SZUMW v Minister for Immigration

[2015] FCCA 1109

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUMW v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1109

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

ADMINISTRATIVE LAW – Allegation that the Tribunal was biased – allegation that the Tribunal’s decision affected by jurisdictional error by reason that a reasonable apprehension of bias attached to it and by reason that the Tribunal applied an incorrect test – allegation that the Tribunal misled the applicant into believing that her evidence was going to be accepted.

Legislation:

Migration Act 1958 (Cth), ss.5E, 65, 91R, 420, 474, 476

SZSFS v Minister for Immigration [2014] FCCA 2878
Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427
SZUZY v Minister for Immigration & Border Protection [2015] FCCA 502

Applicant: SZUMW

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1582 of 2014

Judgment of: Judge Smith

Hearing date: 19 March 2015

Date of Last Submission: 19 March 2015

Delivered at: Sydney

Delivered on: 5 May 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr L. Dennis of Sparke Helmore

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1582 of 2014

SZUMW

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application under s.476 of the Migration Act1958 (“Act”) for review of a decision of the second respondent (“Tribunal”). The Tribunal affirmed a decision of a delegate of the first respondent (“Minister”) to refuse to grant the applicant a protection visa.

Background

1. The applicant is a citizen of the People’s Republic of China who first arrived in Australia on a student visa on 15 June 2008. On 12 March 2013 she lodged an application for a protection visa. She claimed to fear persecution by the authorities in China because of her Christian belief.

2. The applicant claimed that she had been baptised in an underground church when she was 13 years old in August 2001 and had subsequently led other children in the praise of Lord Jesus in hymns every Saturday evening. However, because her church was deemed to be an illegal organisation and all church activities involving children were banned, all the meetings had to be carefully organised and were held at the homes of church brothers and sisters.

3. In April 2009 the applicant’s father was forced to close his business (a snack bar). The applicant’s father joined the applicant’s brother in Inner Mongolia in around September 2010 and co-organised secret church meetings with the applicant’s mother. Although they were very discrete, the authorities in Inner Mongolia were stricter than elsewhere and in January 2013 the applicant’s mother was arrested by the Public Security Bureau (“PSB”). The applicant’s father then organised for the rest of the family to leave immediately but he remained there in hiding until he too was arrested. The applicant claimed that her father and brother had been placed on a PSB blacklist and were being chased by the police “everywhere” including in Fujian.

4. On 2 August 2013 a delegate of the first respondent made a decision to refuse to grant the applicant a protection visa. The applicant applied to the Tribunal for review of that decision.

5. The applicant submitted a statutory declaration dated 17 March 2014 in which she declared that she maintained all the claims made in her protection visa application and, on 1 April 2014, attended a hearing conducted by the Tribunal.

6. On 16 May 2014 the Tribunal handed down its decision to affirm the decision of the delegate.

7. The Tribunal accepted that the applicant was a national of China but found the applicant’s lengthy stay in Australia prior to lodging a protection visa application together with her two returns to China during that period and the renewal of her passport in Australia strongly demonstrated that she did not have a subjective fear of persecution in China.

8. The Tribunal noted that, although the applicant displayed some superficial knowledge of elements of the Old Testament, the Ten Commandments, and some of the individuals referred to in the new Testament and conveyed a greater knowledge of basic elements of Christianity before the Tribunal than she had at the departmental interview, her level of knowledge was insufficient to be persuasive of her being a genuine practising Christian, much less to have been able to provide religious instruction to elder brothers and sisters as a child in China.

9. The Tribunal concluded from her answers and the way in which they were given that the applicant had studied her evidence in preparation for the hearing and that her evidence had been rehearsed and then recited at the hearing. The Tribunal found in light of this that the applicant was not a genuine practising Christian and further that there was no real chance that she would engage in evangelism that would draw the adverse attention of the Chinese authorities.

10. The Tribunal did not accept that the applicant’s mother had been arrested, that her parents and brother had been blacklisted, that the authorities had constantly visited the family home in Fuqing to search it, or that the applicant had been asked to report to the authorities. The Tribunal was not satisfied that the applicant had been involved in any church activities in Australia or China which would attract the adverse attention of the Chinese authorities. Further it was not satisfied, pursuant to s.91R(3) of the Act, that any religious activities engaged in by the applicant were for a purpose other than to strengthen her claim to protection.

11. For those reasons the Tribunal concluded that there was no real chance that the applicant would face persecution in China for reasons of her religion and also that there was no substantial grounds for believing that as a necessary and foreseeable consequence of her being removed from Australia to China there was a real risk that she would suffer significant harm as defined in s.36(2A) of the Act. On the basis of those conclusions the Tribunal was not satisfied that the applicant met the criteria for the grant of the protection visa and affirmed the decision of the delegate.

Consideration

1. The application in this matter was prepared by a solicitor, Mr McArdle. The grounds in it closely resemble grounds in a number of other applications that were also prepared by Mr McArdle and, on one view appear to have been included without regard to the facts of this case. That, in itself, is a matter of some concern. Of further concern is that Mr McArdle ceased to act for the applicant shortly before the hearing. The applicant informed the Court that he told her that this was because her case had little prospects of succeeding. If that were true, it raises the question of why the application was brought in the first place and whether Mr McArdle was involved in an abuse of process. However, neither party has asked me to determine that matter and, in the absence of admissible evidence to establish it, I refrain from doing so.

2. The applicant appeared unrepresented at the hearing and raised an issue that was not in the application, namely, that she had been misled by the Tribunal into thinking that it had accepted her evidence and, on that basis, had refrained from giving further evidence. Mr Dennis, who appeared for the first respondent, did not object to this ground being raised and was able to make submissions in respect of it. For that reason, and as the applicant did not expressly abandon the grounds set out in the application, it is necessary to deal with those in addition to the ground raised at the hearing. It is convenient to deal with the grounds in the application first.

Grounds 1 and 2

1. The first ground in the application is as follows:

   1.The Applicant appeals against, or in the alternative, seeks a declaration as specified above regarding the entirety of the purported privative clause decision of the Refugee Review Tribunal made on 16 May 2014 on the grounds that it was not a decision under the Migration Act 1958.

   Particulars

   i.Section 5 E

   ii.Transcript, whereby that Tribunal “quizzed” the Applicant so as to trip him up, and found that he had “rehearsed” when he displayed knowledge.”

2. Section 5E of the Act sets out the definition of purported privative clause decision for the purposes of the Act. In light of that, and reading the ground broadly (even though it was clearly drafted by a lawyer: see SZSFS v Minister for Immigration [2014] FCCA 2878 at [50]), the only sensible meaning of it can be that the Tribunal was biased or that there was a reasonable apprehension of bias. That conclusion is fortified by the fact that the second particular in the second ground contains essentially the same allegation. For that reason the first ground will be dealt with as a part of the second ground.

3. The second ground asserts that the Tribunal behaved in a manner such as to give rise to a reasonable apprehension that it might have prejudged the review. There are three particulars to the ground, each of which will be dealt with in turn.

4. The first particular alleges that the Tribunal’s “come what may” attitude did not permit the facts as to religious intolerance in China to be considered. This appears to be an allegation that, in its decision, the Tribunal pointedly refused to accept the truth of information concerning the way in which Christian practitioners are treated in China. There are two difficulties with that assertion. First, it was not necessary for the Tribunal to make any finding about the way in which practitioners of the Christian faith are treated in China because it did not accept that the applicant was in fact a practitioner.

5. The second difficulty is that it is impermissible to have regard to the Tribunal’s statement of reasons for the purposes of determining whether there was a reasonable apprehension that the Tribunal may have prejudged the review: Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at [67]; and SZUZY v Minister for Immigration & Border Protection [2015] FCCA 502.

6. In any event, there is no indication in the Tribunal’s statement of reasons that it made any determination “come what may” to arrive at a particular decision. Although the reasons may have been better expressed, and in particular might have been put in a more logical order, they reveal simply that the Tribunal, having had regard to all of the evidence, simply did not believe the applicant. That is insufficient to justify a finding of a reasonable apprehension of bias or indeed, actual bias, either by itself or in combination with the remaining two particulars.

7. The second particular alleges that the Tribunal apparently sought to show that the applicant “was not a genuine Christian by quizzing him [sic]” on his [sic] knowledge of Christianity and, when the applicant passed the test found in the alternative that he [sic] had rehearsed.

8. There is nothing in the evidence before the Court to support this allegation. A transcript of the Tribunal’s hearing was annexed to an affidavit of Donglin Wu and filed by the applicant’s former solicitor on 10 July 2014. The transcript reveals, particularly at pages 13 to 22, only that the Tribunal asked a series of questions about the applicant’s faith including her knowledge of a number of well-known elements of the Bible. At page 22, the Tribunal pointed out to the applicant that her knowledge of those matters was far better than what she had revealed at the Departmental interview and suggested that she might have rehearsed her answers. There is nothing to suggest anything nefarious about this: it was open to the Tribunal to both test the applicant’s knowledge of the tenets of Christianity and to raise concerns about the difference in the level of her knowledge shown at the Tribunal hearing to that shown at the interview with the delegate. Indeed, if the Tribunal considered that that difference might be an issue on the review it was incumbent upon it to raise the issue with the applicant to enable her to give evidence and make submissions about it.

9. The third particular is that the 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 arguments may be presented.” It is not entirely clear what the “balance of reasonableness” is. Nevertheless, the rest of the particular appears to stray from the ground of apprehended bias to actual bias. For the reasons given at [20] above, there is nothing in the Tribunal’s reasons to support a conclusion of bias, whether that be apprehended or actual. More particularly, it is unlikely ever to be the case that the ultimate conclusion of a decision-maker can of itself be sufficient to warrant a finding of actual bias. The unlikelihood of that outcome suggests that the real purpose of this ground is that the applicant (or rather, her previous lawyer) simply disagreed with the Tribunal’s decision. Such disagreement is never a sufficient basis for the exercise by this Court of its jurisdiction under s.476 of the Act.

10. For those reasons, the first and second grounds are rejected.

Ground 3

1. The third ground in the application is that the Tribunal asked itself the wrong question and thus did not arrive at an effective decision that was protected by s.474 of the Act. The particulars to the ground, however, reveal that the real complaint is that the Tribunal had made up its mind to reject the application either by reference to the genuineness of the applicant’s Christianity or on the basis that the applicant did not have sufficient knowledge of Christian beliefs. The Tribunal did no such thing. As already noted in respect of the second ground, the Tribunal made findings of fact based on the evidence before it. That process of fact-finding was engaged in by the Tribunal for the purposes of determining, in accordance with s.65 of the Act, whether it was satisfied that the applicant had met the criteria for the grant of the visa. This ground is rejected.

Ground 4

1. The fourth ground is that the Tribunal breach s.420 of the Act and denied the applicant procedural fairness by reason of there being a reasonable apprehension of bias. This is the fourth way in which the applicant has sought to agitate the question of bias and it is to be rejected for the same reasons as each of the others.

Ground raised at the hearing

1. The applicant claimed at the hearing that the Tribunal’s conduct had misled her into believing that her evidence was going to be accepted and, for that reason, she did not give further evidence. One claimed instance of that was that the Tribunal told the applicant that it accepted that she had come to Australia to study and yet it found that her delay in applying for a visa was inconsistent with her claim to fear persecution in China. That instance may be accepted at a factual level. The transcript of the hearing reveals, at page 9, the following exchange:

   Member:Ok, now umm you got here in 2008 and you studied for a long time, so I take it your intention in coming to Australia was to study, is that right?

   Applicant:     Yes

2. Although the Tribunal’s question could be just that, a question, it is reasonable to infer from it that the Tribunal accepted the proposition contained in it. Indeed, in its statement of reasons the Tribunal found that the applicant’s purpose in coming to Australia was to study: at [48]. However none of this reveals any error. The applicant did not dispute that she arrived in Australia in 2008 in order to study and that she did not apply for a protection visa until March 2013. The Tribunal said that it considered her explanations for the delay, including that the events which gave rise to her immediate fear did not occur until just before her application: at [49]. As the Tribunal did in fact accept the applicant’s evidence, there can have been no unfairness in it indicating that much at the hearing. Further, its acceptance of the applicant’s purpose in coming to Australia was not inconsistent with its conclusion that she had no fear of persecution. What mattered in the Tribunal’s mind was that, in addition to the delay in applying for the visa, the applicant had renewed her passport while here, had travelled back to China twice and had no problems either entering or exiting China. For those reasons, this aspect of the Tribunal’s conduct and reasoning does not reveal any jurisdictional error.

3. The difficulty with the balance of this argument is that the evidence does not support it. The transcript reveals that the Tribunal asked applicant a number of questions. Most of them were open in the sense that they invited an answer beyond a simple “yes” or “no”. The Tribunal sought clarification of some of the applicant’s answers and, as noted above, put to her the concerns it had with her evidence. The applicant may or may not have refrained from giving further evidence in support of her case (as to which there is no direct evidence before the Court), however, I conclude that the applicant was given every reasonable opportunity to do so and, for that reason, the Tribunal’s conduct of the hearing fulfilled its obligation under s.425 of the Act.

4. Therefore, the ground raised at the hearing must also be rejected.

Conclusion

1. There is no jurisdictional error in the Tribunal’s decision. The application is to be dismissed with costs.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:  5 May 2015