SZTKR v Minister for Immigration & Anor - [2014] FCCA 1705

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTKR & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 1705

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – refusal of protection visas – principal applicant claiming religious persecution in China – applicant not believed – whether the Tribunal decision is vitiated by an apprehension of bias considered.

Legislation:

Migration Act 1958 (Cth), ss.36, 425

First Applicant:

SZTKR

Second Applicant:

SZTKS

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2574 of 2013

Judgment of:

Judge Driver

Hearing date:

31 July 2014

Delivered at:

Sydney

Delivered on:

22 August 2014

REPRESENTATION

Solicitors for the Applicants:

Mr C McArdle

McArdle Legal

Counsel for the Respondents:

Mr J D Smith

Solicitors for the Respondents:

DLA Piper

ORDERS

The application as amended on 21 February 2014 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2574 of 2013

SZTKR

First Applicant

SZTKS

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

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 19 September 2013. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants protection visas. There are two applicants who are a mother and daughter. The relevant protection claims were made by the first applicant (the applicant mother). References in this judgment to the applicant are intended to be references to her.
The following statement of background facts concerning the applicants’ protection claims and the Tribunal decision on them is derived from the Minister’s outline of submissions filed on 25 July 2014.
The applicants are citizens of China (Fujian province). The first applicant arrived in Australia on a student visa on 23 May 2008. On 25 February 2012 she married another Chinese citizen in Australia[1]. On 24 July 2012 she lodged a protection visa application based on her fear that she would be persecuted in China for reason of her Christianity. On 11 September 2012 she gave birth to the second applicant who was joined as an applicant to her mother's protection visa claim on 22 October 2012.
[1] He apparently made a separate application for protection
The applicant made the following claims in support of her visa application. Her mother was converted to Christianity in February 2007. Her father was then converted and, in July 2007, the applicant began to attend Bible study class. She was baptised in the Local Church (members of which are also known as Shouters) on 6 October 2007, her eighteenth birthday. In May 2007 the applicant came to Australia to study and started attending a Local Church here in the following month. She returned to China in December 2009 in order to visit her parents, but stayed longer when her father was involved in an accident. During her stay, the applicant helped friends of hers make copies of the Bible and attended secret religious meetings.
On 15 February 2010 the applicant's aunt was arrested for organising a Bible study class at her home and the applicant took her father's advice to return to Australia. However, as her father was injured, the applicant could no longer afford to study and terminated her studies here. Her parents were questioned three times by the police because of their connection to the applicant's aunt.
The applicant continued attending the Local Church in Sydney and maintained contact with her Christian friends in China. In order to support their activities, she sent them copies of The Holy Word for Morning Revival on six occasions between June 2010 and May 2012. On 9 June 2012 the applicant's friends in China were arrested at a secret meeting and found to have copies of the documents sent by the applicant. The following day the police raided the applicant's home in China and took her parents into custody, interrogated them and threatened that they would put them in jail if they didn't stop the applicant sending material to China.
On 21 November 2012 a delegate of the Minister decided to refuse to grant the applicants protection visas. The reason for that decision was that the delegate did not accept that the applicant was engaged in activities on behalf of an underground church at any time or that her friends and family had been targeted by the authorities in China. Further, the delegate did not believe that the applicant genuinely feared persecution in China because it had taken her two years from her return to Australia to lodge an application for the visa.
The applicant applied to the Tribunal for review of the delegate's decision. On 27 August 2013 the applicant attended a hearing conducted by the Tribunal together with her migration agent, Mr Huang.

Tribunal's decision

The Tribunal found that the applicant's claims about her involvement with the Local Church in China were not credible for three reasons: first, it was not plausible that she sent material to the church heedless of the risks entailed in that activity without at least discussing it with members of her church in Sydney and it was not plausible that she sent the material through a Chinese-owned souvenir shop where the owner knew what it was and witnessed her hiding it among other items[2].
[2] Court Book (CB) 150 [20]
Secondly, it was not plausible that the applicant could have evangelised in her school in China in secret if, as she said, to do so was illegal and highly dangerous[3].
[3] CB 151
Thirdly, the fact that the applicant delayed two years before seeking protection in Australia after fleeing China in fear cast strong doubt on her claimed fear of harm as well as on her claim that her aunt was arrested and so precipitated the applicant's departure[4].
[4] CB 151
For those reasons, the Tribunal rejected the applicant's claims in respect of the events in China[5].
[5] CB 151 [21]
The Tribunal did not accept that the applicant attended a Local Church in Sydney from May 2008, but did accept that she attended one from March 2012. However, it was not satisfied that she attended the church otherwise than for the purpose of strengthening her claims to be a refugee and so disregarded it for the purpose of determining whether she had a well-founded fear of persecution.
For those reasons, the Tribunal found that the applicant did not have a well-founded fear of persecution in China and so did not satisfy s.36(2)(a) of the Migration Act 1958 (Cth) (Migration Act). The same findings of fact also led the Tribunal not to be satisfied that the applicant met the criterion in s.36(2)(aa). Given that the applicant did not purport to satisfy the criterion in s.36(2) as the family member of a person who satisfied either s.36(2)(a) or s.36(2)(aa), the Tribunal found that the applicant did not meet s.36(2) and so affirmed the decision under review.

The judicial review application

These proceedings began with a show cause application filed on 22 October 2013. The applicants now rely upon an amended application filed on 21 February 2014. The grounds in that application are:
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 19 September 2013 on the grounds that it was not a decision under the [A]ct.
Particulars
i. Section 5E
ii. Transcript and evidence.
2. The Tribunal apparently “come what may” did not permit the facts as to religious intolerance in Fujian province China to be considered. See decision record generally, and especially paragraph 12, dot point 15.
3. The Tribunal apparently did not permit the facts as to the application of the Refugee Convention to be considered. See generally and especially references to return to China.
4. The Tribunal appeared to be so predisposed to refuse to believe the Applicant as to deny her procedural fairness which led to statutory breach.
5. The Tribunal’s conclusion was encumbered by characteristics which would lead a reasonable person to apprehend bias, and was thus not an effective decision that is protected by Section 474.
I have before me as evidence the court book filed on 19 November 2013 as well as the affidavit of Dongling Wu made on 2 April 2014, to which is annexed a transcript of the hearing before the Tribunal which was held on 27 August 2013.

Consideration

Notwithstanding the terms of the amended application, the solicitor for the applicants conceded at the trial of this matter on 31 July 2014 that there was only one issue for the Court to resolve: namely, whether the decision of the Tribunal is vitiated by apprehended bias. The grounds in the amended application are intended to support the proposition that the decision of the Tribunal is so vitiated. In substance, the applicants contend that after a lengthy hearing in which the internal consistency and credibility of the applicants’ claims was closely tested by the Tribunal, and at which the first applicant successfully resisted all challenges to her credibility, the Tribunal nevertheless made an adverse decision based solely on the Tribunal’s subjective assessment detailed at [20] of its reasons[6]:
The Applicant’s claims about her involvement with the Local Church in China are unsubstantiated from any external source and consist of no more than a number of assertions. Having considered those claims I do not believe they are credible, for the following reasons.
·I am not satisfied that her claim to have sent Local Church material to China, the immediate cause of the harm she claims to fear there, is credible. If the Holy Word for Morning Revival is as dangerous a work as she claims it to be I am not satisfied it is plausible that she can have been so heedless of the risks for her friends that she would send copies to them in a series of bulky parcels, any of which would reasonably be seen as liable to be intercepted and opened by Customs or other officials on arrival. I am not satisfied it is plausible that she would have taken so momentous a decision without at least discussing it with members of the Local Church in Blacktown or Lidcome if, as she claims, she has regularly worshipped at these churches and was in doubt as to the wisdom of sending them. Nor am I satisfied it is at all plausible that she can have sent the material through a Chinese-owned souvenir shop in Sydney in circumstances where the owner knew what it was and witnessed her hiding it among other items. I have considered the various explanations she has offered for this alleged conduct – that she kept changing her telephone number and QQ address, that the parcels were addressed in false names although to the correct addresses, and that police would not arrest the occupants at these addresses because they were not the people named on the parcels as the addresses – but I do not find them convincing. Given the centrality of this matter to her claimed fear of persecution, I find this also casts doubt over the credibility of her claims in general.
·I find unconvincing, and I do not accept, her claim to have evangelised in her school. This aspect of her alleged church activities in China was not mentioned in her protection visa application, despite the importance such conduct would have had in her religious life and the risks it might have posed for her. I note her claim at the hearing that she took precautions by confining her evangelising among trusted friends but I find it implausible that this activity – said by her to have been illegal and highly dangerous, could have been undertaken in secret in such a setting.
·As put to her at the hearing, her claim to have fled China in fear in February 2010, after her Aunt … was arrested for organizing a Bible class for young students, is not consistent with the fact that she delayed seeking protection in Australia for a further two years. I have considered her various explanations for this delay, to the effect that she had insufficient money to pay an agent and that she was dissuaded because her husband had been unsuccessful in his own protection visa application, but I do not find them convincing. I find that it casts strong doubt on her claim to fear harm in China as well as on her claim that she had an Aunt … who was arrested for Local Church activity, precipitating her departure.
[6] CB 150-151
The following may be readily acknowledged. First, a differently constituted Tribunal might have reached different subjective conclusions based upon the same material. Secondly, the transcript reveals that the first applicant proved both adept and eloquent in answering the Tribunal’s questions. Thirdly, decision makers dealing with hundreds, possibly thousands of similar claims, most of which fail, and many of which are advanced by a small number of well known representatives, must resist the temptation towards pre-judgement. Every case must be dealt with on its own facts and on its own merits. A curiosity in the present matter is that the applicant’s husband made a separate protection visa application which was separately considered and rejected[7]. The risk of pre-judgement is a risk that the Tribunal needed to avoid. The question is whether the Tribunal failed to avoid it.
[7] referred to at [20] of the Tribunal’s reasons
I am satisfied that the Tribunal did not fall into error. In that regard I agree generally with the Minister’s submissions. Despite suggestions to the contrary in the applicants’ written submissions, this is not a case of template reasoning. The Tribunal’s reasons are based squarely and directly upon its assessment of the particular applicants’ claims. Secondly, the Tribunal’s reasons at [20] do not emerge out of thin air but flow logically from the Tribunal’s questioning of the applicant at the Tribunal hearing.
The applicant also relies on part of the transcript of the Tribunal hearing to support the ground of review. The applicant suggests that the Tribunal tried to “trip the Applicant up on her evidence” and that, even though the applicant “convincingly answers all of the contentions of her opposing advocate”, “what was going to be written anyway, was written.” The applicant also suggests that her evidence about her church involvement in Australia “really shows her in a positive light to the fair minded observer.” This last submission reveals that the applicant’s real point is that she was credible and that, because the Tribunal did not believe her, it appeared to be biased (even though, at one point the submission appears to go further than apprehended bias). That is, the applicant is complaining about the merits of the Tribunal’s decision. That is not a proper basis for judicial review.
In any event, none of the matters relied on justify a conclusion of a reasonable apprehension that the Tribunal may have prejudged the application. The first passage in the part of the transcript relied on by the applicant sets out the questioning by the Tribunal about the applicant’s claim that she sent material back to China[8]. The Tribunal’s questions reveal that it sought further details about this claim:
·“why did you wrap them up in duvets …?”[9];
·“ … you were addressing those material [sic] to your father?”[10];
·“Well, who were the people you were sending it to?”[11].
[8] Transcript, pages 49 – 65
[9] Transcript, pages 49
[10] Transcript, pages 50
[11] Transcript, pages 50
The Tribunal also put its concerns about the claim to the applicant:
·“… wasn’t it a terrible risk to send those material to people?”[12];
·“… it doesn’t sound very much like the reputation that the police have in China …”[13].
[12] Transcript, pages 50
[13] Transcript, pages 53
At pages 66 to 70 of the transcript, the Tribunal asked questions about the arrests of the applicant’s colleagues in China, first seeking further details, and then putting to the applicant its concerns about the evidence.
These passages show no more than that the Tribunal was complying with its obligations under s.425 of the Migration Act to give the applicant a real opportunity to give evidence and present arguments in support of her application. Once it is understood that that provision requires the Tribunal to raise with the applicant the issues on the review, the fact that it does so cannot support a finding of jurisdictional error. The transcript does not show that the Tribunal tried to “trip up” the applicant and nor does it show anywhere that it might have made up its mind at the time of the hearing. It may be accepted that, prior to the hearing, the Tribunal was not satisfied that the applicant was a refugee on the basis of the material before it: otherwise it would not have invited the applicant to a hearing[14]. However, its conduct in that respect, and at the hearing, were driven by its statutory obligations.
[14] Section 425(2)(a)
I am not persuaded that a fair minded observer, aware of the relevant facts and circumstances, might apprehend that the Tribunal in this case would fail to bring an unprejudiced mind to bear on the review. I find that the Tribunal decision is free from jurisdictional error and the application must be dismissed.
I will so order.
I will hear the parties as to costs.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate:

Date: 22 August 2014