FEDERAL COURT OF AUSTRALIA

SZFQP v Minster for Immigration and Citizenship [2007] FCA 671

SZFQP v MINSTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 403 OF 2007

COWDROY J

25 MAY 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  The name of the first respondent be amended to read ‘Minister for Immigration and Citizenship’.

2.                  The appeal be dismissed.

3.                  The appellant pay the costs of the first respondent in the sum of $3000.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     The appellant, a citizen of the People’s Republic of China (‘PRC’) arrived in Australia on 19 June 2004. On 2 August 2004 the appellant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs (‘the Department’). On 12 August 2004 a delegate of the Minister for Immigration and Multicultural Affairs (‘the Minister’) refused the application and this decision was upheld by the Refugee Review Tribunal (‘the Tribunal’) on 7 December 2004. The appellant applied for judicial review of the Tribunal’s decision. Federal Magistrate Barnes dismissed the application, and the appellant appeals to this Court from such decision.

BACKGROUND

2                     The appellant claimed to have well-founded fear of persecution because he is a Christian and a member of an underground Church. The appellant claimed that due to his father’s religious background, the appellant’s family suffered unfair treatment and continuous persecution, including being forced into poverty and being prevented from studying.

3                     The appellant had been involved in military training and was demobilised in June 1988. He claimed that in the following years he became a secret member of the underground Christian church and spread the Gospel. He claimed that he had been questioned by the Public Security Bureau (‘PSB’) and had been forced to relocate on numerous occasions. The appellant claimed that in December 2000 he and other members were arrested at a secret gathering and that he was not released until the end of January 2001. The appellant gave details of an incident in October 2002 in which he was detained for two weeks and had his leg cut with a knife by the police. The appellant also claimed that his two children were also victims of the persecution as they were often forced to do cleaning jobs at school.

4                     In February 2004 the appellant claimed that he was arrested by the PSB whilst distributing religious material, that he was detained for twenty five days and that he was tortured. The appellant claimed that the impetus for his leaving China followed a warning given to him by another member of the underground church, of the intentions of the PSB to arrest and imprison him.

5                     The appellant claimed that arrangements were made for him by his church to depart from the PRC using a passport in another name. The appellant claims that he then surrendered this passport in Fiji and was issued with a Republic of China (Taiwan) (‘ROC’) passport. The appellant submitted his original documents to the Tribunal to indicate his real identity.

THE DECISION OF THE TRIBUNAL

6                     The Tribunal accepted that the appellant was a practising Christian in the PRC. The Tribunal also considered country information which indicated the treatment of religious groups in the PRC varied between localities. The Tribunal had regard to the appellant’s evidence that members had been attending the church for many years, that the church displayed a cross and was readily identifiable as a church, and that local officials and police were aware that church services were being conducted in it. However the Tribunal was not satisfied that the church was an ‘underground church’. Further, the Tribunal noted that the appellant did not claim that the church leader had been arrested or prevented from conducting services or that the church had been closed down. The Tribunal was satisfied that the activities of the church had been tolerated by the PSB.

7                     The Tribunal was also satisfied the appellant played a minor role in the church and that he was not a leading figure. The Tribunal found the appellant’s claims of harm were mainly consistent, both with previous claims he had made and with country information, and that it was possible he had been ill-treated by police at some point. The Tribunal found however, that the appellant’s oral evidence was vague and he was unable to explain any reason for his specific victimisation. The Tribunal found that it was implausible that the appellant had been detained for distributing religious materials in 2004.

8                     The Tribunal was not satisfied the appellant was sought by the police when he left the PRC or that he left the PRC with a passport that was not in his name. For the above reasons, the Tribunal found that the appellant was not a person to whom Australia owed protection obligations under the Convention relating to the Status of Refugees 1954.

PROCEEDINGS IN THE FEDERAL MAGISTRATE COURT

9                     The appellant applied to the Federal Magistrates Court seeking a declaration that the Tribunal’s decision was made in excess of jurisdiction, a writ of certiorari, a writ of prohibition, and an order in the nature of a writ of mandamus. The appellant claimed that the decision of the Tribunal was attended by jurisdictional error and an absence of natural justice, in particular a breach of ss 424, 424A and 441A of the Migration Act 1958 (Cth) (‘the Act’).

10                  Before Barnes FM the appellant also claimed that the Tribunal failed to comply with its obligations under s 425 of the Act. The appellant claimed that the Tribunal asked him complex questions, that he was frequently interrupted and that the interpreter was unable to translate some religious terms. The appellant claimed that the Tribunal hearing was unfair and gave examples to support his concerns. Accordingly Barnes FM adjourned the hearing to enable the appellant to submit a copy of the transcript of the Tribunal’s hearing. On 11 October 2006, the Minister filed an affidavit with a copy of the transcript annexed with handwritten annotations. The appellant acknowledged that this annotated transcript accurately recorded the hearing before the Tribunal.

11                  The appellant also relied on an amended application filed on 6 May 2005. It claimed that the Tribunal failed to have regard to country information which indicated that members of unregistered religious groups had been subject to increased harm since 2001 and that evangelical Protestants were still being arrested. The appellant also claimed that the Tribunal failed to have regard to the fact that the appellant had distributed religious materials in public and was likely to be of interest to the authorities. The appellant claimed that the Tribunal’s decision was unreasonable in the Wednesbury sense and that there was no evidence to support the Tribunal’s finding that it was implausible that the appellant had been detained.

THE DECISION OF THE FEDERAL MAGISTRATE

12                  Barnes FM considered the grounds in the application and found that no breach of the Act had been established. Her Honour found that s 424A(1) applied to the country information referred to by the appellant, to which the Tribunal had regard, but that such information was subject to the exception in s 424A(3)(a). Her Honour noted the Application for Review had repeatedly referred to the previous claims of the appellant, thereby entitling the Tribunal to consider those matters. Her Honour found that s 424A(3)(b) would apply in relation to any information the appellant wished to rely upon which had been provided by the appellant in his protection visa application. Her Honour found that the Tribunal had not relied on inconsistencies between that information and the information before the Tribunal. Her Honour noted also that the Tribunal was not obliged to put its thought processes to the appellant under s 424A(1) of the Act.

13                  In relation to the appellant’s claim that the Tribunal failed to comply with s 425 of the Act, Barnes FM noted that the appellant could not identify any portion of the transcript to support his claim. Her Honour found that, in the absence of evidence, no inference could be drawn that religious concepts were improperly translated nor that the appellant did not have an opportunity to clarify his responses. Her Honour found no error was apparent on the face of the transcript and that the issue of interpreting was not raised during the Tribunal hearing. Her Honour found that the appellant was given an opportunity at the end of the hearing to make further submissions, and found no failure to comply with s 425 of the Act.

14                  Barnes FM was satisfied that the Tribunal had considered all of the appellant’s claims and that the ground of Wednesbury unreasonableness was not established. Her Honour also found that the appellant had not demonstrated that the Tribunal had made its findings in the absence of evidence. As no jurisdictional error had been made out, her Honour dismissed the application.

NOTICE OF APPEAL

15                  The Notice of Appeal to this Court asserted that Barnes FM erred in law and was wrong in finding that the Tribunal had acted properly in making its findings. The appellant claims that the Tribunal failed to comply with s 424A(1) and s 425 of the Act and that the decision of the Tribunal demonstrated a reasonable apprehension of bias.

APPELLANT’S SUBMISSIONS

16                  The appellant provided written submissions which claim that the Tribunal misstated or misunderstood portions of the information relied upon to make its decision, being information that was not provided by the appellant and made findings which were adverse to the appellant. The appellant provides examples of such findings which essentially relate to the involvement by the appellant with the church.

17                  The appellant also claims that the information relied upon was not the subject of the exception to s 424A(1) provided by s 424A(3) of the Act, and that the Tribunal had considered such information as a reason, or part of a reason, for making its decision. The appellant submits that the Tribunal was accordingly obliged to provide that information to the appellant.

18                  The written submissions of the appellant do not refer to the claim raised in the Notice of Appeal alleging a reasonable apprehension of bias by the Tribunal. However during oral submissions the appellant claimed that the Tribunal was strongly biased. He claimed that the Tribunal categorised church members as either leaders or members and made a finding that only leaders would be persecuted. The appellant claims that the Tribunal was biased against him because of his claim to be a refugee.

FINDINGS

Alleged failure of the Tribunal to comply with s 424A of the Act

19                  Barnes FM was correct to find that the appellant had republished to the Tribunal the information which he had provided to the Department in his protection visa application. Accordingly, although the information provided to the Department falls within the meaning of information for the purposes of s 424A(1), the Tribunal was entitled to rely on such information concerning the appellant’s activities in the church due to the exception provided by s 424A(3)(b) of the Act: see SZHIB v Minister or Immigration and Multicultural Affairs [2006] FCA 611 at [8]; NAZY v Minister for Immigration and Multicultural Affairs  [2005] FCA 744 at [36]- [37]; SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs  [2006] FCAFC 2 at [20].

20                  The appellant referred to the finding of the Tribunal that he was not a church leader and submitted that he did not say that he was a church leader. The appellant claimed that such finding demonstrated that the Tribunal reached such conclusion based upon information other than that falling within the exceptions to s 424A(1) contained in ss 424A(3)(a) and (b). He claimed that such information was ‘manipulated’ by the Tribunal and was required to be provided to him under s 424A(1) of the Act.

21                  The answer to the appellant’s submission is contained within his written submissions where he states:

‘However, it is not my evidence or not the information that I have given to the Tribunal. As a matter of fact, I have clearly stated in the Statutory Declaration that “Although I experienced many difficulties, I never gave up and continually spread the Gospel and actively participated in religious practices in the underground Christian church.” In other words I was a major activist who has in fact played a leading role in the church.’

In his statutory declaration the appellant stated that he had been ‘regarded by the PRC authorities as a key member in the underground Christian church’. Accordingly the statutory declaration together with the appellant’s submission before this Court establish that the appellant had claimed to be a leader of the church. Since this information was provided by the appellant, it fell within the exception provided by s 424A(3)(b) of the Act to s 424A(1). Additionally Barnes FM had before her independent country information in relation to Christian church activity in the PCR which fell within the exception to s 424A(1) contained in s 424A(3)(a) of the Act see: Minister for Immigration and Multicultural Affairs v NAMW (2004) 140 FCR 572.

22                 Barnes FM observed that the Tribunal had not relied upon any inconsistency between information provided to the Department and the Tribunal. Her Honour said:

‘The information relied upon by the Tribunal as the reason for its decision consisted variously of independent country information, the applicant’s oral testimony to it and the applicant’s application for review.’

This information, together with the information republished to the Tribunal was sufficient to enable the Tribunal to make its factual findings that the appellant was not a leading figure in the church and was not being sought by the police when he left the PRC. The appellant’s oral submission that he was not a leader of the church is inconsistent with his written submissions set out above. The findings of the Tribunal do not disclose any error of law in respect of s 424A(1) of the Act.

Claim of a reasonable apprehension of bias by the Tribunal

23                  In relation to the appellant’s claim of a reasonable apprehension of bias by the Tribunal, the Minister submits that such issue was not raised before Barnes FM and that it is not competent for this Court to hear such claim without leave being granted to the appellant to rely upon it. The Minister refers to the decision of the High Court of Australia in Water Board v Moustakas (1988) 180 CLR 491. At 497 the Court said:

‘More than once it has been held by this Court that a point cannot be raised for the first time on appeal when it could possibly have been met by calling evidence below.’

Despite this principle, the Court has considered the appellant’s claim that a reasonable apprehension of bias by the Tribunal existed.

24                  To succeed in such claim the appellant would need to satisfy the test for bias explained by the High Court of Australia in Re Refugee Tribunal; Ex Parte H (2001) 75 ALJR 982 at [27]-[32]; (2001) 179 ALR 425 at [27]-[28]. That is, the appellant would need to show that a ‘fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided’. A claim of bias raises a serious allegation in respect of which there must be specific matters identified by the appellant (see: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 at [43] – [48]; see also Re Minister for Immigration and Multicultural Affairs and Another; Ex Parte Epeabaka (2001) 206 CLR 128 per Kirby J at [90]; The Queen v The Commonwealth Conciliation and Arbitration Commission and Others; Ex parte The Angliss Group (1969) 122 CLR 546 at 553 – 554; The Queen v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 259).

25                  The appellant has been unable to indicate any specific ground of bias. When asked to substantiate this claim, the appellant merely said that he was a refugee and that the Tribunal had only considered that church leaders would be persecuted and not ordinary church members.

26                  The Court has considered the transcript of the hearing before the Tribunal and is satisfied that it does not disclose any ground for suggesting a reasonable apprehension of bias by the Tribunal member. The Court is satisfied that there are no jurisdictional errors as claimed.

Alleged breach of s 425 of the Act

27                  The appellant indicated at the hearing that he does not intend to pursue his claim that the Tribunal breached s 425 of the Act.

28                  The Minister has sought an order for costs in the sum of $3000. As this is within a reasonable range for costs, the Court will make the order sought.

Associate:

Dated:         25 May 2007