SZODS v Minister for Immigration

[2010] FMCA 497

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZODS v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 497

MIGRATION – Review of decision of Refugee Review Tribunal – Tribunal had no expectation that applicant should provide corroborative evidence – no illogicality – conduct in Australia disregarded pursuant to s.91R(3) – Tribunal’s view of applicant’s evidence not “information” for purposes of s.424A – information fell within exceptions – Tribunal did not consider departmental record of interview would be the reason for affirming delegate’s decision – no failure to comply with s.425 – Tribunal sufficiently indicated dispositive issue – no apprehension of bias – Tribunal considered all claims – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.91R, 424, 424A, 425, 425A, 426A, 441, 441C, 441G

Migration Regulations 1994 (Cth), reg.4.35D

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190
Minister for Immigration and Citizenship v SZLFX & Anor [2009] HCA 31; (2009) 238 CLR 507
SZKLG v Minister for Immigration and Citizenship [2007] FCAFC 198; (2007) 164 FCR 578
NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
Minister for Immigration & Citizenship v Applicant A125 of 2003 [2007] FCAFC 162; (2007) 163 FCR 285
Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802
Paul v Minister for Immigration & Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396
VQAB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 104
WAEE v Minister for Immigration & Multicultural Affairs (2003) 75 ALD 630; [2003] FCAFC 184
Minister of Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
Applicant A169/2003 v Minister of Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 8
Paul v Minister of Immigration and Multicultural Affairs (2001) 113 FCR 396; [2001] FCA 1196
Machmud v Minister for Immigration & Multicultural Affairs [2001] FCA 1041
Minister for Immigration and Citizenship v SZIAI  [2009] HCA 39
Australian Broadcasting Tribunal v Bond  [1990] HCA 33; (1990) 170 CLR 321
Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223
Minister for Immigration v Eshetu [1999] HCA 21; (1999) 197 CLR 611
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
SZHPD v Minister for Immigration & Citizenship [2007] FCA 157
Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361
Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431
VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102
Minister for Immigration and Multicultural Affairs v SZGMF [2006] FCAFC 138
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668

Applicant: SZODS

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 267 of 2010

Judgment of: Nicholls FM

Hearing date: 6 May 2010

Date of Last Submission: 6 May 2010

Delivered at: Sydney

Delivered on: 14 July 2010

REPRESENTATION

The Applicant: In Person

Appearing for the Respondents: Ms N Johnson

Solicitors for the Respondents: Sparke Helmore

Further written submissions for the Respondents: Ms A Mitchelmore of counsel

ORDERS

1. The application made on 11 February 2010 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $5,865.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 267 of 2010

SZODS

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made on 11 February 2010 under the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 13 January 2010, which affirmed the decision of a delegate of the first respondent to refuse a protection visa to the applicant.

Background

1. The applicant is a national of the People’s Republic of China (“China”) who arrived in Australia on 21 October 2007 on a Temporary Business (Long Stay) (Subclass 457) visa. She applied for a protection visa on 22 June 2009 (CB 1 to CB 34, including a statement as to her claims – CB 30 to CB 33). She was assisted by a registered migration agent, Mr Harry Huang of Pricilla International Co Pty Ltd (CB 9, CB 26 to CB 29).

Claims to Protection

1. The applicant claimed to have been introduced to Christianity by a fellow factory worker in May 1998 who arranged for her to attend secret gatherings of the Local Church (also referred to as “the Shouters”). The applicant claimed to have been baptised in October 1998.

2. Following her marriage in 2000 she organised weekly religious gatherings and attended gatherings at the Local Church almost daily. She returned to her hometown in February 2002 and evangelised to her family. Since that time on every occasion she returned she assisted her family in establishing ever increasing gatherings. This grew to involve over one hundred people.

3. The applicant purchased a second-hand computer, printer and copier for a teacher in her hometown. These were used to make copies of the Bible and promotional materials that the applicant provided. Following the applicant’s arrival in Australia she maintained contact with her family and the teacher from her hometown, and sent them copies of Christian books (CB 32).

4. In July 2008 twelve Christians, including the applicant’s mother and the teacher from her hometown were arrested by the Public Security Bureau (“PSB”) for establishing and developing illegal, anti-government religious organisations, and spreading religious materials. The secret gathering groups were “destroyed”. As a result of the confession of some of the Christians, the authorities took the view that the applicant was the founder and one of the “major leaders” of her church, and she was put on a “black list”. Her sister went into hiding to escape persecution. PSB officers from the applicant’s home area went to Fujian in October 2008 and January 2009 to investigate the applicant’s involvement in religious activities (CB 33). She cannot return because she would be “subjected to persecution” (CB 33).

5. On 4 September 2009, the applicant also provided a statutory declaration addressing matters raised at an interview held with the delegate (CB 42 to CB 43).

The Delegate

1. The delegate accepted that the applicant was a Christian (CB 55) and that she may have talked about her religious beliefs and experiences with her family (CB 56).

2. However, the delegate had serious doubts about the remainder of the applicant’s factual claims as to what had occurred in China. The delegate refused the application on that basis.

The Tribunal

1. The applicant applied for review by the Tribunal on 15 October 2009 (CB 58 to CB 62). She was again represented by the same migration agent (CB 60). The applicant was invited to attend, and attended, a hearing on 16 November 2009 (CB 73). The migration agent was present at the hearing. The Tribunal’s account of what occurred is contained in its decision record ([40] at CB 92 to [78] at CB 98).

2. The Tribunal accepted the applicant was a Chinese national. It did not otherwise believe that the applicant had presented a truthful account of her experiences in China ([85] at CB 99).

3. The Tribunal noted that the applicant entered Australia legally, and had no difficulty in obtaining the necessary travel documents. This indicated that at the time of leaving China she was of no interest to the authorities ([87] at CB 100). Further, that the PSB would have been aware that the applicant was overseas in 2008 and 2009. It did not accept that the PSB would: “… be expending their time and resources on investigating the applicant when she was not in China”, or that she was included on a “black list” ([88] at CB 100).

4. The Tribunal found the applicant’s explanations of how authorities linked her to the photocopier and bibles in the houses of her mother and the teacher, and how she knew of the confessions which implicated her to be inadequate ([89] to [90] at CB 100). The applicant’s account of how she was able to transport large amounts of material to her home area was considered implausible ([91] at CB 100 to CB 101). The applicant’s evidence and explanations as to the production of bibles was considered not to be credible and to be vague and inconsistent ([92] at CB 101). Likewise, evidence relating to the founding of four local churches was regarded as vague ([94] at CCB 101).

5. Ultimately, the Tribunal did not accept any of the applicant’s factual claims ([95] at CB 101 to [106] at CB 104) and found the applicant’s evidence to be inconsistent and confused ([103] at CB 103). The Tribunal noted further that the applicant’s account of feared persecution was inconsistent with independent country information available to it ([106] at CB 103).

6. The Tribunal did not accept that the applicant was a member of a local church. But that, if the applicant was attending church in Australia this would be to strengthen her claim for refugee status. Thus, any such conduct must be disregarded pursuant to s.91R(3) ([100] at CB 102). Similarly, if the applicant had sent any promotional material back to China, this would also be disregarded pursuant to s.91R(3) ([101] at CB 102).

7. Further, the Tribunal did not accept the applicant’s explanation for the delay in seeking protection in Australia ([97] at CB 101 to CB 102).

8. The Tribunal found that the applicant did not have a well founded fear of Convention related persecution and therefore affirmed the delegate’s decision.

Application to the Court

1. The application to the Court was made on the following grounds:

   “1. The Tribunal committed jurisdictional error of law by failing to comply with its obligations under Section 424 of the Act.

   Particulars

   The Tribunal failed to give to me, in the way that the Tribunal considers appropriate in the circumstances, particulars of the information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and the Tribunal failed to ensure, as far as is reasonably practicable, to understand why it is relevant to the review; and the Tribunal failed to invite me to comment on it.

   2. The Tribunal committed jurisdictional error of law by failing to comply with its obligations under Section 425 of the Act.

   Particulars

   The Tribunal failed to create a genuine opportunity for me to give my oral evidence or to present arguments arising in relation to the decision under review at the hearing before it.

   3. The Tribunal’s decision has included a reasonable apprehension of bias.

   Particulars

   The Tribunal’s 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.”

Before the Court

1. At the hearing before the Court the applicant appeared in person. She was assisted by an interpreter in the Mandarin language. Ms N Johnson appeared for the first respondent. Written submissions have been filed on behalf of the first respondent. The applicant also provided written submissions.

2. Following the hearing the parties were given the opportunity to make further submissions in relation to the particulars to ground three in light of Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 (“SZMDS”). Both parties made written submissions.

3. Before the Court the applicant insisted that while she had received assistance in translation of the application to the Court and written submissions she had authored these documents.

4. In this light she insisted that the reference to s.424 in the first ground and as referred to in one part of her relevant written submissions was “correct”. She was unable to explain the inconsistent reference in the written submissions to “s.424A”.

5. In relation to ground two the applicant explained that her complaint was that the Tribunal’s concerns as to whether she was a “genuine” Christian and the relationship with her husband were not raised at the hearing with the Tribunal. She only realised the importance of these matters after receiving the Tribunal’s decision record.

Ground One

1. Ground one asserts a failure by the Tribunal to comply with its obligations pursuant to s.424 of the Act. As pleaded this complaint does not succeed. There is nothing in the material before the Court to show that the Tribunal sought to exercise its power pursuant to s.424(1) or s.424(2) to obtain information in this context.

2. The use of s.424 is discretionary. There is no compulsion on the Tribunal to employ it to seek information. The only mandatory aspect of this section is that if it does exercise the discretion, it must have regard to the information obtained.

3. Notwithstanding the applicant’s insistence to the contrary, the language of the particulars to this ground could suggest that the complaint is actually based on an alleged breach of s.424A. The difficulty for the applicant is that beyond reciting almost all of the language of s.424A(1) the application is silent as to what information, let alone particulars of information, the Tribunal failed to give to the applicant. The applicant herself was unable to assist the Court in this regard.

4. However, the written submissions appear to cast some light on this complaint. At [2] the applicant makes reference to “… some pieces of information above.” In context this appears to be a reference to the “information” or more accurately the matters set out in [1].

5. Although [1] is directed to ground three and the complaint of apprehended bias, the “information” mentioned in [1] relates to the applicant’s various factual claims put before the Tribunal.

6. The submissions are further complicated by the references in [2] to these “pieces of information” having been discussed at the hearing with the Tribunal. This appears to raise s.425 and may be directed to ground two of the application.

7. On balance and on the best possible reading for the applicant ground one could be read as seeking to complain that the Tribunal failed to comply with its obligation pursuant to s.424(1) because it failed to ensure that the applicant understood the view that the Tribunal took of the “information”, that is, the factual account that the applicant gave of events in China. In that sense if this was “information” that the applicant concedes was discussed at the hearing, the complaint is one that derives from s.424A(1)(b) and s.424A(1)(c).

8. It is quite clear that the reason for the Tribunal’s ultimate decision to affirm the delegate’s decision was the rejection of the applicant’s factual account of what she said had occurred in China. The Tribunal found that the applicant had not been truthful before it. This was based on inconsistencies in her account, her inadequate explanations, lack of detail, and implausible and confused evidence.

9. As such, the Tribunal’s appraisal of the applicant’s evidence, and its concerns about the quality and deficiencies in her account, are not “information” for the purpose of s.424A(1). The obligation in that section is therefore not engaged in this regard (SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190; at [18]).

10. Noting further that, in any event, what the applicant told and put to the Tribunal for the purposes of the review, what she put in writing to the Minister’s department in relation to her application for a protection visa, and country information to which the Tribunal referred, all fall into various exceptions from the obligation in s.424A(1), as set out in s.424A(3)(b), s.424A(3)(ba) and s.424A(3)(a) respectively.

11. For the sake of completeness, I note the Minister’s submission that the delegate’s decision makes reference to a departmental record of an interview conducted with the applicant (by officers other than the delegate) in which the applicant is reported as expressing a willingness to depart Australia (see CB 57.2).

12. I agree with the Minister’s submission that whether something is “information” for the purposes of s.424A(1) depends on the Tribunal’s “consideration” that such information would be the reason, or part of the reason, for affirming the decision under review (see Minister for Immigration and Citizenship v SZLFX & Anor [2009] HCA 31; (2009) 238 CLR 507 (“SZLFX”) at [24], and the reference there to SZKLG v Minister for Immigration and Citizenship [2007] FCAFC 198; (2007) 164 FCR 578 at 589 [33]).

13. There is nothing before the Court to show that the Tribunal gave any “consideration” to this information, let alone that it considered it to be the reason, or part of the reason, for its decision. There is no reference to this in its account of the hearing in its decision record, or elsewhere. I agree that, on what is before the Court, the only inference to be drawn is that the Tribunal did not consider such information to be a part of its reasoning. No inference can be drawn to enable the applicant to show that this information was material to the decision (SZLFX at [26]). That is, that it could be said that there was some time anterior to the making of the decision where it could be said that the Tribunal considered this as “information” that would be the reason or part of the reason for affirming the decision under review.

14. In the same light, what the applicant told the delegate at the interview does not fall within any of the exceptions in s.424A(3). While the Tribunal made reference to this interview in setting out the applicant’s claims ([31] at CB 92 to [33] at CB 93), it is quite clear that when regard is had to the only account of what occurred at the Tribunal hearing, that is, the Tribunal’s own unchallenged account, the Tribunal did not rely on what the applicant told the delegate. Although naturally much of the same factual matters were traversed, it was the nature of the applicant’s evidence given at the Tribunal hearing that gave rise to the Tribunal’s various concerns.

15. No inference can be drawn from this material that the Tribunal considered the information that she orally gave the delegate would be the reason, or a part of the reason, for affirming the delegate’s decision.

16. Given the above, the matters set out in s.424A(1)(b) and (c) do not arise for consideration. In all, ground one as pleaded, particularised, and as given as wide an ambit as reasonably possible, does not succeed.

Ground Two

1. Ground two asserts a failure to comply with obligations pursuant to s.425 of the Act. The particulars are again unhelpful. They merely assert that the Tribunal failed to create a genuine opportunity for the applicant to give her oral evidence or present arguments before it. Again, there is no particularity as to why this is said to be so.

2. The applicant’s written submissions provide some particularity. The applicant claims that while she was “… allowed to give (her) oral evidences …” and that while the Tribunal “… indeed discussed my claims” it did not make it clear to her what the issues were in the review nor give her to understand why it did not accept her claims.

3. The Tribunal invited the applicant to a hearing. Its invitation complied with all relevant statutory and regulatory requirements (s.425, s.425A including the reference to s.426A, s.441(5), s.441C(5), s.441G and reg.4.35D – see CB 55 to CB 69).

4. The applicant attended the hearing. Her migration agent was present (CB 73). The Tribunal provided an interpreter in the Mandarin language who, it recorded, had an appropriate level of “NAATI” accreditation (CB 73).

1. The Tribunal’s account of what occurred at the hearing is set out in its decision record ([40] at CB 93 to [78] at CB 98). The applicant has put no evidence before the Court, for example a transcript of the hearing, to challenge the Tribunal’s account. In these circumstances, it is not open to this Court to draw inferences as to what may otherwise have happened (NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241).

2. Relevantly, this account shows that the Tribunal complied with its procedural fairness obligations pursuant to s.425 as explained by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 (“SZBEL”). The determinative issue in this case, the issue that disposed of the review, was the Tribunal’s rejection of the applicant’s entire factual account of what she said had relevantly occurred in China. Any plain reading of this account shows that the Tribunal discussed the applicant’s entire factual account of events in China with her. The Tribunal is not required to provide a running commentary of its views of the applicant’s account (Minister for Immigration & Citizenship v Applicant A125 of 2003 [2007] FCAFC 162; (2007) 163 FCR 285 at [88]-[89]).

3. The Tribunal’s questioning should have suggested to the applicant and her adviser that her factual account was at issue. However, and in addition, at critical parts of the hearing dealing with central aspects of the applicant’s factual claims the Tribunal did not just “sufficiently indicate” its concerns with her evidence to the applicant (SZBEL at [47]). The Tribunal squarely put to her the deficiencies in what she was saying (at [49], [52], [55] at CB 95, [56], [59], [60] at CB 96, [65], [69], [71], [73] at CB 97 and [75] at CB 98). (See also the references to the hearing at [87] to [94].)

4. Beyond the references in written submissions the applicant has put nothing further to complain about the conduct of the hearing. In this regard I note that the Tribunal specifically asked both the applicant and her adviser at the end of the hearing if there was anything further to add ([77]-[78] at CB 98). Both responded in the negative. If any concerns about the hearing, or about the “genuine opportunity” afforded by the hearing had arisen, that was the appropriate time to have raised them. Particularly given the presence of the migration agent.

5. Nor is there anything before the Court to show that any complaint was made to the Tribunal, particularly by the adviser, in the almost two months available between the date of the hearing and the date of the decision.

6. In all ground two is not made out.

Ground Three

1. The third ground asserts that the Tribunal’s decision included a reasonable apprehension of bias. Again, the particulars are unhelpful in that they merely assert that the Tribunal’s reasoning process reveals irrationality, illogicality, and unreasonableness.

2. In written submission the applicant’s argument as to why the Tribunal’s decision included “an apprehension of bias” does not appear to be based on any assertion of illogicality or unreasonableness but rather that the bias is apprehended because the Tribunal failed to consider important evidence before it.

3. This “evidence” as set out in the “Particulars” in the written submissions all relate to the applicant’s factual account of events in China. I agree with submissions by Ms Johnson that when properly understood the applicant’s complaint in this regard is a manifestation of her disagreement with the Tribunal’s factual findings.

4. A failure to consider a claim or an aspect of a claim either expressly made or as it is said to clearly arise from the circumstances presented does lead to jurisdictional error (Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802 at [42], Paul v Minister for Immigration & Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396 at [79], VQAB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 104 at [25] and [31], WAEE v Minister for Immigration & Multicultural Affairs (2003) 75 ALD 630; [2003] FCAFC 184 (“WAEE”) at [46]-[47]). Noting of course that the Tribunal does not have to refer in its decision record to every piece of evidence before it (Minister of Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 – “Yusuf” at [68], [73]-[74], [91], Applicant A169/2003 v Minister of Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 8 at [24], WAEE at [47], Paul v Minister of Immigration and Multicultural Affairs (2001) 113 FCR 396; [2001] FCA 1196).

5. The applicant claims that the Tribunal failed to consider her background as a devout Christian in respect of her relationship with her husband.

6. Whatever the applicant hopes to achieve now by quoting various parts of the (Christian) Bible relating to the submission of wives to their husbands it does not reveal error in the Tribunal’s finding as to her religious convictions.

7. The Tribunal accepted that she had some knowledge of Christianity ([100]). However, this was not the central basis on which the applicant claimed to fear persecutory harm in China. The applicant claimed that the authorities were motivated to harm her because of the active and prominent role she had played in founding four Local Churches and the her activities in transporting religious materials to these churches. The Tribunal dealt with these aspects of the applicant’s claims. For the reasons which it gave and which were open to it, it rejected the credibility of the applicant’s account.

8. To the extent that there was any residual claim to fear harm as a Christian in Fujian the Tribunal found this to be inconsistent with independent country information before it as to the treatment of Christians in that province of China. There is no error in the Tribunal preferring that evidence over the applicant’s evidence.

9. The applicant also submits that the Tribunal failed to consider that her mother and sister were also devout Christians and had been harassed and investigated by the PSB since she left China.

10. The Tribunal did consider that claim but rejected it. The Tribunal found that the applicant was therefore not at risk because of any association with her mother and sister ([97] and [103]).

11. The applicant also submits that the Tribunal failed to consider that the Local Church is considered to be an “evil cult” by the Chinese authorities. This misconceives the Tribunal’s relevant finding. The Tribunal found that the applicant had not been truthful in relation to her claims concerning the Local Church and did not accept that she was a member ([100]). As such it did not need to consider further how the authorities viewed Local Churches.

12. The applicant complained that the Tribunal failed to consider her local knowledge when it made its findings in relation to the claim of having transported Local Church materials to her home town.

13. The matter of the transportation of church materials was discussed at the hearing ([66] to [70]). It does not appear that having local knowledge was ever advanced by the applicant as an explanation as to how she managed to transport large amounts of materials over great distances without detection. The Tribunal’s finding that the applicant did not engage in this activity was open to it on what was before it ([91]-[92]).

14. The applicant’s complaint about the Tribunal’s treatment of her claim to have evangelised to local people in her hometown is that it did not consider her claim properly and fairly. The applicant has put no evidence before the Court to challenge the Tribunal’s account of what occurred at the hearing. The Tribunal found her evidence in this regard to be “vague”. In the absence of any evidence to the contrary the Tribunal’s finding was open to it.

15. The applicant also complains that the Tribunal gave “no evidence to support its finding” that the applicant sought to stay in Australia for economic reasons rather than for any of the reasons in the Refugees Convention. This appears to be a reference to the Tribunal’s finding set out at [96] of its decision record (CB 101).

16. The applicant’s complaint misrepresents the relevant task facing the Tribunal. The Tribunal is not required to find evidence to disprove an applicant’s claims.

17. In any event, the Tribunal did rely on probative evidence to make this finding. This was the applicant’s own evidence as to the claimed relevant events in China. The Tribunal rejected the applicant’s claims of key events as they were said to relate to her fear of persecutory harm and her reasons for coming to Australia. As referred to above, these findings were open to the Tribunal on what was before it.

18. In addition, the Tribunal’s finding was informed by the circumstances of the applicant’s stay in Australia from when she first entered in 2007 to the time of the making of its decision ([97] at CB101). Amongst other matters the Tribunal relied on the applicant’s own evidence that she became aware of her mother’s claimed arrest in July 2008, but made no attempt to seek protection in Australia until June 2009 after she had come to the “adverse” attention of the Minister’s department. This was in circumstances also where she had come to Australia on a visa “sponsored” by her husband but did not tell the Minister’s department that this relationship had ended.

19. The applicant further complained in this regard that the Minister’s department had not told her or ensured that she understood that she should notify the Minister’s department if her relationship were to cease. The circumstances of the applicant’s entry and stay in Australia after her visa was cancelled were discussed at the hearing with the Tribunal ([42]-[44]).

20. The relevance of what she did not tell the Minister’s department is at best peripheral. The thrust of the Tribunal’s reasoning at [97] is that the applicant remained in Australia after her visa was cancelled for some time and made no attempt to seek protection until after she was located by the Minister’s department some twenty months later. For the reasons that it gave, the Tribunal did not accept that she had no knowledge of immigration procedures. The Tribunal reasoned that her delay and the timing of her application led to the finding that her reason for coming to Australia was economic and not Convention related. A finding that is further supported by the applicant’s own evidence that her husband sponsored her entry to Australia as well as: “… compensation because he was leaving her and he was giving her the chance to have a better life in Australia with her daughter” ([44]).

21. In any event, there is no evidence before the Court that the applicant complained to the Tribunal that the reason for the delay in applying for protection was that the Minister’s department had not told her, or had ensured that she understood, that she should tell the Department if the relationship had been terminated.

22. The Tribunal dealt with the applicant’s circumstances as presented by the applicant herself. There was no failure in this regard to consider her evidence or her claims.

23. The applicant also submits that the Tribunal misstated her evidence. This appears to derive from the Tribunal’s analysis at [106]. At that part of its analysis the Tribunal considered the applicant’s more general claim to fear persecution because of her Christianity and the connection with the Local Church. The Tribunal had regard to country information about the attitude of the authorities in the applicant’s province to Christianity and the practice of Christianity through unregistered Local Churches.

24. The Tribunal noted that attitudes varied across China, but that Fujian province had the most liberal of policies in China in relation to Christianity. Further, the Tribunal noted the applicant’s own evidence that Christians were accepted in Fujian and that it was only when large groups “… were involved that there may be trouble.” In this context the Tribunal reported that it was the applicant’s evidence that “… she always participated in small groups.”

25. This analysis is consistent with what the Tribunal reported as the applicant’s relevant evidence in its account of the hearing ([76]). There is no evidence before the Court now to support the applicant’s submission that she did not tell the Tribunal that she was only involved in small gatherings.

26. Finally, the applicant also submits that the Tribunal failed to tell her that it required evidence from witnesses in the Local Church in Australia. There are two elements to the applicant’s complaint which I understand to derive from the Tribunal’s analysis at [100]:

    “The Tribunal accepts that the applicant has some knowledge of Christianity. At the hearing she stated that she tried to contact her husband at Christmas as it was a time of family re-union. The Tribunal notes Independent Country Information that Local Churches do not celebrate Christmas. The applicant has stated that she participated in some Christian activities and has sought companionship in Australia from fellow Chinese Christians. This is despite the applicant providing no witnesses or witness statements of support. When asked at the hearing why she had no witnesses she stated that the elder had gone to Canberra. The applicant provided no independent corroborative evidence of attending church in Australia. The Tribunal does not accept that the applicant was or is a member of a local church. The Tribunal finds that if the applicant attended church in Australia it was to strengthen her claim for refugee status. As the Tribunal is not satisfied that the applicant’s conduct was otherwise than for the purpose of strengthening her claim to be a refugee under the Refugees Convention it must disregard her conduct in Australia as required by section 91R(3) of the Act.”

27. The applicant asserts that the Tribunal’s findings were inconsistent. It rejected her claim to have attended the Local Church in Australia yet it then proceeded to find that her involvement in the Local Church in Australia was done for the purpose of strengthening her claims to refugee status. This element is addressed below in the context of SZMDS and illogicality.

28. The second element is that the Tribunal failed to tell her that she needed to provide corroborative evidence to support her claim to have attended the Local Church in Australia.

29. In this regard I note Ms Johnson’s submission that there is no obligation on the Tribunal to make out the applicant’s case for her. Further, the matter of the applicant’s claimed participation in Local Church activities in Australia was according to the Tribunal’s unchallenged account discussed at the hearing ([61]-[62] and [100]).

30. At best, the sequence of what occurred at the hearing appears to be that the Tribunal sought to address a claim made by the applicant in her initial statement in support of her protection visa application (CB 33.6):

    “In Australia, I have also experienced some difficulties. However, with helps and support of the church brothers and sisters in the Local Church in Australia, I could overcome these difficulties and started my new life.”

31. The applicant confirmed to the Tribunal that she was attending a “church in Chinatown” ([61]). Properly, the Tribunal put the applicant on notice that if it formed the view that this was done for the purpose of strengthening her refugee claims such conduct would then be disregarded. This was clearly said with s.91R(3) in mind.

32. The applicant rejected that assertion and claimed that her attendance gave meaning to her life because of the support she received. She further stated that she had planned to ask one of the elders for a letter of support: “… but he was in Canberra” ([62]).

33. In its analysis (at [100]) the Tribunal relevantly reasoned that the applicant claimed to have participated in church activities in Australia and sought companionship from fellow Christians. Yet she provided no witness or witness statement from these people, and provided only the explanation that the elder was in Canberra in explanation as to why she had not done so.

34. In terms of the complaint as expressed in submissions, that is, that the Tribunal did not raise this matter with her, that must be rejected in light of what plainly appears in the Tribunal’s decision record.

35. Nonetheless, I did also consider whether the Tribunal fell into error as identified in Machmud v Minister for Immigration & Multicultural Affairs [2001] FCA 1041. That is, did the Tribunal have an expectation that the applicant could not make out her claim without corroboration?

36. On balance, and on a fair reading, I am satisfied that the Tribunal’s references to the applicant having no witness to corroborate her claim to have attended church in Australia was not a manifestation of any such expectation, but rather a concern that in circumstances where the applicant claimed to have derived companionship from fellow Chinese Christians, which would suggest some form of close association, she did not provide any evidence from them of her attendance. The Tribunal plainly saw her explanation that she did not do so because an elder of the church was in Canberra as being an inadequate explanation.

37. In any event (and somewhat ironically given the applicant’s complaint of illogical reasoning on the part of the Tribunal arising in part from this point – see below) the Tribunal did consider the alternative situation. That is, it considered the consequences of accepting the applicant’s claims that she had in fact attended church in Australia. Ultimately, this conduct was disregarded pursuant to s.91R(3).

38. This leads to consideration of the matter arising from the High Court’s Judgment in SZMDS. The applicant made subsequent written submissions in light of this Judgment. Ms A Mitchelmore of counsel drafted further written submissions filed on behalf of the first respondent.

39. Ms Mitchelmore has helpfully provided an understanding of the various judgments in SZMDS with which I generally agree. That case was concerned with an appeal from orders of the Federal Court quashing the relevant Tribunal decision.

40. Of relevance to the current case is that Gummow ACJ and Kiefel J considered that the basis of the relief sought in that case (the same as in the current case) is “… that rooted in s 75(v) of the Constitution …” (SZMDS at [7]).

41. Further at [29]:

    “The determination of this appeal turns on the application of the doctrine of jurisdictional error, implicit in s 75(v) of the Constitution, to a legislative criterion expressed in terms of the satisfaction of the RRT.”

42. In context the relevant legislative criterion is that expressed in s.65 of the Act which requires the relevant decision maker to reach a requisite level of satisfaction in which circumstance the visa applied for must be granted.

43. In SZMDS Gummow ACJ and Kiefel J found that if this state of satisfaction which is the basis for the exercise of a power such as s.65 is not based on a logical reasoning process then if found to be so that would provide the basis of relief under the Constitution. In SZMDS their Honours found that the Tribunal in that case made: “… a critical finding by inference not supported on logical grounds” (at [53]). Their Honours found that the Tribunal was correct to quash the Tribunal’s decision in these circumstances.

44. In contrast Crennan and Bell JJ took a different approach and allowed the Minister’s appeal.

45. Their Honours accepted that: “… illogicality may constitute a basis for judicial review in the context of jurisdictional fact finding …” (at [132]). Again drawing on s.75(v) of the Constitution their Honours noted observations previously made by the High Court (with reference to Minister for Immigration and Citizenship v SZIAI [2009] HCA 39) that in the context of jurisdictional error: “…where a statutory power is conferred the legislature is taken to intend that the discretion be exercised reasonably …”

46. Further, that the standard of acting “rationally” (with reference to Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321) is linked to the standard of reasonableness set out in Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223 (see [124] and [125]-[128]).

1. Even further, that “illogicality” or “irrationality” provide a separate basis for seeking judicial review of an administrative decision and the state of satisfaction mandated by the statute imports a requirement that the state of satisfaction must be one that could be formed by a reasonable person (at [30]).

2. Importantly however in SZMDS at [130] per Crennan and Bell JJ:

   “… Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.”

3. The relevant test was expressed 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 evidence 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.”

4. In applying this test to the circumstances presented in SZMDS their Honours had regard to a wide set of evidence before the Tribunal and said at [134]:

   “The process of reasoning followed by the Tribunal, which needs to be considered in the light of all the evidence set out above …”

5. In applying the test to the evidence before the Tribunal their Honours said amongst other things at [135]:

   “… Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one 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 or if there is no logical connection between the evidence and the inferences or conclusions drawn …”

6. Heydon J did not find it necessary to determine the questions of law raised in the appeal (at [87]) because his Honour held that the Tribunal’s reasoning could not be characterised as having: “simply no basis”, or being “completely unsustainable as a piece of logical analysis”, and as “based squarely on illogical process of reasoning …” (at [57], see also [58]).

7. In the current case the Minister submits that the reasoning of Crennan and Bell JJ should be preferred to that disclosed in the “dissenting” Judgment of Gummow ACJ and Kiefel J.

8. Happily in the current case I am of the view that it is not necessary to examine the reasons for this submission by the Minister. This is because, on balance, I am satisfied that on both sets of reasoning and separately drawing on the methodology applied by Heydon J, the applicant’s complaint as expressed also in written submissions that the Tribunal’s reasoning in paragraphs [100] and [101] was not based on logical grounds, that is, it was irrational, is not made out.

9. Paragraph 100 of the Tribunal’s decision record is reproduced at [75] above. The applicant’s submissions at best can be said to cavil with the Tribunal’s findings rather than reveal an illogical or irrational thought process.

10. The applicant’s reference to the Tribunal’s findings regarding her knowledge of Christianity, her claimed membership of the Local Church, her claimed participation in some Christian activities and how these were to be characterised, and what she meant by her answer to the Tribunal’s questioning as to why she had no witnesses to support her claim to have attended church in Australia now seeks to provide explanations for, or glosses on, her evidence to the Tribunal. These references do not reveal irrational thinking on the part of the Tribunal.

11. Paragraph [101] of the Tribunal’s decision record is:

    “The applicant in her statement attached to her Application for a Protection Visa stated that she had sent promotion materials to China from Australia. The Tribunal has already made a finding that the applicant has not been truthful in relation to all her claims and circumstances. The Tribunal after considering the evidence has formed the view that if she sent promotional material back to Chian it was to strengthen her claim for refugee status. The applicant has not satisfied the Tribunal of the truthfulness of her account of her experience in China and the Tribunal has already made findings in relation to the applicant’s credibility. As the Tribunal is satisfied that the applicant’s conduct was otherwise that for the purpose of strengthening her claim to be a refugee under the Refugees Convention it must disregard her conduct in Australia as required by section 91R(3) of the Act.”

12. Similarly, the applicant’s submissions as expressed in relation to this paragraph also seek to cavil with the Tribunal’s findings in relation to s.91R(3). The submissions do not address the Tribunal’s actual reasoning. It may indeed be “dangerous” to send religious promotional material to China. but on its own and for the reasons set out below this does not reveal error in light of either approach set out in SZMDS.

13. The Tribunal’s analysis and reasoning in this decision commences at [84]-[85]. The Tribunal sets out its critical finding that apart from her claim to be a Chinese national the applicant has not presented a truthful account of her circumstances in China.

14. The succeeding paragraphs (at [86]-[99]) set out the Tribunal’s reasons for this. There is nothing irrational in this reasoning. Nor do the applicant’s submissions (both sets) assert any irrationality in this part of the analysis. While the applicant complains in her first set of written submissions about aspects of this reasoning it is not on the basis of irrationality or illogicality.

15. By the time the Tribunal came to [100] and [101] it was clearly concerned with the applicant’s claimed conduct in Australia and the application of s.91R(3).

16. In understanding the Tribunal’s reasoning in these paragraphs it is important to remember that the Tribunal comprehensively rejected the applicant’s factual account of events and her claims as they related to China.

17. The applicant made two claims in relation to conduct in Australia. The first was that she participated in Christian activities. This (with reference to how the applicant presented her claims) took the form of, and arose from, her attendance at the Local Church in Australia where she sought companionship from fellow Chinese Christians. She also  made a reference at the hearing with the Tribunal that she attempted to contact her husband in December 2007 because it was Christmas and this was a time of family reunion ([43] of the Tribunal’s decision record). 

18. The Tribunal addressed both these elements of the applicant’s conduct. Importantly, it did so in the context of accepting that the applicant had displayed some knowledge of Christianity.

19. In this context the Tribunal addressed her statement that she tried to contact her husband at Christmas time as it was a time of family reunion. The Tribunal noted independent country information that Local Churches do not celebrate Christmas.

20. The applicant complains now that while she did say she tried to contact her husband, she did not mean to say that she ever celebrated Christmas. However, the Tribunal made no express finding in this regard. It can be said that it did not need to do so because whether or not the applicant tried to contact her husband at Christmas time for whatever reason was not put forward by the applicant in the context of supporting her claim to have participated in Christian activities in Australia.

21. At best, the contact attempt with her husband at Christmas time was put in the context of a reference point (albeit, with Christian connotations) as to when she last had contact with her husband. (See [43] at CB 93.)

22. In its analysis beginning at [100] the Tribunal acknowledged those aspects of the applicant’s claims which could be said to be favourable to her claim to protection. That is, that she had some knowledge of Christianity and had made reference to Christmas time as a time of family reunion. However, it noted that country information stated that Local Churches do not celebrate Christmas.

23. Relevantly, there is nothing illogical in the Tribunal noting what the applicant said at the hearing and comparing this with country information available to it.

24. Against this background the Tribunal then proceeded to consider the applicant’s critical claimed conduct in Australia related to the Local Church. Of far greater and central importance as to the applicant’s claim to be a Christian was her claim to have participated in Christian activities as expressed in the companionship arising from her attendance at a Local Church in Australia.

25. The Tribunal did not accept that she was a member of a Local Church in Australia. It came to this conclusion because the applicant, despite opportunity to do so, provided no witnesses to her participation in circumstances where it was expected that she could easily have done so. The Tribunal did not accept her explanation for not doing so. Further, this finding was made in the context of accepting that she had some knowledge of Christianity, but that her reference to Christmas was not of importance given that Local Churches do not celebrate Christmas.

26. Having found unequivocally that the applicant was not a member of a Local Church in Australia based in some part on her not having provided any evidence to corroborate this attendance, it is unclear as to why the Tribunal then went on to consider the situation “if” she had attended. Had the Tribunal stopped its analysis of this point here no error is revealed. There was not relevant conduct in Australia that required consideration in the context of s.91R(3).

27. In my view, this seeming inconsistency can be resolved on an holistic reading of the Tribunal’s analysis. The Tribunal comprehensively rejected the applicant’s claims to have been involved in the Local Church in China. Not only as a leader and founder of churches, but also as a member. That it did not accept that she was a member of a Local Church in Australia must be seen in that context.

28. That she did not provide any corroboration of her attendance in Australia was also part of the reasoning that on balance informed the decision that she was not a member in Australia.

29. However, the lack of corroboration as it related to attendance as distinct from membership left the applicant’s claim, which was expressed in terms of attendance and participation (see [61] and CB 33.6), but not membership, as an open question. In this light the Tribunal then proceeded to consider that “if” she attended Local Church in Australia all of the evidence before it led it to conclude that this was for the purpose of strengthening her refugee claims.

30. When understood in this way the Tribunal’s reasoning is neither irrational nor illogical. Or for that matter so unreasonable that it enters Wednesbury territory.

31. At [101] the Tribunal addressed the applicant’s claims that she had sent Christian promotional material to China from Australia. On at least a fair reading the Tribunal’s reasoning was that it had already found the applicant not to have been truthful in relation to all her claims and circumstances. On this basis it would have been open to the Tribunal to find that the applicant had also not been truthful in relation to sending the promotional material thus not engaging s.91R(1).

32. But the Tribunal did not do so. Ms Mitchelmore described the Tribunal’s reasoning as giving the benefit of the doubt to the applicant in the sense of considering the possibility of her having engaged in this conduct, but that it would have been for the purpose of strengthening her claims thus engaging s.91R(3).

33. On balance, I agree with Ms Mitchelmore. But for a slightly different reason. In my view the Tribunal’s expression of its reasoning was, with respect, clumsy. But when fairly read, the Tribunal’s analysis was that given that the applicant had not been truthful in relation to “all her claims and circumstances”, “if” in the event that she had engaged in this conduct it could not be satisfied that it was other than for the purpose of strengthening her refugee claims.

34. The applicant submits that it was not logical for the Tribunal to determine that she sent materials other than for the purpose of strengthening her claims and that to do so involves great risk. The answer to the applicant is that in the Tribunal’s view what the Tribunal based its determination on was that she had been untruthful in all her claims.

35. In all, therefore, based on the approach of Gummow ACJ and Kiefel J, I cannot see that the Tribunal’s reasoning in [100] and [101] was illogical or irrational. In relation to the latter I agree with Ms Mitchelmore that it cannot in any event be said that its finding was “critical” in the sense explained in the High Court’s Judgment in circumstances where it was otherwise plainly open to the Tribunal to have found the applicant had not engaged in that conduct at all.

36. On the approach of Crennan and Bell JJ and consistent with the methodology explained by Heydon J it cannot be said that the Tribunal’s reasoning resulted in a decision that no logical or rational person could have reached.

37. In all, therefore, SZMDS does not assist the applicant in showing jurisdictional error in the Tribunal’s decision.

38. Turning now to the complaint as originally pleaded at ground three of the application.

39. First, there is nothing before the Court to show that the factual basis for this complaint can be made out. As set out above, the Tribunal’s reasoning and findings do not reveal any such irrationality, illogicality or unreasonableness. The Tribunal’s reasoning was that, based on the applicant’s own evidence, and the demonstrated unsatisfactory and inadequate nature of that evidence, it could not believe the truth of what she claimed.

40. While the applicant may indeed be aggrieved that the Tribunal did not believe her, the Tribunal’s findings leading to its ultimate conclusion were all reasonably open to it on what was before it. The Tribunal gave reasons for its adverse findings in relation to the applicant’s credibility, which clearly formed the probative basis for its ultimate conclusion. The logical basis for its reasoning derives from the applicant’s own evidence. As was said in Minister for Immigration v Eshetu [1999] HCA 21; (1999) 197 CLR 611 (“Eshetu”) “an unreasonable decision is one for which no logical basis can be discerned” (at [101]). As in Eshetu, this is also not the case.

41. Nor, as submitted by the Minister, has the applicant made any satisfactory attempt in this case to comply with the requirement that an allegation or an apprehension of bias, which is a serious matter and must be distinctly made, and ultimately clearly proven (Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 (“Jia”) SZHPD v Minister for Immigration & Citizenship [2007] FCA 157 at [22]). In the current case the applicant has not even met the first of these elements. At best, her written submissions to a large extent simply seek to challenge the Tribunal’s factual findings.

42. I note relevant authorities in relation to an apprehension of bias (Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28 (“Ex parte H”) Jia, SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361 at [43]-[44], Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431, VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102). The relevant test is that a well informed lay observer might reasonably apprehend that the Tribunal did not bring an open mind to the proceedings (Ex parte H at [27]-[28], Minister for Immigration and Multicultural Affairs v SZGMF [2006] FCAFC 138 at [14]).

43. Without a transcript of the hearing or other evidence as to the conduct of the Tribunal what is before the Court does not provide a basis for the hypothetical lay observer to reasonably apprehend bias arising out of the Tribunal’s conduct. It is clear that it is a rare case where such bias can be made out based on the decision record alone (SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38]).

Conclusion

1. For the application to succeed, the Court would need to discern, at least, jurisdictional error in this decision. I cannot see such error. This application is therefore dismissed.

I certify that the preceding one hundred and thirty-nine (139) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  C Darcy

Date:  14 July 2010