SZTMH v Minister for Immigration & Anor
[2014] FCCA 1807
•22 August 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTMH v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1807 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – 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), s.91R |
| Ebner v Official Trustee (2000) 75 ALJR 277, (2000) 205 CLR 337 SZTKR v Minister for Immigration & Anor [2014] FCCA 1705 |
| Applicant: | SZTMH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2720 of 2013 |
| Judgment of: | Judge Driver |
| Hearing date: | 12 August 2014 |
| Delivered at: | Sydney |
| Delivered on: | 22 August 2014 |
REPRESENTATION
| Solicitors for the Applicant: | Mr C McArdle McArdle Legal |
| Counsel for the Respondents: | Mr J D Smith |
| Solicitors for the Respondents: | DLA Piper |
ORDERS
The application filed on 5 November 2013 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2720 of 2013
| SZTMH |
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 8 October 2013. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from China (Fujian province) and had made claims of religious persecution as a Roman Catholic. The following statement of background facts in relation to the applicant’s claims for protection and the decision of the Tribunal on them is derived from the Minister’s outline of legal submissions filed on 11 August 2014.
The applicant is a citizen of China who arrived in Australia on 13 August 2007 and lodged an application for a protection visa on 6 June 2012. In a statutory declaration lodged with that application, the applicant claimed that he faced persecution in China on account of his Catholic belief and activities. He claimed that in 2006 he became a member of the underground church in China by the influence of his girlfriend and regularly attended meetings. He left China for Australia in 2007 when his parents organised for him to study here.
In Australia the applicant attended the Roman Catholic Church and, on his return visits to China, he attended meetings of the underground Catholic church. On 8 April 2012 the applicant was at one of these meetings when the police arrived, found bibles and hymn books in a search and took the participants for interrogation. The next day, the applicant was sent to a detention centre with a number of other people, three of whom were considered key members of the church.
The applicant was detained for 18 days, undergoing harsh treatment and questioning about whether he had brought illegal materials into China. The applicant was released when his father bribed the police and the key members of the church informed them that the applicant was not a member. The applicant then left China, using bribery to enable his passage through the airport. Shortly afterwards, the applicant learned that other members of the church group had been arrested and had confessed to the fact that the applicant was a key member of the group. All of the applicant’s family was then subjected to investigation.
On 1 February 2013 a delegate of the Minister refused to grant the applicant a visa[1] and the applicant applied to the Tribunal for review of that decision. The applicant attended two hearings before the Tribunal on 2 and 12 September 2013[2].
[1] Court Book (CB) 75
[2] CB 121 and 149
Tribunal’s decision
The Tribunal rejected the applicant’s claims to have practised Christianity in China and to have been arrested and detained by the authorities for that reason in 2012. The Tribunal found that there were logical and factual inconsistencies in the applicant’s evidence about those claims including the reasons for which the applicant converted to Christianity in the first place and also that his evidence about his practice there was vague and did not come from his own experience. For those and other reasons, the Tribunal found that the applicant was not a credible witness and found that he did not have a genuine fear of persecution in China[3].
[3] CB 179 [73]
On the other hand, the Tribunal accepted that the applicant had attended church in Sydney and, giving him the benefit of the doubt, that this was otherwise than for the purpose of advancing his claims to protection[4]. The Tribunal then assessed the applicant’s claims on the basis that the applicant would return to China and practice in the underground Catholic church. On the basis of country information about people belonging to that church in the applicant’s home province, the Tribunal concluded that there was no real chance that he would face Convention-related persecution in the reasonably foreseeable future if he were to return to China[5].
[4] CB 181 [80]
[5] CB 182 [83]
For that reason, the Tribunal affirmed the decision of the delegate.
The judicial review application
These proceedings began with a show cause application filed on 5 November 2013. The applicant continues to rely upon that application. The grounds in the application are essentially the same as those that I dealt with in SZTKR v Minister for Immigration & Anor[6]. As in that case, while the terms of the grounds might suggest otherwise, the only issue for the Court to resolve is whether the Tribunal decision is vitiated by an apprehension of bias.
[6] [2014] FCCA 1705
I have before me as evidence the court book filed on 6 December 2013 as well as the affidavit of Donglin Wu made on 22 April 2014. Annexed to that affidavit is a transcript of the two hearings conducted by the Tribunal.
The parties both made oral and written submissions.
Consideration
There is no dispute about the relevant legal principles to be applied. Those are summarised in the Minister’s written submissions and I adopt them.
The test for apprehended bias in relation to proceedings in a court is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question he or she is called upon to decide[7]. The test in an administrative tribunal, like the Tribunal, is no different[8] although the particular nature and statutory requirements of the Tribunal must be taken into account[9].
[7] Johnson v Johnson (2000) 201 CLR 488 at [11]
[8] Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982
[9] Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982 at [5]; Minister for Immigration v Jia [2001] HCA 17 at [181], [187] per Hayne J (with whom Gleeson CJ and Gummow J agreed at [100]). See also Ebner v Official Trustee (2000) 75 ALJR 277 at 279 [4] per Gleeson CJ, McHugh, Gummow and Hayne JJ
In order to establish this ground two steps are required[10]. First, it is necessary to identify what might lead the Tribunal to decide a case other than on its legal and factual merits. Secondly, there must be an articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits.
[10] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 345; Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427 at [63]
The applicant’s submissions recognise that it is most unlikely that apprehended bias could be established simply from an examination of the Tribunal’s reasons. As has been observed on many previous occasions, at the time the Tribunal comes to make its decision on a review, it will necessarily have made up its mind. The applicant’s submissions focus on the transcripts of the Tribunal hearings with reference to the conclusions reached by the Tribunal as reflected in its reasons.
The following passages from the transcript are said by the applicant to support the contention of a reasonable apprehension of bias.
page 12 paragraph 15
Other than your religious beliefs and activities, what other reasons are you afraid to return to China?
The applicant submits that the presiding member in this sentence is dismissing the applicant’s entire claim based on his religion. I disagree. This passage simply reveals that the Tribunal was giving the applicant the opportunity to make whatever claims he intended to rely on.
page 21-23
The applicant contends that the presiding member “peppered” the applicant with questions about Catholic observances at Christmas. However, reasonable questions about a person’s knowledge of Christian practice are legitimate. They represent the Tribunal’s attempts to give the applicant an opportunity to give evidence about an issue that arose on the review, namely, its doubts about the genuineness of his practice.
page 23 paragraph 5 – page 25
The applicant asserts that he was subjected to a “bible quiz” and that is is “probable that the Member [was] not interested in hearing the answers of the applicant”[11]. I disagree. I accept that at one point the Tribunal thought that the applicant had finished his answer and started to ask the next question. When the applicant said that he needed to finish the answer, the Tribunal allowed him to[12].
[11] applicant’s submissions at [3]
[12] page 25.5
page 33 paragraph 1
Here the Tribunal questioned the applicant about what he said to the police while detained. The applicant asserts that this passage shows that the Tribunal was anxious to find fault with his claims. That might be said anytime that the Tribunal suggests that an applicant’s claims might not be accepted. It might seem surprising that the presiding member was apparently surprised that the applicant lied to the police. However, the Tribunal was minded to disbelieve the applicant and its commentary at this point was part of the Tribunal’s obligation of disclosure. Thus, there is no link between this and the possibility of bias.
page 36 paragraph 3
The applicant is concerned that the presiding member cut short the testimony of his witness, Father McGee. There was an interruption because the interpreter had been booked for a fixed period and it appeared the interpreter would not be available for much longer. The records show that the hearing commenced at 1.10pm and closed at 4.22pm[13]. The passage in question is on the third last page of the transcript of that day. Thus, the hearing must have been going for at least three hours by the stage the priest was giving evidence and there was another witness to go (Ms Chen). If there was no interpreter the Tribunal could not have proceeded any further with the hearing on that day. This makes it clear that, rather than being uninterested in the evidence, the Tribunal was ensuring that the applicant had a reasonably opportunity to understand what was happening at the hearing. Indeed, the applicant could have recalled the priest at the adjourned hearing if he wished.
[13] CB 122
the Tribunal has decided that the priest is a perjurer
Neither the transcript nor the Tribunal’s reasons lend any support to this assertion.
page 37 paragraph 9
The applicant is concerned that the presiding member expressed doubts about the applicant’s lengthy Catholic observance in Australia. The genuineness of that observance was ultimately resolved in the applicant’s favour.
viii. page 47
The applicant complains about the presiding member’s warning concerning s.91R(3) of the Migration Act 1958 (Cth). As the section was in play, the warning was appropriate and probably necessary.
page 50 paragraph 4
The Tribunal asks the applicant about Fujian province because that is where the applicant comes from and, it may be inferred, that is where he would return to if he were to go back to China. It is not to the point that the applicant claimed to have experienced harm while visiting a different province.
page 51 paragraph 2
The applicant complains about the presiding member’s reference to US reports on religious freedom in China. I accept the Minister’s submission that what the Tribunal was saying was that, according to reputable country information, there are no reported incidents of concern relating to religious freedom in the applicant’s home province.
I do not accept the applicant’s contention that the transcript of the Tribunal hearings supports a conclusion that a fair mind observer, aware of all of the relevant material, might apprehend that the Tribunal member would not bring an unprejudiced mind to bear upon the review. In my opinion, what transpired at the Tribunal hearing in this case was unremarkable, albeit in circumstances where the Tribunal was dealing with claims which had been considered, and rejected, in hundreds, possibly thousands, of previous similar cases. I refer to the observations that I made in SZTKR at [18] concerning the challenge for the Tribunal to maintain an open mind in a high volume jurisdiction where the majority of claims in particular categories are unsuccessful.
Conclusion
The applicant has failed to establish that the Tribunal fell into jurisdictional error. The Tribunal decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 22 August 2014
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