SZTRN v Minister for Immigration
[2014] FCCA 1927
•19 September 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTRN & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1927 |
| 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), ss.36, 91R |
| Barakat v Goritsas(No 2) [2012] NSWCA 36 SZBEL v Minister for Immigration (2006) 228 CLR 152 SZTMH v Minister for Immigration & Anor [2014] FCCA 1807 |
| First Applicant: | SZTRN |
| Second Applicant: | SZTRO |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3161 of 2013 |
| Judgment of: | Judge Driver |
| Hearing date: | 26 August 2014 |
| Date of last submissions: | 4 September 2014 |
| Delivered at: | Sydney |
| Delivered on: | 19 September 2014 |
REPRESENTATION
| Solicitors for the Applicant: | Mr C McArdle McArdle Legal |
| Counsel for the Respondents: | Ms R Francois |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application filed on 18 December 2013 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3161 of 2013
| SZTRN |
First Applicant
SZTRO
Second 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 25 November 2013. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants protection visas. There are two applicants. The first applicant (the applicant male) is the partner of the second applicant (the applicant female). The relevant protection claims were made by the first applicant. References in this judgment to “the applicant” are intended to be references to him. The following statement of background facts is derived from the Minister’s outline of legal submissions filed on 19 August 2014.
The first applicant is a 25 year old citizen of the People’s Republic of China (Fujian Province) who first arrived in Australia on 1 September 2006 on a student visa[1]. The second applicant is a 23 year old citizen of China who first arrived in Australia on 6 May 2008 on a student visa[2]. On 9 July 2013, after the first applicant’s student visa had expired and he was located and detained as an unlawful non-citizen, he lodged the application for a protection visa and identified the second applicant as a member of his family unit[3].
[1] Court Book (CB) 1, 13, 138, 192 [1]
[2] CB 26, 29 139, 192 [2]
[3] CB 1-44
The first applicant claimed to fear persecution in China based upon[4]:
a)his religion as a Catholic who had been brought up by, and associated with, underground Catholics in Fujian province in China; and
b)his membership of a particular social group, being part of an unmarried couple who are expecting their first child and who will be forced to abort their child upon return to China by reason of China’s family planning laws.
[4] CB 17-20
On 11 September 2013, a delegate of the Minister refused the application[5] on the basis that:
a)the applicant’s knowledge of the “Christian Catholic doctrine” was “sketchy” and not at a level that would be sufficient for him to organise and run an “illegal” bible study class or to play any significant role in an unregistered church[6];
b)the country information did not support a conclusion that lay members of unregistered Catholic churches are persecuted in the Fujian province of China[7];
c)the document provided in support of the claim that the first applicant’s father had been arrested did not support that claim and, in light of the information about document fraud in China, it was concluded that the document was not likely to be genuine[8];
d)the first applicant’s baptism certificate, which had a registration number and an official seal, indicated that the church he belonged to in Fujian province had a well-established administrative capacity which unregistered churches do no normally possess[9];
e)his behaviour in Australia, hiding in the community after his student visa expired and not claiming any fear of persecution when he was located and detained (merely a need for money to assist his family), indicated that he had no well-founded fear of persecution in China based upon his Catholicism[10]; and
f)the claims arising from the pregnancy of the second applicant were in relation to an unborn child whose own claims could not yet be assessed[11].
[5] CB 96-124
[6] CB 117
[7] CB 117.8
[8] CB 119.7-120.3
[9] CB 120.5
[10] CB 120.7-121.2
[11] CB 116.8
On 12 September 2013, the applicants lodged an application for review of the delegate’s decision with the Tribunal[12]. On 24 September 2013, the Tribunal invited the applicants to attend a hearing on 30 October 2013[13]. On 30 October 2013, the applicants, their migration agent and three witnesses attended the hearing before the Tribunal[14]. On 25 November 2013, the Tribunal affirmed the decision of the delegate[15].
[12] CB 125 to 142
[13] CB 156–164
[14] CB 169
[15] CB 191-201
Tribunal's decision
The Tribunal accepted that:
a)the first applicant considered himself to be a Catholic and had attended church in Australia[16]; and
b)the second applicant was pregnant with their child and that they are in a de facto relationship and thus members of the same family unit[17].
[16] CB 196 [30]
[17] CB 196 [31]
The Tribunal did not otherwise accept the first applicant to be a witness of credit[18]. The Tribunal did not accept that the first applicant and his family had any difficulties because of their membership of an underground Catholic Church in the Fujian province. In light of this, and the available country information, the Tribunal did not accept that the first applicant would face serious harm if he returned to China for this reason[19].
[18] CB 196 [32], 198 [45] to [47]
[19] CB 196 [33] - 197 [37]
The Tribunal also found that the applicants’ claim that the second applicant would be forced to have an abortion because she is pregnant but not married to be inconsistent with the available country information[20]. In particular, the Tribunal found that the most that would happen if the applicants chose to remain unmarried prior to the birth of their child upon return to China is that they would be forced to pay a social compensation fee before the child could be registered[21]. Should the applicants choose to marry before the birth of the child, then no fee would be payable[22]. The first applicant’s evidence that he could not marry the second applicant in a civil ceremony because of the requirements for religious marriage by the Catholic Church was inconsistent with the evidence of the witness, Father McGee[23].
[20] CB 197 [38]
[21] CB 197 [39], 198 [44]
[22] CB 197 [40]
[23] CB 197 [41]
Based on these findings, and noting that no claim was made with respect to the complementary protection criteria, the Tribunal also found that the applicants would not suffer significant harm as defined in s.36(2A) of the Migration Act 1958 (Cth) (Migration Act) upon return to China[24].
[24] CB 199 [50]
The judicial review application
These proceedings began with a show cause application filed on 18 December 2013. The applicants continue to rely upon that application. There are ostensibly two grounds in the application:
1. The Applicant appeals against the entirety of the purported privative clause decision of the Refugee Review Tribunal made on 25 November 2013, or in the alternative seek a declaration according to law.
Particulars
i. Section 5E
2. The proceedings leading to the decision were conducted in such a way, and the decision was crafted in such a way so as to lead a reasonable person to apprehend bias and was thus not an effective decision that is protected by Section 474.
Similar grounds were raised by applicants with the same legal representative in three other cases recently dealt with by me[25]. As in those earlier cases, the matter was pursued on the basis that the only issue for the Court to decide is whether the Tribunal decision is vitiated by an apprehension of bias.
[25] SZTKR v Minister for Immigration & Anor [2014] FCCA 1705; SZTMH v Minister for Immigration & Anor [2014] FCCA 1807 ; SZTMW v Minister for Immigration & Anor [2014] FCCA 1818
I have before me as evidence the court book filed on 11 February 2014. I also received as an exhibit[26] the sound recording of the Tribunal hearing conducted on 30 October 2013. The applicants rely upon a transcript of that hearing prepared under cover of an affidavit by Donglin Wu. The Minister contested the reliability of parts of that transcript by reference to the sound recording. In the circumstances, I received the transcript as an aide memoir. However, unless otherwise stated in these reasons, I accept the transcript as a reliable record of what occurred at the Tribunal hearing.
[26] Exhibit R1
The parties made both oral and written submissions.
Consideration
Both in his written submissions and at the hearing before me, the solicitor for the applicants was at pains to ensure that the assertion of apprehended bias in this case is dealt with on its merits, notwithstanding the significant similarities to the previous three cases I have previously dealt with, in which the legal representation was the same, the issue to be decided was the same, and there were similarities in the submissions. I accept that the Court must deal with each case upon its legal merits. As I noted in SZTMW at [9] the relevant principles at issue are set out in SZTMH at [13]-[15]. In addition, I accept the caution called for in the Minister’s submissions.
It is important to keep in mind in applications of apprehended bias that the Tribunal:
a)was only required to keep an open mind, not an empty mind[27]; and
b)was required to inform the applicants during the hearing of the issues which concerned it[28].
[27] Minister for Immigration v Jia Legeng (2001) 205 CLR 507 at [71]
[28] SZBEL v Minister for Immigration (2006) 228 CLR 152
As the NSW Court of Appeal (Basten JA with whom Young JA and Sackville AJA agreed) explained in Barakat v Goritsas(No 2)[29]:
No authority is needed for the proposition that an apprehension of bias, in the sense of an apprehension of prejudgment, does not mean an apprehension that the case will be determined adversely to the interests of the complaining party. It means a reasonable apprehension that the trial judge has formed a fixed view, to which it may be expected that he or she will adhere, regardless of the evidence or the submissions made by the complaining party. To the extent that the trial judge expressed a firm view, the context demonstrates that it was intended to focus counsel’s mind on the limited scope of the issue, in an attempt to obtain an estimate of the time required to prepare a defence. Far from suggesting that any submissions to the contrary might be to no avail, the judge was seeking to ensure that counsel had reasonable time to prepare such submissions, in circumstances where, the fair-minded observer might properly assume, he was entitled to such an estimate for the purposes of case management. Taken in isolation, that passage does not satisfy the established test for conduct creating a reasonable apprehension of bias.
[29] [2012] NSWCA 36 at [40]
As in the earlier cases referred to, the applicants invite the Court to find that apprehended bias has been established by references to various passages in the transcript of the hearing. I agree with the Minister’s submission that the impugned passages (checked by reference to the sound recording) do not support such an apprehension. I have listened to the entire sound recording and have found nothing in the calm, respectful and reflective conduct of the hearing by the member that could support any criticism. In particular, I have regard to the following:
a)page 11 of the transcript does not support an allegation that the Tribunal “peppered” the first applicant with questions about his holy name. First, the questions indicate that the Tribunal was trying to obtain more details about the evidence the first applicant volunteered on page 10 that he was given a “holy name” during his baptism. Secondly, this questioning was in light of the delegate’s decision in which the delegate had found he only had a “sketchy” knowledge of Catholicism. Thirdly, the questions were not expressed in a disbelieving or belittling manner and, in its decision, the Tribunal accepted that the first applicant considered himself to be a Catholic. Finally, even if it was relevant, there is no evidence that the Tribunal’s understanding that Catholics celebrate a special day for the Saint after which they are named is not correct;
b)page 13 of the transcript is an allegation of a denial of procedural fairness due to a minor difficulty with the translator. I do not consider that this bears on the apprehension of bias and in any event, it is factually misconceived. When regard is had to page 12 of the transcript, it is apparent that the Tribunal was well aware that the interpreter was having difficulties at this point because the interpreter had expressly said so and she had also explained that, for this question, she had asked the applicant to write down his answers; which is what was occurring on page 13 when the agent attempted to intervene. I note that there is a minor discrepancy between the transcript and the sound recording but I do not consider that significant;
c)page 14 of the transcript is relied upon for the statement by the Tribunal that the member is not a Catholic which is then said to disentitle the Tribunal from asking questions of a detailed nature about Catholicism. The assumption which appears to underlie this allegation is that only a Catholic can know about Catholicism and the Tribunal could not, by reading or study, understand its practices. I reject that assumption. There is no evidence to support the further assertion that the Tribunal was trying to “trip up” the first applicant. The allegation has no factual foundation, particularly when the Tribunal accepted the first applicant’s claims of being a Catholic;
d)page 17 of the transcript is relied upon for the fact that the Tribunal asked the first applicant if he prays to anyone other than God. Given that in the Catholic faith there is the possibility of praying to God the father, Jesus Christ, the Holy Spirit, the Virgin Mary and any number of other Saints, the question is not prima facie offensive and plainly not said in a disbelieving or belittling manner;
e)page 17 of the transcript is also relied upon for an allegation that the Tribunal asked the first applicant to sing a hymn. This allegation is factually incorrect. I accept the Minister’s submission that the transcript relied upon the applicant at this point is not correctly excerpted and should read as follows (changes in mark-up):
Member: Uh, so is that all you did
inat these groups?Applicant: We will sing.
Member: What about?
Applicant: The songs of Catholics.
Member: Can you
makename me one?Applicant: Should I sing?
Member: If you want to sing, you can sing. But more importantly is can you tell me what the words mean?
A fair reading of the transcript and my hearing of the sound recording does not support the allegation that the Tribunal at this point was trying to “discredit, embarrass and trip up the applicant”;
f)page 23 of the transcript is said to contain improper questions about how the applicants first met. A fair reading of the transcript shows nothing more than the Tribunal undertaking its function to ascertain whether their relationship is genuine; a matter which it accepts in its decision;
g)page 29 of the transcript is criticised because the Tribunal asked the first applicant about the Church’s belief in sex before marriage and then also asked, in relation to the first news of the pregnancy, “And what did she want to do about it?”. I accept the Minister’s submission that a fair reading of the transcript shows that this question was not necessarily directed to the possibility of abortion. The Tribunal’s follow up questions were “Um, but what did she want, like you are in detention, she’s out, what advice did you give her on what to do?” and “Yeah, but did you suggest her go on to talk to anybody?” In any event, even if the question was about abortion, given that the second applicant was not a Catholic at the time and the question was about her perspective, there is nothing necessarily offensive in the question and it was not said in a disbelieving or belittling manner;
h)page 31 of the transcript is criticised because the Tribunal suggested that the applicants could have a civil marriage to avoid the claimed dire consequences in China of having a child out of wedlock. There was nothing offensive in this suggestion. A civil marriage does not vitiate or any way impinge upon a later religious marriage, as was confirmed by the evidence of Father McGee.
i)the applicants’ submissions next incorrectly assert that on page 34 of the transcript the “Member calls the Applicant’s girlfriend as a witness” and then repeats the allegation that the member was not entitled to ask detailed questions about the applicants’ relationship. Again, this misconceives the Tribunal’s functions and duties. Further, given that the Tribunal accepted that the applicants were in a genuine relationship, the questioning could not rationally have lead any reasonable person to apprehend that the Tribunal had a mind closed to the question of their relationship;
j)page 56 of the transcript is then relied upon in relation to the Tribunal’s consideration of the conflicting evidence about civil and religious ceremonies[30]. The applicants’ submissions incorrectly suggest that the Tribunal misunderstood the first applicant’s evidence which was only that his preference was to have a religious ceremony. However page 31 of the transcript records the first applicant’s evidence as follows:
Member: Ok, uh, would you consider having a civil marriage pending her conversion so that your child will not be born out of wedlock?
[30] which is reflected in the Tribunal’s decision at CB 194 [19], 195 [26] and 197 [41]
Applicant: No.
Member: Why?
Applicant: Because according to our religion, according to our church, you can’t get married before you studied the rules, the marriage rules together.
The first applicant did not resile from this evidence on transcript page 56 when he responded to the Tribunal’s concern about the inconsistent evidence as follows:
Applicant: I know in China it’s a required step to have marriage preparation before you can get married, but as in here, I’m in detention centre so I’m not too sure about the uh, situation in here.
k)the final matter said to give rise to apprehension of bias is the Tribunal’s treatment of country information on page 57 of the transcript in relation to the recognition by the Vatican of priests in registered churches in China and the fact that those priests may sometimes give services in unregistered churches. As was noted in oral argument before me, these matters were also set out in the delegate’s decision at CB 118. While the applicants’ advisor may have some difficulty accepting that information, that is not a recognised ground of review. Further, the passage where the Tribunal did put information directly to the first applicant about his claims in relation to his father is on the bottom of page 57 and that merely reflects both the concerns of the delegate and the Tribunal about the document provided in support of that claim[31]. None of these matters, in my view, indicate a mind which is closed to rational and probative evidence.
[31] cf CB 198 [47] and 119.7
Further, while it may be surprising that there is apparently country information available supporting the proposition that 90 per cent of priests and bishops appointed by the Chinese government have also been ordained by the Vatican[32], that is consistent with other country information that there is increasing dialogue (and perhaps co operation) between the official and unofficial Catholic churches in China.
[32] CB 118 at the second dot point
I gave the parties the opportunity to make further post hearing submissions on this issue. The applicants’ solicitor provided a bundle of country information concerning relations between the Chinese authorities and the Roman Catholic Church under cover of a letter dated 2 September 2014. The applicants submit that “it is not within the jurisdiction of the Tribunal to entertain an assertion without foundation and to use that baseless assertion to underpin its conclusions”. The Minister submits that the additional material does not fall within the leave granted and should be ignored and, in any event, reflects a misconception.
In my view, the most that can be said about the country information provided and the submission by the applicant is that the relations between the Vatican and the Chinese Government may not be as harmonious as suggested by the decision of the delegate, which in this respect was apparently relied upon by the Tribunal. With respect to the applicant, that simply cavils with the merits of the Tribunal decision, not the issue of its jurisdiction.
Finally, I reiterate that while the first applicant was questioned as to his faith and both applicants were questioned as to their relationship, the Tribunal appears to have accepted at [30] of its reasons[33] that the first applicant is a genuine Roman Catholic. The Tribunal made no adverse finding under s.91R(3) of the Migration Act and hence must be taken to have accepted that his Catholic observance in Australia was not solely for the purpose of enhancing his protection visa claims. The Tribunal must also be taken to have accepted that the relationship between the two applicants is a genuine one. In relation to the Chinese family planning regulations, the Tribunal’s decision is one reasonably based upon the proposition that as the only issue was the applicants’ status as unmarried, and there was no impediment to them marrying in Australia, it was open to them to resolve that issue themselves.
[33] CB 196
Conclusion
The applicants have failed to demonstrate that the Tribunal decision is affected by jurisdictional error. It follows that the decision is a privative clause decision and the application must be dismissed. I will so order.
This and the previous three cases to which I have referred all involved the same migration agent before the Tribunal and the applicants’ legal representation in this Court was the same in each case. The Court now having found no error in these four cases, it would be appropriate for the legal representatives to reflect on the merits of bringing forward additional cases based upon the same grounds.
I will hear the parties as to costs.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 19 September 2014
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