SZTME v Minister for Immigration

[2014] FCCA 2790

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTME v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2790

Catchwords:
MIGRATION – Application for review of decision of the Refugee Review Tribunal – allegation of bias – whether Tribunal denied the applicant a meaningful opportunity to give evidence and make his arguments – whether Tribunal failed to apply the correct test – whether Tribunal failed to comply with s.424A of the Migration Act 1958 (Cth) – no jurisdictional error found – application dismissed.

Legislation:

Migration Act 1958 (Cth) ss.36, 91R, 424A, 425, 476

Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749
VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Mok Gey Bouy v Minister for Immigration, Local Government and Ethnic Affairs & Anor [1993] FCA 545; (1993) 47 FCR 1
Chen v Minister for Immigration & Ethnic Affairs & Anor [1995] FCA 1347; (1995) 130 ALR 405
Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559
Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Abebe v The Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510

Applicant: SZTME

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2709 of 2013

Judgment of: Judge Nicholls

Hearing date: 12 September 2014

Date of Last Submission: 12 September 2014

Delivered at: Sydney

Delivered on: 28 November 2014

REPRESENTATION

Applicant: In person

Solicitors for the Respondents: Ms E Warner Knight of Australian Government Solicitor

ORDERS

1. The application made on 4 November 2013 is dismissed.

2. The applicant pay the first respondent’s cost set in the amount of $5,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2709 of 2013

SZTME

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 4 November 2013 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 8 October 2013 which affirmed the decision of the Minister’s delegate to refuse a protection visa to the applicant.

Background

1. In evidence before the Court is a bundle of relevant documents (“the Court Book” – “CB”) filed by the first respondent. The following background can be ascertained.

2. The applicant is a citizen of the People’s Republic of China (“China”) (CB 1). He arrived in Australia on 2 May 2012 as the holder of a visitor visa in force until 19 May 2012 ([11] at CB 117). He applied for a protection visa on 14 May 2012 (CB 1 to CB 26).

3. His claims to protection were set out in a written statement (CB 27 to CB 30). He claimed to fear harm on return to China because of his religious beliefs and practice. He claimed to be a Christian and to belong to the “Chinese House Church Alliance” into which he was baptised in November 2009 (CB 28 and CB 117). The applicant also claimed that he had been arrested and detained in May 2011 by officers of the Public Security Bureau (“PSB”) who had “raided” a meeting of his church ([18] at CB 118).

4. The applicant was interviewed by the delegate. The delegate refused to grant the visa on 29 October 2012 (CB 54 to CB 81).

The Tribunal

1. The applicant applied for review to the Tribunal on 26 November 2012 (CB 82 to CB 87). He was represented by a registered migration agent (CB 84). He attended a hearing before the Tribunal on 3 October 2013, where he and a friend gave evidence. His representative was not present (CB 103 and [4] at CB 116). The Tribunal’s account of the hearing is referred to in parts of its decision record.

2. At the hearing before the Tribunal, the applicant also claimed that he had attended the “Grace Chinese Christian Church” in Australia every Sunday since the middle of 2012. Further, that he was elected as a “team leader” of a local bible study group ([22] at CB 119).

3. The Tribunal put to the applicant for comment, or response, information taken from particular “databases” (see further below) which showed that the applicant had previously applied for a visa for travel to the United States of America (“USA”) ([15] at CB 117 to CB 118).

4. The Tribunal found that the applicant was not a credible witness ([9] at CB 117 and [30] at CB 121). There appear to be two reasons for this. First, that the applicant provided misleading and false evidence to the Tribunal concerning the application that he made for a visa to the USA ([16] at CB 118).

5. The background to this is that at the hearing the Tribunal put to the applicant information obtained from what it said was the departmental “TRIM” database, and the “FCC” database (concerning matching fingerprints). The Tribunal told the applicant that this revealed that he had applied for a visa for the USA ([15] at CB 117 to CB 118). The Tribunal found the applicant’s evidence in response was untruthful in the circumstances ([15] at CB 117 to CB 118) and that the applicant was “hiding parts of his history” ([16] at CB 118).

6. Second, the Tribunal found that there were “significant differences” between the applicant’s evidence concerning the PSB raid of his church meeting and various reports of this event by “China Aid”. The Tribunal accepted the reports from China Aid as being “accurate” and did not accept the applicant’s evidence that he had been detained by the PSB because of this raid. Rather, the Tribunal found that the applicant “had based his claims on this ‘real’ event as a means of supporting his protection visa application” ([18] – [21] at CB 118 to CB 119).

7. The Tribunal accepted that the applicant had “knowledge of Christianity” ([28] at CB 121). This appears to have been based on the applicant’s answers to questions about the Christian religion put to him by the Tribunal at the hearing ([23] at CB 119 to CB 120).

8. However, the Tribunal found that the applicant was not a Christian “despite his apparent reasonable knowledge” ([28] at CB 121). The Tribunal found that this knowledge was acquired as “part of a manufactured process of his learning in Australia about Christianity so as to enhance his claims for a protection visa” ([28] at CB 121).

9. In reaching this conclusion the Tribunal had regard to a letter given to the Tribunal by the applicant from a Reverend Leung of the Grace Christian Church in Sydney ([23] at CB 119 to CB 120) and evidence at the hearing from the applicant’s friend, a Mr Baumgarten ([25] at CB 120 and [29] at CB 121).

10. The Tribunal disregarded the applicant’s activities in Australia pursuant to s.91R(3) of the Act. For the purposes of the complementary protection criterion, the Tribunal accepted he had engaged in this activity, but found that it would not cause him to be of any adverse interest to the Chinese authorities.

11. The Tribunal was not satisfied that the applicant met either of the criteria at s.36(2) for the grant of the visa ([31] – [33] at CB 121). This was based on the Tribunal’s rejection of the applicant’s factual account of claimed events because it found him not to be a credible witness.

Application Before the Court

1. The grounds of the application to the Court are in the following terms:

   “The tribunal made following jurisdiction errors:

   1. I was not given a fair and just hearing at the RRT. The RRT failed to give me natural justice as the member dealt with my case with preoccupation, disdain and aggressiveness.

   2. A key piece of information the tribunal used to reject my credibility was just an unreliable news website report full of inherent discrepancies and lack credibility itself.

   3. In addition, in relation to such information, during or after the hearing, the RRT member didn’t comply with s 424 (A) due to its failure to explain to me the ‘information’ he used to reject me and the relevance of such ‘information’ to my case and gave me an opportunity to comment. I was also not given an opportunity to comment in writing before the decision was made.

   4. RRT failed to consider whether I had a real chance of being persecuted ‘within the reasonably foreseeable future’, this aspect was never discussed and not a single word as such was ever mentioned in the tribunal’s decision, and thus Tribunal misconstrued and misapplied the meaning of ‘refugee’ as defined in the Convention relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (Refugee Convention).

   5. On one hand, RRT accepted I have apparent good knowledge of Christianity, on the other hand he used my Pastor’s letter to discredit me. It is self-contradictory and RRT failed to give me proper and convincing reason for rejecting my church activities in Australia.”

   [Emphasis in the original. Errors in the original.]

2. The application to the Court also contains six paragraphs of narrative under the heading of “I would like the Court to look into following issues to prove what I said”. For the most part this narrative appears to address the grounds. I considered them to be either in the nature of particulars to the grounds, or written submissions in support.

Before the Court

1. Given the matters asserted by the applicant, it is important to note the following. At the first Court date in this matter on 11 December 2013 the applicant appeared in person. He was assisted by an interpreter in the Mandarin language.

2. At this time, I attempted to explain to the applicant that some of his complaints before the Court, relating to what he said occurred at the hearing before the Tribunal, would benefit from his providing evidence in support. In this regard I made, amongst others, orders giving the applicant the opportunity to file evidence by way of affidavit, and the opportunity to amend his application and provide written submissions.

3. At this time the applicant also explained that his application to the Court has been “arranged and drafted” by a “child” of his “church friend”. I attempted to explain to the applicant that he should consider obtaining legal advice which might assist him to better understand the nature of the application he sought to prosecute before the Court.

4. At the final hearing the applicant appeared in person. He was assisted by an interpreter in the Mandarin language. Ms E Warner Knight appeared for the first respondent. Nothing further had been filed by the applicant.

5. Before the Court, the applicant made a series of complaints, many of which were derived from what he said at the Tribunal hearing. Some of the complaints were made at the beginning of the hearing with the Court, and others after he had heard the Minister’s submissions.

6. In relation to the complaints outlined below, it is important to note that the applicant was given the opportunity to file and serve a transcript of the Tribunal hearing by orders made at the first Court date. Up to the final hearing some nine months later, no such transcript was filed.

7. The applicant made a number of complaints about what he said had occurred at the Tribunal hearing. The Minister’s submission in relation to these complaints was that there was no transcript to support his claim. The applicant then sought to hand up to the Court two “CD’s” which appeared to be a recording of the Tribunal hearing. He stated that if the Court listened to certain parts of the recording it would find the basis for his various complaints. Although proffered late in the conduct of the proceedings, I marked the recording as Applicant’s Exhibit 1 (“AE1”). The exhibit is in two parts, “CD1” and “CD2” (see further below).

8. The complaints before the Court were as follows. One, the Tribunal member was biased. This appeared to be linked to ground one of the application. The applicant said that during the hearing the Tribunal member told him not to “shout”. Further, the Tribunal member looked at him in a “particular way” as if he “despised” him and he “saw this in” the Tribunal member’s “eyes”. Further, that the Tribunal member “pulled the corner of his mouth” and “rolled his eyes upwards”. He said he found the Tribunal member’s “scornful facial expressions… hard to accept”.

9. Although the complaint was expressed as an allegation of bias, the applicant added that this conduct meant he could not tell the Tribunal what he wanted to say. This could be understood as a complaint that he was deprived of a meaningful opportunity to give his evidence.

10. Two, the interpreter made a number of “mistakes”. He said from his “memory” he had a “feeling” this occurred some 15 minutes and one hour into the hearing.

11. Three, he continued to practice his Christian faith in Australia. If he returned to China he would be subject to the authorities “cracking down” on the underground Christian Church. Therefore, the Tribunal failed to properly deal with the Refugees Convention when it said that he would not face persecution in the “foreseeable future”.

12. Four, the Tribunal member made an error in saying that his church building in China was “underground”, when he had said it was a “nice looking building”.

13. Five, he attended church in Australia. The “priest” wrote a letter. The Tribunal was “scornful” of the letter, and treated it as if it was “false”.

14. Six, the interpreter was “wrong” in his interpretation of questions regarding the matter of the visa application to the USA. The applicant thought that the Tribunal was asking him about whether he had ever been to the USA (he answered “no”), as opposed to whether he had ever applied for a visa for entry into the USA.

Consideration of the Complaints Before the Court

1. Although some of the above complaints “overlap” with the grounds and the subsequent narrative in the application, it is convenient to deal with them as follows.

2. Items two and six allege interpretation mistakes on the part of the interpreter at the Tribunal hearing. As set out above, the applicant had the opportunity and a reasonable period to provide evidence to support this allegation. It is not possible to discern any such errors simply by listening to the CD’s. To support this complaint the applicant needed to provide evidence from a person (particularly an accredited interpreter or translator) who had listened to the recording, and who was able to compare the English spoken with its Mandarin equivalent, and vice versa. Even if the Court were to listen to the recording in relation to these complaints, the Court does not understand or speak the Mandarin language. As it stands, these complaints cannot be made out on the evidence before the Court. The Court is unable to speculate as to what may have occurred at the hearing.

3. Having regard to the English spoken on the recording of the Tribunal hearing (“AE1”) this reveals that the matter of the applicant’s application for a visa to the USA was discussed at, and from, approximately 20 minutes from the commencement of CD1.

4. As set out above in this judgment, the applicant has not provided evidence of any error in interpretation at the Tribunal hearing. On what is available in the recording, the Tribunal asked the applicant if he had ever been to America, or if he had ever applied to go there.

5. The applicant’s answer to the first was clear that he had not been there. As to whether he had ever applied to go to the USA, the applicant’s initial response, which was to ask the Tribunal member if he was referring to “paperwork”, on balance, and in context, reveals that he understood the question asked of him.

6. What follows, which is essentially the applicant’s answer to the Tribunal’s attempt to elicit a “yes” or “no” answer from the applicant as to whether he made any such application, provides the basis for the Tribunal’s finding that the applicant’s evidence to the Tribunal was, amongst other things, “misleading” and that the applicant was “hiding parts of his history” ([16] at CB 118).

7. Item three is dealt with below in the consideration of ground four. Item five is dealt with in the consideration of ground five.

8. Item four appears to relate to what the Tribunal said at [19] (at CB 118). The Tribunal reported that at the hearing it discussed with the applicant the circumstances of his claimed arrest at his church in China and that the applicant’s account did not coincide with “China Aid” reports. One item of inconsistency was the location of the church “meeting”.

9. To the extent that the complaint related to errors of interpretation at the hearing as stated above, no evidence has been produced by the applicant to support this claim. This item is otherwise addressed further in the consideration of grounds two and three below.

10. Item one above concerns the claimed conduct of the Tribunal member at the hearing. There are two types of conduct alleged. One, the claimed, and various, facial expressions of the Tribunal member which the applicant perceived variously as communicating contempt, disdain, scorn, and that the Tribunal member despised him.

11. None of these assertions were made in any evidentiary context to the Court. It is important to note here that the applicant has had nine months to file evidence in support of these, and indeed other, complaints about what he says occurred at the Tribunal hearing.

12. Further, at the first Court date the applicant was put on notice, in particular, of the need to provide evidence to support his claims as to what occurred at the hearing. The applicant was urged to consider obtaining legal advice and of the existence of community legal centres for this purpose.

13. I understood the applicant to say at the hearing before the Court that he had sought legal advice. The applicant also told the Court that he had continuing assistance in the preparation of his application to the Court from members of his church community in Australia.

14. In these circumstances, what remains is the evidence currently before the Court. That is, the material in the Court Book. There is nothing in that material to support the applicant’s contentions in this regard.

15. The second cohort of claimed conduct relates to what was said at the Tribunal hearing. Here, as referred to above, the applicant’s exhibit provides the opportunity to test the applicant’s complaints.

16. It is the case that there are at least two parts of the recording of the hearing where the Tribunal member told the applicant not to “shout”. At approximately eight minutes after the commencement of the hearing (CD1) the Tribunal member says to the applicant “you don’t need to yell, just a bit quieter”. At approximately eighteen minutes of the same CD, the member states “keep your voice down”.

17. Two things may be said. First, given the apparent volume of the applicant’s voice, the Tribunal member’s statements are not unreasonable. There is nothing on the recording to suggest that the Tribunal member provoked the applicant’s comparatively loud voice. In any event, such conduct on the part of the applicant, where it is not provoked or caused by the Tribunal member, is not a basis to assert any denial of a meaningful opportunity to give evidence or that the Tribunal member was biased.

18. Nor can it be said that the recording reveals any other instance where the applicant was otherwise prevented from giving his evidence. I should note in this context that at approximately six minutes after the commencement of CD2 the applicant’s witness, Mr Baumgarten, had completed his evidence. The Tribunal member asked the applicant whether there was any question he wanted to ask his witness. The applicant commenced a statement as to why he wanted to remain in Australia. The Tribunal responded by telling the applicant to “stop”, and explained that its question was not whether the applicant wanted to make a statement, but whether he wanted to ask a question of Mr Baumgarten.

1. Importantly the hearing continues with the Tribunal putting various information and issues to the applicant and seeking his comment. In this context at approximately 24 minutes of CD2, the Tribunal member asks whether there is anything the applicant wants to say that has not been “covered” by what had been discussed. In all, I cannot see that the applicant was denied a meaningful or fair opportunity to give his evidence and make his arguments as a result of any conduct by the Tribunal member. The matter of bias is discussed further below.

Consideration of the Grounds of the Application

1. Ground one asserts that the Tribunal did not provide a fair hearing to the applicant. The ground complains, similarly to the applicant’s complaints before the Court, about the conduct of the Tribunal member who is described as being preoccupied, disdainful and aggressive.

2. Paragraphs one and two of the applicant’s “submissions” seek to explain these assertions with reference to what the applicant says occurred at the hearing and his view of certain events. In addition, the “submissions” complain that the hearing was only scheduled for one to two hours and that this was “short and brief”, such that he was denied the opportunity to respond to the Tribunal’s concerns about his credibility.

3. Although not pleaded as such, I understood the applicant to be asserting a failure by the Tribunal, pursuant to s.425 of the Act, to provide him with a meaningful opportunity to give his evidence and arguments relating to the issues in the review, and bias or the apprehension of bias on the part of the Tribunal member.

4. As set out above, at the first Court date in this matter about nine months prior to the hearing date before the Court, I specifically noted with the applicant the need for evidence to support any such claims. Despite opportunity and time available to him, the applicant has not filed any evidence in support of his grounds. Before the Court, as stated above, the applicant confirmed he had received some assistance in the drafting of his application.

5. The tests for bias and the apprehension of bias are well settled (Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17 (2001) 205 CLR 507 (“Jia Legeng”), SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749, VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR and Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 (“Ex-parte H”)). In the case of actual bias, said to arise from prejudgment by the decision maker, such a complaint must be “distinctly made and clearly proven” (Jia Legeng at [69] and [127]). On the evidence that is before the Court, and in particular, in the absence of evidence, the allegations as to the Tribunal’s predisposition, attitude, or conduct towards the applicant cannot be, and are not, made out.

6. Nor, given the state of the evidence before the Court, can it be said that the well-informed lay observer might reasonably apprehend that the Tribunal did not bring an open mind to the hearing and the conduct of the review (Ex parte H).

7. The evidence before the Court reveals that the Tribunal hearing on 3 October 2013 commenced at 10.19am and closed at 12.09pm. That is, it was of one hour and fifty minutes duration. As the Minister submits, the length of the hearing, of itself, does not demonstrate a failure to comply with s.425 of the Act or indeed any other part of the Tribunal’s procedural fairness obligations set out in Div 4 of Part 7 of the Act.

8. It is here, again, that the lack of relevant evidence from the applicant in support of his claims results in his ground not being made out. The relevant evidence before the Court, that is, the Tribunal’s own account of the hearing, and the recording of the Tribunal hearing (“AE1”), reveal that the issues dispositive of the review were raised at the hearing (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152).

9. The applicant’s submissions acknowledge this in relation to the matters of the credibility of the applicant’s factual account of claimed events in China and aspects of his claimed Christian practice. The specific complaint is that he was not given enough time to answer or provide explanation to the Tribunal’s concerns.

10. Again, on the only evidence before the Court, such an assertion cannot be made out. For example, the Tribunal records various relevant answers from, and explanations by, the applicant ([15] at CB 117 to CB 118, [20] at CB 119 and [26] at CB 120). These are consistent with what is on the recording of the hearing.

11. Although not on its own determinative of the applicant’s complaint, I note in support of the above that the applicant was represented by a registered migration agent before the Tribunal. Although the migration agent does not appear to have been present at the Tribunal hearing (CB 103), the applicant’s friend, Mr Baumgarten (who evidence by AE1 spoke English), did attend. There is nothing to show that the applicant, or his representative, raised any concern after the hearing about the conduct of the hearing by the Tribunal member. In any event, given the evidence before the Court ground one is not made out.

12. Ground two complains that central or “key” to the Tribunal’s adverse finding as to his credibility was to rely on an “unreliable website report full of inherent discrepancies and lack of credibility itself.”

13. Ground three asserts that the Tribunal failed to comply with s.424A of the Act in relation to this information because the applicant was not given the opportunity to comment in writing before the decision was made. It is appropriate that I address both grounds together.

14. The information in question appears to be the three “China Aid” reports which the Tribunal preferred as the “correct” account of the raid by PSB officials at the Local Church meeting in China at which the applicant claimed to have been present and subjected to harm.

15. Paragraphs 3, 4 and 5 of the applicant’s “submissions” argue that the Tribunal’s rejection of his credibility was based on “unreasonable reasons”, that the Tribunal member was “selective” in his choice of information, that he was not given an explanation of the “importance” of this information, that the information contained discrepancies and the member was therefore biased against him.

16. First, the Tribunal’s adverse finding as to the applicant’s credibility was not only based on the information from China Aid. As set out above, the Tribunal’s conclusion as to the applicant’s lack of credibility was based on a number of factors. The inconsistency between the China Aid information and the applicant’s evidence as to the PSB raid and arrests at the Local Church meeting was one item, albeit an important part, in the Tribunal’s analysis leading to the adverse credibility finding.

17. Second, the information in question was information that fell within the exception set out at s.424A(3)(a) from the obligation in s.424A(1) of the Act. As s.424A(1) of the Act was not engaged, then no breach of that section is made out.

18. Third, the inconsistency found by the Tribunal between this information and the applicant’s evidence was not “information” for the purposes of s.424A of the Act (SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18]). As such, s.424A of the Act is also not engaged in that regard.

19. Fourth, the weight to be attributed to such information is for the Tribunal to assign within the exercise of its jurisdiction (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11] – [13]). No legal error arises in this regard.

20. Fifth, the applicant’s assertions that there were inconsistences in the Tribunal’s findings in relation to this information and his invitation to the Court to assess the information and make its own findings, do not, as the Minister’s submits, rise above a request for this Court to engage in impermissible merits review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”)).

21. Sixth, the applicant complained that he should have been given time to respond in writing to the Tribunal’s concerns as expressed in its decision record. In addition to the above, three further things may be said about this complaint. One, there is no obligation on the Tribunal to provide its draft reasons for comment by the applicant. Two, the China Aid articles and their relevance to the review was, on the evidence before the Court, discussed with the applicant at the hearing ([19] at CB 118). The applicant was given the opportunity to respond at the hearing. An opportunity which he took up ([20] at CB 119). This is consistent with the recording of the hearing. Three, there is no evidence before the Court that the applicant sought more time from the Tribunal to make any further response in writing or otherwise.

22. Seventh, and finally, the applicant again complained of bias on the part of the Tribunal on the basis that it used reports which were “not reliable”. This is presumably with reference to the China Aid information. Such an assertion, on its own, and in the circumstances, does not reveal that the Tribunal did not bring an open mind to the conduct of the review or the question of the applicant’s credibility.

23. Plainly the applicant is aggrieved with the view the Tribunal took of this information, his evidence, and the conclusion that it drew from it. However, arguments now as to the inconsistencies in this information or its reliability invite impermissible merits review. The applicant’s grievance, in the circumstances, does not reveal bias on the part of the Tribunal.

24. In any event, it is difficult to see the inconsistency that the applicant alleges at [5] of his “submissions”. For example, the applicant does not explain in his “submissions” what the difference is between the Tribunal’s statement that the China Aid reports said that the religious meeting was held “on the third floor of the church building” and that those detained “were held in a third storey church” ([19] at CB 118). Nor how this is inconsistent with what he now says China Aid reports say in this regard (“the police…searched the all three floors of the building” and “the police” ransacked all three).

25. In all, grounds two and three are not made out.

26. Ground four, when read with [6] of the “submissions”, asserts that the Tribunal did not consider whether the applicant has a real chance of being persecuted “within the reasonably foreseeable future” because the persecution of family church members had worsened in China.

27. The applicant also complained about the Tribunal’s decision to affirm the delegate’s decision ([6] of the applicant’s “submissions”). This appears to have three elements. One, that it was not open to the Tribunal to rely on what was said by “the Pastor” because the applicant “can’t control” what he said. Two, that even though the Tribunal found he had a “good” knowledge of Christianity it still found against him on the review. Three, that the Tribunal’s “rejection” of his “participation in Australia churches was rejected without good reasoning”.

28. Dealing first with the ground as pleaded and as “particularised”. It is the case that the test as to the real chance of persecution is a forward looking test (see Mok Gey Bouy v Minister for Immigration, Local Government and Ethnic Affairs & Anor [1993] FCA 545; (1993) 47 FCR 1 at [96] per Keely J). In Wu Shan Liang at [47] the High Court made reference, with approval, to the “reasonably foreseeable future” test as had been applied in Chen v Minister for Immigration & Ethnic Affairs & Anor [1995] FCA 1347; (1995) 130 ALR 405.

29. However, the applicant’s complaint misunderstands the Tribunal’s relevant findings and the importance of those findings in the determination of whether the applicant’s circumstances revealed a real chance of persecution if he were to return to China.

30. In Wu Shan Liang Kirby J stated (at [29]):

    “The process of determination involves the delegate's making findings as to primary facts, identifying the inferences which may properly be drawn from the primary facts, as so found, and then applying those facts and inferences to an assessment of the ‘real chances’ affecting the treatment of the applicant if he or she were to be returned to China.”

31. In the current case, the Tribunal found that the applicant was not a credible witness, was not a Christian, and was not of any interest to the Chinese authorities for any reason that he claimed ([30] at CB 121). Based on these findings the Tribunal was not satisfied that the applicant was owed protection pursuant to s.36(2)(a) of the Act.

32. I agree with the Minister that there is nothing in the Tribunal’s reasoning to suggest, or indicate, that the Tribunal applied any other test to the one referred to immediately above. Nor is there anything to show that it conducted its consideration solely on any period other than the reasonably foreseeable future. The Tribunal’s clear rejection of the applicant’s claims and the factual basis on which he said his claims arose, the findings of fact involved in this reasoning, mean that the applicant’s complaint cannot be made out.

33. Past events can play a role in determining whether an applicant faces a real chance of persecution on return. That is, in the determination of what is likely to occur in the reasonably foreseeable future (Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559 at 574). As was said in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, past events may often provide a reliable means of predicting future persecution, but that will not always be so. Indeed an applicant does not have to establish persecution in the past to establish a well-founded fear of persecution in the future (Abebe v The Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 (“Abebe”) at [192] per Gummow and Hayne JJ).

34. However, the current circumstances are not such a case. Once the Tribunal found the factual basis of his claims to be untruthful, there was no other basis on which it could be said that the applicant’s fear of persecution was well-founded (Abebe). Ground four is not made out.

35. Following from ground four, the applicant also complains in ground five that the Tribunal found he had a good knowledge of Christianity, but “used” his “Pastor’s letter to discredit” him. In his “submissions” the applicant also complains about the Tribunal’s treatment of the letter from “the Pastor”. In context I understood this to be the letter from Reverend Leung, the Senior Minister, at the Grace Chinese Christian. The letter stated (CB 111):

    “To Whom it may concern,

    …

    [The applicant] has been attending our church’s Sunday worship since mid-2012. He shows interest in Christianity.”

36. Relevantly, the Tribunal’s decision record contains the following ([22] at CB 119):

    “In relation to his claims of being Christian the applicant claims he was elected as a ‘team leader of our local Bible study group’. In Australia he attends a church at Kogarah – the Grace Chinese Christian Church. He only attends service on Sunday as he is busy working the rest of the week.  He has provided a letter from the Reverend Timothy K.H. Leung dated 28 September 2013 indicating ‘has been attending our church’s worship since

    
    

    mid-2012. He shows interest in Christianity’. He also provided three photos of himself in the church one with Reverend Leung. The applicant’s wife and son are not members of any church and are not Christian. He said this was so as he doesn’t want to get them involved and ‘it is because of China’s bigger environment’ and ‘because I believe in the Family Church and it is not allowed it is considered illegal’.  It was discussed with the applicant why wouldn’t he want to evangelise to his wife and child. He said he ‘didn’t want to drag them into it’. His family he claimed had been threatened by the PSB.”

37. The Tribunal also reported ([23] at CB 119 to CB 120):

    “It was discussed with the applicant at hearing that the letter from the Reverend Leung is not particularly supportive and doesn’t say he is Christian. It states only that he has an ‘interest in Christianity’. He said he always listens to the service and attends church on Sundays. He has a Bible and reads it at church. He usually doesn’t read it any other time as he is busy with work. He said he is aware it is divided into the New and Old Testaments and knew the books of Genesis, Exodus and the four Gospels. In relation to the Gospels he said their names. He identified correctly that Matthew and John were apostles and that Luke was not. He said incorrectly that Mark was a ‘tax collector’ and an apostle. He said that Jesus was God’s only Son and the relationship between them and the Holy Spirit was that they had ‘three different roles in one’. He knew that Mary was Jesus’ mother, though couldn’t remember the name of Mary’s husband and Jesus’ father on earth. In relation to Mary Magdalene he said she was present at the Resurrection. It was discussed with him that he didn’t know who she was when interviewed by the delegate. He agreed and said he didn’t and had needed to study more. He was not aware of the name of the Angel who came to Mary, and thought that it was God who told her she was pregnant with Jesus. He did not know what work Jesus did before starting his Ministry, though knew he was ‘tempted in the desert’ by Satan and ‘Jesus rebuked him’. He did not know how old Jesus was when he died, and thought he was ‘thirty something’, he did not know when he was born. In relation to the Apostles, it was discussed with him he had already mentioned some and did he know the names of any others. He mentioned Peter and Judas and couldn’t remember the names of any others. He was aware that Peter was the ‘first apostle and he ‘preached in Rome spreading the Gospel’. He thought incorrectly that he was ‘beaten to death’ by the Romans. He was aware of John the Baptist and that he had ‘baptised Jesus’. He was not aware of what relationship there was between Jesus and John the Baptist other than this, and knew he was ‘beheaded in gaol’. The applicant was asked to detail other parts of the Bible he particularly was aware of. He knew of Moses and the ‘burning bush’ and the commandments on Mount Sinai, and also said he was aware of ‘many others’. He was asked to detail them. He said he knew of ‘Pontius Pilate’. He was asked to detail others and said he couldn’t as ‘I can’t express myself well … I can’t explain it’.”

38. In considering the applicant’s claims of being a Christian, amongst other matters, the Tribunal also took into account the letter from Reverend Leung ([27] at CB 120):

    “I have carefully considered the applicant’s claims of being Christian. As detailed above I have found that his claims of being detained in China in May 2011 are not true and he is not a credible witness. I have also discussed with him his claim that he belongs to a church in China called the Chinese House Church Alliance. As discussed with him that this is not a church in itself but an umbrella organisation for house churches. He was not aware of this and said he belonged to this church. I have considered this in the context of Reverend Leung saying the applicant ‘has been attending our church’s worship since

    
    

    mid-2012. He shows interest in Christianity’. I have also considered the false and misleading evidence the applicant has given in relation to his visa applications for the USA. I have taken account of the evidence of Mr Baumgarten and the applicant’s evidence at hearing and his apparent reasonable knowledge of Christianity.”

39. The applicant complained in his “submissions” that he could not “control” what the “Pastor” said. That may be the case, but the applicant could, certainly, “control” whether the Pastor’s letter should be given to the Tribunal. The applicant gave the letter to the Tribunal at the hearing (CB 111). Given the terms of what Pastor Leung said, it was reasonably open to the Tribunal to proceed on the basis that the letter did not, in effect, add to the applicant’s claim that he was a Christian.

1. The applicant also complained in his “submissions” that the Tribunal found he had a “good knowledge of Christianity but still reject me”. In this regard, as stated above, the Tribunal found that he had demonstrated “apparent reasonable knowledge” of Christianity ([28] at CB 121). However, as stated above, the Tribunal found that this was “part of a manufactured process of his learning in Australia about Christianity so as to enhance his claims for a protection visa” ([28] at CB 121).

2. To the extent that the applicant’s complaint was that it was unreasonable for the Tribunal to so find, then it was, on what was before it and in light of antecedent findings, reasonably open to the Tribunal to come to this conclusion. No legal error is revealed in these circumstances.

3. The applicant further complained in his “submissions” that the Tribunal “rejected” his participation in Australian churches without “good reasoning”. In this regard, the Tribunal accepted Mr Baumgarten’s evidence that he observed the applicant praying and reading the Bible and that the applicant attended church ([28] at CB 121).

4. What must be understood is that the Tribunal did not make any finding that the applicant did not attend church in Australia. Rather, it found that he attended as part of the “process” of “manufacturing” his claims to protection in Australia and “manufacturing” his learning about Christianity ([28] at CB 121). The Tribunal found, in effect, that the applicant was not a “genuine” Christian. This was reasonably open to the Tribunal on what was before it. It gave reasons to support this conclusion (see [27] – [28] at CB 120 to CB 121 and the other reasoning that informed what it said in those paragraphs).

5. Ground five also asserts that the Tribunal used the “Pastor’s letter” to discredit the applicant. As set out above, the letter from Reverend Leung was not used by the Tribunal to “discredit” the applicant. Rather, the Tribunal found it was “not particularly supportive” of the applicant’s claims ([23] at CB 119 to CB 120). It was, as set out above, reasonably open to the Tribunal to take this view of this letter. Ground five is not made out.

Conclusion

1. None of the applicant’s grounds, or complaints in his “submissions”, or submissions before the Court, reveal jurisdictional error. Nor can I otherwise see any such error arising in the Tribunal’s decision. It is appropriate that the application be dismissed. I will make an order accordingly.

I certify that the preceding ninety-six (96) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 28 November 2014