SZOCK v Minister for Immigration

[2010] FMCA 253

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOCK v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 253

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal failed to comply with s.425 of the Migration Act 1958 (Cth) – whether the Refugee Review Tribunal failed to consider the applicant’s claim – whether the Refugee Review Tribunal misunderstood or made a mistake in relation to the applicant’s claim – whether the Refugee Review Tribunal approached its task with an apprehension of bias or actual bias – whether the Refugee Review Tribunal failed to consider the applicant’s evidence properly and fairly.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 65(1)(b); 91R; 116; 189(1); 425; 474; pt.8 div.2

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Abebe v Commonwealth of Australia (1999) 162 ALR 1
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFA 10
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28
NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264

Applicant: SZOCK

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 65 of 2010

Judgment of: Emmett FM

Hearing date: 23 March 2010

Date of Last Submission: 23 March 2010

Delivered at: Sydney

Delivered on: 14 April 2010

REPRESENTATION

Applicant appeared on his own behalf and with the assistance of a litigation guardian

Counsel for the Respondent: Mr T. Reilly

Solicitors for the Respondent: Ms J. Pownall, Australian Government Solicitor

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 65 of 2010

SZOCK

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 21 December 2009 and handed down the same day.

2. The applicant claims to be a citizen of the Peoples Republic of China and of Christian faith (“the Applicant”).

3. The Applicant arrived in Australia on 6 June 2009 having departed illegally from Gaouqi on a fake Hong Kong passport issued in his own name and a subclass UD 976 Electronic Travel Authority visa issued on 8 May 2005. The Applicant was intercepted at Melbourne airport on 6 June 2009 and was detained under s.189(1) of the Act. The Applicant’s visa was cancelled under s.116 of the Act.

4. On 24 June 2009, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.

5. On 5August 2009, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.

6. On 11 August 2009, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.

7. On 21 December 2009, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.

8. On 15 January 2010, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

1. Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then s.65(1)(b) of the Act mandates that the visa application is to be refused.

2. Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).

3. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

   “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

4. Section 91R of the Act expands on the notion of persecution and serious harm when considering Article 1A(2) of the Convention.

The Applicant’s application for a protection visa

1. In his protection visa application, the Applicant claimed that he feared persecution by the Chinese authorities by reason of his religion.  

2. In the body of the Applicant’s protection visa application, he claimed that his father was a responsible brother of the Local Church in his home town and was subject to persecution by the Chinese government many times because the Local Church is regarded as an “illegal” and “anti-government” religious organisation. The Applicant claimed that his father was imprisoned by the Public Security Bureau (“the PSB”) from early 1997 to the end of 1998.

3. The Applicant claimed that in April 2003 his father and elder sister, Ms XYH (“the elder sister”), were arrested by the PSB as active members of the Local Church. The Applicant claimed the elder sister established and developed a youth group of the Local Church that was supported by their father.

4. The Applicant also claimed that in April 2003 the elder sister was forced to accept a sterilisation operation and then detained for distributing religious propaganda materials. He claimed that, ultimately, she was released for medical treatment whilst the father remained in detention and was subsequently sent to a labour camp where he remains.

5. The Applicant claimed that in mid October 2004 the elder sister was again subject to investigation by the PSB in relation to her youth group. The Applicant stated that in order to escape from persecution from the PRC authorities, their brother-in-law purchased a false passport and enabled his elder sister to leave China in February 2005.

6. The Applicant claimed that the second sister, Ms LH (“the second sister”), was also a key member of the Local Church in China. The Applicant stated that in January 2006 the second sister assisted a member of the Local Church who had been imprisoned for 7 months after her release from jail, claiming that she was her cousin. Thereafter, the Applicant stated that the second sister began to assist in evangelising to local people in the Shatian area. The Applicant claimed that the second sister also participated in setting up a bible study group on 1 August 2006.

7. The Applicant stated that the second sister and her friend were arrested and detained by the PSB from 25 May to 30 June 2007 for suspected involvement in illegal and anti-government religious organisation and activities.

8. The Applicant stated that in November 2007 many church members were subject to investigation, resulting in the second sister leaving China on a false passport at the end of November 2007.

9. The Applicant stated that both the elder sister and his second sister have been granted protection visas.

10. The Applicant stated that in early 2008 it was arranged for him to leave his home town and work in the seafood shop of a friend, Brother Yu, and to attend secret gatherings of the Local Church in the evening. The Applicant stated that, in fact, he did not attend these secret gatherings. However, the Applicant claimed that he did assist in the distribution of promotion materials of a Local Church in the residential areas around Quanzhou Nonggong vegetable market from May 2008.

11. The Applicant stated that on 20 May 2009 he and others were taken by the PSB and interrogated about the illegal religious gatherings at the shop.

12. The Applicant stated that Brother Yu immediately arranged for him to leave China on 5 June 2009.

13. In a statutory declaration, dated 29 July 2009, the Applicant expanded on his claims stating that, since 2005, his mother had allowed him to attend a youth group of the Local Church. The Applicant stated that he was arrested on 6 May 2005 while attending such a gathering and was interrogated, photographed and finger printed. Following that incident, the Applicant stated that when he was 18 years old his mother had wanted to send him to the army to find a job, however, he was refused entry because of his “negative” record with the PSB and the fact that he was a Christian.

The Delegate’s decision

1. On 23 July 2009, the Applicant attended an interview with the Delegate. The Delegate noted that at the conclusion of the interview the Applicant was invited to provide some clarification of his written claims, together with details of further oral claims made at the interview, by close of business on 29 July 2009. The Delegate noted that the Applicant made a new claim at the interview of having been detained by police on 6 May 2005 along with other church members. It was in response to that invitation that the Applicant’s statutory declaration, dated 29 July 2009 (referred to in paragraph 25 above), was received and considered by the Delegate.

2. The Delegate found that the harm the Applicant claimed to fear did not involve “serious harm and systematic and discriminatory conduct as outlined in subdivision AL of the Migration Act”.

3. The Delegate found the Applicant’s responses to questions it asked to be “vague”. The Delegate found that the Applicant displayed “poor knowledge” of the life of Jesus Christ and how the Local Church services were conducted. The Delegate also found the Applicant’s written and oral claims to be unclear and inconsistent.

4. Having regard to the Applicant’s poor education and young age, the Delegate concluded that the Applicant could not have been regarded as anymore than an “ordinary worshipper” and could not have been perceived by the PSB as a threat or a person who could ever rise to the level that he could evangelise or proselytize on behalf of the Local Church.

5. The Delegate also considered that internal relocation within China was a viable option for the Applicant. The Delegate found that the Applicant could relocate and re-establish himself in a bigger Local Church congregation where he could be “just an ordinary worshipper, of little or no interest to the authorities.”

6. In particular, the Delegate found that the Applicant’s claim that his mother tried to enrol him in the army when he was 18 years old was in contradiction to the Applicant’s claim that his father continued to be detained by the same authorities that would have employed the Applicant in the army, and from whom the Applicant claimed the family feared persecution.

7. The Delegate found that the Applicant’s principle reason for coming to Australia was to enable him to have the protection of the elder sister and the second sister (“the sisters”) in looking after him, given that he had moved out from his mother’s influence and had lost the support of Brother Yu. The Delegate concluded that the Applicant was “now seeking the support which is immediately available from his sisters here in Australia, not protection from serious harm on the ground of his religion.”

8. On 5 August 2009, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Convention.

The Tribunal’s review and decision

1. On 11 August 2009, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.

2. On 31 August 2008, the Applicant’s migration agent provided a statutory declaration from the elder sister in support of the Applicant’s review application. That statutory declaration made clear that the Applicant had been an abandoned baby and adopted in December 1988 by her family. The elder sister stated that the Applicant had never been told of his adoption. She confirmed that her father had played an active leading role in the Local Church in China and remains in prison, where he has been since April 2003. The statement ended with the words “Although my brother [the Applicant] is actually a step-child in the family, he has been subjected to persecution owing to his particular family relationship with my father, my sister [the second sister] and me.”

3. The Applicant attended two hearings before the Tribunal. The first hearing was held on 14 September 2009. He was represented at the hearing by his migration agent, Mr Harry Huang. The Tribunal noted that the second sister gave evidence by telephone from Brisbane.

4. The Tribunal noted that the Applicant had presented to it what appeared to be a family group photograph. The Tribunal noted that the Applicant said this showed him as a young boy with his parents, his four sisters, brother-in-law and a niece. The Tribunal noted that the Applicant confirmed that he had four sisters, whereas, the household registration referred to five sisters. The Tribunal noted that the protection visa application indicated that the Applicant had a fifth sister born in 1978, whereas the household registration referred to a fifth sister born in 1990. The Tribunal explored this discrepancy with the Applicant and noted the Applicant’s response that he had not understood the Tribunal’s question and had thought that the Tribunal was only interested in asking about the photograph. The Tribunal also noted that the Applicant did not know the name of his brother-in-law, stating that he refers to him only as “brother-in-law”.

5. The Tribunal noted that it asked the Applicant about his travel documents and identity papers and put to the Applicant inconsistencies in the Applicant’s responses as to the existence of those documents.

6. The Tribunal also noted that the Applicant had not told the Delegate of the names of his parents or the sisters and that this “deepened the Tribunal’s concerns about his family situation.” The Tribunal also mentioned that it may wish to conduct DNA tests to confirm the Applicant’s relationship to the sisters. It was this statement by the Tribunal that prompted the statutory declaration from the elder sister, dated 31 August 2009, stating that the Applicant had been an abandoned baby and raised by her family as their own.

7. The Tribunal found that the Applicant’s evidence was difficult to follow and confirmed with the interpreter that there were no language or dialect difficulties. The Tribunal noted that it asked the Applicant what medical treatment he had received since arriving in Australia in early June 2009 and noted the Applicant’s response that he suffers headaches and receives medication. The Tribunal noted that the Applicant may have been “nervous, suffering from some medical problem or even avoiding its questions”.

8. At this point, the Tribunal decided to adjourn the hearing. The Tribunal told the Applicant it would seek to obtain copies of the Applicant’s medical records.

9. On 14 September 2009, the Tribunal hearing resumed. The Tribunal noted that it advised the Applicant that his medical and welfare records did not identify any observed medical problems and that, in the absence of other evidence, it may doubt the genuineness of the Applicant’s claimed memory loss. The Applicant responded that he continues to suffer from headaches, poor memory and sleeplessness.

10. The Applicant stated that after the alleged assault in China in May 2005, he felt his condition worsen. However, the Tribunal also noted its concern that his recent claim had been to have received medical clearance in 2006 in his application to join the army, but to have been refused on security grounds, rather than on medical grounds.

11. The Tribunal found the Applicant’s oral evidence to be “laboured, and often sparse and disjointed.” The Tribunal found that the Applicant was unable or unwilling to answer basic questions about his activities from 1998 to 2008, whereas he was “often fluent and seemingly rehearsed” on other aspects of his claims, including critical dates.

12. The Tribunal noted that it explored with the Applicant his schooling and activities up to 2008.

13. Critically, at one stage, the Applicant stated that he had worked in Quanzhou from the age of 10 years old to earn money for his family. The Applicant then retracted this statement saying that he did not work. The Tribunal noted that its “efforts to illicit more detail yielded nothing” when it asked the Applicant what work he did in Quanzhou at a market.

14. The Tribunal noted that it put to the Applicant its concerns that he did not appear to be forthcoming about his activities in China, such as how he had earned money. The Tribunal noted that the Applicant then started to recount with more fluency the alleged incidents in 2005 and 2008 which formed the basis of his refugee claims.

15. The Tribunal also noted that it asked the Applicant what happened after his father’s release in 1998 and in the period up to 2003 when the father was detained again. The Tribunal noted the Applicant’s response “in a piecemeal manner” that he had not been allowed to see his father as the father had continued his secret church activities and his whereabouts had been kept secret. The Applicant reiterated that he had not seen his father following his detention in 1997.

16. The Tribunal noted that it put to the Applicant that it had serious concerns whether in fact the Applicant had grown up with the sisters’ family or in any Local Church family at all, given his “vague answers and lack of knowledge about his sisters, his father and the church.”

17. The Tribunal noted that the Applicant claimed to have been baptised as “a teenager”, however, was unable to give further detail as to whether he was closer to 10 or 17 years old. The Tribunal noted that it put to the Applicant that it was surprising that a person now aged 21 years could not remember, at least roughly, when he was baptised or in whose company.

18. The Tribunal also put to the Applicant that he had made no mention in his written claims in support of his protection visa application of his alleged detention in May 2005. The Tribunal noted that the Applicant had made this claim orally for the first time at the interview with the Delegate. The Tribunal noted that it put to the Applicant that the new claim may cause the Tribunal to doubt his truthfulness, given the seriousness of the claim.

19. The Tribunal also noted that it put to the Applicant its concerns about his alleged application to join the army in 2006. The Tribunal also put to the Applicant that his ability to obtain a passport in April 2007 in his own name cast doubt on his claims that his father was in detention; that the Applicant himself had been arrested and detained; or, that he had been earlier denied security clearance when allegedly applying to join the army. The Tribunal also put to the Applicant its concerns about the fact that he did not know the names of the sisters when first interviewed by the immigration officer.

20. The Tribunal had regard to the evidence of the elder sister. The elder sister said that the Applicant was baptised a long time ago that she could not recall any details. The Tribunal noted that “when pressed for details on the location of the (Local Church) gatherings, she referred vaguely to the homes of “brothers and sisters” and mentioned another village.”

1. The Tribunal also noted that it asked the elder sister about her contact with the Applicant since his arrival in Australia, noting that she did not visit him in Villawood until about 2 weeks after his transfer from Maribyrnong and that this appeared to be a long interval to visit a family member in detention. The Tribunal noted the elder sister’s response that she asked “brothers” to visit him and had been unable to visit him in Sydney earlier due to her own health problems and lack of time.

2. The Tribunal noted that it said to both the Applicant and the elder sister that there had been significant gaps in the Applicant’s evidence about his family and some discrepancies in the Applicant’s and the elder sister’s evidence. The Tribunal also put to both the Applicant and the elder sister that the elder sister had said that the father lived at home between the end of his first detention in 1998 and his second arrest in 2003; whereas, the Applicant had told the Tribunal that he had not seen his father since the first arrest in 1997. The Tribunal found the Applicant’s response to be evasive. The Tribunal told the Applicant and the elder sister that those matters could lead the Tribunal to infer that they did not grow up in the same family or that the Applicant was from a Local Church background at all. The Tribunal put to them that the elder sister’s delay in visiting the Applicant in Sydney could add to its doubts.

3. The Tribunal also took telephone evidence from the second sister, who was in Queensland, who said that the Local Church held gatherings in the family home up to the time of the father’s arrest in 1997 and that, thereafter, they met in various places, including the house opposite.

4. The Tribunal noted that, at the conclusion of the hearing, it put to the Applicant that it “had extensive concerns about his claims and evidence.”

5. On 4 December 2009, the Tribunal wrote to the Applicant inviting comments or responses in writing to potentially adverse information. The Tribunal identified the information as relating to:

   a)the Applicant’s inconsistent evidence;

   b)inconsistent and vague evidence from his witnesses;

   c)concerns relating to his family membership;

   d)concerns relating to his religious practice in China;

   e)concerns relating to his education and employment in China;

   f)concerns relating to his passport and other official documents; and,

   g)concerns relating to his health status.

   The Tribunal also gave to the Applicant its draft summary of the oral evidence from the hearing for comment as the Tribunal found that it had some difficulty in obtaining clear answers.

6. On 16 December 2009, the Tribunal received a response to its letter which it accurately summarised in its decision record

Tribunal’s findings

1. A fair reading of the decision record makes clear that the Tribunal gave thoughtful consideration to the Applicant’s competency to give evidence. After carefully reviewing all the evidence before it, the Tribunal found that there was “no psychiatric condition, psychological disorder or an intellectual disability that can be said to have impaired [the Applicant’s] ability to give evidence.”

2. The Tribunal found the Applicant to have given an untruthful account of his family situation, education and employment in China.

3. In particular, the Tribunal did not accept that the Applicant grew up in the same household as the elder sister and the second sister. In making that finding, the Tribunal noted that the Applicant “was unwilling or unable, on arrival in Australia, to name his claimed parents, to give their address or to name his siblings.” The Tribunal did not accept the Applicant’s explanation that he was distrustful of officials.

4. The Tribunal also found the Applicant’s evidence and conduct at the hearing reinforced the Tribunal’s concerns about the truthfulness of his evidence in relation to his family situation.

5. The Tribunal found the Applicant’s evidence about his inability to name the brother-in-law in the family photograph as “markedly evasive about his identity.”

6. The Tribunal had some doubts about the authenticity of the household registration in its entirety, taking into account the Applicant’s past reliance on his false Hong Kong passport. The Tribunal noted that, even on the Applicant’s own evidence, the household registration contained at least one inaccurate entry, being the details relating to the existence of a fifth daughter. The Tribunal found that, even if the household registration is genuine, it may contain false information. However, the Tribunal noted that, even if it took the household registration at face value, the issue remained of whether the Applicant lived with the family since 1998, or is perceived to be a part of it.

7. The Tribunal was prepared to accept that the Applicant has an association with the sisters in that he either lived with, or near, that family for some time or visited them regularly when he was younger. The Tribunal accepted that he may have been informally adopted by the family.

8. However, critically, the Tribunal did not accept that the Applicant had lived with the family for the last 10 years as an adoptive son or in any other capacity. The Tribunal’s concerns about that issue were highlighted by what it found to be the Applicant’s “lack of candour about his past” and the inconsistencies in his evidence, particularly, that he had worked in the seafood industry and a vegetable market in Quanzhou since the age of 10 years.

9. The Tribunal concluded that the Applicant had not been a member of the sisters’ household since at least 1998. Accordingly, the Tribunal found that there is no real chance of the Applicant being attributed with an adverse profile based on religion or for any other reason arising from his association with the sisters or any member of their family.

10. The Tribunal was prepared to accept that there may have been some shared religious experience in China between the Applicant and his witnesses. However, the Tribunal found the Applicant’s evidence to be “quite vague and tentative, and even changeable.”

11. The Tribunal found the Applicant’s “evasive and vague evidence” about his baptism of particular concern. The Tribunal’s concerns were not allayed by the post hearing submission that the Applicant was baptised in 2004 aged 16 years, having regard to the significant difficulty that the Applicant had in being more precise or in describing those present at the baptism during the hearing.

12. The Tribunal found that the Applicant was unable to adequately explain discrepancies and significant gaps in his evidence that were put to him by the Tribunal both at the hearing and in writing. The Tribunal found that the Applicant was not a witness of truth and did not accept he was a committed Christian. Neither did the Tribunal accept that he was a member of household of Local Church members, nor that he was ever baptised.

13. The Tribunal had particular regard to the fact that the Applicant made no mention of an arrest and detention in May 2005 in his protection visa application in circumstances where the application contained “considerable detail”. The Tribunal found that, in the circumstances, the claim was “a recent invention”. Accordingly, the Tribunal rejected the Applicant’s claims of arrest, detention and finger printing in May 2005. In making that finding, the Tribunal had regard to the Applicant’s ability to obtain a Chinese passport in April 2007. Further, the Tribunal did not accept that the Applicant was unable to use his passport for persecution related reasons.

14. The Tribunal found that “at most” the Applicant had a very limited interest in Christianity in Fujian and did not accept that he is an active practitioner or a member of any church or similar group. The Tribunal accepted that the Applicant had some familiarity with Christianity in Fujian, however, had regard to the fact that there are a large number of Christians in that province.

15. Further, the Tribunal was satisfied that, based on country information before it about Fujian’s religious demography and general tolerance, the Applicant could learn more about Christianity if he wished without being at risk of persecution or having to modify his conduct so as to avoid persecution.

16. The Tribunal concluded that there is not a real chance of the Applicant being persecuted for reasons of being a Local Church member, a member of a family associated with the Local Church, or for any other Convention related reason.

17. Accordingly, the Tribunal affirmed the decision under review.

The proceeding before this Court

1. The Applicant was unrepresented before this Court, although had the assistance of a Mandarin interpreter. 

2. On 18 February 2010, the Applicant attended a directions hearing before me and was given leave to file and serve an amended application, giving complete particulars of each ground of review relied upon, any further evidence, including any transcript of the Tribunal hearing, and written submissions in support of his application.

3. At the directions hearing, the Court referred the Applicant to the Court’s legal advice scheme for free legal advice. The Applicant has participated in the Court’s legal advice scheme and received advice. I also provided to the Applicant, headed in his own language, the contact details of legal services providers and interpreting and translation services.

4. At the commencement of the hearing, the Applicant confirmed that he relied on the grounds contained in the application filed on 15 January 2010 as follows:

   “1. The Tribunal failed to provide me a fair opportunity to present my arguments relating to the issues arising in relation to the decision under review and that the Tribunal failed to comply with its obligations under the Migration Act 1958 (“the Act”) such as Section 425 of the Act.

   2. The Tribunal ignored or failed to consider a claim I made to it;

   3. The Tribunal misunderstood my claim or made a mistake in relation to an important finding of fact;

   4. The Tribunal failed to consider my evidence on an unprejudiced view or the Tribunal’s finding has included a reasonable apprehension of bias; and,

   5. The Tribunal failed to consider my evidence properly and fairly.”

5. Each of the grounds was interpreted for the assistance of the Applicant and the Applicant was invited to make submissions in support of each of the grounds and in support of the application generally.

6. On 15 March 2010, the Applicant filed written submissions in support of his application. However, no other documents were filed by or on behalf of the Applicant.

7. At the commencement of the hearing, I asked the Applicant to confirm that the only documents he had filed in support of his application were the affidavit, sworn 15 January 2010, annexing the Tribunal’s decision record and his written submissions, filed on 15 March 2010. The Applicant replied that he had also filed a photograph of his family. I informed the Applicant there was no such document on file. I then asked the Applicant to confirm that the photograph to which he was referring was the one that was reproduced in the bundle of relevant documents, filed 22 February 2010, marked Exhibit 1R. The Applicant confirmed that was the photograph he had sought to file with the Court. Again, I told the Applicant there was no such photograph filed but that, in any event, it was not relevant to the issue before the Court.

8. At this point, the Applicant became profoundly distressed. The Applicant began breathing heavily and wailing. I adjourned the Court briefly for several minutes to enable the Applicant to compose himself and to meet with the sisters who had attended Court as supporters. The Applicant continued to be distressed and remained in a conference room next to the Court.

9. When Court resumed, I asked the elder sister if she would consent to act as litigation guardian and meet with the Applicant to ask if he would agree to her being appointed as his litigation guardian. I also asked the elder sister to convey to the Applicant that he was welcome to represent himself, if he was able to do so in a relatively composed manner. The elder sister then returned to Court and informed the Court that the Applicant agreed to her appointment as his litigation guardian. The elder sister also confirmed that she had no interest in the proceeding adverse to that of the Applicant. The first respondent consented to her appointment as litigation guardian for the Applicant. Accordingly, those orders were made by the Court. I gave the elder sister a further opportunity to meet with the Applicant to inform him that he was welcome to return to the Court room or to remain in the conference room with the second sister or to return to Villawood. The elder sister informed the Court that the Applicant wished to remain in the conference room with the second sister during the hearing of his matter.

10. The elder sister also required the assistance of the interpreter. The grounds of the application and the written submissions of the First Respondent were then interpreted for her assistance.

Ground 1 – “The Tribunal failed to provide me a fair opportunity to present my arguments relating to the issues arising in relation to the decision under review and that the Tribunal failed to comply with its obligations under the Migration Act 1958 (“the Act”) such as Section 425 of the Act”

1. At the heart of the Applicant’s written submission and complaint to the Court was his disagreement with the Tribunal’s decision that he was not a member of the sisters’ family. The Applicant submitted that the Tribunal’s rejection of that assertion demonstrated “a strong bias” and the Tribunal failed to consider his “evidences properly and fairly.” In support of that allegation the Applicant referred to the assertions of the sisters that he was in fact their brother and the fact that he had submitted a family photograph to prove that relationship. This is the particular that I understand underpins all the Applicant’s grounds and complaints.

2. The elder sister reiterated the same complaints to the Court saying that the Tribunal had insisted that the Applicant is not their brother and that the Tribunal had made a mistake in that regard. The elder sister said that everything had been put in the application and that the Tribunal had not properly assessed the claims because it had a strong bias against the Applicant. She told the Court that the photograph had been taken in 2002 and that the Applicant’s identification card and household registration had also been provided to the Tribunal which proved that the Applicant is their brother because it had the same address.

3. However, as is clear from the detailed analysis of the Tribunal’s decision record above, the Tribunal had regard to all the evidence and material given to it by the Applicant in support of his claims to be a member of the same household as the sisters. The Tribunal was prepared to accept that the Applicant may have been informally adopted by the family. However, as stated above, critically, the Tribunal did not accept that the Applicant had been a member of that household for the past 10 years, being the relevant period of the claimed persecution of sisters’ family. The Tribunal found that the Applicant lacked candour about his past and had not given a truthful account “at all”. The Tribunal concluded that the Applicant did not grow up in the sisters’ family.

4. As stated above, the Tribunal found the Applicant’s evidence to be untruthful, vague, inconsistent, evasive, and subject to change. A fair reading of the Tribunal’s decision record makes clear that the Tribunal gave careful consideration to the Applicant’s claimed medical problems and difficulties and, ultimately, found that there was no medical condition that prevented the Applicant from giving evidence at the hearing.

5. A fair reading of the Tribunal’s decision record makes clear that the Tribunal put to the Applicant, both at the hearing and in writing following the hearing, the concerns it had about the Applicant’s evidence and that of the sisters in relation to the Applicant’s claim to fear harm by reason of being a member of the sisters’ family. The Tribunal gave careful consideration to the Applicant’s responses both oral and written. Ultimately, the Tribunal was not persuaded by those explanations.

6. A fair reading of the Tribunal’s decision record makes clear that the Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).

7. The Applicant’s complaint about the findings and conclusions of the Tribunal are more in the nature of disagreements with the Tribunal’s adverse findings and conclusions. Such complaints invite merits review which this Court cannot undertake (Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Abebe v Commonwealth of Australia (1999) 162 ALR 1 at 53-54).

8. To the extent that the Tribunal had regard to country information relating to the tolerance of Christianity in Fujian, it is a matter for the Tribunal the country information to which it has regard and the weight it gives that information (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFA 10 at [11] per the Court (Gray, Tamberlin and Lander JJ)).

9. Otherwise, the information which formed part of the Tribunal’s reason for affirming the decision under review was information given by the Applicant for the purposes of his review application.

10. The Tribunal invited the Applicant to come to a hearing to give evidence and present arguments relating to the issues arising in relation to the decision under review in accordance with s.425 of the Act. Because of the initial concerns of the Tribunal about the ability of the Applicant to give evidence, the Tribunal stood the hearing over to enable it to satisfy itself about the Applicant’s competence to give evidence. Before adjourning, it also put the Applicant on notice that it had “serious concerns about his family composition” at the end of that first hearing.

11. A fair reading of the Tribunal’s decision record makes clear that the Tribunal was careful to raise with the Applicant every concern it had about his evidence and to give the Applicant every opportunity to respond both at the hearing and in writing. The Tribunal also heard from the Applicant’s witnesses and regularly from the Applicant’s migration adviser during the hearings.

12. In the circumstances, the allegations in ground 1 that the Tribunal failed to provide a fair opportunity to the Applicant to present his arguments and that the Tribunal breached s.425 of the Act are not made out.

Ground 2 – “The Tribunal ignored or failed to consider a claim I made to it”

1. To the extent that ground 2 makes the bare assertion that the Tribunal ignored or failed to consider a claim the Applicant made, there was no claim particularised by the Applicant or his litigation guardian beyond the complaint dealt with above. A fair reading of the Tribunal’s decision record makes clear that the Tribunal accurately summarised all the written evidence of the Applicant and considered all claims made by the Applicant that reasonably arose on the material and evidence before it.

2. Accordingly, ground 2 is not made out.

Ground 3 – “The Tribunal misunderstood my claim or made a mistake in relation to an important finding of fact”

1. Ground 3 asserts that the Tribunal misunderstood the Applicant’s claim or made a mistake in relation to an important finding of fact. As stated above, a fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the Applicant’s claims.

2. Ground 3 asserts that the Tribunal made a mistake in relation to an important finding of fact. Again, I understand that complaint to be that the Tribunal failed to accept that the Applicant is a member of the family of the sisters. However, that assertion misunderstands and misstates the Tribunal’s reasons. As referred to above, the Tribunal accepted that the Applicant may have been informally adopted by the sisters’ family. However, the Tribunal found that the Applicant had not been a member of that household for, at least, the past 10 years and that the Applicant did not grow up in the family, in that he worked in Quanzhou since age 10. The relevant past persecution is alleged to have taken place since the Applicant turned 10 years old.

1. The Tribunal also rejected the Applicant’s claim of ever having been arrested or detained or fingerprinted in May 2005 or rejected by the army on security grounds when he turned 18 years old. Those findings were open to the Tribunal on the evidence and material before it and for the reasons it gave.

2. There is no other claim or fact that either the Applicant or his litigation guardian asserts that the Tribunal misunderstood or mistook and none is apparent on the face of the decision record.

3. Accordingly, ground 3 is not made out.

Ground 4 – “The Tribunal failed to consider my evidence on an unprejudiced view or the Tribunal’s finding has included a reasonable apprehension of bias”

1. Ground 4 alleges the unparticularised allegation of “a reasonable apprehension of bias”. This ground has been largely addressed in ground 1 above to the extent that the allegation arises out of the Applicant’s mistaken complaint that the Tribunal erroneously failed to find that the Applicant was a member of the sisters’ family.

2. Otherwise, to the extent that ground 4 alleges bias by the Tribunal against the Applicant, such a claim is serious and requires evidence. Further, it is a rare and exceptional case where bias can be demonstrated solely from the published reasons of a decision. Similarly, the mere fact that the Tribunal makes adverse findings in respect of the Applicant does not give rise to an inference of bias or, by itself, suggest that the decision-maker approached its task other than with a mind open to persuasion (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]).

3. There was no transcript of the Tribunal hearing provided to this Court, nor did the Applicant provide any evidence to this Court to suggest that the Tribunal’s decision record is not accurate. At the directions hearing on 18 February 2010, the Applicant was given an opportunity to file a transcript of the Tribunal hearing. The Applicant was directed to ensure any such transcript was verified by affidavit. The Applicant was also directed to give notice if he wished to rely on recordings of the hearing, however, no step was taken by the Applicant to rely on any such evidence. In the circumstances, the Court accepts as accurate the Tribunal’s summary of the oral evidence given by the Applicant and exchanges it had with the Applicant at the Tribunal hearings.

4. A fair reading of the Tribunal’s decision does not disclose any prejudgment on the part of the Tribunal in the sense that the Tribunal was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented.” (Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 at [69], [71]-[72], [127]).

5. A fair reading of the Tribunal’s decision does not suggest that the Tribunal approached its task other than open with a mind open to persuasion. There is no evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind in determining the application for review (Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 at [27]-[32]; NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115]).

6. Accordingly, the allegation of bias or apprehended bias is rejected.

7. There was no other evidence identified by the Applicant or his litigation guardian that either asserted the Tribunal had failed to consider properly and fairly and none is apparent on the face of the decision record.

8. Accordingly, ground 4 is not made out.

Ground 5 – “The Tribunal failed to consider my evidence properly and fairly.”

1. Ground 5 makes the bare assertion that the Tribunal failed to consider the evidence properly and fairly.

2. The litigation guardian confirmed to the Court that, in making that complaint, the Applicant was again disagreeing with the Tribunal’s findings and conclusions, particularly in relation to its finding about the Applicant’s relationship with the sisters and their family. There was no other complaint or particular made by the Applicant beyond that assertion in support of Ground 5.

3. A fair reading of the Tribunal’s decision record makes clear that the Tribunal considered all evidence and material given by the Applicant, including from his witnesses and adviser. When, at the first hearing, the Applicant raised health issues, the Tribunal adjourned in order to satisfy itself as to the Applicant’s ability to give evidence. The Tribunal put its concerns to the Applicant orally at both hearings and again in writing following completion of the second hearing. The Tribunal also invited the Applicant to provide further information about his health status and gave him a draft summary of the evidence for comment. The Tribunal summarised and considered the Applicant’s written responses given in a post hearing submission dated 16 December 2009. As stated above, the Tribunal’s findings and conclusions of that issue were open to the Tribunal on the evidence and material before it and for the reasons it gave.

4. As stated above, the Applicant’s complaints about adverse findings invite merits review which this Court cannot undertake. They do not establish that the Tribunal failed to consider the Applicant’s evidence properly or fairly.

5. In the circumstances, the Tribunal considered the Applicant’s evidence in accordance with its statutory obligations.

6. Accordingly, ground 5 is not made out.

Conclusion

1. A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant at two hearings; and, had regard to all material provided in support. The Tribunal put to the Applicant matters of concern it had about his evidence at both hearings, both orally and in writing. The Tribunal noted and had regard to the Applicant’s responses, both written and oral. The Tribunal made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.

2. In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

3. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

4. The proceeding before this Court should be dismissed with costs.

I certify that the preceding one hundred and twenty-three (123) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate:  S. Kwong

Date:  14 April 2010