SZTWN v Minister for Immigration
[2015] FCCA 1862
•18 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTWN & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1862 |
| Catchwords: MIGRATION – Application for review of decision of Refugee Review Tribunal – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.44A, 91R, 425 |
| Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611; [2010] HCA 16 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178 |
| First Applicant: | SZTWN |
| Second Applicant: | SZTWO |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 336 of 2014 |
| Judgment of: | Judge Barnes |
| Hearing date: | 18 June 2015 |
| Delivered at: | Sydney |
| Delivered on: | 18 June 2015 |
REPRESENTATION
| The Applicants: | The Applicants appeared in person |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The Application is dismissed.
The Applicants pay the costs of the First Respondent fixed in the sum of $4,500.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 336 of 2014
| SZTWN |
First Applicant
| SZTWO |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal dated 29 January 2014. The Tribunal affirmed the decision of a delegate of the First Respondent not to grant the Applicants Protection (Class XA) visas.
The Applicants are husband and wife and citizens of the People’s Republic of China. They arrived in Australia in October 2012. The Applicant husband applied for a protection visa in November 2012. His wife was added to the application in May 2013.
In essence, the Applicant husband (referred to for convenience as “the Applicant” unless the context requires otherwise) claimed to fear persecution arising from his religion as Catholicism and his involvement in the underground Catholic Church in China. He claimed that, as a consequence, he had become a target for the Chinese authorities and that in 2011 he had been questioned, detained and assaulted by the police then fined before being released. He claimed that if he went back the investigation would be continued and he would be persecuted.
The Applicant attended an interview with the delegate. The delegate refused the application. Relevantly, the delegate had regard to a number of issues, including a discrepancy in the Applicant’s claims about when and in what circumstances he became a Catholic in China. The delegate was not satisfied that the Applicant was a practising Catholic in an underground Catholic Church in China who had come to the adverse attention of the authorities.
The Applicants sought review by the Tribunal. They were invited to and attended a Tribunal hearing at which, according to the Tribunal hearing record, they had the assistance of an interpreter. The only evidence before this Court of what occurred in the Tribunal hearing is the Tribunal’s account in its reasons for decision and the Tribunal hearing record, which indicates that the Tribunal hearing went for over two and a half hours. The Tribunal recorded that the Applicant’s wife, who had not initially made separate claims, also claimed that she was involved in Catholic religious activities in Australia and feared harm for that reason.
The Tribunal affirmed the delegate’s decision. In its reasons for decision the Tribunal set out the claims made by the Applicants in connection with the Protection visa application, at the departmental interview, and the evidence at the Tribunal hearing.
In essence, the Tribunal rejected the Applicants’ claims based on the view it formed of the Applicant husband’s credibility. The Tribunal considered that the Applicant had manufactured the totality of his claims to fear harm in China. It did not accept that he was the subject of any adverse attention in China. It was not satisfied that either of the Applicants had a well-founded fear of persecution for a Convention reason in China or met the complementary protection criterion. The Tribunal gave a number of reasons for its findings. It was not satisfied that the Applicants had given a truthful account of their reasons for leaving China and, in particular, considered that several aspects of the Applicant husband’s claims were confused, inconsistent and implausible.
The Tribunal was of the view that the Applicant had significantly altered his claims to accommodate concerns raised by the delegate during the interview and in the delegate’s decision. The Tribunal referred in particular to the fact that the Applicant’s evidence in relation to when he became a Catholic was confused and inconsistent. In particular, while on his application form he had claimed he had been introduced to Catholicism by a friend who was a member of the underground Catholic Church, referred to 2002 and indicated that he became actively involved in promoting Catholicism after being introduced to it by his friend, both at the departmental interview and during the Tribunal hearing the Applicant had claimed that his grandfather and father were Catholics and he was brought up as a Catholic and baptised at the age of ten.
The Tribunal had regard to his evidence at the hearing when asked about this inconsistency, but did not accept that the Applicant had provided a satisfactory or adequate explanation or consistent evidence as to when he became a Catholic.
The Tribunal considered it evident that the Applicant had sought to manufacture an explanation at the hearing to overcome the concerns expressed by the Tribunal in relation to this issue. It set out in some detail the explanation the Applicant had given, which it described as long and somewhat rambling, including his claim that he met a friend at a registered church in 2002 and that they decided to form an underground Catholic Church, which they established in January 2009. When the Tribunal asked why the friend would have told the Applicant about the underground church in circumstances where the Applicant claimed that he had been a member of such a church since childhood, the Applicant had replied that he was young and it did not have much of an impression on him.
The Tribunal also recorded that when asked by the Tribunal why the Applicant’s friend was attending a registered church if he was an underground Catholic, the Applicant had stated that the friend was there to preach the gospel and people were there due to their belief in the Lord. The Tribunal recorded that it put to the Applicant that this was not an adequate explanation for why the friend was at the registered church and put to him that it was unlikely the friend would have been preaching the gospel at a registered church, as that would have been the role of the priest. It recorded that the Applicant indicated he was unwilling to make further comments, stating he had promised before God to tell the truth.
In these circumstances, the Tribunal did not accept the Applicant’s explanation for what it saw as a significant inconsistency in relation to when he became a Catholic and considered his explanation manufactured. The Tribunal was of the view that, had the Applicant genuinely been a member of the underground Catholic Church in China, he would have been able to provide a consistent account of when he became a Catholic and that if he had come from a family of underground Catholics he would have stated this on the application form when making his initial claims. The Tribunal found the evidence in this regard was strongly indicative of the fact that the Applicant had manufactured his claims to have been a Catholic in China.
The Tribunal also found that the Applicant’s evidence at the Tribunal hearing as to the Catholic Mass, which he claimed to have celebrated regularly in China, differed considerably from his evidence to the delegate. In particular, the Tribunal had regard to an inconsistency about whether communion was celebrated in the absence of a priest and whether he referred to the sacrament of the Eucharist when asked about the Mass.
The Tribunal recorded that it had given the Applicant the opportunity to comment on this inconsistency and the Applicant had claimed he was nervous during the departmental interview and that the interpreter may not have recorded what he said accurately. The Tribunal did not accept the Applicant’s explanation for the inconsistency in relation to whether communion was celebrated during the underground Catholic Mass and found that this evidence was indicative of an attempt by the Applicant to modify his evidence to accommodate the delegate’s adverse findings regarding the manner in which the Applicant purportedly celebrated Mass.
The Tribunal also had regard to what it described as significant differences in the Applicant’s evidence to the delegate and to the Tribunal in relation to the number of people who attended the underground church services in China. When this inconsistency was put to the Applicant, the Applicant had suggested that he had not given inconsistent evidence, but rather had said there were four people initially but explained that the number of people increased after people found out about the underground church services. He again referred to his nervousness and possible interpreting problems.
The Tribunal considered these explanations, but considered it evident that the Applicant had altered his evidence in relation to the size of the group to overcome the delegate’s references in his decision to independent evidence which indicated that a group of only about four or five people would be permitted to practise without the need for registration and would not attract the adverse attention of the authorities. The Tribunal was of the view that at the hearing the Applicant had significantly embellished the size of the group attending underground church services in attempt to establish an interest from the authorities.
Having regard to these issues the Tribunal was not satisfied the Applicant was or ever had been a Catholic, or that his wife was or ever had been a Catholic. It did not accept his claims about events in China or, in particular, that he was the subject of any adverse attention. It found that he had manufactured his claims to fear harm.
The Tribunal also addressed the Applicants’ claims regarding their involvement in religious activities in Australia. The Applicant claimed that he had been attending church services in Australia at St. Dominic’s Church and that, although his wife had not attended underground church services in China, she was attending church in Australia at St. Dominic’s, studying the Bible and preparing to be baptised.
The Tribunal recorded that despite the fact the delegate had raised with the Applicants the absence of any documentation from St. Dominic’s Church to support their claimed attendance, the Applicants had told the Tribunal they did not believe it was necessary to provide any documentation and that their belief should be sufficient, but that, if necessary, they could obtain documentation. Despite what the Tribunal saw as “a puzzling” absence of any such evidence, it was prepared to accept that they had been attending and participating in services at St. Dominic’s as claimed.
However, having found that the Applicant was not a Catholic in China and that his wife had not developed any interest in Catholicism in China, the Tribunal formed the strong impression that they were motivated to become involved with St. Dominic’s in Australia for the sole purpose of strengthening their claims to be refugees. For the purposes of the Applicants’ Refugees Convention claims the Tribunal disregarded such conduct pursuant to s.91R(3) of the Migration Act 1958 (Cth) (“the Act”).
The Tribunal went on, however, to consider whether the Applicant’s wife’s involvement in religious activities in Australia would have any impact on the Applicant or whether his involvement in religious activities in Australia would have any impact upon his wife on return to China. It observed that the Applicants had not claimed that the Chinese authorities would be aware of such involvement. It was not satisfied there was any evidence to that effect. In any event, even if the Chinese authorities were aware of this involvement, the Tribunal was not satisfied it would result in either Applicant suffering any harm upon return to China. Nor did the Tribunal accept the claims made at the hearing that the Applicants would have difficulty obtaining employment on return to China due to the Applicant’s previous arrest and imprisonment, given that it had not accepted the claims about the Applicant’s past involvement in underground church services in China, or that he had been arrested or detained.
Given its conclusion that the Applicant had never attended underground church services in China, the Tribunal was not satisfied he would seek to do so in the future on return to China, or that his wife, who had never had such involvement, would seek such involvement. On all the evidence the Tribunal was not satisfied there was a real chance the Applicants would be harmed in China as a result of their religion or for any other Convention reason.
The Tribunal also considered the complementary protection criterion. It referred to its conclusion that it had not accepted that the Applicants feared harm in China as a result of their religion, that they would have any adverse profile in China or have any difficulty obtaining employment in China. It observed that they had not advanced any other reasons for fearing to return to China. The Tribunal was not satisfied there was any evidence that the Applicants would suffer significant harm (in the sense referred to in the complimentary protection criterion) for any reason upon return to China. It was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicants being removed to China, there was a real risk they would suffer significant harm. The Tribunal affirmed the delegate’s decision.
The Applicants sought review by application filed in this court on 14 February 2014. There are eight grounds in the application, albeit that they are numbered 1 and then 1 to 7. The Applicants did not file a transcript of the Tribunal hearing as provided for in the orders made by consent at the directions hearing. Nor did they file written submissions. They were both given the opportunity today to make oral submissions after the Minister’s submissions were translated for them by the interpreter.
During the hearing today the Applicants raised a number of issues, some of which overlap with the grounds in the Application. In considering the grounds relied on I have considered their oral submissions, the wording of their grounds of review, as well as the material that is before the Court. It is convenient to consider first the issues that they raised today.
The Applicants contended that the Tribunal did not offer them a “fresh review” in the manner in which it conducted the Tribunal hearing. It was contended that the questions raised by the Tribunal were basically the same as questions asked at the departmental interview; that the Tribunal repeated a number of questions; and that the Tribunal used a few questions to mislead the Applicant repeatedly. It was submitted that the Tribunal was trying to make the Applicant make a mistake and that he was quite nervous. It was also submitted, in effect, that there was a form of entrapment used on the part of the Tribunal in the manner in which it questioned the Applicant. It was suggested, for example, that the Tribunal had misled the Applicant by repeating questions and by asking him to elaborate on matters and to give more details.
Issue was taken with the fact that the Tribunal had allegedly indicated a lack of understanding and that the Applicant had then provided a further explanation, but that the Tribunal had taken issue with the clarity of the Applicant’s explanation, and had put to the Applicant that he had given a different account to what he had said to the department. It appeared to be suggested that the Tribunal should have been satisfied with the Applicant’s explanation for any inconsistencies because when asked for more detail the Applicant had given more detailed information than he had provided to the delegate.
As indicated, there is no transcript of the Tribunal hearing before the court. However, the Applicants were given an opportunity to elaborate on their concerns relating to the Tribunal hearing so I could consider whether there appeared to be any substantive issues raised by what they said.
In essence, their complaints about the conduct of the hearing may be seen as a complaint about fairness, which could be seen in terms of bias or apprehended bias or as an assertion that the Tribunal failed to afford them a meaningful opportunity to appear to give evidence and present arguments relating to the issues arising in relation to the decision under review as required by s.425 of the Act.
It is for an applicant to advance evidence and arguments in support of his or her case. The function of the Tribunal is to respond to the case advanced by the Tribunal. The role of the Tribunal, in particular at the Tribunal hearing, is inquisitorial as stated by Kirby J in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 at [78]. Section 425 of the Act reflects the fact that the review before the Tribunal is a review of the delegate’s decision and that an applicant is to be given the opportunity to give evidence and present arguments relating to the issues arising in relation to the delegate’s decision (as the decision under review).
It is well-established that the Tribunal is obliged to raise dispositive issues with an applicant at a hearing. The determination of what are dispositive issues will take into account all of the circumstances, including, in particular, the delegate’s decision (see Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 152; [2006] HCA 63 at [33]-[35] and [47]. Where there are specific aspects of an applicant’s account the Tribunal considers may be important to the decision and may be open to doubt) the Tribunal must at least ask an applicant to expand upon those aspects of the account and to explain why the account should be accepted.
Seen in light of such principles, the fact that the Tribunal was said to have asked the Applicant questions on issues that had been canvassed by the delegate at the interview, asked the Applicant to elaborate on his evidence and put to the Applicant inconsistencies in his evidence, including inconsistencies between his evidence to the delegate and his evidence to the Tribunal, is not such as to indicate that the opportunity afforded to the Applicants under s.425 of the Act was not a meaningful opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review.
The Applicant’s wife contended that the Tribunal had not conducted the hearing from a humanitarian approach. It was contended by the Applicants that there was some form of entrapment on the part of the Tribunal. However, it was appropriate for the Tribunal to canvass the claims the Applicant made about events in China; to raise with him issues in relation to aspects of his evidence that may also have been canvassed by the delegate; to put to him inconsistencies and to give him an opportunity to address such inconsistencies. It has not been established that there was a failure to comply with s.425 of the Act in this respect.
Insofar as the Applicants take issue with the fact that the Tribunal did not accept that their evidence was truthful and suggest that such claims should have been accepted, the credibility findings of the Tribunal were open to it on the material before it for the reasons that it gave. Credibility findings are the function of the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parteDurairajasingham (2000) 74 ALJR 405; [2000] HCA 1). There is nothing to indicate that the Tribunal failed to exercise appropriate care in relying on inconsistencies in circumstances where, on the Tribunal’s own account as well as on the submissions of the Applicants today, the Applicant was given the opportunity to explain and elaborate on his claims. I also note generally that insofar as the Applicants seek merits review, merits review is not available in these proceedings.
The other way in which the Applicants’ claims about the hearing may be seen is as an assertion that the Tribunal was biased or that the manner in which it conducted the hearing was such as to give rise to an apprehension of bias.
Allegations of actual bias must be distinctly made and clearly proved. Such an allegation is not to be lightly made and it will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision (SZHVL v The Minister for Immigration and Citizenship [2008] FCA 356). In particular, the mere fact of an adverse decision or finding against an applicant does not, of itself, give rise to an inference of bias.
In this case, while submissions were made about the conduct of the Tribunal hearing, there is nothing in which the Applicants said or in the limited evidence before me as to the conduct of the Tribunal hearing to support any claim of actual bias in the form of prejudgment in the sense of the Tribunal member being so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented (see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17).
Notably, even highly specific and potentially onerous questioning in a Tribunal hearing, which the Applicants allege occurred, may not sustain a conclusion of bias or a reasonable apprehension of bias (see SZEOQ v Minister for Immigration and Citizenship [2008] FCA 257). In relation to bias, the critical issue is the use made of responses. The Tribunal decision is not such as to support a claim of bias.
Nor is there evidence before the Court to support an allegation of apprehended bias in the sense considered in Re Refugee Review Tribunal & Anor; Ex parte H & Anor (2001) 75 ALJR 982; [2001] HCA 28, bearing in mind that that this is to be assessed from the perspective of the hypothetical, fair‑minded lay observer who is (importantly in this case) properly informed as to the nature of the proceedings, as well as the matters in issue, and the conduct said to give rise to an apprehension of bias. The claims made by the Applicant in this respect are not such as to establish either actual or apprehended bias.
Turning to the grounds in the application, the first ground is that the Tribunal failed to take into account a relevant consideration when it assessed whether the delegate “raised reasonable grounds for not granting a protection visa”. The Applicants did not identify with any clarity any relevant consideration in the sense of an integer of their claims which was not taken into account (see Kumar v Minister for Immigration and Citizenship (2009) 176 FCR 401; [2009] FCAFC 55). Rather, the Applicants reiterated that they had an issue with the manner in which the Tribunal hearing was conducted.
It has not been established that the Tribunal failed to take into account a relevant consideration. I note in that respect that the Tribunal’s task was not to assess whether the delegate had raised reasonable grounds for not granting a protection visa, but rather to determine for itself (by way of merits review) the Applicants’ claims for protection. It was, however, open to the Tribunal in making that assessment to have regard to all the evidence the Applicants had given, including in the written application as well as in the departmental interview. Ground 1 is not made out.
The next ground is also numbered 1. It is that “the Tribunal had bias towards me” (I take that to mean the first Applicant) “and could not make a decision in a fair way”. As indicated, the Tribunal’s reasons are not such as to demonstrate bias. The mere fact of adverse findings does not of itself give rise to an inference of bias. A fair reading of the Tribunal’s decision supports the conclusion that its findings were open to it for the reasons given, including its adverse credibility findings. The Tribunal gave rational reasons relating to such matters, which were logically probative on the issue of credibility; Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547; [1998] FCA 1126. This ground is not made out for these reasons and for the reasons canvassed earlier.
The next ground is that the Tribunal failed to provide the Applicant with adequate particulars of the independent information. The Applicant was not able to clarify what was meant by this ground. Unlike the delegate, the Tribunal did not refer to any independent information in its findings and reasons. In any event, country information of a general character does not necessarily have to be specifically drawn to the attention of visa applicants (VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178 at [15]). In this case there is nothing to indicate that the Tribunal failed to bring any dispositive issues to the attention of the Applicants.
The next ground is that the Tribunal failed to provide the Applicant with an adequate opportunity to respond to the substance of the information. No particular information is identified. No information within s.424A of the Act was relied upon by the Tribunal. Insofar as this ground takes issue with the conduct of the Tribunal hearing, there is nothing in the material before the Court to support any such claim based on the conduct of the Tribunal hearing. The fact that the Tribunal did not accept the Applicant’s explanations for inconsistencies and other issues about his evidence does not establish jurisdictional error.
I note also that as pointed out in the Minister’s written submissions, there is no indication in the Tribunal reasons, in the court book, or in what was said today, that any complaint was made to the Tribunal about the adequacy of the interpretation during the Tribunal hearing or about the conduct of the hearing. The Tribunal’s reasoning and its description of the hearing suggests the Applicants were given an opportunity to give evidence and present arguments in accordance with s.425 of the Act and that the Applicants were put on notice of determinative issues relevant to their application. There is no transcript in evidence. There is nothing in the evidence before the Court to support any claim that the Tribunal failed to afford procedural fairness to the Applicants or to carry out a review in accordance with Division 4 of Part 7 of the Act. This ground is not made out.
The next ground is that the Tribunal failed to understand the Applicants’ claims. Insofar as this is a complaint that the Tribunal failed to accept the Applicant’s claims or his explanations, it does not establish jurisdictional error. It has not been established that the Tribunal misunderstood any integer of either Applicant’s claims and in that sense failed to consider the claims. On the contrary, it appears from the Tribunal’s reasons that it understood the Applicants’ claims but did not find them credible. Merits review is not available. This ground is not made out.
It is then contended that the Tribunal’s decision was not based on a rational or logical foundation. This ground was not elaborated on by the Applicants. The Tribunal set out in detail in its reasons the basis on which it found that the Applicants’ claims lacked credibility. As indicated, such findings were open to the Tribunal for the reasons given on the material before it. There is nothing to support any contention that the conclusion reached by the Tribunal was illogical, irrational or lacked a basis in findings of fact or was based on inferences of fact not supported by logical grounds in the sense considered in Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611; [2010] HCA 16.
It is convenient to consider the next two grounds together. It is contended that the Tribunal “could not provide evidence to support that [the Applicant] will not have the chance to suffer persecution from the Chinese authorities because of [his]…”. A word is missing which perhaps is intended to be “religion”. It is also contended that the Tribunal was “not (sic) dissatisfied” – that (the Applicant) is a refugee without giving proper evidence and materials to justify its decision. It appears this is intended to suggest that the Tribunal was dissatisfied.
Such grounds misunderstand the role of the Tribunal. It is not for the Tribunal to provide affirmative evidence to support a conclusion that an applicant “will not have the chance” of suffering persecution or for the Tribunal to make an applicant’s case (Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155; [1985] FCA 47). As indicated, it is for an applicant to advance his or her own case and the Tribunal’s role is inquisitorial.
In this case, the Tribunal did not accept the Applicant’s claims in relation to his involvement in the underground Catholic Church in China or that he had been the subject of any adverse attention in China. It was on this basis that, having considered all the evidence put before it by the Applicants, the Tribunal was not satisfied there was a real chance they would be harmed in China as a result of their religion or for any other Convention reason. It was also not satisfied that they met the complementary protection criterion. It has not been established that the Tribunal erred in the manner contended for such as to establish jurisdictional error on the basis contended for in either of these grounds.
As it has not been established that the Tribunal’s decision was affected by jurisdictional error, the application must be dismissed.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 18 June 2015
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