SZNZA v Minister for Immigration
[2010] FMCA 213
•31 March 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNZA v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 213 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – relevant and irrelevant considerations – evidence of other visa applicants at other Tribunal hearings – proper application of law distinguished from process of making particular findings of fact. |
| Migration Act 1958, ss.424, 424A, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Craig v South Australia (1995) 184 CLR 163 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 The Queen v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 Abebe v Commonwealth (1999) 197 CLR 510 Minister for Immigration & Citizenship v SZKTI (2009) 238 CLR 489 Minister for Immigration & Citizenship v Kumar (2009) 238 CLR 448 SZIAQ v Minister for Immigration & Citizenship [2008] FCA 654 MZXGB v Minister for Immigration & Citizenship [2007] FCA 392 Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 |
| Applicant: | SZNZA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2510 of 2009 |
| Judgment of: | Cameron FM |
| Hearing date: | 3 March 2010 |
| Date of Last Submission: | 3 March 2010 |
| Delivered at: | Sydney |
| Delivered on: | 31 March 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr J. Johnson |
| Counsel for the First Respondent: | Mr J. Mitchell |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2510 of 2009
| SZNZA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of China where, she claims, she was a member of an unregistered local family church (known by various names including “Local Church” and “Shouters”) and, as a result, she was targeted by village locals and the Public Security Bureau (“PSB”), including by being arrested and beaten.
The applicant claims to fear persecution in China because of her religion.
After her arrival in Australia on 14 September 2007, the applicant lodged an application for a protection visa. This was refused by a delegate of the first respondent (“Minister”) on 30 July 2008. 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.
In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
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 – 14 of the Tribunal’s decision (Court Book (“CB”) pages 199 – 209). Relevant factual allegations are summarised below.
Primary application
In her visa application and accompanying statement, the applicant made the following claims:
a)she was born in 1966 in Yinxi Township, Fuqing City, Fujian Province in China;
b)she married in 1985 and has two children. Her husband and daughter reside in China whilst her son is in Australia studying;
c)she came to Australia to visit her son;
d)she was introduced to the local family church by her husband and his family after marrying and was baptised the same year;
e)she belongs to an unregistered church;
f)she was involved in promotional activities (for example, distributing leaflets) aimed at expanding the church membership;
g)she was often abused by village locals for distributing the pamphlets and for promoting the church;
h)on 12 March 2006 she was stopped by police as she was riding her bicycle, which was loaded with a bag full of printed materials, and was questioned about that material. She was then taken to the Fuqing PSB for further questioning. The police alleged that she was engaged in illegal religious promotional activity. They hit and kicked her and then detained her in the Custody Centre for fifteen days. She was released on 27 March 2006;
i)on 8 October 2006 she was arrested again while attending a church gathering, taken to the Yinxi police station and then to the Fuqing Detention Centre where she was held for fifteen days. Upon her release on 23 October 2006 she was warned by the authorities that if she were to attend further gatherings of the church she would be gaoled;
j)PSB officers continued to visit her house frequently after her release; and
k)since arriving in Melbourne, she has been attending church in Coburg and Ashwood.
The applicant provided the following documents in support of her claims:
a)copies of two release certificates – one dated 27 March 2006 stating that she was arrested and detained on 12 March 2006 and the other dated 23 October 2006 stating that she was arrested and detained on 8 October 2006;
b)copies of two “Notice to the family member of the detainee” documents dated 12 March 2006 and 8 October 2006 stating that she was detained at Fuqing Municipal Detention Centre; and
c)a copy of a document described as “Checklist for items seized”, which lists the items seized from the applicant comprising a Bible, hymns and tapes.
Review application
In her review application the applicant stated that the documents she attached to her visa application were genuine and had been given to her by the PSB when she was released from detention.
Tribunal review
At the Tribunal hearing on 1 October 2008 the applicant made the following additional claims:
a)she had received no education;
b)it was she who introduced her family to the church;
c)in relation to the incident which took place on 12 March 2006, after been interrogated at the police station she was taken to Tang Chang Detention Centre. She stated that the police station and this detention centre were the same place. She was released after signing an undertaking not to distribute religious flyers;
d)in relation to the incident which took place on 8 October 2006, the gathering had fifty attendees, all of whom were taken by the police to the Ying Xi police station and later to the Tang Chang Detention Centre which she said is located in Shui Nan, a district of Fuqing City. She later stated that only ten attendees were taken by the police. She said she was asked to sign an undertaking not to violate the regulations otherwise she would be sent to prison;
e)she was beaten during her detention following this incident and as a result she suffers headaches, has bad memory and “has forgotten much”;
f)the only person in her family who has been arrested because of involvement with the unregistered local church was her husband’s younger brother;
g)she had no difficulty departing China; and
h)her husband mailed the PSB documents to her.
On 3 October 2008 the Tribunal received a letter dated 31 August 2008 from “The Church in Melbourne” confirming that the applicant has been attending church meetings since 16 September 2007.
On 2 October 2008 the Tribunal sent the applicant a s.424A notice inviting her to comment on or respond to the following information which the Tribunal considered would be the reason or part of the reason for affirming the Minister’s decision:
a)the fact that the documents the applicant provided did not conform to the description of how these documents should look if issued from the Fuqing City PSB (as described in a report from the Department of Foreign Affairs & Trade (“DFAT”));
b)the Department’s Document Examination Unit’s statement that the documents the applicant provided were unreliable;
c)the inconsistencies in the information she gave at various times about her detention;
d)country information that indicated that unregistered churches in China and particularly in Fujian do not face the persecution the applicant claims to have suffered;
e)the fact that the Minister’s department had over eighty other applicants making claims similar to those of the applicant; and
f)the fact that if a person has been detained or was the subject to other administrative penalties or procedures, they would have a police record in China and would be likely to be denied a passport.
On 8 October 2008 the Tribunal received a response to its s.424A notice. In her response the applicant stated the following:
a)in relation to the PSB documents she submitted with her protection visa application, the documents were issued and served on her at the time of her arrest and detention. As she has had no education, she had no understanding of the standard features of such documents;
b)in relation to her claims being very similar to those of a number of other claimants and the similarities between her and the others’ statements of claims, she composed her statement from her personal experience although her agent made some corrections;
c)in relation to inconsistencies which were identified during the interview with the Department, she has little knowledge of the Mandarin language and always communicates in her local Fuqing dialect. The interpreter who was used during the Department interview did not understand her and made up the interpretation of her answers, which resulted in the differences between her answers and her written statement; and
d)although she was arrested and detained twice for religious activities she did not have any criminal convictions against her.
The applicant was invited to a further Tribunal hearing on
2 September 2009 to give evidence and present arguments relating to the issues arising in her case. The applicant essentially repeated the claims she had made previously but added the following:
a)in response to country information which indicated that there were no reports of incidents of members of house churches being targeted in the Fujian Province, the applicant replied that in China it is forbidden to report; and
b)in response to the comments of an elder of the Church of Melbourne, Mr Philip Yee, to the Tribunal in February 2009 that members of that church who have come from Fujian Province have reported that there have been fewer arrests than previously, she replied that Mr Yee only said that there were not many arrests but there were still some arrests made.
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 is a person 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)the Tribunal did not accept the applicant’s claims that as a member of the Local Church in Fuqing City she was unable to worship, was persecuted for attending house gatherings for reasons of religious practice and that the Chinese government is able to control or suppress news from Fujian Province to the outside world. The Tribunal referred to extensive country information in reaching this finding and noted that it indicated the following:
i)religious persecution occurred in different parts of China to various degrees but the authorities now show more tolerance of religious practice in unregistered churches;
ii)the treatment of the Local Church by the authorities varies between provinces and there is a significant degree of freedom of worship by Christians in Fujian Province whether they belong to a registered or an unregistered church; and
iii)house churches are permitted to register and worship openly and freely in Fujian Province;
b)the Tribunal did not accept that the applicant was arrested and detained in 2006 or that she suffered physical abuse or any form of harassment by locals or the authorities, having regard to the following:
i)the Tribunal referred to “more reliable” independent information which indicated that the level of unreliable documents submitted with visa applications in Fujian Province is very high. Thus, the Tribunal found that the documents that the applicant submitted were not “reliable to support” her claim of arrest, detention and torture; and
ii)the applicant’s oral evidence in respect of her alleged arrest and detention was vague and evasive, providing various responses regarding the number of persons arrested and an incoherent description of where she and the others she claimed were arrested were taken;
c)having found that the applicant’s oral evidence in relation to the issue of arrest and detention was not reliable, the Tribunal did not accept that anyone in the applicant’s family had been arrested or persecuted for religious reasons. As such, and in light of its findings that members of the applicant’s church are able to worship and engage in religious activities without suffering persecution or serious harm, the Tribunal did not accept that the applicant suffered Convention-related persecution or serious harm as a member of her family;
d)the Tribunal also noted that if the applicant was indeed of interest to the authorities and arrested and detained as she claimed, she would have a police record. It referred to advice from DFAT that stated that such people would be likely to be denied a passport; and
e)based on country information, the Tribunal was satisfied that the applicant did not have a profile which would result in her facing a real chance of persecution if she practised her faith in Fujian Province.
Proceedings in this Court
The grounds of the further amended application were relevantly pleaded as follows:
Errors relating to taking into account an irrelevant consideration
6.The Tribunal erred in having regard to claims made in evidence given by other applicants in unrelated proceedings, both because:
a) the evidence itself was a matter to which regard was forbidden to be had, and
b) even if it were legitimate to have regard to the claims (which is denied), the Tribunal in fact disbelieved the claims in the other proceedings, thereby rendering them irrelevant factors in determining whether there was likely to be country information about the claimed persecution.
7. The claims made by other applicants did not amount to country information of a general nature to which the Tribunal might legitimately have regard. In light of this, the information was of a fundamentally different nature from that of information about the prevalence of document fraud in a Country, for example, which information might be relevant in assisting the Tribunal, in combination with other factors, in coming to a determination.
Reasonable Apprehension of Bias
8. By reason of the matters set out above, a fair-minded lay observer might reasonably apprehend that the Tribunal Member did not bring an impartial mind to the resolution of the question to be decided by him.
Irrationality
…
12.The reasoning adopted by the Tribunal in relation to its finding at [117] of its reasons for decision is irrational.
The applicant’s case was largely based on the Tribunal’s statement at para.117 of its decision record:
On the basis of information from various sources, I do not accept that Fuqing is so isolated that a number of the international organizations cited in this decision record would be unaware of mass arrests in numbers this and other applicants whose cases are before this Member of the Tribunal have claimed.
The applicant’s allegation of jurisdictional error is based on the Tribunal’s alleged reliance on the fact that a number of applicants, including the applicant in these proceedings, had made similar factual allegations as the basis of their applications for Australian protection visas.
Taking irrelevant considerations into account
The applicant submitted that the Tribunal had regard to matters which the Act prevented it from taking into account. It was submitted that the claims of applicants other than this applicant were irrelevant to the Tribunal’s consideration of this applicant’s review application and it was also unfair to have regard to them. It was submitted that the scheme of the Act did not contemplate reliance on or reference to claims by other applicants in the way that the Tribunal allegedly made use of such information in this matter.
The fact that the Tribunal did have regard to information concerning other applicants was, it was said, proved by the fact that the information in question had been notified in its s.424A notice of
2 October 2008 to be “the reason, or a part of the reason, for affirming the decision that is under review”. The applicant submitted that having regard to this impermissible consideration was an error which could have affected the result of the hearing, infecting as it did the Tribunal’s assessment of her credit.
The applicant also pointed to the fact that at least some of the other applicants to whom the Tribunal pointed or referred were ultimately disbelieved by it, reference being made to a number of published Tribunal decisions which were, in extract form, put into evidence as
Exhibit 1.
It is a matter of discretion which considerations the Tribunal takes into account in arriving at its decision. However, if the Tribunal does take account of an irrelevant consideration then it will have been guilty of jurisdictional error justifying the setting aside of its decision: Craig v South Australia (1995) 184 CLR 163; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
What factors a decision-maker is bound to consider in making the decision is determined by a construction of the statute conferring the discretion: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 per Mason J. In that case, his Honour said:
In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard… (at 40)
In making that statement, his Honour referred to The Queen v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 where it was said:
The general rule is that a discretion expressed without any qualification is unconfined except in so far as it is affected by limitations to be derived from the context and scope and purpose of the statute. (per Steven, Mason, Murphy, Atkin and Wilson JJ at 50).
In the context of the Tribunal’s function, the constraints on its discretion concerning what considerations it should or should not take into account are those derived from the Act, such as the requirement to consider the integers of an applicant’s claim to have a well founded fear of persecution for a Convention reason. The Act makes the applicant’s claim and its component integers considerations which are mandatorily relevant: Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 348-349 [75]; Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 per Allsop J at 259 [42], Spender J agreeing at 245 [1].
However, to characterise the Tribunal’s alleged reliance on facts alleged in other applicants’ claims as amounting to the taking of irrelevant considerations into account runs the risk of confusing factual considerations with legal ones. In Abebe v Commonwealth (1999) 197 CLR 510 the visa applicant alleged that the Tribunal had failed to take into account a relevant consideration, namely that she had allegedly been raped by state officials when in custody in Ethiopia. Gummow and Hayne JJ said that they did not need to express any concluded view on whether the Tribunal had failed to take into account a relevant consideration “described as being whether the applicant had been raped in detention” which would, if made out, reveal a failure to take into account a relevant consideration. Their Honours continued:
There appears much to be said, however, for the view that the identification of relevant and irrelevant considerations is to be drawn from the statute empowering the decision maker to act rather than from the particular facts of the case that the decision maker is called on to consider. (per Gummow and Hayne JJ at 579 [195], Gaudron and Kirby JJ agreeing at 546 [90] and 584 [212], respectively)
Later, in Yusuf’s case, it was said:
The considerations that are, or are not, relevant to the Tribunal's task are to be identified primarily, perhaps even entirely, by reference to the Act rather than the particular facts of the case that the Tribunal is called on to consider
…
This does not deny that considerations advanced by the parties can have some importance in deciding what is or is not a relevant consideration. It may be, for example, that a particular statute makes the matters which are advanced in the course of a process of decision-making relevant considerations for the decision-maker. What is important, however, is that the grounds of judicial review that fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether the decision-maker has properly applied the law. They are not grounds that are centrally concerned with the process of making the particular findings of fact upon which the decision-maker acts. (per McHugh, Gummow and Hayne JJ at 347-348 [73]-[74], Gleeson CJ agreeing at 329 [1])
In this case, the allegation is that the Tribunal did, but should not have, taken into account certain facts or alleged facts. Understood in this way, it can be seen that the allegation does not raise questions of irrelevant considerations having been taken into account but of irrelevant evidence or factual material having been taken into account.
Craig v South Australia and Yusuf’s case show that ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law and to commit jurisdictional error. However, s.424 of the Act gives the Tribunal a very broad discretion in this area. It relevantly provides:
424 Tribunal may seek information
(1) In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
…
Section 424(1) confers a general power on the Tribunal to get any information that it considers relevant, the only limitation on that power being that the Tribunal must have regard to that information in making its decision: Minister for Immigration & Citizenship v SZKTI (2009) 238 CLR 489 at 501-502 [37]).
The cases show that the Tribunal can rely on evidence obtained by it other than at the hearing of the particular application in question, such as confidential information: Minister for Immigration & Citizenship v Kumar (2009) 238 CLR 448; and evidence given by another protection visa applicant in separate review proceedings: SZIAQ v Minister for Immigration & Citizenship [2008] FCA 654; MZXGB v Minister for Immigration & Citizenship [2007] FCA 392. Indeed, as Hayne J said in Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507:
… The decision-maker, in a body like the Refugee Review Tribunal, will bring to the task of deciding an individual's application a great deal of information and ideas which have been accumulated or formed in the course of deciding other applications. A body like the Refugee Review Tribunal, unlike a court, is expected to build up “expertise” in matters such as country information. Often information of that kind is critical in deciding the fate of an individual's application … (at 562-563 [180])
Even so, the applicant submitted that it was manifestly unreasonable for the Tribunal to exercise its discretion in the way that it did, namely by taking into account the factual allegations of applicants other than the applicant in these proceedings. However, to the extent that the Tribunal did take such matters into account, which will be considered further below, I do not conclude that its decision to do so was so unreasonable that no reasonable Tribunal would have done so. The existence of an apparently large number of very similar claims, seemingly lodged by the same migration agent, was a matter of legitimate concern to the Tribunal because that circumstance suggested that the claims were false.
Moreover, being empowered by s.424(1) to obtain, for the purposes of this review, the information from other files in its possession, and having done so, the Tribunal was required by that subsection to have regard to the information. Far from being material which was irrelevant to the review or manifestly unreasonable to have been taken into account, the Act required that it be considered.
But in any event, a careful reading of the Tribunal’s reasons discloses that its decision did not turn on its consideration of this material. In paras.78-112 of its decision record the Tribunal cited various items of independent country information which, the Tribunal said at para.113, strongly indicated that Christians in Fujian enjoyed a significant degree of freedom of worship whether the church to which they belonged was registered or unregistered. The Tribunal continued:
I have considered the applicant’s evidence, the country information she has submitted and referred to, her comments and responses to the Tribunal in respect of her claim that she is not free to worship and that she was persecuted in the past for religious belief and activities. On the basis of the extensive country information above, I do not accept the claims that as a member of the Local Church in Fuqing City, Fujian Province she is unable to worship, or that she was persecuted for attending house gatherings for reasons of religious practice. (para.114)
Although the applicant submitted that the country information relied upon by the Tribunal in reaching that conclusion included the information referred to in para.117 of its decision, quoted above at [17], I do not agree. The conclusion stated by the Tribunal in para.114 of its decision was a simple rejection of the applicant’s claim to have suffered persecution in the past, because the independent country information contradicted it. Having made that finding, it proceeded to observe, by way of a corroborative finding, that the allegations of mass arrests made by the applicant and the various other applicants to whose claims the Tribunal had access, were, impliedly, not credible because no reference was to made to them in the country information. This finding was not central to the Tribunal’s conclusion that the applicant’s claim to have suffered persecution in China in the past was not credible although s.424(1) nevertheless required that regard be had to the information in question.
Finally, the submission that it was unfair to have regard to the claims of applicants other than this applicant fails for the reasons discussed above at [32]-[33], namely that the Tribunal’s decision did not turn on this information. In any event, the fairness which the Tribunal was obliged to show the applicant was procedural fairness. For the reasons given above at [18]-[31], no denial of procedural fairness has been demonstrated.
Consequently, the first ground alleged in the further amended application does not disclose jurisdictional error on the Tribunal’s part.
Apprehended bias
It was alleged that a finding of apprehended bias should be made because:
a)the Tribunal’s decision concerning the applicant was materially affected by its attitude to the claims made by the other applicants leading to this applicant being “tarred with a collective brush”;
b)the Tribunal’s s.424A notice effectively reproduced without comment or criticism the letter from the Minister’s department to the applicant’s migration agent stating that the applicant’s claim was very similar, and in some respects identical, to over eighty of his clients, thereby casting doubt on the credibility of the applicant’s claims;
c)the Tribunal reasoned that, absent corroborating independent country information, doubt was cast on the applicant’s claims about mass arrests; and
d)the Tribunal failed to dismiss the department’s suggestion that the supposedly identical patterns of detention and release in other claims was relevant to her claim.
The thread drawing these matters together was expressed in the applicant’s written submissions in the following terms:
The logical connection is that by having regard to, condoning and adopting a reasoning process which has regard to claims by other Applicants, a hypothetical fair-minded lay person 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 might not bring an impartial mind to the resolution of the question to be decided.
This allegation was well addressed by the Minister’s written submissions which I relevantly adopt and reproduce below:
The Tribunal’s findings were not based on the fact that there were similar or identical applications for protection visa before the Tribunal. The Applicant’s references to other decisions made on the same day by the same Tribunal member do not assist him [sic]. It is hardly surprising, in circumstances where there were 80 similar or identical applications for protection visas being made to the Minister that there would be a coincidence of those applications being reviewed by the Tribunal at the same time. Any sense of unease caused by such a coincidence does not demonstrate apprehended bias: see Epeabaka at [90]. All that is [sic] shows is that the Tribunal member had before him [sic] several similar or identical applications. It is not probative of the Tribunal member’s state of mind and whether he [sic] was open to persuasion.
The fact that on 2 October 2008 the Tribunal invited the Applicant to comment on the similarities between her application for protection visa and other such application was unexceptional. The Tribunal was obliged by s 424A(1) to particularise information to the extent it “would” form part of the reason for decision and was obliged to ensure that the Applicant understood the relevance of that information. In those circumstances, the procedural code did not require the Tribunal member’s mind to be absent of any predisposition or inclination for or against an argument or conclusion: Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 at [72]; Johnson v Johnson (2000) 201 CLR 488 at 493; VFAB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 102 at [23]. All that was required was that the Tribunal member be open to persuasion: Jia at [72] [sic; recte [71]] and [186]; see also NADH at [19].
The conscientious performance by the Tribunal of its procedural obligations, including the formation of a preliminary view, does not of itself, found an allegation of bias: SZDTU v Immigration and Citizenship [2007] FCA 1135 at [8]. Nor does it found an allegation of apprehended bias: MZXPA v Minister for Immigration and Citizenship (2008) 100 ALD 312 at [15].
The Tribunal’s written invitation to comment on that information was consistent with its inquisitorial powers and procedural obligations. It does not reveal any apprehended bias.
The Applicant can point to nothing in the decision record other than the Tribunal’s reasons for decision and the invitation of
2 October 2008 as forming the basis of the allegation of apprehended bias against the Tribunal member. Neither of these aspects of the decision record shows anything other than the performance by the Tribunal of its procedural obligations and a Tribunal decision based on the material before it. This does not firmly establish that a lay person might reasonably apprehend that the Tribunal member may not have brought an impartial mind to the resolution of the review.
Irrationality
The third ground of the application alleges that it was illogical of the Tribunal to have relied on the allegations of other applicants whose claims were ultimately not made out.
It was also submitted that the Tribunal’s reasons for decision in para.117 could be summarised as follows:
a.If all the Applicants before me are telling the truth, the scale of arrest would be such that there would be independent country information reflecting this.
b.There is no country information reflecting large scale arrests commensurate with the truth of the Applicants with similar stories who have applications before me.
c.The Applicants before me are not telling the truth about their arrests.
It was submitted that this reasoning process was fundamentally flawed because even it were permissible to have regard to the claims of other applicants, the applicant in these proceedings may have been the only one telling the truth which might not result in country information reporting on the arrest she described. It was submitted that she had no way of knowing what other applicants might say and giving her the opportunity to comment on what they might have said did not cure the defect in the process.
Even if all the other applicants’ claims were disbelieved by the Tribunal in their respective review proceedings, and the evidence does not go this far, the information on which the finding in para.117 was based was set out in the Tribunal’s s.424A notice in the following terms:
Particulars of the information:
The Tribunal has also noted reference in correspondence to you from the Department that over 80 other applicants made similar claims. The Presiding Member assessing your case has some of those applications which claim arrests in numbers similar to, or greater than, those you claimed in areas around Fuqing City and around the same years as your claims.
Why this information is relevant to the review
This information is relevant to the review because the absence of information from the wide range of sources referred to above of arrests in the years claimed by you and others in Fujian Province may lead the Tribunal to not accept your claims of arrest, torture or serious harm suffered at the hands of the authorities in China because of your religious practice or beliefs. …
The Tribunal should be understood to be saying in para.117 of its decision that if any one of the allegations concerning mass arrests were true then it would be expected that reference would have been made to it in the independent country information. This was a conclusion open to the Tribunal in light of the independent country information which was essentially to the effect that such things did not occur in Fujian Province. Not only does it appear that the Tribunal found it implausible that no reference was made in the country information to the mass arrests alleged by the other applicants, but it was also, and separately, implausible that the arrests alleged by the applicant were not mentioned. This was because the applicant’s allegation was so inconsistent with the picture painted by the country information that, had the arrests occurred, they would have been noted. It may be that this conclusion was factually incorrect because somehow the arrests alleged by the applicant passed unnoticed by those who authored the reports cited by the Tribunal. However, it was open to the Tribunal to conclude, given the preponderant opinion expressed in the country information, that there had been no recent incidents of any sort involving Christians in Fujian and that the events alleged by the applicant, let alone the totality of events alleged by all the other applicants, had not occurred.
For these reasons, I do not conclude that the Tribunal’s decision was illogical. However, even if it were, for the reasons expressed in
[32]-[33] above, the opinion expressed in para.117 of the Tribunal’s decision was not a finding determinative of the review. In that paragraph, it essentially only said that it disbelieved the applicant’s claim concerning the mass arrests. In para.114 it had rejected her claim to be unable to worship or to have been persecuted for attending house church gatherings.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 31 March 2010
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