SZRPT v Minister for Immigration and Border Protection

JUDGE: KATZMANN J DATE: 3 FEBRUARY 2014 PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The appellant is a national of the People's Republic of China, born and raised in Fujian province. She arrived in Australia at the age of 18 in October 2007 on a temporary student visa. Well after her student visa expired and after nearly four years in this country, she applied for a protection visa, claiming to fear persecution in China on religious grounds. Shortly put, she professed to be a Christian who had attended gatherings of the local underground church and had been detained and tortured as a result of attending one such gathering, released only upon payment of a fine. She also stated that she had been warned that she would be expelled from school if she continued to spread the gospel. She claimed to have fled to Australia in pursuit of religious freedom. 2 The power to grant visas is conferred on the Minister by the Migration Act 1958 (Cth) ("the Act"), though it may be delegated (s 496). The power may be exercised in an applicant's favour only if the Minister is satisfied that the applicant meets certain criteria prescribed by the Act or Regulations (s 65). In the case of protection visas the principal criteria are set out in s 36(2) of the Act. Section 36(2) relevantly provides that: A criterion for a protection visa is that the applicant for the visa is: (a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or (aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm. 3 The Refugees Convention is a reference to the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951, the Refugees Protocol to the Protocol relating to the Status of Refugees done at New York on 31 January 1967. Together I will refer to the Convention and the Protocol as the Convention. Protection obligations under the Convention are owed to refugees. Article 1A(2) of the Convention relevantly defines a refugee as a person who "owing to a well-founded fear of being persecuted" on certain grounds, "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". The grounds include religion and membership of a particular social group. 4 These criteria are qualified in a number of respects. Section 91R, for example, excludes the application of the Convention unless the reason or reasons for the apprehended persecution is or are "the essential and significant reason(s)", the persecution involves "serious harm to the person" and also involves "systematic and discriminatory conduct". "Serious harm" is defined in an inclusive way in s 91R(2). "Significant harm", which is the concept introduced by s 36(2)(aa), is defined exhaustively in s 36(2A) to mean: arbitrary deprivation of life; the carrying out of the death penalty; torture; other cruel or inhuman treatment or punishment; or degrading treatment or punishment. 5 Neither the delegate of the Minister (who decided the appellant's application) nor the Refugee Review Tribunal (which reviewed the delegate's decision) believed her claims. Each determined that she did not meet the criteria for a protection visa. Accordingly, neither was satisfied that she was a person to whom Australia owed protection obligations. After the tribunal dismissed her application for review, the appellant applied to the Federal Circuit Court of Australia for constitutional writs to quash the tribunal's decision and remit the matter to the tribunal or Minister to be determined according to law, but the court dismissed the application. This is an appeal from that judgment. 6 The application to the court below contained two grounds. Both grounds alleged (in fact or in substance) a denial of procedural fairness. First, the appellant complained that she had been denied the chance to respond to adverse evidence concerning her credibility ("the first complaint"). Secondly, the appellant complained that there was a reasonable apprehension that the tribunal was biased against her ("the second complaint"). The appeal raises different issues. I will come to them in due course.

The judgment of the Federal Circuit Court 7 The primary judge took a very broad view of the allegation made in the first complaint. No matter how it was characterised, however, he considered that the tribunal committed no error. 8 His Honour said that there was no obligation on the tribunal to invite the appellant to comment on information she had provided the tribunal or on country information, referring to s 424A(3) of the Act. Nor, his Honour continued, was the tribunal obliged to invite the appellant to comment on information gleaned from the pastor of the Padstow Chinese Congregational Church with whom the tribunal communicated, as the information did not involve a rejection or denial of her claims or undermine them. And the tribunal's adverse views about the appellant's evidence, his Honour noted, did not constitute "information" for the purposes of s 424A(1) of the Act so as to engage the tribunal's obligations. Furthermore, his Honour said that the tribunal's account of the hearing which appears in the decision record and which was the only evidence before the court about what had transpired before the tribunal, showed that the appellant had been given the opportunity to address and explain the various inconsistencies. 9 The focus of this complaint appears to be on one inconsistency in particular. That was an inconsistency in the appellant's evidence about the number of people with whom she claimed to have been detained upon her arrest. His Honour noted that the tribunal's decision record disclosed that the tribunal had invited the appellant to comment on the inconsistency and that, at her request, the member had also listened to the audio recording of the hearing, which, he said, confirmed the inconsistency he had put to her. Consequently, his Honour interpreted the complaint (or this aspect of it) as a failure by the tribunal to give the appellant the opportunity to further examine the evidence on which the tribunal relied to conclude that she was not a witness of truth. 10 The primary judge dismissed the complaint for two reasons. First, his Honour noted that this particular inconsistency was only one of a number of inconsistencies on which the tribunal's adverse credibility finding was based. Secondly, and more importantly, his Honour said that it was difficult to see what could be achieved by the tribunal notifying the appellant that it had listened to the audio recording and that it confirmed its understanding of the evidence. His Honour observed that an affidavit filed by the appellant disclosed that she was in possession of the recording. His Honour noted that it was open to her to put that evidence before the court but that she had not done so. 11 The second complaint (the claim of apprehended bias) was apparently triggered by the tribunal's use in para 91 of its decision record of the expression "positive state of disbelief". The appellant alleged that the tribunal held a positive state of disbelief before completing its review. She contended, in effect, that this gave rise to an appearance of bias which resulted in "even minor inconsistencies" being overstated. The primary judge concluded that the appellant or her advisor had misread what the tribunal had said. After referring to the legal test for apprehended bias, his Honour said that there was no basis for the allegation. 12 Having disposed of the two grounds in the application, the primary judge then considered other allegations the appellant had made in an affidavit and in oral argument. His Honour concluded that those submissions were unfounded, either for want of evidence or because, even if proved, they could not reveal jurisdictional error, which must be established before the court is entitled to intervene. 13 In the appeal the appellant makes no complaint about any of these matters. 14 The primary judge then proceeded to consider a question he had raised with the parties during the hearing and upon which each had made written submissions (the appellant's were contained in an affidavit). That question was whether the tribunal fell into jurisdictional error in its assessment of the appellant's claim to be a practising Christian because, in its treatment of her evidence that she had been baptised, "[it] took the approach of an arbiter of the [appellant's] religious faith". The genesis of the question was the following statement in the tribunal's decision record (at [95]): She stated that she undertook no preparation for the ceremony yet, because it is a rite of initiation into the Christian church, some form of preparation by an adult candidate will be required. 15 As the appellant was under 18 at the time, his Honour accepted that the tribunal had made a factual error. He also held that there was no evidence to support the statement that some form of preparation for baptism by adults is required and that there was no logical inference that because baptism was a rite of initiation, some form of preparation would be required. Moreover, his Honour noted that there was evidence before the tribunal that there were differences of views and practices in China between officially sanctioned Christian churches and unregistered churches and that those differences extended to baptism. He held that it was not reasonably open to the tribunal to infer that people who were baptised were required to undergo some preparation. He said: [T]he perceived deficiency in the [appellant's] evidence was measured against a standard for which no probative evidence existed, or even may have been an irrelevant consideration in the circumstances presented. 16 He therefore described the tribunal's statement in para 95 as an assumption or expectation. 17 Nevertheless, his Honour concluded that these errors were not jurisdictional because they were not "so significant or central to the exercise of [the tribunal's] jurisdiction such as to vitiate it" and the tribunal would have reached the same conclusion absent its "assumption" or "expectation".

The appeal 18 The grounds set out in the notice of appeal are (without alteration): 1. The Refugee Review Tribunal (RRT) made an error of law in my case. I am under the serious risk of persecution, which was undervalued by the RRT. 2. In the FMC interview, judger said that RRT made an error of baptism in my case. 3. FMC judger asked me and respondent to give more evidence; I provided affidavit to FMC but RRT didn't as I didn't receive any documents from respondent. 4. The FMC did not consider my situation. 19 The reference to the "FMC judger" is a reference to the primary judge. FMC is a common abbreviation for the Federal Magistrates Court, the former name of the Federal Circuit Court. 20 The notice of appeal is supported by an affidavit. It is not clear why. There is no provision in the Federal Court Rules 2011 (Cth) for the filing of an affidavit in support of a notice of appeal. The affidavit is curious for another reason. Though it purports to be an affidavit sworn by the appellant, the deponent's name is an entirely different one. That said, the affidavit adds nothing to the notice of appeal. 21 The right to appeal from a decision of the Federal Circuit Court is conferred by s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth). It is an appeal by way of rehearing but a rehearing is not a new hearing. To succeed the appellant must show that the primary judge fell into error. See, for example, SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129 at [11].

Ground 1: error of law causing the tribunal to undervalue the risk of persecution 22 The first ground discloses no error on the part of the primary judge. As the Minister submitted, the assertion that the appellant faces "the serious risk of persecution" and that the tribunal undervalued that risk is a plea for merits review, which is a course not open to this court and which was not open to the court below. The Federal Circuit Court can only quash the decision of the tribunal if its decision was infected by jurisdictional error. It is not entitled to review the decision on its merits. This is the effect of s 474 of the Act and the fact that the relief the appellant sought is only available for jurisdictional error. See Plaintiff S157 v The Commonwealth of Australia (2003) 211 CLR 476 at [83]. 23 At the hearing of the appeal the appellant submitted that the tribunal failed to take into account evidence she had given and this was the reason it had underestimated the risk. She further submitted that the tribunal should have carried out investigations of its own. 24 The first submission must be rejected. There is nothing to indicate that the tribunal overlooked the appellant's evidence. It merely disbelieved parts of it. In doing so, it committed no jurisdictional error. 25 The second submission must also be rejected. I am not satisfied that the tribunal's failure to conduct investigations of its own into baptism in Fujian province amounts to jurisdictional error. 26 While the tribunal has the power to seek further information (s 424) and to require the Secretary of the Minister's Department to arrange for any necessary investigations (s 427(1)(d)), its duty is to review the Minister's decision. It has no general duty to inquire. See Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; [2009] HCA 39 ("SZIAI") at [25]; Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [22] (French CJ and Kiefel J). 27 In SZIAI the plurality did accept, however, that (at [25]): [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. (Footnote omitted.) 28 In this case I am prepared to assume that whether or not the appellant had been baptised was a critical fact. But there is no obvious inquiry that could have been made to verify her account. She had told the Minister's delegate that she believed she had been baptised in March 2007 and that she had received a certificate of baptism which she did not bring to Australia. She told the tribunal that her parents could send her the certificate if they were at home, but they were not at home. The appellant did invite the tribunal to contact the church she said she had attended in Sydney and it did so. The tribunal could have asked the pastor whether he knew anything about the preparations for baptism in Fujian province and, if so, what they were, but the appellant did not suggest that there was anything he could usefully have said on the subject.

Ground 2: the errors by the tribunal in relation to baptism 29 On the basis of the two errors identified by the primary judge, the appellant submitted that the tribunal's decision should have been quashed. 30 It is convenient at this point to reproduce in full the passage in para 95 of the tribunal's decision in which the errors were found to have been made: The evidence she gave about her baptism was vague and lacked much detail. She stated that she undertook no preparation for the ceremony yet, because it is a rite of initiation into the Christian church, some form of preparation by an adult candidate will be required. She said that she had been given a baptism certificate and that it is at her parent's (sic) home, but, despite all the years she had been in Australia and the importance to her protection visa claim of establishing that she was a member of a Christian church in China, she has not had her baptism certificate sent to her in Australia. (Emphasis added.) 31 At the time she claimed to have been baptised, the appellant was not a young child. She was only a few months shy of her 18th birthday. The Minister submitted that the tribunal's reference to "an adult candidate" was "clearly" intended to distinguish between "grown-ups" and young children and whether the appellant had reached the age of majority was neither here nor there. Consequently, the Minister contended that his Honour's finding of error was "both unnecessary and irrelevant". There is force in this submission. The tribunal was certainly aware of the appellant's age. There is no particular reason why in this passage it should have been referring to the legal age of adulthood. Even so, if the tribunal did err as to the appellant's age at the time of her alleged baptism, the error was immaterial. 32 The primary judge referred to numerous decisions of this court and the High Court in his analysis. He emphasised in particular the observations of North and Lander JJ in Minister for Immigration and Citizenship v SZNPG (2010 115 ALD 303; [2010] FCAFC 51 at [27]-[28] (with which I agreed at [35]) to the effect that an error of fact based on a misunderstanding of evidence would not give rise to jurisdictional error unless it meant that the tribunal had not considered an applicant's claim. That is certainly not the case here. There is no doubt that the tribunal considered the appellant's claim. At worst, the tribunal either overlooked or mistook the appellant's age. As the primary judge held, that would not amount to jurisdictional error. 33 At first blush, the second error is more troubling. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 ("Bond") at 367 Deane J said that if a statutory tribunal is required to act judicially, it must act "rationally and reasonably". He continued: When the process of decision-making is disclosed, there will be a discernible breach of the duty if findings of fact upon which a decision is based are unsupported by probative material and if inferences of fact upon which such a decision is based cannot reasonably be drawn from such findings of fact. Breach of a duty to act judicially constitutes an error of law which will vitiate the decision. 34 More recently, Basten JA, writing extra-judicially, remarked that "[t]o make a finding without any evidential support is in one sense an arbitrary or capricious exercise of power; it thus engages jurisdictional error": John Basten, "Jurisdictional error after Kirk: Has it a future?" (2012) 23 PLR 94 at 105. 35 Ultimately, however, I am not persuaded that the primary judge was wrong to conclude that the second error was not jurisdictional either. In WAJS v Minister for Immigration and Indigenous and Multicultural Affairs [2004] FCAFC 139 ("WAJS") at [11] the Full Court acknowledged the principle that an administrative decision maker will make a jurisdictional error if he or she bases a decision upon a finding of fact which lacks any supporting evidence, but said (at [12]) that it was difficult to apply the principle to a rejection of evidence. The Court continued: After reviewing the relevant case law up to that date, in Television Capricornia Pty Ltd v Australian Broadcasting Tribunal (1986) 70 ALR 147 at 150, Wilcox J said that all of the cases of which he was aware, in which 'no evidence' was treated as a separate ground of invalidity, 'were cases in which the power to make the relevant decision depended upon the prior establishment of a particular fact, it being held in those cases that there was no evidence of that fact'. We are unaware of any later case that departs from that pattern. 36 To like effect, in SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402; [2003] FCAFC 231 at [20] the Full Court said that "unless the relevant fact can be identified as a 'jurisdictional fact', there is no error of law, let alone a jurisdictional error, in the Tribunal making a wrong finding of fact: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-6" (cf. Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12; [2004 HCA 32 at [39] per Gummow and Hayne JJ, Gleeson CJ agreeing at [1]). A fact is classed as jurisdictional if it must objectively exist before an administrative decision-maker's jurisdiction to exercise a power is enlivened or if it is a criterion, satisfaction of which enlivens the power of the decision-maker to exercise a discretion: Plaintiff M70/2011 v Minister for Immigration and Citizenship; Plaintiff M106 of 2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144 at [57], [107]. Whether or not the appellant had been baptised was not a jurisdictional fact. 37 In Commissioner of Taxation v Pham (2013) 60 AAR 264; [2013] FCA 579 I observed at [20] that: An opinion formed or a state of satisfaction reached in the absence of evidence might properly be characterised as arbitrary or capricious. As French CJ put it in Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 at [16], "[a] decision based on no information at all, or based on findings of fact which are not open on information before the Tribunal, is not compatible with a rational process". Thus, a critical finding of fact based on no evidence may constitute jurisdictional error: SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402 at [19]; Soliman v University of Technology, Sydney (2012) 207 FCR 277 at 284-5 [23]. 38 Here, however, the tribunal did not form an opinion or reach a state of satisfaction in the absence of evidence. Its decision was not based on the want of any information at all. Nor was it based on findings of fact which were not open on the information before it. No critical finding of fact was based on the tribunal's unsubstantiated assumption. Although the tribunal was obviously sceptical of the appellant's claim to have been baptised, (contrary to what the primary judge surmised) a careful reading of the decision shows that it did not in fact reject it or find that she had not been baptised. As the Minister submitted, the assumption led to no specific finding. Nor did the tribunal decide that the appellant was not a Christian. It held that she was not a "committed" Christian. In the context of her claim the difference is not insignificant. Section 430(1)(c) of the Act requires the tribunal to record its findings on any material questions of fact, but there is no reason to suppose that the tribunal regarded the question of whether the appellant's failure to prepare for the baptism ceremony as material. More importantly, the absence of a finding that the appellant had or had not been baptised, "it is to be assumed, consistently with the clear directive in s 430 of the Act, that the Tribunal [did not regard] that question as material": Minister for Immigration and Multicultural Affairs v Yusuf (2011) 206 CLR 323 at [37]. 39 Thus, while the appellant submitted that her contention that she had been baptised was an essential part of her claim, the observation about the need for "some form of preparation" for adult baptismal candidates was not an essential part of the tribunal's reasoning. It was only one aspect of the appellant's evidence on the subject of baptism. What is more, the observation was made in the context of a lengthy discussion of a number of difficulties with the appellant's evidence.

Ground 3: failure to receive additional documents filed by the Minister 40 It is not at all clear what allegation is being made in ground 3 as the Minister did not file any evidence in the court below. At the hearing I pressed the appellant to explain what she meant by this ground. She replied: The judge in [the] lower court asked the respondent to provide [an] explanation about why [the] RRT made findings and how the RRT made findings about baptism, but I didn't receive any further documents about that explanation. 41 As I interpreted those remarks, it was a complaint that the appellant had not received a copy of the Minister's submissions to the Federal Circuit Court concerning the tribunal's treatment of the baptism issue. I asked the appellant to explain the significance of not having received the documents. This was her response: Because they are key issues, and about my case, and they are essential claims that I put in my application. … Essential claims. Essential claims that I was baptised in my application, but Tribunal member just rejected my claim, but so I believe the lower court judge asked the respondent to provide further explanation about how the Tribunal made such a finding in that way, so I didn't receive the response. So they are key evidence, a key issue. 42 There is no evidence, however, to support the appellant's complaint. A submission from the bar table is not evidence. In any case, even if it were true, I accept the Minister's argument that no practical unfairness ensued because, as his reasons demonstrate, the primary judge rejected the Minister's response.

Ground 4: failure by the Federal Circuit Court to consider the appellant's "situation" 43 Given the detailed reasons for judgment, this ground is also difficult to understand. At the hearing the appellant explained: [B]efore the Federal Magistrates Court, and I was given opportunity to give my oral submission, and I put a lot of things that I want to say to support my application before the Federal Magistrates Court, but the judge just even I said a lot - the judge, I think, failed to consider what I had spoken before the court. In the Federal Magistrates Court judgment, the judge mentioned that the judge will make investigation about baptism, but I think that the judge failed to, even he carry out some investigation, maybe, just failed to investigate in-depth, because the judge didn't understand what would happen in my hometown when somebody was baptised: what kind of ceremony, what would happen; those kind of things that happened in my hometown, the judge didn't understand. 44 It is apparent from this submission that the appellant's grievance is that the primary judge failed to consider the merits of her claim to have been baptised. If that is so, then it is without substance. The submission presupposes that the primary judge had the power to review the merits of the tribunal's decision and decide for himself whether she had been baptised. He did not. As I have already explained, he could only review the decision for jurisdictional error. This he did, going well beyond the terms of the application to explore the possibility of error.

The appellant's affidavits 45 In support of her appeal the appellant filed an affidavit dated 20 June 2013. It contains no evidence and is properly to be characterised as a submission. She made no reference to it during the hearing of the appeal. It makes no mention of any of the grounds of appeal and, although it purports to have been sworn by her, the name of the deponent is entirely different. It strikes me therefore as irrelevant. Even if I should take it to be her affidavit, the propositions it raises must be rejected. 46 The first proposition is that the primary judge "did not consider all information provided fairly". There is no justification for it. 47 The second is that the tribunal was biased against her, did not make a fair decision, and did not consider her evidence. Allegations of bias must be "distinctly made and clearly proved": Minister for Immigration v Jia (2001) 205 CLR 507 at [69] per Gleeson CJ and Gummow J; at [127] per Kirby J. Here, the allegation was neither distinctly made nor clearly proved. Nor is there error in the decision of the primary judge to reject the complaint of apprehended bias. The remaining allegations appear to quarrel with the outcome, rather than the process. As I have already said, the tribunal plainly considered the appellant's evidence; it just did not accept it all. That does not mean the tribunal was biased, nor does it denote any other kind of jurisdictional error. 48 The appellant filed a second affidavit on 4 December 2013 - after the hearing had concluded. She had no entitlement to do so. The parties had leave to file further submissions concerning ground 2 of the notice of appeal. To the extent that the affidavit answers this description I have treated it as the appellant's response to the Minister's further submissions, which were filed on 29 November 2013, although they do not actually respond to them. 49 The first matter raised in that affidavit takes issue with the tribunal's factual finding (at [94]) that she did not frequently attend church gatherings in China. The appellant also takes issue with several other factual findings (in [101], [102] and [104]). As I have explained, findings of this nature cannot be challenged under the Act. The appellant also criticises the tribunal's remark about the need for preparation for baptism. But nothing she says persuades me that the primary judge was wrong to hold that the tribunal's decision was not affected by jurisdictional error.

Conclusion 50 None of the grounds of appeal is made out. The appeal must therefore be dismissed. There is no reason why costs should not follow the event. I will make orders accordingly. I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann.