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SZMSS v Minister for Immigration & Anor [2009] FMCA 93 (12 February 2009)

Last Updated: 24 February 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMSS v MINISTER FOR IMMIGRATION & ANOR

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in China – applicant not believed – Tribunal reasons not supported by statements on transcript – apprehended bias – jurisdictional error found.


Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425
SZDFZ v Minister for Immigration [2008] FCA 390; (2008) 168 FCR 1
SZHVL v Minister for Immigration [2008] FCA 356
SZLJF v Minister for Immigration [2008] FMCA 1560
WALT v Minister for Immigration [2007] FCAFC 2


Applicant:
SZMSS

First Respondent:
MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:
REFUGEE REVIEW TRIBUNAL

File Number:
SYG 2345 of 2008

Judgment of:
Driver FM

Hearing date:
12 February 2009

Delivered at:
Sydney

Delivered on:
12 February 2009

REPRESENTATION

The Applicant appeared in person


Counsel for the Respondents:
Mr G Kennett

Solicitors for the Respondents:
DLA Phillips Fox

ORDERS

(1) A writ of certiorari issue quashing the decision of the Refugee Review Tribunal signed on 30 July 2008 and handed down on 12 August 2008.
(2) A writ of mandamus issue requiring the Refugee Review Tribunal to redetermine the review application before it according to law.
(3) The first respondent is to reimburse to the applicant the filing fee in the sum of $374 paid by him.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2345 of 2008

SZMSS

Applicant


And


MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent


REASONS FOR JUDGMENT

(revised from transcript)

  1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was handed down on 12 August 2008. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from China and had made claims of religious persecution. He had also claimed to be a victim of the Chinese one-child policy. The background to the applicant's claims and the Tribunal decision on them are conveniently summarised in the Minister's submissions, filed on 3 February 2009. I adopt as background for the purposes of this judgment, with minor amendments, paragraphs 1 to 5 of those written submissions:
  2. These proceedings began with a show cause application filed on 9 September 2008. The applicant continues to rely upon that application. I incorporate in this judgment the grounds set out in that application:
  3. The application is supported by a short affidavit filed with it, which I received. I also received as evidence the court book filed on 30 September 2008 and transcripts of the two hearings conducted by the Tribunal, which I marked as exhibit R1.
  4. I conducted a show cause hearing in this matter on 17 November 2008. At that time I identified three arguable propositions from the show cause application, and no others, which are reflected in order (2), made by me on that date. That order was to require the Minister to show cause why the applicant should not be granted relief in relation to the issues of:
    1. whether the Tribunal decision is vitiated by apprehended bias;
    2. whether the Tribunal breached its obligation to provide a real hearing opportunity pursuant to s.425 of the Migration Act; and
    1. whether the Tribunal breached its obligation in reaching conclusions of the applicant's faith that were not open to it on the material before it.
  5. The concern in this matter relates to the manner in which the Tribunal reached adverse credibility findings on the applicant's asserted Christian faith. The Tribunal's reasoning on that issue is contained in paragraphs 60 to 62 of its reasons[8]:
  6. The Tribunal's conclusions were strong ones and appeared not to sit particularly well with the applicant's Christian knowledge, as recited by the Tribunal from its record of what occurred at the hearing. That concern is amplified from the transcript. The applicant was questioned about his faith at the hearing on 22 July 2008, as appears on the transcript, from line 40 on page 14 of the transcript through to line 16 on page 18:
  7. That was the extent of the Tribunal’s questioning of the applicant’s knowledge of Christianity. The applicant’s answers were short, but he had been instructed by the presiding member to keep his answers to questions short[9]. Only the answer to the final question is clearly wrong. The test for apprehended bias is whether a fair-minded lay observer, properly informed of the circumstances, would apprehend that the decision-maker might not bring an unprejudiced mind to bear upon the question to be decided[10]. The minister's submissions in relation to that issue are set out in paragraphs 9 to 14, which also deal with other issues raised by me:
  8. I accept that it will be an exceptional case that bias, even apprehended bias, is established simply by reference to the Tribunal reasons. However, in this case, having regard to the transcript, I do conclude that a case of apprehended bias is made out. I refer in particular to the following factors. First, the presiding member, at paragraph 60 of the Tribunal reasons, states that[25]:
  9. I invited counsel for the Minister to show me, on the transcript of the hearing on that day, what supported the statement that the applicant was determined to present well-rehearsed remarks, irrespective of questions asked of him. Counsel was unable to point to anything on the transcript to support that statement. On the contrary, the applicant's answers were responsive to the questions put to him. There is nothing in the applicant's answers which, objectively and necessarily, points to rehearsal or to a desire to give answers that did not relate to the questions put.
  10. Secondly, the applicant, on an objective view, displayed a reasonable knowledge of the Christian faith in dealing with the questions put to him. For example, he was asked what the Gospel message is and why Jesus came into the world. The applicant identified the Christian belief that Jesus came into the world to cleanse mankind of original sin, by reference to Adam and Eve. The presiding member appeared not to understand or give credit to the answer. The applicant responded to further prompting on the Gospel message by answering briefly that God saved the people of the world. He knew what status John the Baptist had, he knew who Moses was and what he did, and he knew that the apostle Peter was a fisherman. A question about the Books of Corinthians was abandoned due to apparent interpretation difficulties. The applicant was confused about the question put concerning Jesus' sermon on the mount, but I accept that such confusion is entirely possible between the delivery of the commandments in the old testament from the mountaintop and Jesus' sermon on the mount referred to in the new testament. Given the questions put which were limited in scope and detail and the applicant's answers, the Tribunal's conclusions seem unnecessarily harsh.
  11. The Tribunal recognised that faith is a personal matter and that persons will have different levels of knowledge and understanding. That is reflective of the Federal Court's decision in WALT v Minister for Immigration [2007] FCAFC 2. However, while the Tribunal says it was not trying to rate his knowledge of his faith in the Bible by the questions that were put to him at the hearing and his responses to them, it appears to me, on a fair reading of the decision and the transcript, that that is indeed what the Tribunal was attempting to do. The presiding member says, in his reasons at paragraph 62[26], that:
  12. However, I am unable to identify in the transcript any occasion upon which the applicant was invited to speak generally about his faith so as to satisfy the Tribunal's concerns. Rather, he was asked a series of specific questions and answered them to the best of his ability. He was asked[27] why he believed he was a refugee and gave the following answer:
  13. The applicant would not have seen that as an opportunity to speak generally about his faith.
  14. It is true that, at the resumed hearing on 28 July 2008, the presiding member squarely put to the applicant his concern that the applicant had displayed an inadequate knowledge of Christianity and invited a response. This is reflected in the transcript of that hearing, on pages 3 and 4, from line 45 to line 11:
  15. However, to my mind, the important factor is that the presiding member, at that point, had already formed a firm view before the applicant had been given an opportunity to respond or speak generally. The perception created is that nothing the applicant might say could change that view. Indeed, the applicant was accused by the presiding member of being a liar before he was asked any questions about his claim of religious persecution[28]
  16. There is sufficient of concern in the Tribunal reasons, as amplified by the transcript, to support the conclusion that a fair-minded lay observer, so informed, might reasonably apprehend that the presiding member did not bring an unprejudiced mind to bear upon the question of the applicant's faith. That constitutes jurisdictional error and entitles the applicant to the relief he seeks.
  17. There was otherwise no breach of s.425 of the Migration Act. The applicant was properly invited to a hearing and was put on notice of the essential and significant issues on which the review would turn. Apart from the issue of bias, the hearing opportunity was an adequate one. The applicant was accompanied to the hearing by Rev Samuel Lawrence, who was identified in the applicant’s response to hearing invitation[29] as a person who would give oral evidence in support of the application. Rev Lawrence gave no evidence and it appears that the Tribunal staff identified him merely as a support person[30]. While that failure to give evidence is unfortunate, especially as the Tribunal had no evidence (or claims) in relation to the applicant’s religious observance in Australia, the available material does not support a conclusion of any fault on the part of the Tribunal. It is unnecessary to deal with the third issue raised in the show cause orders.
  18. I will order that a writ of certiorari issue quashing the decision of the Refugee Review Tribunal signed on 30 July 2008 and handed down on 12 August 2008. I will also order that a writ of mandamus issue requiring the Refugee Review Tribunal to redetermine the review application before it according to law.
  19. On the question of costs, the applicant is self-represented and confirmed that he has not incurred any legal costs. He has paid an application fee to the Court of $374 and should be reimbursed. The setting-down fee for today's hearing has not been paid and I will make no order in relation to it. I order that the first respondent is to reimburse to the applicant the filing fee in the sum of $374 paid by him.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Driver FM


Associate:


Date: 19 February 2009

[1] See Court Book (CB) 100 [1]-[4]
[2] CB 99
[3] CB 116
[4] See CB 102-103
[5] See CB 103-104
[6] CB 113 [65]-[66]
[7] CB 111-113
[8] CB 111-112
[9] Transcript (22.07.08) p13, line 34
[10] Re Refugee Review Tribunal; Ex parte H [2001] HCA 1
[11] See WALT v Minister for Immigration and Citizenship [2007] FCAFC 2 at [27]-[30]; SZLJF v Minister for Immigration and Citizenship [2008] FMCA 1560 at [17]
[12] See CB 104 [30], 106 [40]
[13] CB 112 [62]
[14] See the transcript (22.7.08) at pp 16-18
[15] Eg SZDFZ v Minister for Immigration and Citizenship [2008] FCA 390; (2008) 168 FCR 1 at [40]
[16] Transcript (22.7.08) pp 17-18
[17] Transcript (22.7.08) pp 16-17
[18] Transcript (22.7.08) p 17
[19] Transcript (22.7.08) p 15
[20] Transcript (22.7.08) pp 15-16
[21] Ibid
[22] CB 111 [60]
[23] SZHVL v Minister for Immigration and Citizenship [2008] FCA 356 at [17] per McKerracher J
[24] Transcript (28.7.08) pp 3-4
[25] CB 111
[26] CB 112
[27] Transcript (22.07.08) p12, line 38
[28] Transcript (22.07.08) p7, lines 16-33
[29] CB 71
[30] CB 72

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