below is therefore considered in light of this clarification of the applicant’s asserted statement of the Tribunal’s reasons for decision.
Ground 1 of the application
Ground 1 of the application states that:
There was an error of law in the Tribunal's decision constituting jurisdictional error.
There was a procedural error in the Tribunal's decision constituting an absence of natural justice.
Particulars:
In deciding my review application, the Tribunal has considered following pieces of information as reason or part of reason:
·the Applicant has provided no supporting documents to substantiate her claims of religious activities…
·the Applicant did not provide an address or specific details of the ‘secret’ home, other than to state it was in Shadi village
·The applicant has claimed that she was baptized only once on 28 May 2006. She has provided no copy of a baptism certificate or material from interested parties to substantiate her claim that she is baptised.
·The Tribunal has in fact considered the information that my evidence may be inconsistent with independent evidence from country information… Country information states that baptism is an aspect of the Shouter religious practice… Following the preaching of the founder of the Shouter sect, Witness Li (Li Changshou), the sect promotes multiple baptisms of adult adherents (and is criticised for this practice by more orthodox Christians). Reports on the internet say that some followers have undergone hundreds of baptism …
·The applicant has provide no documentary evidence to substantiate her claims of secretly drafting, producing and disturbing religious pamphlets.
·The applicant has provide no documents to substantiate her claims of being arrested and detained by the PSB
In summary, the Tribunal's decision is mainly relied on two pieces of information. Firstly, I do not provide documentary evidences to substantiate my claims; and secondly, my claim of being baptised only for once might be inconsistent with independent evidence of so-called ‘multiple baptisms’ within Shouters.
It is apparently that the above-mentioned information is not the one specifically excluded by sub-section (3) of s.424A because:
a.That is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
b.That the applicant gave for the purpose of the application; or
c.That is non-disclosable information.
But, the information from above-mentioned documentary evidence is the one that the Tribunal has used as the reason, or part of the reason, in making its decision. So, the Tribunal must be obligated to comply with its obligation under s.424A(1) of the Act.
Unfortunately, the Tribunal, before making its decision, failed to provided me particulars of the information mentioned above; and failed to inform me or ensure me, clearly and properly, that those pieces of information would be directly in relation to his final decision; and failed, honestly and fairly, invited me to comment on them. Therefore, the Tribunal has, apparently, failed to comply with his obligation under s.424A(1) of the Act.
I know that the Tribunal might not be obligation to follow UHHCR Handbook, but the Tribunal should understand that:
It is a general legal principle that the burden of proof lies on the person submitting a claim. Often, however, an applicant may not be able to support his statements by documentary or other proof, and cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule. In most cases a person fleeing from persecution will have arrived with the barest necessities and very frequently even without personal documents. Thus, while the burden of proof in principle rests on the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner. Indeed, in some cases, it may be for the examiner to use all the means at his disposal to produce the necessary evidence in support of the application. Even such independent research may not, however, always be successful and there may also be statements that are not susceptible of proof. In such cases, if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt (Paragraph 196 of UNHCR Handbook)
After the applicant has made a genuine effort to substantiate his story there may still be a lack of evidence for some of his statements. As explained above (paragraph 196), it is hardly possible for a refugee to “prove” every part of his case and, indeed, if this were a requirement the majority of refugees would not be recognized. It is therefore frequently necessary to give the applicant the benefit of the doubt. (Paragraph 203 of UNHCR Handbook)
The Tribunal might not be willing to share the duty to ascertain and evaluate all the relevant facts; but the Tribunal should, at least, understand that an applicant may not be able to support his statements by documentary or other proof, and cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule. The Tribunal should also understand that the applicant should be given the benefit of the doubt… unless there are good reasons to the contrary. The Tribunal particularly should have the knowledge that it is hardly possible for a refugee to “prove” every part of his case and, indeed, if this were a requirement the majority of refugee would not be recognised. It is therefore frequently necessary to give the applicant the benefit of the doubt.
In conclusion, I strongly believe that the Tribunal has not only failed to comply with its obligations under s.424A(1) of the Act; but also failed to consider my evidence properly.
Whether breach of s.424A
The applicant asserts that the Tribunal failed to comply with its obligations under s.424A of the Act.
Section 424A(1) requires the Tribunal to give to the applicant clear particulars of any "information" that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review, to ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review, and to invite the applicant to comment on or respond to it. Section 424A(3) sets out various exceptions to the disclosure requirements of s.424A(1).
The applicant points to the following “information” which she asserts enlivened the Tribunal’s obligation under s 424A(1), and upon which she was not given the opportunity to comment or respond:
·the inconsistency between her claim to have undergone a “single baptism” and independent country information which referred to “multiple baptisms” by Shouters.
·the lack of documentary evidence provided by her to substantiate her claims.
The applicant further asserts that neither of the above categories of information falls within the exceptions under s.424A(3).
At the Tribunal hearing, the applicant informed the Tribunal that she was baptised once on 28 May 2006 and that she did not have a baptism certificate. The Tribunal put to the applicant that it understood that ‘Shouters’ promote multiple baptisms. The applicant responded that she believes in China there is only one baptism for members of the Local Church. She emphasised that she was only baptised once (CB 72).
In its Findings and Reasons, the Tribunal referred to the following independent country information concerning the practice of baptism by Shouters:
Following the preaching of the founder of the Shouter sect, Witness Li (Li Changshou), the sect promotes multiple baptisms of adult adherents (and is criticised for this practice by more orthodox Christians). Reports on the internet say that some followers have undergone hundreds of baptisms. (Department of Foreign Affairs and Trade 2006, CIR No 06/40 – China: RRT Information Request CHN30365, 7 August) (CB 78).
Contrary to the applicant’s assertion, I do not consider that the Tribunal was obliged to put this independent country information to the applicant in writing pursuant to s.424A(1). Section 424A(3)(a) provides that the requirements in s.424A(1) do not apply to information "that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member". Independent country information, (in this case concerning the practice of “multiple baptisms” in the Local Church), comes within this statutory exception: QAAC of 2004 vRefugee Review Tribunal [2005] FCAFC 92 at [7-30] and VJAF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 178 at [11-16].
Also, the Tribunal’s choice and assessment of relevant country information is a purely factual matter for it: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]-[14]; NABD of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 216 ALR 1 at [8] per Gleeson J; NBKT v Minister for Immigration & Multicultural Affairs (2006) 156 FCR 419 (FC) at [81] and [84]). Even if there is evidence to establish that the Tribunal has made an error of fact by relying upon incorrect country information, this would not amount to an error of law, let alone jurisdictional error: NAHI at [11]; Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [137]).
Furthermore, what weight the Tribunal gives to any country information, is ultimately a factual matter for it: NBKT at [81]; Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27]). As observed by the Full Federal Court in NAHI at [14], in the context of considering country information:
the Tribunal was not obliged to comment on every item of material before it, to the extent of saying why it rejected a particular item, or attributed less weight to it than to another item.
Section 424A(3)(b) also excludes from the Tribunal’s obligation under s 424A(1) any information that the applicant gave to the Tribunal for the purpose of the application for review.
It is also clear that a proper construction of the word “information” in the context of s.424A, and hence what information must be given to an applicant for comment, does not extend to the Tribunal’s subjective thought processes or appraisals of the evidence before it. As observed by the High Court in SZBYR v Minister for Immigration & Citizenship (2007) HCA 26 at [18]:
… if the reason why the Tribunal affirmed the decision under review was the Tribunal’s disbelief of the appellant’s evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of para(a) of s.424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellant’s evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute “information”. Finn and Stone JJ correctly observed in VAF v Minister for Immigration & Multicultural & Indigenous Affairs that the word “information”
does not encompass the Tribunal’s subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.
If the contrary were true, s.424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant “information” was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.
Equally, in the present case, the inconsistencies and lack of detail or specificity in the applicant’s evidence was at the forefront of the Tribunal’s thought processes.
Likewise, in SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68 at [27], the Full Federal Court commented that:
The proposition than an inference or deduction based upon two facts can constitute "information" for the purposes of sub 424A(1) does not fit easily into the structure of s.424A as a whole. In SZBYR the High Court stressed the distinction between the concept of "information" and the reasoning process leading to affirmation of the decision under review… The drawing of inferences and the assessment of their relevance are more appropriately described as part of the reasoning process than as information for the purposes of sub 424A(1).
I therefore accept the submission by the first respondent that:
"information" [for the purposes ofs.424A(1)] doesn't extend to gaps or deficiencies in the evidence or anything like that so in this case the lack of supporting documentation does not constitute information for the purposes of section 424A …
In relation to the multiple baptism point dealing with section 424A, once again that doesn't constitute information, in my submission, because what is said to have enlivened the obligation on the applicant's case is an inconsistency between what the applicant said and information contained in Country Information. Again, inconsistencies and disbelief arising out of any such inconsistencies does not constitute information for the purposes of the Act (transcript, p 11).
I am thus satisfied that the Tribunal was not obliged to notify the applicant in writing pursuant to s.424A(1) of either the inconsistency between the applicant’s claims of a single baptism and independent country information which referred to “multiple baptisms”, or to the lack of documentary evidence to substantiate various of the applicant’s claims.
The procedural fairness requirements in Part 7 Division 4 deal only with the process of decision-making, not the merits of the decision.
As relevantly stated in SZBEL v Minister for Immigration & Multicultural Affairs [2006] HCA 63 at [25]:
what is required by procedural fairness is a fair hearing, not a fair outcome … It is, therefore, not to the point to ask whether the Tribunal's factual conclusions were right. The relevant question is about the Tribunal's processes, not its actual decision.
It is not the function of this Court to engage in impermissible merits review: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272; NAHI at [10]). Merely because the applicant disagrees with the Tribunal’s factual conclusions and its ultimate conclusion does not amount to an error of law. Moreover, there is no error of law, let alone jurisdictional error in the Tribunal making a wrong finding of fact: Abebe at 560 [137].
Accordingly, I detect no breach of s.424A of the Act in this case. I am satisfied that the applicant was accorded procedural fairness by the Tribunal in compliance with the statutory regime.
Whether breach of s.425
The applicant makes the general assertion that:
Unfortunately, the Tribunal, before making its decision, failed to provide me particulars of the information mentioned above; and failed to inform me or ensure me, clearly and properly, that those pieces of information would be directly in relation to his final decision; and failed, honestly and fairly, invited me to comment on them.
The Court has considered therefore whether the Tribunal has also complied with its obligations pursuant to s.425(1) of the Act to afford the applicant procedural fairness.
Section 425(1) provides that the Tribunal must invite the applicant to appear before it to give evidence and present arguments "relating to the issues arising in relation to the decision under review". The Tribunal must therefore identify the determinative issues arising in the case and give the applicant sufficient opportunity to give evidence and present arguments relating to those issues before reaching its decision: SZBEL at [33]–[48].
The applicant was clearly put on notice in this regard from the delegate’s decision that one of the determinative issues arising in relation to the review of that decision was the lack of documentary evidence to support her claims. The delegate stated in this regard that:
… the applicant has provided no substantiation of her claimed activities in relation to either her “Local Church” religious activities, or her printing and distributing of illegal religious material. Her claims are vague and lack specific detail.
The applicant has not provided any documentary evidence such as copies of “promotional leaflets” she claims she has drafted and secretly distributed, a police report from the time she claims she was detained, a certificate of baptism, newspaper articles, or letters of support from interested parties (CB 43).
The applicant was also squarely on notice from the delegate’s decision that a further determinative issue arising in relation to the review of that decision was her claim that she was only once baptised in the Local Church, whereas independent information referred to by the delegate indicated that this Church promotes multiple baptisms. The delegate, in his decision, stated that:
I note that the applicant indicates that she was baptised once, on 28 May 2006. The single baptism in May 2006 does not accord with the applicant’s claims that she is committed to the religious beliefs of the “Local Church.” Country information indicates that, “…Following the preaching of the founder of the Shouter sect, Witness Li (Li Changshou), the sect promotes multiple baptisms of adult adherents (and is criticised for this practice by more orthodox Christians). Reports on the internet say that some followers have undergone hundreds of baptisms” (CB 44).
Both of these issues were also clearly identified by the Tribunal at the hearing and the applicant was given sufficient opportunity to put forward relevant reasons or explanations concerning them. For instance:
The Applicant informed the Tribunal that she was baptised once on 28 May 2006. She stated that she did not have a baptism certificate. The Tribunal put to the Applicant that it understands that "Shouters" promote multiple baptisms. The Applicant responded she believes in China there is only one baptism for members of the Local Church. She emphasises that she was only baptised once (CB 72).
The Applicant stated that she did not have a copy of the pamphlet as she did not want to take it out of China (CB 73).
Otherwise, I am satisfied that the Tribunal identified the remaining determinative issues at the hearing and that the applicant was given sufficient opportunity to respond thereto. For example, the Tribunal summary of the Claims and Evidence refers to the exchange between the applicant and the Tribunal member concerning her alleged arrest and the subsequent house search (CB 74), and where the applicant was given the opportunity to put forward any explanation for the lack of supportive documentary evidence related to those events.
I therefore consider that the Tribunal complied with its statutory obligations under s.425(1). Beyond this, s.425 does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given at the hearing or otherwise disclose its mental processes and subjective appraisals, including any disbelief of an applicant’s claims. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment. As observed by the High Court in SZBEL at [47]-[48] in this regard:
It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor …
…as Lord Diplock said in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry]:
“the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. if this were a rule of natural justice only the most talkative of judges would satisfy it …”
Accordingly, I detect no breach of s.425(1) of the Act in this case. I am satisfied that the applicant was accorded procedural fairness by the Tribunal in accordance with the statutory framework of the natural justice hearing rule.
Whether failure to consider evidence
The applicant also asserts that the Tribunal has failed to consider her evidence properly.
This submission has effectively already been dealt with above. However, I conclude in this regard that a fair reading of the Tribunal’s decision record makes it clear that the Tribunal understood the nature of, and set out a detailed and closely reasoned analysis of, the applicant's claims; explored those claims with her at the hearing; identified the determinative issues and gave her sufficient opportunity to give evidence and make submissions on those issues at the hearing; and closely noted the applicant's responses. The Tribunal further had regard to independent country evidence; and then made findings based on all the evidence and material before it.
I consider that its findings of fact were open to it on the evidence and material before it; that it provided well-articulated and detailed reasons for rejecting the applicant’s claims; that it applied the correct law to those findings; and reached its conclusion that the applicant was not a person to whom Australia has protection obligations, based on those findings. In these circumstances, I am satisfied that the Tribunal complied with the statutory regime in the making of its decision and performed the task required of it pursuant to s.414 of the Act in reviewing the decision of the delegate in accordance with law.
Whether applicant given benefit of the doubt
The applicant also makes the following assertion, in reliance on the UHHCR Handbook, that the Tribunal has made an error of law by failing to give the applicant the benefit of the doubt:
… the Tribunal should, at least, understand that an applicant may not be able to support his statements by documentary or other proof, and cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule. The Tribunal should also understand that the applicant should be given the benefit of the doubt … unless there are good reasons to the contrary. The Tribunal particularly should have the knowledge that it is hardly possible for a refugee to “prove” every part of his case and, indeed, if this were a requirement the majority of refugee would not be recognised. It is therefore frequently necessary to give the applicant the benefit of the doubt.
I accept that in assessing an applicant’s claims, a Tribunal should be mindful of the difficulties that an applicant may have, and should give the applicant the benefit of the doubt if his or her claim is generally credible, even though the applicant cannot substantiate every aspect of the claim. in which the Tribunal reached its decision.
In SZICV v Minister for Immigration & Citizenship [2007] FCAFC 39, Moore J referred to the vulnerable position of a refugee applicant, at [14], as follows:
As to the second matter, asylum seekers are a class of litigant often with particular characteristics. This is recognised in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the status of Refugees which states (at [190]):
It should be recalled that an applicant for refugee status is normally in a particularly vulnerable situation. He finds himself in an alien environment and may experience serious difficulties, technical and psychological, in submitting his case to the authorities of a foreign country, often in a language not his own. His application should therefore be examined within the framework of specially established procedures by qualified personnel having the necessary knowledge and experience, and an understanding of an applicant’s particular difficulties and needs.
While a Tribunal should be sensitive to these considerations, equally, it is not required to accept uncritically any allegation made by the applicant, nor is it necessary for it to have rebutting evidence before it can find that a particular factual assertion by the applicant has not been made out: Randhawa v Minister for Immigration & Ethnic Affairs (1994) 52 FCR 437 at 451.
I accept that the Tribunal in the present case made no specific reference in its decision to the possible problems faced by the applicant for refugee status in providing documentary evidence and whether the applicant should have been given the benefit of the doubt in this regard. However, as discussed above, the Tribunal’s reasons for decision went beyond the lack of documentary evidence to support the applicant’s claims, and extended to the unconvincing, vague, lacking in specifics, and contradictory nature of her oral evidence at the Tribunal hearing concerning her religious practices in China and in Australia.
I am satisfied that a fair reading of the Tribunal decision discloses that there is nothing to support the proposition that the Tribunal acted otherwise than with due sensitivity, care and consideration in assessing the applicant's claims and evidence, before reaching its decision. As observed by the High Court in Abebe at [191]:
…the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising. It is necessary always to bear in mind that an applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself. But those difficulties are to be confronted by the Tribunal in the execution of its tasks, not by a court that is asked to review the way.
Conclusion on ground 1
Accordingly, for the reasons stated above, Ground 1 of the application is rejected.
Ground 2 of the application
Ground 2 of the application states that:
The Tribunal's decision included a reasonable apprehension of bias.
Particulars:
In deciding my claims or in assessing my evidence, the Tribunal almost relied on nothing except for similar statements like the applicant provided no documentary evidences to substantiate my claims.
Furthermore, making its decision simply based on an uncomment [sic] phenomenon of ‘multiple baptisms’ within shouters is the significant evidence that the Tribunal does not bring an independent mind to consider my evidence and claims.
It is well-settled that any allegation of bias must be “distinctly made and clearly proved”: SZHPD v Minister for Immigration & Citizenship [2007] FCA 157 at [22]; citing Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531, [69].
The applicant has not sought in this regard to provide the Court with the transcript of the Tribunal hearing which may have assisted in identifying more precisely where the alleged apprehension of bias is said to occur.
Furthermore, the Court has already determined under ground 1 above that the Tribunal complied with its statutory obligations in according the applicant procedural fairness in regard to both matters identified in the present particulars which allege apprehended bias on the part of the Tribunal.
I also note the observations by von Doussa J in SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38]:
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.
Subsequently in NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 328 at [115], the Full Federal Court identified certain circumstances where apprehended bias might be made out:
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.
I am satisfied that there is nothing on the face of the Tribunal decision record to show that a “hypothetical fair minded lay observer who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias”, might reasonably apprehend that the Tribunal did not bring an impartial mind or a mind not open to persuasion to the task of the decision making process regarding the lack of documentary evidence by the applicant to substantiate some of her claims and the Tribunal's reference to independent country information concerning multiple baptisms: Refugee Review Tribunal; ex parte H & Anor (2001) 179 ALR 425 at [28].
In conclusion, I consider that neither of the particulars accompanying this ground of application provide any basis for proof of apprehended bias by the Tribunal according to the standard of a hypothetical fair minded lay observer.
Accordingly, Ground 2 of the application is rejected.
Ground 3 of the application
Ground 3 of the application states that:
I do not think that my application has been considered fairly and properly.
These matters have already been dealt with under grounds 1 and 2 above. I rely on my reasoning therein in the present context.
The applicant also submitted that:
RRT are only based on that I did not have evidence to support my application to refuse my application. RRT did not provide any very good contrary evidence. Therefore I believe it is very unfair for RRT to refuse my application … (transcript, p 7).
To the extent to which the applicant is alleging that there was some onus on the Tribunal to provide contrary evidence before it could reach a decision adverse to the applicant, it is well settled that although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275 at 288), the relevant facts of an individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the decision-maker to establish the relevant facts.
The Tribunal is not required to make the applicant’s case for her: SZBEL at [40]; WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 at [73]. As stated by the Full Federal Court in Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 at [76]:
In an inquisitorial process, it was for the respondent to put whatever evidence or argument he wished to the decision-maker to enable her to reach the requisite state of satisfaction.
As also observed by the High Court in Abebe at [187]:
It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.
Accordingly, Ground 3 of the application is rejected.
Conclusion
The Court finds that 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 application before this Court is dismissed.
I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Orchiston FM
Associate: Duncan Maconachie
Date: 22 July 2008