SZTML v Minister for Immigration

[2014] FCCA 2664

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTML v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2664

Catchwords:
MIGRATION – Application for judicial review of Refugee Review Tribunal decision (RRT) – whether there was before the RRT a claim that the applicant had a well-founded fear of persecution in China because if he returned he intended to proselytize the Mormon faith – whether RRT considered such claim – whether the RRT conducted the review of the applicant’s claim such as to give rise to a reasonable apprehension of bias – jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.91R

Appellant S395/2002 & Anor v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473
NADH v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264
SZSNU v Minister for Immigration & Anor [2013] FCCA 1219
Wang v Minister for Immigration & Multicultural Affairs [2000] FCA 1599

Applicant: SZTML

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2723 of 2013

Judgment of: Judge Manousaridis

Hearing date: 30 April 2014

Delivered at: Sydney

Delivered on: 18 November 2014

REPRESENTATION

Applicant in person assisted by an interpreter.

Solicitors for the Respondents:

Ms Hooper

DLA Piper

ORDERS

1. The decision of the second respondent made on 10 October 2013 affirming the decision of the delegate of the first respondent made on 11 October 2012 is quashed.

2. The second respondent determine according to law the application made to it to review the decision of the delegate of the first respondent made on 11 October 2012.

3. The first respondent pay the applicant such costs to which the applicant may be entitled as an unrepresented party.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2723 of 2013

SZTML

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, a citizen of the People’s Republic of China, applied for a protection visa. He claimed he had a well-founded fear of persecution because he was of the Mormon faith. The second respondent (Tribunal) did not accept the applicant’s claims, largely because it did not accept much of the evidence the applicant gave.

2. The applicant now applies for judicial review of the Tribunal’s decision. In broad terms, the applicant contends the Tribunal failed to fairly and properly consider the applicant’s claims, and conducted the hearing in a way that gave rise to a reasonable apprehension of bias.

Applicant’s claim for protection

1. The applicant’s claim for protection was based on the following asserted facts. The applicant’s parents were divorced when the applicant was young.[1] The applicant’s mother was and continues to be a member of the Church of Jesus Christ of Latter Day Saints (Mormon Church). The applicant was a member of that church in China, attending Mormon Church gatherings every Sunday since 1993.[2] After he arrived in Australia in 2007 on a student visa, he joined the Mormon Church, but he did not do that until around 2011, and he was not baptised until May 2012. In Easter 2012 the applicant was informed that his mother was investigated, detained, and subjected to “brainwash programs” because she operated an underground church.[3] For these reasons, the applicant fears he will be harmed if he returns to China.

   [1] CB29

   [2] CB90, [12]

   [3] CB90, [11]

Hearing before the Tribunal

1. At the hearing before the Tribunal, the applicant was asked about what he in fact attended in China;[4] when he first attended a Mormon Church in Australia;[5] whether the applicant was aware of the agreement that has been reached between the Mormon Church and the Chinese Government;[6] whether the applicant joined the Mormon Church in Australia to advance his claims for refugee status;[7] and his knowledge of the Mormon Church and its doctrines.[8]

   [4] CB91-92, [17]

   [5] CB92, [18]

   [6] CB92, [19]

   [7] CB92, [20]

   [8] CB92-93, [21]-[24]

Tribunal’s reasons

1. The Tribunal gave the applicant the benefit of the doubt and accepted the applicant has a reasonable knowledge of the teachings of the Mormon Church, that he joined that Church in Australia in 2011, and was baptised in May 2012.[9] The Tribunal did not accept, however, that the applicant was involved in the Mormon Church before coming to Australia.[10] The Tribunal was of the opinion that the applicant knew less than he should have known had he in fact been a member of the Mormon Church since 1993; and the Tribunal placed weight on the applicant’s not attending a Mormon Church in Australia until 2011, some three years after he entered Australia. The Tribunal did not accept the applicant’s evidence that his mother was involved in the Mormon Church, or that she was arrested, detained and sent to any “brainwashing program in 2012”.[11]

   [9] CB94, [29]

   [10] CB94, [30]

   [11] CB94-95, [30]

2. The Tribunal also found that the Mormon Church has an agreement with the Chinese government that its members can attend services and worship in China. While the Tribunal accepted that the leadership of the Mormon Church has specifically stated that its members cannot proselytise in China, and that the applicant may want to proselytise, the Tribunal did not accept that the applicant’s inability to do so is of such significance or harm as to be persecution within the meaning of s.91R of the Migration Act 1958 (Cth).[12]

   [12] CB95, [31]

Grounds of review

1. The grounds of review stated in the application are as follows:

   Orders sought by Applicant

   1, I don’t think DIAC and RRT’s decision are fair and reasonable as they failed to take a good consideration in my commitment of religion, ignoring my background and actual practice of Christian in China and Australia.

   2, RRT did not consider my statement and comments given to the questions asked in the hearing and judge my faith simply by knowledge, instead of real practice and fact.

   3, RRT failed to prudently consider our risk, especially our commitment of paralyzing [sic: proselytising] if I return to origin.

   4, RRT failed to consider our statements, explanation, and evidence provided in supporting our claim as a whole.

   The Grounds of the Application are:

   [1], I have been actively involved in Mormon church actives [sic] in Australia. My action and religious performance has been evidenced by church elder with reference.

   [2], RRT unreasonable suspect of the truthfulness of my claims just because of the absence of the evidence

   [3], The tribunal’s decision could give rise to an apprehension of bias in the mind of a reasonable observe[r]

2. The applicant, who was not legally represented, also made submissions at the hearing before me. The applicant said the Tribunal member did not believe him, but the reality was that his mother had taken part in several family gatherings in relation to the Mormon Church, and she was taken into custody. The applicant also submitted that he probably did not answer well questions the Tribunal asked of him about his knowledge of the Mormon faith, and that the reasons he did not have great knowledge was because he had to work to survive.[13] He also submitted that he felt the Tribunal was “biased towards me, right from very beginning to the end”, and that when “I first met with the member he told me that he simply did not believe anything I said”.[14]

   [13] T5.30-45

   [14] T7.15

3. At the end of the applicant’s submissions, I asked Ms Hooper, who appeared for the first respondent (Minister), whether the Minister would oppose my being given a copy of the audio recording of the hearing before the Tribunal and listening to the recording. Ms Hooper said the Minister had no objection. The audio recording was sent to me, and I have listened to it.

Ground 1

1. This ground is not made out. The Tribunal did take into account the applicant’s evidence about his religious faith. The Tribunal accepted some but not all of the applicant’s evidence. It was reasonably open to the Tribunal not to accept that part of the applicant’s evidence it did not accept for the reasons it gave.

Ground 2

1. This ground, strictly read, is not made out. The applicant does not identify the evidence of his commitment to the Mormon faith, or of his actual religious practice he submits the Tribunal did not, or did not adequately consider.

2. The ground, however, does draw attention to an aspect of the hearing before the Tribunal that is problematic. The Tribunal extensively questioned the applicant about his knowledge of the Mormon faith. My impression from listening to the tape is that most of the hearing was devoted to the Tribunal member asking the applicant questions about his knowledge of the Mormon faith. The questions the Tribunal asked included the following: “tell me the history of the [Mormon] Church”, “what did the plates say?” (referring to the gold plates found by Joseph Smith), “when did Joseph Smith die?”, “in what State did he [Joseph Smith] die?”, “how many types of priesthood does the Latter-Day Saints Church have?”, “where does the word “Mormon” come from?” and “is God the father, God the son and the holy spirit are they one being with three identities or three separate beings with one purpose?”.

3. There is great potential in a review miscarrying where a Tribunal undertakes an extensive inquisition into an applicant’s knowledge and understanding of a particular religious faith, and relying on the results of that inquisition to determine the credibility of an applicant. The reasons a review might miscarry in such circumstances were identified by Gray J in Wang v Minister for Immigration & Multicultural Affairs:[15]

   The RRT receives many applications from persons who seek protection visas, claiming well-founded fear of being persecuted by reason of religion. It is inconceivable that every member of the RRT is properly equipped to assess each such applicant on the basis of the applicant's knowledge of the faith that he or she professes. Religion is a matter of conscientious belief, professed adherence and practice. The RRT seems to have approached the issue on the basis that the appellant had to satisfy the RRT that he was possessed of a specific level of doctrinal knowledge to justify being regarded as a Christian. It is not appropriate for the RRT to take on the role of arbiter of doctrine with respect to any religion.

   [15] Wang v Minister for Immigration & Multicultural Affairs [2000] FCA 1599 at [16]

4. In other words, the danger, or at least one danger, in a Tribunal’s extensively questioning an applicant about his or her religious faith, and assessing a claim before it on the basis of those answers, is that the Tribunal might be unaware it does not have sufficient knowledge of the religious faith and traditions to which an applicant claims he or she adheres by which to properly judge an applicant’s knowledge or understanding of his or her claimed faith. An example appears to have occurred in the hearing before the Tribunal in this case.

5. The Tribunal member asked the applicant when Jesus Christ was born. The applicant answered “5 BC”. A few questions later the following exchange took place:

   Tribunal:How can he [Jesus Christ] be born 5BC if BC means “before Christ”?

   Applicant:I don’t understand you.

   Tribunal:Well, it’s before Christ, how can he be born before he was there?

6. The Tribunal may have assumed that Jesus Christ could not have been born before year zero. There is strong scholarly opinion, however, that Jesus Christ was born in 4 BC or, to use the contemporary designation, 4 BCE.[16] If the Tribunal member appears to have been unaware of strongly held scholarly opinion that Jesus Christ was born before year zero, there is reason to doubt the accuracy or adequacy of the Tribunal’s knowledge of other aspects of religion about which the applicant was asked.

   [16] See, for example, E. P. Sanders The Historical Figure of Jesus, Penguin Books, 1995. At pages 10-11, the author sets out a number of facts which the author states “are almost beyond dispute”, one of these being that “Jesus was born c. 4 BCE, near the time of the death of Herod the Great”. At page 11 the author states: “That Jesus was born a few years before the beginning of the era that starts with his birth is one of the minor curiosities of history”. The author goes on to explain how this curiosity came about.

7. If I were to have decided all other grounds against the applicant, I would have invited submissions from the Minister about whether the Tribunal member’s questioning of the applicant’s knowledge of his Mormon faith resulted in the review miscarrying.

Ground 3

1. The applicant submits the Tribunal failed to assess the risk the applicant would face if he were to return to China and proselytise the Mormon faith.

2. As is evident from paragraph 31 of its reasons for decision, the Tribunal understood the applicant claimed that he would want to proselytise the Mormon faith in China, and that he considered proselytising the Mormon faith a core aspect of his belief. As is also evident from paragraph 31 of the Tribunal’s reasons for decision, the applicant made that claim in the course of the Tribunal’s informing the applicant of an agreement between the Mormon Church and the government of China that members of the Mormon Church, both nationals and foreigners, can attend services and worship in China, but that the leadership of the Mormon Church had specifically stated that members of the Mormon Church in China are not allowed to proselytise.

3. Two questions arise. Did the applicant’s claim that he would want to proselytise the Mormon faith in China amount to a claim that he feared harm because he intended to proselytise? If so, did the Tribunal consider that claim?

4. In my opinion, the applicant’s claim that he would want to proselytise the Mormon faith if he returned to China amounted to a claim that he would proselytise and that he feared harm if he returned to China because he intended to proselytise. That follows from the combination of the following matters:

   a)the essential ground on which the applicant claimed a protection visa was his fear of being persecuted because he was a member of the Mormon Church;

   b)the applicant’s evidence before the Tribunal was that “as a faithful member of the Latter Day Saints Church we have to preach to help other people to get immortal lives and without preaching its meaningless”, thus implying that as a Mormon, the applicant was committed to proselytising, and, for that reason, he would proselytise if he were returned to China;[17] and

   c)although the Chinese Government agreed that Mormons can practice their faith, the agreement did not extend to permitting Mormons to proselytise, thus implying the possibility that proselytising might give rise to harm.

   [17] Recording of the Tribunal hearing, thirty six minutes.

5. Did the Tribunal consider that claim? In my opinion the Tribunal did not. The applicant’s claim that he was a Mormon and that, as a consequence, he had to preach required the Tribunal to consider whether the applicant intended to proselytise the Mormon faith if he returned to China and, if so, whether there was a real chance that, if he did proselytise the Mormon faith, the applicant would suffer serious harm because of his proselytising. The Tribunal did not undertake those tasks. Instead, the Tribunal assumed the applicant may desire to proselytise the Mormon faith, but he would not be able to do so; and the Tribunal then considered whether his inability to proselytise was “of such significance or harm as to be persecution as meant by the Convention or section 91R of the Act”.

6. The Tribunal made an error of the sort identified by the High Court in Appellant S395/2002 & Anor v Minister for Immigration & Multicultural Affairs.[18] In that case, the High Court held that in assessing whether there was a real chance an applicant would suffer persecution, the question the Tribunal must determine is “what may happen if the applicant returns to the country of nationality; it is not, could the applicant live in that country without attracting adverse consequences”.[19] Here, the Tribunal did not consider what would happen to the applicant if he returned to China, given the applicant’s claim that he was a Mormon and that he believed Mormons “have to preach to help other people to get immortal lives and without preaching its meaningless”. The Tribunal instead assumed that the applicant would not, or could not proselytise the Mormon faith if he returned to China, and it assessed the applicant’s claim on that assumption. The Tribunal identified as the relevant harm the applicant might suffer the applicant’s inability to proselytise, not what the Chinese government authorities might do to the applicant if he proselytised.

   [18] (2003) 216 CLR 473

   [19] (2003) 216 CLR 473 at page 500 ([80] (Gummow and Hayne JJ)

7. In my opinion, the applicant has established ground 3 of his grounds of review.

Ground 4

1. This ground succeeds to the extent it includes the claim that the Tribunal failed to consider the applicant’s claim based on his intention to proselytise. The ground otherwise fails.

Grounds [1] and [2]

1. Ground [1] does not disclose any jurisdictional error. It only asserts a number of facts which it was for the Tribunal, not this Court to accept or reject.

2. Ground [2] is also not made out. Whether or not the Tribunal accepted the evidence of the applicant was a matter for it. It was reasonably open on the material that was before the Tribunal, and for the reasons it gave, not to accept those parts of the applicant’s evidence it did not accept.

Ground [3] – apprehended bias

1. I have on another occasion reviewed the principles relating to actual or apprehended bias,[20] and I do not need to repeat what I there said. All I need to say here is that there will be an appearance of bias by the Tribunal if a fair-minded lay observer might reasonably apprehend the Tribunal might not bring an impartial and unprejudiced mind to the resolution of the application the Tribunal is required to review. While the fictional observer is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular Tribunal member, the reasonableness of the apprehension is to be considered in the context of the statutorily mandated functions and procedures of the Tribunal.

   [20] SZSNU v Minister for Immigration & Anor [2013] FCCA 1219

2. The relevant statutorily mandated functions of the Tribunal were identified by Allsop J (as his Honour then was) in NADH v Minister for Immigration and Multicultural and Indigenous Affairs:[21]

   The Tribunal . . . must investigate the facts for itself unaided by counsel presenting the parties’ cases, to the degree and extent it thinks appropriate. The Tribunal which has to reach a state of satisfaction may want to test and probe a recounted history. It may have particular matters troubling it for resolution, which require questioning and expressions of doubt which are entirely appropriate, but which if undertaken or said by a judge in open court in adversary litigation might give rise to an apprehension of a lack of impartiality.

   [21] (2004) 214 ALR 264 at 269

3. I have listened to the entire audio recording of the hearing before the Tribunal. On a number of occasions the Tribunal member stated that he did not believe what the applicant said. The first instance occurred virtually at the outset of the hearing when the Tribunal member asked the applicant whether he had any evidence to support his claim that the applicant’s mother was detained. The applicant answered there was media coverage of the incident over one or two days, but the applicant was unable to locate reports. The Tribunal member responded: “I don’t believe you”. The member said that he has found no evidence of any official action having been taken in China against the Mormon Church. Another instance is where the applicant made a number of statements to which the Tribunal member stated “that’s not true”.

1. In another exchange the Tribunal member said “[w]hat I’m saying is I don’t believe you” and “well, that’s just not true”. On one occasion the Tribunal responded to an answer the applicant gave by saying “[w]hat you are saying is a nonsense”. Finally, near the end of the hearing, the following exchange occurred:[22]

   Applicant:If I return to China I won’t be able to go to the Church normally and I won’t practice my religious belief freely, I can’t believe in Jesus Christ freely any more.

   Tribunal:I don’t believe that at all. As I said to you what the position of the leadership of your Church is, is that you are to abide by the laws of China and that is that you can’t proselytise, that’s their official position.

   [22] Recording of the Tribunal hearing, 1 hour 22 minutes.

2. If I were to have decided all other grounds against the applicant, I would have invited submissions from the Minister about whether, having regard to the matters recorded on the audio recording of the hearing before it, the Tribunal conducted itself in a manner that would have given rise to a reasonable apprehension of bias. Given I have found the applicant has made out one of the grounds of review on which he relies, however, it is unnecessary for me to invite the Minister to make submissions on that matter.

Conclusion and disposition

1. The Tribunal failed to consider one of the applicant’s claims, namely, that he would face persecution if he returned to China because the applicant intended to proselytise the Mormon faith. Accordingly, I propose to order that the Tribunal’s decision be set aside, and that the Tribunal consider the application for review according to law. I also propose to order that the Minister pay the applicant such costs to which the applicant may be entitled as an unrepresented party.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  18 November 2014