FEDERAL COURT OF AUSTRALIA
Wu Chen v Minister for Immigration & Multicultural Affairs [2001] FCA 766
WU CHEN v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
VG 704 of 1998
RYAN J
MELBOURNE
22 JUNE 2001
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IN THE FEDERAL COURT OF AUSTRALIA |
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VG 704 of 1998 |
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BETWEEN: |
WU CHEN Applicant
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AND: |
THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
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DATE OF ORDER: |
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WHERE MADE: |
THE COURT ORDERS THAT:
1. The application be dismissed.
2. The applicant pay the respondent’s costs, such costs to be taxed in default of agreement.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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VG 704 of 1998 |
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BETWEEN: |
Applicant
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AND: |
THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
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JUDGE: |
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DATE: |
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PLACE: |
REASONS FOR JUDGMENT
1 This is an application to set aside a decision of the Refugee Review Tribunal (“the Tribunal”), made on 2 December 1998 affirming a decision of the respondent’s delegate not to grant the applicant a protection visa.
2 A decision of the Tribunal may be reviewed under Pt 8 of the Migration Act 1958 (“the Act”), and that review is restricted to consideration of the grounds in s 476, which is in these terms:
"(1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:
(a) that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;
(b) that the person who purported to make the decision did not have jurisdiction to make the decision;
(c) that the decision was not authorised by this Act or the regulations;
(d) that the decision was an improper exercise of the power conferred by this Act or the regulations;
(e) that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;
(f) that the decision was induced or affected by fraud or by actual bias;
(g) that there was no evidence or other material to justify the making of the decision.
(2) The following are not grounds upon which an application may be made under subsection (1):
(a) that a breach of the rules of natural justice occurred in connection with the making of the decision;
(b) that the decision involved an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power.
Claims and Evidence.
3 The applicant, who is a citizen of the People’s Republic of China (“the PRC”) arrived in Australia on 6 December 1997 on a false Indonesian passport. He applied on 12 January 1998 to the Department of Immigration and Multicultural Affairs (the Department) for a protection visa, which was refused on 26 March 1998. On 28 April 1998 the applicant sought a review by the Tribunal of that refusal. At the time of the Tribunal’s decision, the applicant was 24 years old and came from Jianjing town in Fujian province.
4 The Tribunal summarised the claims of the applicant as follows:
“He was born into a Christian family which suffered a great deal at the time of the Cultural Revolution, when they were forced to write self confessions and self-criticism and perform hard labour. The applicant grew up in the care of his uncle. At school he was bullied, insulted and abused. However he put his faith in God.
Even when the Cultural Revolution ended, the applicant’s parents continued to suffer, and still had to do hard labour. They kept up their Christian beliefs. At Christian gatherings, there was often reference to problems arising in China due to the control of the Communist Party (CCP), and this angered the authorities.
When the applicant graduated from secondary school in 1991, the authorities, knowing that he was a Christian, would not allow him to be admitted to tertiary education or assigned to any work unit. The only work he could obtain was as a casual worker on construction sites.
The applicant maintained his Christianity. He hated the CCP, and often spoke out against it. He was heavily involved in house church activities, including delivering propaganda materials, collecting donations and doing missionary work. These activities were regarded as counter-revolutionary, and the applicant had to be secretive about them.
Nevertheless, the house church was discovered by the authorities. One day, the applicant’s friend warned him that there was going to be a raid on the congregation, and he should stay away. The applicant, however, ignored this advice. On 25 June 1997, he attended his house church as usual. About twelve members were present. Suddenly, five officers rushed in and began to put handcuffs on the people present. Fortunately for the applicant, one of these officers was a friend of his. This officer gave the applicant an opportunity to escape, and he and three others did so by jumping out of a large window.
Acting on the advice of his aunt, he went to the province of Anhui. He looked for other Christians there, but found that house churches were forbidden in Anhui also. After some three months, he met a friend who said he should leave the PRC in order to find real religious freedom. The applicant accepted this advice. He contacted his family who raised a large amount of money for him. In October 1997, he was given an Indonesian passport, which he used to fly to Indonesia on 19 October. In Indonesia he spent further money to obtain a visa for Australia.
…
The applicant bases his case on his religion, saying that his past experiences and the country information about persecution of Christians in China shows that he has a well-founded fear of persecution. He also refers to the experiences of his family during the Cultural Revolution.”
5 The Tribunal indicated serious concerns about the credibility of the applicant and supporting evidence on which he relied. It pointed out that the applicant had given conflicting and unconvincing answers to questions posed to him by the Tribunal in relation to the identity of the person who helped him with the preparation and translation of the application. The Tribunal noted the similarity of the applicant’s claim to those of many other recent applicants from the same town in Fujian Province, remarking that there was even a similarity in the handwriting used on the application form. These matters were said to give rise to a suspicion that the applicant had been assisted by some person or agency involved in immigration fraud.
6 Furthermore, the applicant was unable to answer some somewhat basic questions posed by the Tribunal in relation to his story. He was unable to name the nearest large city to the place where he claimed to have been in hiding for three months in Anhui Province. When questioned on the nature and extent of his Christian faith, he identified himself as a Catholic. However, the Tribunal regarded his responses as indicating that he was unaware that the Pope was the head of the Catholic Church. When asked for details of his claimed evangelising, he unconvincingly mentioned only the distribution of pamphlets.
7 Finally, the Tribunal recorded that the applicant’s passport and travel documents had led it to doubt his assertions about his times of arrival in Jakarta and Australia, and that he was wanted by the PRC authorities at the time. The passport had no exit stamp evidencing departure from the PRC and contained a copy of a passenger card, suggesting it had been obtained in Indonesia, not in the PRC as the applicant claimed. The Tribunal therefore concluded:
“Based on all these reasons, I infer that most of the applicant’s claims are untrue. I accept in the absence of any particular reason for disbelief, that his family were Christians and suffered at the time of the Cultural Revolution. I do not accept, however, that the applicant was disadvantaged in terms of employment by Christianity; that he was deeply involved in Christian work or in missionary or evangelizing activity; that he was present at a house church meeting which was raided; that he fled to Anhui; that he obtained an Indonesian passport in the PRC; or that he used an Indonesian passport to leave the PRC.”
8 In its “Decision and Reasons for Decision” the Tribunal set out and analysed the criteria for the grant of a protection visa under the Migration Regulations. It noted that the obligation to protect a non-citizen in Australia arises under the Refugees Convention and Refugees Protocol. The Tribunal also discussed the definition of “Refugee” under these instruments and considered the concept of “persecution” and the authorities in which the meaning of a “well-founded” fear of persecution has been explained.
“The applicant is at best a very low-profile and ordinary Christian follower. He is not a member of any unorthodox sect and, on the findings of the Tribunal, he has done nothing that, on the evidence of the country information, might attract the adverse attention of the Chinese authorities. Therefore the Tribunal finds that he does not face a real chance of religious persecution in Fujian.
The applicant has also referred to the treatment of his family during the Cultural Revolution. However, notwithstanding this treatment, he himself was able to complete secondary education and has, apparently, been continuously employed since then. Nor has he suffered mistreatment at any time by reason of his family background or any matters related to the Cultural Revolution. This indicates that these past events are not now of any relevance to his circumstances.”
11 As it did not regard the applicant as having a well-founded fear of persecution for a Convention reason, the Tribunal was not satisfied that the applicant was a refugee and affirmed the decision not to grant a protection visa.
Grounds for Review.
12 The applicant contended that the decision of the Tribunal was affected by reviewable error in four ways.
13 First, it was said that the Tribunal had failed to set out its findings as required by s 430 of the Act, and that this amounted to a failure to observe a procedure required to be observed in connection with the making of a decision, rendering the decision reviewable by virtue of s 476(1)(a). Another failure to observe required procedures was said to be constituted by the Tribunal’s omitting to provide the applicant with copies of applications by other applicants which were said to be similar in format to his own or in the same handwriting.
14 Secondly, the applicant argued that the decision had been affected by one or more errors of law, and was reviewable by virtue of s 476(1)(e). These errors of law were said to be the Tribunal’s failure to make further inquiries when it was under a duty to do so, its failure to give notice, in advance of the hearing, of the allegations of immigration fraud and its failure properly to consider all the substantive issues and evidence leading to the determination.
15 Thirdly, the applicant claimed that the decision had been affected by actual bias within the meaning of s476(1)(f) revealed by certain adverse comments made by the Tribunal member and some questions put by the member to the applicant as disclosed by the transcript of proceedings before the Tribunal.
16 Finally, the applicant claims, under s476(1)(g) that there was no evidence to justify the conclusion reached by the Tribunal.
(1) Alleged Non-observance of required procedures.
(a) Tribunal’s failure contrary to s 430 to set out its findings.
“Section 430 does not expressly impose such an obligation. In its terms, it requires no more than that the Tribunal set out the findings which it did make. Neither expressly nor impliedly does this section require the Tribunal to make, and then set out, some findings additional to those which it actually made. In Singh, significance was attached to the use of the word "material" in s 430(1)(c). It was said [in Singh (2000) 98 FCR 469 at 481 [47]-[48]] that "material" in the expression "material questions of fact" must mean "objectively material". Even if that were right, it would by no means follow that the Tribunal was bound to set out findings that it did not make. But it is not right to read "material" as providing an objective or external standard of materiality. A requirement to set out findings and reasons focuses upon the subjective thought processes of the decision‑maker. All that s 430(1)(c) obliges the Tribunal to do is set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision.” (original emphasis)
18 There Honours went on to observe at [69] that “[s 430] entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material.” From that premise, it was reasoned that the statement furnished pursuant to s 430 may provide a basis for an applicant’s asserting that the Tribunal had taken into account some irrelevant consideration or had failed to take into account relevant consideration. However, “the considerations that are, or are not, relevant to the Tribunal’s task are to be identified primarily, perhaps even entirely, by reference to the Act rather than the particular facts of the case that the Tribunal is called on to consider” (ibid [73]).
19 It was acknowledged in the joint judgment that the considerations advanced by the parties may have a bearing on what is, or is not, a relevant consideration. However, their Honours went on, at [74], to enter this caveat;
“What is important, however, is that the grounds of judicial review that fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether the decision‑maker has properly applied the law. They are not grounds that are centrally concerned with the process of making the particular findings of fact upon which the decision‑maker acts.”
20 In considering Pt 8 of the Act, the High Court in Yusuf and Israelian limited the availability of s 430 as a source of legal error by the Tribunal by observing, at [77] of the joint judgment;
“It is implicit in what has already been said about s 430 that a complaint that the Tribunal has not made a finding of fact on a material question cannot support review on this ground. An alleged failure to make a finding of fact on a material question is not a failure to observe a "procedure … required" by the Act. If it is an error, it is an error of substance. Moreover, it may greatly be doubted that an obligation to set out findings could be said to be a procedure which is to be observed in connection with the making of the decision in question, as the setting out of the decision and reasons assumes that the decision has already been made. It is, however, enough to say that the conclusion that, so far as now relevant, s 430 requires only the recording of what was found and does not impose any duty to make findings, means that an asserted failure to make findings is not a breach of s 430. Accordingly, s 476(1)(a) is inapplicable.” (original emphasis).
(b) The Tribunal’s failure to provide applicant with copies of other applications said to be similar to his or in the same handwriting.
“The applicant cannot speak, read or write any language other than Mandarin. Nevertheless, his initial application form and a ten-page accompanying submission were completed in English. The form says that no interpreter or migration agent was used in its preparation. When the applicant was asked whether he had had any help in completing his application, he first said no. On further questioning, he said a friend had helped him by translating his statements from Mandarin into English. However, he was unable to remember the name of the friend. He then said the friend was just somebody he had met on the street. He was evasive and most unconvincing in these answers.
The Tribunal notices the similarity of the applicant's claims to those of many other recent applicants from the same town in Fujian Province, and even a similarity in the handwriting used on the application form. Based on this, together with the applicant's untruthfulness in answering questions about the completion of the form, I conclude that almost certainly he is one of a number of applicants who have had claims prepared on their behalf by a person or agency involved in immigration fraud.”
23 Counsel for the applicant pointed to s 427(1)(c) of the Act which provides that;
“For the purpose of the review of a decision the Tribunal may:
... ... ... ... ...
(c) subject to sections 438 and 440, give information to the applicant and the Secretary.”
24 Section 438 enables the Minister to certify that the disclosure of matter contained in a document or of information would be contrary to the public interest or had been given to the Minister or an officer of the Department in confidence. On such a certificate being given, the Tribunal has a discretion under s 438(3) to disclose any matter contained in the document, or the information, to the applicant. However, if that discretion is exercised, the Tribunal must give a direction under s 440 of the Act that the relevant document, or information, not be published or otherwise disclosed at all, or except in a particular manner and to particular persons. There is no suggestion in the present case that any certificate pursuant to s 438 had been given in respect of the other applications or the handwritten documents to which the Tribunal referred in the passage reproduced at [22] of these reasons.
25 In my view, s 427 confers a discretionary power on the Tribunal to give information to an applicant. It does not lay down a “procedure” that “is required by this Act ..... to be observed in connection with the making of a decision.” It may be that a failure to exercise the discretion so as to bring to the notice of an applicant a matter on which he or she should reasonably be given an opportunity to comment would constitute a breach of the rules of natural justice; see eg Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193. However, a breach of that kind is expressly excluded by s 476(2)(a) as a ground of review by this Court of a decision of the Tribunal.
(2) Alleged errors of law.
26 This attack on the Tribunal’s decision was, in part, bound up with the claim that there had been a contravention of s 430 which is discussed in [17] - [21] of these reasons. It was said in that context that the Tribunal had failed to make further inquiries of the kind illustrated by a report by Amnesty International to which Mr Krohn for the applicant referred. I allowed the reference to that report, not by way of admitting fresh evidence, but as illustrating a proposition in the same way that reference might be made to a textbook as formulating a legal principle or a counsel of perfection to be applied by an administrative tribunal. The Amnesty International report contained these passages;
“Such persecution of religious groups has followed a substantial religious revival in China over the past 15 years. In the Christian community, much of the expansion has been in religious groups that conduct their activities outside the Protestant and Catholic churches recognized by the government. Many peaceful but unregistered religious gatherings have been raided by police, and those attending have been beaten, threatened or detained. Many of those detained are required to pay heavy fines as a condition for release. Those regarded as “leaders” are usually kept in custody and either sentenced to prison terms or administratively detained without charge or trial.
In January 1994, two national regulations on religious activities came into force. They included some new guarantees to protect human rights, but also consolidated restrictions on religious activities already provided by local regulations. Notably, they banned religious activities which “undermine national unity and social stability”, a formulation that leaves room for wide interpretation. They also require that all “places of religious activities” be registered with the authorities according to rules formulated by the government’s Religious Affairs Bureau. This means in effect that religious groups that do not have official approval may not obtain registration, and that those involved in religious activities in unregistered places may be detained and punished. Detention and criminal penalties are listed as punishments for violation of the regulations.
... ... ... ... ...
Other people arrested for practising their religion include more than 30 Roman Catholics who were arrested in Jiangxi province in April 1995 in connection with the celebration of Easter Sunday Mass on Yi Jia Shan mountain in Chongren county. The mountain has long been used as a place of worship by Roman Catholics from across Jiangxi province. Many of those held in April 1995 were reportedly severely beaten by police at the time of arrest. Most were released after short periods although at least 14, most of them women, were fined 900 yuan. One woman, 18-year-old Rao Yanping, was reportedly sentenced to four years in prison on 9 June 1995, and three men received prison terms ranging from two to five years.
Arrests of Christians have continued in various provinces since then. Those held reportedly included 300 people detained in June 1995 after police raids on house-churches in Anhui province. Most were released after paying fines of between 800 and 1,000 yuan, but several house-church leaders reportedly remained in custody in September 1995.”
27 As noted in [9] above, the Tribunal in its reasons did refer to a body of “country information” about levels of tolerance and persecution of Christians in the PRC. However, as I understand it, the criticism is made that the “country information” to which it referred did not illuminate the position of members of “underground” or “home” Christian churches of which the applicant claimed to be one.
28 A failure by the Tribunal to conduct what are said to be the appropriate inquiries as contemplated by s 420 of the Act does not constitute a reviewable error in the meaning of s 476; see eg Yilan v Minister for Immigration and Multicultural Affairs (1999) 55 ALD 600 at par 51, which I applied in Majeed v Minister for Immigration and Multicultural Affairs [2000] FCA 470 at [19]. Accordingly, a failure by the Tribunal to make what it contended to be a relevant inquiry can only be relied on indirectly in an application like the present, as indicating a failure to take into account a relevant consideration. As McHugh, Gummow and Hayne JJ recently indicated in Yusuf and Israelian (supra, at par 75);
“If the Tribunal, confronted by claims of past persecution, does not make findings about those claims, the statement of its reasons and findings on material questions of fact may well reveal error. The error in such a case will most likely be either an error of law (being an erroneous understanding of what constitutes a well‑founded fear of persecution) or a failure to take account of relevant considerations (whether acts of persecution have occurred in the past) [O’Brien (1985) 155 CLR 422 at 446 per Brennan J; Sullivan (1978) 20 ALR 323 at 348-349 per Deane J, 353 per Fisher J]. It is not accurate, however, to say that the Tribunal is, therefore, under a duty to make all material findings of fact, if, as seems probable, that formulation of the duty is intended to extend the ambit of judicial review beyond accepted and well‑established limits. If it is not intended to have that effect, it is not useful to formulate the duty in that way. Rather, the relevant inquiry remains whether the Tribunal has made an error of law, has failed to take account of relevant considerations, or has taken account of irrelevant considerations.”
29 In the present case, the ultimate question for the Tribunal was whether the applicant had a well-founded fear of persecution by reason of religion upon return to the PRC. Considerations relevant to the answering of that question included the nature of the applicant’s religious belief, the ways in which he would be likely to give expression to it if he were to return to the PRC and the likely attitude of the authorities in that country to expressions in those ways of religious belief. In my view, it cannot be inferred, from its presumed failure to discover and refer to material of the kind contained in the Amnesty International report, that the Tribunal failed to take account of those considerations. The contrary inference is supported by the Tribunal’s extensive reference to other “country information” about the attitude of the authorities in Fujian Province to Christian religious activity of various kinds. A review of that information led the Tribunal to conclude;
“Thus the information is somewhat mixed. I think the proper conclusion to be drawn is that there has over the last few years been some harassment of Christians in Fujian. This has been directed principally at members of particular rather unorthodox sects and at high-profile underground church leaders. The position is apparently somewhat worse in the countryside than in the cities. With regard to ordinary Christians, the evidence is that there are hundreds of thousands of them who worship quite openly without encountering difficulty, though there are occasional incidents of harassment. Therefore it would not be correct to conclude that these people face a real chance of persecution, either in the form of prevention of religious practice or in the form of punishment for such practice.”
30 It is also significant that the applicant himself had been able to refer to “country information” such as that contained in the US State Department’s China Report on Human Rights Practices for 1993. That, of course, did not relieve the Tribunal from the need to review whatever other pertinent country information was available to it, but it militates against the contention that there was an error of law constituted by a failure to take account of a relevant consideration.
31 The second way in which Counsel for the applicant sought to impute an error of law to the Tribunal was to say that it failed to “deal explicitly and properly and sufficiently with the question of what happens if this applicant returns to China and seeks to practise his religion in an unregistered church.” In a related way, it was submitted that the Tribunal failed to consider the applicant’s adherence to an underground or unregistered church and failed to make a finding about what sort of Christian the applicant is. However, in my view, these asserted omissions do not betoken a failure to take account of the relevant consideration. As already observed, the Tribunal undertook an extensive review of “country information” about the attitude of the authorities in the PRC to the practice of Christianity in both registered and “house” or underground churches. It prefaced that review with the finding that;
“country information does not support the applicant’s claim that he faces persecution in the PRC because of his religious beliefs, or that he will be unable to practise his religion.”
32 The indications afforded by the “country information” were then related to the particular circumstances of the applicant when the Tribunal made the finding reproduced in [10] of these reasons to the effect that the applicant is a “low-profile” ordinary Christian who has done nothing to attract the adverse attention of the Chinese authorities. In the light of those conclusions, I do not consider that the Tribunal was obliged, on pain of committing an error of law, to set out its findings on all or any of a number of anterior questions as, for example, by identifying the precise religious tenets or doctrines to which the applicant subscribed. The answers to many of those questions turned on the Tribunal’s assessment of the credibility of the applicant. That, as McHugh J observed in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405 at 417 [67];
“was essentially a finding as to whether the prosecutor should be believed in his claim - a finding on credibility which is the function of the primary decision maker par excellence. If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence.”
33 In this case, in any event, the Tribunal did give quite detailed reasons for disbelieving the applicant’s assertion to be more than a “low-profile” ordinary Christian.
34 Reading the Tribunal’s reasons as a whole, and in the way mandated by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 229 at 271 - 272, without an over-zealous concern to detect error, I am not persuaded that it failed to take into account any consideration relevant to whether the applicant had a well-founded fear of persecution by reason of religion if he were to return to the PRC.
(3) Actual Bias.
35 Section 476(1)(f) of the Act provides for review of a decision of the Tribunal which was induced or affected by actual bias. In Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71, at 134, North J said;
“Actual bias exists where the decision-maker has prejudged the case against the applicant, or …was not open to persuasion in favour of the applicant … where actual bias is not expressly voiced, it may be proved by inference from the facts and circumstances … actual bias may exist even if the decision-maker did not intend or did not know of the prejudice, or even where the decision-maker believes, and says, that they have no prejudged the case.”
36 That case established the general principle that a finding of actual bias requires that the Tribunal be shown to have a mind closed to the submissions of the applicant or to have evidently set out on a course of inquiry conducted only to elicit information adverse to the applicant. North J accordingly indicated that actual bias is more likely to be evidenced by a pattern of conduct, or a series of actions, on the part of the Tribunal than by a single expression of attitude. Authority further suggests that the circumstances giving rise to a finding of actual bias must be exceptional although it is clear that the conduct occasioning it need not be intentional.
37 The applicant points to three instances of conduct or findings by the Tribunal which are said to display bias. First, it was submitted that the Tribunal had indicated a readiness to infer that the applicant had been involved in immigration fraud. Secondly, the Tribunal was said to have arrived at its finding that the applicant was not a Catholic after inappropriate or unsympathetic questioning had elicited the applicant’s ignorance of notorious matters such as that the Pope as head of the Catholic Church. Finally, Counsel for the applicant pointed to opinions published on his personal website by Dr Hudson, the member who constituted the Tribunal in the present case.
38 The respondent contended that the Tribunal’s adverse finding in relation to the first issue was in fact based upon the similarity in format and handwriting between the applicant’s application and the others to which the Tribunal referred, and the applicant’s untruthfulness in answering questions about the completion of his form. The Tribunal’s discussion of aspects of the applicant’s written application which excited its concern has been set out at [22] above. That matter was explored by the Tribunal in the course of the hearing as indicated by this exchange recorded at p 4 of the transcript;
Tribunal: When you filled out this form applying for refugee status, did anybody give you any assistance in filling that out?
Applicant: No
Tribunal: In that case, how were you able to fill it out since you don’t speak English?
Applicant: I wrote a statement and then I got someone to translate it into Chinese.
Tribunal: So somebody did help you?
Applicant: Nobody helped me. I just asked the person to translate the material for me.
Tribunal: Well, these questions in the application form are written in English, how could you understand them if you don’t know English?
Applicant: I asked a friend to translate the questions into Chinese.
Tribunal: What was the name of the friend?
Applicant: I’m not sure. It’s a friend of a friend.
Tribunal: A minute ago you said it was a friend and now you say you don’t know his name. How did you know this person?
Applicant: Yes, I bumped – I bumped into him on the street and because he speaks Chinese and he is Chinese.
Tribunal: There are a lot of Chinese people in Australia.
Applicant: Yes.
39 At p 5 of the same transcript the matter was further explored in these terms:
Tribunal: I should just let you know that the handwriting on this application form and the appeal from to the Tribunal is very similar to the handwriting in other application forms from Chinese applicants from Fujian whose claims are very similar to yours. Do you have any comment to make about that, why that might be?
Applicant: Same person.
Tribunal: So the same person you think, by coincidence just happened to translate the application, and a lot of Chinese applicants from your town?
Applicant: It’s a coincidence.
40 I do not consider that the Tribunal’s examination of the applicant on those aspects of his application transcended the bounds of what was permissible so as to support an inference that the Tribunal’s mind was closed to the merits of the applicant’s case. As Burchett J indicated in a similar context in Sun v Minister for Immigration and Ethnic Affairs (supra) at 127, oral examination of an applicant may be “rigorous, even sceptical.” However, to convict the Tribunal of actual bias in these circumstances, this Court has to be persuaded that whatever answers the applicant might have given in the course of such rigorous or sceptical examination would have made no difference. I am not so persuaded in this case.
41 Similar considerations apply to the Tribunal’s exploration of the applicant’s claimed Catholicism. The Tribunal’s finding on that issue was set out in these terms in its reasons for decision, at p 8;
“The applicant identified himself as a Catholic. He showed a basic knowledge of Christianity, and although it is possible that this could have been learned in Australia for the purposes of furthering his claims, in the absence of any evidence about this I should extend the benefit of the doubt. I therefore accept that the applicant is a Christian. However his knowledge of Christianity was only basic, and I infer he is not a deeply committed Christian or Christian leader. Furthermore, he was unable to name the Pope or say where the Pope lived. Indeed, he seemed not to be aware that the Pope was the head of the Catholic church. I infer that he is not a Catholic after all.”
42 Counsel for the applicant referred to the transcript of the hearing before the Tribunal on which that finding was based. The questions directed by the Tribunal to the applicant on the issue of his Catholicism were no less rigorous or sceptical than those addressed to the compilation of his application for refugee status. That led Mr Krohn to criticise the Tribunal for a lack of understanding of the limited opportunities for religious instruction in the PRC. Had such an understanding informed the Tribunal’s approach to the applicant, so the argument went, a more sympathetic allowance would have been made to what, to Western eyes, appeared to be gaping holes in his religious knowledge. However, it must be remembered that the Tribunal is required to assess a wide variety of applicants for refugee status from a multiplicity of social, religious and cultural backgrounds. The fact that its questioning may, at times, reveal unfamiliarity or even ignorance of those backgrounds or be insensitive or hostile is not to be equated with the possession of a closed mind in the requisite sense.
43 I have considered in LSLS v Minister for Immigration and Multicultural Affairs [2000] FCA 211 whether the remarks published by Dr Hudson on his Internet website demonstrated that he was actually biased against the applicant in that case. I there said, at [49];
“In the present case, however, the Tribunal, in the remarks on the Internet, did not advert to any of the specific matters which it had to decide on in relation to the present applicant. Dr Hudson acknowledged on the Internet that the great preponderance of applicants "are usually deserving cases and decent human beings". He regretted the tendency of those same applicants to "lie through their teeth (as they often do) in their desperation to find a better life". However, the very tenor of those remarks implicitly concedes that some applicants are generally truthful and not all are untruthful on every issue. The reference to "applicants who weave webs of lies" does not support an inference that Dr Hudson was convinced, beyond persuasion to the contrary, that all applicants are liars. As Heerey J observed [in Ferati v Minister for Immigration and Multicultural Affairs (1998) 54 ALD 381]:
"Dr Hudson has published to the world a view that applicants for refugee status, as a class, are unlikely to be truthful. Literally of course that does not deny the possibility that some asylum seekers are truthful."
Accordingly, his Honour confined himself to a finding of apprehended bias as is made clear by his prefacing his conclusion with the statement:
"But no asylum seeker could reasonably be expected to accept as fair a decision-maker who has already indicated a predisposition to regard asylum seekers as untruthful. An applicant would regard him or herself as starting behind scratch."
44 As in that case, the Tribunal’s finding in the present case on the ultimate question which, here, was as to a risk of persecution by reason of religion, was based on its examination of the “country information” to which I have referred earlier in these reasons. In LSLS I held that the Tribunal’s state of mind as to the credibility of applicant’s generally, could not be said to have “induced or affected” its decision. I went on in my reasons in the that case to conclude;
“The applicant has sought to argue that the bias which he imputed to the Tribunal, even if not directly related to matters crucial for determination, has so infected the decision that its existence in relation to one matter (such as the applicant’s credit), would entail that the whole decision was “induced or affected” by actual bias. That argument, I consider, is properly available only in respect of apprehended bias where the focus is on whether the conduct of the judicial officer or tribunal has been such that "a substantial distrust of the result must exist in the minds of reasonable persons". (The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 116.”
See also James v Minister for Immigration and Multicultural Affairs [2000] FCA 804, where Sundberg J agreed with the rejection in Ferati and LSLS of actual bias.
45 The same reasoning, I consider, compels the rejection of the applicant’s invocation of actual bias in the present case. Moreover, since Ferati, LSLS and James were decided, the High Court in Re Minister for Multicultural Affairs Ex parte Epeabaka [2001] HCA 23 has held that the published comments on the Internet did not support even the inference preferred by Heerey J in Ferati that apprehended bias could be imputed to the Tribunal constituted by Dr Hudson.
46 Even if the three strands from which the applicant sought to weave a pattern of actual bias are considered together, I do not consider that the applicant has discharged what the authorities acknowledge to be the heavy burden of making out that allegation.
(4) No evidence.
47 Section 476(1) of the Act provides;
“Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:
.....
(g) that there was no evidence or other material to justify the making of the decision.”
48 Sub-section (4) of s 476 stipulates;
“The ground specified in paragraph (1)(g) is not to be taken to have been made out unless:
(a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or
(b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.”
49 It was submitted on behalf of the applicant that, in the absence of expert handwriting evidence and evidence going to the freedom and safety of Christians in the PRC who adhere to unregistered churches, it should be presumed that there was no evidence in the sense contemplated by s 476(1)(a) to justify the making of the Tribunal’s decisions as to those matters. In my view, “the decision” in s 476(1)(g) refers to the Tribunal’s ultimate decision whether to grant or refuse the application and not to a “decision” or finding made in resolving some factual issue on the way to the ultimate decision. Moreover, as I observed in Pei Lan He v Minister for Immigration and Multicultural Affairs [2001] FCA 446 at [37];
“the Tribunal was not required by the Act to reach a decision refusing the application only if a particular matter was affirmatively established which, I consider, s 476(4) requires. The Tribunal was entitled to make a decision refusing the application upon being satisfied that the applicant did not have a well-founded fear of persecution for a Convention reason. The attainment of that state of satisfaction did not require the affirmative establishment of a particular matter.”
50 In any event, there was evidence, derived from the Tribunal’s concededly inexpert comparison of the applicant’s application with the others to which it referred, to justify its finding on the first matter raised by the applicant. Similarly, there was evidence in the form of “country information” to justify the Tribunal’s finding about the degree of risk to which “low profile” Christians adhering to unregistered churches were subject in the PRC. Accordingly, this fourth ground of attack on the Tribunal’s decision cannot be sustained.
Conclusion.
51 As none of the grounds advanced with considerable pertinacity and skill on behalf of the applicant has been made out, the application must be dismissed with costs.
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I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan. |
Associate:
Dated: 22 June 2001
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Counsel for the Applicant: |
Mr A Krohn |
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Solicitor for the Applicant: |
MSC Legal Services |
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Counsel for the Respondent: |
Mr D Star |
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Solicitor for the Respondent: |
Australian Government Solicitor |
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Date of Hearing: |
11 May 2000 |
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Date of Judgment: |
22 June 2001 |
