SZRPT v Minister for Immigration - [2013] FCCA 398

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZRPT v MINISTER FOR IMMIGRATION & ANOR

[2013] FCCA 398

Catchwords:
MIGRATION – Application for review of decision of Refugee Review Tribunal – alleged breach of s.424A – alleged apprehension of bias – whether the Tribunal made a factual error – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.424, 424A, 425, 476, Pt.8

WALT v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCAFC 2
SBCC v Minister for Immigration & Multicultural Affairs [2006] FCAFC 129
Minister for Immigration & Citizenship v SZLSP [2010] FCAFC 108
Minister for Immigration and Citizenship v SZOCT [2010] FCAFC 159
SZMBS v Minister for Immigration and Citizenship [2009] FCAFC 65
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123
NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241
Harjit Singh Randhawa v the Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
Sutharsan Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668
Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510; (1999) 162 ALR 1
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759; (2000) 183 ALR 188
Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126; (2003) 128 FCR 553
Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630
Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268
Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317
MZXSA v Minister for Immigration and Citizenship [2010] FCAFC 123
Minister for Immigration and Multicultural and Indigenous Affairs v Yusuf (2001) 206 CLR 323
Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163
Minster for Immigration & Multicultural Affairs v Rajamanikkam [2002] HCA 32; (2002) 210 CLR 222; (2002) 190 ALR 402; (2002) 76 ALJR 1048
WADL v Minister for Immigration & Multicultural Affairs [2002] FCAFC 276

Applicant:

SZRPT

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1457 of 2012

Judgment of:

Judge Nicholls

Hearing date:

1 March 2013

Date of Last Submission:

26 March 2013

Delivered at:

Sydney

Delivered on:

5 June 2013

REPRESENTATION

The Applicant:

In person

Appearing for the Respondents:

Ms L Buchanan

Solicitors for the Respondents:

Australian Government Solicitors

ORDERS

The application made on 4 July 2012 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5,671.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1457 of 2012

SZRPT

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made on 4 July 2012, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 30 May 2012, which affirmed the decision of the delegate of the respondent Minister to refuse the grant of a protection visa to the applicant.

Background

The applicant is a national of the People’s Republic of China (“China”) (Court Book – “CB” – CB 27 to CB 30). She arrived in Australia as a student on 31 October 2007. Her visa was in effect until 15 March 2010. She applied for a protection visa on 13 September 2011 (CB 1 to CB 30). Her claims to protection were set out in a written statement attached to her protection visa application (CB 31 to CB 33).

Claims to Protection

The applicant claimed to fear persecution on religious grounds, namely her Christian religion. She claimed to have suffered harm from the Chinese authorities in the past. She stated that she came to the attention of the authorities in May 2007 after she had been attending (illegal) local church gatherings for some months. At that time, she was detained and later released after paying a fine.

The Delegate

The applicant was interviewed by the delegate (CB 51) who refused the application, essentially on the basis that her factual claims to persecution, and other relevant harm, were not credible (CB 59 to CB 62).

The Tribunal

The applicant applied for review to the Tribunal (CB 63 to CB 68). She attended a hearing (CB 70 to CB 81). The Tribunal’s account of the hearing is set out in its decision record ([31] at CB 97 to [62] at CB 102). During the hearing the applicant invited the Tribunal to contact a pastor at the Padstow Chinese Congregational Church (in Australia) to provide support to her claim to be a practising Christian ([62] at CB 102). The Tribunal caused inquiries to be made with the Church. The pastor confirmed that he knew the applicant and that she had been a regular attendee for over a year ([63] at CB 102).
The Tribunal affirmed the delegate’s decision on the basis that it found adversely to the applicant’s credibility because of many inconsistencies in her evidence on “matters that [were] essential to the applicant’s claim” ([99] at CB 111).
Further, the Tribunal considered that she was not a witness of truth in relation to her claim to have had a travel restriction placed on her in circumstances where she subsequently departed China without difficulty ([100] at CB 111).
The Tribunal found that, in light of the protection visa application being lodged only after the applicant’s student visa had expired, and its findings that she was not a committed Christian before she departed China, her “protection visa claim [had] been manufactured as a means to enable her to stay in Australia” ([102] at CB 111).
The Tribunal acknowledged that the applicant had some knowledge of Christianity and attended a church in Australia. However, the Tribunal found that, in the circumstances, this would not lead to a real risk of persecution if the applicant were to return to China ([103] – [104] at CB 111) on the basis that it did not accept that she would not attend a “registered” (official, as opposed to “illegal”) church. The Tribunal also found that there was no credible evidence before it to conclude that the applicant met the complementary protection criterion for a protection visa ([105] at CB 112).

The Application before the Court

The grounds of the application before the Court are in the following terms:
“1. RRT has breached the procedural fairness by not presenting the adverse evidence against my credibility in front of me and I was therefore denied a chance to give response to it under s.424 of the Migration Act. RRT does not consider that I was a witness of truth in relation the police raid at Ping Lin’s place because I gave inconsistent evidence. (RRT decision record para96). RRT stated that it did check the audio recording as to the numbers of people at Ping Lin’s house. I am sure that the number was 14 or 15 not 4 or 5. If RRT did check the number, I should be entitled to cross examine the evidence RRT accessed. As this is apparent inconsistency, I would have doubts how the number was certified. The inconsistency maybe caused by other reasons than my credibility, interpretational error could be one of them. If I was denied a chance to dispute the evidence of the number RRT concluded, then I was denied procedural fairness to further examine the evidence on which RRT has based to conclude that I was not a witness of truth
2. RRT has indicated in the reasoning that the RRT hold a ‘positive state of disbelief’ before conducting its review process. The presumption of disbelief has been under the influence of apprehended bias. I would be the victim of such bias which caused RRT to make adverse credibility assessment. Therefore, even minor inconsistencies have been overstated in order to achieve the pre-occupied conclusion that I was not telling the truth. This has been enormous injustice that undercuts my ability to give acceptable explanation.”
[Errors in the original.]

Before the Court

At the first Court date, orders were made that, amongst other things, gave the applicant the opportunity to file and serve any amended application, submissions, and evidence in support of her claims. Only an affidavit was filed by the applicant (“the applicant’s second affidavit”). [I note that the applicant had filed an affidavit (“the applicant’s first affidavit”) at the time she filed the application to the Court.] The applicant set out in her second affidavit her arguments and complaints about the Tribunal decision. She also attached a copy of a medical report (see further below). I should also note, especially given the references below to the applicant’s failure to file evidence in support of her claims to the Court, that she has had the opportunity to obtain advice from a lawyer on the panel of the Court’s “RRT Legal Advice Scheme”.
At the final hearing, the applicant appeared in person. She was assisted by an interpreter in the Mandarin language. Ms L Buchanan appeared for the first respondent.
During the hearing I raised with the Minister’s representative the matter of whether [95] (at CB 110) of the Tribunal’s decision record revealed some difficulties for the Minister, in that the Tribunal took the approach of an arbiter of the applicant’s religious faith. Such an approach may lead to jurisdictional error where the Tribunal proceeds to a decision not supported by probative evidence, in that the Tribunal imposed a test of the applicant’s religious knowledge that had no rational or logical basis (WALT v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCAFC 2 at [29] per Mansfield, Jacobson and Siopis JJ and SBCC v Minister for Immigration & Multicultural Affairs [2006] FCAFC 129 at [45] per French, Lander and Besanko JJ. See also the Minister for Immigration & Citizenship v SZLSP [2010] FCAFC 108 (“SZLSP”), in particular per Kenny J, and Minister for Immigration and Citizenship v SZOCT [2010] FCAFC 159 (“SZOCT”)). (See further below).
Leave was granted to the parties to file further written submissions on this question. The Minister filed further written submissions. The applicant filed a further affidavit (“the applicant’s third affidavit”) which I understood to be in the nature of submissions.

The Applicant’s Complaint

Before the Court the applicant made “submissions” in the form of a series of complaints that largely expanded on her complaints in her second affidavit. I agree with the Minister that the matters set out in that second affidavit should, like her third affidavit, be understood as being in the nature of submissions.
While there is some overlap between the grounds of the application, the second and third affidavit, and the applicant’s oral complaints to the Court, it is convenient to deal with each separately.

Consideration: The Grounds of the Application

The first ground of the application is a narrative and is, in part, not referrable to the Tribunal’s decision. In any event, I will consider each part of the narrative in turn.
The first sentence of ground one makes reference to s.424 of the Act. In this regard, I must note that it may be said that the Tribunal, on the applicant’s invitation, did get information from the pastor of the applicant’s church in Australia. To the extent that it may be said that it may have engaged s.424 of the Act, the Tribunal plainly did have regard to the information obtained (s.424(1) of the Act and with reference to SZMBS v Minister for Immigration and Citizenship [2009] FCAFC 65 at [26] per Emmett, Bennett and Middleton JJ). No error is revealed in relation to this complaint.
However, given the reference to the Tribunal’s alleged failure to give her an opportunity to “respond” to the “adverse evidence against my credibility”, it is highly probable that the applicant meant to refer to s.424A of the Act.
The “information” (as that term is understood with reference to SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 (“SZBYR”)) that, at best, it can be said that the Tribunal considered would be the reason, or part of the reason, for affirming the delegate’s decision, was as follows. Either information provided by the applicant in writing in connection to her protection visa application, or evidence provided by the applicant to the Tribunal in connection to the review and, even if only as by way of background, country information relating to Christian churches in China. However, all that information is exempt from the obligation in s.424A(1) of the Act by the operation of s.424A(3)(ba), (b) and (a) respectively.
The response from the pastor of the Church to the Tribunal’s inquiries was not “information” for the purposes of s.424A(1) of the Act, as it did not contain in its terms “a rejection, denial or undermining of the appellants' claims to be person to whom Australia owed protection obligations” (SZBYR at [17] per Gleeson CJ and Gummow, Callinan, Heydon and Crennan JJ). Similarly, the Tribunal’s adverse views of the applicant’s evidence, its evaluation of her evidence, was not “information” for the purposes of s.424A(1) of the Act such as to engage the Tribunal’s obligations (SZBYR at [17] – [18] and with reference to the majority in VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123).
The Minister suggested that this reference in ground one may also be some allegation of a breach of s.425 of the Act. That is, that the applicant was “denied” the opportunity to give evidence in relation to inconsistencies in her evidence.
The applicant is entitled to a meaningful opportunity to present her arguments and give her evidence. The applicant has not put before the Court any evidence to challenge the Tribunal’s account of the hearing in relation to the inconsistencies in her evidence (see further below regarding her second affidavit). In the circumstances, it is not open to this Court to draw inferences as to what may otherwise have occurred at the Tribunal hearing (NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241).
On the Tribunal’s account of the hearing (in its decision record) the applicant was clearly given the opportunity to address, and explain, the inconsistencies in her evidence and claims. The Tribunal was not bound to uncritically accept the applicant’s explanations (Harjit Singh Randhawa v the Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265perBeaumont J at [21] (“Randhawa”)). Nor can I see that the issues in the review, in particular as they arise from the applicant’s factual account of events in China, were not exposed at the hearing (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152).
The Tribunal’s account of the hearing also reveals that the Tribunal pointed out to the applicant for comment, amongst a number of other matters, the inconsistencies in her evidence as to the number of people present at a local church gathering that she said was raided police in China, as well as to the number of people detained with her as a result (see [44] at CB 99 and [56] at CB 101).
The “ground” suggests that the discrepancies in the applicant’s evidence may have been a result of an error in interpretation. However, the complaint remains only a suggestion. Further, there is no evidence before the Court to support, let alone make out, such a claim
Ground one also asserts that the applicant was denied the opportunity “to dispute the evidence of the number that the Tribunal concluded”. The background to this is that when the Tribunal put the inconsistency in her evidence to her (that is the discrepancy in her evidence as to the number of people detained), the applicant is reported to have “… invited the Tribunal to review the audio recording of the hearing in relation to this” ([56] at CB 101). The Tribunal reports that it did listen to the audio of the hearing and found that “… in her initial evidence she had in fact given the number 4 or 5, despite her later denial” ([96] at CB 110).
The applicant’s complaint now (with reference also to her written “submissions” before the Court) appears to be that the Tribunal did not give the applicant the opportunity to further examine the evidence on which the Tribunal based its conclusion that she was not a witness of truth.
First, it must be noted that this particular inconsistency was only one of a number of such inconsistencies on which the Tribunal’s adverse credibility finding was based.
Second, and more importantly, it is difficult to see what further could have been achieved by the Tribunal notifying the applicant that it had listened to the audio of the hearing before it and confirmed its understanding of the evidence.
If the applicant is suggesting that the Tribunal could not be trusted in this regard (that is, to accurately report in its decision record what was in the audio recording of the hearing) then it is clear that, from the applicant’s second affidavit before the Court (see at [1]), the applicant is now, and at least as at 16 January 2013 (the date the affidavit was sworn), in possession of the “CD” of the hearing. In these circumstances it was open to the applicant to put evidence before the Court that the Tribunal’s account of what it said was recorded in the audio of the hearing was incorrect. She has not done so.
Ground two of the application appears to be an assertion that an apprehension of bias arises in relation to the Tribunal member. The ground asserts that the Tribunal held a “positive state of disbelief” about the applicant’s claims before completing the review. Given the phrase quoted in the ground, this can only relate to what the Tribunal said at [91] (CB 109 to CB 110):
“Nor is there a rule that a decision maker must hold a ‘positive state of disbelief’ before making an adverse credibility assessment in a refugee case”
As is clear, whoever drafted the applicant’s grounds plainly misread the Tribunal’s statement. The Tribunal’s statement was an orthodox description of what was said in Sutharsan Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547.
The test for the apprehension of bias is well established. As the Minister submitted, the test is whether there is something in the Tribunal’s reasons which would make a hypothetical fair-minded lay person, properly informed as to the nature of the proceedings, reasonably apprehend that the Tribunal might not have brought an impartial and unprejudiced mind to its task (Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 at [28]).
I cannot see on what is before the Court that this can be made out. It is a rare case that bias can be made out on the decision record alone (SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J). In any event, the Tribunal accepted that minor inconsistencies in the applicant’s account should not result in an adverse credibility finding. I agree with the Minister that, in the applicant’s case, the inconsistencies found, and relied upon, by the Tribunal were central to her claims ([99] at CB 111).

Consideration: The Applicant’s Second Affidavit

What the applicant’s second affidavit does do, with reference to the audio of the hearing, is to assert a number of matters.
With reference to [97] (at CB 110) and [98] (at CB 111) of the Tribunal’s decision record, the Tribunal stated that, at the hearing, the applicant had not explained how she was persecuted. However, the applicant asserts in her second affidavit that she did provide an explanation. She refers to “…from 1 hour and 29 minutes in the CD…” Despite this complaint, the applicant has not put a transcript of the hearing before the Court, nor did she tender, nor seek to tender, the “CD” of the Tribunal hearing.
However, and in any event, the applicant’s complaint misrepresents the Tribunal’s relevant finding. The Tribunal did not find that the applicant had not “explained” how she was persecuted. Rather, the Tribunal’s findings ([97] at CB 110 to [98] at CB 111) were concerned with at least two of the inconsistencies in her evidence.
The first ([97] at CB 110) concerned the amount that she variously said was paid to secure her release from detention. The Tribunal’s report was not that she gave no explanation, but that her answer was “non responsive”. That is, instead of explaining the amounts in relation to her own release, she spoke of a fine imposed on her father. On the evidence actually before the Court, the applicant’s factual assertion here is not made out.
In relation to the second inconsistency, the number of people detained ([98] at CB 111), the Tribunal said that when the inconsistency was put to the applicant she did not give “any explanation”. The difficulty for the applicant now however is twofold. One, there is no evidence of the hearing to support her claim that she did give an explanation. Further, even if she had attempted to provide such evidence, it is unclear how this would reveal jurisdictional error. A factual finding of this type by the Tribunal, given that it involved a finding of fact, is not, on its own, revelatory of jurisdictional error (Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510; (1999) 162 ALR 1 (“Abebe”)).
At [2] of her second affidavit, the applicant complains that the Tribunal found that she “could” join the registered Church if she were to return to China. She now asserts that she would not join the registered Church.
The Tribunal’s actual finding was that it did not accept that she would not practice in a registered church in China. The context for this was its earlier finding that she had not practiced her religion at the unregistered church in the past and that, in Australia, she attended a “mainstream protestant church”.
It may well be that a different Tribunal member may not have come to this conclusion. However, once it is accepted that the finding was reasonably open to the Tribunal on what was before it, which it is, then the applicant’s complaint can only be seen as a challenge to the facts as found by the Tribunal. That is, the applicant seeks impermissible merits review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”)).
Paragraph 3 of the applicant’s second affidavit asserts that she has hepatitis B and that her health is not good. Further that the hearing before the Tribunal lasted for three hours, less a 10 minute break. The applicant claims that she was “overwhelmed” and physically “could not handle” that length of hearing.
The applicant sought to put before the Court a medical certificate and results of medical tests to support her claim that she suffers from hepatitis B (attached to her second affidavit). I note that the medical certificate provided by the applicant pre-dates the Tribunal’s decision by some five months.
While the medical tests were contemporaneous with the conduct of the review, they do not assist the applicant in asserting jurisdictional error on the part of the Tribunal. That is because there is no evidence before the Court to show how, even if the applicant’s evidence as to her medical condition were to be accepted and taken into account, her medical condition affected her capacity to give her evidence and to participate meaningfully before the Tribunal (Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759; (2000) 183 ALR 188 (“Mazhar”) at [31] per Goldberg J, Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126; (2003) 128 FCR 553 and Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575)

Consideration: The Applicant’s Oral Complaints to the Court

The applicant made additional complaints about the Tribunal’s decision at the hearing before the Court.
First, the applicant submitted that she made “small mistakes” at the hearing before the Tribunal and that, given her medical condition, those “small mistakes” were understandable. This assertion is addressed above. However, before the Court the applicant emphasised the combination of her medical condition and the length of the hearing. At its highest, this could be understood as a complaint of a denial of procedural fairness.
It is the case that the Tribunal is obliged, pursuant to s.425 of the Act, to invite the applicant to a hearing and to provide the applicant with a fair and meaningful opportunity to present her claims and give her evidence (Mazhar).
Further to what is set out above as to the absence of evidence as to any impact of the medical condition on the applicant’s capacity at the hearing, I note that the Tribunal hearing was of some two hours and forty minutes duration, with a quarter hour adjournment after two hours (CB 80). There is nothing in the length of the hearing itself to suggest it was “overly” long. Nor is there anything in the only account of what occurred at the hearing (the Tribunal’s decision record) to suggest that the applicant experience of any difficulty in answering the Tribunal’s questions was due to her medical condition.
Second, the applicant made a series of complaints about various factual findings made by the Tribunal. These included the Tribunal’s finding about claimed events in China, baptism (see further below) and the Tribunal’s view of her delay in applying for a protection visa. The applicant explained before the Court that she gave her explanation to the matters which the Tribunal questioned her about. Her complaint was that she felt the Tribunal did not accept that her explanations were satisfactory.
The short answer to this complaint is that the Tribunal was not compelled to uncritically accept her explanation. It is the Tribunal’s role to weigh the evidence before it (Randhawa per Beaumont J and Abebe). In all, therefore, the applicant’s complaints were an attack on the Tribunal’s factual findings and its findings on credibility. As such, they go no further than a plea for the Court to engage in impermissible merits review (Wu Shan Liang and Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407).

Consideration: The Arbiter of Religion?

The question raised before the Court, and by the Court, was whether the Tribunal fell into error in its assessment of the applicant’s claim to be a Christian practitioner. The specific concern can be seen as arising from the following in the Tribunal’s decision record ([95] at CB 110):
“The evidence she gave about her baptism was vague and lacked much detail. She stated that she undertook no preparation for the ceremony yet, because it is a rite of initiation into the Christian church, some form of preparation by an adult candidate will be required. She said that she had been given a baptism certificate and that it is at her parent’s home, but, despite all the years she has been in Australia and the important to her protection visa claim of establishing that she was a member of a Christian church in China, she has not had her baptism certificate sent to her in Australia.”
[Emphasis added.]
The applicant’s position is that the Tribunal was in error to expect that baptism was the same in all Christian churches. Further, that the experience in her church was different to that in other Christian churches and the expectation expressed by the Tribunal did not necessarily apply to her. This latter point is emphasised when the applicant pointed out that the Tribunal’s finding, or expectation, was that of what would be expected of an adult yet, at the relevant time, she was “not yet an adult” ([1] of the applicant’s third affidavit).
The Minister’s position is as follows. First, that the Tribunal did not impose any specific test of religious knowledge on the applicant. Second, that the relevant issue for the Court is whether there was a rational basis for the Tribunal’s “statement” that it expected the applicant to have participated in some form of preparation prior to being baptised.
The Minister says that the Tribunal disbelieved the applicant’s claim to have been baptised for two reasons. The first was because her evidence was lacking in detail. The second was because her statement that she undertook no preparation for her baptism was contrary to the Tribunal’s expectation.
In relation to the second matter the Minister says that it is an “incontrovertible fact” ([6] of the Minister’s further written submissions) that baptism is a rite of initiation into the Christian church. This “fact” therefore needs no specific evidence. On the basis of this “fact” the Tribunal drew the inference that persons who are to be baptised would undergo some preparation. The Minister says that this is a logical inference, clearly available to the Tribunal.
There are a number of difficulties with the Minister’s position. First, the Minister’s submissions have overlooked that the Tribunal’s “expectation” of some form of “preparation” for baptism was said in relation to “an adult candidate” ([95] at CB 110).
The evidence before the Tribunal was that, at the relevant time (the time of the claimed baptism), the applicant was under the age of eighteen years old. Her date of birth was 30 August 1989 (CB 1.4). While she was an adult (in Australian terms) at the time of the application to the Tribunal, at the time of claimed baptism, and therefore, the time prior to her claimed baptism (February or March 2007 – [37] at CB 98), she was under eighteen years of age.
There was no evidence before the Tribunal to say what the age of majority was in China at the relevant time. It is certainly an “incontrovertible fact” that a person under eighteen years of age is not considered an adult in Australia.
On either basis therefore the Tribunal’s “expectation” was misplaced. It could not have applied to the applicant given that either she was not an adult or there was no evidence to say that she was. The Tribunal, in my view, made a factual error. That is, that she was an adult when she was not.
Second, I cannot agree with the Minister’s characterisation of the Tribunal’s view as being an “expectation”. The Tribunal actually said that some form of preparation was “required” with reference to its understanding of Christian requirements.
While there is proper caution against over zealously reading Tribunal decision records with an eye attuned to error (Wu Shan Liang), the actual plain language used by the Tribunal cannot be ignored.
In my view, the distinction between “required” and “expected” is important. If the Tribunal had said that, in the circumstances, it would have “expected” some form of preparation for baptism, then this could have been seen as some evaluation of the applicant’s evidence arising from the circumstances presented. However, the Tribunal’s actual finding was that some of preparation was “required”.
What remains unexplained in the Tribunal’s decision record is the basis for that requirement. There was no information about Christian religious practice to which the Tribunal said it had regard. That is, there was no evidence before the Tribunal to form the basis for its finding.
Third, there is no logical connection between the Minister’s assertion that because baptism is a rite of initiation it allows the Tribunal to draw an “inference” that some form of preparation is required. Without more, what remains in the Tribunal’s analysis is a rite on the one hand, and an unexplained connection to its “expectation” of what the preparation for baptism requires. The Tribunal’s lack of explanation is what denies the Minister the opportunity to say there is a logical connection between the rite of baptism and the “requirement” of preparation for that rite.
Fourth, the Tribunal referred to the rites of initiation into “the Christian church”. However, there was evidence before the Tribunal to say that, even in China as between officially sanctioned Christian churches and unregistered churches, there were differences of views as to the practice, amongst other things, of baptism (see, for example, [70] at CB 104). Not only was there no evidence to support its “requirement” about the preparation for baptism, there was plainly evidence that there were differences between churches such that it was not reasonably open to the Tribunal to draw the “inference” (as the Minister puts it) that persons who were to be baptised were “required” to undergo some preparation. That “inference” is based on a monolithic view of the practices of Christianity as they relate to baptism which was not available to the Tribunal in the circumstances presented.
It may be accepted that the matter of baptism (and the relevant requirement according to the Tribunal) was not strictly a matter of religious faith or belief. In this sense the current case moves away from the focus of such cases as SZLSP and SZOCT which were essentially concerned with an applicant’s knowledge of the claimed religious faith.
In the current case, the perceived deficiency in the applicant’s evidence was measured against a standard for which no probative evidence existed, or even may have been an irrelevant consideration in the circumstances presented.
The question therefore arises as to whether, in the circumstances, this amounts to jurisdictional error.
The Minister’s submissions are silent on this point. Nonetheless, guidance can be found in such cases as Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 (“SZNPG”) per North and Lander JJ (see also Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 (“WAEE”); Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268, Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294, Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 (“SZRKT”) and MZXSA v Minister for Immigration and Citizenship [2010] FCAFC 123 (“MZXSA”)).
The following from SZNPG (at [27] – [28]) is instructive in the current case:
“[27] Of course, if the RRT failed to consider an element of an applicant’s claim, that would amount to jurisdictional error because Division IV of Part 7 of the Act requires a review of the whole of the applicant’s claims. In that case, the RRT would have failed to discharge its ‘imperative duties’’: Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1.
[28] However, an error of fact based on a misunderstanding of evidence or even overlooking an item of evidence in considering an applicant’s claims is not jurisdictional error, so long as the error, whichever it be, does not mean that the RRT has not considered the applicant’s claim: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630; Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268; Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294.”
As is from MZXSA (at [83] and [86] per Keane CJ, Perram and Yates JJ:
“[83] A distinction is to be drawn between the failure to deal with a claim (a constructive failure to exercise jurisdiction) and what has been described as errant fact-finding: HTUN v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 at [42] per Allsop J; cited with approval by the Full Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 where the Full Court discussed extensively errors of fact and jurisdictional error in the Tribunal. In Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51; (2010) 115 ALD 303 at [28] North and Lander JJ observed that an error of fact based on a misunderstanding of evidence in considering an applicant’s claims is not jurisdictional error so long as the error does not mean that the Tribunal has not considered those claims.
…
[86] The Federal Magistrates Court instructed itself by reference to NABE and HTUN and concluded that, although the Tribunal had made a factual error, that error did not infect the Tribunal’s statutorily imposed duty to examine and deal with all the claims for asylum made by the appellant. It found that the Tribunal clearly understood the question it had to decide and, although it may have erred on its finding in one matter of fact, the Tribunal did consider the appellant’s claim and all its component integers. The Federal Magistrates Court was not in error in so finding. Grounds 3 and 4 of appeal should be dismissed.”
I note also that, in SZRKT, Robertson J provided direction on some aspects relevant to the disposition of the current matter.
In my view, the difficulty for the Minister in the current case is two fold. First, the Tribunal erroneously proceeded on the mistaken belief that the applicant, at the relevant time, was an adult. In my view, this may be characterised as an error of fact based on a misunderstanding of the evidence, or that the Tribunal ignored relevant material, namely the applicant’s current age. Such errors may, in certain circumstances, be jurisdictional error (see Minister for Immigration and Multicultural and Indigenous Affairsv Yusuf (2001) 206 CLR 323 at [82], citing Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 (“Craig”) at 179). However, “merely to ignore relevant material” (SZRKT at [97]), or to make an erroneous finding (Craig at 179) does not, of itself, reveal jurisdictional error.
In my view, this is not a case where the error means the Tribunal has not considered the applicant’s claim in the manner required by such authorities as WAEE. The Tribunal plainly considered the applicant’s claim to fear harm because she was a Christian. Further, it considered her evidence that she had been baptised as a Christian.
What the Tribunal overlooked, or misunderstood, therefore was the applicant’s evidence as to her age. This, of itself, is not jurisdictional error. The question is whether the Tribunal’s exercise of its jurisdiction, statutorily given to it (by the Act) was thereby affected. In this regard, the evidence or material overlooked or misunderstood must, in its terms, be a part of the claim to fear persecutory harm. I cannot see that the applicant’s age falls into this description.
The second difficulty for the Minister is that the Tribunal proceeded on the assumption or expectation, that some form of preparation was required for the baptism that the applicant claimed to have undergone.
In SZNPG at[28] and Minster for Immigration & Multicultural Affairs v Rajamanikkam [2002] HCA 32; (2002) 210 CLR 222; (2002) 190 ALR 402; (2002) 76 ALJR 1048 (“Rajamanikkam”), which was also applied by the Full Federal Court in WADL v Minister for Immigration & Multicultural Affairs [2002] FCAFC 276.
In both cases the relevant Tribunal decision involved a number of elements, or findings, for not believing an applicant’s claims. Some care must be taken now because in both cases the reasoning of the Courts were relevant to the “no evidence” ground as set out in the “old”, or now repealed, Pt.8 of the Act. Having said that, however, I cannot see why the reasoning revealed by the superior Courts is not directly applicable to the current circumstance.

The following from Rajamanikkam is instructive to the current case.
1) Paragraph 26 per Gleeson CJ:
“…The requirement is to ‘base [a] decision on evidence’; a requirement as to the way the decision-maker is to go about the task of decision-making. The distinction between judicial review of administrative decision-making upon the ground that there has been an error of law, including a failure to comply with the requirements of procedural fairness, and comprehensive review of the merits of an administrative decision, would be obliterated if every step in a process of reasoning towards a decision were subject to judicial correction. The duty to base a decision on evidence, which is part of a legal requirement of procedural fairness, does not mean that any administrative decision may be quashed on judicial review if the reviewing court can be persuaded to a different view of the facts.”
[Footnotes omitted.]
2) Paragraph 58 per Gaudron and McHugh JJ:
“Whether a decision would or would not have been made without a particular factual finding depends on indications to that effect in the decision, the reasons for decision or the decision making process. And unless it is possible to say on a proper analysis of the decision, the reasons for decision or the decision making process that, had a particular finding not been made, the decision in question would not have been reached, it is, in our view, impossible to say that the decision was based on that finding.”
The question in the current case, therefore, is would the Tribunal’s decision have been made absent the “expectation” as to preparation for baptism of an adult? In my view, the answer to the question is in the affirmative. The following is also relevant to the first difficulty set out above to the extent that it reveals that the Tribunal dealt with the claims made by the applicant as to why she says she is a refugee and that its conclusion that the delegate’s decision should be affirmed was reasonably open to it on what was before it. The overwhelmingly larger part of its reasoning provided the basis for its conclusion. It is not attendant with jurisdictional error.
First, on the factor of baptism, the Tribunal rejected the applicant’s claim to have been baptised for at least two other reasons separate to the “expectation”, or “requirement”, of preparation.
The Tribunal found the applicant’s evidence about her baptism to be otherwise “vague” and lacking in “much detail”. Further, that despite the opportunity of the passage of time in Australia and the importance to her application for a protection visa of establishing that she was a member of a Christian church in China, the applicant had not had her baptism certificate sent to her in Australia in circumstances where she asserted that it was “at her parents home” (see [95] at CB 110).
The bases for the Tribunal’s ultimate conclusion are further expanded with a number of other unconnected (to the matter of preparation for baptism) factors. The Tribunal found, variously, that the evidence the applicant otherwise gave was “not consistent with someone who was committed to her religion” ([94] at CB 110). Second, the Tribunal found she was not a witness of truth in relation to the account she gave of the claimed police raid on 11 May 2007 ([96] at CB 110) and the circumstances concerning a claimed order placed on her not to travel overseas ([100] at CB 111). Third, the Tribunal found inconsistencies in the applicant’s evidence in relation to her claim that a fine was paid for her release from detention ([97] at CB 110) and the circumstances of her detention ([98] at CB 111).
While acknowledging the appropriate caution to be employed with such findings, the Tribunal found these inconsistencies were “central to the applicant’s claims” ([99] at CB 111). It found for all these reasons that her claims in relation to her religion in China were “manufactured” ([105] at CB 112). Further, that while it was satisfied the applicant attended a “mainstream Protestant Church” in Australia, on return to China she would not seek to practice in an unregistered church ([105] at CB 112).
In all therefore, and in light of the overwhelming part of the Tribunal’s reasoning which is not attendant with error, I cannot see that the Tribunal’s “expectation” in relation to baptism was such that the ultimate decision made would not have been made. Nor, that its error in relation to her age was so significant or central to the exercise of its jurisdiction such as to vitiate it. In this sense, no jurisdictional error is revealed.

Conclusion

None of the grounds of the application, nor the applicant’s complaints before the Court, have been made out. Nor can I see that the Tribunal’s decision record is otherwise affected by jurisdictional error. In the circumstances, it is appropriate that the application to the Court be dismissed. I will make an order accordingly.

Postscript

I did not find the Minister’s post hearing submissions helpful. Those submissions, in essence, fell into the same “mistake” as the Tribunal. They overlooked, or misunderstood, the possible relevance of the applicant’s age. The matter of the applicant’s age was not so obscure that it explains the failure of the Minister’s representatives before the Court to identify and deal with it.
The proceedings before the Court are, of course, adversarial. Plainly, it is not for one party to assist the other. However, in matters of this type (involving refugee applicants) the Minister professes, publicly, to be a “model litigant”. Even further, in this case the matter raised (arbiter of religion), and what flows from it, was an important element in the disposition of the application. Where the Court had granted the Minister leave for further written submissions, these should have been focused on properly assisting the Court.
That the applicant was unrepresented before the Court does not relieve the Minister’s legal representatives from the duty to assist the Court, nor as a model litigant to ignore what may otherwise be thought to have been a minor, or “technical”, point.

I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Date: 5 June 2013