SZORL v Minister for Immigration and Citizenship

JUDGE: FLICK J DATE OF ORDER: 25 MAY 2011 WHERE MADE: SYDNEY

1. The Appeal is dismissed. 2. The Appellants are to pay the costs of the First Respondent. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website.

IN THE FEDERAL COURT OF AUSTRALIA NSW DISTRICT REGISTRY GENERAL DIVISION NSD 305 of 2011

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT 1 The Appellants are husband and wife and are both citizens of the People's Republic of China. 2 The wife arrived in Australia on 12 March 2008 and the husband arrived on 21 May 2008. Both overstayed the time permitted by their visas. Both applied on 24 February 2010 to the Department of Immigration and Citizenship for Protection (Class XA) visas. 3 A delegate of the Minister refused the applications on 25 May 2010 and the Appellants then sought review by the Refugee Review Tribunal. Those applications were lodged on 8 June 2010 and the Tribunal affirmed the delegate's decision on 13 September 2010. 4 An Application seeking review of the Tribunal's decision was filed with the Federal Magistrates Court of Australia on 11 October 2010. That Court published its reasons for dismissing the Application on 1 March 2011: SZORL v Minister for Immigration and Citizenship [2011] FMCA 146. 5 The Appellants filed a Notice of Appeal with this Court on 16 March 2011. 6 Only the First Appellant, the wife, appeared at the hearing of the appeal. She had the assistance of an interpreter. It was only the First Appellant who feared persecution on the basis that she was a member of an "underground church". The Second Appellant, the husband, did not appear and did not claim to be a Christian. 7 The appeal is to be dismissed.

The Grounds of Appeal 8 The Notice of Appeal set forth the Grounds of Appeal (without alteration) as follows: 1. RRT had bias against me and did not make fair decision for my application 2. I clarify all my points at the hearing of the Federal Magistrates Court, but the Judge refused my application 3. I believe that my application was not considered reasonably by the Judge at the Federal Magistrates Court. I fear to go back to China. None of these Grounds have any substance.

Bias and a Lack of Fairness - The Tribunal Decision 9 The proceeding presently before this Court is an appeal from a decision of a Federal Magistrate. 10 The first Ground of Appeal fails to identify any appellable error said to have been committed by the Federal Magistrate. 11 An appeal, it must constantly be recalled, is not the occasion to revisit the reasons for decision of the Tribunal as opposed to the reasons of the Federal Magistrate: Sathiyanathan v Minister for Immigration and Multicultural Affairs [2000] FCA 210. Finn, Marshall and Goldberg JJ there observed in respect to an appeal from a decision of the primary Judge: The Appeal [10] We granted leave at the commencement of the hearing to amend the grounds of appeal better to reflect the written submissions the appellant had filed in the appeal. The two errors now ascribed her Honour's decision are that she failed to find (i) that the Tribunal did not address whether by reason of all of the claims made by the appellant, including those relating to events prior to 1997, the appellant had a well-founded fear of persecution for a Convention reason; and (ii) that the Tribunal erred in asking whether all Tamils would have such a well-founded fear. We should state at the outset that we do not consider there is substance in either ground. We would add that much of the appellant's submissions were directed to the proposition that the Tribunal had made errors in the way it had considered the evidence and issues before it. Although this occurred under the rubric of a consideration of the primary judge's reasons it was of little assistance in understanding why it was said that the primary judge fell into error. The Court wishes to emphasise that an appeal to the Full Court in a refugee matter should not be taken as an occasion to re-consider the Tribunal's reasons as distinct from considering the primary judge's reasons. These observations have long been applied and followed by subsequent decisions of this Court: eg, SZDJQ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 533 at [7] per Bennett J; SZLYI v Minister for Immigration and Citizenship [2008] FCA 1809 at [16] per Middleton J; SZMSW v Minister for Immigration and Citizenship [2009] FCA 576 at [19] per Cowdroy J; SZOBH v Minister for Immigration and Citizenship [2010] FCA 776 at [22] per Reeves J. A failure to allege appellable error on the part of the Federal Magistrate "is not a mere matter of form as no original jurisdiction is vested in this Court to review errors perceived to have been committed by the Tribunal": SZMSZ v Minister for Immigration and Citizenship [2009] FCA 877 at [6]. See also: SZJHE v Minister for Immigration and Citizenship [2008] FCA 1771 at [7]. 12 Moreover, the mere repetition of submissions previously advanced in the Federal Magistrates Court "with little reference to the conclusions of the Federal Magistrate … [do] not assist an appeal court": NBDY v Minister for Immigration and Multicultural Affairs [2006] FCAFC 145 at [26] per Branson and Stone JJ. 13 The first Ground of Appeal is to be dismissed upon the basis that it fails to identify any error said to have been committed by the Federal Magistrate.

The Refusal of the Application 14 The dismissal of the first Ground of Appeal occasions the Appellants no prejudice as any allegation as to bias, most probably, is embraced by the second Ground of Appeal. 15 Before the Federal Magistrates Court the Appellants had filed an Application. 16 The Federal Magistrate considered each of the Grounds there advanced, including an allegation that the Tribunal had manifested bias and an allegation that the Tribunal had not taken "all of my claims, supporting documents and evidences in account according to S91R of the Migration [Act]". 17 As to the allegation of bias, the reasons for decision of the Federal Magistrate state as follows: [17] In relation to the allegation of bias, I invited the applicant to explain why she believed that the Tribunal member had been biased against her. The applicant referred me to the Tribunal's treatment of her corroborative documents, and suggested that it had been unfair for the Tribunal to doubt the contents of those documents without further investigation. [18] However, I do not consider that the discussion of this at the hearing, or the Tribunal's ultimate assessment in its statement of reasons, provides any evidence of a closed mind prior to decision. I consider that the Tribunal's assessment of that material was performed consistently with authority in the Federal Court (see Minister for Immigration & Citizenship v SZNSP [2010] FCAFC 50). Its ultimate reasoning about the documents provides no evidence of a closed mind prior to decision (see Minister for Immigration & Citizenship v SZNPG [2010] FCAFC 51, and Minister for Immigration & Citizenship v SZJSS [2010] HCA 48 at [44]). [19] It is also possible that the applicant felt unhappy about the hearing due to the questioning of the Tribunal which, at times, must have appeared to doubt her credibility. However, it was the statutory duty of the Tribunal to ask questions of the applicant and to test her case, and the description of the hearing which is in evidence before me shows the Tribunal doing no more than that. I am certainly not satisfied that anything occurred at the hearing which might give rise to an apprehension of bias in a fair-minded lay observer, according to the principles in Re RRT & Anor; Ex Parte H (2001) 179 ALR 425. 18 The materials available for consideration by the Federal Magistrate included the application as first made for a protection visa and other materials that were before the Tribunal. There is nothing in that material that provided any foundation for an argument as to there being a reasonable apprehension of bias. 19 Nor is there anything in the reasons for decision of the Tribunal to provide any such foundation. An allegation as to actual bias, it has been repeatedly said, will rarely be demonstrated solely by reference to the reasons for decision of the Tribunal: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J; SGJB v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1601 at [121] per Jacobson J; VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872 at [21], 131 FCR 102 at 107 per Kenny J; SZMOB v Minister for Immigration and Citizenship [2009] FCA 140 at [23] per Cowdroy J. Similarly, in SBBF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358 at [16], Tamberlin, Mansfield and Jacobson JJ observed that it is: … likely to be a rare and extreme circumstance that a lack of good faith on the part of the administrative decision-maker will be apparent by reference only to the reasons for the decision themselves … And it has also repeatedly been said that no bias should be inferred solely from factual findings that were open on the material before the Tribunal: SZKIR v Minister for Immigration and Citizenship [2007] FCA 1786 at [33] per Collier J. See also: SZNUX v Minister for Immigration and Citizenship [2010] FCA 182 at [18], 114 ALD 123 at 126 per Yates J. 20 Part of the materials available for consideration by the Federal Magistrate included what purported to be a transcript of both the interview before the delegate in May 2010 and a transcript of the Tribunal hearing in August 2010. A review of that transcript exposes the Tribunal member asking the First Appellant questions, including questions directed to her claims to be a Christian and the subject of victimisation by the local police. Some of those questions expressed some degree of reservation on the part of the Tribunal member as to the evidence being given. Thus, for example, there was (without alteration) the following exchange: TRIBUNAL MEMBER: Well you told me before that the officials came and fined members of the congregation so they must have known that people were gathering there and were Christians surely? APPLICANT: At that time it is true that several people got fined in the gathering but they didn't have the evidence to prove that all the people there were Christian. They only knew that my mother-in-law was Christian. The reason why all the people there got fined was because they said my mother-in-law was Christian and all other people were listening to my mother-in-law's preaching, listening to my mother-in-law talking about Bibles, that's why they refer to the gathering as illegal gathering. TRIBUNAL MEMBER: I mean it seems I have to say very difficult to believe that the police or the neighbourhood authorities would come along in the middle of one of these gatherings and say oh well you have been listening to your mother-in-law and we know she's a Christian but we don't believe that you are Christians or we don't have any evidence that you're Christians so we are just going to fine you. APPLICANT: I know it sounds less convincing but it does happen in poor areas or poor villages in China, everyone in the village has to listen to the local authorities. TRIBUNAL MEMBER: If I could just ask you one or two other questions. Were you baptized? APPLICANT: Yes I got baptized. TRIBUNAL MEMBER: When? APPLICANT: In June this year. TRIBUNAL MEMBER: You were a member of this church for eighteen years in China and you weren't baptized. That sounds hard to understand. Baptism is generally regarded as being a very important event in the life of a Christian. Can you comment on that? APPLICANT: As for this question, in China at the very beginning I was not religious, that means I didn't have enough faith in God, I was not very confident. After 2000 I became more religious and I became more confident. However most of the churches in China are official churches so they didn't do everything the Bible says. As for preachings in family gatherings, all the preachings in family gatherings were conducted secretly. Sometimes I missed the baptism ceremony. That's why I haven't got baptized when I was in China. TRIBUNAL MEMBER: You had seventeen years to do this, you had seven years after 2007. Are you telling me the reason you didn't get baptized was just because you kept missing the baptism service? APPLICANT: I saw they went through the official churches. The official churches, most of them are in the counties or in the cities that were very far away from the village I lived in. As I mentioned at the very beginning, if I took bus I had to stay there overnight. The other thing is that there was no registered church in our village.

21 But a reasonable apprehension of bias is not made out simply by reason of a Tribunal member directly confronting a claimant with matters that reflect adversely on the claims being advanced. Bias may, however, emerge if the questioning discloses a mind on the part of the Tribunal not open to persuasion: Re Refugee Review Tribunal; Ex parte H [2001] HCA 28, 179 ALR 425 at 435. Gleeson CJ, Gaudron and Gummow JJ there observed: [30] Where, as in the present case, credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented - often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question. Similar questions by a judge in curial proceedings in which the parties are legally represented may more readily give rise to an apprehension of bias than in the case of inquisitorial proceedings. [31] Where, however, parties are not legally represented in inquisitorial proceedings, care must be taken to ensure that vigorous testing of the evidence and frank exposure of its weaknesses do not result in the person whose evidence is in question being overborne or intimidated. If that should happen, a fair-minded lay observer or a properly informed lay person might readily infer that there is no evidence that the witness can give which can change the decision-maker's view. The allegation as to bias was there made out. Their Honours concluded: [32] In the present case, a fair-minded lay observer or a properly informed lay person, in our view, might well infer, from the constant interruptions of the male prosecutor's evidence and the constant challenges to his truthfulness and to the plausibility of his account of events, that there was nothing he could say or do to change the Tribunal's preconceived view that he had fabricated his account of the events upon which he based his application for a protection visa. In other words, a fair-minded lay observer or a properly informed lay person might well apprehend bias by the Tribunal against the male prosecutor. And because the female prosecutor's application stood or fell with his, a fair-minded lay observer or a properly informed lay person might, in our view, form the same view in her case. "The fact that a decision-maker disbelieves, or is critical of a party", it has also been recognised, "does not, of itself, indicate bias": Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (Unreported, Federal Court of Australia, Lindgren J, 6 May 1997). For separate proceedings see: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21, 197 CLR 611. 22 The questioning of the First Appellant by the Tribunal member in the present proceeding, it is considered, does not evidence any failure on the part of the Tribunal to keep an open mind. 23 If an allegation of bias is to be made out, a party must do more than point simply to the fact that evidence has not been accepted or to the fact that evidence has been tested during the course of a hearing or that reasons have been given rejecting that party's claim or evidence. Such factors, standing alone, establish no more than the Tribunal discharging its function of reviewing the evidence and making findings of fact and providing reasons for a decision reached. It is the very task entrusted to the Tribunal to consider and evaluate and test the evidence and claims being advanced; its task is not the unquestioning acceptance of claims being made. 24 In the present proceeding the transcript that was available of the proceeding before the Tribunal exposed no basis for any conclusion as to a reasonable apprehension of bias on the part of the Tribunal. Nor was there any other evidence that sought to impugn the manner in which the Tribunal proceeded. 25 The Federal Magistrate was correct in rejecting the argument founded upon bias. 26 Before the Federal Magistrates Court and this Court on appeal, it should, perhaps, be noted that appellants repeatedly rely upon allegations as to bias on the part of the Tribunal. Notwithstanding the fact that many appellants before this Court are unrepresented, and notwithstanding a suspicion - perhaps well-founded - that Grounds of Appeal are drafted by those with little knowledge of the law and (in many cases) even less knowledge of the reasons for decision being appealed from, it is important to emphasise that an allegation of bias must be firmly established. An indiscriminate reliance upon allegations of bias, and an absence of any attempt to substantiate such a ground, does little in many cases to advance the interests of the particular litigant before the Court. 27 Each of the other Grounds relied upon were considered by the Federal Magistrate, albeit briefly. As summarily explained by the Federal Magistrate, the remaining Grounds as explained in oral submissions amounted to no more than a contention "… that the Tribunal had made an incorrect decision on the merits of the matter": [2011] FMCA 146 at [16]. 28 It is no part of the functions of the Tribunal to uncritically accept any of the allegations made by claimants: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J. See also: Kwakye v Minister for Immigration and Multicultural Affairs (Unreported, Federal Court of Australia, Nicholson J, 20 October 1998). 29 In the present proceeding no reliance was sought to be placed upon what the Tribunal had said or how it had conducted itself during the course of the hearing. The allegation as to bias was sought to be founded upon inferences drawn from the Tribunal's reasons. But those reasons explain the Tribunal's decision and the bases upon which particular evidence was either accepted or rejected. 30 To the extent that the second Ground of Appeal is to be construed as a failure on the part of the Federal Magistrate to consider the arguments sought to be advanced by the now Appellants, including an argument as to bias on the part of the Tribunal, it is a ground without substance. The First Appellant may well have "clarif[ied] all [her] points at the hearing", but it remained for the Federal Magistrate to consider and resolve the case. In dismissing the Application, it is not considered that the Federal Magistrate committed any appellable error. 31 The second Ground of Appeal is dismissed.

A Failure To Act Reasonably 32 The third purported Ground of Appeal is difficult to construe. 33 There is nothing in the reasons for decision of the Federal Magistrate to suggest that the Federal Magistrate did anything other than consider the Application before him and to explain the basis upon which the Application was dismissed. 34 A fear of returning to China may or may not be genuine. But such a fear, in any event, fails to disclose any appellable error on the part of the Federal Magistrate. The dismissal of the Application does not evidence any failure on the part of the Federal Magistrate to "reasonably" consider the arguments being advanced.

Conclusions 35 However the Grounds of the Application before the Federal Magistrates Court may have been expressed, and no matter how the Grounds of Appeal to this Court have been expressed, no appellable error is discernible in the reasons for decision of the Federal Magistrate. 36 Nothing advanced by the First Appellant during the hearing of the appeal exposed any basis for questioning the decision of either the Tribunal or the Federal Magistrate. The submissions that were advanced orally focussed upon: an alleged failure on the part of the Tribunal to consider the claims that the First Appellant was a member of an "underground church"; and the concern of the Tribunal that "falsified or fraudulent documents are easily obtained in China". The simple fact is that the Tribunal did consider in detail the evidence going to whether the First Appellant was a member of an "underground church". The Tribunal reviewed the evidence and concluded that it was "not satisfied that she was a member of an illegal underground church in China or that she ever suffered harm for such a reason". It also raised with the First Appellant the concern as to the status of documents being "falsified or fraudulent" and gave her an opportunity to comment upon its concern. The findings made by the Tribunal were findings open to it. 37 The appeal is to be dismissed. 38 There is no reason why the normal rule as to costs should not prevail, namely that costs should follow the event.

ORDERS 39 The Orders of the Court are: 1. The Appeal is dismissed. 2. The Appellants are to pay the costs of the First Respondent. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.