SZTMW v Minister for Immigration
[2014] FCCA 1818
•29 August 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTMW v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1818 |
| 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 SZTMH v Minister for Immigration & Anor [2014] FCCA 1807 |
| Applicant: | SZTMW |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2772 of 2013 |
| Judgment of: | Judge Driver |
| Hearing date: | 13 August 2014 |
| Delivered at: | Sydney |
| Delivered on: | 29 August 2014 |
REPRESENTATION
| Solicitors for the Applicant: | Mr C McArdle McArdle Legal |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | DLA Piper |
ORDERS
The application filed on 11 November 2013 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2772 of 2013
| SZTMW |
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 12 October 2013. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa. The applicant is from China (Fujian and later Jianxi Provinces) and had made claims of persecution based upon his Roman Catholic faith. The following statement of background facts is derived from the Minister’s outline of written submissions filed on 12 August 2014.
The applicant is a citizen of China who arrived in Australia on 28 July 2012[1]. He applied for a protection visa on 22 October 2012[2]. The Minister’s delegate interviewed the applicant on 26 February 2013[3]. The delegate refused the visa on 4 March 2013[4]. The applicant applied to the Tribunal for review on 27 March 2013[5]. The Tribunal held hearings on 6 September 2013[6] and 3 October 2013[7].
[1] Court Book (CB) 108 [13]
[2] CB 1-33
[3] CB 47.5
[4] CB 37-56
[5] CB 58-64
[6] CB 77-79
[7] CB 94-95
The applicant claimed to fear persecution in China for reason of his religion. He claimed to be Roman Catholic, and that he assisted a nun in holding underground bible study classes in 2011. He claimed he was arrested in March 2012, detained for ten days and beaten. He claimed that the police continued to investigate him so he decided to come to Australia. He claimed that since his departure the nun and a cousin were arrested, and his parents interrogated about his illegal religious activities. He claimed that he would also be arrested if he returned to China[8].
[8] See generally CB 108-110 [14]-[18]
The Tribunal found that the applicant was not credible, rejected his claims in their entirety and found that he was not a genuine Catholic[9]. The Tribunal noted discrepancies and omissions between the applicant’s oral and written claims, implausibilities in his claims about his uncle paying a bribe for him to be released from detention, his vague oral evidence concerning the arrest of others after he left China, his ability to leave China on a valid passport in his own name, and the improbable nature of the applicant’s claims concerning his activities after arriving in Australia[10]. The Tribunal rejected all the applicant’s claims of past harm in China[11], and so found he was not owed protection obligations.
[9] CB 112 [24], 116 [38]
[10] see generally CB 112-116 [25]-[33]
[11] CB 115-116 [34]
While accepting that the applicant attended church in Australia, the Tribunal disregarded that conduct pursuant to s.91R(3) of the Migration Act 1958 (Cth).
The judicial review application
These proceedings began with a show cause application filed on 11 November 2013. The applicant continues to rely upon that application. 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 12 October 2013 on the grounds that it was not a decision under the [A]ct.
Particulars
i. Section 5E
ii. Transcript and evidence, whereby the Tribunal refused to accept facts that are obvious.
iii. For example, the Catholic Church in Australia is an identical body to the Underground Catholic Church in China.
2. The Tribunal “come what may” did not permit the facts as to religious intolerance in China to be considered.
3. The Tribunal did not permit the facts as to the application of the refugee application to be considered.
4. The Tribunal was so predisposed to refuse to believe the applicant as to deny them procedural fairness by way of 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.
In addition to the court book filed on 5 December 2013, I have before me as evidence the affidavit of Donglin Wu made on 2 April 2014, to which is annexed a transcript of the Tribunal hearing held on 3 October 2013[12]. The Tribunal had attempted a hearing on 6 September 2013 which was adjourned after it became apparent that the interpreter was not familiar with certain Catholic terms. The parties made written and oral submissions.
[12] This is described as a “resumed hearing”
Consideration
The grounds in this application are essentially the same as those I considered in SZTKR v Minister for Immigration & Anor[13] and SZTMH v Minister for Immigration & Anor[14]. The presiding member in this case is the same as in SZTMH. In this case, as in the previous two cases mentioned, the only issue for the Court to decide is whether the Tribunal decision is vitiated by an apprehension of bias.
[13] [2014] FCCA 1705
[14] [2014] FCCA 1807
I set out the relevant principles in SZTMH at [13]-[15]:
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[15]. The test in an administrative tribunal, like the Tribunal, is no different[16] although the particular nature and statutory requirements of the Tribunal must be taken into account[17].
In order to establish this ground two steps are required[18]. 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.
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.
[15] Johnson v Johnson (2000) 201 CLR 488 at [11]
[16] Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982
[17] 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
[18] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 345; Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427 at [63]
I accept the Minister’s submission that apprehended bias is not demonstrated in this case. Each case naturally turns on its own facts, but the Tribunal hearing here is a far cry from that considered in cases such as Ex parte H, NADH of 2001 v Minister for Immigration[19], VFAB v Minister for Immigration[20] or SZRUI v Minister for Immigration[21]. Each of those cases involved the Tribunal displaying a strong disbelief of the applicant during the hearing combined with sustained and unfair questioning such that a reasonable observer could well infer that there was nothing that the applicant could say that would alter the Tribunal’s views. As stated by Buchanan J in SZJBD v Minister for Immigration[22], a conclusion of apprehended bias requires an “extreme” case, such as in NADH.
[19] (2004) 214 ALR 264 (FCA/FC)
[20] (2003) 131 FCR 102 (Kenny J)
[21] [2013] FCAFC 80
[22] (2009) 179 FCR 109 (FC) at [81] (Perram J agreeing at [107])
As was the case in SZTMH, the applicant’s submissions invite the Court to consider isolated passages in the transcript as evidencing pre-judgement. Viewed in isolation, in my opinion, those passages are all explicable. Viewed, as they should be, in the context of the hearing as a whole, in my opinion the impugned passages simply show that the Tribunal was testing details of the applicant’s claims about which the Tribunal obviously entertained doubt[23] and I have no hesitation in concluding that a fair minded observer, informed of the relevant facts and circumstances, would not apprehend that the presiding member might not bring an open mind to bear upon the review.
[23] that was why the applicant had been invited to a hearing
In SZTMH and SZTKR, I commented on the challenge facing the Tribunal in dealing with a high volume of a particular class of protection visa applications which commonly fail. Members of the Tribunal tend to deal with particular countries and one of the largest source countries of applicants coming before the Tribunal is China[24]. Many of those applicants are from Fujian province and many make claims based upon their religion. Few succeed.
[24] See the 2013 Annual Report of the Tribunal, page 18
Just as the Tribunal must take care not to fall into pre-judgement in dealing with this class of applications, so must those representing applicants not be too quick to blame pre-judgement or an appearance of pre-judgment for the failure of applicants.
Conclusion
The applicant has failed to establish that the Tribunal fell into jurisdictional error. The 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 fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 29 August 2014
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