SZTNU v Minister for Immigration

[2015] FCCA 187

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTNU & ANOR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 187

Catchwords:
MIGRATION – Application for review of decision of Refugee Review Tribunal (RRT) – whether RRT conducted hearing in a way that gave rise to a reasonable apprehension of bias – whether RRT misunderstood the meaning of “serious harm” or “significant harm” – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 36(2A), 91R(2)

SZOAF v Minister for Immigration and Citizenship [2010] FCA 431

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

First Applicant: SZTNU

Second Applicant: SZTNV

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2889 of 2013

Judgment of: Judge Manousaridis

Hearing date: 10 June 2014

Delivered at: Sydney

Delivered on: 30 January 2015

REPRESENTATION

Solicitors for the Applicants: Mr C McArdle of
McArdle Legal

Solicitors for the Respondents: Ms S Burnett of
Clayton Utz

ORDERS

1. The application is dismissed.

2. The first applicant pay the first respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2889 of 2013

SZTNU

First Applicant

SZTNV

First Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. In this application for judicial review, the first applicant (applicant) and her infant daughter, both nationals of China, claim the second respondent (Tribunal) considered the applicant’s claims for a protection visa in a manner that gave rise to a reasonable apprehension of bias. She also claims that, in concluding that the applicant did not have a well-founded fear of persecution because she was an unmarried mother, the Tribunal misapplied the meaning of “refugee” as defined in the Refugees Convention.[1]

   [1] Being the Convention Relating to the Status of Refugees as modified by the 1967 Protocol Relating to Refugees.

The applicant’s claims for protection

1. The alleged facts on which the applicant relied for a protection visa are as follows.

2. The applicant was born on an island that forms part of the Fujian province.[2] Shortly after her birth she moved to Fuzhou where she lived with her aunt for almost seven years.[3] In 2006, after having returned to live with her family in 1997, the applicant returned to Fuzhou. She there enrolled at a school where she came to know a number of devoted Christians of the underground church.[4] The applicant participated in church meetings in the evenings, was baptised, and began to evangelise at the school.[5]

   [2] CB137-138, [13a.]

   [3] CB137-138, [13a.]

   [4] CB138, [13b.]

   [5] CB138, [13c.]

3. In March 2007, after her parents had decided in November 2006 the applicant should pursue her studies overseas,[6] the applicant was arrested and detained by the Public Security Bureau.[7] The applicant was detained for around two weeks, and was released after her parents arranged to pay a bribe.[8] The applicant, having obtained an Australian visa, left China in April 2007.[9]

   [6] CB138, [13c.]

   [7] CB138, [13d.]

   [8] CB138-139, [13d.]-[13e.]

   [9] CB139, [13e.]

4. In 2008 the applicant met her ex boyfriend and, in around January 2012, she accidentally fell pregnant with the second applicant. The applicant wanted to keep the baby, but her boyfriend did not. Her boyfriend left the applicant in March 2012, and he has not contacted the applicant since.[10]

   [10] CB139, [13h.]

5. The applicant claims that she fears she will be persecuted for two reasons if she returns to China. The first is her Christian beliefs; the second is discrimination because she fell pregnant while not married.[11]

   [11] CB139, [13j.]

The Tribunal’s reasons

1. The Tribunal did not find the applicant to be a credible witness. It did not, therefore, accept she was involved in the underground Christian church in China, or that she had been baptised, or that she was arrested and detained, or that she is and was of any adverse interest to the Chinese authorities for any reason.[12] The Tribunal did not find the applicant to be a credible witness because her oral testimony about how she became a Christian and about her religious activities in China was vague and limited to generalities;[13] the Tribunal had concerns about how the applicant came to hold and provide to the Tribunal a document that purported to record the applicant’s claimed detention in China;[14] and that there was a lengthy delay between the applicant’s arriving in Australia and her applying for a protection visa, and found that some of the evidence the applicant gave to explain the delay was contrived and fabricated.[15]

   [12] CB143, [25]

   [13] CB140, [19]

   [14] CB141-142, [21]

   [15] CB142-143, [23]

2. The Tribunal accepted that, after her arrival in Australia, the applicant did attend church, and considered what might happen to her if she returns to China and there attends an underground Christian house church. The Tribunal concluded there was nothing in the applicant’s pattern of Christian practice in Australia that will give rise to a real chance of persecution if she returns home to China.[16] The Tribunal based that finding on country information that indicated there is a large number of independent house churches in Fujian province, that the Chinese “government appears fairly tolerant of unregistered believers”, and that, “if any targeting occurs, it is likely to be against house church leaders”.[17]

   [16] CB146, [35]

   [17] CB144, [30]

3. The Tribunal was not satisfied the applicant gave a truthful account of her financial circumstances, or of her relationship with her family.[18] The Tribunal accepted that the applicant would have to pay a social compensation fee because her daughter was born out of wedlock,[19] but found the amount she will be required to pay is between 5,267 and 8,779 yuan, not fines in the order of 80,000-100,000 yuan the applicant claimed she would be required to pay.[20] The Tribunal also found that the applicant would be able to pay the social compensation fee by instalments, and that a hukou would be issued in relation to the applicant’s daughter before the fee is paid in full.[21]

   [18] CB147, [41]

   [19] CB147, [42]

   [20] CB148, [42], [43]

   [21] CB148, [43], [46]

4. The Tribunal accepted that life may be difficult for the applicant if she returns to China, and that she may experience a degree of social stigma and discrimination because she has given birth to a child out of wedlock; and that her daughter may also experience a degree of social opprobrium and discrimination because she is a girl who was born out of wedlock, and her mother is a single parent.[22] The Tribunal was not satisfied, however, that the discrimination or hardship the applicants will suffer will rise to the level of serious harm for the purposes of s.36(2)(a) of the Migration Act 1958 (Cth) (Act), or significant harm for the purposes of s.36(2)(aa) of the Act.[23]

   [22] CB149, [48]

   [23] CB149, [48]

The grounds of review

1. In her application, under the heading “Grounds of application”, the applicant purports to state six grounds of application. Only those stated in paragraphs 2, 3, 4, and 5, in fact state grounds.[24] These are as follows:

   [24] Paragraph 1 provides that the applicant [sic] “appeals against or in the alternative seeks a declaration as specified above” regarding the entirety of the Tribunal’s decision. The reference to “as specified above”, is to a paragraph earlier in the application that the applicants claim a declaration that “the decision of the Tribunal was not made in accordance with law, by reason of the ground/s of this application”. Paragraph 6 of the grounds of application states “[s]uch other grounds as this Honourable Court may deem just”.

   2.The Tribunal “come what may” did not permit the facts as to religious intolerance in China to be considered and the social intolerances that face persons born out of wedlock. The Tribunal misapplied the required application of the Refugee Convention with respect to the applicant’s [sic] status as an unmarried mother.

   Particulars

   i.See generally and especially Paragraph 48.

   3.The Tribunal did not permit the facts as to the application of the Refugee Convention to be considered.

   4.The Tribunal was so predisposed to refuse to believe the applicant [sic] as to deny them [sic] 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.

2. The claim made in the first sentence of the second ground, and the claim made in the third ground, are unarguable. There is no evidence the Tribunal did not “permit” itself to have regard to facts relevant to the application that was before it.

3. The fourth ground, too, is unarguable, to the extent it claims the Tribunal had an actual predisposition to refuse to believe the applicant. That is an allegation of actual bias. At the hearing, Mr McArdle, the solicitor for the applicant, stated the applicants did not intend to claim the Tribunal was actually biased.[25] The applicants’ claim is that the Tribunal conducted itself so as to give rise to a reasonable apprehension of bias.[26] That is, in effect, the claim made in ground five.

   [25] T3.25: “I want to stress that we are not here to seek for this court to get into the mind of the tribunal member. We do not seek to prove that the tribunal member was biased. . .

   [26] T3.30: “It’s only about a reasonable person forming a reasonable apprehension [of bias] based on the facts of the matter.”

4. Accordingly, there are only two grounds raised by the application for review. The first is that the Tribunal conducted itself so as to give rise to a reasonable apprehension of bias, and the second is that the Tribunal “misapplied the required application of the Refugee Convention with respect to the applicant’s [sic] status as an unmarried mother”.

Reasonable apprehension of bias

1. I have considered elsewhere the relevant principles that should guide me when determining a claim of apprehended bias, where I concluded:[27]

   In light of these authorities, the apprehension of bias principle as it applies to the Tribunal may be stated as follows: 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.

   [27] SZSNU v Minister for Immigration & Anor [2013] FCCA 1219 at [30]

2. The matters on which the applicant relies as giving rise to a reasonable apprehension of bias are set out in numbered paragraphs commencing at page 7 of Mr McArdle’s written submissions under the heading “Facts of conduct of the proceedings before Member as shown on Transcript”. I will consider each of the distinct instances identified in that section of the written submissions the applicant submits manifests conduct that would give rise to a reasonable apprehension of bias.

3. The first instance is the Tribunal member’s stating towards the end of the hearing she had concerns about the applicant’s credibility.[28] Mr McArdle submits that a fair minded observer reading the transcript would conclude there was no good reason for the Tribunal’s concerns, and there was no basis for such concerns other than pre-judgment.[29]

   [28] Affidavit of Y Wu, annexure “A” (Transcript), page 33-34

   [29] Applicant’s written submissions, pages 7-8, [1]-[4]

4. There is no substance to this submission. The Tribunal member made the statement concerning the applicant’s credibility after she had completed her questioning of the applicant, and in the course of informing the applicant of information she should consider providing to the Tribunal after the hearing to deal with the Tribunal member’s particular concerns about the applicant’s credibility. The passage from the transcript on which the applicant relies indicates that the Tribunal’s mind remained open.

5. The second instance on which the applicant relies is what the applicant submits is an inconsistency.[30] On the one hand, the applicant submits, the Tribunal member indicated non-belief about the applicant’s evidence that she was able to depart China without any difficulty because she had paid customs officials,[31] and, on the other hand, the Tribunal’s expressing concerns about the applicant’s account of how she obtained the detention certificate.[32] The inconsistency, the applicant submits, is further manifested by what the applicant submits is the Tribunal’s desire to sight an official declaration of the bankruptcy of the applicant’s father.[33]

   [30] Applicant’s written submissions, page 8, [5]-[10]; page 10, [25]

   [31] Transcript, pages 20-21

   [32] Transcript, page 32

   [33] Transcript, page 34

6. This submission assumes the Tribunal has expressed firm statements that are inconsistent. That is not so. The Tribunal simply asked questions. In relation to the applicant’s evidence of the payment of a bribe through another male person, the Tribunal asked “[w]hy do you think he would do that?” and “[w]hat made you think that he paid a bribe?”.[34] In relation to the purported detention certificate, the Tribunal member informed the applicant, among other things, that she had “some concerns about the credibility of your account about how you get the detention certificate that you provided to me today” and that she had “difficulty to believe that it was available but you couldn’t provide it at a [sic] earlier point of time”.[35] After referring to other matters of concern, the Tribunal asked: “Did you want to comment on any of those?”[36] And in relation to the applicant’s father’s bankruptcy, the Tribunal member asked:[37]

   Do you have any, will there be any, I understand there might not be. But will there be any documentation would corroborate that?

   [34] Transcript, page 21

   [35] Transcript, page 32

   [36] Transcript, page 32

   [37] Transcript, page 34

7. The Tribunal’s questions again indicate the Tribunal member had an open mind and, through her questions, was simply providing the applicant with an opportunity to provide information relevant to her claim.

8. A third instance of what the applicant claims gives rise to a reasonable apprehension of bias is the Tribunal member’s approach to the applicant’s evidence of her religious observances after the applicant arrived in Australia.[38] It is difficult to understand what submission the applicant intends to make in relation to this. It is stated the Tribunal member undertook a “box to be ticked” approach in order to find against the applicant,[39] and was attempting to “trip up” the applicant, succeeding only once with the applicant being unable to provide the address of the church she attended in Melbourne.[40] There is no substance to these assertions.

   [38] Applicant’s written submissions, page 8, [11]-[12]

   [39] Applicant’s written submissions, page 8, [11]

   [40] Applicant’s written submissions, page 8, [12]

9. A fourth instance on which the applicant relies is the Tribunal member’s question about whether the applicant recalled the words of a hymn sung at the church in Melbourne.[41] The applicant characterised the Tribunal member’s questions as a “challenge” to the applicant which, when it was met by the applicant, resulted in the Tribunal member “continuing to seek out fault when she finds none there”.[42] Again, there is no substance to this submission. The Tribunal member simply asked whether the applicant could tell the Tribunal member “about the words to one of the songs that you sang”. The subject matter of the question was relevant, and the question was asked without any evident intent other than to obtain relevant information.

   [41] Transcript, page 24

   [42] Applicant’s written submissions, page 8, [14]

10. A fifth instance on which the applicant relies is the Tribunal’s use of the word “vague” in the course of the hearing. The applicant submits the use of this word suggests “rehearsal”. There is no substance to this submission. The Tribunal, on the two occasions the applicant identifies the Tribunal member using the word “vague”, used the word to inform the applicant the Tribunal regarded evidence the applicant had given as vague, and to invite the applicant to give more precise evidence, if she was able to do so.[43]

    [43] Transcript, pages 20 and 32

11. The sixth instance on which the applicant relies as giving rise to a reasonable apprehension of bias is the Tribunal member’s putting to the applicant that there was information that suggested discriminatory attitudes in China in relation to a mother giving birth out of wedlock were improving and there was information which did not suggest that that type of discrimination would raise to the level of significant harm or serious harm.[44] The applicant submits this gives rise to a reasonable apprehension of bias because, the applicant submits, the facts before the Tribunal indicated that the applicant, on her return to China, would be reduced to penury and her daughter would be denied education, basic health care and human rights. [45]

    [44] Transcript, page 32

    [45] Applicant’s written submissions, page 9, [20], [21]

12. This submission does not demonstrate any conduct by the Tribunal that may give rise to a reasonable apprehension of bias. The submission only expresses a disagreement with what the Tribunal ultimately concluded about what would occur to the applicant if she returned to China, and the Tribunal’s findings as to whether that would constitute serious or significant harm. The applicant has not claimed that the Tribunal made any findings that are irrational or unreasonable or made on the basis of no evidence.

13. The seventh instance on which the applicant relies is the Tribunal member’s questioning of the applicant at page 25 of the transcript of the hearing. That page records the Tribunal member asking the applicant questions about her attendance at the Sydney Christian Church. The applicant submits the questions were to the effect that the applicant’s claimed religious devotion is a sham. There is no substance to this submission. The transcript records non-leading questions on matters that were clearly relevant to the issues the Tribunal was required to decide. In any event, the Tribunal accepted the applicant attended the church.

14. The eighth instance on which the applicant relies is what the applicant submits is the Tribunal’s not taking an interest in, and in fact the Tribunal shutting down inquiry into, evidence the applicant gave about why she delayed in applying for a protection visa.[46] That evidence included the applicant’s stating that while in detention, due to her mistreatment, she gave to the police the names of her friends, one had committed suicide, and another got stomach cancer. The applicant submits the Tribunal did not explore this evidence with the applicant.

    [46] Applicant’s written submissions, page 9, [23]-[24]; page 10, [26]; Transcript, page 33

15. The Tribunal did not show a disinterest in the evidence. The Tribunal member asked the applicant “[w]hen did that happen”; and the Tribunal addressed the evidence in its reasons. The Tribunal referred to the applicant having given evidence that she felt guilt about the fate of her friends. The Tribunal said: [47]

    These matters were not raised in the applicant’s written claims or at an earlier stage in the hearing and I formed the view that the applicant was fabricating her evidence in an attempt to obtain a positive immigration outcome.

    [47] CB142-143, [23]

16. Having considered each of the incidents on which the applicant relies as giving rise to a reasonable apprehension of bias, it is appropriate I consider as a whole the applicant’s claims regarding the Tribunal’s conduct of the hearing. Those claims are based on two matters. The first is disagreement with the conclusions the Tribunal arrived at in its reasons for decision. That is, the applicant asserts that a particular finding of the Tribunal is clearly at odds with the facts before it; and, from that premise, submits that by concluding as it did, a reasonable bystander would have reasonable grounds for inferring bias.

1. That this is the applicant’s approach is demonstrated by some of the grounds I have already considered. It is also manifested in the only particular the applicant gives in her grounds of application. The particular refers to paragraph 48 of the Tribunal’s reasons. In that paragraph, the Tribunal states its conclusions that whatever discrimination or difficulties the applicant may suffer on her return to China would not constitute serious or significant harm.

2. That cannot constitute a ground for claiming the Tribunal conducted itself in a manner that may give rise to a reasonable apprehension of bias. To hold otherwise is to permit, under the guise of a claim of reasonable apprehension of bias, a full merits review of decisions of the Tribunal. No authority is required to support the proposition that it is not within the jurisdiction of this Court to conduct a merits review of decisions made by the Tribunal.

3. The second matter on which the applicant relies is the implicit premise that asking questions that are designed to test the credibility of evidence given by an applicant is evidence from which it could rationally be inferred that the Tribunal has prejudged the matter. That premise is incorrect. The Tribunal is not bound to accept evidence given by an applicant; and a “[r]obust and forthright testing of the appellant’s claims by the Tribunal does not sustain a finding of apprehended bias”.[48]

   [48] SZOAF v Minister for Immigration and Citizenship [2010] FCA 431 at [17] (Barker J)

4. The transcript records the Tribunal systematically seeking information by means of non-leading questions about matters that were relevant to the exercise of the Tribunal’s jurisdiction to review the decision of the delegate of the first respondent not to grant the applicant a protection visa. There is nothing in the transcript that remotely suggests the Tribunal did not embark on, and did not conduct the hearing with an open mind.

Misapplication of Refugee Convention

1. In the second sentence of paragraph 2 of the grounds of application, the applicant claims the “Tribunal misapplied the required application of the Refugee Convention with respect to the applicant’s [sic] status as an unmarried mother”. This ground appears to challenge the Tribunal’s conclusion that it was not satisfied that the discrimination or harm the applicant may suffer on her return to China will rise to the level of serious harm for the purpose of s.36(2)(a) of the Act or significant harm for the purpose of s.36(2)(aa) of the Act.

2. This claim was not developed either in the applicant’s written submissions, or in Mr McArdle’s oral submissions. In her written submissions, the applicant characterises what will occur to her if she returns to China as her living in penury, and her daughter being denied education, basic health care and human rights, and submitting that “[b]eing denied the necessities of life is in fact, “serious harm” in our submission”.[49]

   [49] Applicant’s written submissions, page 9, [20]

3. The applicant’s challenge to the Tribunal’s conclusion is based on nothing more than disagreement with that conclusion. That does not manifest any misunderstanding by the Tribunal of the meaning of “serious harm”, as that expression is defined in s.91R(2) of the Act, or of the meaning of “significant harm”, as that expression is defined in s.36(2A) of the Act. And, in my opinion, it was reasonably open to the Tribunal for the reasons it gave for it not to be satisfied that the circumstances the Tribunal concluded might face the applicant and her daughter on their return to China amounted to serious harm for the purposes of s.36(2)(a) of the Act or significant harm for the purposes of s.36(2)(aa) of the Act.

Conclusion and disposition

1. The applicant has failed to establish any of the grounds on which she relies. It follows that the application must be dismissed, and that the applicant must pay the first respondent’s costs.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 30 January 2015