FEDERAL COURT OF AUSTRALIA

SZUMR v Minister for Immigration and Border Protection [2017] FCA 1376

ORDERS

THE COURT ORDERS THAT:

1.    The first appellant be the litigation representative for the second appellant in this appeal.

2.    The appeal be dismissed.

3.    The first appellant pay the costs of the first respondent.

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

REASONS FOR JUDGMENT

(Revised from transcript)

PAGONE J:

1    This is an appeal from the orders of the Federal Circuit Court made on 3 August 2017 dismissing an application under s 476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision by the Refugee Review Tribunal which, on 16 May 2014, had affirmed a decision of a delegate of the Minister to refuse an application for a Protection (Class XA) visa. The appellants are mother and daughter and are both Chinese Nationals. The second appellant is a minor and the first appellant was appointed litigation guardian for her daughter in the proceeding. The first appellant was not legally represented at the hearing of the appeal but was assisted by an interpreter.

2    The appeal from the decision of the Federal Circuit Court contains three grounds, expressed as follows:

1.    AAT did not identify the potential harm taken by Chinese Government fairly.

2.    AAT has denied all the supporting documents provided by me even my personal statement.

3.    AAT reviewed my case unfairly. The Tribunal hided the question of the persecution I will face if return China totally.

None of the grounds contain reviewable error and none of the grounds were established. The first appellant was invited at the hearing of the appeal to make any further submission she wished to make in support of her appeal, but she did not advance the grounds or the basis upon which they were maintained.

3    The first appellant’s claim for a protection visa was based upon her claim of fearing harm from the local Chinese government due to her adherence to the Christian religion. That claim was supported by the appellant claiming that her church meeting had been interrupted and that her father had been arrested in 2007. She also claimed that her mother had informed her that her father had been arrested and tortured in 2010 as a result of the police finding Christian material which she had sent to him. The appellant claimed that her mother told her that she had been given an inquiry notice about the first appellant and that her father was sentenced to one year re-education through labour based upon accusations of spreading religious materials illegally.

4    The Minister’s delegate refused to issue a Protection Visa to the first appellant because it was found that the first appellant’s claimed fear of persecution was not well founded. The refusal was based on a number of findings regarding the first appellant’s credibility and the plausibility of events which she recounted.

5    The appellants appealed that decision to the Refugee Review Tribunal and appeared before the Tribunal on 10 April 2014 to give evidence and present arguments with the assistance of an interpreter. On 16 May 2014 the Tribunal determined to affirm the decision not to grant the visa. The Tribunal found that the appellant was not a genuine practising Christian and was not likely to come to the attention of the authorities because of the strength of her convictions. The Tribunal found that her claims of past harm and arrest were not credible, and the Tribunal was not satisfied that the first appellant would be mistreated or persecuted were she to return to China.

6    The first ground of appeal may fairly be understood as a complaint that the Tribunal had not taken into account the potential harm to the appellants by returning to China. Dowdy J had recorded in paragraph [7] of his reasons the claim of fear which the first appellant had made in her Protection Visa application based upon her belief in Christianity, and at paragraph [30] of the reasons, Dowdy J referred to the first appellant’s grounds of judicial review which included a complaint of the Tribunal having disregarded the first appellant’s “knowledge of Christianity for no reason”. That claim was rejected by the Federal Circuit Court because the claim sought impermissible merits review and failed to establish jurisdictional error. Dowdy J said at [31]-[34]:

31.    This Ground appears to simply argue with the Tribunal’s decision and invoke a merits review which is not available in this Court.

32.    The First Applicant’s primary claim to protection was that she had a well-founded fear of persecution for reasons of religion, namely her belief in and practise of Christianity. Whilst the Tribunal cannot act as an “arbiter of doctrine” by setting up its own standard of what amounts to genuine religious belief or practice, there was no impediment to the Tribunal testing and evaluating the First Applicant’s claim to be a Christian. As Flick J in the Federal Court stated in ABX15 v Minister for Immigration and Border Protection [2016] FCA 855 at [24]:

The manner in which the Refugee Review Tribunal set out to test the Applicants claim to be a Christian was a function entrusted to it. There was no impediment to the Tribunal testing the claim being advanced. An assertion on the part of the Applicant that he was a Christian did not manacle the Tribunal to the confined task of simply testing whether he had been baptised or attended church. The Applicant by making the claim could not preclude the Tribunal from testing the more fundamental assertion of fact as to his Christian belief in testing the claim being made, the Tribunal moreover did not seek to impose upon the Applicant any preconceived views as to the beliefs a person would have to hold in order to be a Christian; it was simply testing the claim made.

For a general discussion of this area of the law, see Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362.

33.    Unfortunately for the First Applicant, for reasons which in my view are not affected by legal unreasonableness, illogicality or irrationality, the Tribunal did not accept that the First Applicant was a genuine practising Christian. As evidenced by its Decision Record, the Tribunal gave a full and considered analysis and evaluation of the First Applicant’s claims in this regard but ultimately was unconvinced of their truth.

34.    Accordingly, Ground 1 fails to establish jurisdictional error.

There is no error in the reasoning or conclusion. The Tribunal had considered in detail the first appellant’s claim of fear of harm arising from her adherence to Christianity but rejected that claim. His Honour considered those claims, and the way in which the Tribunal dismissed them, and noted at [21] that the Tribunal had found that the appellant “did not have a subjective fear of persecution in relation to her claims on religion”: see also [22]-[27].

7    The second ground of appeal corresponded with the second ground relied upon for judicial review before the Federal Circuit Court. The second ground of appeal complained that the Tribunal had “denied supporting documents provided by [the] first appellant even [the first appellant’s] personal statement”, and the second ground of judicial review in the Federal Circuit Court had been that the Tribunal had “disregard[ed] [the first appellant’s] evidence […] which was requested” by the Tribunal. His Honour dealt with this ground at [35]-[37] saying:

35.    At the Tribunal hearing on 10 April 2014 the First Applicant tendered and relied upon a number of documents including her certificate of baptism of herself dated 24 April 2011 from the “Chinese & Australian Baptist Church - West Ryde”, pages from the First Applicant’s passport and a supporting letter. Then on 16 April 2014 the First Applicant sent two letters to the Tribunal enclosing further documentation which included supporting letters, photographs and translations of a Warrant Certificate and Certificate of Release of her father as detainee dated 20 August 2007 and 4 September 2007 respectively.

36.    Contrary to this Ground, there is no evidence that the Tribunal disregarded any of this body of documentary material relied upon by the First Applicant. The documents forwarded under cover of the letters of 16 April 2014 and received by the Tribunal on 17 April 2014 were specifically referred to and summarised at [48] of the Decision Record and specific documents were considered and evaluated by the Tribunal at [72]-[73] and [75] of its Decision Record. There does not appear to be any evidence that the Tribunal at the hearing on 10 April 2014 requested the First Applicant to provide further evidence and she did not tender any transcript of the Tribunal hearing to establish such a request. This was notwithstanding that consent order 3 of the Orders of the Court of 7 July 2014 had required the First Applicant to file and serve a transcript of the Tribunal hearing on or before 8 September 2014 if she wished to rely on such a transcript.

37.    This Ground also fails to establish jurisdictional error.

Nothing in the appeal established any error in this reasoning or conclusion. Nothing was shown to suggest that the Tribunal had denied the first respondent any ability to rely upon the supporting documents but, rather, the reasons of the Tribunal shows that the Tribunal had not accepted (as it was entitled not to accept) the claims which the first appellant had made.

8    The third ground of appeal was expressed broadly as one of having been treated unfairly by the Tribunal. The corresponding third ground of review to the Federal Circuit Court had been a complaint of bias by the Tribunal. That was also rejected by the Federal Circuit Court with his Honour saying at [38]-[43]:

38.    This wholly unparticularised Ground also fails in establishing jurisdictional error or any procedural unfairness. At the hearing the First Applicant asserted that the Tribunal was “biased against my private life”.

39.    A charge of bias is of a serious nature and there is no evidence at all that the Tribunal member was biased or denied the Applicants procedural fairness. No transcript of the hearing has been tendered which would have a tendency to establish any form of bias.

40.    Actual or apprehended bias are matters that go to procedural fairness and the denial of procedural fairness on the part of an administrative decision-maker such as the Tribunal may result in jurisdictional error justifying an order that a decision be set aside: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 91 [17] per Gaudron and Gummow JJ; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 357 [48] per Hayne, Kiefel and Bell JJ.

41.    This Ground does not make clear whether actual bias or apprehended bias is alleged by the Applicants. In the circumstances, I consider it sufficient to state that there is no evidence of actual bias in the form of prejudgment or otherwise and there is no evidence that a fair-minded lay observer might reasonably apprehend that the Tribunal member might not have brought an impartial mind to the decision-making process: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344-345 per Gleeson CJ, McHugh, Gummow and Hayne JJ.

42.    Further, the face of the Tribunal's Decision Record does not indicate or demonstrate any prejudgment or actual bias or give rise to any reasonable apprehension of bias on the part of the Tribunal member: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J.

43.    There is also no evidence of procedural unfairness or breach of the rules of natural justice. The Applicants have consequently failed to make out this Ground.

Nothing in the appeal revealed any error in these reasons or conclusions.

9    Accordingly, the appeal will be dismissed with costs.

Associate:

Dated:    24 November 2017