SZUOY v Minister for Immigration

[2015] FCCA 1343

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUOY v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1343

Catchwords:
MIGRATION – Review of decision of Refugee Review Tribunal (Tribunal) – whether Tribunal pre-judged applicant’s case for review – whether Tribunal’s conduct gave rise to reasonable apprehension of bias – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.425(1)

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80

Applicant: SZUOY

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1746 of 2014

Judgment of: Judge Manousaridis

Hearing date: 7 May 2015

Delivered at: Sydney

Delivered on: 22 May 2015

REPRESENTATION

Applicant in person assisted by an interpreter.

Solicitors for the Respondents: Ms A Carr of DLA Piper Australia

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1746 of 2014

SZUOY

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, a national of the People’s Republic of China, seeks judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) to refuse him a Protection visa. The applicant’s principal contention is the Tribunal pre-judged his case.

Claims for protection

1. The applicant is from the Fujian Province in China.[1] He claimed his family owned a pig farm which they were forced to close in 2009 when the local government sold it for a real estate development project.[2] The applicant’s family received no compensation for the sale of the land.[3]

   [1] CB36, [2]

   [2] CB36, [2]-[3]

   [3] CB36, [3]

2. In January 2010 the applicant participated in a protest against the local government and the real estate development company.[4] The protest was organised by another landowner. The Public Security Bureau (PSB) arrested the applicant, the landowner, and 10 other people. The authorities alleged that those participating in the protest were engaging in “anti-government activities and [disturbing] normal social orders”.[5] The applicant was detained for one month at a detention centre and during that time he was physically and mentally harmed and mistreated by the police.[6] The applicant was released after his father paid a 9,000RMB fine and promised in writing not to attend any further protests in the future.[7]

   [4] CB37, [4]

   [5] CB37, [4]

   [6] CB37, [4]

   [7] CB37, [5]

3. The applicant suffered from depression after his arrest and detention.[8] In May 2010 a distant relative of his wife, who was Christian and a secret member of the Local Church, came to the applicant’s home.[9] The applicant was evangelised by his wife’s relative and she persuaded the applicant and the applicant’s wife to attend secret meetings of the Local Church.[10] In July 2010 the applicant and his wife were baptised at a church brother’s home.[11]

   [8] CB37-38, [6]

   [9] CB38, [7]

   [10] CB38, [7]

   [11] CB38, [7]

4. In late 2010 the applicant started working for a “construction team” owned by his wife’s relative’s husband in a town 250km from the applicant’s hometown in Fujian.[12] The applicant and his wife’s relative’s husband could not find any meeting groups of the Local Church in the town, so they established and developed three secret meeting groups between the period of December 2010 and November 2011.[13]

   [12] CB38-39, [9]-[10]

   [13] CB39, [10]-[11]

5. The applicant returned to his hometown in April 2012.[14] He was there informed by a church brother that one of the secret meeting groups had been raided by the PSB and the wife’s relative’s husband and other church brothers and sisters were arrested.[15] Two days later the applicant learnt that the PSB had discovered the “leading role” played by the applicant in the Local Church.[16] The applicant sensed he was in danger and went into hiding at a friend’s place for three months.[17]

   [14] CB39, [12]

   [15] CB39, [12]

   [16] CB39, [12]

   [17] CB39-40, [12]-[13]

6. During the time the applicant was in hiding, the police questioned the applicant’s wife, parents and sisters and searched the applicant’s home.[18] In July 2012 the applicant left China with the help of a church brother who arranged the applicant’s trip to Australia through a “snake head”.[19] The applicant has continued to actively attend the Local Church in Australia.[20]

   [18] CB40, [13]

   [19] CB40, [14]

   [20] CB40, [15]

7. The applicant believes he will be subjected to persecution because of his Christian belief if he returns to China.[21]

   [21] CB40, [16]

Tribunal’s reasons for decision

1. The Tribunal was not satisfied the applicant “was involved with the Local Church in China and/or that the applicant suffered persecution from the Chinese authorities because of hitting [sic] his involvement with the Local Church”.[22] The Tribunal based this finding on country information that reports that the Fujian authorities are more liberal in relation to the Christian religion, and that there is a 4,000-seat Local Church in Longtian.[23] The Tribunal considered, but rejected, a submission the applicant, through his agent, made after the hearing to the effect that the church in Longtian did not belong to the Local Church, but to the “Little Flock” Christian assembly.[24] The Tribunal rejected as fanciful and fabricated the applicant’s claim that the Local Church of which he was a member is different from the Local Church that owned the church at Longtian.[25]

   [22] CB202, [37]

   [23] CB202, [37]

   [24] CB202, [38]

   [25] CB202, [39]

2. The Tribunal also did not accept the applicant’s claims that his family’s land was confiscated, or that he was involved in a protest, or that he became a target for the Chinese authorities.[26] The Tribunal relied on two matters. First, the applicant’s family, namely, his parents, wife and two young children, continue to reside in the residence where the applicant claims he was harassed and pursued by authorities.[27] The Tribunal did not accept the applicant’s evidence that his family has not moved because they did not have the financial means for doing so, given that the applicant had worked in Australia and earned an income and, on his own evidence, he has not sent any money to China.[28]

   [26] CB203, [41]

   [27] CB203, [41]

   [28] CB203, [41]

3. The second matter on which the Tribunal relied was the applicant’s being able to leave China using his own passport through legal channels. The Tribunal did not find credible, “in light of the applicant’s overall lack of credibility and contradictory evidence”, the applicant’s explanation that he was able to depart China only after having bribed officials.[29]

   [29] CB203, [42]

Application for judicial review

1. A lawyer drafted the application for review, although the applicant was not legally represented at the hearing. The application states 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 30 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.According to the standards of the reasonable observer, it is apprehended that the Tribunal could not have arrived at its erroneous conclusions as to the level of religious tolerance in China had it given the Applicant a fair hearing according to the requirements of the Act.

   Particulars

   i.Including but not limited to an assertion that the intolerance of the Chinese Government towards religious practice is “improving”.

   ii.The consequent declaration that the Applicant will not suffer persecution on his return.

   3.The Tribunal appeared to not permit the facts as to the application of the Refugee Convention to be considered.

   Particulars

   Refusal to consider obvious and well known facts regarding religious persecution in China.

   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.

2. At the hearing, the applicant handed up to the Court written submissions (Written Submissions), and made oral submissions in relation to one of the grounds specified in the application. As there is a large overlap between the Written Submissions and the grounds of application, I will consider the application primarily by reference to the matters the applicant has raised in the Written Submissions.

The Written Submissions

1. Paragraphs 1-8 and 19 of the Written Submissions repeat the claims the applicant made before the Tribunal. They seek impermissible merits review and, therefore, disclose no jurisdictional error by the Tribunal.

2. In paragraph 9 of the Written Submissions the applicant says:

   I do not understand why the Department and then the Tribunal refused to accept things that are obvious. I have been impressed deeply that they both kept searching until they “caught me out”. For example, I did not know off by heart the opening verses of some of the Gospels. If a judge cannot recite off by heart the first four pages of the Australian Constitution, does that mean that they should resign, or we should not believe they are really a judge?

3. This ground does not raise any jurisdictional error. The transcript does not record the Tribunal asking the applicant questions about his knowledge of the Gospels. It is true the Tribunal referred to the delegate noting that the applicant stated he used the Recovery version of the Bible, and although the applicant could name most books of the Bible, he could not answer questions about the contents of the book.[30] The Tribunal, however, did not rely on the applicant’s level of knowledge of the Gospels or of Christianity as a reason for rejecting the applicant’s claims.

   [30] CB197, [4]

4. In paragraph 10 of the Written Submissions the applicant submits the Tribunal “got that “country information” wrong”. That is a reference to the country information on which the Tribunal relied to which I refer earlier in these reasons. The applicant submits the Tribunal was wrong because there “is no connection between the oppressed and illegal Shouters churches and puppet churches of the Government”. These contentions raise no jurisdictional error because they seek merits review. It was for the Tribunal to determine the weight it should give to the country information on which it relied.[31]

   [31] NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]

5. In paragraphs 11 and 12 of the Written Submissions the applicant submits he was not given a fair hearing and he was not going to be believed regardless of what he said. He illustrates this submission by reference to the Tribunal’s concluding that the applicant “may have worked” on a pig farm, even though the Tribunal found, contrary to the delegate, that the applicant did know what breed of pigs were in his district. That the Tribunal was only prepared to find that the applicant “may have worked” on a pig farm does not by itself indicate any unfairness. The fact that the applicant knew the relevant breed of pigs could not reasonably compel the conclusion that he did work on a pig farm.

6. In paragraphs 13, 14, and 18 of the Written Submissions, the applicant submits the hearing before the Tribunal took only one hour, the Tribunal member decided she did not believe anything the witnesses said, and the Tribunal member seemed “in a hurry to get me out the door”. In short, the applicant submits the Tribunal member had already made up her mind before she heard the applicant.

7. It is true that the Tribunal member did put to the applicant country information and stated to the applicant, on the basis of that information, that “the Local Church is not underground or something that would be persecuted in your local area”, and that the country information “undermines the claim that you were having to meet secretly; that you were pursuit [sic] by the authorities because the meetings boys made it” and that it “basically undermines all those claims and also your credibility and genuine [sic]”.[32] It is also true the Tribunal member said, apparently to one of the witnesses the applicant called, that she did not find the witness to be credible, gave the reasons why that was so, and asked whether “there is anything you would like to say in response”.[33] That the Tribunal member expressed these views, however, does not manifest any actual bias or give rise to a reasonable apprehension the Tribunal was biased. The “[r]obust and forthright testing of the appellant’s claims by the Tribunal . . . does not sustain a finding of apprehended bias”.[34] Further, although the Tribunal is not required to continually disclose its reasoning, “it should be recognised that the proper expression of tentative views by an administrative decision-maker may actually enhance the fairness of the administrative process by alerting a claimant to perceived deficiencies in the claim being made and affording an opportunity to the claimant to address those perceived deficiencies”.[35]

   [32] Transcript of Tribunal hearing, page 3. The transcript is annexed to the affidavit of Yingxi Wu affirmed on 25 June 2014.

   [33] Transcript of Tribunal hearing, page 19

   [34] SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [24]

   [35] SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [27]

8. In my opinion, what the Tribunal member said to the applicant amounted to the expression of tentative views. It was proper for the Tribunal member to express these views to the applicant. It gave the applicant an opportunity to make submissions in relation to them. There is nothing in the transcript of the hearing before the Tribunal that could reasonably suggest the Tribunal was actually biased or otherwise conducted itself in a way that could give rise to a reasonable apprehension of bias. And there is nothing to suggest the Tribunal did not accord the applicant a hearing as required by s.425(1) of the Migration Act 1958 (Cth) (Act).

9. In paragraph 15 of the Written Submissions the applicant submits the Tribunal member kept referring to the church in Fujian that can take 4,000 people, and “would [not] listen to the obvious”. I do not accept this submission to the extent it claims the Tribunal did not consider what the applicant said in response to the Tribunal member’s referring to the country information relating to the church in Longtian. The Tribunal did refer and consider the applicant’s response which included not only what the applicant said at the hearing, but what was said in a submission the applicant, through his agent, provided to the Tribunal after the hearing.[36] The Tribunal referred to the applicant’s claim that his Local Church was different from that in Longtian.[37] The applicant made that claim in the course of giving the following evidence:[38]

   [36] The submission is at CB156-191

   [37] CB202, [39]

   [38] Transcript of Tribunal hearing, page 5

   Member:Ok. Your church you previously referred to Watchman Nee and watchmen, the other people associated with Local Church, so I put to you, you’re actually talking about the same church.

   Interpreter:   No. Previously it was the same one. But later it was divided.

   Member:When did that occur?

   Interpreter:   Nineteen eighty.

   Member:You have any evidence to support that?

   Interpreter:   You mean to support that the church has been divided?

   Member:Yes.

   Interpreter:   I don’t have it now.

10. The transcript then records the Tribunal asking the applicant to tell the Tribunal about the division.

11. The Tribunal rejected the applicant’s explanation as “fanciful and fabricated”.[39] The Tribunal relied on the applicant’s having referred extensively to the recovery Bible, Witness Lee, and Watchman Nee. The Tribunal also relied on one of the witnesses whom the applicant called, a brother from the Local Church, appearing not to have an idea about the apparent split in the church.[40] The Tribunal also referred to the post-hearing submission, stating that it did not accept the applicant’s submission because it did not accept at face value that the church at Longtian belonged to Little Flock.[41]

    [39] CB202, [39]

    [40] CB202, [39]

    [41] CB202, [38]

12. In paragraphs 16 and 17 of the Written Submissions, the applicant disagrees with the Tribunal’s reliance on the applicant’s not having sent money to China as a reason for not accepting the applicant’s explanation for his family not having moved from the place where the applicant claimed he feared harmed. These paragraphs, however, seek impermissible merits review and disclose no jurisdictional error by the Tribunal.

Grounds of review stated in application

1. The first ground of the application is a bald assertion that the Tribunal’s decision was not one authorised or made under the Act. By itself, it does not identify any jurisdictional error by the Tribunal. The remaining grounds are all to the same effect, namely, the Tribunal conducted itself in such manner as to give rise to a reasonable apprehension of bias. The only submissions the applicant made in support of that claim are those the applicant made in the Written Submissions which I have already considered and not accepted.

2. As I note above, the applicant made one submission in relation to the grounds stated in the application, and that was in relation to ground 2. The applicant claimed he attended the Local Church, he was persecuted by the government, and that if he returned to China he would be arrested. These submissions seek to restate the claims the applicant made before the Tribunal, and disclose no jurisdictional error.

Conclusion and disposition

1. The applicant has not established the Tribunal made any jurisdictional error. I propose, therefore, to dismiss the application and order the applicant pay the Minister’s costs.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 22 May 2015