SZMQS v Minister for Immigration
[2008] FMCA 1643
•12 December 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMQS & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1643 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – earlier decision of Tribunal quashed – Tribunal reconstituted for further review – reconstituted Tribunal entitled to have regard to evidence and material before Tribunal as constituted on the first occasion – Tribunal may determine which country information to prefer and to rely upon when making findings of fact – Tribunal not required to refer to every piece of evidence before it – Tribunal only required to refer to evidence on which findings of fact are based – merits review not available in judicial review proceedings – Tribunal not required to consider unarticulated claims which do not emerge clearly from the material before it – allegation of bias not proved. |
| Migration Act 1958, ss.414, 430 |
| SZEPZ v Minister for Immigration & Multicultural Affairs (2006) 159 FCR 291 SZHKA v Minister for Immigration & Citizenship (2008) 249 ALR 58 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 VQAB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 104 VTAG v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 91 Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1 NAVK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1695 Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 |
| First Applicant: | SZMQS |
| Second Applicant: | SZMQT |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2137 of 2008 |
| Judgment of: | Cameron FM |
| Hearing date: | 3 December 2008 |
| Date of Last Submission: | 3 December 2008 |
| Delivered at: | Sydney |
| Delivered on: | 12 December 2008 |
REPRESENTATION
| Applicants appeared in person |
| Counsel for the Respondents: | Mr T. Reilly |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2137 of 2008
| SZMQS |
First Applicant
| SZMQT |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicants are citizens of China where the first applicant claims he was involved in underground religious activities. The first applicant’s wife is the second applicant but has no independent claims. Unless it is necessary to distinguish between the parties, in these reasons the first applicant will be referred to as “the applicant”.
The applicant alleges that while in China he set up a small Bible study group and that this subsequently led to him being detained for three weeks. The applicant and his wife arrived in Australia on 17 February 2006, the applicant having previously lived here between 1989 and 1996.
The applicant claims to fear persecution in China because of his religious beliefs and activities.
After his arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on 3 July 2006. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
The Tribunal decision the subject of these proceedings is the second such decision relating to the applicant. There was a previous Tribunal decision signed on 10 January 2007 which was quashed by order of the Federal Court on 21 April 2008.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 21 of the Tribunal’s decision (Court Book (“CB”) pages 258 – 275). Relevantly, they are in summary:
In his original application for a protection visa, the applicant made the following claims:
a)his father was one of the major leaders of a Christian Church in Pingtan County and this had led his family to be persecuted by the Chinese authorities. In 1957, before the applicant was born, his family had been sent to a remote mountain area in Datian County where his father had to do farm work for 3 years. His whole family was sent to Yongtai County in 1966 during the Cultural Revolution and did farm work for 10 years;
b)after graduating from Fuqing Teacher’s College in 1983 the applicant worked as a Middle School teacher in Pingtan. His teaching was severely restricted by Communism and he had to hide his religious beliefs;
c)in 1989 he went to Fuzhou to participate in the pro-democracy movement where he talked to students holding demonstrations and told them they should seek not only democracy and political freedom, but also religious freedom;
d)after the pro-democracy movement was suppressed he was investigated and questioned a few times by the Public Security Bureau (“PSB”). He was suspended from teaching in September 1989, required to join a two week political study class and only allowed to do cleaning jobs at the school;
e)he arrived in Australia for the first time on 26 December 1989 and remained here for six years. In September 1991 he was baptised by the Christian Assembly of Sydney and he returned to China in May 1996 because his father had been seriously ill;
f)upon his return to China he was investigated by the PSB on suspicion of being involved in “overseas anti-government religious or political organisations” while in Australia as he was reported to be in the Christian Assembly of Sydney and because he had lodged a refugee application;
g)the investigation lasted half a year, during which time he was interrogated many times and forced to write self-criticism;
h)although the PSB could not find anything further against him, the applicant was not allowed to teach in schools in Pingtan County;
i)in March 1997, with the help of his wife’s friend he got a job as a teacher at a different Middle School but had to sign a statement that he would:
i)strictly comply with the relevant teaching policies under Communism;
ii)not spread Western political ideas or religious beliefs to the students; and
iii)not get involved with any religious activities except those of the official Protestant church in China;
j)in early 2000, he organised a small bible study group and their target was “to strive for genuine religious freedom and independent religious activities”;
k)the group developed to about 30 people and he was warned or threatened by the PSB many times not to engage in anti-government religious activities;
l)he was detained in 2004 for about three weeks after he organised for some of his school students to attend bible study during the summer school holidays. He was physically and mentally mistreated and was released on condition that he “openly make a confession at the public rally in the school” and that he not become involved in any religious activities without permission. He disbanded his bible study group and paid a penalty of 5,000 Yuan;
m)after his release his religious activities were restricted by the authorities and he was investigated, questioned and interrogated by the PSB and he had to hide his religious beliefs to maintain his employment at the school;
n)despite this he secretly organised a “propaganda group” in early 2005. The group’s target again was “to strive for genuine religious freedom and independent religious activities” and its activities mainly involved editing, manufacturing and distributing religious propaganda materials to schools, colleges and universities in Fuqing and other cities in Fujian;
o)the applicant organised some group members to distribute copies of a petition to the central government in Beijing drafted by him in 2005, requesting the government to respect and protect genuine religious freedom;
p)he was informed by a reliable friend of his wife that the PSB suspected he was a key member in underground religious activities and involved in the distribution of the petition. He and his wife left China with the assistance of a friend in February 2006; and
q)not long after they left, the applicant was informed that the PSB had found out he was the leader of the secret religious propaganda group. His house was searched by the PSB and his family and friends were implicated in his matter.
The applicant appeared before the Tribunal as first constituted on two occasions, on 27 September 2006 and 19 October 2006. To the Tribunal as first constituted he made the following claims:
a)he had difficulty in obtaining a passport in 1989 because there were “black spots” on him and so he applied for his passport with the assistance of a local cadre who was a close friend and relative of his wife;
b)he returned to China in 1996 not only because his father had been ill but also because the Chinese Government published Deng Xiaoping’s speech indicating that no matter what people had done overseas, they were welcome to come back to China;
c)on his return to China, he was told by the school to report to the local police station and was questioned about his movements overseas. The police said they had information that he had applied for refugee status and that he had participated in an illegal religious movement. They refused to allow him to work again in his first school;
d)he attended the official Three-Self Patriotic Movement church from 1997 until early 2000;
e)when the second school realised he had organised his own Bible study group it gave him a verbal warning and, as the vice-principal was also the head of the PSB office, being warned by the school was the same as being warned by the PSB;
f)he was arrested on 3 August 2004 and detained until 25 August 2004 during which time he was beaten;
g)after his release, he did not think it unusual that he was allowed to continue teaching at the school because he had only been pursuing the truth;
h)he believed he had to spread the Gospel to the rest of the world and printed some leaflets with some other people;
i)the authorities suspected he was involved in distributing religious material because his students told their parents about the pamphlets he gave them. He then decided to leave China;
j)at the first hearing he said he obtained a passport in June 2005 with the assistance of a former student as it would have been impossible for him to obtain it by himself. He said at the subsequent hearing that his passport was ready some time in October 2005 and all of his paperwork was done by a colleague of his former student who worked in the border control department of the PSB;
k)he did not leave China until February 2006 because one of his students was working for the Customs Department and he had to wait for them to return from holiday to find out if he could leave without difficulty; and
l)his brother told him about a week before the second Tribunal hearing that the school had notified him that the applicant was officially dismissed because of his religious beliefs and in China being sacked meant that you had done something wrong and you would be unemployed forever.
In correspondence received on 27 October 2006, the Tribunal as first constituted received a copy of a notification dated 6 September 2006, purporting to dismiss the applicant from his school employment.
Submissions to the Tribunal as secondly constituted
The Tribunal as constituted on the second occasion received further submissions from the applicant’s then-representatives under cover of a letter dated 30 June 2008. The two statements by the applicant detailed his involvement in various activities of the Christian Assembly Church of Sydney and made the following additional claims:
a)the suppression of the pro-democracy movement in China had left “irreversible damage” for people including him, however his involvement in the movement did not constitute a “big threat” to the Chinese Government;
b)his claims were not related to political opinion but to religion, specifically “loss of freedom of religion”;
c)he would not attend an official church in China because he did not believe that such churches were churches of God but rather propaganda machines used by the Chinese Government to promote its ideology; and
d)he believed he would be punished and persecuted by Chinese authorities for continuing his participation in “the family church” in China and spreading the word of God.
Tribunal hearing
The applicant and his wife appeared to give evidence at the hearing before the Tribunal as secondly constituted on 4 July 2008, making the further following additional claims:
a)the applicant’s religious belief was different from that of the Three-Self Patriotic Movement led by the Chinese Government and although superficially there are large numbers of Christians in China they are under the leadership of the Chinese Government; and
b)as he was a teacher, the applicant was more restricted by the government compared with other followers.
The applicant’s wife also gave evidence at the Tribunal hearing, confirming that she was applying as a member of the applicant’s family unit and had not been involved in the activities which the applicant said had prompted them both to leave China. She corroborated certain of his claims.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant and his wife 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”). The Tribunal’s decision was based on the following findings and reasons:
a)although it accepted that the applicant is a Christian and participated in Christian activities in Sydney, the Tribunal considered that in significant respects his claims were inconsistent with information before it concerning the situation in China. In light of these inconsistencies, the Tribunal was not satisfied that his claims were credible, noting that:
i)although the applicant claims he was persecuted by reason of his religion, the independent information before the Tribunal suggests there is considerable variation in the degree of religious freedom permitted in different provinces in China, that Fujian province has one of the most liberal policies on religion in China and “underground” or unregistered Protestant churches have few problems. It further noted that being a Christian is not unlawful in China and Protestantism is one of the five recognised religions;
ii)neither the fact that the applicant was a Christian nor that he had applied for refugee status would have led to him being investigated for six months, noting that DFAT advised in 1995 that it was not aware of any substantiated claims of mistreatment of failed refugee claimants who had returned to China;
iii)although he claims he was detained for three weeks by the PSB in August 2004, the applicant nevertheless obtained a passport in his own name in June 2005 without problems. However, DFAT advised that a person who has come to the adverse attention of the Chinese Government would experience difficulty in obtaining a passport and checks with the PSB would be undertaken in the applicant’s place of registered residence. Further, illegally obtaining a passport through bribery would be highly risky and expensive; and
iv)the applicant claims he was told by a friend of his wife that he was under investigation in September 2005 and, although he already had his passport, he did not leave China until February 2006 because he had speak to his contact in the border control department of the PSB and his wife needed a passport. However, the Tribunal found these explanations suggested he was in no hurry to leave China and thus inconsistent with his claim of persecution;
b)given the general level of religious freedom in Fujian, the ability for Bible schools and missionaries to operate there and the lack of harassment by the authorities claimed by the applicant, the Tribunal did not accept that he was investigated by the PSB for six months in May 1996, that he was warned or threatened many times by the PSB, that he organised a Bible study group in 2004, that as a result of this he was detained for three weeks, that he was fired, was required to make a public confession at the school where he worked or that he was questioned or interrogated by the PSB or his school’s principal or vice-principal in relation to his religious activities;
c)the Tribunal did not accept that there is a real chance he will be persecuted for reason of his political opinion, noting that he was not a “significant leader” in the pro-democracy movement in 1989. Further, from his evidence it does not appear his claimed family background affected his education or his employment given that he graduated from Fuqing Teacher’s College and was subsequently employed as a teacher;
d)while the Tribunal accepted that, having been absent from China since February 2006, the applicant will have lost his employment as a teacher at his original school, it did not accept that he lost this employment for one or more of the five Convention reasons;
e)the applicant claimed that as a teacher he was more restricted by the government than other religious followers and while this claim was not further articulated, the Tribunal considered that:
i)if he was claiming he was restricted by teaching a government-approved curriculum, teachers in government schools in Australia likewise have to accept they cannot use the classroom as a platform to promote their own personal political or religious beliefs; and
ii)if he was claiming that he faced special restrictions on his freedom of religion belief based on his occupation, the applicant’s own evidence indicates that he retained his employment at the school despite the principal and vice-principal being aware of his religious beliefs;
f)the Tribunal did not accept that the applicant was investigated by the PSB on suspicion of being involved in overseas anti-government organisations as a result of having been reported to be a Christian in a Church in Sydney and having lodged a refugee application. Although evidence was produced of a failed asylum seeker who was deported to China and claimed persecution upon his return, the Tribunal considered that it was impossible to conclude on the basis of the current case that failed asylum seekers generally face a real chance of being persecuted for one or more Convention reasons if they return to China; and
g)the Tribunal took into account the cumulative effect of all the applicant’s circumstances accepted by the Tribunal, including that he is a practising and evangelising Christian who wishes to practice his faith as a member of a Protestant “house church” or “family church” rather than an “official church”, that he is a person whose family was rusticated in 1957 and during the Cultural Revolution, that he participated in the pro-democracy movement in 1989, that he will be known or assumed to have applied for refugee status in Australia and is a teacher. However, it did not accept that there is a real chance the applicant will be persecuted for one or more of the five Convention reasons if he were to return to China now or in the reasonably foreseeable future.
Proceedings in this Court
In their application and submissions to the Court, the applicants raised a number of matters said to indicate jurisdictional error on the part of the Tribunal. These were that the Tribunal:
a)did not undertake a bona fide review;
b)used country information which was old and out of date;
c)made selective use of the information before it and failed to consider all of the evidence before it;
d)drew an inappropriate conclusion that the applicant would not be persecuted if he returned to China;
e)failed to assess the situation were the applicant to move within China to a location other than his home area; and
f)was biased.
Tribunal did not undertake a bona fide review
In support of the allegation that the Tribunal did not undertake a bona fide review, the applicants submitted that the Tribunal:
a)did not bring an independent mind to the review; and
b)just repeated what the first Tribunal had done.
It was said that these faults were demonstrated generally by the questions asked by the Tribunal and, more particularly, by the Tribunal’s failure to ask the applicant questions concerning his Christianity.
As to the questions asked by the Tribunal, it should be noted that no transcript of the Tribunal hearing was tendered notwithstanding the Court’s orders of 15 September 2008 that the applicants were to file and serve any affidavit containing additional evidence to be relied upon, including a transcript of the Tribunal hearing, by 3 November 2008. Consequently, there is nothing other than the Tribunal’s decision record from which to draw any conclusions concerning the course of the Tribunal hearing. That decision record demonstrates that the Tribunal’s hearing was undertaken in some depth, a fact borne out by the fact that the “RRT Hearing Record” reproduced at CB 237 demonstrates that the hearing lasted over 2½ hours. It is apparent that, far from simply going through the motions, the Tribunal conducted the hearing with considerable thoroughness.
As to the Tribunal’s failure to ask the applicant questions concerning his Christianity, this argument was advanced in support of the allegation that the Tribunal as secondly constituted had not undertaken an independent assessment of the facts of the applicant’s claim and, at least on this point, had merely adopted what the Tribunal as first constituted had concluded. However, it was open to the Tribunal to rely on the material which had been supplied initially to the Tribunal and to rely on the applicant’s evidence to the Tribunal as first constituted: SZEPZ v Minister for Immigration & Multicultural Affairs (2006) 159 FCR 291; see also SZHKA v Minister for Immigration & Citizenship (2008) 249 ALR 58 at 65 [22] and 69 [37]. Moreover, it should not be overlooked that the applicant’s wife gave evidence to the secondly constituted Tribunal and corroborated the applicant’s claim to be an evangelising Christian. For these reasons, the fact that the secondly constituted Tribunal may not have asked the applicant himself any questions regarding his Christianity does not disclose error.
More generally as to the allegation that the Tribunal did not undertake a bona fide review, the Tribunal’s decision record discloses a very thorough consideration of the evidence and arguments which were before it; not only that which was available to the Tribunal as first constituted, but also what the applicant said in the most recent Tribunal hearing. Consideration of the secondly constituted Tribunal’s summary of the hearing before it discloses that it turned its mind to the matters relied upon by the applicant by way of support for his claim to fear persecution in China. Far from simply accepting and repeating without further consideration the findings and conclusions of the Tribunal as first constituted, I am satisfied that the secondly constituted Tribunal undertook a proper, thorough and conscientious consideration of the matters arising out of the review application before it.
Consequently, this element of the applicants’ case is not made out.
Country information
The selection of information upon which the Tribunal relies in reaching its decision is a matter for it. As the Full Court of the Federal Court said in NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10:
… There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that. (at [11])
As it is a matter for the Tribunal to determine the weight to be given to any particular “country information”, the fact that it might prefer some information over other information, including old information over new information, does not disclose jurisdictional error: VQAB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 104; VTAG v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 91.
In his oral submissions the applicant said that the Tribunal referred to reports from 2000, 2003 and 2004 and he asked rhetorically why the Tribunal did not use the report from 2008. However, it is apparent from paras.51 and 92 of the Tribunal’s decision record (CB 267, 276) that the Tribunal did have regard to the May 2008 Annual Report of the United States Commission on International Religious Freedom which had been supplied to it by the applicant’s then-representatives.
For these reasons, jurisdictional error has not been demonstrated by reason of matters concerning independent country information relied upon by the Tribunal.
Selective use of the information before it and failure to consider all evidence
As to the first element of this ground, the selective use of information, it is a matter for the Tribunal to determine what facts it relies on when reaching its decision. The task of finding facts has been reposed in the Tribunal and the Court’s role is limited to declaring and enforcing the law which governs the Tribunal’s operations. The Court cannot substitute its own view of the facts, or possible conclusions from those facts, in place of that of the Tribunal. For this reason, the first element of this ground does not disclose jurisdictional error.
As to the second element, the applicant said in para.5(g) of his application:
Further more [sic], the tribunal has made error in law that it only took a fraction of the information but failed to consider the entire report to give me a fair assessment of my risk of possible persecution and loss of religious freedom after returning to China, not just Fuzhou or any part of China.
It is not apparent from that passage to which report the applicant refers but, based on what he has said in para.5(c) of his application, it would appear to be the report of the United States Commission on International Religious Freedom. In this connection, the applicant alleged in para.5(c) of his application:
I say that the tribunal did not refer to the entire report as the base of its finding but just deliberately and selectively chose a few words for the purpose of dismissing my claim of fear.
That the Tribunal expressly relied on only one part of that report when reaching factual findings supporting its conclusion demonstrates no more than that fact. Section 430 of the Migration Act 1958 (“Act”) only requires the Tribunal to refer to that evidence on which its findings of fact are based and it is not necessary for the Tribunal to refer to every piece of evidence advanced by an applicant: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630. Even though it only relied on part of the report in question when reaching its decision, it is sufficiently clear that the Tribunal had adequate regard to that document.
For these reasons, this ground does not disclose a basis upon which the Tribunal’s decision might be set aside.
Inappropriate conclusion
In para.5(c) of the application the applicant alleged that it was inappropriate for the Tribunal to draw the conclusion that he would have no trouble or persecution were he to return to China. This was a factual finding which also reflects the Tribunal’s ultimate decision on the merits of the review application before it. Just as the Court cannot review a factual finding of the Tribunal, neither can it review the Tribunal’s decision on the merits of the application nor substitute its own view: Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323; Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. Consequently, jurisdictional error is not demonstrated by reason of the matters raised in connection with this allegation.
Failure to assess the situation if applicant moved elsewhere in China
The applicant did not submit that he had given evidence to the Tribunal to the effect that he intended to move around China undertaking his evangelism and in doing so to move beyond his own province. Nor is there anything contained in the Tribunal’s decision record which would support a conclusion that he had canvassed such an issue. The question that then arises is whether the Tribunal ought to have considered this possibility nevertheless.
The Tribunal is required under s.414 of the Act to consider the claims of the applicant; to make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction: Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 at 259 [42]. Further, the Tribunal is not limited in its considerations to the claims articulated by the applicant if additional claims are raised “squarely” on the material available to the Tribunal: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1 at 18-19 [58]. Even so, in NABE’s case the Full Court of the Federal Court held that an unarticulated claim must emerge clearly from the materials before the Tribunal will be obliged to consider it (at 22 [68]) and a claim requiring such consideration will not depend for its exposure on constructive or creative activity by the Tribunal (at 19 [58]). As Allsop J said in NAVK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1695 at [15]:
Whatever adverb or adverbial phrase is used to describe the apparentness of the unarticulated claim, it must, it seems to me, either in fact be appreciated by the Tribunal or, if it is not, arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence. A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy.
In his submissions to the Court the applicant said that evangelism should be across the whole world and not restricted to one place, reflecting his evidence to the Tribunal as first constituted that he believed he had to spread the Gospel to the rest of the world (see [9(h)] above), with the consequence that the Tribunal should have asked him whether he proposed to remain in his home province or travel abroad in China. The applicant pointed to no part of the Tribunal’s decision record to indicate that this was an issue which should have been sufficiently apparent to the Tribunal that it ought to have pursued or considered it. Indeed, the applicant’s evidence as recorded by the Tribunal really suggests nothing of the sort but, rather, and with the single exception of petitions to the central government, a focus on those immediately around him.
For these reasons, I conclude that the Tribunal had no duty to consider or pursue by questions a claim which the applicant did not articulate and which did not arise clearly from the material already before it. For this reason, jurisdictional error is not disclosed in connection with this ground.
Tribunal was biased
In his application the applicant said that the Tribunal discriminated against him because it was not “comfortable” with the setting aside of the first Tribunal decision, that by selectively choosing passages from the report of the United States Commission on International Religious Freedom it sought to dismiss his claim, and had “obviously … formed a preoccupied view to refuse my application even before the hearing”. That is to say, the applicant was making an allegation of actual bias against the Tribunal. In Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 it was held that actual bias
… must be a pre-existing state of mind which disables the decision-maker from undertaking or renders him unwilling to undertake any or any proper evaluation of the materials before him or her which are relevant to the decision to be made. (per Gleeson CJ and Gummow J at 519 [35] and 532-533 [72], Hayne J agreeing at 561 [176])
The facts do not support this allegation. The Tribunal’s decision record, which is the only relevant evidence before the Court, discloses a careful analysis of various allegations made by the applicant together with a determination to give them proper consideration. Far from demonstrating that it approached the review with a mind already fixed on an outcome, the Tribunal’s decision record discloses a conscientious examination of the facts consistent only with an open mind. The allegation of bias cannot be made out on the material before the Court.
Conclusion
For these reasons, jurisdictional error on the part of the Tribunal has not been demonstrated.
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 Cameron FM
Associate:
Date: 12 December 2008
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