SZSQS & Ors v Minister for Immigration & Anor
[2013] FCCA 1180
•19 September 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSQS & ORS v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 1180 |
| Catchwords: PRACTICE AND PROCEDURE – Observations on the need for restraint in making allegations against the Refugee Review Tribunal. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) |
| Abebe v Commonwealth (1999) 197 CLR 510 SZRHS v Minister for Immigration & Anor [2012] FMCA 806 SZRUI v Minister for Immigration [2013] FCAFC 80 |
| First Applicant: | SZSQS |
| Second Applicant: | SZSQT |
| Third Applicant: | SZSQU |
| First Respondent: | MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 497 of 2013 |
| Judgment of: | Judge Driver |
| Hearing date: | 22 August 2013 |
| Delivered at: | Sydney |
| Delivered on: | 19 September 2013 |
REPRESENTATION
| Solicitors for the Applicants: | Mr C McArdle McArdle Legal |
| Solicitors for the Respondents: | Mr J Pinder Minter Ellison |
ORDERS
For the purposes of Part 11 of the Federal Circuit Court Rules 2001 (Cth), SZSQS is appointed as litigation guardian of SZSQU.
The application as amended on 28 May 2013 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 497 of 2013
| SZSQS |
First Applicant
SZSQT
Second Applicant
SZSQU
Third Applicant
And
| MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (Tribunal). The decision was made on 11 February 2013. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants protection visas. The first applicant is the mother of the third applicant and I appointed her as his litigation guardian. The second applicant is the first applicant’s husband.
The following statement of background facts relating to this matter is derived from the Minister’s submissions.
The applicants are citizens of the People's Republic of China (China). They arrived in Australia on 28 January 2012 on Subclass 676 Tourist (Short Stay) visas, as part of a tour group. Upon arrival they absconded from their tour group.
The applicants lodged an application for protection (Class XA) visas on 6 February 2012.
The first applicant claimed to fear persecution on the basis of her religion, and specifically her past and intended future involvement with the Local Church (also known as the Shouters) in China. The first applicant claimed that she was known by the Chinese authorities to be an active member of the Local Church who had “developed” secret gatherings, that she had been arrested, detained and required to report on the basis of that involvement, and that she had failed to comply with the conditions of her bail or with reporting requirements following her arrest.
The second and third applicants are the husband and child of the first applicant, respectively. They claimed to fear persecution on the basis of the first applicant's religion, as well as their own Local Church belief.
The applicants were invited to attend an interview with a delegate of the Minister on 23 May 2012. On 27 June 2012 the delegate made a decision to refuse the application for protection visas.
On 20 July 2012 the applicants filed an application for review of the delegate's decision with the Tribunal.
The applicants appeared at a hearing before the Tribunal on 11 January 2013. All three applicants gave oral evidence.
Tribunal decision
On 11 February 2013 the Tribunal made a decision affirming the delegate's decision not to grant the applicants protection visas.
The Tribunal had a number of concerns with the first applicant's account, which it sets out at [97]–[104] of its decision record. It therefore rejected at [105] the first applicant's core claims regarding her participation in the Local Church in China and her arrest as a result of that participation. The Tribunal was not satisfied that the first applicant was of any adverse interest to the Chinese authorities in China for any reason.
The Tribunal had regard to the first applicant's church attendance in Australia (which it accepted had occurred), but was not satisfied that the conduct was other than to strengthen her protection claims. It was not satisfied that she was a genuine Local Church believer, that she is perceived to have any connection to the Local Church, or that she would have any genuine desire to practice in the Local Church in the future.
The Tribunal found that the first applicant did not satisfy the refugee criterion under s.36(2)(a) of the Migration Act 1958 (Cth) (Migration Act) or the complementary protection criterion under s.36(2)(aa).
With respect to the second and third applicants, the Tribunal considered the claimed church attendances in Australia (there having been no claimed conduct in China), but was not satisfied that either applicant engaged in the conduct other than to strengthen their protection claims. It was not satisfied that they were genuine Local Church believers, that they are perceived to have any connection to the Local Church, or that they would have any genuine desire to practise in the Local Church in the future.
The Tribunal found that the second and third applicants did not satisfy the refugee criterion under s.36(2)(a) of the Migration Act or the complementary protection criterion under s.36(2)(aa).
The judicial review application
These proceedings began with a show cause application filed on 13 March 2013. The applicants now rely upon an amended application filed on 28 May 2013. There are four grounds of review in the amended application:
1.The applicant appeals against or in the alternative seeks a declaration as specified above regarding the entirety of the purported privative clause decision of the Refugee Review Tribunal made on 11 February 2013.
Particulars
i. Section 5E
ii. Transcript to be particularised in submissions 14 days in advance of hearing.
2. The Tribunal’s conduct of proceedings and conclusion was such that a reasonable person would apprehend them to be encumbered by bias, and thus not an effective decision that is protected by Section 474.
Particulars
i. The Tribunal “come what may” refused to accept that the Applicant was being persecuted by the Chinese Government for being a member of a Christian religious group (The Shouters). See decision record generally, and especially paragraph 99, 100, 101, 102.
ii. The General finding of the Tribunal indicates on the balance of reasonableness that it was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented (Minister for Immigration v Jia (2001) 205 CLR 507). See decision generally and especially evidence of second Applicant.
iii. The Tribunal refused to give the Applicants the “benefit of the doubt.”
iv. Transcript to be particularised in submissions 14 days in advance of the hearing.
3. The Tribunal disregarded the fact that it is Specifically illegal for a person under the age of 18 to practice religion in China
4. Such other grounds as this Honourable Court deems fit.
In reality, there are two grounds of review, those being the second and third grounds of review quoted above.
I have before me as evidence the court book filed on 5 April 2013. I also received the affidavit of Sophie Verity Lloyd made on 19 August 2013, to which is annexed a transcript of the hearing conducted by the Tribunal on 11 January 2013. The transcript is a corrected version of a transcript produced on behalf of the applicants. There are many corrections to the transcript.
I also received an affidavit made by the first applicant on 29 May 2013 and an affidavit made by her migration agent, Harry Huang, made on the same day, which recount their concerns arising from their attendance at the Tribunal hearing. I received those affidavits simply as evidence of the expressed concerns, not the veracity of those concerns. I declined to receive a further affidavit by Kieran McArdle made on 20 August 2013. That affidavit had annexed to it a document setting out Mr McArdle’s opinions concerning the tone of voice used by the presiding member, which opinions he formed after listening to the sound recording of the hearing. While I declined to receive the affidavit, I accepted the document as an aide memoir for the purposes of my own listening to the sound recording.
Both parties made written and oral submissions.
Consideration
Is there an apprehension that the Tribunal was biased?
The applicants contend that the sound recording of the Tribunal hearing supports a contention of apprehended bias, not because of what was said in terms of the words used but because of the tone of voice used by the presiding member. Because of the nature of the allegation, the transcript was of no real value in dealing with it. It was necessary for me to listen to the sound recording. I did so[1].
[1] I listened to a consolidated recording of three Tribunal CDs, which run for 3 hours, 19 minutes and 38 seconds
There is no dispute between the parties as to the relevant principles in relation to this ground.
An allegation of apprehended bias is a serious allegation and must be “distinctly made and clearly proved”[2].
[2] Minister for Immigration v Jia Legeng (2001) 205 CLR 507 (Jia Legeng) per Gleeson CJ and Gummow J
Apprehended bias, if found, amounts to a denial of procedural fairness[3], and the Court's inquiry is therefore directed to the apparent fairness of the process of the decision making that is under review[4].
[3] SZRUI v Minister for Immigration [2013] FCAFC 80 (SZRUI) at [2] per Allsop CJ
[4] VEAL v Minister for Immigration (2005) 225 CLR 88 at 97 [19]; Assistant Commissioner Michael James Condon v Pompano Pty Ltd (2013) 295 ALR 638 at [209]; NIB Health Funds Ltd v Private Health Insurance Administration Council (2002) 115 FCR 561 at 583 [84]
Where the denial of procedural fairness relied upon is an alleged reasonable apprehension of bias on the part of a decision maker, such an apprehension must be “firmly established”[5]. While in that case his Honour was referring to judicial officers, this observation has been found to apply equally to decisions of the Tribunal[6].
[5] Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352 per Mason J
[6] SZRUI at [22] per Flick J
Apprehended bias will be made out where a hypothetical fair-minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal might not have brought an impartial mind to the resolution of the question to be decided[7]. In deciding this issue, the Court on review is to determine the issue objectively[8].
[7] Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [29]–[31]
[8] Hot Holdings Pty Limited v Creasy (2002) 210 CLR 438 at [68] per McHugh J
It is insufficient for the hypothetical fair-minded lay observer to have “a vague sense of unease or disquiet”[9].
[9] Jones v Australian Competition and Consumer Commission (2002) 76 ALD 424. An appeal from Justice Weinberg's decision was allowed, but the correctness of this proposition was not challenged by the Full Court: Jones v Australian Competition and Consumer Commission (2003) 131 FCR 216
Consideration of the question of apprehended bias must take into account the legislative context in which a decision is being made[10]. In the context of the Tribunal, “robust and forthright testing of the [applicant's] claims by the Tribunal ... does not sustain a finding of apprehended bias”[11]. Further, the expression of tentative views will not itself give rise to an apprehension of bias, and may actually enhance the fairness of the administrative process by alerting an applicant to perceived deficiencies in his or her claim and affording him or her an opportunity to address those deficiencies[12]. Jurisdictional error will only arise where the expression of views by a decision maker either gives rise to a reasonable apprehension that the decision maker is really not prepared to change those views no matter what may be further said or in fact evidences a closed mind. What must be shown is more than a mere predisposition to a particular view; it is necessary to show a mind not being open to persuasion[13].
[10] cf. NADH v Minister for Immigration (2004) 214 ALR 264 at 269 per Allsop J
[11] see SZRUI at [24] per Flick J and the cases there cited by his Honour
[12] SZRUI at [27] per Flick J
[13] Jia Legeng at 531–32 per Gleeson CJ and Gummow J
Consideration of the question of apprehended bias must also take into account the whole of the transcript of proceedings, rather than sentences taken in isolation[14].
[14] SZRUI at [75] per Robertson J
Occasional displays of impatience and irritation (justified or not), momentary outbursts and misunderstandings, and mere insensitivity will not necessarily lead to a reasonable apprehension of bias[15]. Similarly, “harsh tones” do not necessarily give rise to a reasonable apprehension of bias[16]. In such cases, the entirety of the circumstances must be considered[17].
[15] VFAB v Minister for Immigration (2003) 131 FCR 102 at 126–27 per Kenny J; Re Minister for Immigration; Ex Parte AB (2000) 177 ALR 225 at 230
[16] SZNVM v Minister for Immigration [2010] FCA 261 at [31] per Katzmann J
[17] SZRUI at [91] per Robertson J (see also [100])
Notwithstanding what is claimed in this ground of review, there is nothing in the Tribunal’s decision to support an apprehension of bias. In any event, it will be a rare case where the decision itself demonstrates an apprehension of bias[18]. As noted above, there is also nothing on the face of the transcript of the Tribunal hearing to give rise to any concern. The applicants’ allegation is that the presiding member’s tone supports an apprehension of bias. The first applicant says in her affidavit that her impression was that “right from the beginning” the member thought that the applicants were making up their claims. In his affidavit, Mr Huang says:
[18] SZRHS v Minister for Immigration & Anor [2012] FMCA 806 at [23]
Unfortunately, almost immediately, the behaviour of the Member suggested to me that the proceedings were sort of an inconvenient procedure that had to be conducted before their application was rejected. I do not know why the member behaved like this.
…
In my opinion, [the genuineness of the first applicant] came out when she and her family were giving evidence. Unfortunately, the aggressive reaction of the Tribunal from the beginning was that they were making it up.
The document prepared by Mr Kieran McArdle, which I used as an aide memoir when listening to the sound recording, refers to the tone of the member as at times patronising, disbelieving, aggressive, discrediting, accusing, disrespectful and suspicious. I listened to the entirety of the sound recording. It is hard to credit that I was listening to the same sound recording as that referred to in the document prepared by Mr McArdle, or the same hearing as that referred to by the first applicant and Mr Huang. The one remarkable thing about the tone of voice of the presiding member in the sound recording is that it barely varied at all. The presiding member’s tone was neutral, even flat. She was entirely unemotional. She was simply gathering information and recording it. The presiding member, at times, sought clarification of evidence provided by the first applicant in particular where it was unclear or where non responsive answers had been provided. Towards the end of the hearing, the presiding member alerted the applicants to the issues about which she was concerned, including the issue of the purpose of their religious practice in Australia. That was proper, even necessary for procedural fairness. There is nothing whatsoever in either the transcript or the sound recording to support any suggestion that the presiding member did not bring an unprejudiced mind to bear upon the review.
I reject the first ground of review.
I place on record my concern that this is not the first time that wholly unsubstantiated allegations of this nature have been made against members of the Tribunal. Essentially the same allegation was made recently in SZSNU v Minister for Immigration & Anor[19]. I note that in that case the legal representation of the applicant was the same as in this case. Judge Manousaridis said this of the apprehended bias claim in SZSNU:
The tone by which the words recorded in the transcript were expressed confirms and reinforces what the transcript reveals. I have listened to the audiotape of the hearing in its entirety, paying specific attention to those parts of the tape the applicant claims manifest a tone that might give rise to a reasonable apprehension of bias. I am firmly of the opinion that nothing said by the Tribunal as recorded by the audiotape can even arguably be contended to suggest the Tribunal expressed words in any of the tones the applicant claims the Tribunal used when expressing such words. It is not apparent from anything submitted by the applicant how it could reasonably be contended the Tribunal member expressed any words in the tones in which Mr Kieran McArdle in his affidavit swore the Tribunal expressed them.
[19] [2013] FCCA 1219
I share his Honour’s opinion in this case. Some time ago[20] I urged restraint on the part of legal practitioners in making allegations against Tribunal members. Unfortunately, it is necessary for me to reiterate that call for restraint. If this Court needs to deal with unsupported (and insupportable) allegations on the basis that they are frivolous, embarrassing or vexatious, it will do so, including in relation to costs orders.
[20] SZRHS v Minister for Immigration & Anor [2012] FMCA 806 at [20]
Did the Tribunal overlook an element or integer of the third applicant’s claims?
The third ground alleges that the “Tribunal disregarded the fact that it is specifically illegal for a person under the age of 18 to practice religion in China”. I understand this allegation to be an allegation that the Tribunal failed to consider a claim or an integer or element of a claim made by or on behalf of the third applicant, or arising squarely from the material that was before the Tribunal. The third applicant is currently 17 years old and will turn 18 on 25 June 2014.
I accept the Minister’s submissions on this ground. It is settled law that it is for an applicant to make out his or her case to the Tribunal and to provide sufficient information for the decision-maker to reach the requisite state of satisfaction[21]. It is for the Tribunal to consider the claims expressly articulated by the applicant or which clearly arise from the materials before the Tribunal[22] and the Tribunal is not under any general obligation to make inquiries about those claims, subject to the proviso that there may be an obvious inquiry about a critical fact that could be easily ascertained[23].
[21] Abebe v Commonwealth (1999) 197 CLR 510 at 576
[22] NABE v Minister for Immigration (No. 2) (2004) 144 FCR 1 (NABE) at [60]
[23] Minister for Immigration v SZIAI (2009) 259 ALR 429 at 436; Minister for Immigration v SGLB [2004] HCA 32 at [43]
I accept that it is a complete answer to this ground that it was never claimed before the Tribunal by or on behalf of any of the applicants that the third applicant had a well-founded fear of persecution were he to return to China on the basis that it is illegal for a person under the age of 18 to practice religion in China.
The applicants' submissions do not identify any point at which such a claim was made.
Further, I accept that no such claim clearly arose from the material put before the Tribunal, and the applicants, in the applicants' submissions, have not identified any material before the Tribunal that could be said to give rise to such an imputed claim.
Rather, the third applicant's claim was put in terms of the third applicant's church attendance in Australia (and presumed continued involvement with the church were he to return to China) and also in terms of the third applicant's imputed connection with the church on account of his mother's involvement with the Local Church in China (and her further church attendance in Australia). This was in circumstances where the Local Church is an illegal, underground church in China. The Tribunal considered the third applicant's protection claims in that context.
The Minister relies upon the comments made (albeit in dissent) by Gleeson CJ in Appellant S395/2002 v Minister for Immigration[24] at 114[1]:
... the court has insisted that, on judicial review, a decision of the tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant's lawyers, at some later stage in the process.
[24] (2003) 203 ALR 112
In any event, I accept that the Tribunal did consider the issue of the third applicant's religious practice, and found that he had not practised religion in China in the past, that his religious activity in Australia was for the purpose of strengthening his protection claims, that he was not a genuine adherent of the Local Church, and would not be involved in Local Church activities were he to return to China. It also found that the third applicant's activities in Australia would not come to the attention of Chinese officials, nor would his mother's religious activities be imputed to him. In view of this comprehensive rejection of the third applicant's claims at a factual level, there was no factual substratum left unconsidered from which a failure to consider a claim (or an integer thereof) could be inferred.
The applicants' submissions raise two further related allegations. The first is that the Tribunal erred as to the standard of proof required by a child, by imposing[25] a requirement that the child must have his or her “own association with society freely entered into without any influence by [his or her] parents”. However, I accept the Minister’s submission that this allegation proceeds from a misreading of the Tribunal's reasons for decision, and that no such requirement was imposed (nor could such a requirement reasonably be inferred from the Tribunal's reasons). The Tribunal was required to consider the motivations for the third applicant's church attendance in Australia, as well as what the applicant would do in the reasonably foreseeable future were he to return to China. The Tribunal made findings as to these matters[26]. The third applicant's youth, and the fact that he commenced attending church with his mother and did not give evidence such as would suggest an independent interest or involvement in any Christian religion, were matters relevant to those considerations, and the Tribunal's conclusions were open to it on the material before it. There is nothing to suggest any irrationality or illogicality in that reasoning process such as might give rise to jurisdictional error[27], or such as to give rise to any other class of jurisdictional error.
[25] at [112] of its reasons for decision
[26] at [112]
[27] cf. Minister for Immigration v SZMDS (2010) 240 CLR 611 and SZOOR v Minister for Immigration (2012) 202 FCR 1
The second allegation is that the applicants are “unable to find any reference to country information or any other consideration that suggests that the [Tribunal] Member considered the status of the third applicant, whereby the fact of the utter illegality of the practice of religion by minors in China”. It is therefore alleged that this fact was not considered. However, the Minister reiterates the submission made above that such a claim based on the illegality of religious practice by minors was never put by the applicants to the Tribunal for consideration, but in any event the Tribunal did consider the status of the third applicant were he to return to China[28]. I accept that submission. To the extent that it may be alleged that the Tribunal was under a duty to investigate potential claims not made by the applicants, and to obtain country information in respect of those claims not made, it is sufficient to refer to above cited authorities to the effect that there was no such duty.
[28] at [112] of the decision record
Conclusion
The applicants have failed to demonstrate any jurisdictional error in the decision of the Tribunal. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 19 September 2013
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