SZUBQ v Minister for Immigration

[2016] FCCA 534

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUBQ & ANOR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 534

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal applied incorrect tests and did not apply correct tests, did not consider every claim made by the applicants, did not consider all of the evidence, reached conclusions which were illogical or unreasonable, was biased, failed to call witnesses, failed to make enquiries and failed to alert the applicants pursuant to s.425 of the Migration Act 1958 of issues determinative of its review.

Legislation:

Tribunals Amalgamation Act 2015 (Cth), item 15AG of sch.9

Migration Act 1958 (Cth), ss.36, 425, 474

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123
Minister for Immigration & Border Protection v SZRTF [2013] FCA 1377
Stead v State Government Insurance Commission (1986) 161 CLR 141
NAIS v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 470
NBNB v Minister for Immigration & Border Protection (2014) 220 FCR 44

First Applicant: SZUBQ

Second Applicant: SZUBR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 710 of 2014

Judgment of: Judge Cameron

Hearing date: 22 February 2016

Date of Last Submission: 29 February 2016

Delivered at: Sydney

Delivered on: 16 March 2016

REPRESENTATION

Counsel for the Applicants: Mr P. D. Reynolds

Solicitors for the Applicants: Fragomen

Counsel for the First Respondent: Mr T. Reilly

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 710 of 2014

SZUBQ

First Applicant

SZUBR

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As Corrected)

Introduction

1. The first applicant is a citizen of China who first arrived in Australia as the holder of a student visa on 4 May 2001. On 19 March 2013 he lodged an application for a protection visa with the Department of Immigration and Border Protection, alleging that he feared persecution in China because of his religious beliefs. The second applicant, who is his wife, was included in that application as a member of his family unit. On 5 August 2013 the first applicant’s application was refused by a delegate of the first respondent (“Minister”). The applicants then applied to the Refugee Review Tribunal (“Tribunal”), a predecessor of the second respondent, for a review of that departmental decision. They were unsuccessful before the Tribunal and have applied to this Court for judicial review of the Tribunal’s decision: item 15AG of sch.9 to the Tribunals Amalgamation Act 2015.

2. In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

Background facts

1. In its decision the Tribunal set out the facts alleged in support of the first applicant’s claim for a protection visa.  As summarised by the Tribunal, the first applicant relevantly made the following claims:

   a)he was introduced to Christianity in 1999.  A pastor gave him a Bible and he also went to the pastor’s house every weekend to study the Bible with other church members;

   b)in 2001 he and seven other church members were arrested for distributing Christian leaflets to his neighbours and he was charged with a “cult crime”.  At the police station he refused to sign any documents and refused to tell the police the whereabouts of other church members.  He was beaten, burnt with a cigarette and pushed through a window.  He was released after a week when his family paid 5000RMB to the authorities;

   c)he applied for a visa to travel to Australia and left China in May 2001.  He returned to China on 27 September 2001;

   d)in October 2001 he went to a library to study the Bible and search for information to show that house churches were not cults or illegal churches.  When he returned home he was arrested and the police confiscated his books.  One officer, Officer W, warned him that if he went to a house church the police would “find him and put him down”;

   e)he knew he could not stay in China.  He returned to Australia in November 2001;

   f)in September 2002 Officer W and other police officers searched his family home and confiscated some books.  His mother was pushed down some stairs and hurt her head.  His father went to a police station to complain but he did not have enough evidence;

   g)after the raid on their home, his mother’s faith became stronger.  She conducted church gatherings at the family home and joined many Christian activities.  In December 2005, while his mother was holding a gathering, the police attended and arrested her and her fellow church members.  His mother passed out as a result of being mistreated in detention and was sent to hospital for treatment;

   h)in December 2011 his parents visited Australia and he gave them some Christian booklets which were in English.  On their return to China his mother was questioned by customs officials for more than an hour.  She could not understand English so she could not explain the meaning of the booklets;

   i)after the customs officials found out the booklets were about Christianity, his mother was taken to a police station where Officer W was put in charge of her case.  She was interrogated and mistreated and told the police that he had given her the booklets;

   j)after Officer W found out that his mother was a member of a house church, she was charged with a “cult crime” and was detained for nearly a month.  Officer W told his father that the first applicant’s mother believed in a cult and that he (the first applicant) was a spy and secret agent for Australia who was against the Communist Party and the Chinese government.  Officer W also said he was a cult leader, extremely dangerous and that the police would arrest him; and

   k)he and the second applicant had been regularly attending a church in Australia since 2007.

2. The applicants provided the following documents in support of their application:

   a)a letter dated 5 August 2001 addressed to the first applicant from his mother advising him that after he left for Australia Officer W and his assistants had attended the family home asking about his whereabouts;

   b)a letter dated l0 December 2001 addressed to the first applicant from his mother stating that she had become a Christian because of his influence;

   c)a letter dated 27 October 2002 addressed to the first applicant from his father telling him about Officer W’s search of their home in September 2002 and his mother’s subsequent Christian activities.  The first applicant’s father stated that they intended to move to avoid Officer W;

   d)a letter dated 29 December 2005 addressed to the first applicant from his father stating that they had moved houses and were in a comparatively safer place.  The first applicant’s father also referred to the first applicant’s mother’s arrest and hospitalisation.  He stated that they intended to move house again;

   e)a letter dated 18 April 2012 addressed to the first applicant from his parents advising him of his mother’s interrogation and arrest on their return to China after visiting him.  The first applicant’s parents stated that Officer W had told the first applicant’s father that he should return to China and give himself up otherwise he would be arrested on his return;

   f)a letter of support dated 22 March 2013 from two people (“XL and YC”) who claimed to be Christians from the local family church in China.  The writers stated that in October 2001 the first applicant had been severely prosecuted by the police and that in September 2002 his mother was pushed down by the police.  The writers also stated that in December 2005 the police conducted a raid when they were holding a Bible study class at the first applicant’s family home;

   g)a letter dated 24 April 2013 from YC, who claimed to have visited the first applicant in police detention in October 2001 and stated that the first applicant’s mother had been detained in 2005 and again in December 2011;

   h)a letter dated 26 April 2013 from XL claiming that he had been arrested with the first applicant in 2001;

   i)a letter from a person who claimed to have met the first applicant at a small church in Concord, a suburb of Sydney, in 2001 and stated that the first applicant had spoken about his suffering while in China;

   j)a letter from a person who claimed to have known the applicants for six years, having met them at a church in Strathfield, also a suburb of Sydney.  The person claimed to have heard about the first applicant’s suffering in China;

   k)a letter from the minister at the Campsie Community Church stating that the applicants had first attended the church in 2007 and had become an integral part of the church.  The minister stated that the applicants regularly attended Friday night Bible study and Sunday services;

   l)letters of support from two members of the Campsie Community Church; and

   m)hospital fee receipts from 2005 and hospital records indicating that the first applicant’s mother was hospitalised in September 2002.

3. The applicants’ representatives also provided to the Tribunal written submissions prior to and following its hearing.

The Tribunal’s decision and reasons

1. After discussing the claims made by the first applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicants are persons to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”) or s.36(2)(aa) of the Act. The Tribunal’s decision was based on the following findings and reasons.

2. The Tribunal did not find the first applicant to have been a credible witness.  It considered significant aspects of his evidence contradictory and highly improbable and was not satisfied that he had adequately explained inconsistencies and inadequacies in his evidence.  The Tribunal concluded that the first applicant had fabricated his claims that he and his family had attracted the adverse attention of the Chinese authorities because of their involvement in underground religious activities.  It therefore did not accept any of the first applicant’s claims concerning events he claimed had occurred in China.  In rejecting the first applicant’s claims about events in China:

   a)the Tribunal found that the fact that the first applicant had remained in China for five months after he was first arrested suggested he did not have a genuine fear of persecution.  It noted that the first applicant had not claimed to have had any problems with the authorities after his release and said that it was only after he left China that the authorities visited his family home.  The Tribunal found the alleged timing of the authorities’ renewed interest in the first applicant contrived and unlikely;

   b)the Tribunal also found that the first applicant’s return to China in September 2001 suggested he had not had a genuine fear of persecution at that time.  It found the first applicant’s evidence that he had returned to China because he had been worried about his parents, whom he thought had disappeared after they did not answer his telephone calls, improbable and unconvincing;

   c)the Tribunal noted that the first applicant had claimed to have been accused of being a leader of an evil cult but found that difficult to reconcile with his religious activities in China.  In that regard, it found the first applicant’s evidence concerning his religious activities in China vague and unconvincing.  It referred to his evidence at its hearing that he had started attending church after meeting a Christian in his school library, that at that time he had not thought it was illegal and that he had not been baptised.  Given the first applicant’s youth and relatively recent involvement in the church at the time, the Tribunal found it difficult to understand why the authorities would have accused him of being the leader of an evil cult and considered his evidence of detention and torture contrived.  The Tribunal also found the first applicant’s evidence about his mother’s religious activities vague;

   d)the Tribunal found the first applicant’s claims concerning the alleged high level attention he and his mother had attracted from the authorities because of their religious activities difficult to reconcile with available country information.  It referred to country information stating that unregistered house churches should not be equated with groups declared to be evil cults and that, in practice, unregistered religious groups were generally treated with a degree of tolerance.  It also noted that country information indicated that leaders of house churches, rather than ordinary members, were most at risk of harm and, in those circumstances, had difficulty accepting that the first applicant and his mother would be accused of being leaders of an evil cult;

   e)the Tribunal noted that the first applicant’s evidence did not indicate that he or his mother had ever been subject to court proceedings in relation to being charged with being leaders of an evil cult.  It found the fact that they, and his father, had all been able to travel in and out of China cast doubt on the first applicant’s claimed fears of harm and his claims that his mother had suffered harm in the past and indicated that neither he nor his family had been of adverse interest to the Chinese authorities.  It also found that the fact that the first applicant’s mother had returned to China and did not appear to have considered applying for protection or remaining in Australia suggested that she did not have a fear of harm in China.  The Tribunal also found that the first applicant had not provided a satisfactory explanation as to why he had given his mother a bundle of religious pamphlets in English, particularly as he claimed that she did not speak English and had previously been persecuted by the Chinese authorities for her religious activities;

   f)the Tribunal noted that the applicants’ representatives had claimed in post hearing submissions that the first applicant had been targeted by Officer W because his family was wealthy, that Officer W had continued to harass his family in an attempt to extort money from them and that he and his mother had not really been charged with being leaders of an evil cult but had been threatened with being charged.  The Tribunal found that the claim that Officer W had been motivated by the first applicant’s family’s wealth, as opposed to their religious activities, was only raised after it had expressed concerns about the plausibility of the alleged charges and was undermined by the first applicant’s written claims in which he had repeatedly claimed that Officer W was motivated to harm him because of his religious activities; and

   g)the Tribunal found that the fact that the first applicant did not apply for a protection visa until 2013, well over a decade after he arrived in Australia, strongly suggested that he did not have a genuine fear of persecution.  It found unconvincing the first applicant’s evidence that he had not known about protection visas and had thought that only Falun Gong practitioners could seek protection.  The Tribunal noted that at its hearing the first applicant had said that he had believed he could obtain a visa through other means and had not wanted to apply for a protection visa.  It also rejected the explanation that the applicants’ English was not good, noting that documentary evidence submitted to it indicated that the second applicant had completed her higher school certificate in Australia in 2006 and had been successful in obtaining a skills assessment.  It also noted that the first applicant spoke English and had given evidence that he used the internet.  In those circumstances, the Tribunal did not believe it was plausible that the first applicant had not known that he could seek protection in Australia and concluded that his delay in applying for a protection visa suggested he did not genuinely fear returning to China.

3. The Tribunal also had significant concerns about the credibility of the documentation the applicants had provided concerning the first applicant’s alleged persecution in China.  In that regard:

   a)the Tribunal noted that the letter from YC stated that the first applicant’s mother had been arrested in 2005 at YC’s house whilst the joint letter from YC and XL stated that she had been arrested at her own home.  The Tribunal was concerned that despite the letters being dated in 2013 the first applicant had claimed to have last had contact with those people ten years earlier and could not recall when his mother had last had contact with them.  When questioned further, the first applicant then said that he had asked his parents to find people who could provide material supportive of his application.  The Tribunal found that that evidence suggested that the letters had been manufactured to support the first applicant’s protection visa application.  It noted that in post hearing submissions the applicants’ representatives submitted that YC and XL were available to give evidence and that a certified copy of the envelope the first applicant’s mother had used to send the letter was available.  However, the Tribunal did not accept that viewing the envelope or taking evidence from YC and XL would resolve its concerns about the first applicant’s credibility;

   b)the Tribunal noted that while the letters from the first applicant’s parents and from persons who claimed to have met him at churches in Strathfield and Concord purported to corroborate his claims that he and his family had been persecuted in China, given its significant concerns about his credibility, it found that they lacked probative value and gave them little weight;

   c)while the Tribunal accepted that the applicants had been attending the Campsie Community church and were well regarded by their minister and fellow church members, it found that the supporting documentation from their fellow church members did not overcome its significant concerns about the credibility of the first applicant’s claims that he and his mother had been persecuted in China; and

   d)the Tribunal noted that it had considered photographs provided by the first applicant showing his injuries.  However, it found that the photographs did not reveal how he had obtained the injuries and therefore did not accept that they assisted his case.  It also did not accept that the documents in relation to the first applicant’s mother’s hospitalisation corroborated the first applicant’s claims, noting that they only established that his mother had been in hospital, not why she had been hospitalised.

1. In relation to the first applicant’s claims of Christian activities in Australia and his claims that he would continue to attend church if he returned to China:

   a)the Tribunal was not satisfied that the first applicant had attended churches in Concord and Strathfield, noting that his evidence on when he had started attending those churches was vague.  In relation to the letters in support of his claim to have attended those churches, the Tribunal noted that the letter from a member of the Concord church was not from a person with an official position in that church.  It also noted that the letters referred to the first applicant having spoken about the harm he suffered in China but, given its finding that the first applicant had not suffered such harm, it gave little weight to the letters.  The Tribunal found that while it was possible that the first applicant had visited churches in Sydney before 2007, his visits had not been regular and had not been motivated by any religiousness on his part;

   b)the Tribunal accepted that the first applicant had been attending a church in Campsie and that he had done so otherwise than for the sole purpose of advancing his claims for protection.  It accepted that he was a Christian and that he would continue to attend church if he returned to China;

   c)the Tribunal noted that the first applicant had claimed that he could only attend an unregistered church in China, first because he had attended one in the past and secondly because he could not tolerate a registered church where the Communist Party put itself above God.  In rejecting that claim, the Tribunal noted that it had not accepted the first applicant’s claims to have attended church in China in the past and to have suffered harm as a result.  The Tribunal also noted country information indicating that there was no real chance that ordinary church members who attended unregistered churches would face serious harm for doing so.  It therefore found that if the first applicant were to attend an unregistered church, he would do as an ordinary member and would not face harm as a result.  In relation to a submission that even though he would be an ordinary church members the first applicant was at heightened risk because of Officer W’s interest in him, the Tribunal noted that it had rejected his claim to have attracted the adverse attention of the authorities or Officer W;

   d)the Tribunal was not satisfied, having regard to the first applicant’s credibility, that he had any genuine objection to attending a registered church.  It noted that although the first applicant claimed that the teachings in registered churches were different, country information indicated that there were no great theological differences between the registered and unregistered churches and that many Christians in China attended both.  The Tribunal therefore found the first applicant’s objections to attending a registered church were contrived and lacked credibility.  It found that if he returned to China he could, and would be willing, to practise his faith in a registered church; and

   e)the Tribunal did not accept that the applicants would face harm on their return to China for their church attendance in Australia.  It did not accept that there was anything in the first applicant’s established pattern of religious practice in Australia which would lead to him suffering harm if he returned to China and continued to practise his faith in a registered church.

2. The Tribunal noted that in pre-hearing submissions the applicants’ representatives had claimed that the first applicant would suffer harm in China as a failed asylum seeker and because of his anti-government and pro-western opinion and that in post-hearing submissions it was claimed that he was concerned about being a failed asylum seeker because of threats made by Officer W.  The Tribunal noted that the first applicant did not himself raise those claims at its hearing and said that he had not been involved in any political activities in Australia.  It also noted that the country information cited by the applicants’ representatives did not support a conclusion that the first applicant would suffer harm for being a failed asylum seeker.  The Tribunal therefore did not accept that the first applicant would face harm for any actual or perceived political opinion.

Proceedings in this Court

Ground 1

1. In the first ground of their amended application the applicants alleged:

   1.The Tribunal engaged in jurisdictional error by asking itself the wrong question or by failing to apply the correct test.

2. According to the applicants’ particulars, the Tribunal was seven times misdirected as to the law.

3. The first misdirection was particularised as follows:

   a.The Tribunal accepted that the first applicant was a Christian and that he would attend Church upon his return to China. 

   Accordingly, the Tribunal was obligated to ask itself how the first applicant would in fact practice [sic] his Christianity upon his return and whether his manner of practice would attract persecution for a Refugees Convention reason. 

   In this regard, the first applicant claimed that he would not practice [sic] at a registered church (eg CB660[26]).

4. The assertion that the Tribunal was obliged to ask itself how the first applicant would practise his religion is not correct.  The Tribunal’s task was to consider the claims made by the first applicant.  Relevantly, the claim implicitly made by the first applicant was that he would attend a house church.  The Tribunal dealt with that claim.

5. The second misdirection was particularised as follows:

   b.The Tribunal, however, asked itself different questions; viz whether the first applicant could ‘tolerate’ attending a Church registered with the Chinese government (e.g. [54]); whether the first applicant had ‘any genuine objection’ to attending a registered Church, having regard to theological similarities between registered and unregistered churches (eg [55]); and whether the first applicant ‘could’ and was ‘willing’ to practice [sic] in a registered church (eg [56]).  In doing so it asked itself the wrong question or failed to apply the correct test.

6. This particular confuses the steps taken by the Tribunal to inform itself on matters of fact with the tests it had to apply to the facts as found.  Relevantly, the Tribunal found that the objections which the first applicant raised to attending a registered church were contrived and lacking in credibility and that, in fact, he had no objection to attending such a church.  Importantly for the particular in question, the Tribunal did not state or even imply that the first applicant could avoid harm by practising his religion in a registered church.  Finding that the first applicant had not been truthful in relation to his objections to worshipping in a registered church did not amount to an expectation that he worship there in order to avoid persecution.

7. The third misdirection was particularised as follows:

   c.The Tribunal also found that the first applicant would not face a real chance of persecution if he returned to China ‘and continues to practice [sic] his faith in a register [sic] church’ (eg [57]).  In doing so, and in asking itself the questions identified in (b) above, the Tribunal, thereby impermissibly imposed a requirement on the first applicant that he practice his faith in a registered church.

8. For the reasons already given this particular does not disclose error on the Tribunal’s part.  Although the passage from the Tribunal’s reasons quoted in this particular might, on its own, suggest that the Tribunal expected the first applicant upon his return to China to practise his religion in a registered church, read in context it should not be understood to imply that.  Only three paragraphs earlier the Tribunal had found that the first applicant could attend a house church without a real chance of persecution.  The Tribunal should therefore not be taken to have been saying in the passage quoted in this particular that the first applicant should attend a registered church in order to avoid persecution of whose occurrence there was no real chance.

9. The fourth misdirection was particularised as follows:

   d.Further and in the alternative, in asking itself whether the first applicant had a genuine objection to attending a registered church, the Tribunal exceeded its jurisdiction.  The Tribunal did not have jurisdiction to:

   i.Make itself an arbiter as to what amounted to a legitimate reason for refusing to practice [sic] one’s faith in the manner dictated by the Tribunal;

10. The burden of this particular appears to be that the Tribunal purported to determine what the first applicant ought to have accepted in terms of religious doctrine and therefore which church he ought to have been willing to attend.  Such an interpretation seriously strains the words of the Tribunal’s reasons.  The Tribunal did observe to the first applicant during the course of its hearing that it had information which indicated that the theology of registered (Protestant) churches in China was not very different from that of their unregistered counterparts but that was no more than a matter put to him in the context of his claim to object to the liturgy or doctrine of registered churches although having never actually attended one.  It was open to the Tribunal to rely on such information when concluding that the first applicant’s objections to attending a registered church were contrived and lacked credibility.  However, of more significance to this particular is the fact that the discussion of these matters followed the Tribunal’s express finding that, because the first applicant had not told it the truth on other matters, it did not believe him when he said that he objected to attending a registered church.  The matters to which the Tribunal referred specifically in connection with the first applicant’s objections to attending a registered church were no more than additional support for a conclusion already reached by another route.

11. The fifth misdirection was particularised as follows:

    ii.Exclude, as a legitimate reason for not practicing [sic] in a registered church, that the first applicant could not tolerate attending a church in which the Communist party put itself on top of God and that the involvement of the Communist party in the church was a corrupting influence (Tribunal’s Decision, [53]; CB660[26] and [28]);

12. The Tribunal did not reject the involvement of the Chinese Communist Party in Chinese registered churches as a possible, legitimate objection to worshipping in such a church, it just did not believe the first applicant when he claimed that it was important to him.

13. The sixth misdirection was particularised as follows:

    iii.Impose a requirement that the first applicant practice [sic] his faith in an institution of theological similarity (as determined by the Tribunal) rather than in the manner in which the first applicant wished to practice [sic] his faith;

14. The Tribunal did not impose such a requirement.  It concluded that the first applicant could practise his religion in a house church without a well-founded fear of persecution and did not believe his claims to object to worshipping in a registered church.  It did not find that the first applicant could avoid persecution in China if he worshipped in a registered church or require that the first applicant do this upon his return to China in order to avoid persecution.

15. The seventh misdirection was particularised as follows:

    e.In relation to the complementary protection claim, the Tribunal adopted its reasoning in respect of the Refugees Convention claims and its reasoning in respect of the complementary protection claim is (eg [60]), accordingly, likewise affected by jurisdictional error.

16. As the Tribunal’s reasoning in relation to the applicants’ Convention claims canvassed in connection with this ground of the amended application were not erroneous, so its findings on their complementary protection claims were not erroneous either.

Ground 2

1. The second ground of the amended application alleged:

   2.The Tribunal engaged in jurisdictional error in respect of the first applicant’s claim (or component integer thereof) that he could not tolerate attending a church in which the Communist party put itself on top of God and that the involvement of the Communist party in the registered church was a corrupting influence.

2. According to the applicants’ particulars of this allegation, the Tribunal’s decision was affected by jurisdictional error in two respects.  These errors were particularised as follows:

   a.It was part of the first applicant’s claim that he could not tolerate attending a church in which the Communist party put itself on top of God and that the involvement of the Communist party in the registered church was a corrupting influence (at [53]; and CB660[26] and [28]). The Tribunal either:

   i.      Did not deal with this component of the first applicant’s claim (or alternatively did not do so in a manner consistent with its obligations at law); or

   ii.     To the extent to which it dealt with this claim (especially at [55]-[56]), its rejection of this claim was manifestly illogical or unreasonable.

3. This allegation exaggerates the significance of the issue of the first applicant’s possible attendance at a registered church were he to return to China.  It was not part of the first applicant’s claims that he could not attend a registered church; that was simply his response to the Tribunal’s suggestion that it was an option open to him.  The first applicant’s claim had always implicitly been that he would attend a house church - as he alleged he had done before he came to Australia - and the Tribunal found that he would be able to do that without fear of persecution.  In any event, as the reasons given in relation to the first ground of the application make clear, the Tribunal did consider the first applicant’s objections to attending a registered church and rejected them on credibility grounds. 

4. The applicants submitted in relation to the second element of this allegation that if the Court found that the Tribunal had considered the country information quoted in its reasons concerning the nature of registered churches in China, but rejected or discounted it as a valid reason for not worshiping at a registered Church, then the Tribunal’s reasons were manifestly illogical or unreasonable.  This argument erects a finding which the Tribunal did not make, that the purported bases for the first applicant’s claimed objection to worshipping in a registered church, if believed, might not be a proper basis for such objection, and ignores the finding which it did make, which was that it did not accept the genuineness of the first applicant’s claimed objections to such worship.

5. The applicants’ written submissions went on to make the following statement:

   [The Tribunal’s reasons on this point were illogical because] the Tribunal proceeded on the basis that only theological differences were of relevance when assessing the validity of the Applicant’s objection to attending an unregistered Church, and that beliefs that Christianity should not collaborate with a Chinese government or that the Chinese government should not control the Church were ‘invalid’.

6. The Tribunal did no such thing and there was no reasonable basis to make that submission.

Ground 3

1. The third ground of the amended application alleged:

   3.The Tribunal engaged in jurisdictional error in respect of its finding that the chances of the first applicant, as an ordinary ‘house church’ practitioner, suffering persecution should he return to China were remote.

2. In the particulars of this ground more errors alleged to have been made by the Tribunal were set out.  The first of these was

   a.The Tribunal failed to ask itself the right question, by only asking itself whether ‘there is’ a real chance of such persecution (at [54]) without also considering whether there was such a chance in the reasonably foreseeable future;

   This assertion is factually incorrect.  The Tribunal expressed its conclusions by reference to the reasonably foreseeable future in paras.57 and 58 of its reasons.

3. The second was:

   b.The Tribunal failed to take into account, or overlooked, the content of the country information before it (including country information accepted by it) centrally relevant to this issue, such information being a core aspect of the lawful formation by the Tribunal of a state of satisfaction.

   It is difficult to conclude that the Tribunal failed to consider information which it quoted at paras.24-26 of its reasons and I am not persuaded that the evidence supports a finding that it did.  The applicants’ allegation is really no more than a disagreement with a finding of fact which was within jurisdiction.

4. The third was:

   c.The Tribunal based its finding on a false dichotomy unsupported by the evidence before it (namely a dichotomy between leaders and ordinary worshipers of unregistered churches).

   The dichotomy to which the applicants referred was one derived from information before the Tribunal, specifically the delegate’s reasons for decision which were cited in footnote 23 of the Tribunal’s decision record.  It was, consequently, open to the Tribunal to conclude that leaders and ordinary members of unregistered churches faced different degrees of risk of persecution.

Ground 4

1. The fourth ground of the amended application alleged:

   4.The Tribunal engaged in jurisdictional error in respect of its finding rejecting the first applicant’s credibility.

2. A further three errors by the Tribunal were propounded in the particulars of this allegation.  The first was:

   a.In rejecting the first applicant’s credibility (specifically, in finding that the first applicant’s claims were contrived and implausible), the Tribunal found that the country information tended to indicate that it was leaders of house churches rather than ordinary members who were most at risk of harm (at [35]).  This aspect of its reasoning is affected by jurisdictional error in that:

   i.      The right question for it to ask itself was whether ‘ordinary house church’ practitioners faced a well founded fear of persecution for a Convention reason; not whether a particular subset of practitioner (ie leaders) were at a greater risk of harm compared to ordinary practitioners;

   The Tribunal’s reasoning on this issue appears to have been that, according to the country information, if anybody in the first applicant’s home area was going to be persecuted for Christian observance it would be the leaders of unregistered churches.  The implication to be drawn from that conclusion, which it appears the Tribunal did draw, was that others, such as the first applicant, did not face a real chance of being persecuted.  Such reasoning did not represent a failure to apply the correct test.  It was a process of reasoning by which the Tribunal could find facts by reference to which the relevant question could be asked and answered.

3. The second propounded error was:

   ii.     To the extent that it correctly dealt with the situation of ordinary practitioners, the first applicant repeats ground 3 above;

   For the reasons given earlier in relation to the third ground of the amended application, this particular does not disclose jurisdictional error on the Tribunal’s part.

4. The third alleged error was particularised as follows:

   b.In rejecting the first applicant’s credibility (specifically, in finding that the first applicant’s claims were difficult to reconcile with available country information), the Tribunal held that unregistered house churches should not be equated with groups declared by the Chinese government to be evil cults (at [35]).  In so doing, the Tribunal failed to take into account, or overlooked, the content of the country information before it centrally relevant to this issue, such information being a core aspect of the lawful formation by the Tribunal of a state of satisfaction.  Specifically, the Tribunal overlooked page 147 paragraph 3 of the US Commission of International Religious Freedom 2012 Annual Report (accepted by it without qualification at [25]), which stated:

   Members of unregistered Protestant groups that the government arbitrarily deems ―evil cults were the most vulnerable to detention and harassment.

1. The applicants alleged that a failure to consider information contained in a report cited by the Tribunal could be inferred from a factual finding which was not inconsistent with information in that report.  The information was that people would be vulnerable to detention and harassment if they were members of Protestant groups which had been declared evil cults and the relevant Tribunal finding was that:

   … there are reportedly between 50 and 90 million Protestants in China, most of whom worship at unregistered churches rather than registered churches. Unregistered house churches should not be equated with groups which have been declared ‘evil cults’ and that, in practice, unregistered religious groups are generally treated with a certain level of tolerance. (references omitted)

   That statement does not suggest that the information to which the applicants referred was overlooked.  In fact, it appears to have been considered and taken into account in the passage quoted where the Tribunal expressed the unsurprising conclusion that not all of the unregistered Chinese house churches attended by their fifty to ninety million adherents would have been deemed to be evil cults.

Ground 5

1. The fifth ground of the amended application alleged:

   5.The Tribunal engaged in jurisdictional error by refusing to, or by failing to exercise its discretion to, hear evidence from [XL] and [YC] (at [46]).

2. The first and second particulars set out the factual context of the allegation:

   a.The first applicant gave to the Tribunal letters said to be from [XL] and [YC] that corroborated central aspects of the first applicant’s claim; however, the Tribunal doubted the ‘credibility’ of these letters.

   b.The first applicant submitted that [XL] and [YC]  were available to give evidence; however, the Tribunal refused, or failed to exercise its discretion to hear their evidence on the basis that their evidence would not resolve its concerns about the credibility of the first applicant’s claims.

3. In the third particular of this allegation it was said:

   c.Its decision in this regard was manifestly unreasonable or illogical and/or amounted to a denial of procedural fairness (in the sense contemplated by s 425 of the Act or Minister for Immigration and Citizenship v Li (2013) 297 ALR 225).

4. The applicants correctly recognised that it is only once a miscarriage of discretion is identified that attention turns to whether there has been a consequential denial of procedural fairness amounting to jurisdictional error: Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at 448 [50] – [51].

5. The Tribunal concluded that the letters purportedly authored by the two individuals identified by the applicants had been manufactured and so it decided to not take evidence from them.  The applicants submitted that the Tribunal’s exercise of its discretion whether to call the two individuals miscarried on the basis that it was illogical or unreasonable of the Tribunal to conclude that the letters were manufactured when it had not heard from their purported authors. 

6. The Tribunal’s finding that the letters were manufactured arose out of the first applicant’s evidence that he had not had contact with the letters’ authors for over a decade, his evidence that he could not remember when his mother had last been in contact with them and what the Tribunal characterised as his shifting evidence in relation to the letters.  Although the Tribunal exposed its reasoning and did not leave it to be inferred, the applicants did not support the assertions they made in this part of their submissions with an argument based on authorities such as Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353, preferring instead to rely on Minister for Immigration & Citizenship v Li (2013) 249 CLR 332. However, as the Full Court of the Federal Court said in Minister for Immigration & Border Protection v Singh:

   …we are inclined to the opinion that, where there are reasons for the exercise of a power, it is those reasons to which a supervising court should look in order to understand why the power was exercised as it was. The “intelligible justification” must lie within the reasons the decision-maker gave for the exercise of the power — at least, when a discretionary power is involved. That is because it is the decision-maker in whom Parliament has reposed the choice, and it is the explanation given by the decision-maker for why the choice was made as it was which should inform review by a supervising court. It is not, as in House v The King (1936) 55 CLR 499, on an appeal from an exercise of a judicial discretion, for the Court to re-exercise the discretion. If a supervising court goes outside the reasons given by a decision-maker for another justification for the exercise of power, that Court might then be seen to be placing itself in the position of the repository of the power and therefore acting impermissibly. Where there are reasons, either the reasons given by the decision-maker demonstrate a justification or they do not. It would, we think, be a rare case where the reasons demonstrate a justification but the ultimate exercise of the power would be seen to be legally unreasonable. (at 446-447 [47])

7. Even though the applicants did not address the Tribunal’s express reasoning it must be considered.  I find in that connection that, given the first applicant’s evidence on the topic of the letters and their authors, it was not illogical or unreasonable of the Tribunal to conclude that the letters were not genuine and that nothing useful would be gained from speaking to their purported authors.  Because the applicants’ argument did not address the Tribunal’s express reasoning they also did not address the possibility that, although the Tribunal’s reasons demonstrated a justification for the manner in which it exercised its discretion, the ultimate exercise of power was nevertheless unreasonable, preferring to focus solely on the exercise of power.  In substance, that submission invited the Court to disagree with the decision made by the Tribunal and to re-exercise the discretion, something which the Court cannot do.

8. The applicants also argued in their written submissions:

   … in terms of procedural fairness, to determine that two witnesses were incapable of doing or saying anything that could dissuade the Tribunal from a view that their evidence was not to be accepted and that the Applicant had fabricated their evidence was indicative of bias or an apprehension of bias or a failure to give the Applicant a hearing in accordance with section 425. It is, with respect, not a procedurally fair approach to decline to hear from witnesses on key issues (particularly on a serious issue such as a fabrication of evidence, which is a finding that should only be made cautiously) because of the Tribunal’s view that it was not minded to accept their evidence.

9. The suggestions of bias made in the written submissions were not pressed with any vigour and appear to have been no more than rhetorical flourish. Given the seriousness of such assertions, it is surprising that the submission was expressed as it was. The facts relevant to this allegation have already been discussed in the context of illogicality and unreasonableness and do not support a finding of bias, whether actual or apprehended. The applicants did not make clear the basis of their reference to s.425 of the Act but it might be noted that the Tribunal did not prevent the applicants from adducing evidence from the purported authors of the letters. Absent any elaboration of this allegation I am not persuaded that any jurisdictional error has been demonstrated in relation to it.

10. As a result, the allegations made in, and in connection with, the third particular have not been made out.

11. In the fourth particular of this allegation it was said:

    d.Further or in the alternative, by failing to call [XL] and [YC], the Tribunal engaged in jurisdictional error by failing to make an obvious inquiry relevant to a critical fact.

12. In pressing this particular the applicants relied on the following passage from Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123:

    The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. (at 1129 [25])

    Referring to that passage the applicants submitted:

    Although the High Court did not find such an error in that case, it was accepted that a failure to make an obvious inquiry could give rise to jurisdictional error based on three elements: (a) that there was an obvious inquiry to be made; (b) that the said inquiry concerned a critical fact; and (c) the existence of the said critical fact was easily ascertained.

13. That submission overlooked the requirement that there be demonstrated between the failure to make the postulated enquiry and the outcome of the review a link such that it can be said that, because it has not undertaken the enquiry, the Tribunal did not discharge its duty to review.  In SZIAI there was no such link partly because:

    … there was nothing on the record to indicate that any further inquiry by the Tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the Tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the Tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. (at 1129 [26])

14. Similarly in this case, the applicants did not adduce any evidence which would have “indicate[d] that any further inquiry by the Tribunal, directed to the authenticity of the [letters], could have yielded a useful result”.  As Katzmann J put the issue in Minister for Immigration & Border Protection v SZRTF [2013] FCA 1377:

    In other words, there was no material to indicate what information might be elicited if the tribunal were to undertake the inquiry which was said to be critical to the validity of the decision.  (at [47])

15. The applicants argued in supplementary written submissions that “where there is a denial of procedural fairness, it is well established that it is not necessary for an applicant to prove what would have been said or done so as to affect the outcome of the proceedings” and that a failure to make an enquiry which ought to have been made “is a failure by the Tribunal to carry out its procedural obligations pursuant to the statutory regime established by the Act”. To the extent that the latter statement refers to the Tribunal’s obligation to conduct a review, it is not correct. The duty to review is a substantive not a procedural obligation. Consequently, cases such as Stead v State Government Insurance Commission (1986) 161 CLR 141, NAIS v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 470 and NBNB v Minister for Immigration & Border Protection (2014) 220 FCR 44, which were cited by the applicants in their supplementary submissions, are not directly relevant. To the extent that the supplementary submissions might be suggesting that a denial of procedural fairness could result in the “decision being affected in some other way that manifests itself as jurisdictional error”, the second element of the test of error discussed at [25] of SZIAI, the applicants failed to identify why a lack of independent enquiry by the Tribunal amounted to a denial of procedural fairness. In this connection it is helpful to note that to the extent that the Tribunal’s procedural fairness obligations have been codified in the provisions of div.4 of pt.7 of the Act, no duty to make enquiries is prescribed there, and to recall that in SZIAI it was said:

    Mason CJ and Deane J in Teoh … rejected the proposition that failure by a decision-maker to initiate inquiries could constitute a departure from common law standards of natural justice or procedural fairness. It is difficult to see any basis upon which a failure to inquire could constitute a breach of the requirements of procedural fairness at common law.  (at 1128-1129 [24])

16. No other basis for a finding of jurisdictional error for failure to make enquiries was advanced in the context of this particular.

17. Finally, in their supplementary submissions the applicants argued that if it is established that the Tribunal had failed to make an obvious enquiry concerning an easily-ascertained but critical fact, the Court should grant relief, subject to a discretionary power to refuse relief if making orders would be an exercise in futility.  The latter point can be accepted, because of the discretionary nature of the relief sought, but not the former.  Even if it is established that the Tribunal failed to make an obvious enquiry concerning an easily-ascertained but critical fact, relief will not be available pursuant to the first element of the test articulated at [25] of SZIAI unless it is also established, as a matter of fact, that the absence of enquiry supplies a “sufficient link to the outcome” to constitute a failure to review.  In that connection it needs to be kept in mind that it is for an applicant to put his or her case to the Tribunal and that it is generally no part of the latter’s role to make up for deficiencies in an applicant’s presentation or arguments.  Consequently, it will be a rare case in which the duty to review will require the Tribunal to make a particular enquiry.  In this case the applicants did not seek to demonstrate why the Tribunal’s lack of enquiry supplied a sufficient link to the outcome of its consideration as to constitute a failure to review.  Consequently, no link of that sort has been made out.

Ground 6

1. Ground six of the amended application alleged:

   6.The Tribunal engaged in jurisdictional error by failing to comply with its obligations under s 425 of the Act, thereby denying the first applicant procedural fairness, or by failing to make an obvious inquiry relevant to a critical fact.

2. The first three particulars of the allegation set out its factual context:

   a.The first applicant submitted a letter from [XLY] and [ZYM], who were said to be church members from a small church in Concord and the Chinese Christian Church in Strathfield, in which they confirmed the first applicant’s attendance at those churches. This was in support of the first applicant’s account of having attended those churches prior to the Campsie Community Church in 2007;

   b.The delegate did not reject the content of these letters or the proposition that the first applicant had attended a small church in Concord and the Chinese Christian Church in Strathfield prior to 2007.  These matters (and the fact that the writers were not officials in the relevant churches) were not issues arising in the Delegate’s Decision;

   c.The following issues, however, arose in the review before the Tribunal:

   i.      Whether the two letters referred to in (a) above should be given little weight because they were not written by officials of the two relevant churches;

   ii.     Whether the Tribunal was satisfied that the first applicant had attended the two relevant churches as claimed.

3. In the fourth particular it was said:

   d.The Tribunal breached s 425 of the Act by failing to disclose to the first applicant the issues arising in the preceding paragraph (c), thereby failing to give him the opportunity to give evidence and present arguments in relation to the issues arising in the review as required by s 425 of the Act;

4. The letters in question were summarised earlier in these reasons at [5(i) and (j)].

5. The delegate said nothing in his consideration of the applicants’ claims about the letters of XLY and ZYM and whether the first applicant attended churches in Concord and in Strathfield. The Tribunal’s treatment of those letters differed from the delegate’s. However, because the letters were submitted to the Tribunal with the applicants’ advisers’ written submissions of 23 January 2013, any issues concerning their credibility arose afresh because, by being submitted independently to the Tribunal for the purposes of its review, the letters had been put in issue for a second time by the applicants. Similarly the first applicant’s attendance at churches in Concord and Strathfield were also put in issue afresh by being specifically raised by the applicants’ advisers in their 23 January 2013 submissions. As a consequence, no s.425 duty arose in connection with the weight given to the letters or in connection with whether the first applicant attended churches in Concord and Strathfield.

6. In the fifth particular it was said:

   e.Further or in the alternative, by failing to call [XLY] or [ZYM], the Tribunal engaged in jurisdictional error by failing to make an obvious inquiry relevant to a critical fact.

7. For the reasons given earlier in relation to the fourth particular of the fifth ground of the amended application, this particular does not identify jurisdictional error on the Tribunal’s part.

Conclusion

1. Jurisdictional error on the part of the Tribunal has not been demonstrated.

2. Consequently, the application will be dismissed.

I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Date: 16 March 2016

CORRECTIONS

1. Cover sheet and Orders: Page 1, Legislation – insert “Tribunals Amalgamation Act 2015, item 15AG of sch.9”.

2. Cover sheet and Orders: Page 1, Second Respondent – delete “Refugee Review Tribunal” and insert “Administrative Appeals Tribunal”.

3. Reasons for Judgment: Page 1, Second Respondent – delete “Refugee Review Tribunal” and insert “Administrative Appeals Tribunal”.

4. Paragraph 1, line 9 – delete “second respondent” and insert “Refugee Review Tribunal”.

5. Paragraph 1, line 9 – after “(“Tribunal”)” insert “, a predecessor of the second respondent,”.

6. Paragraph 1, line 11 – after “They” insert “were”.

7. Paragraph 1, line 12 – after “decision” insert “:item 15AG of sch.9 to the Tribunals Amalgamation Act 2015”.