SZMSS v Minister for Immigration & Anor - [2009] FMCA 93

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMSS v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 93

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in China – applicant not believed – Tribunal reasons not supported by statements on transcript – apprehended bias – jurisdictional error found.

Migration Act 1958 (Cth), ss.424A, 424AA, 425

Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425
SZDFZ v Minister for Immigration (2008) 168 FCR 1
SZHVL v Minister for Immigration [2008] FCA 356

SZLJF v Minister for Immigration [2008] FMCA 1560
WALT v Minister for Immigration [2007] FCAFC 2

Applicant:

SZMSS

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2345 of 2008

Judgment of:

Driver FM

Hearing date:

12 February 2009

Delivered at:

Sydney

Delivered on:

12 February 2009

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents:

Mr G Kennett

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

A writ of certiorari issue quashing the decision of the Refugee Review Tribunal signed on 30 July 2008 and handed down on 12 August 2008.
A writ of mandamus issue requiring the Refugee Review Tribunal to redetermine the review application before it according to law.
The first respondent is to reimburse to the applicant the filing fee in the sum of $374 paid by him.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2345 of 2008

SZMSS

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was handed down on 12 August 2008. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from China and had made claims of religious persecution. He had also claimed to be a victim of the Chinese one-child policy. The background to the applicant's claims and the Tribunal decision on them are conveniently summarised in the Minister's submissions, filed on 3 February 2009. I adopt as background for the purposes of this judgment, with minor amendments, paragraphs 1 to 5 of those written submissions:
The applicant is a citizen of the Peoples Republic of China who arrived in Australia on 1 January 2008 and applied for a protection visa on 14 February 2008. On 11 April 2008 a delegate of the Minister decided to refuse the visa, and on 9 May 2008 the applicant applied for review of the delegate’s decision by the Tribunal.[1]
The Tribunal made its decision, affirming the decision of the delegate, on 30 July 2008[2] and handed it down on 12 August 2008.[3]
Briefly, the applicant’s claims related to two issues. First, he claimed that he and his wife had had four children and that they had had to go into hiding in order to avoid serious sanctions under the one child policy.[4] Secondly, he claimed that he had joined an unofficial Christian church in 2006. People associated with the church had been arrested and imprisoned and the applicant had fled China to avoid an investigation by the PSB.[5]
As to the family planning issues, the Tribunal accepted that the applicant and his wife had had four children, that they had paid a fine on the birth of their second child, and that they had avoided further fines by moving to other parts of China. The applicant did not claim to have suffered any other adverse consequences and his youngest child was now 17 years old. The Tribunal was not satisfied that he faced any real chance of further harm on this account.[6]
As to the applicant’s claimed membership of an unofficial church, the Tribunal did not accept that he was a committed Christian or that he had been a member of any such church. It gave reasons for this conclusion, which centred upon the applicant’s answers to questions during the Tribunal hearing about his claimed involvement in the church and aspects of Christian belief.[7] Being unable to accept the factual basis for his claims, the Tribunal did not accept that he faced any real chance of persecution on religious grounds.
[1]     See Court Book (CB) 100 [1]-[4]
[2]     CB 99
[3]     CB 116
[4]     See CB 102-103
[5]     See CB 103-104
[6]     CB 113 [65]-[66]
[7]     CB 111-113
These proceedings began with a show cause application filed on 9 September 2008. The applicant continues to rely upon that application. I incorporate in this judgment the grounds set out in that application:
1. The Tribunal made its finding incorrectly about my commitment to Christianity; and the Tribunal failed to ensure me to understand its questions about the Christian’s faith or Jesus’ teaching or the Bible; and the Tribunal’s finding has included a reasonable apprehension of bias.
Particulars
It is no doubt that my parents are Christian, but it never means that I must be familiar with Christianity from my childhood.
I have been involved in the family church since 2005; and I have attended Sunday worship and read the Bible on Tuesday, Thursdays and Fridays; but I do not accept that I, at both the Tribunal’s hearings, was given a number of opportunities to be able to demonstrate my interest in, and knowledge of, Christianity. On the contrary, I believe that the Tribunal failed to ensure me to understand it questions about the Christian’s faith or Jesus’ teaching or the Bible.
It is definitely not my evidence that I “…was not very familiar with the contents of the Bible…”; and it is completely incorrect finding that I was “…largely uniformed about” my claimed religion “to the point of profound ignorance about the Christian faith, other than a few carefully well rehearsed remarks” which I appeared determined to present at the hearing. It is no doubt that the Tribunal’s finding has included a reasonable apprehension of bias.
2. Frankly speaking, I do not believe that Mr Rodney Inder, the Presiding Member of the Tribunal (“the Presiding Member”), is willing to assess my claims, properly and fairly; or has, carefully and thoroughly, considered my application.
Particulars
I am sure that the Presiding Member arranged a hearing for me as a mere formality, or did it perfunctorily. During the Tribunal’s hearing, I never thought that the Presiding member was willing to, or genuinely intended to, provide me a fair chance to present my oral evidences and to give my arguments.
I strongly believe that the Presiding Member has already made his decision before the Tribunal’s hearing, and thus the Tribunal’s hearing was just for the purpose to go through the motions.
3. Based on the evidence that I have mentioned above, I do not think that the Presiding Member has, genuinely and honestly, complied with the obligations under s.425 of the [Migration] Act [1958 (Cth) (“the Migration Act”)].
Particulars
I have, in fact, been denied the right to present my oral evidences in support of my application fairly; and
I have, in fact, been denied the rights to give my argument against the issue arising from the Tribunal in relation to my review application.
4. I do not think that the Presiding Member has, genuinely and honestly, complied with his obligations under s.424AA or 424A(1) of the [Migration] Act.
Particulars
The Tribunal has in fact considered some piece of information including in my visa application to Australia, which has neither been prepared nor provided by me and which has actually been prepared and provided by others, as reason or the part of reason in determining my application. However, the Presiding Member has never ever provided me particulars of the above-mentioned information; and the Presiding Member has never ever ensured me to understand that the above-mentioned information would be in relation to my review application; and the Presiding Member has never ever given me a fair chance to comment on the above-mentioned information.
Frankly speaking, I well understand the reasons why the Presiding Member did not do so – it is because he has never ever wanted to or intended to assess my application fairly and properly.
5. The Tribunal failed to consider my claims properly and fairly; and the Tribunal has in fact ignored my important evidences.
Particulars
In my application, I have clearly stated that:
On 10 April 1983, I got married with my wife … . Born and growing up from a farmer’s family in the countryside, I very much understand how important for a family to have a son. According to local tradition, a girl must move to her husband’s family after her marriage. It means that the parents actually got nothing if they have a daughter, because the daughter sooner or later would leave the home after she got married. On the other hand, a son is a major labourer for the family to do farm work in the field or to work outside for earning the money to maintain family’s basic living. Particularly, there was no social security or superannuation system in the countryside at that time; and aged people must rely on support of their sons. So, both my wife and did expect a son indeed.
However, the PRC authorities carry out strict birth control policy; and each family was only allowed to have one child. It was, therefore, called as “One Child Policy”. Owing to strict “One Child Policy”, my wife and I, as well as my family, have experienced many difficulties.
My first child was a girl who was born in April 1984. In order to keep a chance to have a son, I had to bribe officials of Birth Control Office and doctors as well as nurse at the hospital, so that my wife was not sterilised while she gave birth to my first child. It was because that a woman was normally sterilised at the same time while she gave birth to her baby in my hometown at that time.
My second child was also a girl who was born in January 1986. I once again had to bribe those officials at Birth Control Office as well as doctors and nurses at the hospital. I also had to pay RMB 10,000 yuan as penalty. However, although my wife was not sterilised while she gave a birth to my second child with an excuse of her suffering from health problem, she was given strong pressure by those officials at Birth Control Office after that. The Birth Control Office wanted my wife to have a sterilisation operation as soon as possible.
Around May 1987, my wife got pregnant for the third time. In order to avoid those officials at Birth Control Office and to protect our unborn baby, I had to decide to take my wife to my home village; and went for hiding at a distant relative’s home in a small village in mountain area in the west of Fujian Province. Not long after my leaving, the Birth Control Office could not find us when they tried to give an examination to my wife. In order to force my parents to expose where my wife and I had been to, those officials at the Birth Control Office and the police from the Public Security Bureau (PSB) many times questioned my parents; and they even damaged our house and took away our property. But, no matter what those official or police had done, my parents never ever exposed any information about me and my wife.
In January 1988, my third child was born. It was a daughter once more. In order to avoid attention of the PRC authorities, I dared not take my wife to any hospitals; instead I had to invite a midwife in the mountain area to assist my wife to give a birth to my third child. After that, I was told that I had to pay RMB 30,000 yuan as penalty; and meanwhile, my wife would be sterilised immediately. On one hand, I really did not have such a big money at that time; and on the other hand, I still wanted to have a son. Furthermore, I was afraid of being subjected to more severe punishment. Therefore, I had to decide to remain in the outside of my home village.
However, I could not always stay at my distant relative’s home in that mountain area; and I had to earn livings for my family. Therefore, my wife and I had to travel from one place to another during following years from 1988 to 1991. I earned the money on doing hard manual jobs for others; and my wife looked after our third child. Although we suffered a lot during that particular period, we eventually got a son who was born in January 1991.
But, we still dared not return to our hometown. We were told that we would not only be subjected to severe punishment but also have to pay huge penalty – RMB 30,000 yuan for my third child and RMB 50,000 yuan for my last child.
Not long after I had a son in 1991, I was told that there were many chances in Zhuhai of Guangdong Province; and also it was very far away from my hometown. So, my wife and I decided to go there. Zhuhai is close to Macao and near to Hong Kong; and thousands of people were from other places in the country; and the whole city was developed very fast. I finally had a stable life; and particularly, my two daughters, who had separated from us for years, joined us later on so that my family eventually re-united together in Zhuhai.
In January 1994, I set up my own company, Zhuhai City Guanfu Industrial Co Ltd. Main business of the company was to develop real estate market. During following years, the business was successfully developed; but I still dared not to return to my home town of Fujian.
Even today, I dared not return to my hometown; and I strongly believe that I must have a real chance of being persecution on my return under the strict birth control policy in china. Unfortunately, owing to my activities of seriously [violating] against. In 2005, the Chinese government suddenly changed its policies and it directly caused my company’s business to decline tremendously; and finally, my company was bankrupt. I was seriously attacked by the unexpected disaster, mentally and psychologically; and I was completely lost without any confidence for my future. Especially, I had to earn the livings for my whole families on one hand; and on the other hand, I was in huge debts.
6.I understand that an administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal’s power.
7. In determining my application, the Presiding Member has, definitely, committed at least a jurisdictional error, because the Presiding Member has identified a wrong issue, asked a wrong question, ignored relevant material, relied on irrelevant material or, in some circumstances, made an erroneous finding or reached a mistake and conclusion in the way that has affected the exercise or purported exercise of the Tribunal’s power.
The application is supported by a short affidavit filed with it, which I received. I also received as evidence the court book filed on 30 September 2008 and transcripts of the two hearings conducted by the Tribunal, which I marked as exhibit R1.
I conducted a show cause hearing in this matter on 17 November 2008. At that time I identified three arguable propositions from the show cause application, and no others, which are reflected in order (2), made by me on that date. That order was to require the Minister to show cause why the applicant should not be granted relief in relation to the issues of:
a)whether the Tribunal decision is vitiated by apprehended bias;
b)whether the Tribunal breached its obligation to provide a real hearing opportunity pursuant to s.425 of the Migration Act; and
c)whether the Tribunal breached its obligation in reaching conclusions of the applicant's faith that were not open to it on the material before it.
The concern in this matter relates to the manner in which the Tribunal reached adverse credibility findings on the applicant's asserted Christian faith. The Tribunal's reasoning on that issue is contained in paragraphs 60 to 62 of its reasons[8]:
The Tribunal finds that the applicant’s claims about his faith and religion contained in both his protection visa application and at the hearing are very basic and uninformed, and reveal no real knowledge of, let alone commitment to, Christianity, the Christian faith, Jesus’ teaching, or the Bible. For example, the applicant did not reveal any real knowledge of the Bible to the extent that one would expect from a Christian, notwithstanding claiming at the hearing that his parents were Christian so he was familiar with Christianity from his childhood. And while being able to recite a few very basic facts at the hearing, that Tribunal is satisfied that the extremely limited nature of his responses is totally inconsistent with his claim that he has been involved in the family church since 2005, he attended Sunday worship, and read the Bible on Tuesdays, Thursdays and Fridays if he had time. Indeed, at both the initial hearing, and when it was resumed on 28 July 2008, the applicant was given a number of opportunities to be able to demonstrate his interest in, and knowledge of, Christianity, but failed to do. On the contrary, the applicant himself claimed that he was not very familiar with the contents of the Bible. Indeed, the Tribunal finds he is largely uninformed about his claimed religion to the point of profound ignorance about the Christian faith, other than a few carefully well rehearsed remarks which he appeared determined to present at the hearing on 22 July 2008, irrespective of the questions asked of him.
However, notwithstanding the applicant's unsupported claims about his being a Christian in China, and the country information he provided at the resumed hearing about the treatment of some Christians in China, in view of his limited response to this information, put to him at the hearing, the Tribunal has not been able to satisfy itself that the applicant is a Christian or, more importantly, was a Christian in China. Indeed, the Tribunal does not accept that his lack of any real or meaningful knowledge of the Bible and the Christian faith, let alone his lack of any commitment to it, is consistent with a person claiming to be a Christian who has been persecuted because of this, even accepting he only claims to have become involved in the family church in 2005 which is now some 3 years ago. And when asked if he had ever preached the Gospel, he replied in the affirmative and claimed he normally spoke to his friends who had not been converted two or three nights per week, and introduced three people (whom he named) to this belief. However, when the Tribunal asked the applicant to tell it about the Gospel message, and why Jesus Christ came into the world, he revealed no real knowledge or understanding of these issues, and certainly not that necessary for a person to be able to preach the Gospel, referring instead to Adam and Eve not listening to his instructions, so God became dissatisfied with man’s behaviour, and he sent Jesus to save us as new human beings. The Tribunal repeated the question, and the applicant replied that the message was how God saved the people in the world. In short, the Tribunal is satisfied that if the applicant was in fact a Christian in China, and had a well founded fear of being persecuted because of this, he would have had a sound knowledge on which his faith was based. While it is generally the case that applicants who are otherwise credible and plausible should, unless there are good reasons otherwise, be given the benefit of the doubt, it is not the case that the evidence of an applicant should be believed by the Tribunal unless specifically disproved by the objective evidence before the Tribunal. The Tribunal is not required to accept uncritically any and all the allegations made by an applicant: Randhawa v MIEA (1994) 52 FCR 437 at 451. The mere fact that a person claims fear of persecution for a particular Convention reason does not establish either the genuineness of the asserted fear or that it is well-founded or that it is for the reasons claimed. It is for the Tribunal to be satisfied that all of the statutory elements are made out (Guo’s case at 596).
In coming to its finding, the Tribunal accepts that a person’s faith is a very personal matter and that different people have different levels of knowledge, interpretation and understanding about what their faith means to them, especially if, like the applicant, they claim they have only joined the church in the last two years; are not involved in the official or mainstream church; but rather are involved in the less ritualistic family or underground church. In this context, the Tribunal accepts that it is not necessary for a person to have a deep and profound level of theological knowledge and expertise in order to believe in Christianity or to be subject to prosecution as a Christian. Indeed, the Tribunal is not trying to rate his knowledge of his faith and the Bible by the questions that were put to him at the hearing and his responses to them. That said, however, the Tribunal would reasonably expect him to talk, even in simple terms, about his faith and outline on what it was based if this was important to him, and was the reason why he fears he would be persecuted in China, especially after the Tribunal wrote to him on 11 June 2008 and told him that it was unable to make a favourable decision on the information he had provided (not notwithstanding his claim, made at the hearing, that his adviser had not told him of this). Indeed, and while the applicant acknowledged at the resumed hearing that his knowledge of the Bible was very limited but nevertheless remained adamant that he believed in God, the Tribunal is satisfied that it would be reasonable to expect a person who claims he assisted [Person E] to organise Bible studies, to spread the gospel to young people, and was so proactive that it was he who suggested to [Person E] that they organise members to widely distribute pamphlets during the Beijing CCP National Congress in October 2007, to have a strongly held and soundly based faith which he could clearly express at the hearing. However, he did not do so notwithstanding the Tribunal being adjourned to enable him more time to reflect on his responses. In short, the Tribunal finds that the applicant has no real knowledge, conviction, understanding, or awareness of what could reasonably be expected from a person who even loosely believes in the Christian faith and is a member of the family or underground church in China.
[8] CB 111-112

The Tribunal's conclusions were strong ones and appeared not to sit particularly well with the applicant's Christian knowledge, as recited by the Tribunal from its record of what occurred at the hearing. That concern is amplified from the transcript. The applicant was questioned about his faith at the hearing on 22 July 2008, as appears on the transcript, from line 40 on page 14 of the transcript through to line 16 on page 18:
MR INDER:   You claim that you're a Christian; is that correct?
THE INTERPRETER:   Yes.
MR INDER:   When did you become a Christian?
THE INTERPRETER:   Well, the actual time that I joined the church was 2005 when I was referred by this [named person].
MR INDER:   When in 2005?
THE INTERPRETER:   It was in January, around late January of 2005 because I was having my birthday then.
MR INDER:   When did you start reading the Bible?
THE INTERPRETER:   From that time onwards.
MR INDER:   How often do you read the Bible?
THE INTERPRETER:   On Sundays. Also I read the Bible on Tuesdays, Thursdays and Fridays if I was not very busy by then.
MR INDER:   What type of Christianity do you believe in? What sort of denomination?
THE INTERPRETER:   Just Christianity.
MR INDER:   Not any particular sort?
THE INTERPRETER:   In Zhuhai they actually refer to this church as a family church.
MR INDER:   Well, tell me about the religious services and other religious activities you participated in China.
THE INTERPRETER:   Regarding my religious activities I will have to make the following supplementary comments. As a matter of fact my parents have always been Christian practitioners, so I have heard of and I have - I have heard of the Christian concepts and other stuff from my childhood, but later as I started working I didn't have enough time to participate in such activities. However, I started joining the church from 2005 onwards.
MR INDER:   So my question was what sort of religious activities and services did you participate in in China?
THE INTERPRETER:   With regard to the religious activities, first, I participate in the Sunday worship, and, secondly, I spread messages of God to other people, and, third, I try to convert other people and try to tell the good word or good news to other people.
MR INDER:   How many people attended the Sunday worship you attended?
THE INTERPRETER:   Well, around 20 to 30 people.
MR INDER:   Did you study the Bible at these services?
THE INTERPRETER:   Yes.
MR INDER:   What did you do in the family church, what was your role?
THE INTERPRETER:   Well, in the church, I mean on the worship date I just worked as a receptionist inside.
MR INDER:   Did you ever preach the Gospel?
THE INTERPRETER:   Ever preach the Gospel, sir?
MR INDER:   Correct, yes.
THE INTERPRETER:   I did.
MR INDER:   Where, how often and to whom?
THE INTERPRETER:   Normally within a week I would spend two to three nights with my other friends who haven't been converted to this religious belief. Also for the names of these people are [three named people]. After I joined I introduced them to this belief.
MR INDER:   Please tell me what the Gospel message is and why Jesus came into the world?
THE INTERPRETER:   Because that - with regard to why Jesus came to the world because it is said in the Old Testament that God has said and a deal or an agreement with the Israelis and because this world has been created by God. Either Adam and Eve didn't listen to the instructions of God and God became more dissatisfied with the behaviour happening in this world. That's why he destroy it and Jesus was sent to save us.
MR INDER:   So what - sorry?
THE INTERPRETER:   Sorry. Jesus was sent to save us as new human beings.
MR INDER:   So what's the Gospel message?
THE INTERPRETER:   The Gospel actually tells about the message from God how God saved the people in this world.
MR INDER:   Were you ever baptised?
THE INTERPRETER:   I was baptised.
MR INDER:   When and where?
THE INTERPRETER:   Well, the location is in Zhuhai and the time was around 1 June 2005.
MR INDER:   In your protection visa application you say it was 1 June in 2006 in Macao. How do you explain the difference?
THE INTERPRETER:   Sorry, I made a mistake. It just really slips my mind. I joined in 2005 and then - but however the actual time that I joined - I mean by then I became a real member. It was in January 2006 and I was baptised on 1 June 2006.
MR INDER:   Where?
THE INTERPRETER:   It was by a pastor from Macao in Zhuhai.
MR INDER:   Who is John the Baptist and what did he do?
THE INTERPRETER:   What did you say, sorry?
MR INDER:   Who was John the Baptist and what did he do?
THE INTERPRETER:   The Baptist John is a missionary.
MR INDER:   Who was Moses and what did he do?
THE INTERPRETER:   Moses has been selected by God to save the Israeli people to get them out of Egypt.
MR INDER:   What job did Peter have before he became a disciple of Jesus?
THE INTERPRETER:   Peter is a fisherman.
MR INDER:   Do you know the Books of the Corinthians in the Bible?
THE INTERPRETER:   Sorry, sir?
MR INDER:   Do you know the Books of the Corinthians? Can you translate that, interpreter?
THE INTERPRETER:   How do you spell that word?
MR INDER:   Oh, look, I won't use - I'll - - -
THE INTERPRETER:   I've got my glossary here. Maybe I can    - - -
MR INDER:   Corinthians, C-o-r-i-n-t-h-i-a-n-s.
THE INTERPRETER:   No, that one is - - -
MR INDER:   Okay, well, look, we won't worry about that. What sermon - what did Jesus say when he gave a sermon on the top of a mountain? What did he tell his followers to do?
THE INTERPRETER:   On the top of the mountain he issued the Ten Commandments.
That was the extent of the Tribunal’s questioning of the applicant’s knowledge of Christianity. The applicant’s answers were short, but he had been instructed by the presiding member to keep his answers to questions short[9]. Only the answer to the final question is clearly wrong. The test for apprehended bias is whether a fair-minded lay observer, properly informed of the circumstances, would apprehend that the decision‑maker might not bring an unprejudiced mind to bear upon the question to be decided[10]. The minister's submissions in relation to that issue are set out in paragraphs 9 to 14, which also deal with other issues raised by me:
[9] Transcript (22.07.08) p13, line 34
[10] Re Refugee Review Tribunal; Ex parte H [2001] HCA 1
First, it should be noted that the Tribunal was entitled to ask the Applicant questions about the activities he said he had undertaken. It was also entitled to ask him questions designed to show the level of his knowledge of and commitment to Christian beliefs and doctrines, and to draw conclusions from the way he answered such questions.[11]
Given that the Applicant claimed to have read the Bible regularly and to have been quite active in the church,[12] the depth of his knowledge of Christian teachings was clearly capable shedding light on the truth or otherwise of his claims. The Tribunal showed a proper appreciation of the use that could safely be made of such evidence.[13] Importantly, the Tribunal understood that the depth of the Applicant’s knowledge of Christian beliefs became relevant when it was related to the length and intensity of his claimed involvement in the Church. Making that comparison (as the Tribunal did) did not involve making itself an arbiter of doctrine. Accordingly, pursuing and considering the issue did not give rise to any apprehension of bias or result in the Tribunal falling into other error.
As to the manner in which the Tribunal pursued the issue during its hearings, there is nothing to indicate that its questioning was anything other than respectful and appropriate.[14] Even if some of the questions were difficult (an assessment which the Court is not in a position to make), all that would follow is that additional caution was needed in drawing conclusions from the Applicant’s answers. It would not follow that the Tribunal erred by asking such questions.
[11]    See WALT v Minister for Immigration and Citizenship [2007] FCAFC 2 at [27]-[30]; SZLJF v Minister for Immigration and Citizenship [2008] FMCA 1560 at [17]
[12]    See CB 104 [30], 106 [40]
[13]    CB 112 [62]
[14]    See the transcript (22.7.08) at pp 16-18
Findings from the Applicant’s answers
If the Court were to consider that the Tribunal’s conclusion that the Applicant was not a genuine Christian was not ‘open to it on the evidence’, or even that that finding was irrational, that would not in itself establish jurisdictional error by the Tribunal.[15]
The Tribunal’s findings were in any case clearly open to it. The Applicant answered some simple questions about Biblical characters and events correctly and others incorrectly;[16] he gave a very vague answer to a more analytical question about the ‘Gospel message’;[17] he gave contradictory answers as to where and when he himself had been baptised, observing that ‘it really just slips my mind’;[18] and he showed no appreciation of the existence of different Christian denominations.[19] This was an applicant who claimed to have had Christian parents, to have studied the Bible and to have introduced others to Christianity.[20] The presiding member was also in a position to observe the Applicant’s demeanour, and described his answers as ‘carefully well rehearsed remarks which he appeared determined to present’.[21] There was nothing surprising or illogical in the Tribunal’s finding that he had a limited degree of knowledge that was inconsistent with the truth of his claims.[22]
Certainly, the Tribunal’s findings are not such as to give rise to an apprehension of bias. It is only in a rare and exceptional case that bias could be established on the part of the Tribunal simply by reference to its reasons.[23] This is not such a case. Nor do the Tribunal’s findings give rise to any issue regarding compliance with s 425 of the Migration Act: a second hearing was held, at which the presiding member squarely put to the Applicant his opinion of the Applicant’s answers to questions and the inference that would follow.[24]
[15]    Eg SZDFZ v Minister for Immigration and Citizenship (2008) 168 FCR 1 at [40]
[16]    Transcript (22.7.08) pp 17-18
[17]    Transcript (22.7.08) pp 16-17
[18]    Transcript (22.7.08) p 17
[19]    Transcript (22.7.08) p 15
[20]    Transcript (22.7.08) pp 15-16
[21]    Ibid
[22]    CB 111 [60]
[23]    SZHVL v Minister for Immigration and Citizenship [2008] FCA 356 at [17] per McKerracher J
[24]    Transcript (28.7.08) pp 3-4
I accept that it will be an exceptional case that bias, even apprehended bias, is established simply by reference to the Tribunal reasons. However, in this case, having regard to the transcript, I do conclude that a case of apprehended bias is made out. I refer in particular to the following factors. First, the presiding member, at paragraph 60 of the Tribunal reasons, states that[25]:
… the Tribunal finds he is largely uninformed about his claimed religion to the point of profound ignorance about the Christian faith, other than a few carefully well rehearsed remarks which he appeared determined to present at hearing on 22 July 2008, irrespective of the questions asked of him.
[25] CB 111
I invited counsel for the Minister to show me, on the transcript of the hearing on that day, what supported the statement that the applicant was determined to present well-rehearsed remarks, irrespective of questions asked of him. Counsel was unable to point to anything on the transcript to support that statement. On the contrary, the applicant's answers were responsive to the questions put to him. There is nothing in the applicant's answers which, objectively and necessarily, points to rehearsal or to a desire to give answers that did not relate to the questions put.
Secondly, the applicant, on an objective view, displayed a reasonable knowledge of the Christian faith in dealing with the questions put to him. For example, he was asked what the Gospel message is and why Jesus came into the world. The applicant identified the Christian belief that Jesus came into the world to cleanse mankind of original sin, by reference to Adam and Eve. The presiding member appeared not to understand or give credit to the answer. The applicant responded to further prompting on the Gospel message by answering briefly that God saved the people of the world. He knew what status John the Baptist had, he knew who Moses was and what he did, and he knew that the apostle Peter was a fisherman. A question about the Books of Corinthians was abandoned due to apparent interpretation difficulties. The applicant was confused about the question put concerning Jesus' sermon on the mount, but I accept that such confusion is entirely possible between the delivery of the commandments in the old testament from the mountaintop and Jesus' sermon on the mount referred to in the new testament. Given the questions put which were limited in scope and detail and the applicant's answers, the Tribunal's conclusions seem unnecessarily harsh.
The Tribunal recognised that faith is a personal matter and that persons will have different levels of knowledge and understanding. That is reflective of the Federal Court's decision in WALT v Minister for Immigration [2007] FCAFC 2. However, while the Tribunal says it was not trying to rate his knowledge of his faith in the Bible by the questions that were put to him at the hearing and his responses to them, it appears to me, on a fair reading of the decision and the transcript, that that is indeed what the Tribunal was attempting to do. The presiding member says, in his reasons at paragraph 62[26], that:
… the Tribunal would reasonably expect [the applicant] to talk, even in simple terms, about his faith and outline on what it was based if this was important to him, and was the reason why he fears he would be persecuted in China…
[26] CB 112
However, I am unable to identify in the transcript any occasion upon which the applicant was invited to speak generally about his faith so as to satisfy the Tribunal's concerns. Rather, he was asked a series of specific questions and answered them to the best of his ability. He was asked[27] why he believed he was a refugee and gave the following answer:
THE INTERPRETER: The key reason is actually I have joined this church which is considered by the Chinese Communist Party as an illegal organisation, so I had this fear and I could not stay in China any longer.
[27] Transcript (22.07.08) p12, line 38
The applicant would not have seen that as an opportunity to speak generally about his faith.
It is true that, at the resumed hearing on 28 July 2008, the presiding member squarely put to the applicant his concern that the applicant had displayed an inadequate knowledge of Christianity and invited a response. This is reflected in the transcript of that hearing, on pages 3 and 4, from line 45 to line 11:
MR INDER: I put to you at the last – at the earlier part of the hearing a number of elementary questions about the Bible and the Christian faith to which you gave very limited and uninformed answers, and this revealed that you had no real understanding, knowledge of or commitment to the Christian faith, and they indicate that you were not a Christian in China. Is there anything further you’d like to say in response to this information that I put to you at the last – at the earlier hearing?
THE INTERPRETER: I properly joined Christianity after 2005. I’m not very – I can’t – I can’t say that I’m very familiar with the Bible, the content of the Bible but before God I can promise that I am a Christian. Because of God’s love, that’s why I can make – I can make progress until now. I hope you, member, can understand.
However, to my mind, the important factor is that the presiding member, at that point, had already formed a firm view before the applicant had been given an opportunity to respond or speak generally. The perception created is that nothing the applicant might say could change that view. Indeed, the applicant was accused by the presiding member of being a liar before he was asked any questions about his claim of religious persecution[28]
[28] Transcript (22.07.08) p7, lines 16-33
There is sufficient of concern in the Tribunal reasons, as amplified by the transcript, to support the conclusion that a fair‑minded lay observer, so informed, might reasonably apprehend that the presiding member did not bring an unprejudiced mind to bear upon the question of the applicant's faith. That constitutes jurisdictional error and entitles the applicant to the relief he seeks.
There was otherwise no breach of s.425 of the Migration Act. The applicant was properly invited to a hearing and was put on notice of the essential and significant issues on which the review would turn. Apart from the issue of bias, the hearing opportunity was an adequate one. The applicant was accompanied to the hearing by Rev Samuel Lawrence, who was identified in the applicant’s response to hearing invitation[29] as a person who would give oral evidence in support of the application. Rev Lawrence gave no evidence and it appears that the Tribunal staff identified him merely as a support person[30]. While that failure to give evidence is unfortunate, especially as the Tribunal had no evidence (or claims) in relation to the applicant’s religious observance in Australia, the available material does not support a conclusion of any fault on the part of the Tribunal. It is unnecessary to deal with the third issue raised in the show cause orders.
[29] CB 71
[30] CB 72
I will order that a writ of certiorari issue quashing the decision of the Refugee Review Tribunal signed on 30 July 2008 and handed down on 12 August 2008. I will also order that a writ of mandamus issue requiring the Refugee Review Tribunal to redetermine the review application before it according to law.
On the question of costs, the applicant is self-represented and confirmed that he has not incurred any legal costs. He has paid an application fee to the Court of $374 and should be reimbursed. The setting‑down fee for today's hearing has not been paid and I will make no order in relation to it. I order that the first respondent is to reimburse to the applicant the filing fee in the sum of $374 paid by him.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 19 February 2009