SZUOE v Minister for Immigration
[2016] FCCA 1320
•3 June 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUOE & ORS v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1320 |
| Catchwords: MIGRATION – Application for review of Administrative Appeals Tribunal decision – whether bias or apprehended bias on the part of the Tribunal – whether the Tribunal failed to take into account relevant considerations – whether Tribunal breached s.424A – whether Tribunal finding was illogical or unreasonable – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 91R, 422B, 424AA, 424A, 425, 474, 476 |
| Cases cited: SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 |
| First Applicant: | SZUOE |
| Second Applicant: | SZUOF |
| Third Applicant: | SZUOG |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1709 of 2014 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 5 May 2016 |
| Date of Last Submission: | 5 May 2016 |
| Delivered at: | Sydney |
| Delivered on: | 3 June 2016 |
REPRESENTATION
| Applicants: | First applicant in person, on behalf of the second applicant and as litigation guardian for the third applicant. |
| Solicitors for the Respondents: | Ms C Saunders of DLA Piper Australia |
ORDERS
The name of the second respondent is amended to read “Administrative Appeals Tribunal”.
The application made on 24 June 2014 is dismissed.
The first and second applicants pay the first respondent’s costs set in the amount of $6,646.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1709 of 2014
| SZUOE |
First Applicant
| SZUOF |
Second Applicant
| SZUOG |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 24 June 2014 seeking review of the decision of the Refugee Review Tribunal, now known as the Administrative Appeals Tribunal (“the Tribunal”) made on 27 May 2014 to affirm the decision of the Minister’s delegate to refuse Protection (class XA) visas to the applicants.
In evidence before the Court is a bundle of relevant documents (“the Court Book” – “CB”), and a bundle of supplementary relevant documents (“the Supplementary Court Book” – “SCB”) filed by the Minister. Also in evidence is the affidavit of Yingxi Wu, a licenced interpreter and translator, annexing a copy of the transcript (“T”) of the hearing conducted by the Tribunal with the applicants, read by the applicant with no objection from the Minister.
Background
The applicants are wife (“the applicant”), husband (“the second applicant”) and their child (“the third applicant”). All are citizens of the People’s Republic of China (“China”) (CB 12, CB 26 and CB 85).
The applicant first arrived in Australia on 18 January 2009 as the holder of a student visa (CB 13). The second applicant first arrived in Australia on 11 April 2005 also as the holder of student visa. The third applicant was born in Australia on 31 January 2013 (CB 166).
The applicant and the second applicant applied for protection visas on 18 October 2012 (CB 11 to CB 57). They were assisted by a registered migration agent, Mr Harry Huang of Pricilla International Co Pty Ltd (CB 9 and CB 33). The third applicant was added to the application for the protection visas on 31 January 2013 after his birth (CB 84 to CB 90 and CB 166.5).
Initially the applicant’s claims to fear harm were said to arise from her practice and membership of an underground Catholic church in China and Catholic Christian practice in Australia. The second applicant applied as a member of her family unit. However, during the processing of their application by the delegate, and during the conduct of the review, including the applicants’ attendance at a hearing before the Tribunal on 18 February 2014 and 7 March 2014, further claims were added.
The Minister has filed written submissions in this matter. These submissions provide a fair summary of the applicants’ claims as they were put before the delegate and subsequently before the Tribunal
([3] – [6] of the Minister’s submissions)
“[3] On 18 October 2012, the first named applicant (hereafter referred to as the applicant) and the second named applicant applied for a Protection visa.[1] On 10 April 2013, the third named applicant was also included in the visa application.[2] The applicants claimed as follows:
[1] CB 1-32.
[2] CB 78-90.
3.1 The applicant claimed[3] that she became a Catholic in late 2006 and that from early 2007 she attended Bible study classes organised by an underground church. The applicant claimed that she was baptised on 31 March 2007. The applicant claimed that up until her departure from China, she regularly attended Bible study class and, since her arrival in Australia, she had regularly attended church. The applicant claimed that during her return trip to China in March 2011 she distributed religious material. The applicant claimed that she continued to provide these materials to people in China when she returned to Australia. The applicant claimed that, on 10 September 2012, the police arrested the organisers of her Bible study classes and, on 26 September 2012, searched the applicant's family home and interrogated her family.
3.2 The applicant also claimed that she would be forced to pay a fine because their baby would be born out of wedlock and would consequently face discrimination.
3.3 On 17 April 2013, the second named applicant provided a statutory declaration to the Department.[4] The second named applicant stated that he and his wife were married on 26 January 2013 at a Roman Catholic Church. The second named applicant said that he had been influenced by the applicant's religious practice and intended to join the faith. The second named applicant also stated that the applicant had come to the attention of the Chinese authorities and, consequently, her father and brother had had difficulties obtaining employment.
3.4 On 26 April 2013, the applicants attended an interview with a delegate of the first respondent.[5] At the interview, the applicant raised a new claim that the third named applicant would be harmed for reason of the persecution she faced if returned to China. The second named applicant also raised a new claim that his family would be harmed for not repaying money which was used to fund his study trip to Australia.[6]
3.5 The applicants provided to the Department photographs said to show their Church activities in Australia,[7] A letter from Father Paul McGee stating that the applicants regularly attend the Chinese Catholic Mass,[8] and letters from Hong Chen and Jieqiong Zhang regarding the applicants' attendance at Church services and involvement in Church activities in Australia.[9] The applicants also provided untranslated documents printed from the internet.[10]
[4] The applications were refused by a delegate of the first respondent on 29 July 2013.[11] The applicants applied to the RRT for review of the delegate's decision on 21 August 2013.[12]
[5] The applicants attended hearings before the RRT on 18 February 2014[13] and 7 March 2014.[14] The applicants provided to the RRT letters from members of the Church attesting to the applicants' Church attendance and involvement in Church activities in Australia.[15] On 21 March 2014 the applicants provided a statutory declaration deposed to by the applicant, which summarised and attached country information regarding China.[16]
[6] The RRT made a decision on 27 May 2014, affirming the decision under review.[17]”
[Footnotes renumbered.]
[3] See statutory declaration CB 57-62.
[4] CB 100-101.
[5] CB 102.
[6] CB 171-172.
[7] CB 103-128.
[8] CB 129.
[9] CB 130-133.
[10] CB 134-141.
[11] CB 163-192.
[12] CB 193-233.
[13] CB 253-256.
[14] CB 285-287.
[15] CB 276-284.
[16] CB 304-316.
[17] CB 320-336.
Central to the Tribunal’s decision was its comprehensive rejection of the applicant’s, and second applicant’s credibility. The Tribunal’s concerns were summarised at [18] (at CB 325):
“The Tribunal has considered the first and second named applicant's evidence and has serious concerns about their credibility and the veracity of their claims. During the hearing, the Tribunal found the first named applicant to be evasive in relation to some aspects of her evidence and other aspects of her evidence to be implausible. The Tribunal found some of her claims to be inconsistent with the country information on China. There were several inconsistencies in her evidence. During the hearing, the Tribunal found the second named applicant to be vague and there were a number of inconsistencies in his evidence and between his evidence and the first named applicant’s evidence. The Tribunal did not find the evidence of the first and second named applicants to be convincing or persuasive. The Tribunal's concerns are noted below.”
The Tribunal then set out its analysis of various elements of the evidence and claims which led to its findings that their evidence was variously inconsistent, non-responsive, implausible, vague, evasive and difficult to explain:
(1)Inconsistencies in the applicant’s evidence as to her place of employment between 2006 to 2009 which led the Tribunal to question the claim she had been introduced to Catholicism by a work colleague ([19] – [21] at CB 325).
(2)Inconsistent and implausible evidence concerning seeking permission from her parents to marry while aged 27, but not seeking their permission, at age 20, to become baptised in an illegal underground church ([22] – [23] at CB 326).
(3)The applicant’s evidence that her parents were not aware she was attending Bible classes was implausible ([24] at CB 326).
(4)The assertion in her student visa application that her father was a branch secretary of the Chinese Communist Party in his home city, was inconsistent with the claim that his daughter (the applicant) would have been attending an underground church banned by the Communist Party. The applicant’s subsequent evidence that her father was not a member of the Communist Party only added to the Tribunal’s concerns about her credibility. The second applicant’s subsequent evidence about this matter was also unclear ([26] at CB 326).
(5)The Tribunal found the applicant’s evidence that she returned to China in March 2011 and spent a month away from her home province with friends engaging in Catholic related activities to be implausible in light of her evidence that she had returned to visit her family. This was particularly problematic in circumstances, notwithstanding her fear of harm, where she also said the friends had already paid her a visit in her hometown ([27] at CB 327).
(6)The Tribunal found the applicant’s evidence about her claim to have distributed Catholic pamphlets in China to be vague, evasive, and that she had difficulty in explaining what the materials were ([28] – [29] at CB 327).
(7)The Tribunal found it implausible that she had consistently sent “anti-government” materials to China using the internet in light of country information that said that “the Chinese internet ‘is one of the most controlled in the world’” ([30] at CB 327 to [32] at CB 328).
The Tribunal also considered written statements from various witnesses as to the applicant’s religious activity. The Tribunal accepted that the applicant attended church in Australia, but gave little weight to the remainder of the statements dealing primarily with the applicant’s claimed religious conviction and belief ([33] at CB 328 to [35] at CB 329).
In relation to the claim that the third applicant was born out of wedlock and would therefore be denied “basic human rights” in China, the Tribunal found he was not born out of wedlock as his parents had married prior to his birth. It relied on country information to find that the applicants would not have to pay a social compensation fee, and in the circumstances, the child could be registered in China ([37] at CB 329 to [40] at CB 330).
The Tribunal found that the second applicant had fabricated evidence that the Public Security Bureau (“PSB”) had visited his parents and told them he would have to report to the PSB on his return. The Tribunal gave reasons for this ([40] at CB 329 to CB 330).
The Tribunal found various inconsistencies in the second applicant’s evidence concerning his religious faith and church attendance in Australia. The Tribunal found these raised concerns about whether he was a genuine Catholic. While it found he attended church, it gave little weight to a statement which said he was an active member of the church community, which was dated six days before he told the delegate he was not a Catholic ([41] – [45] at CB 330).
The Tribunal considered the second applicant’s “new” claim, raised at the interview with the delegate, that he would face harm on return to China because his family borrowed money to send him to Australia and they still owed the money. The Tribunal found the evidence from the second applicant to be implausible and to raise further concerns about his credibility ([46] – [48] at CB 331).
The Tribunal also had concerns about the applicants’ credibility given their respective delays in applying for protection after arrival in Australia. This was some three years for the applicant, and some seven years for the second applicant, and included a return by each of them to China, the country of claimed persecution, during these periods. The Tribunal found their explanations for this to be implausible ([49] – [50] at CB 331).
In all, the Tribunal found they were not witnesses of truth and had fabricated their claims for the purpose of obtaining protection visas ([51] at CB 331 to CB 332). The Tribunal rejected a large part of the applicant’s factual assertions on which their claims were based ([51] at CB 331 to [55] at CB 333). It rejected the entirety of the applicant’s claims in relation to her membership of, and involvement in, the activities associated with the underground Catholic church in China ([56] at CB 333).
The Tribunal considered her claimed conduct in Australia and disregarded this conduct for the purposes of s.91R(3) of the Act. It found she was not a genuine Catholic and would not suffer harm for this reason if she were to return to China ([57] – [58] at CB 333).
The Tribunal found that the applicant and second applicant had not breached China’s Family Planning Laws, and would not be required to pay a social compensation fee. It found that the third applicant would be able to be registered in China and access health treatment and education ([59] at CB 333).
Based on its adverse credibility finding the Tribunal found that the second applicant would not be at risk of serious harm because of the re-payment of any debt ([60] at CB 333). The Tribunal similarly disregarded his claimed religious conduct in Australia for the purpose of s.91R(3) of the Act ([61] at CB 334). It found he was not a genuine Catholic ([62] at CB 334) and would not be at risk of serious harm for any reason as claimed by him ([63] at CB 334).
The Tribunal found that based on its earlier findings, the third applicant would not face serious harm for any of the reasons claimed by his parents on his behalf ([64] at CB 334 to [67] at CB 335).
The Tribunal found that none of the applicants satisfied the criterion at s.36(2)(a) of the Act for the grant of the protection visas ([68] at CB 335). The Tribunal separately considered whether the applicant’s and second applicant’s claimed religious conduct in Australia would result in a risk of significant harm for the purposes of s.36(2)(aa) of the Act, and found it would not ([69] at CB 335 to [74] at CB 336).
Application Before the Court
The application before the Court, prepared with the assistance of solicitors, raised the following grounds:
“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 27 May 2014 on the grounds that it was not a decision under the act.
Particulars
i. Section 5E
ii. Transcript and evidence, whereby the Tribunal refused to accept facts that are obvious.
2. The Tribunal appeared to ‘come what may’ not permit the facts as to religious intolerance in China to be considered and the social intolerances that face persons born out of wedlock. The Tribunal misapplied the required application of the Refugee Convention with respect to the applicant's status as an unmarried mother.
3. The Tribunal appeared to not permit the facts as to the application of the Refugee Convention to be considered.
4. The Tribunal was apparently so predisposed to refuse to believe the applicant as to deny them procedural fairness by way of statutory breach
5. The Tribunal’s conclusion was encumbered by characteristics which would lead a reasonable person to apprehend bias, and was thus not an effective decision that is protected by Section 474.
6. Such other grounds as this Honourable Court may deem just.”
The Applicant’s Submissions
The applicants’ solicitor filed a notice of withdrawal as their lawyer on 3 March 2015. The applicants remained legally unrepresented before the Court. The applicants filed written submissions dated 20 April 2016 signed by the applicant, which appear to raise additional complaints to those in the original application, which was not amended at any time.
The applicant appeared in person before the Court at the hearing. She was assisted by an interpreter in the Mandarin language. She stated that the second applicant knew of the Court event and that she would speak on both his, and the third applicant’s, behalf. Her oral submissions before the Court generally mirrored her written submissions. The complaints were:
(1)The Tribunal member was biased. During the hearing the Tribunal member “picked on many small things” which led the applicant to “strongly believe” that the Tribunal member had “already made up her mind” before the hearing. This was because she made up her mind with her own “subjective” view. This was said to be illustrated by the Tribunal’s refusal to accept the applicants’ explanation as to why they were late for the Tribunal hearing, in circumstances where they were not late, and had been waiting to be called for the hearing. The applicant otherwise submitted that the Tribunal did not ask for any explanation in circumstances where their migration agent had made a mistake about the hearing location.
(2)Although the Tribunal gave the applicant two opportunities for the hearing, the Tribunal continued to raise concerns about their evidence, which was more for the purpose of “finding fault”.
(3)The applicant complained that she was not given the opportunity at the hearing to exercise her “right” to give her evidence and arguments. This was said to be because the Tribunal member “picked on little mistakes”, and she was expected to have “perfectly” prepared her argument. This appeared similar to [2] of the applicants’ written submissions.
(4)The Tribunal was “wrong” in not accepting her explanation as to why it was not necessary to obtain her parents’ consent to her baptism in Christianity, but was necessary in relation to their consent for her marriage (with reference to the Tribunal’s decision at [22] – [23] at CB 326 and see [9(2)] above).
(5)The applicant complained that the Tribunal did not accept her explanation as to why she was not aware of information in her student visa application, which was inconsistent with information she had given in relation to her protection visa application.
(6)The Tribunal relied on “superficial” information in relation to family planning in China. This appeared to be a reference to the Tribunal’s questions about the applicant’s employment.
(7)The Tribunal did not consider the effect of corrupt Chinese officials in the implementation of the family planning policy and therefore did not give “serious” consideration to the entire issue.
(8)The Tribunal’s analysis was also “subjective” because it did not accept her explanation that she was able to avoid detection in sending religious material through the internet because of a skilled computer operator.
(9)The applicant submitted that what “angered” her “even more” was that the Tribunal “denied” that she was a member of the underground church in China, and it was an “insult” for the Tribunal to find she was not a genuine Christian. The Tribunal also “insulted” her witnesses, including Father McGee, by not accepting their evidence.
(10)It was “hard” for the applicant to believe that the Tribunal did other than make up its mind prior to the hearing, and that the hearing was merely a “formality”, given it did not accept the applicants’ explanations for the inconsistencies in their evidence. Further, these inconsistencies would have been explained if the Tribunal had “asked for more evidence”.
Consideration
Even on the most favourable view for the applicants of the evidence before the Court, including the transcript of the Tribunal hearing which they have put into evidence, it is clear that their complaints, as with the applicants’ written submissions and grounds of the application, do no more than seek impermissible merits review.
The applicant has sought to understand the Tribunal’s adverse views of her evidence as being illustrative of bias on its part. However, the Tribunal’s disbelief of the applicants’ claims and evidence as raised at the hearing, does not support any indication of bias, but rather that the Tribunal properly discharged its procedural fairness obligations toward the applicant in raising the issues in the review, putting them on notice of its concerns, and giving them the opportunity to respond.
Before the Court, the applicant relied only on findings (no reference was made to the transcript) by the Tribunal to show prejudgment or bias on the part of the Tribunal. It is extremely rare that bias can be made out with reference only to the decision record (SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J). In any event, the Tribunal’s findings, including its findings on credibility, were all reasonably open to it on what was before it. The Tribunal gave cogent reasons for its findings probative of the material before it.
These conclusions are evident on any plain view of the matters raised by the applicant, and the evidence before the Court:
(1)Re 24(1): First, the evidence does not support the applicant’s complaint that the Tribunal focussed on matters not relevant to the disposition of their claims. Second, the relevant evidence before the Court, that is, the transcript of the Tribunal hearing provided by the applicants, reveals that the Tribunal accepted the applicants’ representative’s explanation as to why they were late in attending the Tribunal hearing. In any event, the Tribunal’s focus was on providing another opportunity for the hearing given the limitations on the interpreter’s availability. There is nothing here to support the applicants’ submission that there was any misunderstanding by the Tribunal. If anything, the evidence indicates that the Tribunal wanted to ensure there was enough time to deal with all of the issues in the review (T 1.8 and T 36.6).
(2)Re 24(2): It is clear from the transcript that the Tribunal continued to raise its concerns both in discharge of its obligation to give the applicants a meaningful opportunity to explain their claims and evidence, and in light of the unsatisfactory answers they had provided. In the second applicant’s case, some of his answers were plainly non-responsive to the questions asked.
(3)Re 24(3): See below at [55] – [60] of this judgment.
(4)Re 24(4): The Tribunal’s findings of fact were reasonably open to it on what was before it. No jurisdictional error arises in these circumstances.
(5)Re 24(5): The Tribunal is not required to uncritically accept an applicant’s evidence and explanations (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 535; (1994) 52 FCR 437).
(6)Re 24(6): In her application for the protection visa, the applicant stated that she was employed in China “[d]oing odd jobs” ([41] at CB 16). However, in her statutory declaration of October 2012 provided in support of her application the applicant declared that she worked at an electronics company ([2] at CB 57). The applicant then gave evidence to the Tribunal that she had worked there for two and a half years. It is to be noted that the applicant’s evidence was also that it was at this workplace where she met her friend who was instrumental in introducing her to Catholicism. The Tribunal found that her evidence that she formed this friendship, was inconsistent with her original statement that she only worked “[d]oing odd jobs”. The Tribunal’s finding, and its reference to its concerns about her credibility, were all reasonably open to it in the circumstances.
(7)Re 24(7): There was no claim or information before the Tribunal that the involvement of corrupt Chinese officials in the implementation of the planning laws would affect the applicants. The Tribunal dealt with the claim as it arose and was presented. On the information before it, it was reasonably open for the Tribunal to find that she would not have to pay a fine.
(8)Re 24(8): The Tribunal’s findings here, again, were reasonably open to it on what was before it.
(9)Re 24(9): The Tribunal’s findings as to the applicant’s religious conduct and commitment were all reasonably open to it. In relation to the witness statements the Tribunal made no comments in its analysis which would be reasonably described as “insulting”. The Tribunal accepted the witness statements that she, and her husband, had attended a church ([57] at CB 333 and [61] at CB 334). It was the applicant’s own evidence that led the Tribunal to find that she was not genuine in her claimed Christian beliefs.
(10)Re 24(10): The evidence reveals that the applicant was not denied the opportunity to provide evidence to the Tribunal. If there was more evidence to be given then she should have done so. The Tribunal’s obligation is not to make out an applicant’s case for them. It is to provide a fair and meaningful opportunity for an applicant to do so if they are able. The Tribunal complied with its obligations in this regard.
The applicants’ written submissions, as with the applicant’s oral submissions, were not directly focussed on the grounds of the application. Nonetheless, they appear to repeat the same themes as above, that is, that the Tribunal had prejudged the matter and went out of its way to find against them. The following therefore must also be understood in light of the applicants’ submissions made to the Court and as addressed above.
It is the case that s.474 of the Act operates to exclude judicial review of all migration decisions under the Act, except those decisions affected by jurisdictional error. The issue now, is whether any of the grounds of the application, or the applicant’s complaints arising from submissions, reveal any such error.
Ground one asserts that the Tribunal decision was not a decision under the Act and is not a privative clause decision, presumably because it is affected by jurisdictional error.
The first particular merely states “Section 5E”. This section sets out the meaning of a “purported privative clause decision”. Merely stating the section is not a particular assertion of jurisdictional error for the Court to consider.
The second particular appears to contend, with reference to the transcript of the Tribunal hearing and the evidence generally, that the Tribunal refused to accept “facts that are obvious”.
As set out above, the Tribunal rejected the central factual claims made by the applicants. It did so based on its analysis of the claims and evidence given by the applicants. The Tribunal’s findings, including the findings as to the applicant’s and second applicant’s credibility, were, as repeatedly set out above, all reasonably open to it on what was before it. The Tribunal gave cogent reasons probative of the evidence and information before it as to why it did not accept the applicants’ claims. Therefore, ground one can only properly be understood in these circumstances as seeking merits review, and does not reveal any jurisdictional error (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259).
Ground two appears to have two complaints. The first concerns the Tribunal’s claimed failure to consider religious intolerance in China. This complaint ignores that the Tribunal found that the applicant and the second applicant were not genuine Catholics and would not face any intolerance given that fact.
The second complaint is that the Tribunal did not consider the “social intolerances” to be faced by persons born out of wedlock, and that the Tribunal misapplied the requirements of the Refugees Convention in relation to unmarried mothers.
The Tribunal found on the evidence provided by the applicants themselves, that the third applicant was not born out of wedlock and that the applicant at the time of the third applicant’s birth was not an “unmarried mother”. These findings were reasonably open to the Tribunal on what was before it. The factual premises of the ground are not made out. Ground two does not reveal jurisdictional error.
Ground three is meaningless in its terms. At best it may be that the ground seeks impermissible merits review. It does not reveal any jurisdictional error.
Ground four is an unparticularised assertion that the Tribunal breached its procedural fairness obligations under the Act. This is a case to which s.422B of the Act applies, making the matters set out in Division 4 of Part 7 of the Act the exhaustive statement of the natural justice hearing rule in relation to the matters dealt with in that Division (Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 and Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61; (2006) 151 FCR 214).
In the absence of any particulars, it is difficult to understand the exact nature of the complaint in ground four. In light of the applicants’ submissions, the claim of unfairness appears to be that the Tribunal made adverse findings. That is addressed above. No breach of the relevant provision of Division 4 is evident on the material before the Court.
Section 424A of the Act obliges the Tribunal to give to the applicant in writing information which it considers would be the reason or a part of the reason for affirming the decision under review (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294. What constitutes “information” for the purposes of s.424A of the Act is explained by the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190).
If the applicant’s complaint includes the proposition that the Tribunal should have provided to her, in writing, its concerns about her evidence, then the Tribunal’s views of the evidence are not “information” for the purposes of s.424A of the Act.
On the evidence before the Court, the information that can be said to be caught by the obligation in s.424A(1) of the Act, other than in two instances (see below), was either written information given by the applicants during the process leading to the delegate’s decision, information given by the applicants for the purpose of the review, or country information. Each set of information is excluded from the operation of s.424A(1) of the Act by the operation respectively of s.424A(3)(ba), (b) and (a) of the Act.
The Minister submitted that the Tribunal also relied on information taken from the applicant’s “student visa file”, and in particular, a statement provided by the applicant’s father claiming to be a Secretary of the local Chinese Communist Party Branch since 2004 (SCB 63 to SCB 65 and the Tribunal’s reference at [25] – [26] at CB 326). The Minister accepted that given the analysis by the Tribunal at [25] – [26] (at CB 326) that this information is caught by s.424A(1) of the Act.
However, the Minister also submitted that with reference to the transcript of the Tribunal hearing (at T 54 to T 56) the Tribunal utilised, and complied with, the facility available through the operation of s.424AA of the Act to discharge the obligation in s.424A(1) of the Act. That is, the information was put orally to the applicants, with sufficient particularity, such that they could reasonably understand the relevance of the information to the prospective decision, and were given the opportunity to comment on, or respond to it.
At the hearing (T 54 to T 55), the Tribunal member told the applicant that certain information was before the Tribunal, and explained the process relevant to s.424AA of the Act. Amongst the information raised was the statement from the applicant’s father (see T 55.9). The applicants were given the opportunity to comment and respond to the statement, which both the applicant and second applicant did. The Tribunal had earlier told the applicants that in relation to all the information put to them they could seek further time in which to comment or respond. On the evidence, I agree with the Minister that the Tribunal complied with the obligation in s.424A(1) of the Act in this regard.
In its decision record, the Tribunal also made reference to what the applicant had told the delegate orally at the interview (see [15] – [16] at CB 324, [41] at CB 330, [45] at CB 330, and [46] at CB 331). However, all of this information is contained in the delegate’s decision record (see in particular CB 171.6 to CB 172.8, CB 175, CB 178, CB 183 and CB 187). The delegate’s decision record was given to the Tribunal by the applicants at the time of the making their application for review (CB 199 to CB 233). As such, the applicants gave that information to the Tribunal for the purposes of the review and the information, therefore, is caught by s.424A(3)(b) of the Act (SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3; (2015) 229 FCR 90). I note also that there is no evidence before the Court that the Tribunal listened to any recording of the delegate’s interview.
Pursuant to s.425 of the Act, the applicants were invited to a hearing before the Tribunal. They attended on two occasions. On the evidence before the Court, these were meaningful opportunities to give their evidence and present their arguments in support of their application, and in particular in relation to the issues dispositive of the review (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2006] HCA 63; (2006) 228 CLR 152).
There is no breach of s.425 of the Act simply because, as in this case, the Tribunal put to the applicants its concerns about their evidence. Putting them on notice of its concerns and giving them the opportunity to comment is in fact consistent with the concept of procedural fairness.
As set out above, the third applicant is a child. Whatever evidence and claims related to him, were given by his parents. His parents were afforded the opportunity to give evidence on his behalf, in the context of being his guardians at common law (Re Woolley and Anor; Ex parte Applicants M276/2003 (by their next friend GS) [2004] HCA 49; (2004) 225 CLR 1; (2004) 210 ALR 369). He was, therefore, also afforded procedural fairness pursuant to s.425 of the Act.
In ground four, the applicants also complained that the Tribunal was “so predisposed” not to believe them. This may be an attempt to infer bias, or in light of the assertion in ground five, apprehended bias on the part of the Tribunal. The applicants’ written submissions (at [1] and [2]) raise a similar inference.
The tests for bias and the apprehension of bias are well settled (Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507, SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749, VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102, Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 and Minister for Immigration and Citizenship v SZJSS & Ors [2010] HCA 48; (2010) 243 CLR 164). The difficulty for the applicants is that the broad allegation remains unparticularised. If regard is had to their written submissions (particularly at [2]) then it appears that the basis for the allegation is that the Tribunal put its concerns about the applicant’s evidence to her at the hearing, and then rejected her claims, and that this thereby revealed that the applicant was denied the opportunity to properly put her evidence and arguments.
First, the putting of concerns to the applicant at a hearing is in fact one of the elements necessary to ensure a fair hearing. The Tribunal put the applicant on notice of the case against her. This does not reveal that the Tribunal did not bring an open mind to the hearing or that a well-informed lay observer may reasonably apprehend that it did not.
Second, the Tribunal’s subsequent disbelief of the applicant’s evidence and explanations similarly does not reveal bias. The Tribunal does not have to uncritically accept what the applicant put to it.
In all, there is nothing in the material before the Court which can be said to be capable of establishing bias. In the circumstances, the allegation is a manifestation of the applicant’s grievance with the outcome of the review. No jurisdictional error is established in this regard. The remainder of ground four seeks impermissible merits review and does not reveal any jurisdictional error. Grounds four and five are not made out.
Ground six does not assert jurisdictional error. It is not for the Court to give advice to the applicants, noting that at the time of the making of the application the applicants were legally represented.
Paragraphs [3] to [7] and [10] of the written submissions, and for that matter [1] – [2], are no more than an expression of disappointment with the facts as found by the Tribunal and its analysis leading to its conclusion which determined the review. These paragraphs seek merits review and do not lead to exposing jurisdictional error.
In her written submissions (at [8]), the applicant submits that the Tribunal accepted she had been attending church in Australia and participated in church activities, but nonetheless came to the conclusion that this was done for the purpose of “obtaining evidence” in support of the protection visa application. The applicant asserts that this finding is illogical and unreasonable.
As set out above, the Tribunal gave reasons for its finding that the applicant’s religious conduct in Australia, which it accepted had occurred, was nonetheless done for the sole purpose of strengthening her claims to protection. This finding and the antecedent findings that informed it, including that the applicant had fabricated much of her claims in relation to events in China, were all reasonably open to the Tribunal on what was before it.
Putting to one side that the applicants at [8] of the written submissions, attack only one finding, illogicality and unreasonableness in relation to a Tribunal decision are not made out in circumstances where the Tribunal has preferred one conclusion, for which it gave cogent reasons, over the conclusion preferred by the applicants (Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [131]).
The Tribunal’s conclusion in this regard did not lack an evident and intelligible justification in the detailed explanation provided by the Tribunal (Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332). This complaint does not reveal jurisdictional error but is another expression of disagreement with the Tribunal’s relevant conclusion.
At [9] of the applicant’s written submissions, the applicant asserts that the Tribunal “completely ignore (sic) or failed to fairly consider evidence” given by the applicants’ witnesses and the supporting documents from the Catholic church provided by her to the Tribunal.
Any plain reading of [33] to [37] of the Tribunal’s decision record (CB 328 to CB 329) provides the factual basis to reject the claim that the Tribunal failed to consider this evidence and the documents.
The alternate claim that the Tribunal failed to “fairly consider” the evidence, is in the circumstances another expression of disagreement with the Tribunal’s findings, or at most, a disagreement with the finding of “little weight” accorded to this material. The weight to be accorded to such material is of course for the Tribunal to decide in the proper exercise of its jurisdiction (Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24). No jurisdictional error is revealed in these submissions.
Conclusion
In all, the applicants’ grounds and submissions do not reveal jurisdictional error in the Tribunal’s decision. Absent such error, the application is to be dismissed. I will make the appropriate order.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 3 June 2016
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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