SZOCR v Minister for Immigration
[2010] FMCA 515
•3 September 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOCR v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 515 |
| MIGRATION – Visa – Protection (Class XA) visa – review of RRT decision – citizen of China claiming fear of persecution on the ground of religion – whether Tribunal misstated or distorted the applicant’s claims and evidence – whether decision was affected by jurisdictional error because of irrationality, illogicality or unreasonableness – credibility issues – claim of apprehension of bias – merits review – no jurisdictional error. |
| Migration Act 1958 (Cth), ss.65, 91R, 424A, 425, 474, 476 |
| Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 Minister for Immigration and Multicultural Affairs v SGLB (2004) 207 ALR 12; 78 ALJR 992; [2004] HCA 32 NAYU v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 528 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 SZEPZ v Minister for Immigration and Multicultural Affairs [2006[ FCAFC 107 SZMDS v Minister for Immigration & Anor [2008] FMCA 1064 SZMDS v Minister for Immigration and Citizenship [2009] FCA 210 |
| Applicant: | SZOCR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 138 of 2010 |
| Judgment of: | Scarlett FM |
| Hearing date: | 1 June 2010 |
| Date of Last Submission: | 1 June 2010 |
| Delivered at: | Sydney |
| Delivered on: | 3 September 2010 |
REPRESENTATION
| Applicant: | Appeared in person |
| Solicitor for the Respondents: | Ms Rayment |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 138 of 2010
| SZOCR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant is a citizen of the People’s Republic of China who has applied for review of a decision of the Refugee Review Tribunal made on 28th December 2009. The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Citizenship not to grant the Applicant a Protection (Class XA) visa.
In his application, the Applicant seeks the following declarations and orders:
a)A declaration that the Tribunal decision was invalid and contrary to law;
b)An order quashing or setting aside the Tribunal decision;
c)An order remitting the matter to a differently constituted Tribunal for determination according to law;
d)An order for costs; and
e)Such other order as the Court sees fit.
The Applicant relies on the following grounds:
i)The Tribunal misstated or distorted his important claims or evidence; and
ii)The Tribunal’s decision was infected with jurisdictional error in that the reasoning process employed by the Tribunal reveals irrationality, illogicality and/or unreasonableness.
The Applicant supplied lengthy particulars of those grounds in his application.
Background
The Applicant arrived in Australia on 11th November 2007. He applied for a Protection (Class XA) visa on 9th June 2009.
In his application for a protection visa, the Applicant claimed that he originally came to Australia to look after his daughter, who was studying in Australia. However, due to his active involvement in the Local Church, known as the “Shouters”, which has been regarded as an anti-government and illegal Christian church by the Chinese authorities, he had to leave China to escape from persecution.
The Applicant claimed that he and his wife ran a business in China. A male staff member had three daughters and had suffered financial penalties due to the Chinese government birth control policy. The man’s wife was in poor health and suffered from depression. The Applicant stated that he arranged for a relative, who was a Christian, to help them. The Applicant’s employee and his wife started to attend Local church gatherings and eventually the wife’s health improved.
The Applicant claimed that he attended a Local Church gathering in October 2005 and, thereafter, began to attend worship on a regular basis. He was subsequently baptised as a Christian on 19th January 2006.
The Applicant claimed that he and his wife began delivering “Recovery Version Bibles” and Local Church promotional materials when they delivered supplies to their customers. On 1st June 2006 the Applicant’s employee was arrested while delivering bibles and was detained and interrogated by the police. The Applicant claimed that he was subsequently interrogated by the police on four occasions.
In October 2007 the Applicant claimed that his relative and his assistant were arrested and he feared that his involvement would be exposed, so he left China on 10th November 2007. He claimed that he was later put on a “black list” by the PSB and his wife has been harassed by the police. He claimed that the PSB sealed his business in February 2008.
The Applicant used the services of a migration agent, Mr Harry Huang of Pricilla International Co. Pty Ltd, of Haymarket NSW.
The Applicant was invited to attend an interview with an officer of the Department of Immigration and Citizenship on 24th August 2009. He attended the interview and produced a reference from the Local Church in Sydney, confirming that he had been attending regularly since January 2008, and translations of three summonses dated 5th, 8th and 20th June 2006, under the heading of the Changle Municipality Public Security Bureau.
On 4th September 2009 the Department of Immigration and Citizenship wrote to the Applicant, advising him that his application for a protection visa had been refused.
In the Protection (Class XA) Visa Decision Record, which appears to be undated but accompanied the letter of 4th September advising the Applicant that his visa had been refused, the Minister’s Delegate accepted that the Applicant is a Christian, as he claimed, but was not satisfied that country information supported his claim that members of the Local Church or Shouters in Fujian are persecuted. The delegate reviewed the information and stated:
In general, while there have been occasional crackdowns on autonomous Protestant communities and clandestine Catholics in Fujian, there are reports that there is a high degree of religious tolerance...[1]
Information indicates that local officials have great discretion in determining whether ‘house churches’ violate regulations and that prayer meetings and Bible study groups held among friends and family in homes are legal and need not register. The same source states that in some parts of the country, unregistered house churches with hundreds of members meet openly with the full knowledge of local authorities.[2]
[1] Court Book at page 54
[2] Court Book at 54-55
The delegate, whilst accepting that the Applicant is a Christian as he claimed, was not satisfied that he had demonstrated that he was in an organisational or influential role in his local church or that he possessed a Christian profile that was of concern to Chinese authorities.
The delegate also gave these reasons for not accepting the Applicant’s claims:
a)He was able to leave China legally, using his own passport;
b)The delegate was not satisfied that the summonses were genuine; and
c)The Applicant delayed making an application for a protection visa for more than eighteen months after arriving in Australia.[3]
[3] Court Book at 55
Application to the Refugee Review Tribunal
After his application for a protection visa was refused, the Applicant sought a review of the delegate’s decision from the Refugee Review Tribunal. His application was received on 25th September 2009. He did not provide any additional documentation when he filed his application for review.
The Tribunal wrote to the Applicant on 12th October 2009, inviting him to attend a hearing on 9th November 2009. The Applicant’s migration agent faxed the Applicant’s Response to Hearing Invitation to the Tribunal on 15th October, advising that the Applicant wished to attend and would need the services of a Mandarin interpreter. He did not request that any other person be called as a witness.
The Applicant attended the Tribunal hearing on 9th November 2009 accompanied by his migration agent, Mr Huang, and his brother-in-law, whom he sought to call as a witness. He gave evidence with the aid of a Mandarin interpreter. His brother-in-law also gave evidence. Mr Huang made an oral submission to the Tribunal.
After the hearing, on 23rd November 2009, the Applicant’s migration agent forwarded to the Tribunal a statutory declaration by the Applicant and some religious literature.
The Refugee Review Tribunal Decision
The Tribunal made its decision on 28th December 2009 and notified the Applicant on 30th December. The Tribunal affirmed the decision not to grant the Applicant a Protection (Class XA) visa.
In its Decision Record, the Tribunal set out, under the heading “Claims and Evidence”:
a)The material in the application for a protection visa;
b)The Applicant’s evidence at the Departmental interview;
c)The Applicant’s evidence at the Tribunal hearing;
d)The Applicant’s post-hearing statutory declaration; and
e)Independent country information from:
i)Dr Jonathon Chao about the Shouters; and
ii)Witness Lee, in his tract Pray-Reading the Word.
The Tribunal’s Findings and Reasons
In its Findings and Reasons, the Tribunal noted that it had put to the Applicant in the course of the hearing that there were good reasons to reject the Applicant’s testimony on credibility grounds, especially relating to his lack of knowledge about a practice of the Local Church called ‘pray reading’, which involves breaking up a passage of scripture into short phrases and interjecting “Oh Lord” or “Lord Jesus” or some short prayer as the phrases are read out. The Tribunal said:
When I raised this with the Applicant in the course of the hearing before me it became apparent that he had no idea what was involved in pray reading.[4]
[4] Court Book 125 at paragraph [77]
The Tribunal asked the Applicant’s brother in law about pray reading and he said that they read out a passage once and then they shouted out the Lord’s name loudly.
The Tribunal went on to find:
As I put to the Applicant, what he said to me in the course of the hearing before me with regard to his understanding of ‘pray reading’ suggests to me that he is not in fact a genuine adherent of the Local Church as he claims.[5]
[5] Ibid at 126 paragraph [81]
The Tribunal also considered the delay by the Applicant in applying for a protection visa, stating:
The Applicant claims that on 1 October 2007 his distant relative Mr A[6] and Mr A’s assistant, Ms B, were arrested, that Ms B eventually confessed everything. He claims that it was in this way that the PSB found out about his active role in the Local Church and he said that at the hearing before me that his wife had told him this on the telephone about a month after he had arrived in Australia. Since he arrived in Australia in November 2007 this suggests that he learned of these events in around December 2007. However he did not apply for a protection visa until around 18 months later, in June 2009.[7]
[6] Name not published
[7] Ibid at [82]
The Tribunal referred to the Applicant’s two explanations for the delay, but was not persuaded by either of them:
I do not consider that either of the explanations which the Applicant has advanced are adequate to explain the fact that he delayed for 18 months before applying for a protection visa and I consider that this suggests that his claimed fear of being persecuted is not genuine.[8]
[8] Court Book at 127 paragraph [85]
The Tribunal was not satisfied that the copies of three summonses produced by the Applicant were genuine, noting that they referred to the Local Church as an “illegal church”, when the Tribunal considered that the Chinese authorities regard the Local Church or the “Shouters” as an “evil cult” and the administrative strategy of the Communist Party is to refer to organisations of thus type as “cults”. The Tribunal was not persuaded by the explanation of the Applicant’s migration agent, Mr Huang, that the PSB in Changle may have been confused by the terms:
As the applicant himself conceded, the Chinese Government uses the term ‘evil cult’ as part of a deliberate strategy when dealing with organisations like the Local Church or Falun Gong. I do not accept that the PSB in Changle would be confused as to the meaning of these terms nor that they would have referred to him participating in illegal church activities to make the summons sound better.[9]
[9] Ibid at paragraph [88]
The Tribunal did not accept that the Applicant was telling the truth about his involvement in the Local Church in China. Again, the Tribunal did not accept that, if the Applicant had genuinely feared persecution if he returned to China as a result of the news he claimed that he received from his wife about a month after he arrived in Australia, he would have waited for a further 18 months before applying for a protection visa.
Because the Tribunal did not accept that the Applicant was telling the truth about his involvement with the Local Church in China, or that he had already become a Christian and had played an active role in the Local Church, it was not satisfied that he had engaged in his conduct in attending the Local Church in Australia otherwise than for the purpose of strengthening his claim to be a refugee. The Tribunal therefore disregarded that conduct, as the Tribunal Member warned the Applicant at the hearing:
As I explained to him, I am required to disregard any conduct engaged in by an applicant for refugee status in Australia unless I am satisfied that the person has engaged in the conduct otherwise than for the purpose of strengthening their claim to be a refugee (see subsection 91R(3) of the Act).[10]
[10] Court Book 128 at [92]
In summary, the Tribunal did not accept the Applicant’s claims that:
a)He was ever suspected of participating in illegal church activities or in the Local Church in China;
b)That he was ever summoned, interrogated, beaten, punished or mistreated by the PSB;
c)That his wife had been continually harassed by the PSB;
d)That his business was sealed by the PSB;
e)That his wife is a Christian; or
f)That she attended gatherings of the Local Church in China with him.[11]
[11] Court Book 129 at [95]
Consequently, the Tribunal did not accept that there was a real chance that:
…if the Applicant returns to China now or in the reasonably foreseeable future, he will be arrested, detained or otherwise persecuted for reasons of his real or perceived religious beliefs or for reasons of his membership of the particular social group constituted by his family.[12]
[12] Ibid
The Tribunal concluded that the Applicant did not have a well-founded fear of persecution for a Convention reason on return to China and therefore was not a person to whom Australia has protection obligations under the Refugees Convention. As the Tribunal found that he did not satisfy the criterion in s.36(2) (a) of the Act, the Tribunal affirmed the decision not to grant the Applicant a Protection (Class XA) visa.
Application for Judicial Review
The Applicant filed an application for judicial review and an affidavit in support on 25th January 2010.
The First Respondent, the Minister for Immigration and Citizenship, filed a Response on 3rd February 2010, stating that the application invites the Court to undertake a review of the merits of the Tribunal’s decision, which is no part of the function of the Court (Minister for Immigration and Ethnic Affairs v Wu Shan Liang[13] at 272; NAHI v Minister for Immigration and Multicultural and Indigenous Affairs[14]). The Minister also claims in the response that the application does not establish any jurisdictional error in the Tribunal decision.
[13] (1996) 185 CLR 259
[14] [2004] FCAFC 10
The Applicant filed a written submission on 21st May. He did not amend his application.
The Applicant attended Court on the day of the hearing and made an oral submission.
Submissions
The Applicant’s submission refers to different grounds from those set out in the application. His written submission claims:
1.This is submitted that the Refugee Tribunal (“the Tribunal”) failed to bring an impartial mind to the determination of my review application.
2.This is submitted that the Tribunal made its finding incorrectly.
It would appear that the Applicant’s claim that the Tribunal failed to bring an impartial mind to the determination amounts to a claim of apprehension of bias.
The Applicant’s submission claims that during the Tribunal hearing he answered most of the Tribunal’s questions correctly, and:
Even if the Tribunal may have different understanding of “Pray reading” according to his opinions, it is definitely not open for the Tribunal to reject my evidence that I have been an active member of the Local Church in China and that I have played an important role in the organisation of the Local Church in China.[15]
[15] Applicant’s written submission page 1
As to the second ground in the submission, that the Tribunal made its finding incorrectly, the Applicant submits that the Tribunal’s finding about his delay in applying for a protection visa shows that the Tribunal has “obviously, or maybe intentionally,” confused his evidence. He reasserts his claim that he is a wanted man in China, so everyone in Australia would know his situation as well as his daughter’s family background.
Further, he denied the Tribunal’s assertion that he attempted to avoid the Tribunal’s question about why he thought that other people would have come to know that he had applied for a protection visa. He stated:
Actually, it was because that I had completely confused by the Tribunal’s finding that I have mentioned above.”[16]
[16] Ibid, page 2
In his application, the Applicant gave two grounds.
First, he claimed that the Tribunal misstated or distorted his important claims or evidence.
In the particulars of that ground, the Applicant denies that he made the claim at the Tribunal hearing about pray reading involving singing, and quotes from the statutory declaration he submitted after the hearing.
The Applicant reaffirmed his explanation given in his statutory declaration about the delay in making an application for a protection visa. He quoted several passages from that statutory declaration and said that the Tribunal had obviously his claims in paragraph 84 of its decision.
The Applicant referred to the copies of the three summonses he had submitted to the Tribunal, saying that he had never ever given evidence that the PSB used the term “illegal church” instead of “evil cult” in the summonses because they wanted to make the summonses sound better. Again, he quoted from relevant passages in his statutory declaration.
The Applicant’s second ground claims that the Tribunal’s decision was infected with jurisdictional error in that the reasoning process employed by the Tribunal in reaching its decision revealed irrationality, illogicality and/or unreasonableness.
The particulars of that claim are that it is obviously irrational, illogical and unreasonable to:
a)Deny the Applicant’s active involvement in the Local Church in China based solely on a different understanding of the term “pray reading”; and
b)Reject copies of three summonses solely on the basis of the term “illegal church” instead of “evil cult”, especially as this was a mistake made by the PSB and not by him.
The solicitor for the Minister submitted that the Applicant’s first ground of review, that the Tribunal “misstated or distorted” his claims or evidence, essentially disagrees with the Tribunal’s factual findings in relation to:
a)The Applicant’s knowledge of “pray reading”;
b)His delay in applying for protection; and
c)The veracity of the summonses that the Applicant submitted.
It is submitted that there is no evidence to support the Applicant’s contention that the Tribunal misstated or mischaracterised the evidence that he gave at the hearing. The only record of what happened at the hearing is the summary in the Tribunal decision. No transcript was filed.
Again, whilst the Applicant referred to the statutory declaration he provided to the Tribunal after the hearing, the Tribunal was under no obligation to accept, uncritically, the Applicant’s claims and evidence. In determining whether an applicant has a well-founded fear of persecution, the Tribunal is entitled to resolve questions of credit, attribute weight to particular evidence and consider the inherent improbability of events. This ground is seeking impermissible merits review of the Tribunal’s decision (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang[17]).
[17] Supra at 281, 272
As to the Applicant’s second ground of review, that the Tribunal decision was infected with jurisdictional error in that the reasoning process employed by the Tribunal in reaching its decision reveals irrationality, illogicality and/or unreasonableness, Ms Rayment, who appeared for the Minister submitted that the ground was misconceived. The Tribunal did not reject the Applicant’s claims based solely on his knowledge of pray reading, but also because of his lengthy delay in applying for protection in Australia. The Tribunal did not consider that either of the explanations given by the Applicant was adequate to explain the delay.
Again, it was submitted that there was no basis to find that it was irrational, illogical or unreasonable for the Tribunal to reject the summonses that the Applicant had submitted. The Tribunal ultimately concluded that it would afford the summonses no weight, but it did not simply reject those documents on the basis of its view of the Applicant’s credibility; it assessed them independently and relied on its concerns about their content to afford them no weight.
Whilst the Applicant asked the Tribunal to confirm the authenticity of the summonses with the relevant authorities, the Tribunal refused to do so. It was under no obligation in the circumstances of the case to make further inquiries (see Minister for Immigration and Multicultural Affairs v SGLB[18]) and had no duty to investigate the Applicant’s claims (NAYU v Minister for Immigration and Multicultural and Indigenous Affairs[19]).
[18] (2004) 207 ALR 12; 78 ALJR 992; [2004] HCA 32
[19] [2004] FCA 528
Ms Rayment referred the Court to the recent decision of the High Court in Minister for Immigration and Citizenship v SZMDS[20]. The issue in that case was whether the Tribunal fell into jurisdictional error because of its determination that the Applicant before it was not a refugee was based on illogical or irrational findings or inferences of fact.
[20] [2010] HCA 16
In that case, Crennan and Bell JJ held that “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean that the Tribunal decision was one at which no rational or logical decision maker could arrive on the same evidence. Their Honours held at [131]:
What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evide4nce upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
It was submitted that in the case under review for the Tribunal to come to the conclusion that it did, including the Applicant’s oral evidence. The Tribunal did a very good job of explaining to the Applicant the problems that he had to meet but, in the end, was not persuaded. This, it is submitted, is not illogicality.
As to the Applicant’s claim that the Tribunal failed to bring an impartial mind to the determination, it was submitted that the Applicant had a heavy onus to meet in proving that claim. The fact that the Applicant was dissatisfied with the outcome does not point to bias.
Conclusions
The first point to be made is one that has been made many times before. In his application, the applicant seeks an order that his matter “be remitted to a differently constituted Tribunal to be determined in accordance with the law”.
As has been said on many occasions before, it is doubtful that the Federal Magistrates Court has power to make an order of that nature. It is for the Principal Member of the Refugee Review Tribunal to determine the constitution of the Tribunal for the purposes of a particular review. Whilst the Court has the power to remit an application to the Tribunal by way of an order in the nature of mandamus, the Full Court of the Federal Court has, in SZEPZ v Minister for Immigration and Multicultural Affairs[21], cast considerable doubt on the proposition that this Court has any power to make an order that the Tribunal be differently constituted.
[21] [2006] FCAFC 107
The Applicant’s first ground claims that the Tribunal misstated or distorted his important claims or evidence.
As has been submitted on behalf of the Minister, the Applicant has not produced a transcript of the Tribunal hearing, so the only evidence of the way the hearing was conducted comes from the Decision Record itself.
The Tribunal set out in the decision record a summary of the Applicant’s evidence.[22] The Applicant’s application merely contains numerous denials that he said what the Tribunal set out that he said, referring to various paragraphs of his post-hearing statutory declaration. The Tribunal provided a summary of that evidence in the decision record[23], and the statutory declaration is reproduced in full in the Court Book.[24]
[22] Court Book 114 - 122
[23] Court Book 122-124
[24] Court Book 78-80
The Tribunal’s summary of the statutory declaration appears to be accurate. There is nothing to show that the Tribunal’s description of the Applicant’s oral evidence is other than accurate, and I am not satisfied that the Applicant has made out his claim that the Tribunal misstated or distorted his evidence. Essentially, the Applicant is seeking merits review of the Tribunal’s factual findings.
The Applicant’s first ground has not been made out.
The Applicant’s second ground of review claims jurisdictional error because the Tribunal’s reasoning process in reaching its decision reveals irrationality, illogicality and/or unreasonableness. The Applicant claims that it is irrational, illogical or unreasonable to dismiss his claim of involvement in the Local Church purely on the basis of a different understanding of the concept of “pray reading”. He makes a similar claim about the rejection of the three summonses purely on the basis of the use of the term “illegal church” rather than “evil cult”.
The first point to be made is that the Applicant is grossly over-simplifying the Tribunal’s reasons for those conclusions.
The High Court has, as was submitted, recently considered illogicality and irrationality in terms of jurisdictional error in Minister for Immigration and Citizenship v SZMDS.[25] That case arises from a decision of this Court (SZMDS v Minister for Immigration & Anor[26]), delivered on 8th July 2008. In that case, an application for review of a decision of the Refugee Review Tribunal was dismissed.
[25] supra
[26] [2008] FMCA 1064
On appeal, the Applicant was successful. It was held that the Refugee Review Tribunal had fallen into jurisdictional error because its conclusion about a key issue in the Applicant’s case “was based squarely on an illogical process of reasoning…The Tribunal fell into jurisdictional error having regard to the way it reached the conclusion” (SZMDS v Minister for Immigration and Citizenship[27] at [29]-[30]).
[27] [2009] FCA 210
The Minister’s appeal was allowed by the High Court. Crennan and Bell JJ held that:
In the context of the Tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction under s.65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, but not unwilling, to interfere in an appropriate case.[28]
[28] [2010] HCA 16 at [130]
Their Honours further held that:
On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical and rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational of only conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence of if there is no logical connection between the evidence and the inferences or conclusions drawn.[29]
[29] [2010] HCA 16 at [135]
Heydon J, in a separate judgment, agreed that the appeal should be allowed. He held:
The issue was one on which minds might differ. The Federal Court evidently operated on one assumption or conclusion about that issue. The Tribunal operated on another. The difference was one of degree, impression and empirical judgment. It did not stem from an error in logic by the Tribunal member.[30]
[30] [2010] HCA 16 at [78]
Applying their Honours’ reasoning in SZMDS, it is not the case that the Tribunal rejected the applicant’s claims to have been actively involved in the Local Church in China purely on the basis of its view of the applicant’s evidence about “pray reading”. The Tribunal’s reasons for arriving at that conclusion were:
·It formed the view that he had no idea about what was involved in pray reading.[31]
·The written material before the Tribunal did not substantiate his claim that pray reading involved singing passages of the Bible.
·The Applicant did not apply for a protection visa until July 2009 although he claimed to have learned about events that made it impossible to return to China in about December 2007.
·The Tribunal did not accept either of the two explanations offered by the Applicant for the delay in applying for protection.
·The Tribunal did not accept that the copies of the three summonses purporting to have been issued by the Changle Municipal PSB were genuine.
[31] Court Book 125 at [77]
In my view it was open on that evidence for the Tribunal to form the view that it did and no illogicality, irrationality or unreasonableness is demonstrated.
The Applicant also claimed that it was irrational, illogical and unreasonable for the Tribunal to refuse to accept that the three summonses he submitted were genuine based solely on the fact that they used the term “illegal church” rather then “evil cult”.
As was submitted on behalf of the Minister, the Tribunal considered the documents and discussed them with the Applicant at the hearing.[32] It considered a submission on that issue by the Applicant’s migration agent, but did not accept that submission.[33]
[32] Court Book 119 at [49]-[50]
[33] Court Book 127 at [86]-[88]
The Tribunal also took into account Independent Country Information from the Department of Foreign Affairs and Trade about the prevalence of document fraud in China:
As I put to the Applicant I also consider it relevant that the Australian Department of Foreign Affairs and Trade has advised that any official document can be either bought or forged on China, that irregular or improper issue of documentation is widespread and that therefore little evidentiary weight can be placed on such documents (DFAT Country Information Report No. 301/00, dated 5 June 2000, CX42649).[34]
[34] Court Book 128 at [89]
It was open to the Tribunal to form the conclusions that it did about the Applicant’s documents and no illogicality, irrationality or unreasonableness has been demonstrated.
The Applicant’s second ground of review has not been made out.
In his submission, the Applicant claimed that the Tribunal failed to bring an impartial mind to the determination of his review application. This is an allegation of bias, but no evidence has been provided in support of that claim. Whilst the Applicant claimed that he “correctly answered” most questions, it does not follow that it was not open for the Tribunal to reject his evidence about having been an active member of the Local Church in China.
In their text Judicial Review of Administrative Action, the authors Aronson, Dyer and Groves state that the core of the test for bias is whether the relevant circumstances are such as would give rise in the mind of a fair minded and informed member of the public to a reasonable apprehension of a lack of impartiality on the part of the decision maker.
The High Court set out the test to be applied in Re Refugee Review Tribunal; ex parte H[35] at [27] and [28], referring to whether a hypothetical fair minded lay person, properly informed as to the nature of the proceedings and the conduct said to give rise to an apprehension of bias, might reasonably apprehend that the decision maker might not bring an impartial mind to the resolution of the question to be decided.
[35] (2001) 179 ALR 425
A decision adverse to the applicant does not, of itself, give rise to an apprehension of bias. The fact that the Tribunal rejected the Applicant’s evidence on a certain issue would not lead to a reasonable apprehension that the Tribunal did not bring an impartial mind to the resolution of the question to be decided.
The Applicant’s contention as to apprehended bias has not been made out.
The Applicant also claimed in his submission that the Tribunal made its finding “incorrectly”. He attempts to support that argument by claiming that the Tribunal confused his evidence and reiterating his factual claims. This is no more than an attempt at reviewing the merits of the Applicant’s factual claim, which is not open on judicial review.
This contention therefore fails.
I note that the Applicant is not legally represented. A reading of the Tribunal decision and supporting documents does not disclose any arguable case for claiming that the decision was affected by jurisdictional error. In particular, there is no apparent breach of either s.424A or s.425 of the Migration Act.
There is no jurisdictional error. In the absence of jurisdictional error, the Tribunal decision is a privative clause decision as defined by s.474 of the Migration Act. As such, it is not open to remedies such as declaration, certiorari or mandamus.
The Application will be dismissed.
I will hear submissions as to costs.
I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 22 July 2010
0
10
1