SZVHP v Minister for Immigration and Border Protection

Federal Court of Australia|2016-02-15|Before: Rares J

The appeal be dismissed.
The first and second appellant pay the first respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

RARES J: 1 This is an appeal from the decision of the Federal Circuit Court to refuse the appellants' claim for constitutional writ relief against the decision of the Refugee Review Tribunal made on 23 September 2014 to affirm the Minister's delegate's decision not to grant the appellants' protection visas: SZVHP v Minister for Immigration [2015] FCCA 3001. Throughout the process before the delegate and the Tribunal, the appellants were represented by their migration agent, who also made submissions and lodged other evidence in support of the appellants' claims.

The delegate's decision 9 The delegate was not satisfied, among other things, about the wife being a Christian. He found that she did not know the address of the Padstow church and that it was a considerable distance from where she lived in Auburn, at which there was a Mandarin-speaking church that she could have attended. He found that although the wife had stated she had been attending the Padstow church since 2009, she had not provided any letter of support from that church. The delegate gave no weight to two unsigned letters from others, that she had provided, who claimed that they were churchgoers. He also did not find her reasons convincing as to why she had chosen to marry in a civil ceremony at someone's home in October 2012, despite attending the church, as she claimed, for nearly four years. 10 Ultimately, the delegate found that the wife's account of the police raid on her parent's home was not credible and her knowledge of Christianity was not commensurate with someone who claimed to have grown up in a Christian family and had been attending church to learn the Bible from an early age. Accordingly, the delegate found that the wife did not have a well-founded fear of persecution and was not entitled to a protection visa on the basis of her claims under the Refugee Convention or because she was at real risk of suffering significant harm entitling her to complementary protection under s 36(2)(aa) of the Migration Act 1958 (Cth).

The proceedings in the Tribunal 11 The appellants provided further evidence to the Tribunal, including a number of letters from attendees at the Padstow church and two from the pastor. Neither of the pastor's letters stated when the appellants, and in particular the wife, had first started to attend at that church. 12 The Tribunal found that the appellants had not married in the Padstow church because its guidelines provided that it did not officiate at weddings for couples who were cohabitating before marriage and who had not both been baptised. It found that the husband had not been baptised. 13 The Tribunal did not find the wife's claims for protection were credible because of inconsistencies in her evidence that it detailed. It found that the wife had given inconsistent evidence about there being Bibles left on tables and chairs at the time of the police raid at the family home in February 2009. The Tribunal asserted that, in the wife's statement accompanying her protection visa application, she had claimed that the Bibles were in a bag. The Minister conceded before the trial judge that that finding was wrong, as indeed it was. However the Tribunal made a finding that the wife's evidence in that respect was inconsistent. 14 It then went on to make a finding that, in any event, if persons had left Bibles on tables and chairs as the wife claimed, that conduct would have been inconsistent with her claim that her father had received a warning call that the police were coming and had told the priest and others to go, although some remained. The Tribunal found that if the wife's parents and fellow Christians at the house were aware of the police coming because they were holding an illegal Christian gathering, "the first thing they would have done would have been to hide the evidence of their gathering because they were Christian". 15 The Tribunal also found that, until it challenged her about not raising the incident, the wife had not mentioned at the hearing that she had been informed by her mother of the raid on Christmas Eve 2010, despite being invited by the Tribunal to specify any other events by reference to which she feared persecution were she to return to China. The Tribunal found unsatisfactory her explanation for not mentioning that incident. The wife had explained that she had thought the Tribunal had only been asking about what had happened to her when she was in China. The Tribunal found that this would have been a memorable incident that, had it occurred, she would have mentioned when being asked what her reasons were for seeking protection in Australia. 16 The Tribunal then considered the wife's activities in relation to her claims to have practiced Christianity in Australia. It noted that she had provided a number of photographs of her activities at the Padstow church, the dates of which were uncertain. It noted that the letters from other churchgoers on which she relied did not say when the wife first attended at the Padstow church. The Tribunal accepted that the wife had been in the church choir, but only from around Christmas 2012, after the appellants had applied for the protection visa. It did not accept her other evidence of earlier participation in church activity in Australia. It did not accept the wife's claim that she had committed in China to being baptised. It found that her claim to have been a practicing Christian since 2006 was inconsistent with her living in a de facto relationship since 2009 and only marrying when she was four or five months pregnant, a matter of days before the wife and husband applied for a protection visa. 17 The Tribunal found that the reason that the appellants married was because they were making the application for protection and had nothing to do with her being a Christian. It found that the Padstow church would not officiate at the marriage because they were cohabiting before marriage, and it found that this conduct was inconsistent with membership of that particular church. 18 The Tribunal also found the wife's evidence that the couple had cohabited and not married earlier because they thought they were too young, to be inconsistent what the Tribunal described to her as her Christian belief in God. It accepted the wife's evidence that not everyone was perfect in God's world, but it found that her other evidence about the marriage was also inconsistent. The Tribunal had asked her why the couple married on 10 October 2012. The wife had said that she was pregnant and it was a sin to become pregnant before marriage, so they decided that they needed to get married as soon as possible. 19 Next, the Tribunal said at [37] of its reasons, having earlier found that her child was born on 2 February 2013: The applicant stopped working in April 2012, according to her application, which is consistent with the time she became pregnant. She said at the hearing that she stopped work while she was pregnant because she had high blood pressure and a thyroid problem. However, at the hearing when the Tribunal was questioning her about not marrying sooner after becoming pregnant, the applicant claimed that she did not know that she was pregnant for the first three months. It was only when she began suffering morning sickness that she confirmed she was pregnant. The Tribunal finds that the applicant knew she was pregnant from April 2012 and gave the evidence about not knowing she was pregnant until after three months to overcome a difficulty the Tribunal had raised. Even accepting her evidence that she did not know for three months, she would have known by August but did not marry until October. (emphasis added) 20 The Tribunal said that, in her protection visa application, the wife had said that when the appellants found out she was pregnant they had spoken to elders and other people in the church and told them of their fear of returning to China, her experience there and that she had no visa. She had claimed that the appellants had married on the advice of those persons to get a marriage certificate and they had chosen 10 October 2012 because it was a good day. When the Tribunal questioned the wife on her statement in her protection visa application that they had married on the advice of the elders, she responded that that was not quite the position, and said, rather, they had planned to marry and had double-checked with the elders. 21 The Tribunal reaffirmed its finding that the marriage occurred for the purposes of applying for the protection visa, on the advice of others. It concluded that for all the reasons that it had given, including those to which I have referred above, the wife's evidence was not credible. 22 It then went on to make further findings that the wife's claims in relation to the 2009 and 2010 incidents had been fabricated. The Tribunal noted that while various members of the Padstow church had written letters of support for the wife, the earliest date of any letter was 12 October 2012, just before the protection visa applications were lodged, and none of the letters, as I noted above, included any statement by the pastor, about when the wife first began attending at the church. 23 The Tribunal went on to make a number of other adverse credibility findings about the wife's evidence, noting that her increased involvement in church activities since the birth of their child and after the protection visa application was consistent with its finding that she had engaged in all those activities for the purposes of strengthening her protection visa application. It did not accept that the wife was a genuine Christian or would practice Christianity were she to return to China. 24 The Tribunal also rejected the husband's evidence that he was a Christian but not baptised. It found that there was no documentary evidence to support his claims that he had enrolled for baptism. It noted that the husband had made no claim that he feared harm because of his religious beliefs if he returned to China. It found that he had made his claims about his Christianity to support his wife's claims for protection, rather than for making a claim for protection himself, that he was not a practicing Christian and nor would he be if he returned to China. The Tribunal also found that the wife's evidence about her husband's Christian beliefs was not credible. 25 It found that none of the appellants, including the infant son, would suffer serious harm for a Convention reason in the reasonably foreseeable future were they to return to China and that none of them had a well-found fear of persecution if they did so return. It also found that, because it had not accepted the appellants' claims, it was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of their being removed from Australia to China, there was a real risk that either the wife or husband would suffer significant harm for the purposes of s 36(2)(aa) of the Act. Accordingly, the Tribunal affirmed the decision of the delegate.

The proceedings before the trial judge 26 The wife represented herself before the trial judge on behalf of her family, as she did before me. The ground of the application below was: Because the main reason of refusal of my application was based on the member's imagination. 27 As I have noted, the Minister conceded before her Honour that the Tribunal's finding in respect of the wife's evidence of what happened in the February 2009 incident about the Bibles was an error of fact based on a misunderstanding of the evidence. But, the Minister argued and her Honour found, that this did not amount to a jurisdictional error. Her Honour found that that was one of only several matters that the Tribunal had taken into account in finding that the claims for protection were not credible and that its ultimate conclusion was open on the basis of the other matters. Her Honour found that the Tribunal had also found that, even if the Bibles had been left in plain view, leaving evidence of an illegal gathering would have been inconsistent with those present at the house seeking to flee. 28 Her Honour noted that other aspects of the Tribunal's reasoning could have been expressed with more clarity, but that it could not be described as reasoning that was so unreasonable that no reasonable decision-maker could have proceeded on that basis. Her Honour found that the wife's disagreement with the Tribunal's approach to fact finding did not demonstrate any jurisdictional error. 29 The trial judge found that there was no basis to suggest that the Tribunal had been actually biased or had given the appearance of bias and that, with the exception of the one factual error that had been conceded, the other findings of fact were open to the Tribunal on the material before it. The trial judge also rejected the wife's complaint that the Tribunal had approached the question of her knowledge of when she was first pregnant in a manner that was not open to it. Her Honour found: Even if not all decision-makers would have reached the same conclusion about when the Applicant became aware she was pregnant, it cannot be said that the Tribunal's findings were not open to it or that they could not have been reached by a reasonable decision-maker. 30 Her Honour said that even if minds could differ on the Tribunal's reasoning, it could not be said that no reasonable person could have reasoned in that way or reached the conclusions that the Tribunal did in relation to the appellants' credibility. For those reasons, her Honour dismissed the application.

The appeal 31 The notice of appeal before me raises a single ground, namely; "not [sic] satisfied with decision of Federal Circuit Court". 32 The matter was originally listed for hearing on 8 February 2016, but because the wife was ill on that day I adjourned the hearing to today. She attended today, apparently recovered, and not displaying any signs of inability to participate fully in the hearing. 33 The Registry had sent an email to the parties on the afternoon of 8 February 2016 asking them to consider the Tribunal's and the trial judge's finding in relation to the time of the wife's knowledge of her pregnancy. Given that her son had been born on 2 February 2013, the email raised the concern that it was difficult to think she could have known 10 months before, in April 2012, that she was pregnant and that the Tribunal could have doubted her evidence that, in April 2012, she did not know that she was pregnant. 34 The wife argued before me that the Tribunal had erred in relation to its findings about her evidence concerning the Bibles being left in sight and that it was not fair of the Tribunal to find that her evidence was inconsistent because she had been consistent on that point. She argued that the Tribunal had misjudged her on this point and that that may have affected its whole approach.

Consideration 35 When a Court is considering the exercise of its powers in reviewing an administrative decision it must not be concerned with looseness in language or unhappy phrasing of the reasons of the administrative decision-maker. The reasons for an administrative decision should not be construed minutely and finely with an eye keenly attuned to the perception of error. The reasons of an administrative decision-maker are meant to inform and should not be scrutinised on over-zealous judicial review by seeking to discern whether there is some inadequacy that may be gleaned from the way in which the reasons are expressed. In that context, a court reviewing a decision of the present kind, in respect of claims for protection visas, must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ and Toohey, McHugh and Gummow JJ. 36 The reasoning of the Tribunal in relation to when the wife knew she was pregnant is unhappily expressed. It is, however, plain to see how it arrived at its decision. It began with the reasoning that, as it recorded, the wife had said at the hearing that she had stopped working when she was pregnant because she had high blood pressure and a thyroid problem. The Tribunal appears to have taken as an accurate starting point that the wife had stopped working in April 2012, as she claimed in the protection visa. Although it found, in the passage I have set out at [19] above, that the wife knew she was pregnant from April 2012, I am of opinion that it is likely that the Tribunal was linking that date to when the wife actually stopped working, which was not a matter that was explored in any detail in the hearing. In any event, the Tribunal made a finding that: Even accepting her evidence that she did not know for three months, she would have known by August [2012] but did not marry until October. 37 While it is difficult to imagine that a woman could know she was pregnant 10 months before giving birth, I think the unhappy phrasing of the Tribunal's reasons stemmed from its having taken as its starting point the wife's acceptance that she had stopped work when she knew she was pregnant. The likelihood is that she was confused about the date of her stopping work. 38 Where a court makes a finding that a person's evidence is not credible for a number of reasons that it then states, one of which is shown to be erroneous, an appeal court will consider whether the erroneous finding was a matter of central logical importance to the overall finding about credibility or whether it merely provided additional support for a conclusion as to credibility that the judge had reached on other grounds. Where the error is not one about some fact vital to the resolution of the case or is not of such a nature as to have a cascading effect on the judge's resolution of the larger issues in the case, the error will not undermine the overall finding: Cordelia Holdings Pty Limited v Newkey Investments Pty Ltd [2004] FCAFC 48 at [60]-[61] per Black CJ, and French and Tamberlin JJ. 39 Ordinarily, it will not be a jurisdictional error for an administrative decision-maker to make a wrong finding of fact: City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at 154 [44] per Gleeson CJ, and Gummow, Kirby and Hayne JJ citing Waterford v Commonwealth (1987) 163 CLR 54 at 77 per Brennan J. However, the final conclusion of an administrative decision-maker will be unreasonable in a legal sense if having regard to the scope and purpose of the statutory provision under which the decision is made, the decision-maker made a particular error in reasoning, gave disproportionate weight to some factor or reasoned illogically or irrationally: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 365-366 [72] per Hayne, Kiefel and Bell JJ, at 370-371 [90] per Gageler J. 40 In the present case, the Tribunal made one erroneous factual finding in relation to the wife's evidence concerning the visibility of the Bibles during the claimed February 2009 incident and loosely expressed its findings concerning the date at which she knew she was pregnant. Nonetheless, the Tribunal made its alternate, or perhaps more accurate, finding that the wife would have known that she was three months pregnant by August 2012, but chose not to marry until October 2012, and that knowledge was inconsistent with her claim that she had decided to marry as soon as possible. 41 In my opinion, the alternate finding that the wife knew of her pregnancy in August 2012, but did not immediately marry, was open on the material before the Tribunal and one which it was entitled to take into account. Likewise, the alternate finding that the Tribunal made in relation to inconsistency of persons fleeing but leaving the Bibles exposed in the claimed incident in February 2009 was also open to it. 42 The Tribunal found that there was a lack of a Convention nexus to the appellants' claims and that they were otherwise not entitled to a protection visa under s 36(2)(a) or (aa). The Tribunal formed its overall credibility-based findings on a number of matters that were of central logical importance. The two matters to which I have directed attention as errors or potential errors, were merely items that the Tribunal instanced as giving some additional support to its overall finding: Cordelia Holdings [2009] FCAFC 48 at [60]-[61]. Each of those matters, at best, was an error of fact and not a jurisdictional error. The Tribunal's reasoning did not suggest that it had engaged in a process of reasoning susceptible to a finding of jurisdictional error in the circumstances of this case. 43 In the end, the Tribunal found that neither the wife nor the husband was a Christian, and the wife's claims were not such as gave rise to any entitlement to a protection visa. I am of opinion that the Tribunal's fact-finding errors or infelicities of expression did not amount a jurisdictional error: Enfield 199 CLR at 154 [44]. For those reasons the appeal must be dismissed. 44 In any event, I am satisfied that this is a case in which no useful result could ensue from the grant of the relief sought by the appellants. That is because they could not overcome the Tribunal's substantive findings that their claims were not credible. Accordingly, had it been necessary I would have exercised my discretion to refuse them constitutional writ relief: SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at 618-619 [28]-[29] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ).

Conclusion 45 The appeal must be dismissed with costs. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

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