SZOKA v Minister for Immigration - [2010] FMCA 685

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOKA v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 685

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal had an independent mind open to persuasion in considering the applicant’s claims – whether the Refugee Review Tribunal relied only on the findings of the Delegate in rejecting the Applicant’s claim to be a Christian in China and member of a Local Church.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 65(1)(b); 91R; 430; 474; pt.8 div.2

Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507
Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 344
SZGME v Minister for Immigration and Citizenship (2008) 168 FCR 487
Twist v Randwick Municipal Council (1976) 136 CLR 106
SZNZK v Minister for Immigration and Citizenship & Anor (2010) 115 ALD 332
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Abebe v Commonwealth of Australia (1999) 162 ALR 1
Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1986) 162 CLR 24

Applicant:

SZOKA

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1015 of 2010

Judgment of:

Emmett FM

Hearing date:

5 August 2010

Date of Last Submission:

5 August 2010

Delivered at:

Sydney

Delivered on:

8 September 2010

REPRESENTATION

Appeared in person with a Mandarin interpreter

Counsel for the Respondent:

Mr H. Bevan

Solicitors for the Respondent:

Ms L.Weston, DLA Phillips Fox

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1015 of 2010

SZOKA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 14 April 2010 and handed down the same day.
The applicant claims to be a citizen of the People’s Republic of China (“China”) and of Christian faith (“the Applicant”). The Applicant claims to fear persecution in China by the authorities by reason of being a Christian and an active member of the Local Church.
The issues in this case are whether the Tribunal’s decision is affected by bias or apprehended bias. These issues are considered below in the context of considering whether the Tribunal’s decision is affected by jurisdictional error.
Prior to considering the proceeding before this Court, these Reasons provide: the relevant procedural background; a summary of the legislative framework; a summary of the Applicant’s protection visa application claims and the decision of the delegate of the First Respondent (“the Delegate”); and, consideration of the Tribunal’s review and decision.

Background

The Applicant arrived in Australia on 17 June 2009. He claimed in his protection visa application to have departed illegally from Zhuhai on a Hong Kong passport issued a false name. The Applicant claimed to have entered Australia on a subclass 976 (Electronic Travel Authority – Visitor) visa. The visitor visa in the passport the Applicant claims to be a false passport was valid to 2 June 2010.
On 14 September 2009, the Applicant lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.
On 10 December 2009, the Delegate refused the Applicant’s application for a protection visa.
On 6 January 2010, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
On 14 April 2010, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 10 May 2010, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then s.65(1)(b) mandates that the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R of the Act expands on the notion of persecution and serious harm when considering Article 1A(2) of the Convention.

The Applicant’s application for a protection visa

In his protection visa application, the Applicant claimed that he feared persecution by the Chinese authorities by reason of his Christianity. He claimed he had been introduced to the unregistered Christian church in 2007 by his academic tutor and was baptized on 1 June 2008. He claimed he and his tutor, who then became a teacher at his school, distributed “promotion materials” at the school and organised a youth group.
The Applicant claimed on 13 April 2009 he was called to the principal’s office and arrested by police. He claimed he was detained and interrogated all night, during which time he learned his tutor had also been arrested. He claimed he was sent to a detention facility where he remained for almost one month and released on bail on 9 May 2010.
The Applicant claimed he was required to report to the local police station every Friday and to “make [him]self ready for further investigation”.
The Applicant claimed he reported to the police station only once because he travelled with a friend of his father to Zhuhai where he stayed for one month. He claimed that, during this time, his parents were interrogated by police who visited them many times.
The Applicant claimed that, on 16 June 2009, he secretly travelled to Hong Kong via fishing boat then travelled out of Hong Kong on a passport in another person’s name.
The Applicant claimed he was on the PSB black list and that confessions of members of the youth group who have been arrested or investigated have resulted in him being considered a “major activist” and his tutor’s assistant. He claimed he would be persecuted if he returned to China.

The Delegate’s decision

On 30 November 2009, the Applicant attended an interview with the Delegate.
On 10 December 2009, the Delegate refused the Applicant’s application for a protection visa on the basis that it was not satisfied that the Applicant was a person to whom Australia has protection obligations under the Convention.

The Tribunal’s review and decision

On 6 January 2010, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
The Applicant provided further documents in support of his review application.
On 21 January 2010, the Tribunal wrote to the Applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing on 9 March 2010 to give oral evidence and present arguments.
On 9 March 2010, the Applicant attended the Tribunal hearing and gave evidence.
On 10 March 2010, the Tribunal wrote to the Applicant identifying information that may form part of the reason for affirming the decision under review, explaining its relevance and inviting the Applicant to comment upon it (“the s.424A Letter”).
On 24 March 2010, the Applicant responded to the s.424A Letter.
The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.
The Tribunal found the Applicant was not a witness of truth.
The decision of the Tribunal is accurately summarised by counsel for the First Respondent in his written submissions as follows:
“19. The Tribunal found the Applicant to be an unreliable witness (CB 145 [60]). This finding was based on the concerns put to the Applicant at the hearing (see, for instance, at CB 140 [47]) as well as on those put to the Applicant in writing in the Tribunal’s s 42A letter. The Applicant’s responses did not allay the Tribunal’s concerns.
20. The Tribunal did not accept that the Applicant was a member of the Local Church (CB 145 [61]). The Tribunal stated that the Applicant was able to demonstrate “only limited knowledge” of Local Church beliefs and practices when he was interviewed by the delegate. The Tribunal noted that, in his response to the s 424A letter, the Applicant claimed that his responses at the departmental interview were not correctly interpreted. The Tribunal “carefully considered” these claims but found that the interpreter “did not seriously misrepresent the applicant’s responses, even if the applicant’s allegations about the interpretation are correct”. In particular, the Tribunal:
(a) did not regard it as important whether the Local Church was regarded as an evil “practice” or “religion”, rather than as a “cult” because the Tribunal accepted the important point, namely, that the Local Church was viewed adversely by the authorities;
(b) did not regard the interpretation regarding the significance of baptism as crucial to the Applicant’s evidence, notwithstanding that it may give the impression of some incoherence on the part of the Applicant;
(c) considered the Applicant’s inability to explain the distinction between registered and unregistered churches as being of “more importance”;
(d) accepted that the Applicant may have thought he was asked about a “prediction” rather than a “parable” but again did not regard this evidence as crucial to the delegate’s finding that the Applicant was not a Christian, or to the Tribunal’s own view after hearing further evidence.
21. The Tribunal described the Applicant’s responses to the Minister’s delegate about Local Church beliefs and practices and his own involvement with the Local Church as “limited, and unconvincing” (CB 145 [61]). The Tribunal referred to the Applicant’s “difficulty” in remembering when he first went to a Local Church gathering, his “unconvincing” explanation as to why he became a Christian, his difficulty in explaining why members call out God’s name during prayer and, more importantly, his “unconvincing explanation” of the activities he undertook on behalf of the Local Church in China.
22. The Tribunal accepted that the Applicant attended a Local Church in Sydney from the end of December 2009 until the hearing in March 2010. However, the Tribunal considered that the Applicant’s evidence to the Tribunal concerning the Local Church was the result of his study in this three month period. The Tribunal did not accept it as evidence that the Applicant was a member of the Local Church in China. The Applicant was unable to explain convincingly why he first became a member of the Local Church in China, even with the benefit of his attendance at the Church in Australia (CB 146 [62]).
23. The Tribunal rejected each of the Applicant’s claims (CB 146 [63]).
24. The Tribunal considered the documents submitted by the Applicant at the hearing. The Tribunal noted that the Document Examination Unit was “unable to verify the authenticity of the documents”. The Tribunal, however, did not accept that the documents were genuine. It did so because the Applicant “was unable to explain adequately how he came by these documents at the time of the Tribunal hearing” (CB 146 [64]).
25. The Tribunal also rejected the Applicant’s evidence that, as a result of his claimed arrest and detention, he was unable to obtain a passport in his own name and was forced to travel on a false passport. The Applicant’s evidence was “obviously untrue” in light of the fact that the Applicant already had a passport (CB 146 [65]).
26. The Tribunal did not accept, on the evidence before it, that the Applicant’s claim of arrest and detention was true. This was because the Applicant had not submitted convincing evidence of his involvement in the Local Church in China and no other plausible reason was advanced for the authorities to have an adverse interest in the Applicant. Further, the Tribunal considered that the Applicant’s account of his treatment in detention in his application differed considerably from the description put forward at the Tribunal hearing. Finally, the Tribunal noted that the Applicant was unable to provide any explanation about the fate of his tutor, nor did he appear interested in finding out information about him (CB 147 [66]).
27. The Tribunal did not accept that the Applicant was ever persecuted in the past in China (CB 147 [67). The Tribunal was not satisfied that the Applicant attended the Local Church in Australia other than for the purpose of strengthening his claim to be a refugee and, accordingly, it disregarded this conduct, pursuant to s 91R(3) (CB 147 [68]-[70]).
28. The Tribunal was not satisfied that there is a real chance that the Applicant will be persecuted in a Convention sense if he returns to China in the foreseeable future (CB 147 [71]). The Tribunal was not satisfied that the Applicant has a well-founded fear of persecution in China (CB 147 [71]) and the Tribunal concluded that the Applicant was not a person to whom Australia owes protection obligation, within the meaning of s 36(2)(a) (CB 148 [72]).
29. The Tribunal accordingly affirmed the decision not to grant the Applicant a protection visa (CB 147 [73]).”

The proceeding before this Court

The Applicant was unrepresented before this Court, although had the assistance of a Mandarin interpreter.
On 27 May 2010, the Applicant attended a directions hearing before me. I explained to the Applicant that it is not for this Court to reconsider his claims and that the Court has no power to interfere with the decision of the Tribunal, unless the Court is satisfied that the Tribunal’s decision is affected by a mistake going to the jurisdiction of the Tribunal. The Applicant confirmed that he wished to continue with the application. The Applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the Tribunal hearing.
At the directions hearing, the applicant was referred to the Court’s Legal Advice Scheme for free legal advice. The panel advisor, Mr Godwin, advised the Court that when the applicant was contacted to arrange a conference he informed the advisor that he was interstate, that he would be happy to receive written advice and that he would text his address to Mr Godwin. Mr Godwin informed the Court that two weeks passed and no text was received, so he then sent the applicant a text asking for his address. Mr Godwin informed the Court that the Applicant made no reply or other contact to provide his address or for any other reason. Mr Godwin completed a confirmation of advice form dated 25 June 2010 indicating that the Applicant had not been provided with advice.
On 1 June 2010, the Applicant had filed a notice of change of address nominating the same post office box office number for correspondence as was on his initiating application. At the directions hearing, I had required him to provide his home address and to use that address for correspondence because he told the Court that the post office box number was one he shared with others.
On 29 June 2010, the Court was contacted by the First Respondent’s solicitor Ms Weston who informed the Court that the Applicant had called her seeking panel advice. Ms Weston contacted Mr Godwin on 30 June 2010 to inform him of the Applicant’s change of address.
On 1 July 2010, a member of the Court’s Registry called Mr Godwin and provided him with the Applicant’s new address and Mr Godwin advised he would write to the Applicant and request him to contact him. Mr Godwin confirmed to the Court that he sent another letter to the Applicant at the new address on about 30 June 2010 inviting the Applicant to contact him. However, Mr Godwin informed the Court that the Applicant made no further contact.
A letter had been sent by the Court on 28 May 2010 to the Applicant with the contact details of the panel advisor. As stated above, the Applicant did not file any notice of change of address until 1 June 2010. The Applicant did not apply to the Court for an adjournment of the hearing in order to participate in the scheme. However, if he had, in light of the opportunity provided to the Applicant to participate in the Court’s legal advice scheme and the failure of the Applicant to provide the advisor with his address for correspondence, despite being requested to do so by the panel advisor, any such application for adjournment would more likely than not have been refused.
Moreover, at the directions hearing, the Applicant was also provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language.
At the commencement of the hearing, the Applicant confirmed that he had not filed any amended application, evidence or submissions in support of his application and that he had no further documents to present to the Court this morning in support of his application.
The Applicant confirmed that he relied on the grounds contained in an application filed on 10 May 2010 as follows:
“1. The Tribunal committed jurisdictional error of law by making its decision including a reasonable apprehension of bias.
2. The crucial issue is whether or not I was a devout Christian and active member of the Local Church in China, that is, before I came to Australia. It is no doubt that I have been a devout Christian and active member of the Local Church in China since 2008.
3. The Tribunal rejected my major claim greatly relied on the interview with a Departmental officer on 30 November 2009 (“the Departmental interview”). The Tribunal made a finding, which is absolutely incorrect, that “…The applicant was able to demonstrate only limited knowledge of the Local Church beliefs and practices when he was interviewed by the Department in on 30 November 2009…”.
4. Although the Tribunal seemed to consider my complaint about very poor interpretation of the interpreter at the Departmental interview, it has stated that: “…While the applicant has claimed that his responses were not correctly interpreted at his Departmental interview, the Tribunal has carefully considered his claims about misinterpretation and finds that the interpreter did not seriously misinterpret the applicant’s responses even if the applicant’s allegations about the interpretation are correct…”
5. I have to re-state my complaint in order to assist His Honour to have a better understanding of my case as follows (see my response to the Tribunal’s letter after the interview):
I have to accept that at the Departmental interview I was asked about my religious belief and practices in China. But, unfortunately, the interpreter at the interview was unable to interpreter (sic) my evidence properly and accurately. Following are some examples:
- My evidence is that the church, which I attended in China, was the Local Church; and that it has been regarded as an “evil cult” like Falungong; but it was improperly and inaccurately interpreted as “a local church” and “evil practice” or “evil religion” (The Departmental interview CD: 01:18:39 – 01:19:31).
- My evidence is that we called ourselves the Local Church, but the outside called us “Shouters”, because we shout the Lord’s name when we pray; but it was improperly and inaccurately interpreted as we were the members of the “Shouters” (The Departmental interview CD:01:21:50 – 02:22:30).
- My evidence is that significance of baptism in the Bible means that we died with the Lord, and we were buried with the Lord and we were resurrected with the Lord; but it was improperly and inaccurately interpreted as “I am with the God…no matter live or dead…” (The Departmental interview CD: 01:26:30 – 01:27:12).
Furthermore, the interpreter was obviously unable to interpret my dialect claims about the main teaching of the Local Church.
I was asked about the difference between the registered and unregistered church at the Departmental interview, I replied that we were regarded as “evil cult”; and that it meant we would be arrested and persecuted if we got involved in it. But, I was interrupted by the interpreter here; and furthermore, the interpreter misinterpreted my evidence of “evil cult” into “evil religion”. After then, the Departmental officer changed the topic and failed to give me a chance to continually explain about the difference between the registered and unregistered church (The Departmental interview CD: 01:19:00 – 01:19:31).
At the Departmental interview, I was asked to my favourite parable of the Jesus. But, at that time, I did not realise that I was asked about parable; instead, I thought that I was (asked) about prediction of the Jesus. However, parable in Chinese is “[Chinese characters]”, which is pronounced as yu-yan; and prediction in Chinese is “[Chinese characters]”, which is also pronounced as yu-yan. The question is that the interpreter at the Departmental interview failed to interpret clearly in Chinese what the Departmental officer asked was the prediction or parable. But, I misunderstood that the Departmental official’s question was about prediction; and therefore I gave a story about that Jesus predicts Peter’s denial – Jesus said to the Peter: “rooter (sic) will not crow tonight until you have said three times that you do not know me”. – Unfortunately, I made a mistake here owing to pressure, because I said Simon instead of Peter. However, again the interpreter failed interpret my evidences properly and accurately (The Departmental interview CD: 01:44:32 – 01:47:00).
I have to accept that I might not be able to give an adequate description of the content of either the Old or the New Testaments at the Tribunal’s hearing, because, in my mind, it was a very big question and I should mention a lot; but on the other hand I really did not know where I should start doing so at the Tribunal’s hearing.
6. The question is that the interpreter at the Departmental interview was UNABLE to interpret either the delegate’s questions or my responses to the questions; and even the Tribunal itself could not deny the fact. How could the Tribunal make its findings greatly relied on the Departmental interview?
7. It is very clearly that the Tribunal failed to bring an impartial mind to the determination of my case; and thus the Tribunal’s decision has included an apprehension of bias.”

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

Grounds 1 and 7

Grounds 1 and 7 were not supported by written submissions. The Applicant made oral submissions to the Court stating that the Tribunal had made serious legal errors with bias and that the decision was unfair. In support of that general allegation, the Applicant stated that the key issue in considering whether he was a refugee was for the Tribunal to assess if he was a Christian before he came to Australia and to determine if he was an active Local Church member in China since 2008. The Applicant submitted that the Tribunal affirmed the decision under review by relying on the Delegate’s finding of his limited knowledge of Christianity. The Applicant stated that at the interview with the Delegate the interpreter had made errors. The Applicant submitted that because the interpreter had failed to provide correct interpretation, there had been no effective communication between the Delegate and the Applicant to allow the Delegate properly to assess his claims. The Applicant submitted that if the translation was poor then the communication must be no good.
This complaint is not made out on the face of the decision record. The decision record makes clear that the Tribunal considered the Applicant’s complaint about the interpretation at his interview with the Delegate. Ultimately, in accordance with its statutory duty, the Tribunal explored the Applicant’s claims with him and considered all his claims, including those which the Applicant alleged were the subject of misinterpretation before the Delegate. In accordance with s.430 of the Act, the Tribunal set out its decision on the review, the reasons for its decision and its findings on the material questions of fact. It also referred to the evidence and other material on which its findings of fact were based (cf. Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108).
To the extent that Ground 1 alleges bias by the Tribunal against the Applicant, such a claim is serious and requires evidence, such as a transcript of the Tribunal hearing. Further, it is a rare and exceptional case where bias can be demonstrated solely from the published reasons of a decision. Similarly, the mere fact that the Tribunal makes adverse findings in respect of the Applicant does not give rise to an inference of bias or, by itself, suggest that the decision-maker approached its task other than with a mind open to persuasion (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]).
The Applicant was directed on 27 May 2010 by this Court to file and serve any affidavit containing additional evidence to be relied upon, including a transcript of the hearing, by 23 June 2010. The Court’s directions made clear that, if the Applicant wished to rely on a transcript of the Tribunal hearing, he would need to have that transcript prepared and verified by affidavit. The Applicant was also directed that, if he wished to rely on recordings of the hearing, he would need to give notice to the Court and the First Respondent by 23 June 2010. No step was taken by the Applicant to file any material either in accordance with the directions of the Court or otherwise.
The Applicant did not provide any evidence to this Court to suggest that the Tribunal’s decision record is not accurate. In the circumstances, the Court accepts as accurate the Tribunal’s summary of the oral evidence given by the Applicant and exchanges it had with the Applicant at the Tribunal hearing.
On 2 March 2010, the Tribunal wrote to the Applicant inviting him to comment on information that may be the reason or part of the reason for affirming the decision under review. The particulars of the information were twofold.
The first piece of information related to the Department records of two applications made by the Applicant for a student visa which included a copy of his passport. In finding that the Applicant’s evidence was not credible, the Delegate also had regard to the Applicant’s evidence that he neither had a passport issued to him in his own name, nor had he previously applied for an Australian visa. As put to the Applicant, the information before the Delegate contradicted these two claims. The Tribunal’s letter stated that the information was relevant to the review because, at the interview with the Delegate, the Applicant had denied that he had a passport in his own name and that it was impossible for him to get a passport because of the police case against him, although he had applied for one in May 2009. The Tribunal’s letter noted that, at the interview with the Delegate, the Applicant had said he had not previously applied to come to Australia. However, when the information was given to him by the Delegate, he agreed that he did have a passport in his own name.
The second piece of information related to the Applicant’s evidence given to the Delegate at interview where he was unable to state the difference between registered and unregistered churches or give an example of a parable from the Bible. The letter noted that, at the hearing with the Tribunal on 9 March 2010, the Applicant said that the Bible was always read at Shouter gatherings, which the Applicant claimed to have attended since April 2008. However, the letter noted that the Applicant was unable to give an adequate description of the content of either the Old or the New Testaments.
On 24 March 2010, the Applicant responded to the Tribunal’s letter. In his letter, the Applicant accepted that a passport had been issued previously in his own name and that he had made two applications for student visas. However, he claimed that he knew nothing about the Applications until the interview with the Delegate because the documents were prepared and organised by his parents through their friends and his parents never told him about it “exactly”.
In relation to the Applicant’s claimed religious belief and practices in China, the Applicant’s letter stated that the interpreter at the interview was unable to interpret the Applicant’s evidence “properly and accurately”. The letter asserted that the interpreter was also unable to interpret the Applicant’s detailed claims about the main teachings of the Local Church.
In relation to the Applicant’s knowledge of the difference between registered and unregistered churches in China, the Applicant again claimed that the interpreter misinterpreted his evidence that the unregistered church was regarded as an “evil religion” by interpreting his answer as “an evil cult”. The Applicant’s letter stated that the Delegate changed the topic and failed to give the Applicant a chance “to continually explain about the difference between the registered and unregistered churches”.
The Applicant’s letter also stated that the Delegate asked him about his favourite parable of Jesus. However, the Applicant stated he had thought he was being asked about a “prediction of the Jesus”. Again, the Applicant alleged that this misunderstanding was due to the failure of the interpreter to interpret “properly and accurately”.
However, the Applicant did accept that he may not have been able to give an adequate description of the content of either the Old or the New Testaments to the Tribunal at the hearing because in his mind it was “a very big question” and that he did not really know where to start explaining to the Tribunal.
The Tribunal’s decision record makes clear that the Tribunal accurately summarised the Applicant’s written claims. The Tribunal then gave a detailed summary of the Applicant’s evidence given to the Delegate on 30 November 2009.
The Tribunal did not accept that the Applicant was a member of the Local Church in China as claimed and found that he was able to demonstrate “only limited knowledge of the Local Church beliefs and practice when he was interviewed by the Department on 30 November 2009.”
The Tribunal noted that the Applicant claimed that his responses were not correctly interpreted at the interview with the Delegate. The Tribunal noted that it “carefully considered his claims about misinterpretation and finds that the interpreter did not seriously misrepresent the Applicant’s responses, even if the Applicant’s allegations about the interpretation are correct”. The Tribunal then had regard to the examples provided by the Applicant as particularised in the grounds of his application and did not regard those differences as important. The Tribunal found that, while the interpretation in relation to the significance of baptism gave the impression of “some incoherence on the part of the Applicant”, it was not crucial to his evidence.
The Tribunal found that the Applicant’s failure to distinguish between registered and unregistered churches in China was of importance and that his responses to questions about Local Church beliefs and practices and his own involvement with the Local Church were “very limited and unconvincing”.
The Tribunal noted that the Applicant brought to the hearing on 9 March 2009 a number of documents purporting to be official documents issued by the Public Security Bureau (“PSB”) relating to his alleged detention and release from detention in April/May 2009. The Tribunal sent the documents to the Document Examination Unit which was unable to make any positive finding about their authenticity. The Tribunal noted that it explored with the Applicant at the hearing if he had the original documents and how he obtained the documents. The Tribunal noted that the Applicant stated that he had received the documents only two weeks ago. The Tribunal put to the Applicant why, if he had arrived some time ago, did he only receive the documents two weeks ago. The Tribunal noted the Applicant’s response that he found it difficult to answer anything about the documents and asked if he could speak to his advisor at the end of the hearing. The Tribunal noted that it told him he could not and that he should be able to say without any further enquiries how he received the documents. The Tribunal noted that it put to the Applicant that, if he was unable to do so, the Tribunal was not prepared to accept that the documents were genuine, particularly, in light of country information that indicated that it was not difficult to obtain fraudulent documents in China. The Tribunal noted that the Applicant was given another chance to explain how he came by the documents, but was unable to do so.
The Tribunal then explored with the Applicant whether he had spoken to his parents since he had been in Australia and noted his response that he had spoken with them several times a month ago but that it was difficult to do so because they had been questioned by police a number of times and were under “a kind of surveillance”. The Tribunal noted that it asked the Applicant when the surveillance began and that he responded that it was in May 2009 when he came out of detention. The Tribunal put to the Applicant that he had not mentioned this previously and noted the Applicant’s response that he had not been asked about it. The Tribunal then noted that he put to the Applicant that he had not mentioned it in his protection visa application and noted the Applicant’s response that he had.
The Tribunal then noted that it asked the Applicant when he became involved in Christianity, noting the Applicant’s answer that it was in 2008. The Tribunal noted that it asked the Applicant if his parents were Christian and noted the Applicant’s response that they were. The Tribunal then put to the Applicant that he had told the Delegate that none of his family was Christian. The Tribunal noted the Applicant’s response that they accepted Jesus in their hearts.
The Tribunal asked the Applicant about how his tutor came to convince him to become involved in Christianity and noted that the Applicant “seemed to have great difficulty in answering this question and provided a deal of irrelevant information.” The Tribunal noted that it asked the Applicant the question three times and the Applicant responded that he went to gatherings every week. The Tribunal also asked the Applicant when he last saw his tutor and noted that the Applicant “had a great deal of difficulty in answering this question which was put to him repeatedly”. The Tribunal explored with the Applicant his evidence relating to the meetings. The Tribunal noted that it asked the Applicant whether members always read the Bible at their gatherings and noted that the Applicant responded that they read both the Old Testament and the New Testament. The Tribunal then explored the Applicant’s knowledge of the Old and New Testaments. The Tribunal then asked the Applicant to describe his baptism.
The Tribunal explored with the Applicant his claims of arrest, detention and torture. The Tribunal noted that it asked the Applicant why he had not been freed from detention earlier if he had been granted bail to be released from detention and noted the Applicant’s response that his father had to pull strings to arrange the right connections.
The Tribunal also explored with the Applicant when the Local Church was founded and by whom, when he obtained his false Hong Kong passport, how he came to Australia and his attendance at Local Church meetings in Australia since early 2009.
As stated above, the Tribunal put to the Applicant its concerns about his evidence, particularly his denial of ever having had a passport and his failure to explain how he came to be in a possession of the arrest and detention documents he had submitted to the Tribunal at the hearing. The Tribunal asked the Applicant if he could explain these concerns and noted the Applicant’s answer that he could not. The Tribunal noted that it put to the Applicant in writing the concerns it had about these issues and their impact on his credibility.
The Tribunal identified with particularity country information to which it had regard.
The Tribunal considered carefully and in detail the Applicant’s complaints about the quality of the interpretation of his evidence to the Delegate. As stated above, the Tribunal found the misinterpretations of little moment, however, found that the Applicant gave an unconvincing explanation to the Delegate of why he became a Christian and his activities that he claimed to have undertaken on behalf of the Local Church in China.
The Tribunal then noted that it was three months since the Applicant gave this evidence to the Delegate and that his knowledge of Local Church beliefs and practices had been gained during that time when he attended the Local Church in Sydney, from the end of December 2009 up to 27 March 2010. However, the Tribunal found that, even with the benefit of his attendance at the Local Church in Australia, the Applicant was unable to explain convincingly why he first became a member of the Local Church in China, even though he was reasonably fluent in describing Local Church beliefs.
Ultimately, the Tribunal comprehensively rejected the Applicant’s claims of detention and arrest in China for the reasons claimed and did not accept the documents that the Applicant had provided in support of his alleged arrest and detention were genuine. That finding was based on the unsatisfactory evidence of the Applicant in explaining the provenance of the Applicant’s documents. The Tribunal did not accept that the Applicant had ever been persecuted in China for any Convention-related reason and rejected the Applicant’s claim of ever having been involved in the Local Church in China.
In relation to the Applicant’s claim of attending the Local Church in Australia, the Tribunal was not satisfied that the Applicant entered into that conduct for any reason other than to strengthen his claims to be a refugee within the meaning of the Convention. For that reason, the Tribunal disregarded that conduct.
The Tribunal noted that the Applicant did not give any evidence of any other Convention reason why he may be persecuted if he were to return to China in the foreseeable future. In the circumstances, the Tribunal was not satisfied on the evidence before it that there was a real chance that the Applicant would be persecuted, if he were to return to China in the foreseeable future, for any Convention-related reason.
The Tribunal’s findings and conclusions were open to it on the evidence and material before it and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
A fair reading of the Tribunal’s decision record does not disclose any prejudgment on the part of the Tribunal in the sense that the Tribunal was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented.” (Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 at [69], [71]-[72], [127]). The Applicant had specifically complained to the Tribunal about the quality of the interpretation before the Delegate. The Tribunal considered those complaints, but ultimately found them uncompelling. The mere fact that the Tribunal did not agree that the misinterpretations affected the ability of the Delegate to properly understand the Applicant’s evidence is not sufficient to establish bias on the part of the Tribunal. Even if the Delegate erred, the Tribunal’s comprehensive full merits review of the Applicant’s claims to have a well-founded fear of persecution for a Convention related reason cured any error which may have been committed by the Delegate, including any failure on the part of the Delegate to accord procedural fairness to the Applicant in relation to any difficulties with the interpreter at the interview with the Delegate (Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 344 at 352-354, [28], [30]-[32]; SZGME v Minister for Immigration and Citizenship (2008) 168 FCR 487 at 495, [25], per Black CJ; Twist v Randwick Municipal Council (1976) 136 CLR 106 at 116 per Mason J; SZNZK v Minister for Immigration and Citizenship & Anor (2010) 115 ALD 332 at 342, [43]-[45] per Perram J).
It is clear from the detailed consideration of all the evidence and material before it, that the Tribunal was not satisfied that the Applicant met the criteria for being a refugee. The Tribunal came to that conclusion after complying with its statutory duties in its review of the delegate’s decision. In those circumstances, s.65(1)(b) of the Act mandates that the Applicant must be refused a protection visa.
A fair reading of the Tribunal’s decision does not suggest that the Tribunal approached its task other than open with a mind open to persuasion. There is no evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind in determining the application for review (Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]-[32]; NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115]).
In the circumstances, the allegation of bias or apprehended bias is rejected.
Accordingly, Ground 1 is not made out.

Grounds 2, 3, 4 and 5

Grounds 2, 3, 4 and 5 appear to be more in the nature of disagreements with the findings and conclusions of the Tribunal, particularly the Tribunal’s finding in relation to the Applicant’s complaint about interpretation. Those complaints are dealt with above. Otherwise, the Applicant’s disagreement with the Tribunal’s findings of fact invites merits review which this Court cannot undertake (Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [195]; Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1986) 162 CLR 24 at 40-42 per Mason J).

Ground 6

Ground 6 appears to reassert the Applicant’s complaints to the Tribunal about the interpretation at the Applicant’s interview with the Delegate. As stated above, the Tribunal carefully and comprehensively considered those complaints. It found the Applicant’s evidence before the Delegate to be unconvincing. As stated above, those findings were open to the Tribunal on the evidence and material before it and for the reasons it gave. The Applicant did not provide any evidence to this Court in support of the allegations of the unsatisfactory nature of the interpretation.
The Tribunal’s decision record makes clear that the Tribunal dealt with each of the pieces of evidence about which the Applicant complained and ultimately found them to be uncompelling. As stated in paragraph 84 above, in circumstances where the Tribunal discharged its statutory duties in the conduct of its review and the making of its decision, it matters not even if the Tribunal was wrong to conclude that there was no error in the Delegate’s decision.
It is otherwise unclear what the Applicant intends by Ground 6 other than to be a restatement of his complaint about the Tribunal’s finding that the Applicant’s interpretation complaints were not sufficient to persuade it that the Applicant had a well founded fear of persecution for a well-founded fear of persecution. As stated above, such a complaint invites merits review and this Court has no power to consider the merits of the Applicant’s claims.
Accordingly, Ground 6 is rejected.

Conclusion

A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant at a hearing; and, had regard to all material provided in support. The Tribunal put to the Applicant matters of concern it had about his evidence, including the Applicant’s documents allegedly from the PSB, and noted the Applicant’s responses. The Tribunal also identified independent country information to which it had regard. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court should be dismissed with costs.

I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate:

Date: 8 September 2010