SZULN v Minister for Immigration
[2015] FCCA 2455
•11 September 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZULN v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2455 |
| Catchwords: MIGRATION – Application to review decision of Refugee Review Tribunal (Tribunal) – whether Tribunal conducted review in circumstances as to reasonably give rise to apprehension of bias – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa) |
| SZHIS v Minister for Immigration and Multicultural Affairs [2006] FCA 1641 SZOUO & Ors v Minister for Immigration & Anor [2015] FCCA 1430; (2015) 297 FLR 190 SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 SZSNU v Minister for Immigration & Anor[2013] FCCA 1219 |
| Applicant: | SZULN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1479 of 2014 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 24 March 2015 |
| Delivered at: | Sydney |
| Delivered on: | 11 September 2015 |
REPRESENTATION
The Applicant appeared in person assisted by an interpreter
| Solicitors for the Respondents: | Ms K Hooper of DLA Piper |
ORDERS
The application is dismissed.
The applicant pay the first respondent’s costs.
The Administrative Appeals Tribunal be substituted for the Refugee Review Tribunal as the second respondent.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1479 of 2014
| SZULN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, who is a citizen of the People’s Republic of China (China), seeks judicial review of a decision of the second respondent (Tribunal) to affirm the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection visa.
The proceedings were commenced by the applicant through a legal representative. By the time of the hearing, the legal representative ceased to act on behalf of the applicant, and the applicant represented herself. Although the applicant raised a number of grounds for challenging the decision of the Tribunal, the principal ground on which the applicant relied at the hearing was prejudgment by the Tribunal.
The asserted factual premises of that ground are that:
a)the Tribunal member asked the applicant extensive questions about her knowledge of her Christian faith;
b)the applicant answered those questions correctly, thus demonstrating knowledge of her Christian faith; and
c)the Tribunal held, without any basis, that the applicant’s knowledge of Christianity was superficial, lacked spontaneity, and constituted the mere recital of memorised information.
The applicant also submitted that the Tribunal’s conclusion that the applicant’s knowledge did not manifest a genuine belief in Christianity was illogical.
Applicant’s claims for protection
The applicant arrived in Australia in October 2009 as a student guardian of her son. In December 2009 the applicant discovered her husband, who had remained in China, was having an affair. In January 2010 the applicant was introduced to a church in Dee Why. The applicant became a devout Christian, and was baptised on 2 December 2010. In February 2011 the applicant and her husband reconciled. The husband, together with a friend of the applicant, attended an underground church in China.
In December 2011 the applicant returned to China and attended the underground church. After she returned to Australia in January 2012, the applicant sent Christian publications to the underground church in China. In October 2012 the applicant’s friend was arrested for transferring illegal Christian publications. The applicant’s husband was placed on a black list, but he went into hiding. The applicant’s husband later found out the local church had been discovered by the police, members were arrested, and the applicant’s name was placed on a blacklist.
The applicant claimed she feared she would suffer harm because of her Christian faith if she is required to return to China.
The Tribunal’s reasons
The Tribunal did not accept the applicant had a genuine fear of harm because of her claimed Christian faith. The Tribunal relied on four matters. First, the applicant applied for a Protection visa within seven days of the day on which her student guardian visa was due to expire in circumstances where she would be ineligible to obtain another such visa because her son had turned 18 years of age.[1] The Tribunal was of the view that, had the applicant truly feared harm on the ground of her religion, she would have applied for a Protection visa earlier than she did. Second, the applicant voluntarily returned to China, and then left China, without any difficulty.[2] That demonstrated to the Tribunal that the applicant did not hold any subjective fear of persecution. Third, the Tribunal found that the applicant’s evidence of the circumstances in which she was first introduced to Christianity stretched credulity, and found that the applicant invented her evidence.[3] Fourth, the Tribunal found the applicant’s testimony of her knowledge of Christianity to be “superficial, lacking in spontaneity”, and constituted the “recitation of memorised information”.[4]
[1] CB144, [47]
[2] CB144, [49]
[3] CB144, [51]
[4] CB145, [54]
The Tribunal, therefore, concluded the applicant did not have a well-founded fear of persecution if she returned to China on account of any Christian belief, and that there was no real risk the applicant would suffer significant harm if she returns to China.
Grounds of review
The application for review, which appears to have been prepared by a lawyer, raises three grounds.
Ground 1
The first ground (which, in the application, is stated to be the second ground) is as follows:
The Tribunal’s conduct of proceedings and conclusion was such that a reasonable person would apprehend them to be encumbered by bias, and thus not an effective decision that is protected by section 474 [of the Migration Act 1958 (Cth)].
Particulars
i.The Tribunal “come what may” did not permit the facts as to religious intolerance in Jiangxi province, China to be considered.
iiThe general finding of the Tribunal indicates on the balance of reasonableness that it was “so committed to a conclusion already formed as to be incapable of alteration or of being persuaded differently, whatever evidence or argument may be presented (Minister for Immigration V Jia (2001) 205 CLR 507)
iii The Tribunal quizzed the Applicant at length about her religious knowledge. When she displayed such knowledge, the Tribunal drew a groundless inference of “coaching” or words to that effect. A reasonable person on that basis, would apprehend that, had the Applicant not known such answers, that the Tribunal would have adversely found against her on the ground that “she did not know”.
By this ground, therefore, the applicant claims the Tribunal conducted itself in such a way as to give rise to a reasonable apprehension of bias.
I have considered elsewhere the relevant principles that should guide me when determining a claim of apprehended bias, where I concluded:[5]
In light of these authorities, the apprehension of bias principle as it applies to the Tribunal may be stated as follows: there will be an appearance of bias by the Tribunal if a fair-minded lay observer might reasonably apprehend the Tribunal might not bring an impartial and unprejudiced mind to the resolution of the application the Tribunal is required to review. While the fictional observer is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular Tribunal member, the reasonableness of the apprehension is to be considered in the context of the statutorily mandated functions and procedures of the Tribunal.
[5] SZSNU v Minister for Immigration & Anor [2013] FCCA 1219 at [30]
It would also useful here to refer to the reasons for judgment of Allsop CJ in SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship where his Honour noted that the words “fair-minded” as used in the formulation of the apprehension of bias principle “should be recognized for the central part they play in the assessment” of whether the principle has been breached.[6] His Honour also said:[7]
It is, in the end, an assessment (through the construct of the fair-minded observer) of the behaviour of a person or persons in a position to exercise power over another, and whether that other person was treated in a way that gave rise to the appearance of unfairness being present in the exercise of state power.
[6] [2013] FCAFC 80 at [2]
[7] [2013] FCAFC 80 at [3]
All three particulars to ground 1 relate to the Tribunal’s questioning of the applicant about her religious beliefs. Before I consider each of the particulars, it would be useful to consider what and how the Tribunal asked the applicant about her knowledge of the Christian faith.
The transcript reveals the following: the Tribunal member asked the applicant when she took an interest in Christianity, and why;[8] how Christianity was viewed in the applicant’s workplace in China;[9] whether the workplace actively opposed religion;[10] why it was important to the applicant to be a Christian;[11] what the Lord’s prayer meant to the applicant;[12] when the applicant decided to become a Christian;[13] and where and how the applicant was baptised.[14]
[8] T8.10. A transcript is annexed to the affidavit of Donglin Wu made on 26 May 2014.
[9] T10.3
[10] T10.8
[11] T20.3
[12] T20.8
[13] T21.1
[14] T21.9
The Tribunal member then asked the following questions about the applicant’s knowledge of Christianity: whether the applicant had read the bible;[15] how did the ten commandments come to be on earth;[16] to what did the gospels relate;[17] who wrote the gospels;[18] whether the applicant knew the story of the three wise men;[19] what Christ did at the wedding at Canna;[20] why Christ was sentenced to die on the cross;[21] whether the applicant knew the difference between the rituals and beliefs of the Catholic church and the Protestant church such as the one the applicant was attending;[22] whether there had recently been a significant Christian holiday (that was a reference to Easter);[23] and whether anything happened before Easter.[24]
[15] T20.5
[16] T23.1
[17] T23.5
[18] T23.6
[19] T23.9
[20] T24.10
[21] T25.1
[22] T25.5
[23] T25.6
[24] T25.7
The applicant substantially answered these questions correctly. The Tribunal member then asked the following question:[25]
Now . . . I listened to the departmental interview . . . and although you did project knowledge of Christianity and the Bible at the time . . . a person could . . . come to the conclusion that you’ve been studying this in the (indiscernible) Now you’ve gone through a lengthy process trying to seek [to] secure a permanent visa to Australia, you’ve hired a representative, paid fees . . . so it’s not a (indiscernible) imagination that you wouldn’t memorize the basic tenets of Christianity in order to get a visa, now how can I be . . . sure that you are a genuine Christian and that you haven’t just learnt this to get the visa?
[25] T26.9
I now turn to the first particular of the first ground where it is claimed that the Tribunal did not permit the facts as to religious intolerance in Jiangxi province to be considered. That claim cannot be made out from the transcript of the hearing or from the Tribunal’s reasons, or from any other material before me.
The second particular cannot be made out because it is based on flawed reasoning; it seeks to demonstrate a reasonable apprehension of bias from the Tribunal’s “general finding”. It is impermissible to infer actual or apprehended bias against a party only from the fact that the decision-maker made findings adverse to that party.
The third particular claims that the Tribunal’s questions about the applicant’s knowledge of the tenets of Christianity were such that whatever the answers the applicant would give to them, the Tribunal intended to use the applicant’s answers adversely against her. The basis of that ground is the Tribunal not accepting that the applicant was a genuine Christian, even though the applicant answered all questions substantially correctly.
The applicant made the same submission in a more forceful way in the following passage from a document titled “Statement for Court on 24 March 2015” which the applicant handed up in Court:
At the hearing, I well demonstrated my extensive knowledge of Christianity, and I successfully answered almost every question, which was carefully designed by the Member. Likewise, when the Member found that I answered almost every question correctly, then he simply alleged that my evidence was memorised for the purpose of strengthening my claims. According to the Member’s finding, he must have already told me the questions, which he would ask, before the hearing. Otherwise, how could I memorise the answers or rehearse for the hearing? Is that ridiculous? This is strong evidence that the Member had already made his decision before the hearing and that the hearing became a mere formality.
In effect, the applicant claims that the Tribunal’s not accepting the applicant was a practising Christian in the face of the applicant’s having correctly answered the Tribunal’s questions about Christianity, gave rise to a reasonable apprehension of bias. I do not accept that submission.
Although there are dangers in a Tribunal extensively questioning an applicant about his or her religious beliefs, an applicant’s basic knowledge of the faith and practices of a religion of which the applicant claims to be an adherent, may be a legitimate subject of inquiry by the Tribunal when assessing claims for protection based on religion. And where such subject of inquiry is appropriate, and the result of that inquiry is that an applicant manifests sound knowledge of the religion to which the applicant claims adherence, it may be appropriate in certain circumstances for the Tribunal to consider whether that knowledge has been consciously acquired for the purpose of enhancing a claim for protection. If it were otherwise, the Tribunal would be bound to accept that an applicant holds a religious belief solely from the fact that the applicant has knowledge of the faith and practice of that religion.
It follows, therefore, that the mere fact the Tribunal did not accept the applicant’s knowledge of Christianity as evidence that she has a genuine Christian faith would not give rise to a reasonable apprehension of bias. Given the other matters on which the Tribunal relied for rejecting the applicant’s claims, namely, the applicant’s applying for a Protection visa within seven days of the day on which her guardian visa was due to expire, the applicant’s returning to China and leaving China legally and without hindrance, the applicant having demonstrated a greater knowledge of Christianity before the Tribunal than she demonstrated before the delegate, and what the Tribunal considered to be the incredible nature of the applicant’s evidence of how she first became interested in Christianity in Australia, it was reasonably open to the Tribunal to consider whether the applicant’s demonstrated knowledge of the Christian faith was in fact acquired by the applicant for the purpose of enhancing her application for a Protection visa, or whether it reflected a heartfelt adherence to the Christian faith.
In reaching these conclusions, I have considered my decision in SZOUO & Ors v Minister for Immigration & Anor.[26] That case is distinguishable. First, in SZOUO the complaint was directed to the unfairness of the questions the Tribunal asked. In the case before me, the complaint is directed to the Tribunal’s not accepting the applicant was a genuinely practising Christian, even though the applicant correctly answered the Tribunal’s questions relating to Christianity. Second, the questions the Tribunal asked in SZOUO were more extensive, more particular, and more random than the questions the Tribunal asked the applicant in the case now before me. Third, the Tribunal in SZOUO relied on the applicant’s inability to answer questions as evidence of the applicant’s not being a genuine Christian. In the case before me, the Tribunal did not rely on the applicant being unable to give correct answers to the questions it asked. It is true that the third particular to the first ground claims that “had the Applicant not known such answers, that the Tribunal would have adversely found against her on the ground that “she did not know””. That, however, did not occur; and it is not open to find the Tribunal made any jurisdictional error on the basis of what it would have done had something which did not occur had in fact occurred.
[26] [2015] FCCA 1430; (2015) 297 FLR 190
The first ground, therefore, fails.
Ground 2
The second ground (which in the application is described a ground 3) is as follows:
The Tribunal asked itself the wrong question and thus did not arrive at an effective decision that is protected by Section 474.
Particulars
i.See the Decision generally, and evidence and submissions.
ii.The Tribunal had regard, not to the objective test of whether or not there was a “well founded fear” of persecution on the part of the Applicant, but on her knowledge of Christianity including the denominations of the church.
The essence of the ground appears to be that the Tribunal asked itself the wrong question because the Tribunal did not have regard to whether the applicant objectively had a well-founded fear, but had regard to the applicant’s knowledge of Christianity including the denomination of the church.
There is no substance to this ground. The Tribunal in terms found it was not satisfied there was a real chance that the applicant would suffer persecution in China. The Tribunal’s not being satisfied was based on objective facts such as, for example, the timing of the applicant’s application for a Protection visa, and her travelling to and from China lawfully and without hindrance.
Ground 3
The third ground (which in the application is described a ground 4) is:
The Tribunal breached Section 420 and made jurisdictional error by denying the applicant procedural fairness by reason of their being a reasonable apprehension of bias.
Particulars
i.Failure to give the Applicant the “benefit of the doubt”. See approach generally “to not believe” in the despite verification from her church without giving the Applicant an opportunity to rebut.
The claimed breach of procedural fairness is failure to give the applicant the benefit of the doubt. There is no such element of the duty to accord procedural fairness. The statutory task of the Tribunal is to conduct a review that comes validly before it and to affirm the decision of the delegate if the Tribunal is not satisfied Australia owes the applicant protection obligations, or to make a different decision if the Tribunal is so satisfied. As Jacobson J said in SZHIS v Minister for Immigration and Multicultural Affairs:[27]
It is well established that s 65(1) does not require the decision-maker to reach a decision to refuse to grant a visa only if a particular matter is established. Rather, what is required is a refusal of an application if the decision-maker is not affirmatively satisfied that the criteria for the visa in question have been satisfied; see for example Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73.
[27] [2006] FCA 1641 at [11]
The third ground, therefore, also fails.
Other submissions
At the hearing the applicant made a number of submissions which did not relate to the grounds stated in her application. Some of the submissions are contained in the “Statement for Court on 24 March 2015” to which I have already referred. Apart from the passage from that document set out earlier in these reasons, the document only repeats the matters on which the applicant relied for her Protection visa. Those matters do not raise any arguable claim of jurisdictional error.
At the hearing, the applicant made oral submissions, most of which related to taking issue with findings the Tribunal made. Those submissions do not raise an arguable case of jurisdictional error. In addition, however, the applicant submitted that the Tribunal’s decision not to accept she was a practising Christian was irrational, given that the applicant had correctly answered the Tribunal’s questions about Christianity. I do not accept that submission.
The applicant’s correct answers were only one class of evidence before the Tribunal that was relevant to whether the applicant was a genuinely practising Christian. The Tribunal relied on other matters to which I have already referred – the applicant’s applying for a Protection visa within seven days of the day on which her guardian visa was due to expire, the applicant’s returning to China and leaving China legally and without hindrance, the applicant having demonstrated a greater knowledge of Christianity before the Tribunal than she demonstrated before the delegate, and what the Tribunal considered to be the incredible nature of the applicant’s evidence of how she first became interested in Christianity in Australia. In the light of those matters, it was reasonably open to the Tribunal not to accept the applicant’s knowledge of Christianity as evidence that she was a genuinely practising Christian.
Finally, on 31 March 2015, after the hearing, the applicant filed a document titled “Submissions”. The applicant did not have any leave to file such a document. I will, however, consider its contents.
The applicant raises two grounds in that document. The first is that the Tribunal ought to have given the applicant the opportunity to make submissions on the question of the Tribunal’s reliance on the applicant’s demeanour. This appears to be a reference to the following passage from the Tribunal’s reasons for decision:[28]
The Tribunal observing the applicant’s demeanour in giving her evidence and further noting that she made no reference to the version of events related at hearing to genesis of her claimed religious belief in her protection visa application, finds that the applicant has invented her story about her meeting the elderly couple and was making her story up as she went along in relation to her adoption of Christianity as her religion.
[28] CB144, [51]
There was no obligation on the part of the Tribunal to give the applicant notice of any concerns it had with the applicant’s demeanour.
The second ground relates to questions the Tribunal asked about the applicant not knowing about Palm Sunday when before the delegate, yet knowing about Palm Sunday when before the Tribunal.[29] The applicant said that after her interview with the delegate the applicant asked “the sister from the church, and they told me”.[30] The Tribunal then asked questions about whether the applicant had attended church on Palm Sunday before and after the applicant’s interview by the delegate.[31] The applicant submits that the Tribunal failed to give her notice that it was going to rely on her answers as a reason for not believing the applicant.
[29] T25.9
[30] T25.9
[31] T26.1
This ground does not disclose any jurisdictional error. The Tribunal does not specifically refer to the applicant’s answers about Palm Sunday. In particular, it did not refer to the applicant having given an incorrect answer in relation to Palm Sunday. The Tribunal appears to have accepted that the applicant had knowledge of Christianity. The Tribunal did not accept the applicant was a genuine Christian because it was not prepared to find that the applicant’s knowledge of Christianity manifested a genuine commitment to Christianity. As I have already concluded, it was reasonably open to the Tribunal not to so find.
Conclusion and disposition
None of the grounds of review are made out. I therefore propose to order that the application be dismissed, and that the applicant pay the Minister’s costs.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 11 September 2015
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