FEDERAL COURT OF AUSTRALIA

SZQGN v Minister for Immigration & Citizenship & Anor [2012] FCA 436

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The appellant is a Chinese national. He arrived in Australia in February 2010 as the holder of a visitor’s visa on a false passport. The following month he applied for a protection visa, claiming to fear persecution in the People’s Republic of China for religious reasons. His application was rejected by a delegate of the first respondent (“the Minister”). An application for review before the second respondent (“the tribunal”) failed. And he was unable to persuade a federal magistrate that the decision of the tribunal should be quashed. This is an appeal from the federal magistrate’s judgment.

2    The appellant claims to be a third generation underground Catholic, from Fujian province, who joined a Catholic youth group at the age of 16 and, since 2003, had worked as a missionary. In a statutory declaration attached to his visa application he reported having been arrested in the company of a priest in December 2005, tortured and held for two weeks and only released on payment of a significant sum of money. He stated that his family then persuaded him to move to another province and to leave behind his wife and children. He said he only returned to his home province for New Year celebrations in late January 2010 and that when he did members of a “police assistance force” tried to recapture him. He claimed that, in fear for his safety, he fled. He said that, with the assistance of a friend of a relative, he secured a false passport and was spirited out of the country. He said he is afraid that if he is taken back to China he will be arrested and gaoled and unable to practise his religion. He claimed that his wife, a primary school teacher, had stopped teaching because the police had threatened her. He attached a number of photographs said to corroborate his claim to be a practising, indeed, proselytising Catholic. Later, he furnished to the Department of Immigration and Citizenship a copy of what he said was his baptism certificate, showing that he had been baptised as a Catholic at the age of seven.

3    To obtain a protection visa the appellant had to be a non-citizen to whom the Minister was satisfied Australia owes protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (together “the Convention”): Migration Act 1958 (Cth) (“Migration Act”), s 36(2). Australia has protection obligations towards refugees. Article 1A(2) of the Convention relevantly defines a refugee as a person who

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country …

4    A fear of being persecuted will be well-founded if there is a real chance of persecution. A remote chance is not a real one: Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.

5    Section 91R of the Migration Act additionally requires that the feared persecution involve “serious harm” to the applicant and systematic and discriminatory conduct. “Serious harm” is relevantly defined to include a threat to life or liberty and significant physical harassment or ill-treatment.

6    A delegate of the Minister interviewed the appellant in relation to his application. She was satisfied that he was a Catholic but, relying on country information which, she said, did not support the appellant’s claim that Catholics were persecuted by the authorities in Fujian province, she decided that the appellant’s claims to fear harm on the ground of his religion were not genuine and that he did not face a real chance of persecution if he were to return to China. Consequently, she rejected his application.

7    The appellant then applied to the tribunal for a review of the delegate’s decision. The tribunal invited him to appear before it to give evidence and present arguments and he did so. He also provided the tribunal with three statutory declarations. One was his own. Its contents were substantially the same as the statement attached to his protection visa application but with additional detail. The second was one from a fellow Catholic underground church member. It confirmed that the appellant was a Church youth group leader. The declarant also gave oral evidence before the tribunal that he saw the appellant at Church gatherings in the period 1996–8. The third came from a woman who said that at around the same period the appellant worshipped with her at a Roman Catholic underground church and had attended the same private study groups. The appellant also submitted a letter from his previous employer confirming his involvement in weekend Catholic underground church activities, and a statement from a Father Lin (apparently the chief priest of the appellant’s church) confirming the appellant’s involvement in the church and the fact and time of his baptism. The appellant’s then solicitor provided the tribunal with various pieces of country information. The hearing was conducted over two days, on 21 September 2010 and 29 October 2010. After the hearing the appellant furnished the tribunal with a letter from the president of the Western Sydney Catholic Chinese community. The letter reported on the appellant’s active participation in the community. It also contained the author’s opinion that the appellant would face persecution if he returned to China but it did not disclose the facts or assumptions on which that opinion was based.

8    The tribunal published its decision six months later on 29 April 2011. It, too, accepted that the appellant was a Roman Catholic. It also accepted that there were some incidents of suppression of lay underground Roman Catholics. But it did not accept that the appellant was or is of interest to the Chinese authorities because of his religion or his religious activities or that he was detained and questioned by authorities in China for the reasons he claimed. Nor did it accept that he moved to a different province because he feared harm from the authorities. The tribunal accepted that some people who practise in the “unauthorised Roman Catholic Church” in China suffer persecution there, including in Fujian, because of their religion. But it did not accept that the appellant was one of them. It found that there was a remote possibility that the appellant might be persecuted for the reason he claimed, but not a real chance. Accordingly, it affirmed the decision under review.

9    The appellant then applied to the Federal Magistrates Court to have the tribunal’s decision quashed.

10    The appeal is in the nature of a rehearing but error must still be shown: SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129 at [11]. The appellant contends that the federal magistrate “erred in law” and that her Honour was wrong to find that the tribunal “acted properly in its findings”. The alleged error of law is not identified. Nor does the appellant particularise why the federal magistrate was otherwise wrong.

11    For the reasons that follow, I am not satisfied that the federal magistrate fell into error.

12    The decision of the tribunal is “a privative clause decision” within the meaning of s 474 of the Migration Act. As such, it is only susceptible to challenge for jurisdictional error. See Migration Act, s 476(1) and Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476. The application filed in the Federal Magistrates Court contained one ground. It read:

There was an error of law in the Tribunal’s decision constituting a jurisdictional error.

13    The appellant provided no particulars in support of the ground. At the hearing, however, he argued that there had been “undue delay” in the tribunal making its decision (though later submitting that the tribunal did not take enough time to deliberate on his claims), the tribunal was biased “in that there was no evidence upon which it based its decision” and that the tribunal had “no understanding about China”. On the appeal the appellant repeated his claim of bias, albeit rather tentatively, submitting “I think possibly there is a bias”, “maybe” on the part of the tribunal.

14    The federal magistrate correctly held that the tribunal’s decision was not affected by jurisdictional error and that the Court consequently had no power to intervene.

15    The federal magistrate observed that there is no statutory requirement for the tribunal to deliver its decision within a certain period of time. Her Honour rejected the proposition that the delay was undue. She also noted the appellant’s inconsistent submission that the tribunal had been too hasty in making its decision. She observed that in any event no jurisdictional error had been shown in the timing and delivery of the decision. This reasoning does not disclose appealable error. Her Honour did say that the appellant had called no evidence to support his allegation. I am not sure what evidence he could have called. Regardless, even if the delay could be described as undue, without more, this could not amount to jurisdictional error.

16    The federal magistrate rejected the allegation of bias, noting the absence of evidence to support it, too. Her Honour also found there was no justification for a finding of apprehended bias either. Her Honour’s references to the authorities were apt and her summary of the relevant law correct. In any event, however, the appellant’s contention below was that bias was to be found in the fact that there was no evidence to support its decision. That contention was without merit. The tribunal was not obliged to accept what the appellant said. It had to be satisfied that his claim was a genuine one. As the tribunal observed (at [5]) the grant of a visa is dependent on the satisfaction of the decision-maker as to the prescribed criteria. See Migration Act, s 65(1). The criteria are set out in ss 36 and 91R of the Migration Act and subclass 866 of Schedule 2 of the Migration Regulations 1994 (Cth). There is no suggestion that the tribunal did not have regard to the relevant criteria. The tribunal did not believe the appellant’s claims to fear persecution for a number of reasons.

17    First, it considered that if he held the fear he claimed he would not have returned to the family home each New Year for about ten days or for a week in December 2007 as he told the tribunal he had. It noted that he openly attended a funeral of a priest during the latter period and, although on his account there were police present there, too, the police took no interest in him.

18    Secondly, it found the fact that the appellant’s claim that the authorities had such an interest in him that he had to flee at odds with the fact that his wife and family continued to live in the family home without difficulties.

19    Thirdly, it did not find credible the appellant’s evidence about how he obtained the passport and visa to come to Australia.

20    Plainly there was evidence to support the tribunal’s findings.

21    As for the contention that the tribunal had no understanding of China, the federal magistrate correctly observed that “by itself” a complaint of this kind does not establish jurisdictional error.

22    On their face the grounds of appeal do not raise any question of jurisdictional error. At the hearing of the appeal I invited the appellant to expand upon the grounds. He was unable to explain what the legal error was. He did say that he gave the tribunal a phone number to contact Father Lin, submitting, in effect, that the tribunal could or should have called the priest to verify what he (or the appellant) said. The response to the hearing invitation issued by the tribunal, completed by his then solicitor, included the name, address and designation, together with the telephone number, of Father Lin. It requested that the tribunal take oral evidence from Father Lin. The evidence was summarised as evidence that the appellant is a Roman Catholic and not a Chinese Patriotic Catholic. The tribunal’s decision record contains the following passage (at [64]):

The applicant’s advisor told the Tribunal that it could contact Father Lin by telephone. The Tribunal told the applicant that it did not propose to contact witnesses by telephone as it could not verify to whom it was speaking and hence could not place weight on such evidence. It offered the applicant more time to submit other evidence, such as statements/statutory declarations, but this was declined by the applicant.

23    This complaint raises a matter that was not agitated before the federal magistrate. The Minister submitted that leave should not be given to argue it, not least because it was without merit. The principle is that leave to argue a ground of appeal not raised before the primary judge should not be granted unless it is expedient in the interests of justice to do so. See, for example, VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46]–[48] and NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 at [154]–[166] per Madgwick J, Conti J agreeing at [229], and the authorities referred to in those two decisions.

24    The appellant provided no explanation for why this argument was not put to the federal magistrate. As the plurality said in Coulton v Holcombe (1986) 162 CLR 1 at 7, it is fundamental to the administration of justice that issues are not raised for the first time on appeal. Where there is no adequate explanation for the failure to take the point and the point is of doubtful merit, leave will generally be refused: VUAX at [48]. I see no reason why leave should be granted in this case. The failure to make an inquiry may give rise to a jurisdictional error in some circumstances. The High Court said in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25]:

The duty imposed on the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error.

25    I am not, however, persuaded that this is such a case. As in SZIAI, there is nothing on the record to indicate that any further inquiry by the tribunal could have yielded a useful result. The tribunal accepted that the appellant was a Roman Catholic. The only material before the Court suggested that Father Lin could do no more than attest to that fact. The appellant submitted that he could also support his claim that he had been subjected to ill-treatment by the police because he, too, had been arrested on a number of occasions. Not only is there no evidence of that, but the tribunal also accepted, as I mentioned earlier, that some Roman Catholics were persecuted in China because of their religion. The appellant did not criticise the tribunal’s reasons for not taking up the invitation to speak to Father Lin. They appear to be sound. Nor is there any question of a denial of procedural fairness. The appellant was given the opportunity to submit further evidence in writing. Had Father Lin been able to corroborate the appellant’s account of what had happened to him, the appellant could have availed himself of the opportunity the tribunal afforded him to submit further documentary evidence. In the circumstances, the point the appellant made is without substance and leave should be refused.

26    The appellant also submitted that there was a contradiction in the tribunal’s findings. In substance, his position was that it was inconsistent for the tribunal to believe him when he said he was a Catholic but not to believe him when he said he feared persecution by the authorities. These findings are not necessarily inconsistent. It is open to any tribunal of fact to accept parts of evidence and reject others. The assessment of credit is for it alone. Neither the Federal Magistrates Court nor this Court may disturb factual findings that were reasonably open to the tribunal. The tribunal explained why it did not believe the appellant’s claims of persecution. Its explanation does not suggest a reasoning process so irrational or illogical as to amount to jurisdictional error. See Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (“SZMDS”).

27    The appellant submitted that he was able to evade the attention of the authorities when he returned to his province at New Year because he “sneaked back home”, took the bus, not the train, there were so many people and so few police, and things were not as bad as they had previously been. The submission does not advance the appellant’s case on the appeal.

28    The appellant also submitted that there was a reason why he, unlike the other members of his family, was of interest to the police. He said it was because he was the leader of a youth group. In other words, he had a higher profile in the community than they did. That is certainly a plausible explanation, but it was entirely a matter for the tribunal. The tribunal questioned him about the apparent discrepancy in the way the authorities allegedly treated him and the other members of his family (for example at [46]) but evidently was not satisfied with his explanation. The federal magistrate was not able to review the tribunal’s findings on this question. As Brennan J explained in Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1 at 35–6:

The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.

29    Whilst reasonable minds may differ about some of the conclusions the tribunal reached, the tribunal’s process of reasoning was open to it (see SZMDS at [133] per Crennan and Bell JJ). So, too, as the federal magistrate held, were its findings and conclusions.

30    It follows that the appeal must be dismissed. The appellant should pay the first respondent’s costs.

Associate:

Dated:    1 May 2012