SZOLE v Minister for Immigration - [2010] FMCA 964

FEDERAL MAGISTRATE COURT OF AUSTRALIA

SZOLE v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 964

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.91R, 424A, 425

Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230
Attorney General for the State of New South Wales v Quin (1991) 170 CLR 1; [1990] HCA 21
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547; [1998] FCA 1126
Minister for Immigration and Citizenship v SZMDS and Another (2010) 240 CLR 611; [2010] HCA 16
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405; [2000] HCA 1
Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668
SZJBD v Minister for Immigration and Citizenship and Another (2009) 179 FCR 109; [2009] FCAFC 106
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63

Applicant:

SZOLE

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1155 of 2010

Judgment of:

Barnes FM

Hearing date:

24 November 2010

Delivered at:

Sydney

Delivered on:

24 November 2010

REPRESENTATION

Applicant:

In person

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

The application is dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $3,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1155 of 2010

SZOLE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Refugee Review Tribunal dated 24 April 2010 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of the People’s Republic of China, first arrived in Australia on 26 June 2007. She last arrived in February 2009 and applied for a protection visa on 9 September 2009. In a statement accompanying her protection visa application the applicant claimed to fear persecution in China as a Christian.
The application was refused by a delegate of the first respondent and the applicant sought review by the Tribunal. She was invited to and attended a Tribunal hearing. She provided the Tribunal with a copy of a document dated 10 March 2010 under the name of a person described as an “Elder of the Mandarin Ministry Ashfield Presbyterian Church” acknowledging that she had attended the Mandarin Ministry service since July 2007.
In its reasons for decision the Tribunal set out the claims made by the applicant in connection with her original application, in the interview with the delegate and at the Tribunal hearing. It referred to the fact that in the interview with the delegate the applicant had elaborated on her claims about her involvement in the underground church in China and the basis for her fears.
The applicant also claimed that her husband (who had been involved in the underground church) had been detained in 1999, that he was released after payment of money and that he had moved to Japan. She had visited Japan in December 2008 and January 2009 and claimed that when she then returned to China, the government thought that as she had been in Australia and Japan she had taken part in illegal activity in foreign countries. She claimed that the police followed her and that she had been warned by a female member of the church that the government wanted to arrest her. It also recorded her claims that she had been arrested and detained because of the one child policy and that she had been attending the Ashfield Chinese People’s Church in Australia.
The Tribunal set out in detail the applicant’s evidence at the Tribunal hearing. It described its questioning of the applicant about her knowledge of aspects of Christianity, including the fact that it put to the applicant its concerns in relation to her limited knowledge and set out her explanation for her lack of knowledge. The Tribunal also recorded that it put to the applicant a number of their problems with her evidence, which it specified, including concerns about her conduct in Australia and the application of s.91R(3) of the Migration Act 1958 (Cth) as well as the fact that country information with regard to the persecution of the underground church in China did not accord with the account that she had given.
In its findings and reasons the Tribunal did not accept that the applicant was telling the truth about her involvement in an underground unregistered church in China, in essence because of implausibilities and deficiencies in her evidence which had been discussed with her at the hearing.
The Tribunal stated that, as it had put to the applicant, it found it “very difficult to believe that she was brought up as a Christian”, that “her mother had taught her to read some of the Bible” and “talked about the Bible” at church gatherings, having regard to the fact that the applicant had been “completely unable to tell [the Tribunal] anything about one of the stories which Jesus had told when He was travelling around and teaching.”
The Tribunal was of the view that, as it had put to the applicant, it appeared that she had “memorised certain passages from the Bible” which she had accurately quoted, but that although the applicant had been able to indicate some knowledge both at the Departmental interview and at the Tribunal hearing, it nonetheless had “difficulty accepting that someone who had grown up attending a Christian church, and whose mother was a leader of the church and who taught her to read the Bible, would not have been able to recount one of the stories which Jesus told when He was travelling around teaching”.
The Tribunal addressed the applicant’s suggestion that it telephone the elder at the Ashfield Presbyterian Church who had written the supporting letter. She claimed she had told the elder that she had acquired a basic knowledge of Christianity from her parents. However the Tribunal was of the view that such an inquiry would not have yielded a useful result in light of the fact that even if in the elder’s view the applicant already had a basic knowledge of the Christian faith in July 2007, this would have to be weighed against her inability to recount any of the stories in the Bible which Jesus had told.
The Tribunal did not accept the applicant’s claims that she was illiterate, given that she said that her mother had taught her to read some of the Bible. Nor did it accept that her family had to put the Bible in a secret place because if the government found it they would have known they were in the underground church, as country information indicated that the Bible was legal in China. The Tribunal also considered, but did not accept, the applicant’s explanations that her “brain was not working well” at the hearing or that she had a bad memory. It observed that on the basis of her performance both at the Departmental interview and at the hearing the applicant had been able to memorise particular passages from the Bible and repeat them accurately, making due allowances for the difficulty of communicating through an interpreter.
The Tribunal also found that the applicant’s behaviour did not seem to accord with her evidence regarding the interest which she claimed the Chinese authorities had in her, in particular in relation to her claim that on 13 January 2009 a church sister had told her the government wanted to arrest her. It had regard to the fact that despite this, the applicant had remained in China until 3 February 2009 and had subsequently attended church gatherings on one or two occasions. The Tribunal was of the view that the fact that the applicant “did not leave China until 3 February [2009] does not suggest that anyone told her on 13 January [2009] that the government wanted to arrest her.”
The Tribunal also had regard to the fact that notwithstanding that the applicant claimed that she was told on 13 April 2009 that a warrant had been issued for her arrest in China, she waited several more months (until her student guardian visa was about to expire) to apply for a protection visa in September 2009. It considered her explanation, but found that the applicant’s delay in applying for a protection visa suggested that she was not telling the truth when she claimed she was told on 13 April 2009 that a warrant had been issued for her arrest in China.
The Tribunal found that the applicant’s evidence with regard to persecution of the underground church in China did not accord with the information available to it, particularly that Fujian Province was one of the provinces in China where underground or unregistered Protestant churches had few problems. It addressed the applicant's submissions in this respect.
The Tribunal concluded that for the reasons given it did not accept that the applicant was “telling the truth about her involvement in an underground or unregistered church in China.” It did not accept that her mother was a leader in a family church in China which met in different people's homes in the village, that her mother taught her to read the Bible and took her to church gatherings or that her mother was arrested and detained for five days in 2005. Nor did it accept that the applicant's husband was arrested on Christmas Eve in 1999 because he was handing out leaflets about the underground church or that the applicant paid money to obtain his release. It accepted that the applicant's husband was in Japan, having regard to her evidence that she visited Japan in December 2008, but did not accept that he went there to escape religious persecution in China. The Tribunal had regard to the fact that the applicant had said that her husband had not applied for refugee status in Japan because one could not do so, whereas in fact Japan was a signatory to the Refugees Convention in the same way as Australia.
The Tribunal accepted that the applicant had been attending the Ashfield Presbyterian Church since July 2007 as stated in the letter she produced. However for the reasons given it did “not accept that she was telling the truth about her involvement in an underground or unregistered church in China” and was “not satisfied that the applicant engaged in her conduct in attending church in Australia otherwise than for the purpose of strengthening her claim to be a refugee.” Hence it disregarded such conduct pursuant to s.91R(3) of the Act.
Given that the Tribunal did not accept that the applicant was telling the truth about her involvement in an underground or unregistered church in China, it did not accept that on 13 January 2009 she was told by a fellow member of the church that the government wanted to arrest her, that they were gathering evidence against her or that they believed that as she had been in Australia and Japan she must have had some connection with an overseas culture or organisation. It did not accept that the police followed the applicant because the government thought she had taken part in illegal activities in foreign countries or that she was accused of being in the banned ‘Shouters’ sect as she claimed.
For the same reasons, the Tribunal did not accept that the applicant was told by one of her daughters that the sister who was said to have informed her of government interest in her had been caught a week after she herself left China and accused of violating public order. It did not accept that in March 2009 the police searched the applicant's home in China claiming that she had some involvement with a cult or that she had returned to China to carry out some task against the government. Nor did it accept that on 13 April 2009 the applicant was told that the police had come to her home with a warrant for her arrest. Hence, the Tribunal did not accept that there was a real chance that if the applicant returned to China now she would be arrested, charged with any offence, imprisoned or otherwise persecuted for reasons of her real or perceived religious beliefs or membership of the particular social group constituted by her family in China.
The Tribunal accepted that the applicant was arrested and detained for one week because of the one child policy in China when she was seven months pregnant with her son who was born in November 1992. It accepted that she was released because her family paid a fine. However having regard to the fact that the applicant did not suggest that she and her husband had any further problems with the family planning authorities in China, the Tribunal did not accept there was a real chance that if the applicant returned to China now or in the reasonably foreseeable future she would be persecuted for any reason associated with her perceived opposition to the family planning policy.
The Tribunal affirmed the delegate's decision.
The applicant sought review by application filed in this court on 24 May 2010. She filed a supporting affidavit in which she claimed to have been persecuted in China. The application contains three generally expressed and unparticularised grounds. The first is that the Tribunal did not consider the applicant’s application fairly. The second is that it “did not weight (sic)” her evidence. The third ground is that the Tribunal “did not access (sic) my risk to return to China as I am a Christian.” No amended application or any affidavit or other evidence was filed by the applicant. Nor did she file written submissions, although she made oral submissions.
Before turning to the matters raised by the applicant today, it is convenient to consider the grounds in the application. It is contended that the Tribunal “did not consider [the applicant’s] application fairly.” Insofar as the applicant intends to take issue with the Tribunal conclusions and the fact that it did not accept her claims, such a ground seeks impermissible merits review. The applicant appears to assert that the Tribunal should have accepted her claims and because it did not the decision was unfair. However this does not establish jurisdictional error (see Attorney General for the State of New South Wales v Quin (1991) 170 CLR 1; [1990] HCA 21).
I have considered the possibility that the applicant may have intended to assert either actual or apprehended bias in the sense considered in Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28 and Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17). There is however nothing in the material before the court to establish either actual or apprehended bias. An assertion of bias is a serious allegation and must be strictly proved. It is a rare and exceptional case in which bias will be established on the basis of the decision record alone (see SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668). There is nothing in the decision record to support such a serious allegation. The fact that the Tribunal raised issues of concern with the applicant during the hearing is not such as to establish either actual bias or apprehended bias from the perspective of the informed lay observer in the sense considered in Re Refugee Review Tribunal; Ex parte H. As expressed, ground one is not made out.
Ground two is not entirely clear. It is that the Tribunal “did not weight my evidence”. Insofar as this takes issue with the weight given to aspects of the applicant’s evidence, it is for the Tribunal to give greater or lesser weight to aspects of the evidence before it. The decision of the Tribunal involved an adverse credibility finding. Credibility is a matter for the decision maker par excellence in the sense considered by McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405; [2000] HCA 1. The Tribunal’s findings in that respect were open to it on the material before it for the reasons that it gave.
As the first respondent submitted, the Tribunal provided a rational basis for not accepting the applicant’s claims and relied upon matters that were logically probative of the issues it was determining (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547; [1998] FCA 1126). The fact that the applicant takes issue with the Tribunal’s conclusions or, indeed, that a different decision maker may have reached a different decision on the same material, is not such as to establish jurisdictional error in the manner contended for by the applicant.
If it is intended to be suggested that the Tribunal did not have regard to aspects of the applicant’s evidence, there is nothing in the material before the court to suggest that the Tribunal failed to have regard to any integer of the applicant’s claims. Ground two is not made out.
Ground three is that the Tribunal “did not access (sic) my risk to return to China as I am Christian”. It is presumably intended to be contended that the Tribunal did not assess the risk, but in any event such a ground is not made out. Contrary to the applicant’s contention, the Tribunal considered her claims in detail, but in light of its adverse credibility finding did not accept critical aspects of her claims (in particular that she had been telling the truth about her involvement in an underground or unregistered church in China and about the interest of the authorities). On that basis the Tribunal considered whether, but did not accept that, there was a real chance that if the applicant returned to China she would be arrested, charged with any offence, imprisoned or otherwise persecuted for reasons of real or perceived religious beliefs. The Tribunal also considered any claim insofar as it might have been intended to be expressed in terms of a particular social group constituted by the applicant’s family in China, consistent with her claims in relation to her husband and in relation to the one child policy. Ground three is not made out.
At the hearing today the applicant raised a number of matters. The first was that the Tribunal did not take into account her claims, in particular that the Tribunal did not consider the claims in her application and evidence seriously. To some extent these claims may be seen as an elaboration on the grounds in the application. As indicated, insofar as they involve an assertion that the Tribunal should have accepted the applicant’s claims and, because it did not, the decision was unfair, the applicant seeks impermissible merits review. It has not been established that the Tribunal failed to consider any integer of the applicant’s claims and the applicant has not established any procedural unfairness or actual or apprehended bias.
The applicant also claimed that in the Tribunal hearing she provided comment, but that her comment was always interrupted by the Tribunal member and that she was not given sufficient time to explain what she wanted to say. This is the first time that such a claim has been made. At the directions hearing conducted on 17 June 2010 (at which the applicant had the assistance of an interpreter) orders were made for the filing and serving of any additional evidence, including any transcript of the Tribunal hearing, by 20 August 2010. No transcript has been filed. Nor is there any other evidence before the court such as to support the applicant’s claims in this respect.
The only evidence of what occurred at the Tribunal hearing is the Tribunal’s account of the Tribunal hearing from which it would appear that the applicant was given the opportunity on many occasions to comment on particular issues of concern to the Tribunal and to elaborate on her claims. The Tribunal’s account of the applicant’s responses is not such as to demonstrate or to enable an inference to be drawn that she was interrupted, not given an opportunity to complete what she wished to say or not given sufficient time to express what she wanted to say. I note that according to the hearing record contained in the court book the hearing went from 9.04 am to 10.48 am. It was clearly not conducted in a cursory manner. The applicant had the assistance of an interpreter as requested in her response to hearing invitation form. This ground is not made out on the evidence before the court.

The next issue raised by the applicant was that the Tribunal underestimated the likelihood that she would be persecuted if she returned to China. This reiterates ground three in the application and, similarly, is not made out. The Tribunal considered the risk of persecution should the applicant return to China, having considered and reached a view as to which of the applicant’s claims it accepted.
The applicant also took issue with the interpreter at the Tribunal hearing. Again this issue was raised for the first time today. There is no evidence before the court as to the conduct of the hearing other than the Tribunal decision record. The applicant claimed very generally, and without reference to any particular claimed deficiency, that she did not think that the interpreter did a good job at the hearing, that she thought she said a lot and that the interpreter just translated part. She also claimed that she thought that the interpreter was not translating accurately or clearly. When I raised that that there was no transcript of the Tribunal hearing before the court, she stated that she did not know how or what kind of evidence she needed to provide to the court. I note however, as indicated above, the orders made at the directions hearing and that the applicant had the opportunity to participate in the free legal advice scheme.
While the applicant did not seek to put further evidence before the court, I considered whether the issues that she raised at the hearing today were such as to warrant a further opportunity being afforded to her to put evidence before the court in support of her contentions. However, given the vagueness and generality of the applicant’s claims in this respect and the absence of identification of any specific translation or interpretation concerns, together with the apparently comprehensive and readily understandable account given by the Tribunal of the applicant’s evidence at the Tribunal hearing, I am not satisfied that this is a case in which such opportunity should be afforded to the applicant.
The applicant’s claims in relation to the interpreter at the Tribunal hearing are not made out on the material before the court. While it is the case that a Tribunal may fall into jurisdictional error in circumstances where interpretation is inadequate (see SZJBD v Minister for Immigration and Citizenship and Another (2009) 179 FCR 109; [2009] FCAFC 106 and Appellant P119/2002 v Minister for Immigration & Multicultural& Indigenous Affairs [2003] FCAFC 230), this is not such a case on the evidence before the court and no breach of s.425 of the Act is established. It has not been established that the translation at the hearing before the Tribunal was so inadequate that it could be said that the applicant was effectively prevented from giving evidence at the Tribunal hearing. There has been no identification of particular errors material to the conclusions reached by the Tribunal.
The applicant also claimed that she feared returning to China and asked that the court remit the matter to the Tribunal. Such a contention does not establish jurisdictional error.
In concluding submissions the applicant claimed that no matter what she said the Tribunal did not believe her. Insofar as this takes issue with the Tribunal’s credibility finding, it has not been established that the Tribunal decision was not open to it on the material before it for the reasons that it gave. There is nothing in the material before the court to establish a claim based on irrationality or illogicality or that the decision was not based on probative grounds (see Minister for Immigration and Citizenship v SZMDS and Another (2010) 240 CLR 611; [2010] HCA 16) and, as discussed above, neither actual nor apprehended bias is made out.
For the sake of completeness I note that, as submitted by the first respondent, it has not otherwise been established that there was any failure by the Tribunal to comply with its obligations under s.425 of the Act, in particular its obligation to put to the applicant determinative issues, having regard to the Tribunal’s account of the Tribunal hearing (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63). It is apparent that the Tribunal explored the applicant’s claims and discussed its concerns with her, not only throughout the hearing but also by way of summary. It gave her the opportunity to comment and in its findings and reasons it addressed her various explanations. Further, this is not a case in which the Tribunal’s obligations under s.424A of the Act were enlivened.
As no jurisdictional error has been established, the application must be dismissed.

RECORDED: NOT TRANSCRIBED

As the applicant has been unsuccessful, it is appropriate that she meet the costs of the first respondent. The amount sought is appropriate in light of the nature of this and other similar matters.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Barnes FM

Date: 16 December 2010