SZHGV v Minister for Immigration & Multicultural Affairs [2006] FCA 1740

FEDERAL COURT OF AUSTRALIA

SZHGV v Minister for Immigration & Multicultural Affairs [2006] FCA 1740

SZHGV v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL NSD 879 OF 2006

RARES J

21 NOVEMBER 2006

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 879 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZHGV

Appellant

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: RARES J

DATE OF ORDER: 21 NOVEMBER 2006

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal is dismissed. 2. The appellant pay the costs of the first respondent fixed in the sum of $2,800. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 879 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZHGV

Appellant

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: RARES J

DATE: 21 NOVEMBER 2006

PLACE: SYDNEY

REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) 1 This is an appeal from the Federal Magistrates Court: SZHGV v Minister for Immigration [2006] FMCA 635. The appellant is a citizen of the People's Republic of China who arrived in Australia in December 2004 and applied for a protection visa in February 2005. A delegate of the Minister refused that application and he sought a review in the Refugee Review Tribunal. The Tribunal decided on 29 August 2005 and handed down its decision on 20 September 2005 affirming the decision of the delegate of the Minister not to grant a protection visa. 2 The Tribunal, after expressing considerable difficulty in accepting the appellant's claim that he was a Christian at all, nonetheless, assessed his claim on the basis that it was possible though not certain that he was. In doing so it gave the appellant the benefit of the doubt. He had claimed that because of his religious beliefs as a member of the Christian sect known as the Shouters that he had a claim for refugee status in Australia. The Tribunal considered the available country information relating to China and in relation to the freedom of religious practice and belief in the Fujian province in which the appellant lived. It accepted, on the basis of its having given him the benefit of the doubt, that he had been arrested as he claimed in July 2004 while taking part in a prayer meeting in the home in Fuqing in which he had grown up and that he had been detained by the authorities for two months. 3 His business and his then current address were located in Nanping, which is where he lived at the relevant time. The Tribunal noted that after his release from detention, the appellant returned to Nanping and he continued meeting with friends for prayer in that city. It recorded that the appellant had told it that he had lived in Nanping and only went to Fuqing once a year and that he had never had any problems in Nanping. In those circumstances, the Tribunal formed the factual judgment, having regard to the independent evidence relating to the attitude of the authorities in Fujian, to small groups of people getting together in their own home, that there was no real chance that if the appellant returned to Nanping, where he was living and had his business, he would be persecuted for reasons of his religion if he continued to meet privately with his friends for prayer in the manner he described in the hearing. 4 The Tribunal concluded that it was not satisfied that he had a well founded fear of being persecuted for a Convention reason if he returned to China now or in the reasonably foreseeable future. 5 The appellant raised two substantive issues in his notice of appeal. First, that the Tribunal committed a jurisdictional error in failing to put information which it considered would be the reason, or part of the reason for affirming the decision for review to him in writing in accordance with s 424A(1) of the Migration Act 1958 (Cth) and the way in which that section has been applied in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214. 6 Secondly, he said that the Tribunal had failed to consider properly his claims because of its bias against him. The reasons and findings of the Tribunal to which I have referred show that the Tribunal did not have regard to anything other than its qualified acceptance of the appellant's claims of the treatment he had sustained in Fuqing and his evidence that he lived his life in Nanping, together with the country information which dealt with the Chinese authorities' attitude to religious observance in Fujian. The latter was information that was not specifically about the appellant or another person. It was just about a class of persons of which the appellant or other persons were a member. It was therefore excluded from the operation of s 424A(1) by s 424A(3)(a). 7 There is no basis, in my opinion, for a conclusion that the Tribunal failed to observe the requirements of section 424A in the appellant's case. The trial judge came to the same view. I agree with him. I see no error in his Honour's determination that the Tribunal did not fall into jurisdictional error in relation to s 424A of the Act. 8 The second ground on which the appellant put his claim was that the Tribunal had been biased. I asked him to explain what he meant. He told me that it did not give him an opportunity after it had conducted the hearing to provide further material. He also said another person whom he knew, who was exactly like him, had been given refugee status by the Tribunal and asked 'why not me?'. That shows, he said, that the Tribunal was biased. 9 As I raised with the appellant, the purpose of the hearing, which had been communicated to him, was that the Tribunal had not been satisfied on the information which he had provided to it in support of his application that his claim should be granted. He was not able to point to any information that the Tribunal should have given him the opportunity to provide either during or after the hearing. I am not able to see any basis upon which the appellant's argument in this regard could be accepted. I do not perceive from reading the trial judge's judgment that the appellant put this argument to his Honour but no objection was taken by the solicitor for the Minister to the appellant relying on this ground and in my view I should deal with it and dismiss it because it is without substance. 10 The second basis on which bias was argued does not show any arguable suggestion that the Tribunal had given any appearance of bias or of had been actually biased. The fact that another person whose case was decided by the Tribunal on the claims and evidence that that person had is not, even though the appellant might think that the person was in exactly the same position, one which is comparable. Moreover, the appellant was not able to identify the decision in the other matter or to show that the Tribunal necessarily had to decide in his favour. 11 The argument, in my opinion, breaks down at a number of levels. First, in this case the Tribunal gave the appellant the benefit of the doubt and in effect assessed his claim doubting, but accepting, his evidence. It looked at the appellant's actual life as he explained it to be in Nanping both before and after his arrest and detention in Fuqing. It evaluated, in a way that appears to me to be perfectly fair, the risk which the appellant had of being persecuted were he to return to Nanping as he indeed had prior to leaving for Australia. 12 For the Tribunal to be found to have had an appearance of bias a reasonable observer of the proceedings in the Tribunal would have had to have been able to form a view that the Tribunal had a degree of prejudgment about the appellant's case or was otherwise approaching his case in a way in which, in effect, only one result was possible. Nothing in the material that is before me to suggests there is the remotest chance that such an argument could succeed. 13 The mere fact that the decision has gone against a person does not mean that the decision-maker has a state of mind that he is, or could be seen by a reasonable person observing the proceedings to be, biased. In Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982 at 990 [28] the High Court (Gleeson CJ, Gaudron and Gummow JJ) held that in the case of administrative proceedings held in private, the test for apprehended bias was whether a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias could form the view that the Tribunal would not bring an impartial mind to the resolution of the question to be decided. 14 I am of the opinion that no objective assessment by such a fair-minded lay person could possibly see what transpired in the Tribunal, or what appears in its reasons, as giving rise to the slightest suggestion of an apprehension of bias, let alone actual bias. I would dismiss this ground of appeal. I also consider that his Honour correctly assessed this argument and rejected it for the reasons he gave. 15 During the course of the hearing today I raised with the solicitor for the Minister whether the way in which the Tribunal expressed its ultimate finding could give rise to an argument that the appellant's discretion in the way he practised religion had not been properly addressed having regard to the decision in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 at 495 [58-60] per McHugh and Kirby JJ and 503 [88]-[90] per Gummow and Hayne JJ. The Tribunal said that there was no real chance that if the appellant returned to Nanping, where he was living and had his business, he would be persecuted for reasons of his religion 'if he continues to meet privately with his friends for prayer in the manner he described at the hearing before me'. 16 As the solicitor for the Minister pointed out, the appellant's claim was that the way in which he did practise his religion was at his home, or in a home environment, with friends. It was not part of his claim that that method of practising resulted from any attitude of the Chinese authorities. He had told the Tribunal that he was not sure why the Chinese authorities said his religion of Christianity was illegal. But he said that he had not had a formal church and that he had had just a few friends and they had joined together to pray, and that he had never belonged to a formal church. The country information relied on by the Tribunal indicated that the authorities in Fujian region were quite relaxed in relation to religion and that there were a lot of unregistered churches. The country information also indicated that the authorities in Fujian generally did not trouble small groups of people getting together in their homes. 17 Having regard to the way in which the appellant put his claims to the Tribunal and the material available to it for their assessment, I am not satisfied that this matter gives rise to an issue such as was considered in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473. The essence of the Tribunal's finding was that the appellant did not have a real chance if he practised his religion in the way in which he wished, namely, at a home with friends, that he would be persecuted in Nanping. 18 In effect, the Tribunal considered that, analogously to cases with claims for refugee status where persons may relocate within countries in which actual persecution in a particular region was found, the appellant here, in his usual home and place of business, Nanping, was not able to demonstrate a well-founded fear of being persecuted. There could be little doubt that he had demonstrated such a fear for Fuqing, but he did not live there normally and could relocate back to his usual home. 19 For all these reasons I am unable to detect any jurisdictional error in the way in which the Tribunal approached the assessments of the appellant's claims. I do not see any error in the way in which his Honour dealt with the application for review. I am of the opinion that the appeal should be dismissed with costs fixed in the sum of $2,800. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.