SZTCI v Minister for Immigration & Border Protection

[2014] FCCA 1810

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTCI & ANOR v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2014] FCCA 1810

Catchwords:
MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether Refugee Review Tribunal adopted the role of ‘arbiter of doctrine’ in respect of the applicant’s religion – whether Refugee Review Tribunal’s adverse credibility findings were open to it – whether Refugee Review Tribunal’s findings were unreasonable or irrational – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 31, 36, 65, 91R, 411, 474
Migration Regulations 1994 (Cth), reg.2.01

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108; (2010) 187 FCR 363
WALT v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCAFC 2
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611

First Applicant: SZTCI

Second Applicant: SZTCJ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1689 of 2013

Judgment of: Judge Emmett

Hearing date: 18 July 2014

Date of Last Submission: 18 July 2014

Delivered at: Sydney

Delivered on: 13 August 2014

REPRESENTATION

Counsel for the Applicant:  Mr Julian Gormly

Counsel for the Respondents: Mr Mark Cleary

Solicitors for the Respondents: Clayton Utz

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1689 of 2013

SZTCI

First Applicant

SZTCJ
Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated and handed down 28 June 2013 (“the RRT”).

2. The first named applicant (“the Applicant”) claims to be a citizen of the People’s Republic of China (“China”), of Christian faith, and Han ethnicity, who claims to fear persecution from authorities in China because of her Christianity and because she has a second child, contrary to Chinese family planning laws.

3. The second applicant is the infant daughter of the Applicant. The second applicant was born in Australia on 1 May 2012. The Applicant was appointed litigation guardian of the second applicant.

4. Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the Applicant’s claims in support of protection visas, a summary of the decision of a delegate of the first respondent (“the Delegate”), and a summary of the RRT’s review and decision.

Background

1. The Applicant arrived in Australia on 6 May 2007, having departed legally from China on a passport issued in her own name and a Student (Class TU) visa.

2. On 9 August 2008, the Applicant returned to China.

3. On 7 November 2008, the Applicant re-entered Australia.

4. On 29 December 2011, the applicants lodged applications for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”).

5. On 20 July 2012, the Delegate refused the applicants’ applications for protection visas.

6. On 16 August 2012, the Applicant lodged an application for review of the Delegate’s decision by the RRT.

7. On 28 June 2013, the RRT affirmed the decision of the Delegate not to grant protection visas.

8. On 23 July 2013, the Applicant filed an application in this Court seeking judicial review of the RRT’s decision.

Legislative framework

1. Pursuant to s.65(1) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection (Class XA) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).

2. Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).

3. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

   “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

4. Section 91R of the Act expands on the notion of persecution and serious harm when considering Article 1A(2) of the Convention.

5. Section 36(2)(aa) of the Act provides that:

   “(2)  A criterion for a protection visa is that the Applicant for the visa is:

   (aa)  a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.”

6. Sections 36(2A) and 5 of the Act defines “significant harm.”

7. Under s.411(1)(c) of the Act, a decision to refuse to grant a protection visa is a decision which may be reviewed by the second respondent.

8. Under s.474(2) of the Act, a decision of the second respondent is a 'privative clause decision'. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.

9. However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision. (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).

The Applicant’s application for a protection visa

1. The Applicant provided two statements in support of the applicants’ protection visa applications. The first written statement, received by the Department on 29 December 2012, stated:

   a)The Applicant is a mother of two daughters. The elder daughter, born 13 October 2008, lives in China with the Applicant’s mother. The younger daughter, born 1 May 2012, is the second applicant who lives with the Applicant.

   b)The Applicant’s parents divorced; the mother lived in Fujian Province and was a Buddhist; her father lived in Taiwan and became a Christian.

   c)The father formed a Christian church group (“the Local Church”) which the Applicant attended as a young child.

   d)In 2006, the Local Church was declared shut down by local authorities, however, the gatherings continued in secret.

   e)In May 2007, the Applicant travelled to Australia as a student.

   f)In August 2008, the Applicant returned to China with Christian missionary material. The Local Church was raided and the missionary material was discovered. The Applicant and her father were arrested.

   g)At the time of the arrest, the Applicant was pregnant. The Applicant’s husband’s family disagreed with her involvement with the Local Church and, in October 2010, pressured the husband to divorce the Applicant. The Applicant returned to Australia, however she continued to send Christian material to the Local Church.

   h)In October 2011, the Applicant’s father was “summoned” for missionary activities, disobeying the order closing the Local Church, and being in possession of the banned material sent by the Applicant.

   i)The Applicant fears persecution due to China’s family planning laws and their associated punishment, and social discrimination.

   The second written statement, received by the Department on 1 July 2012, stated:

   j)The second applicant is at risk of persecution as the area to which she will have to return favours men over women, and that the bias and discrimination will have a negative psychological impact on the second applicant’s development.

   k)The second applicant, as a second child, will be unable to register for social benefits, such as medical attention and education, be discriminated against due to her race, and has been rejected by the Applicant’s extended family.

The Delegate’s decision

1. On 25 June 2012, the Applicant attended an interview with the Delegate.

2. On 20 July 2012, the Delegate refused the applicants’ applications for protection visas on the basis that the applicants are not people to whom Australia has protection obligations under the Convention and do not meet the alternative complementary protection criterion.

3. The Delegate was not satisfied that the Applicant’s circumstances in China were as claimed or that the applicant possesses a profile which brings her to the adverse interest of Chinese authorities. The Delegate rejected the Applicant’s claims of past harm and rejected her claim to have been sending religious material to her father in China, or that her father was issued with a summons in 2011 as a consequence. The Delegate was not satisfied that the Applicant or her father were targeted in the past for engaging in underground church activities.

4. The Delegate found that the Applicant did not possess a religious or political profile that is of concern to the Chinese authorities and was not satisfied that she would attract the adverse attention of Chinese authorities on her return.

5. In relation to the second applicant, the RRT found that the Applicant would pay the social compensation fee for the second applicant on her return, as a result of which, the second applicant would not be an unregistered child in the future and as such would not suffer discrimination or persecution on that basis.

6. The Delegate concluded therefore that the applicants’ fear of persecution is not well-founded.

7. The Delegate also considered whether the applicants met the complementary protection criterion and found that the applicants were not at a real risk of significant harm as a necessary and foreseeable consequence of their removal from Australia if returned to China.

The RRT’s review and decision

1. On 16 August 2012, the Applicant lodged an application for review of the Delegate’s decision by the RRT.

2. The Applicant provided further documents in support of her review application in the form of photographs and a psychological report indicating that she was suffering from depression.

3. On 15 May 2013, the RRT wrote to the Applicant informing her that the RRT had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing on 12 June 2013 to give oral evidence and present arguments.

4. On 12 June 2013, the applicants attended the RRT hearing and gave evidence.

5. The RRT explored the Applicant’s claims with her in some detail at the hearing and put to her concerns it had about her evidence, noting her responses. The RRT put to the Applicant country information for comment. The RRT identified with particularity the country information to which it had regard.

6. The RRT’s decision is accurately summarised in the first respondent’s written submissions as follows:

   “8. In its decision the Tribunal, after considering the evidence and the claims, made the following relevant findings[1]:

   a) Firstly, that the primary applicant lacked credibility and her evidence was vague, misleading and changing.  This finding was based on an assessment of the evidence she gave at the hearing, including her explanations regarding her involvement with the Local Church.  It was also based on an assessment of her evidence in support of her claim that she sent religious material to China from Australia, and a finding that she was unable to identify what material she sent or how she sent it.  Further, the credibility finding was also based on the Tribunal’s finding that the primary applicant’s evidence pertaining to celebrations of Easter and Christmas in China by the Local Church conflicted with reputable independent country information, which the Tribunal accepted.

   b) Secondly, the Tribunal did not accept any of the primary applicant’s claims relating to her practice of the Christian faith in China or Australia as a consequence of its credibility finding;

   c) Thirdly, while the Tribunal acknowledged that the primary applicant had a second daughter out of wedlock, the Tribunal found that the primary applicant had the financial means to pay the relevant social compensation fee and register the second daughter and thereby prevent related negative consequences.  The Tribunal found that in light of independent country information the primary applicant would be capable of paying the fee without suffering financial harm.  Further, the Tribunal also noted that, notwithstanding this, the applicant may be excused from the usual fee due to an exemption that exists for students overseas who have a second child;

   d) Fourthly, in relation to the discrimination that the primary applicant fears, the Tribunal cited independent country information which stated that the primary applicant’s home province of Fujian has one of the least coercive family planning regimes in China, and it found that whilst the primary applicant may endure some social discrimination and isolation, this would not amount to serious harm or persecution, and accordingly rejected that claim.”

   [1] GB 110-114.

7. Having considered the Applicant’s claims, the RRT found that there was no evidence to support a finding that she would suffer harm for a Convention-related reason were she to return to China and that the applicants’ claimed fear of persecution in China was not well founded. For these reasons, the RRT concluded that the applicants were not persons to whom Australia owed protection obligations.

8. The RRT also considered whether the applicants met the alternative criteria for complementary protection under s.36(2)(aa) of the Act and concluded that they did not. The RRT found that there was no credible evidence before it that the Applicant would be persecuted in China either on account of her Christianity or for having a second child. Accordingly, the RRT found that there are not substantial reasons for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to the receiving country, China, there was a real risk that the applicants would suffer significant harm.

9. Accordingly, having determined that the applicants did not satisfy the refugee criterion in s.36(2)(a) of the Act, or the alternative criterion in s.36(2)(aa) of the Act, the RRT affirmed the decision under review.

The proceeding before this Court

1. The applicants were represented before this Court by Mr Julian Gormly, of counsel

2. By consent, the applicants were given leave to rely on a Further Amended Application identifying the following grounds:

   “The decision of the Refugee Review Tribunal (“the Tribunal”) was affected by jurisdictional error in that:

   1.   When considering the first applicant’s (the applicant’s) claims to have been involved with the Local Church in China the Tribunal took the role of the “arbiter of doctrine”[2] or “key belief” (RRT[39]) by imposing and applying a standard or level of knowledge being that:

   [2] Wang v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 548 at 552 [16]

   “…in contrast to mainstream churches, members of the Local Church do not celebrate Christmas or Easter” RRT[39]

   Particulars

   a. In applying possession of this knowledge as a standard the Tribunal went beyond questioning the applicant about her beliefs on matters which that particular religion teaches (WALT v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCAFC 2 at [29]) or legitimately exploring what the applicant knew about the religion “in order to assess the genuineness of the claim” (SBCC v Minister for Immigration and Multicultural Affairs [2006] FCAFC 129 at [47]) and instead adopted an “illegitimate a priori approach” (MIAC v SZLSP (2010) 187 FCR 362 at [37]-[38]).

   b. the applicant’s evidence was that the her Local Church does celebrate Easter and Christmas, that Easter was very important to them, and that the Tribunal’s understanding of what “celebration” meant was not the same as the applicant’s (RRT [16]-[20] and [27]).

   c. The Tribunal regarded certain country information of the said knowledge as “contradicting” the applicant’s evidence (RRT [44]) and that the applicant had given “false and misleading information” (RRT [47]) and “incorrect evidence” regarding celebrations in the Local Church.

   d. As a result of the perceived contradiction between the country information and the applicant’s evidence regarding celebrations in the Local Church the Tribunal concluded that the applicant lacked credibility (RRT [43] & [44]) and found that neither she nor her father were ever involved with eth Local Church in China (RRT [48])

   2. The country information which was the purported source or basis of the a priori premise that all members of the Local Church would know that it did not celebrate Christmas and Easter was not in fact probative of the premise, and the Tribunal’s conclusions on the applicant’s credibility which were drawn on the basis of the presmise were unreasonable and/or irrational as a result.

   Particulars

   a. The country information that “… in contrast to mainstream churches, members of the Local Church do not celebrate Christmas or Easter” was qualified by a statement from the same source that “Although we do not practice celebrating these festivals, this is not a legality, and some local church members individually do celebrate Christmas and Easter.”

   e. Not only did the Tribunal assumed itself as an arbiter of doctrine by imposing a standard of knowledge, the differences between the meaning of the word “celebrate” in the country information (ie with reference to how the mainstream churches celebrated Christmas and Easter: RRT [39]) and that explained by the applicant (RRT [27]) meant there was no logical connection between those variations and the conclusions that the applicant’s evidence contradicted country information (RRT [44]) or was false and misleading (RRT [47]) or was incorrect (RRT [49]); see MIAC v SZLSP [2010] FCAFC 108; (2010) 187 FCR 362 at [39].

   3. The Tribunal’s treatment and conclusion concerning the applicant’s evidence on sending ‘gospels’ to her father in China at (RRT[46]) was unreasonable and/or irrational. It was not open for the Tribunal to conclude the applicant’s evidence was “changing” on the material before it: see SZMDS v MIAC (201) 240 CLR 611 at [133].”

Ground 1

1. At the heart of ground 1 is a complaint that the RRT fell into jurisdictional error because it relied on the premise that all members of the Local Church must know that members of the Local Church do not celebrate Christmas and Easter.

2. The RRT found that the Applicant’s evidence “contradicted reputable country of origin information in relation to celebrations that are celebrated at the Local Church.” The RRT was referring to evidence given by the Applicant that she had celebrated Easter and Christmas in the Local Church in China, whereas country information disclosed that the Local Church does not celebrate those events. The RRT then found that this contradiction between the Applicant’s evidence and the county information raised doubts as to the Applicant’s truthfulness “in relation to this matter as well as more generally.”

1. Counsel for the applicants submitted that those findings by the RRT were the result of a reliance by the RRT on the premise that the Applicant must have certain knowledge or provide certain answers in relation to aspects of her religion, by setting itself up in “the role of arbiter of doctrine” with respect to the Applicant’s claimed religion.

2. In Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108; (2010) 187 FCR 363 (“SZLSP”), Kenny J identified the difference between (a) operating from the premise that all believers will have certain specific knowledge; and (b) concluding after exploring the matter and without any preconception as to what knowledge all believers will demonstrate, that a particular applicant’s lack of knowledge indicates that he is not a genuine adherent to the religion.

3. Mr Gormly submitted that the RRT in the case before this Court fell foul of Kenny J’s category (a) because it operated from the premise that all believers would have certain knowledge.

4. The applicants read the affidavit of Penelope Pandora Prichard, affirmed 30 October 2013, annexing a transcript of the RRT hearing. A fair reading of the transcript and the RRT’s reasons make clear that the RRT did not set itself up as the arbiter of doctrine as suggested in category (a) of Kenny J’s decision in SZLSP and identified in WALT v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCAFC 2 at [28].

5. The transcript makes clear that the RRT was exploring with the Applicant her claimed attendance at the Local Church in China and an incident that she claimed took place in 2006 when she said that in Easter of 2006, her father’s church was sealed by the government and all church activities ceased. The RRT explored that evidence with the Applicant. The Applicant said that she was present when her father’s church was sealed, that people came and questioned her father, but that she was too young to understand what was going on, although she listened to their conversations and surmised that they were investigating something.

6. The RRT asked the Applicant how she knew that it was Easter, and the Applicant answered “because it was Sunday and that Easter is very important for us.” The RRT asked how Easter was important and how it was celebrated. The RRT asked if there are other celebrations that the Applicant had in the Local Church and the Applicant nominated Crucifixion Day and Christmas Day.

7. The RRT then squarely raised with the Applicant that country information recorded that the Local Church does not celebrate Easter and that the Applicant’s evidence to the RRT that she remembered her father’s church being entered in 2006 on Easter created doubt as to her specific evidence regarding the Local Church and her overall evidence. The RRT invited the applicant to comment. The Applicant’s answer was as follows:

   “What I mean that celebrating is just some gather, it’s just to gather together, and ah… we pray together, share… share stories from bible together, and have meals together. It’s quite normal. And ah… but Easter, it just a special day – that’s it.”

8. The RRT then put to the Applicant that country information recorded that people in the Local Church also did not celebrate Christmas, causing the RRT to doubt the Applicant’s claims that she celebrated Christmas with her Local Church family, thereby reflecting on her credibility more generally. The Applicant responded:

   “I und… that your understanding about celebration is … is the same as ours. I just want to say that our celebration is… is to… is referring to the times that we gather to have meals together.”

9. The transcript makes clear that the RRT’s doubts in respect of the Applicant’s credibility arose from the Applicant’s evidence regarding the celebration of Easter and Christmas in her Local Church in circumstances where that evidence was inconsistent with country information before the RRT. The RRT squarely put the country information to the Applicant for comment.

10. Ultimately, the RRT found her evidence to be “vague, misleading and changing” and lacking credibility. The RRT found that neither the Applicant nor her father were involved in any way in the Local Church in China or that the authorities approached a Local Church gathering in 2006 and 2008, or that she and her father were arrested.

11. The RRT’s adverse credibility findings arose upon the exploration by the RRT of the applicant’s own evidence of the practices in her church, which the RRT found to be contradictory to country information.

12. A fair reading of the transcript makes clear that the RRT’s questions to the Applicant about her knowledge of Easter and Christmas were not designed to test her knowledge of her professed faith; rather, they were to assess her credibility against country information that was clearly put to her. The RRT was not prohibited from evaluating the Applicant’s answers against the country information before it and the weight to be given to that evaluation is generally a matter for the RRT (see SZLSP at [38] per Kenny J).

13. The RRT was entitled to accept the country information before it in preference to the applicant’s evidence and to find that her contradictory evidence affects her overall credibility. It is well settled that the country information to which the RRT has regard and the weight it gives that information is a matter for the RRT (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).

14. The RRT’s findings are not synonymous with SZLSP and the application of the statements by Kenny J are not relevant in the case before this Court. The RRT did not set itself up as the arbiter of religious doctrine and it was not requiring the Applicant to meet particular religious knowledge. The RRT did not apply any “standard” of religious belief against which to test the Applicant. The RRT simply did not accept the Applicant’s evidence that she had celebrated Easter and Christmas with her Local Church in light of the country information before it.

15. In the circumstances, the RRT’s findings were open to it on the materials and evidence before it, and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the RRT (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J). A credit finding is sound if it was “open to [the RRT] on the material, was based on rational grounds and was arrived at on consideration of matters that were logically probative of the issue of credibility.” (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547)

16. Accordingly, ground 1 is not made out.

Ground 2

1. At the heart of the complaint in ground 2 is an assertion that the country information relied on by the RRT was not put correctly to the Applicant by the RRT. Counsel for the Applicant submitted that there was a footnote in the country information referred to by the RRT that referred to a letter to the Refugee Review Tribunal from Philip Yi, elder of “the Church in Melbourne”, which stated as follows:

   “Although we do not practise celebrating these festivals, this is not a legality, and some Local Church members individually do celebrate Christmas and Easter.”

2. That statement followed a statement in Mr Yi’s letter that, “In the Local Church we do not practise celebrating Christmas or Easter” because it is regarded as a pagan festival.

3. Fairly read, Mr Yi’s statement makes clear that the Local Church does not celebrate Christmas and Easter, although some individual members may.

4. Mr Yi’s letter was referred to as a footnote to country information referred to by the RRT, being “China – CHN40283 – Mormons in China”, and upon which the RRT relied. That country information was quoted by the RRT as follows:

   “In contrast to mainstream churches, members of the Local Church do not celebrate Christmas or Easter as it is believed that these festivals have Pagan origins.”(emphasis added)

5. In referring to this country information, the RRT made clear that the quote to which it referred was selective and that the footnotes were removed.

6. Counsel for the Applicant submitted that there was a lack of significant evidentiary foundation in the RRT’s finding that the Local Church did not celebrate Easter and Christmas, which had the effect of rendering its decision as unreasonable or “lacking an intelligible justification” (see Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [76] per Hayne, Keifel and Bell JJ (“Li”); and Minister for Immigration and Citizenship v SZDMS [2010] HCA 16; (2010) 240 CLR 611 at [124] per Crennan and Bell JJ (“SZMDS”)).

7. I do not accept that submission. It was both reasonable and fair that the RRT put to the Applicant the country information that in the Local Church, Christmas and Easter are not celebrated. The Applicant’s answers were somewhat incoherent and unresponsive.

8. The country information in Mr Yi’s letter draws a clear distinction between activities of the Local Church, which do not celebrate Easter and Christmas, and the private activities of members. The Applicant’s evidence had been to the effect that her Local Church celebrated Easter and Christmas. That evidence was contrary to the country information. The incident the subject of the Applicant’s evidence was that the Local Church was celebrating Easter in 2006, when the authorities came and investigated her father and closed down the church. That evidence was referring to activities of the Local Church, rather than the members of the Local Church.

9. In the circumstances, as stated above, the RRT’s findings were open to it on the evidence and material before it and for the reasons it gave. The RRT’s adverse credibility findings were neither illogical nor unreasonable.

10. Accordingly, ground 2 is not made out.

Ground 3

1. Ground 3 asserts that the RRT’s treatment and conclusions concerning the Applicant’s evidence of sending “gospels” to her father in China was unreasonable or irrational.

2. Counsel for the applicants submitted that a fair reading of the Applicant’s responses to the RRT’s questions about sending gospels to her father in China shows that it was not open for the RRT to conclude that the Applicant’s evidence was “changing” on the material before it and to so find was unreasonable as it “lacked an evident and intelligible justification” (see Li at [76]; SZMDS at [132] per Crennan and Bell JJ).

3. However, a fair reading of the transcript of the RRT hearing suggests that the Applicant’s evidence on this issue as to what material she sent her father was not clear or consistent. The Applicant commences her evidence saying she downloaded a few pages from a website of a book written by Watchman Li. When asked why her father did not have this information if he was already running Local Church meetings when the Applicant was 15, the Applicant responded, “My father has this, but what I… what I sent him is a new one.”

4. The RRT then asked the Applicant how is it “new” and the Applicant replied that it was “just part new.” The Applicant said that her father would not have so many copies in China so when she attended church in Australia she obtained some copies. The RRT then asked her how she sent these copies to him and she said through a computer and that they were not actual books, but electronic pages and that there were “some gospel pamphlets – electronic ones.”

5. The RRT then put to the Applicant as follows:

   “Q. Okay. I find your evidence unbelievable. It’s going around in a circle. I’m saying “what did you send him?” … “Ah, I sent him some, this book written by Watchman Li” … “why didn’t he have a copy of the book?” … “Oh, he did have a copy, but he needs another one.” It’s going… (Applicant starts interrupting the Member) … no, no…

   A. Applicant: Oh, okay.

   Q. Your evidence is going around like this. This… this… this doesn’t make any sense. It’s going around and around.

   A. Applicant: I don’t think so.”

6. The RRT then asked the Applicant what was her answer, and she said that her father did have some gospel books but they were limited resources, whereas in Australia one can have new books every two months and she wished to share these with her father, so she sent him electronic copies and downloaded some new ones.

7. In my view, the Applicant’s evidence was clearly confusing and it was open to the RRT to find that her evidence in relation to this issue was “changing”. The RRT put to the Applicant that her evidence did seem to be contradicting itself or going around in circles.

8. A fair reading of the transcript makes clear that such a characterisation was open to the RRT.  Further, the RRT was entitled to have regard to its finding that the Applicant’s evidence was “changing” in considering the Applicant’s overall credibility.

9. I do not accept that the RRT’s finding that the Applicant lacked credibility because of contradictions in the Applicant’s evidence and that her evidence was vague, misleading and changing were not open to it. Those findings were not illogical or irrational and did not lack an intelligent justification. The fact that minds may differ on the conclusion drawn from the Applicant’s evidence does not establish that the finding lacked an evident and intelligible justification or was illogical or irrational (see SZMDS at [131]).

10. As stated above, the RRT’s findings were open to it on the evidence and material before it and for the reasons it gave.

11. Accordingly, ground 3 is not made out.

Conclusion

1. A fair reading of the RRT’s decision record makes clear that the RRT understood the claims being made by the Applicant; explored those claims with the Applicant at a hearing; and, had regard to all material provided in support. The RRT put to the Applicant matters of concern it had about her evidence and noted the Applicant’s responses. The RRT identified independent country information to which it had regard. The RRT also invited the Applicant to comment on independent country information, which it found contradicted the Applicant’s evidence.

2. The RRT then made findings based on the evidence and material before it. Those findings of fact were open to the RRT on the evidence and material before it and for the reasons it gave. A fair reading of the RRT’s decision record makes clear that the RRT reached conclusions based on the findings made by it and to which it applied the correct law.

3. In the circumstances, the RRT complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

4. The RRT’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

5. The proceeding before this Court should be dismissed with costs.

I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  13 August 2014