SZSSG v Minister for Immigration
[2015] FCCA 2747
•12 October 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSSG & ORS v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2747 |
| Catchwords: MIGRATION – Judicial review – application for Protection (Class XA) visa – decision of Tribunal – citizens of China – alleged religious persecution – China’s one child policy – whether Tribunal decision a proper decision – whether Tribunal decision affected by apprehended bias – whether jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.5E, 36(2), 65(1), 91R, 474, 476 Tribunals Amalgamation Act 2015 (Cth), s.3, Sch.2 |
| Chen Shi Hai v Minister for Immigration & Multicultural Affairs [2001] HCA 19; (2001) 201 CLR 293 Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321 Minister for Immigration & Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437; (1994) 124 ALR 265; (1994) 35 ALD 1 Re JRL; Ex parte CJL (1986) 161 CLR 342; (1986) 60 ALJR 528; (1986) 66 ALR 239; [1986] FLC 91-738; (1986) 10 Fam LR 917 |
| First Applicant: | SZSSG |
| Second Applicant: | SZSSH |
| Third Applicant: | SZSSI |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 629 of 2013 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 2 December 2013 |
| Date of Last Submission: | 6 December 2013 |
| Delivered at: | Perth |
| Delivered on: | 12 October 2015 |
REPRESENTATION
| Counsel for the Applicants: | Mr C McArdle |
| Solicitors for the Applicants: | McArdle Legal |
| Counsel for the Respondents: | Ms L Weston |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
That the name of the second respondent be amended to “Administrative Appeals Tribunal”.
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
SYG 629 of 2013
| SZSSG |
First Applicant
| SZSSH |
Second Applicant
| SZSSI |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By way of application for judicial review filed on 27 March 2013 (“Judicial Review Application”), made under s.476 of the Migration Act 1958 (Cth) (“Migration Act”), the first, second and third applicants (“First Applicant”, “Second Applicant” and Third Applicant” respectively, and collectively the “Applicants”) seek judicial review of a decision of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (“Tribunal”), dated 6 March 2013: Court Book (“CB”) at 214-248 (“Tribunal Decision”). The Tribunal affirmed an earlier decision of a delegate dated 28 June 2012: CB 83-104 (“Delegate” and “Delegate’s Decision” respectively) of the First Respondent, the then Minister for Immigration and Citizenship, now the Minister for Immigration & Border Protection (“Minister”), refusing to grant the Applicants Protection (Class XA) visas (“Protection Visas”).
Some factual and procedural background
The Applicants are citizens of China. The female First Applicant is the de facto partner of the male Second Applicant. The Third Applicant is the son of the First and Second Applicants. An application for Protection Visas (“Protection Visas Application”) was lodged by the Applicants on 2 February 2012: CB 1-38, 46, 51 and 55.
The First Applicant raised her own claims for protection, and the Second and Third Applicants were included as members of her family unit: CB 1-15 and 16-29.
The First Applicant’s claims for protection were set out in a statutory declaration submitted with the Protection Visas Application forms: CB 39-44. The First Applicant claimed that:
(a)she was introduced to Catholicism by a friend in 2005, after which she became involved in the underground Church and was baptised: CB 40;
(b)she and her friend were taken to the Fuqing Public Security Bureau (“PSB”) in April 2006 where she was humiliated, abused and mistreated (“Fuqing PSB Incident”): CB 40-41;
(c)after the Fuqing PSB Incident, her friend disappeared and her friends mother died in a reform centre: CB 42;
(d)after arriving in Australia the First Applicant continued to attend the Catholic Church, and she commenced a de facto relationship with the Second Applicant in 2010: CB 42; and
(e)the family would be forced to pay fines if she and the Second and Third Applicants returned to China, because the Third Applicant was born out of wedlock, and the Third Applicant would be persecuted as a so called “black child”: CB 42-43.
The Applicants submitted various documents to the then Department of Immigration and Citizenship, now the Department of Immigration and Border Protection (“Department”), including:
a)a copy of the Third Applicant’s birth certificate: CB 55;
b)corroborative letters: CB 56-57; and
c)a letter from Father Paul McGee confirming the First Applicant’s attendance at Catholic Mass: CB 58.
The Delegate refused to grant the Applicants’ Protection Visas Application: CB 83-104.
The Applicants lodged an application with the Tribunal for review of the Delegate’s Decision on 18 July 2012: CB 107-112 (“Tribunal Application”). The Applicants were represented in relation to the Tribunal Application by a registered migration agent.
The Applicants appeared at a hearing before the Tribunal on 1 March 2013: CB 162-163 (“Tribunal Hearing”). The Applicants registered migration agent attended the Tribunal Hearing, and the Applicants were assisted by an interpreter in the Mandarin language: CB 162.
The Tribunal was not satisfied that the Applicants met the criteria in s.36(2)(a) or 36(2)(aa) of the Migration Act 1958: CB 247 at [153]-[154]. The Tribunal Decision therefore affirmed the Delegate’s Decision not to grant the Applicants’ Protection Visas Applications: CB 247 at [156]. Aspects of the Tribunal Decision relevant to the issues raised by the grounds of appeal are discussed further below.
Judicial Review Application
The grounds of the Judicial Review Application as originally filed were not relied upon by the Applicants at hearing.
Although no amended application was filed to change or elaborate upon the above grounds, a written outline of submissions filed for the Applicants on 22 November 2013 (“Applicants’ Submissions”) set out four differently framed grounds, as follows:
a. that the decision was not a proper decision under the Act pursuant to section 5E,
b. that the conduct of the proceedings must have led a reasonable person to apprehend bias,
c. that the Tribunal does not have jurisdiction to refuse to consider self evident facts. It has to accept and consider evidence, not decide in advance that what is submitted would not be accepted, and
d. that, in being obliged to correctly consider the Refugee Convention as applied within the Act, the Tribunal committed a jurisdictional breach in not doing so.
Applicants’ Submissions, page 1.
It was the above grounds which were relied upon at hearing. Each of the above grounds, treated as grounds 1, 2, 3 and 4 respectively, are considered below.
Ground 1
Ground 1 is curiously expressed. It is an assertion that the Tribunal Decision “was not a proper decision … pursuant to section 5E”. The reference to “section 5E” is, presumably, a reference to s.5E of the Migration Act 1958. The matter was argued on that basis. As such the ground makes no sense. Section 5E of the Migration Act is no more than a definitional section defining the meaning of “purported privative clause decision”. As a definitional section, s.5E of the Migration Act 1958 alone does not assist the Applicants to establish what they are required to establish in order to obtain relief, namely, that the Tribunal Decision is affected by jurisdictional error. The Tribunal Decision is only liable to be set aside upon review if it involves jurisdictional error: Plaintiff S157/2002 v Commonwealth [2003] HCA 2, (2003) 211 CLR 476, (2003) 77 ALJR 454, (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. Further, an error by the Tribunal, will only constitute jurisdictional error if the Tribunal:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105, (2001) 180 ALR 1, (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ (“Yusuf”).
The Court has no jurisdiction to engage in merits review. Fact finding is within the jurisdiction of the Tribunal, and as such, is not reviewable if the findings of fact were open to the Tribunal, and otherwise made in accordance with the law: NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 at [9] per Heerey, RD Nicholson and Selway JJ (“NADR”); Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”). The weight to be given to an applicant’s claims and evidence is a matter for the Tribunal to assess as part of its fact-finding function: Wu Shan Liang CLR at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ; Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297 at [5]-[7] per Kiefel, RD Nicholson and Downes JJ (“Tran”).
The Applicants asserted that the Tribunal Decision was not a “proper” decision.
The Tribunal’s approach to the decision-making task was entirely orthodox. The Tribunal identified issues to be determined, set out or referred to the evidence and submissions of the Applicants in relation to those issues, as well as other information (including independent country information available to it) and drew available conclusions from the evidence and submissions set out. In that regard, it cannot be said that the Tribunal approached its decision-making task improperly.
It is evident, reading the Tribunal Decision as a whole, and with an appreciation of the full context of what the Tribunal said, and without intricate over-analysis: Minister for Immigration & Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 at [35] per Gummow ACJ and Kiefel J and footnote 73 per Heydon J, that the Tribunal dealt with the Applicants claims. It arrived at factual findings which were open to it on the evidence and materials that were before the Tribunal. In the circumstances it cannot be said that the Tribunal Decision was not a “proper” decision.
To the extent to which it might be said that there was a failure to exercise or an excess of jurisdiction these are not matters which are particularised in ground 1, either as originally filed or as amended in the Applicants Submissions. The failure to particularise a ground of review is itself sufficient to warrant dismissal of that ground: SZELX v Minister for Immigration & Anor [2007] FMCA 209 at [17]-[21] per Emmett FM.
The sole particular refers to s.5E of the Migration Act, but no more, and for reasons otherwise set out above does not establish jurisdictional error.
It follows from the foregoing reasons that ground 1 is not made out.
Ground 2
Ground 2 alleges apprehended bias on the part of the Tribunal. That apprehended bias, and not actual bias, was relied upon was confirmed by Counsel for the Applicants in oral submissions: Transcript, page 4. This is important because the Applicants Submissions on the question of bias are discursive and appear in places to assert actual bias, but it was made clear that the Applicants do not assert actual bias by the Tribunal.
In view of the concession by the Counsel for the Applicants that only apprehended bias is in issue, it is unnecessary to deal with the Applicants Submissions insofar as they assert actual bias. The Applicants raised the issue of apprehended bias in relation to different aspects of the Tribunal Hearing, each of which is dealt with below, following a consideration of the legal principles concerning apprehended bias.
Legal principles concerning apprehended bias
A determination as to the whether a decision of an administrative decision-maker such as the Tribunal is affected by apprehended bias requires the Court to consider the following:
a.that it need not be established that the Tribunal was devoid of any pre-disposition or inclination for, or against, an argument or conclusion. All that is required is for the Tribunal Member to be open to persuasion: Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALJR 679; (2001) 178 ALR 421; (2001) 65 ALD 1 at [72] and [86] per Gleeson CJ and Gummow J (“Jia Legeng”);
b.an alleged reasonable apprehension of bias on the part of a decision-maker, such an apprehension must be “firmly established”: Re JRL; Ex parte CJL (1986) 161 CLR 342; (1986) 60 ALJR 528; (1986) 66 ALR 239; [1986] FLC 91-738; (1986) 10 Fam LR 917; CLR at 352 per Mason J; SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [22] per Flick J (“SZRUI”);
c.that apprehended bias in the context of an administrative decision-making is not attended with the restrictions that apply to a case of judicial pre-judgment: Jia Legeng at [179]-[187] per Hayne J and [244]-[245] per Callinan J. In NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 328; (2004) 214 ALR 264 at [19] per Allsop J (“NADH”), the Federal Court observed in this regard that:
The tribunal does not administer public justice. The elements which affect the public confidence in the adjudication of disputes by an independent and impartial arm of government (in the broad sense) and which may be seen to inform what might be said to be freestanding norms of conduct and behaviour by judges conducting public hearings are not necessarily as easily transposable as strict obligations of administrative decision-makers acting in private. The tribunal here must investigate the facts for itself unaided by counsel presenting the parties’ cases, to the degree and extent it thinks appropriate. The tribunal which has to reach a state of satisfaction may want to test and probe a recounted history. It may have particular matters troubling it for resolution, which require questioning and expressions of doubt which are entirely appropriate, but which if undertaken or said by a judge in open court in adversary litigation might give rise to an apprehension of a lack of impartiality.
d.where credibility is in issue, the Tribunal will necessarily have to test the evidence presented – often vigorously; Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 75 ALJR 982; (2001) 179 ALR 425 at [30] per Gleeson CJ, Gaudron and Gummow JJ (“Ex parte H”). The requirements of procedural fairness will often require that an applicant be plainly confronted with matters bearing adversely on their credit or which bring their account into question, and the Tribunal’s assessment of credit will often depend upon the demeanour of the witness and the manner in which they give evidence: Ex parte H at [34] per per Gleeson CJ, Gaudron and Gummow JJ;
e.consideration of the question of apprehended bias must take into account the legislative context in which a decision is being made: NADH at [19] per Allsop J;
f.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”: SZRUI at [24] per Flick J;
g.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: VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872, (2003) 131 FCR 102 at 126-127, (2003) 77 ALD 23 at [81] per Kenny J; Re Minister for Immigration & Multicultural Affairs; Ex Parte AB (2000) 177 ALR 225 at 230 per Kirby J; and
h.“harsh tones” do not necessarily give rise to a reasonable apprehension of bias: SZNVM v Minister for Immigration & Citizenship [2010] FCA 261 at [31] per Katzmann J.
Status of children whose parents are not wed – so called “black children”
The Applicants submitted that:
a)considerable information was presented to the Tribunal as to the status of the children of unmarried parents in China;
b)the children of unmarried parents in China are subjected to ostracism, disadvantaged in access to reasonable facilities, and are held in social contempt. They are “black children”, this being a term that is well known to all informed participants in the jurisdiction;
c)the condition of black children is well known, is unarguable and was made known to the Tribunal, which also had an obligation to inform itself by accessing its own country information;
d)as implied by the perverse findings of fact, the Tribunal has not accessed the well known facts, and this suggests to a reasonable person, and the reasonable person may have a genuine apprehension that bias may have coloured the Tribunal’s consideration;
e)the Tribunal recites the references to “black children” which are provided by country information, and which were part of the submission before the Tribunal, but goes on to disregard this information. It is a jurisdictional breach to disregard this information;
f)according to the Tribunal, there will be no problem for this black child. Such a baseless conclusion flies in the face of all knowledge, and could not have been arrived at after having considered the facts to any acceptable degree. A reasonable person would apprehend bias.
The Tribunal set out relevant evidence concerning the status of the Third Applicant, and the impact of his status in the event that the Applicants returned to China, including the following from interview with the Delegate:
a)the Third Applicant being born to the First and Second Applicants in Australia in September 2011, being of Han ethnicity and Catholic religion: CB 218 at [25];
b)whether or not the First and Second Applicants had legalised their relationship, and the reasons that they had not done so, including the fact that the Second Applicant was said by the First Applicant not to be a devout Catholic, and therefore not able to be baptised in the Catholic faith, and therefore not able to be married in the Catholic Church, and because they do not have current Chinese passports for production to the Registrar of Births, Deaths and Marriages: CB 222-223 at [44]-[47];
c)the attitude of each of the First and Second Applicants parents to the Third Applicant’s birth out of wedlock: CB 223 at [48] and CB 224 at [56] ;
d)the First and Second Applicants capacity to pay the social compensation fee (“Social Compensation Fee”) payable by each of them in China for having a child out of wedlock or underage, having regard to their financial capacity and that of their parents, including the capacity of the First and Second Applicants to work and earn money and to borrow money from family and friends: CB 223 at [49]-[53];
e)the First Applicants claim that the Third Applicant would be a “black child” because of the inability of the First and Second Applicants to pay, or to borrow money to pay, the Social Compensation Fee: CB 223 at [49]-[54]; and
f)that the First Applicant considered that the Third Applicant would be considered to be a “black child”, and would be denied basic human rights as a consequence: CB 223 at [54] and CB 224 at [56].
The Tribunal set out at some length information on Chinese national and provincial laws concerning children born out of wedlock and to underage parents, and did so by reference to country information including:
a)the Chinese national and provincial laws themselves: CB 224-227 at [60]-[68];
b)five Department of Foreign Affairs and Trade reports (“DFAT Reports”) from 2004, 2007, 2010 and 2013 (being DFAT Reports 287, 691, 1104, 1210 and 1473 respectively): CB 225 at [61] and [63]; CB 226 at [64], [66] and [67]; CB 227 at [69]-[70];
c)a United States Department of State country report for 2010 on human rights practices in China (“US Country Report 2010”): CB 224 at [60];
d)a 2004 Norwegian Centre for Human Rights report on a child’s right to birth registration from an international and Chinese perspective: CB 227 at [69]; and
e)an academic article on unregistered children in China, published out of Princeton University: CB 227 at [69]-[70].
The Tribunal noted, commented upon and considered the evidence, and put various matters to the First and Second Applicants. The Tribunal:
a)put to the First Applicant that it would have been possible for the First and Second Applicant to have a civil marriage in New South Wales by simply producing the First and Second Applicants’ birth certificates, and that a civil marriage would have been sufficient for the Third Applicant to be considered by the Chinese Government as a child not born out of wedlock: CB 234 at [105];
b)received from the Applicants independent country information concerning the “treatment of religious minorities in China”: CB 235 at [110], which is presumably a reference to a 2010 article concerning persecution against the Catholic Church and its bishops in China: see CB 166-167, and the United States Department of State International Religious Freedom Report for 2011 for China (“US 2011 Religious Freedom Report”): see CB 168-208;
c)accepted the claim that the First and Second Applicant would be liable to pay the Social Compensation Fee for having the Third Applicant out of wedlock and underage: CB 237 at [118];
d)noted that it appeared that the only reason that the First and Second Applicants would be liable to pay the Social Compensation Fee under the provincial Fujian family planning law was because the First and Second Applicant broke those laws and not for any other reason: CB 237 at [118];
e)observed that the Fujian family planning laws were part of a scheme of laws of general application applicable nationally, not enforced or applied in a discriminatory way for any reason based upon the Refugees Convention, and thereby in and of themselves not generally resulting in eligibility for refugee protection under the Refugees Convention: CB 237-238 at [118];
f)put to the First and Second Applicants the basis for calculation of the Social Compensation Fee, and that it was payable in instalments: CB 238 at [118]; and
g)noted (at CB 238 at [119]) that the evidence indicated that the First and Second Applicants:
i.came from families willing and financially able to send them to Australia as students and to pay their student expenses, albeit that their parents remained in debt as a consequence;
ii.had an ability to each source work;
iii.maintained frequent contact with their parents in China, who know about their grandson; and
iv.considered that in China the First and Second Applicants would be able, as they had in Australia, to source loans and find work to pay the Social Compensation Fee, and be able to pay it by instalments.
In its findings and reasons the Tribunal:
a)set out (at CB 244 at [145]) the Applicants claims that:
i.the Third Applicant had been born to the First and Second Applicants out of wedlock and underage, and would therefore have to pay the Social Compensation Fee to register the Third Applicant;
ii.the First And Second Applicants could not pay the Social Compensation Fee, “no matter how much it will be” as they are in debt in Australia;
iii.the First And Second Applicants would be persecuted for not paying the Social Compensation Fee, and that the Third Applicant would consequently “not be registered”, and would be “unable to survive”, and would be “denied access to medical care, basic education and basic human rights”;
b)accepted the First and Second Applicants were not married and were below marriageable age in China when the Third Applicant was born, and that the Social Compensation Fee would be imposed on each of them if they returned to China, noting also that the Social Compensation Fee was payable in instalments: CB 244-245 at [146];
c)found that a penalty akin to the Social Compensation Fee applied throughout China, with some provincial variations, and did not accept that the laws with respect to the Social Compensation Fee would apply or be enforced in a discriminatory manner, or in a systematic or discriminatory manner linked to a Refugees Convention reason, and that the enforcement or application of the laws imposing the Social Compensation Fee was not for a Refugees Convention reason, and did not amount to persecution under s.91R(1)(c) of the Migration Act: CB 244-245 at [146];
d)observed that whether the Third Applicant was owed protection obligations by Australia depended on whether the Social Compensation Fee would be paid in order that the Third Applicant might be registered, and the consequences for the Third Applicant if the Social Compensation Fee was not paid: CB 245 at [147];
e)having regard to the evidence set out at [25] above, was not satisfied that the First and Second Applicants could not pay the Social Compensation Fee, and was not satisfied that:
i.the First and Second Applicants would not be able to source funds, with the support of their families in China, to pay the Social Compensation Fee: CB 245-246 at [148]-[149]; and
ii.the Social Compensation Fee would not be paid if the Applicants returned to China: CB 246 at [149];
f)was not satisfied that the Third Applicant would not be registered in China, and therefore was not satisfied that he faced a real chance of serious harm in China in the reasonably foreseeable future: CB 246 at [149]; and
g)was not satisfied, in relation to the First and Second Applicants, that the laws imposing the Social Compensation Fee amounted to persecution for the purposes of s.91R(1)(a) or (c) of the Migration Act.
The factual finding made by the Tribunal that the First and Second Applicants had the capacity to pay the Social Compensation Fee if they returned to China was open on the evidence. The evidence accepted by the Tribunal meant that it was not satisfied that the Social Compensation Fee would not be paid, and therefore not satisfied that the Third Applicant would not be registered, and therefore not satisfied that protection obligations were owed to the Third Applicant. The finding concerning capacity to pay the Social Compensation Fee was one of fact, open on the available evidence. In the above circumstances, and given the detailed attention paid at both the Tribunal Hearing and in the Tribunal Decision to the First and Second Applicants capacity to pay the Social Compensation Fee, the Tribunal’s finding that the First and Second Applicants would be able to pay the Social Compensation Fee was not, as the Applicants submitted, a “perverse” finding of fact. As a finding of fact open on the evidence it is finding of fact not to be disturbed by this Court. To do so would be to forgo judicial review for merits review, contrary to long and well accepted authority that this Court has no jurisdiction to engage in merits review of decisions of the Tribunal: see NADR; Wu Shan Liang and Tran referred to at [14] above.
The submission made by the Applicants that “according to the Tribunal, there will be no problem for this black child. Such a baseless conclusion flies in the face of all knowledge, and could not have been arrived at after having considered the facts to any acceptable degree. A reasonable person would apprehend bias”, cannot be sustained in light of the Tribunal’s careful consideration of the available evidence in this case and its subsequent factual findings which do not indicate any hint of a mind not prepared to be persuaded. Nor can it be sustained as a general proposition. Whilst a child for whom the Social Compensation Fee cannot be or is not paid might have a well-founded fear of persecution: Chen Shi Hai v Minister for Immigration & Multicultural Affairs [2001] HCA 19; (2001) 201 CLR 293 at [29]-[36] per Gleeson CJ, Gaudron, Gummow and Hayne JJ, the same cannot be said where the Social Compensation Fee is paid. There was no argument put before the Tribunal that the First and Second Applicant would not pay the Social Compensation Fee, only that they did not have the capacity to do so, a factual contention which the Tribunal can be said to have rejected in view of its factual finding to the contrary. There are numerous examples of the Federal Court and this Court (in its guise as the Federal Magistrates Court of Australia) finding that there was no jurisdictional error where the Tribunal had found no well-founded fear of persecution for parents or the child where the parents (or one of them) were found by the Tribunal to have the capacity to pay the Social Compensation Fee: see, for example, WZAOT v Minister for Immigration & Citizenship [2013] FCA 136, (2013) 211 FCR 543; SZRLO v Minister for Immigration & Citizenship [2013] FCA 825; SZRMA v Minister for Immigration & Anor [2012] FMCA 1206 at [34]-[39] per Emmett FM; SZQNA v Minister for Immigration & Anor [2012] FMCA 481.
In the above circumstances this aspect of the alleged apprehended bias on the part of the Tribunal is not made out.
Attitude to evidence and status of the Catholic Church
The Applicants submitted that the Tribunal’s attitude to the evidence concerning, and status of, the Catholic Church, exhibited a reasonable apprehension of bias on the part of the Tribunal. The Applicants specifically submitted that:
a)it is, under s.474 of the Migration Act, open to the Tribunal to make findings of fact that may be perverse, which cannot be appealed;
b)on the other hand, it is not open to the Tribunal to simply decide in advance that whatever is said that assists the Applicants will not be believed;
c)the assumption that a witness has to prove their evidence by some sort of corroboration, is an indication that the Tribunal has not actually considered the evidence as required by the Migration Act;
d)the Tribunal Decision contains references that indicate the Tribunal was not prepared to believe anything said. For example, at CB 218 at [26], letters signed by persons supporting the First and Second Applicants religious claims are said to be “persons claiming to be” who and what they say they are. It is assumed in an unbiased hearing, that a person’s evidence is simply accepted as true where not contradicted;
e)the reference to “Divie Word Missionaries Arnold Catholic Janssen Church”, with the typo “saved up” and the incorrect ordering of words preserved, suggests derision, as well as scepticism that there could possibly be such an institution;
f)leaving aside the condescension apparent in the “Arnold Catholic Janssen Church” reference (these are people whose first language is not English, which is an apparent foundation for suspicion on the part of the Tribunal), the Tribunal should have sought information about this, rather than such deriding it. Had the Member sought clarification of this evidence rather than just scoffing at it, he would have found the following:
i.the Divine Word Missionaries is the 9th or 10th largest Catholic Religious Order;
ii.its Australian Head Office is at 199 Epping Road Epping NSW;
iii.its founder was Saint Arnold Janssen, who founded it in Steyl, on the Dutch/German border in 1890. Its founding members were Catholic priests who were religious refugees from Bismarck’s Germany;
iv.several of its Chinese members were prisoners of conscience in China for several years after the revolution; and
v.its Epping congregation has large numbers of Catholic Chinese refugees;
g)the name of the congregation at Epping is not “made up”, as the apparent bias of the Tribunal has led it to believe; and
h)then, at CB 221 at [35] and following, the Tribunal appears to be propagate the astounding belief that the state (Chinese) sanctioned church and the Roman Catholic Church are shortly to amalgamate, or that here is to be some other development. The Pope, according to the Delegate and the Tribunal, is organising this; and
i)such absurdity (amalgamation or some other development) could not have been absorbed other than through bias and prejudice. That biased sentiments underpin this decision, is a conclusion available to a reasonable fair minded observer.
The Tribunal was not satisfied that the First Applicant participated in Catholic activities in China, or that she engaged in such conduct in Australia other than to strengthen her claims for refugee protection: CB 242 at [136], for the following reasons:
a)the Tribunal had concerns about the witnesses’ evidence: CB 240 at [129], including that:
i)the evidence of Father McGee of the Chinese Catholic Community of Western Sydney, in the form of a four line letter about the First Applicant’s attendance at St Dominic’s Church, Flemington: CB 58, was based “only” on what the First Applicant had told Father McGee, and therefore this evidence of Father McGee was not considered to be independent or reliable by the Tribunal: CB 240 at [129];
ii)the evidence of Ms Chen concerning the First and Second Applicants church attendance was found to be changing and variable by the Tribunal, and therefore not reliable or determinative of how often the First and Second Applicants attended church: CB 240 at [129];
b)the First Applicant’s account of how she was first introduced to Christianity was found to be unconvincing because:
i)the Tribunal doubted that a boy from a neighbouring village with whom the First Applicant formed a close friendship would evince no signs of his Catholic faith, or not tell the First Applicant of his Catholic faith, before inviting the First Applicant to a Christmas gathering at his house, and then expose his Catholic faith at that gathering, at which the First Applicant was the only non-believer, given the risks of so doing: CB 240-241 at [131];
ii)the First Applicant was unable to explain – beyond feelings of happiness and peace – why the Christmas gathering at her friend’s house motivated her to participate in a religious practice considered illegal in China: CB 241 at [132];
c)the Tribunal noted that the First Applicant’s written and oral claims regarding her experiences at school were inconsistent: CB 241 at [133];
d)the Tribunal also noted that the First Applicant remained in China for eight months after her claimed detention, and left China on a passport issued in her own name less than two months after the claimed detention: CB 241 at [133]; and
e)the Tribunal considered that these concerns were compounded by the First Applicant’s delay in seeking protection: CB 241-242 at [134], and the inconsistencies between the evidence of the First and Second Applicants regarding their domestic living arrangements: CB 242 at [135].
The Tribunal noted that the Second Applicant failed to mention his claimed religion when asked to identify his reasons for fearing return to China: CB 243 at [138]. The Tribunal was not satisfied that the Second Applicant was a genuine Catholic, or that he had any intention to practise that religion in China: CB 243-244 at [138]-[142]. The Tribunal was not satisfied that the Second Applicant engaged in Catholic activities in Australia, other than for the purpose of strengthening his claims to be a refugee: CB 244 at [142].
The Tribunal accepted that the Third Applicant had been baptized. It considered that the Third Applicant was too young to form an individual motivation or purpose for the conduct and so it was considered in assessing his claims: CB 244 at [143]. The Tribunal found that the Third Applicant did not have any particular religious convictions that he desired to express in China: CB 244 at [144].
The Applicants assert that an assumption, which it attributes to the Tribunal, that a witness has to prove their evidence by corroboration is an indication that the Tribunal has not actually considered the evidence as it is required to do.
The Applicants assertion is legally wrong. The Tribunal is not required to uncritically accept any or all allegations made by an applicant: Randhawa v Minister for Local Government and Ethnic Affairs (1994) 52 FCR 437; (1994) 124 ALR 265; (1994) 35 ALD 1; FCR at 451 per Beaumont J (“Randhawa”), and the weight to be given to any evidence is a matter for the Tribunal: Wu Shan Liang at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ. Further, the Applicants assertion is unsustainable because the Tribunal gave detailed consideration to the evidence on the First and Second Applicant’s faith, including the following:
a)letters of support from members of church communities, including “a letter dated 14 May 2012 from a person claiming to be part of the Chinese Catholic Community in Epping (“Divie World Missionaries Arnold Catholic Janssen Church”)”: CB 218 at [26];
b)the First Applicant’s claims concerning her exposure to the Catholic Church in China and fear of the authorities in China: CB 218-219 at [27];
c)the First Applicant’s interview with the Delegate in which the Delegate:
i.discusses with the First Applicant her Catholic faith and how she came to that faith: CB 221 at [35]; and
ii.raised what is described as “Pope Benedict’s Letter to Chinese Catholics” and in relation to which the First Applicant “indicated that she is aware of this, and that he said the government and Roman Catholic Church can be united” and “[w]hen asked why she thinks that the Roman Catholic Church doesn’t recognise the government churches, she responded that Pope Benedict just presented this as a suggestion”: CB 221 at [35];
iii.questions her about her beliefs and attendance at church: CB 222 at [37]-[43], CB 235-236 at [112] and CB 237 at [117];
d)oral evidence to the Tribunal from Father McGee and Ms Chen: CB 228-229 at [75]-[79];
e)the First Applicant’s evidence to the Tribunal in which she discussed her exposure to the Catholic faith at her friend’s Christmas party in Fujian, and her church activities and attendance in Australia (at Flemington and Epping): CB 232-233 at [96]-[102];
f)the Second Applicant’s evidence about his baptism and church attendance: CB 235 at [108]-[109] and CB 237 at [117];
g)summarising the claims of each of the Applicants with respect to their Catholic faith: CB 239 at[123]-[125]; and
h)drawing extensive conclusions with respect to the claims of each of the Applicants with respect to their Catholic faith: CB240-244 at [128]-[144].
It is plain that this is a Tribunal Decision which sets out and gives detailed consideration to the claims and evidence of the Applicants in relation to their Catholic faith in a manner which belies the Applicants assertion that the Tribunal has not considered the evidence.
The assertion that the Tribunal exhibits apprehended bias by referring to persons as persons “claiming to be” who they are, cannot in the Court’s view justify a conclusion that the Tribunal’s approach to the Applicants claims was affected by apprehended bias. It is no more than a turn of phrase, which even if it were to be characterised as unfortunate, does not objectively rise to the level of firmly establishing apprehended bias.
The assertion that the Tribunal’s reference to “Divie Word Missionaries Arnold Catholic Janssen Church”, and the incorrect ordering of words, suggests derision (see CB 218 at [26]), as well as scepticism that there could possibly be such an institution, and therefore apprehended bias exists, cannot be sustained. All that has occurred is that the Tribunal has quoted verbatim one of the letters in support of the Applicants claims. As the Court observed in argument (see Transcript at page 7) the verbatim quoting of letters replete with misspellings and various inexactitudes is not unusual in this Court or the Federal Court in migration judicial review cases. Likewise, it is not unusual in decisions of the Tribunal. It is simply, in this case, an accurate setting out of factual material actually provided to the Tribunal, and cannot of itself (or indeed in conjunction with any other matters asserted by the Applicants) establish apprehended bias by the Tribunal. In this context the assertion made by the Applicants that the Tribunal should have sought further information concerning the nature of the branch of the Catholic Church concerned does not arise. Further, it was for the Applicants, who were represented before the Tribunal, to put before the Tribunal such information as to the nature of the branch of the Catholic Church concerned and its activities as they saw fit in order to seek to satisfy the Tribunal that they were owed protection obligations. Finally, such information might have been of limited assistance as the Tribunal did not doubt the First and Second Applicants church related activities, but rather their motivation for those activities.
The Court would not quibble with a suggestion that it would be appropriate for the Tribunal in such circumstances to ascertain the proper or correct name of the branch of the Catholic Church concerned, and to insert it into the Tribunal Decision at an appropriate point, but that is a matter of style, content and courtesy, not apprehended bias.
In relation to the assertion of apprehended bias based on the Applicants submission that the Tribunal was propagating a belief that the Catholic Church and the government churches in China might unite, Counsel for the Applicants properly conceded that the Tribunal had done no more than set out the factual position arising from the Delegates interview with the First Applicant: see Transcript at page 11, and ultimately conceded that this aspect of the ground involved a “rhetorical flourish” on Counsel’s part. In that regard it is significant that it is the First Applicant who suggests that Pope Benedict had said that there might be unity. Whether or not that is an absurd proposition, as the Applicants Submissions now assert, does not alter that fact that all the Tribunal was doing was setting out factual material, being the evidence as it appeared to have been given before the Delegate. Later, the Tribunal set out Father McGee’s views about the position of the Catholic Church in China, and that the government bodies regulating the Catholic Church were not recognised by the Vatican. Apprehended bias is not demonstrated by the setting out of factual material (being the evidence before the Delegate as it appeared to the Tribunal) by the Tribunal, and particularly so where it is balanced by the recitation of evidence before the Tribunal of the contrary point of view. This aspect of the ground of apprehended bias is therefore not made out.
Specific allegations of apprehended bias during the Tribunal Hearing
The Applicants made nineteen specific allegations of apprehended bias in the Tribunal Hearing based on what was said and the “tone” of its saying by the Tribunal. The Court has listened, several times, to the recording of the Tribunal Hearing tendered, with leave, post-hearing by the Applicants (and which is to be marked as an exhibit), in relation to each of the nineteen specific allegations of apprehended bias. Each of the nineteen specific allegations of apprehended bias is set out below.
First it is said that the Tribunal’s tone was suspicious or dismissive when it said:
Ok, Now can you tell me about your role as, do have any specific role in the church in Epping? Please wait for the question to be interpreted because I am not sure how much you understand, although you obviously know a bit
Second it is said that the Tribunal’s tone was disbelieving when it said:
So that was the first person your brother wanted to help, he was caught by police at the border, and he gave out your brother’s name
Third it is said that the Tribunal’s tone was accusing when it said:
Now you have entered Australia on a student visa, and that requires evidence of being able to provide, pay international student fees, I am wondering how you could get those visas if your parents were only farmers.
Fourth it is said that the Tribunal’s tone was disbelieving when it said:
Why would your relatives and friends give them money? Relatives and friends normally have their own expenses …
Fifth it is said that the Tribunal’s tone was accusing when it said:
Yes I know lots of students came over, but I also know there’s a financial component to the student visa eligibility, so I am wondering how your parents as farmers and your partner’s parents as farmers could’ve afforded that financial or could have evidenced the financial component resulting in the grant of the visas that you got.
Sixth it is said that the Tribunal’s tone was patronising when it said:
Now you came to Australia on a student visa, did you actually study in Australia?
Seventh it is said that the Tribunal’s tone was suspicious when it said:
That may have been the case at some point in time, but it does concern me quite a lot that you entered Australia in December 2006, claiming that at that time you had already experienced harm on the basis of your Catholic faith in China, yet you remained in Australia for around 5 years before you sought Australia’s protection, that causes me concern
Eighth it is said that the Tribunal’s tone was suspicious when it said:
Now I must say, that failure to act on making enquiries for such a long period of time does make me question whether or not the fears that you say you have motivated you to leave China, are true.
Ninth it is said that the Tribunal’s tone was patronising when it said:
So this is just something you heard?
Tenth it is said that the Tribunal’s tone was suspicious when it said:
All right, but it seems a little bit surprising that he wouldn’t tell you and he would just invite you to a Christmas day party where everyone’s praying and singing
Eleventh it is said that the Tribunal’s tone was disbelieving when it said:
But you can’t remember which, what names of those relevant books are?
Twelfth it is said that the Tribunal’s tone was patronising when it said:
They seem like very good friends to give you that amount of money.
Thirteenth it is said that the Tribunal’s tone was discrediting when it said:
Ok, I am still not sure about how you considered the ceremony divine, Can you tell me what the priest was saying that, please wait for my question, can you tell me what the priest was saying that was particularly important to you on that occasion
Fourteenth it is said that the Tribunal’s tone was patronising when it said:
You could always sleep on the floor of the bedroom, why would you pay extra to sleep in the living room?
Fifteenth it is said that the Tribunal’s tone was that of a pre-determined assumption when the following was said:
Member: … asking you a lot about the delay in lodging your protection visa application, and that, I might have some concerns that you didn’t lodge until February 2012. And you didn’t mention that these visits from the police in December 2011 or January 2012 occurred, given their proximity to the time you lodged the application I am a bit surprised that you didn’t mention it last time.
[First] Applicant: I mentioned this, this issue when I had the first interview with DIAC.
Sixteenth it is said that the Tribunal’s tone was accusing when it said:
I am wondering why you didn’t tell me this when I asked you last time if you paid any extra for your partner to sleep on the lounge
Seventeenth it is said that the Tribunal’s tone was disbelieving when it said:
Ok, now you’ve huh, you’ve each given evidence of financial hardship in Australia that you have to borrow money from friends here to support your expenses, I am wondering what, what the point in staying in Australia, accumulating more debt here, as opposed to going back to China and working there.
Eighteenth it is said that the Tribunal’s tone was patronising when it said:
Or perhaps it would be different if you were living in China where you had family support, which may be able to free you to work.
Nineteenth it is said that the Tribunal’s tone was condescending when it said:
If your friends in Australia have lent you something like $17000 all together why can’t they lend you some money to pay off the fine?
The Court has listened, several times, to the audio extracts provided by the Applicants. The audio extracts are unremarkable. The tone of all of the questions is plain, mild and measured, save that in:
a)allegation three the Tribunal might be slightly quizzical, but certainly not accusing as asserted by the Applicants;
b)allegation four is put very directly, but not in a disbelieving tone as asserted by the Applicants;
c)allegation twelve might contain the slightest hint of sarcasm if one strains to hear it, but is not patronising as asserted by the Applicants.
In the Court’s view all of the audio extracts deal with subject matter relevant to the Tribunal’s consideration of the issues, and there is, having regard to the authorities: see [23] above, nothing in the tone of the audio extracts which remotely approaches establishing apprehended bias on the part of the Tribunal.
The Applicants also asserted that:
a)a fair minded lay observer in this case would be stunned by the level of pre judgement and hostility attested to; and
b)the “findings” in the Tribunal Decision in many respects read like a submission rather than a consideration.
The Court has had the advantage of listening to the above mentioned audio extracts, and of reading, a number of times, the transcript of the Tribunal Hearing of 9 January 2013 annexed to the affidavit of Donglin Wu (which affidavit is in evidence save for those paragraphs struck out at hearing). Like the audio extracts, the transcript is unremarkable and shows a Tribunal properly and appropriately engaged in the task of ascertaining what the claims of the Applicants are, and what their evidence is, and testing it appropriately and relevantly in relation to issues about which the Tribunal must be satisfied in order to grant a Protection Visa: NADH at [19] per Allsop J. There is nothing in any of the material tendered in relation to the Tribunal Hearing which can sustain, or which even suggests, in the Court’s view, any pre-judgment of the Applicants claims by the Tribunal or hostility toward the Applicants claims by the Tribunal.
Conclusion concerning apprehended bias
The Court has considered the apprehended bias allegations both individually, but also collectively. At no point, individually or collectively, does the evidence relied upon by the Applicants come close to firmly establishing apprehended bias by the Tribunal. Having regards to its findings above, the Court finds that ground 2, alleging apprehended bias on the part of the Tribunal, is not made out.
Ground 3
Ground 3 of the Judicial Review Application alleges that the Tribunal “does not have jurisdiction to refuse to consider self-evident facts” and that the Tribunal “has to accept and consider evidence, not decide in advance that what is submitted would not be accepted”.
The Applicants Submissions did not particularise or otherwise set out what “self-evident facts” have not been considered by the Tribunal. It is not otherwise evident to the Court that any “self-evident facts” have not been considered by the Tribunal. Rather, the Court’s view is that the Tribunal has carefully and at some length set out the claims, issues, materials and evidence, and that no issue arises at the failure to consider a relevant consideration or relevant material: Yusuf, or the failure to consider an integer or component of the Applicants claims, or the case advanced: Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321 at [72]-[74] per Kirby J.
For reasons set out above it is the Court’s view that the Tribunal did consider all of the available materials and evidence, and that having done so, contrary to the Applicants Submissions, it was not required to “accept” any or all of the evidence: Randhawa; see also SZHIS v Minister for Immigration & Multicultural Affairs [2006] FCA 1641 at [10]-[11] per Jacobson J where the Federal Court observed that the Tribunal was not required to give applicants the benefit of the doubt.
Having regard to the Court’s observations in relation to ground 2, and at [69] above, there is no basis for the assertion that the Tribunal was guilty of pre-determination of any aspect of the Applicants claims. Moreover, to the extent that this assertion raises actual bias, that is not a matter relied upon by the Applicants: see [21]-[22] above.
For the above reasons, ground 3 is not made out.
Ground 4
Ground 4 of the Judicial Review Application asserts that “in being obliged to correctly consider the Refugee Convention as applied within the [Migration] Act, the Tribunal committed a jurisdictional breach in not doing so”. Save for the Applicants Submissions in relation to apprehended bias (which is dealt with above) the Applicants have not particularised or otherwise set out what “jurisdictional breach” is otherwise said to have been committed by the Tribunal.
The Applicants submit that:
a)a decision contrary to evidence or in the absence of evidence is an error of law, and refer to RL & D Investments Pty Ltd v Bisby [2002] NSWSC 1082; (2002) 37 MVR 479; and
b)the Tribunal Decision is clearly at odds with the evidence.
The Tribunal Decision is clearly not at odds with the evidence for reasons set out above in relation to grounds 1, 2 and 3. Accordingly, ground 4 cannot be, and is not in its terms, made out.
Conclusions and orders
The Court has concluded that none of the grounds of the Judicial Review Application have been made out. It follows that the Judicial Review Application must be dismissed. There will be an order accordingly.
The Court will also make an order amending the name of the second respondent to read “Administrative Appeals Tribunal”: Tribunals Amalgamation Act 2015 (Cth), s.3, Sch.2.
The Court will hear the parties as to costs.
I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 12 October 2015
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