SZOUO v Minister for Immigration
[2018] FCCA 1016
•30 April 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZOUO & ORS v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1016 |
| Catchwords: MIGRATION – Application for review of the decision of the Administrative Appeals Tribunal – the Tribunal only gave limited weight to certain evidence in support of the applicants’ claims – whether the Tribunal breached s.425 of the Act – whether the Tribunal was biased – whether the Tribunal’s questioning of the first applicant’s religious knowledge and conviction were reasonable – no jurisdiction error – application dismissed. |
| Legislation: Evidence Act 1995 (Cth), s.55 Migration Act 1958 (Cth), ss.375A, 438, 476 Federal Circuit Court Rules 2001 (Cth), rr.44.12, 44.13 |
| Cases cited: SZOUO & Ors v Minister for Immigration & Anor [2015] FCCA 1430 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 |
| First Applicant: | SZOUO |
| Second Applicant: | SZUTH |
| Third Applicant: | SZUTG |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1362 of 2016 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 16 August 2017 |
| Date of Last Submission: | 19 September 2017 |
| Delivered at: | Sydney |
| Delivered on: | 30 April 2018 |
REPRESENTATION
| Applicants: | First applicant in person and on behalf of the second and third applicants |
| Solicitors for the Respondents: | Ms C Saunders of DLA Piper Australia |
ORDERS
The application made on 30 May 2016 is dismissed.
The first and second applicants pay the first respondent’s costs set in the amount of $7,206.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1362 of 2016
| SZOUO |
First Applicant
| SZUTH |
Second Applicant
| SZUTG |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 30 May 2016, seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) which, on 30 April 2016, affirmed the decision of the Minister’s delegate (“the delegate”) to refuse protection visas to the applicants.
In evidence before the Court is a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”) and the affidavit of Zoe Vasiliki Papagiannis, Solicitor, made on 9 August 2017, with relevant annexure and exhibit.
Background
The applicants are citizens of the People’s Republic of China (CB 50, CB 65 and CB 72). The second applicant is the first applicant’s de facto partner, and the third applicant is their child. They made the application for the visas which was received by the Minister’s department on 16 May 2012 (CB 39 to CB 103). They were assisted by a registered migration agent (CB 47).
The first applicant submitted her own claims to protection, and the second and third applicants applied as members of the first applicant’s family unit. However, at the conclusion of the hearing before the reconstituted Tribunal (see further below), the first applicant stated that she was making claims on behalf of the third applicant in relation to him being a “Roman Catholic and a ‘black child’” ([16] at CB 335).
The first applicant’s claims to fear harm were contained in a written statement attached to the protection visa application (CB 97 to CB 103). The first applicant claimed that in 2010, a childhood friend (“Miss Chen”) introduced her and her mother to the “Roman Catholic Underground Church”, following the breakup of her mother’s marriage to her father. The first applicant claimed to have attended a Bible study group (which was at the home of Miss Chen), with her mother, for the first time when she travelled back to China in 2010 (after being in Australia on a student visa) (CB 97 to CB 98).
The first applicant claimed to have attended the Bible study group numerous times which was held in different locations to avoid the “attention” of the Public Security Bureau (“PSB”) (CB 98). She also claimed to have subsequently been baptised on 12 February 2010 with her mother, and her brother was baptised in April 2010 (CB 98 to CB 99). The first applicant claimed that her brother then became heavily involved in the underground church and began “secretly evangeliz[ing]” to students on campus at the university he attended (CB 99).
The first applicant claimed that she returned to China again on 20 January 2011 and worked as an assistant to Miss Chen, along with her brother and his girlfriend (Miss Lin), during a “Catechumen class” (CB 99). The first applicant left China on 24 February 2011 and claimed that this was the last time she saw her brother as he was arrested and badly beaten by the authorities, trying to protect his girlfriend, and subsequently died (CB 100).
The first applicant then claimed that Miss Lin and Miss Chen were arrested by the PSB, and her mother was detained at the Fuqing Detention Centre for two months from 15 March 2011 to 15 May 2011, where she was subjected to “torture and mistreatment” (CB 100).
The first applicant claimed to have returned to Australia on 20 February 2010 and began attending the Catholic Church where she met the second applicant. She claimed that if they return to China they will be subjected to a fine for having a child out of wedlock, and he (the third applicant) will then become a “black child”, and “unable to survive in China” (CB 101).
The delegate refused the grant of the visas on 19 September 2012 (CB 113 to CB 146). The applicants applied for review to the Tribunal on 16 October 2012 (CB 148 to CB 154). The Tribunal (differently constituted) affirmed that delegate’s decision on 29 May 2014 (CB 219 to CB 238). The matter was remitted to the Tribunal for reconsideration on 29 May 2015 (see SZOUO & Ors v Minister for Immigration & Anor [2015] FCCA 1430 (“SZOUO & Ors (2015)”)).
The applicants attended a hearing before the reconstituted Tribunal on 29 October 2015 (CB 313 to CB 316). The applicants’ representative also attended the hearing, as did Father Paul McGee, who also gave evidence to the Tribunal (CB 313). The Tribunal affirmed the delegate’s decision on 30 April 2016 (CB 329 to CB 349).
The Tribunal found the first applicant’s evidence at the hearing not to be “convincing or persuasive”, and also found that some of her claims were “implausible”, and “her conduct to be inconsistent with her claims”. It also found inconsistencies between her evidence and the evidence of the second applicant ([23] at CB 336).
The Tribunal raised inconsistencies between the first and second applicants’ evidence with the first applicant at the hearing, but found her explanation for the inconsistencies to be “implausible” ([25] – [26] at CB 337). The inconsistencies were in relation to “where her father lived, the breakdown of her parents’ marriage and why her mother was in low spirits” ([25] at CB 337). These inconsistencies raised concerns for the Tribunal as to the veracity of the first applicant’s claims regarding how she was introduced to the underground Roman Catholic Church in China ([26] at CB 337).
The Tribunal also raised its concerns with inconsistencies in the first applicant’s evidence, as between her oral evidence to the previously constituted to Tribunal, and her written claims. It did not accept her explanation for these inconsistencies as it was “incorrect” ([27] at CB 337). In context, when fairly read, the explanation did not reasonably or satisfactorily address the inconsistency. The Tribunal also discussed the first applicant’s religious knowledge with her at the Tribunal hearing. The Tribunal considered the first applicant’s knowledge of the Bible and Christianity to be “poor”, and although this was said to be not, of itself, indicative of a lack of belief or commitment, it was “not consistent with her own claims” ([29] at CB 337 to [31] at CB 338).
The first applicant’s delay in making her protection visa application also raised concerns for the Tribunal regarding the credibility of her claims ([34] at CB 338).
The Tribunal also found inconsistencies in the first and second applicants’ evidence regarding whether they had made any enquiries about getting married in Australia. The Tribunal found that the first applicant had chosen not to get married to “enhance her prospects of obtaining a [p]rotection visa” ([35] – [38] at CB 339).
The Tribunal also put its concerns to the first applicant at the hearing regarding the authenticity of certain documentary evidence she had provided, and gave the oral evidence of Father McGee “limited weight”, as he had “limited personal knowledge of the first named applicant’s personal circumstances and Church related activities” ([39] at CB 339 to CB 340 to [47] at CB 341).
The Tribunal found that the first applicant was “not a witness of truth and that she [had] fabricated her material claims for the purpose of obtaining a [p]rotection visa” ([48] at CB 341). The Tribunal found that the first applicant “was not a genuine Roman Catholic” and did not have “an ongoing commitment to the Roman Catholic Church” ([51] at CB 341).
The Tribunal also accepted that the first and second applicants may need to pay a “social compensation fee” for each of their two children on return to China (their second child was born on 14 April 2015, and was not an applicant before the Tribunal).
However, the Tribunal did not accept that the first and second applicants would be unable to pay the fee, and therefore did not accept that they would be unable to register the third applicant and obtain a Hukou for him, or that he would therefore be a “black child” on return to China. The Tribunal found that the applicants did not meet any of the criteria for the grant of the protection visas ([75] at CB 346 to [103] at CB 349).
Before the Court
By orders made by a Registrar of the Court on 21 July 2016, the applicants were given the opportunity to file any amended application and evidence by way of affidavit. The applicants filed no further documents in this regard.
By orders made by a Registrar of the Court on 8 December 2016, the parties were given the opportunity to file written submissions. The matter was also set down for a show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”) on 16 August 2017. The Minister filed written submissions on 9 August 2017. The applicants filed no written submissions at this time.
On 9 August 2017, prior to the show cause hearing and pursuant to his duty as a model litigant, the Minister filed the affidavit of Ms Papagiannis, attaching a certificate issued pursuant to s.438(1)(b) of the Act (“the s.438 certificate”) covering folio 118 of the Minister’s department’s file relating to the first applicant.
In light of the affidavit of Ms Papagiannis, at the show cause hearing on 16 August 2017, and in fairness to the applicants considering that they would otherwise be confined to the grounds of the application and the relief sought (r.44.13 of the FCC Rules), I made an order that the matter proceed by way of final hearing.
At the final hearing, the first applicant appeared in person. She was assisted by an interpreter in the Mandarin language. The second and third applicants did not appear.
The first applicant had previously been appointed the litigation guardian of the third applicant by orders made by a Registrar of the Court on 21 July 2016.
The first applicant also explained that the second applicant had stayed home to look after a sick child. She also stated that the second applicant knew that she had come to Court and would speak for him.
Following the final hearing, I also gave the parties the opportunity to file written submissions in relation to the Tribunal’s approach to its questioning (at the Tribunal hearing), and findings in relation to its assessment of the first applicant’s religious knowledge and religious conviction. The Minister filed written submissions on 6 September 2017 and the applicants filed written submissions on 19 September 2017.
The Application to the Court
The application to the Court is in the following terms:
“1. Both my husband Huaxiong He and I are genuine and devout Roman Catholics. In support of my claims, apart from the documentary evidence that I have previously submitted to the Tribunal, I have submit following new documents:
- supporting letter by Jinzhang Chen, the secretary of Wester[n] Sydney Catholic Chinese community;
- supporting letter by Zhenxin Xue, a church member of Western Sydney Catholic Chinese community;
- supporting letter by Fangfang Ni, a church member of Western Sydney Catholic Chinese community; and- photos in relation to our church activities in Australia.
2. Father McGee has attended my hearing in person and given evidence in support of our claims as genuine and devout Roman Catholic.
3. The Tribunal member has, however, completely ignored or intentionally misinterpreted the evidence before it; and unfairly denied that my husband and I are genuine and devout Roman Catholics.
4. My husband and I, even including Father McGee, have deeply impressed that the Tribunal member has never even taken any genuine attempts to look at my evidence fairly and independently. Instead, the Tribunal member just wanted to refuse my application. The only purpose of the hearing for the Tribunal is to dig out the reasons to support her refusal decision!
5. I am a refugee. Unfortunately, I have unfairly been deprived of my common rights by the Tribunal member.”
Consideration
At the final hearing, when given the opportunity to make oral submissions, the first applicant stated that “right from the start” the Tribunal member had already “decided” not to believe them. It was for that reason that they took Father McGee with them to the Tribunal hearing.
In essence, this could only be understood as some attempt to assert bias on the part of the Tribunal member. I note that in subsequent written submissions, the applicants also pressed this claim. This matter is addressed under ground four below.
The first applicant also complained about the Tribunal’s finding that Father McGee had “limited personal knowledge” of the first applicant’s personal circumstances (see [45] at CB 341).
There is no transcript of the Tribunal hearing in evidence before the Court. The only evidence that is available is the Tribunal’s own references to the hearing in its decision record. This reveals that the Tribunal questioned Father McGee about a letter he had provided in support of the applicants’ application ([43] at CB 340 to [44] at CB 340 to CB 341).
That letter is reproduced at Court Book page 106. It is in the following terms:
“To whom it may concern
[Second applicant] and [first applicant], husband and wife, originally from China and now living in Sydney, has been regularly attending the Chinese Catholic Mass which is celebrated at St. Dominic’s Catholic Church, Flemington (Homebush West). [Second applicant] since November, 2006 – [first applicant] since February, 2010. The date of first attendance at St. Dominic’s was given to me by the same [second applicant] and [first applicant].”
The Tribunal records that it asked Father McGee about the applicants’ Church attendance. The Tribunal reported that Father McGee stated that about “450 to 500 people attend Mass each week” and although he saw the first applicant “regularly”, he “could not be specific” ([43] at CB 340 to [44] at CB 340 to CB 341).
The Tribunal also asked Father McGee ([44] at CB 340 to CB 341):
“…when he first met the first named applicant and he stated that he thinks it was about 5 years ago. When asked how many times she has attended Church since then, he stated that he could not be specific but has seen her regularly at mass. When asked whether, besides going to mass, she does anything else in relation to participating in Church life, he responded that he did not know. When asked whether she is a convert to Christianity since arriving in Australia, he responded that he did not know. When asked whether she has been baptised, he responded that he assumes she has. When asked whether she has attended Bible study classes, he responded possibly but he was not sure. When asked whether the first and second named applicants are married, he responded that he assumes they are. When asked whether their children have been baptised, he responded that he assumes that they have been baptised.”
The Tribunal found ([45] at CB 341):
“In view of Father McGee’s evidence that he was told by the first and second named applicants as to when they started attending St Dominic’s Church at Flemington and his limited personal knowledge of the first named applicant’s personal circumstances and Church related activities, the Tribunal places limited weight on his evidence.”
On the evidence before the Court, this finding was reasonably open to the Tribunal on what was before it. Father McGee provided a letter in support of the first applicant’s claim to be a practising Catholic. He attended the hearing to give evidence in relation to this. The fact that Father McGee was of limited assistance to the first applicant, does not of itself reveal jurisdictional error in the Tribunal’s decision.
The applicants’ specific complaint before the Court was that the Tribunal did not put them on notice that Father McGee’s evidence would not assist their case.
The Tribunal’s relevant obligation pursuant to s.425 of the Act is to invite the applicants to a hearing to give evidence and present arguments in relation to the issues in the review (SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 (“SZBEL”), AZAAD v Minister for Immigration and Citizenship [2010] FCAFC 156; (2010) 189 FCR 494 (“AZAAD”), Minister for Immigration & Multicultural & Indigenous Affairs v SCAR[2003] FCAFC 126; (2003) 128 FCR 553 (“SCAR”) and Minister for Immigration and Citizenship v SZNVW[2010] FCAFC 41; (2010) 183 FCR 575).
The applicants would have been on notice from the delegate’s decision record, that the first applicant’s claim to be a Catholic was at issue. The delegate found that she was not a “truthful witness” (CB 136.8).
The delegate also did not accept that the first applicant had attended mass at St Dominic’s Catholic Church in Flemington since February 2010, as was also stated in Father McGee’s letter (CB 139.5).
I make the following findings. First, it was reasonably open to the Tribunal to find that Father McGee had “limited personal knowledge of the first named applicant’s personal circumstances and Church related activities” ([45] at CB 341) and to therefore give “limited weight” to his evidence. This was probative of the evidence Father McGee gave to the Tribunal.
Second, and contrary to the applicants’ complaint, it was not “odd” (as now claimed by the applicants) for the Tribunal to make this finding on the material before it. In the circumstances, that description is an expression of grievance that does not reveal jurisdictional error.
Third, regarding the first applicant’s complaint that she was not on notice of the view the Tribunal would take of Father McGee’s evidence (that he did not know about the first applicant’s personal circumstances), and was not given the opportunity to address it, I find that she would have been on notice, given the delegate’s decision, and what was discussed at the Tribunal hearing, of the possibility of Father McGee’s evidence being given “little weight”.
Pursuant to s.425 of the Act, an applicant is entitled to be given an opportunity to address, and give evidence in relation to, the issues in the review which were not “live” issues as a result of the delegate’s decision (SZBEL, AZAAD and SCAR).
The issue to which Father McGee’s evidence was relevant, was the matter of the first applicant’s claimed Catholic beliefs and practice.
This was a live issue as a result of the delegate’s decision. In relation to Father McGee’s letter, the delegate found that she was not satisfied that the first applicant had started to attend Mass at St. Dominics church in February 2010 (CB 273.5), because the date provided in the letter had been given to him by the “applicant”, presumably the first applicant.
Therefore, the first applicant would have been on notice that Father McGee’s evidence was of limited value in supporting her claims. The Tribunal’s assignment of “limited weight” to Father McGee’s written and oral evidence to it, could not, in the circumstances, have come as a surprise to the applicants, given that this was a part of the “live” issue as a result of the delegate’s decision (see further below).
It appears that the applicants’ complaint here is also that given that Father McGee attended at the Tribunal hearing in person, his evidence should have been given weight. That is, they took Father McGee to the hearing because of the delegate’s “treatment” of his letter.
This submission confirms they were on notice that Father McGee’s written statement was not sufficient to corroborate their claims (see also ground two).
The first applicant also complained about the Tribunal’s approach to the question of the assessment of her religious knowledge and conviction. I gave the parties the opportunity to make further written submissions following the hearing in this regard. This is addressed further below.
Ground one does not assert any jurisdictional error on the part of the Tribunal. It simply refers to some of the evidence before the Tribunal and the applicants’ claims. At best, it is a challenge to findings of fact made by the Tribunal. The ground, in that sense, seeks impermissible merits review. No jurisdictional error is revealed.
Ground two, at best, appears to be a claim that the Tribunal should have found that the applicants were genuine and devout Roman Catholics because of evidence given on their behalf by Father McGee.
As mentioned above, there is no transcript of the Tribunal hearing in evidence before the Court. The only references to what occurred at the Tribunal hearing are those in the Tribunal’s decision record. The Tribunal set out Father McGee’s evidence, including documentary evidence he provided to the Tribunal ([43] at CB 340 to [44] at CB 340 to CB 341). The Tribunal found that it could only place “limited weight” on this evidence. The Tribunal gave reasons for this probative of what was before it. Again, on the evidence before the Court, ground two seeks impermissible merits review.
Ground three asserts the following. One, the Tribunal “ignored or intentionally misinterpreted” the applicants’ evidence. Two, the Tribunal’s finding that they were not devout Roman Catholics was “unfair”.
First, in relation to the applicants’ documentary evidence, the Tribunal stated that it “had regard” to the documents that the applicants had submitted (see [42] – [43] at CB 340 and [46] at CB 341). Importantly, this was not just a formulaic general reference to the documents. The Tribunal set out what was contained in the letters of support, and the photographs submitted by the applicants.
The Tribunal accepted some of what was set out in the relevant documents. For example, while the Tribunal did not accept that the first applicant started attending church in Australia in February 2010, it did accept, based on the evidence before it, that she started such attendance at some time prior to 16 May 2012 ([50] at CB 341). It also accepted she had been attending Bible study classes since 2013 ([50] at CB 341).
In the circumstances, it cannot be said that the Tribunal “ignored” the documentary evidence. Nor can it be said, on the evidence, that the Tribunal “misinterpreted” the evidence. The Tribunal’s findings were reasonably open to it.
Second, in relation to the first applicant’s oral evidence, there is nothing to show that the Tribunal misunderstood her claims, or failed to deal with any aspect of them. The Tribunal made findings that were reasonably open to it.
In the circumstances, this does not rise above an expression of grievance that the Tribunal did not accept her evidence that “they” (presumably the first and second applicants) were devout Catholics. Again, ground three seeks impermissible merits review.
Ground four appears to assert that the Tribunal did not bring an open mind to the proceedings. This is also addressed in the applicants’ subsequent written submissions (see further below).
The test for bias is now well settled (see Minister for Immigration v Jia Legeng[2001] HCA 17; (2001) 205 CLR 507 (“Jia Legeng”), Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 and SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749). Bias in the form of pre-judgment will be made out where it can be shown that the decision-maker brought a closed mind to the proceedings or is “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented” (Jia Legeng at [72] per Gleeson CJ and Gummow J).
Therefore in effect, the assertion is that the Tribunal did not bring an open mind to the proceedings, or had prejudged the proceedings, or was not open to persuasion. Given that bias is an extremely serious charge to make, the law requires that it must be clearly made and distinctly proved (Jia Legeng at [69]).
The evidence before the Court does not indicate, let alone establish that the Tribunal was not open to persuasion. The first applicant’s submission before the Court that that “they” knew that the Tribunal had “decided” to disbelieve them, remained unexplained. If the applicants’ reference to “right from the start” (see [30] above) was drawn from what the Tribunal reasonably stated in its letter of invitation to hearing (that is, that it was “unable to make a favourable decision on this information alone” (CB 283)), then this does not reveal bias (Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431 at [11] and NBGZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 119; (2005) 143 FCR 434 at [52]).
Ground five also does no more than seek impermissible merits review in that the first applicant (presumably) asserts that she is a “refugee”.
As set out above, during the course of the hearing before the Court, the issue arose concerning the Tribunal’s approach to the assessment of the first applicant’s religious conviction and knowledge.
The issue arose in the following context. The application for review of the delegate’s decision had been the subject of an earlier (and differently constituted) Tribunal decision.
The applicant sought judicial review of that earlier Tribunal decision. Another Judge of this Court found jurisdictional error in what that earlier constituted Tribunal had done (SZOUO & Ors (2015)).
The Court in that case found that the earlier Tribunal determined the applicants’ application in circumstances that gave rise to a reasonable apprehension of bias (SZOUO & Ors (2015) at [28] – [37]). One of the bases for this finding arose from the earlier Tribunal’s questions to the first applicant concerning her religious beliefs and convictions. The Court stated (SZOUO & Ors (2015) at [33]):
“From these matters the fair-minded observer might reasonably consider that the Tribunal’s purpose in asking the questions was not to determine whether the applicant genuinely held a Christian belief, but, instead, to expose her ignorance with a view to confirming that she did not hold genuine Christian beliefs. A
fair-minded observer would have agreed with paragraph 9 of the Written Submission that ‘what the Tribunal actually did was to [seek to] trip’ the applicant up.”
The second basis for this finding was as follows (SZOUO & Ors (2015) at [34]):
“Even if the Tribunal’s questions by themselves might not have led a fair-minded observer to apprehend that the Tribunal might not bring an impartial and unprejudiced mind to the determination of the applicant’s case, the fair-minded person might have so apprehended on reading what the Tribunal made of the applicant’s answers. On the one hand the Tribunal found the applicant’s inability to correctly answer some of the questions indicated a ‘lack of knowledge of Christianity’ which, in turn, demonstrated the applicant is not a genuine practising Christian. On the other hand, where the applicant did correctly answer the Tribunal’s questions, the Tribunal did not find the correct answers indicated the applicant was a practising Christian. Instead, the Tribunal found the correct answers were rehearsed and memorised ‘in order to achieve a migration outcome’, and, in any event, manifested a knowledge that was ‘at best superficial’ and lacking in ‘spontaneity’.”
[Footnotes omitted.]
Given that the applicants’ complaints in the grounds of the application have some common elements to the above, and given this history, I gave the parties the opportunity to make written submissions in relation to the issue of the Tribunal’s approach to the questioning of the first applicant regarding her religious knowledge and conviction.
At [29] (at CB 337) to [30] (at CB 338) of the Tribunal’s decision record, the Tribunal reports on the questions it asked the first applicant at the Tribunal hearing concerning her religious knowledge, and the first applicant’s answers.
However, this was not the only element in the Tribunal’s consideration of the question of the first applicant’s religious understanding. The Tribunal also questioned the first applicant, and considered, amongst other things, her family’s circumstances as they related to her claimed religious practice, how she came to be baptised, her attendance at Bible study classes in China, and her religious attendance and practice both in China and Australia.
There is nothing in the evidence before the Court to indicate, let alone make out, that the fair-minded, informed lay observer might reasonably apprehend that the Tribunal’s questions were directed other than to eliciting an answer to whether the first applicant was truthful in her claims, and met the criteria for the grant of the protection visa.
Nor does the evidence reveal that the Tribunal’s approach to questioning the first applicant on this issue sought to apply an “arbitrary standard of knowledge of religious doctrine” as was explained in Minister for Immigration and Citizenship v SZOCT [2010] FCAFC 159; (2010) 189 FCR 577 at [46] (“SZOCT”) citing Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108; (2010) 187 FCR 362 (“SZLSP”)).
It is the case that the Tribunal’s questions contained some “specificity” in relation to the first applicant’s religious knowledge. That is, some of the Tribunal’s questions were of the “quiz” variety, rather than seeking to elucidate the first applicant’s level of religious conviction and understanding (for example, “who wrote the New Testament[?]” at [29] at CB 337).
However, in context, these questions were reasonable in light of the first applicant’s claims that she had been a practising Catholic for some years and had claimed to have read the Bible and to have attended Bible study classes. The first applicant had claimed that in 2010 she had attended 12 Bible study classes in China (see [28] at CB 337). Therefore, the Tribunal’s questions about the Bible were relevant to that claim.
For immediate purposes, it was the first applicant herself, through the making of the claim to have attended Bible study classes in China, who introduced the notion that the study of the Bible was a part of the basis of her understanding of the relevant doctrinal principles concerning her religion.
In that light, it was not unreasonable of the Tribunal to ask questions about the Bible, given that it was the first applicant’s claim that she had studied the Bible, and that this formed the basis for her claimed religious and doctrinal beliefs (SZLSP and SZOCT).
In their written submissions, the applicants do no more than express a grievance with the Tribunal’s findings. In effect, the submissions again seek impermissible merits review.
In relation to the Tribunal’s questioning, the applicants’ submissions appear to accept that the Tribunal’s questioning was appropriate. The submissions agree that the “questions were within the scope of a Roman Catholic in my position” and “it should be expected of [the first applicant] to respond to these questions accurately” ([4] of the applicants’ written submissions).
The applicants’ “concession” in this regard, is sufficient to explain the disposition of the question for which leave was granted for further written submissions (that is, the Tribunal’s approach to the questioning and findings of the first applicant’s religious knowledge and conviction).
I note that the applicants’ written submissions also sought to make “further submissions”. These do no more than repeat the first applicant’s oral submissions to the Court.
The final issue that arose in these proceedings concerns the existence of a certificate issued pursuant to s.438(1)(b) of the Act (“the s.438 certificate”) on the Minister’s departmental file, which was given to the Tribunal for the purposes of the review.
In MZAFZ v Minister for Immigration and Border Protection [2016] FCAFC 1081; (2016) 243 FCR 1 (“MZAFZ”), the Federal Court, on appeal from this Court, found that the applicant in that case was denied procedural fairness because the Tribunal did not disclose the existence of a certificate issued pursuant to s.438(1)(a) of the Act. The s.438 certificate in that case was also found to be invalid.
The Federal Court in that case also found that the Tribunal had failed to give the applicant the opportunity to make submissions on the validity of the s.438 certificate, and its proposed use. In short, for current purposes, the relevant Tribunal decision in MZAFZ was affected by jurisdictional error because the applicant was denied procedural fairness in the conduct of the review.
In MZAFZ, the Court held that the statement by the Tribunal in its decision record, that it had the [Minister’s] departmental file before it, was sufficient to establish that the Tribunal had had regard to that file which included the s.438 certificate (MZAFZ at [48]). On this basis, the Court held that the “the Tribunal acted in some unspecified way on the invalid certificate in relation to the documents” (MZAFZ at [40]). This of itself constituted jurisdictional error (MZAFZ at [44]). I further note that in MZAFZ, the Court did not have regard to the documents the subject of the s.438 certificate.
Minister for Immigration and Border Protection v Singh [2016] FCAFC 183; (2016) 244 FCR 305 (“Singh”) also dealt with a “certificate”, but one that was issued pursuant to the “analogous” (for current purposes) s.375A of the Act (“the s.375A certificate”). The Court there held that the failure to disclose to the applicant the existence of the s.375A certificate was a denial of procedural fairness.
In the current case, the s.438 certificate was annexed to the affidavit of Ms Papagiannis. Leave was granted to the Minister to read the affidavit into evidence. The documents to which the s.438 certificate related were tendered to the Court as exhibits in a sealed envelope (see Singh at [67]).
On 24 May 2017, the Federal Court on appeal from this Court, handed down AVO15 v Minister for Immigration and Border Protection [2017] FCA 566 (“AVO15”). In that case, Justice Barker had regard to the documents covered by the s.438 certificate (issued pursuant to s.438(1)(a) of the Act). The Court found that in that case, the Tribunal had had “no regard” to the documents, and in any event, they were only of “passing contextual relevance” to the application (AVO15 at [87]). Justice Barker also found that the jurisdictional error in MZAFZ and Singh could “have no practical application” in that case, and the applicant did not lose any opportunity to advance their case before the Tribunal, because “[n]o practical injustice” was identified (AVO15 at
[90] – [91]).
Since MZAFZ, Singh and AVO15, three Full Federal Court judgments have been handed down in relation to the “certificate” issue (see Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194 (“CQZ15”), Minister for Immigration and Border Protection v BJN16 [2017] FCAFC 197 (“BJN16 ”) and BEG15 v Minister for Immigration and Border Protection[2017] FCAFC 198 (“BEG15 ”)).
It is not necessary in the current case to determine whether the s.438 certificate was validly issued or not. Most probably, given the nature of the documents, it cannot be said that the s.438 certificate was valid given that there is nothing to indicate the documents were given to the Minister or an officer “in confidence” (s.438(1)(b) of the Act).
The documents themselves concern the confirmation by an officer of the Minister’s department of a booking for an interpreter, and the request to which it related. Those documents were admitted into evidence pursuant to s.55 of the Evidence Act 1995 (Cth) (CQZ15 at [62] – [65], BJN16 at [62] – [69] and BEG15 at [30]).
There is nothing in the evidence before the Court to say that the Tribunal “acted on” these documents in its consideration of the applicants’ claims (MZAFZ at [40] and see CQZ15 at [65])). The Tribunal made no statement, as was made in MZAFZ, that it had regard to the whole of the Minister’s file (MZAFZ at [47]).
Further, the documents to which the s.438 certificate referred did relate to the applicants, however, there is nothing in these documents to indicate that there was some information that could reasonably have been considered by the Tribunal as relevant to the applicants’ claims (CQZ15 at [72]).
Importantly, any failure to disclose the documents covered by the s.438 certificate to the applicants could not, and did not, impact on the outcome of the review. The documents did not contain anything adverse to the applicants’ claims to fear harm.
Conclusion
There is no jurisdictional error in the Tribunal’s decision revealed by the grounds of the application, nor from the other matters considered above. The application to the Court should be dismissed. I will make that order.
I certify that the preceding ninety-eight (98) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 30 April 2018
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