FEDERAL MAGISTRATES COURT OF AUSTRALIA
SZNST v MINISTER FOR IMMIGRATION & ANOR	[2009] FMCA 1150	

MIGRATION – RRT decision – Chinese applicant claiming religious persecution – disbelieved by Tribunal – no apprehension of bias nor illogical reasoning – no jurisdictional error shown – application dismissed.	

Migration Act 1958 (Cth)	

Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
SZMDS v Minister for Immigration & Citizenship [2009] FCA 210	

Applicant:	SZNST	

First Respondent:	Minister for Immigration & Citizenship	

Second Respondent:	Refugee Review Tribunal	

File Number:	SYG 1609 of 2009	

Judgment of:	Smith FM	

Hearing date:	12 November 2009	

Delivered at:	Sydney	

Delivered on:	12 November 2009	

REPRESENTATION
Counsel for the Applicant:	In Person	

Counsel for the Respondents:	Ms L Clegg	

Solicitors for the Respondents:	Sparke Helmore	

ORDERS
(1)	The application is dismissed.
(2)	The applicant must pay the first respondent’s costs in the sum of $5,800.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
Sydney	
SYG 1609 of 2009
SZNST	
Applicant

And

Minister for Immigration & Citizenship	
First Respondent
Refugee Review Tribunal	
Second Respondent

REASONS FOR JUDGMENT
(Revised from transcript)
1.	The applicant is a young man who arrived in Australia in September 2008 on a Chinese passport containing his photograph and an Australian student visa.  On 20 October 2008, he lodged an application for a protection visa assisted by Mr Harry Huang of Pricilla International.  He claimed that the name in the passport was not his name, but that he had the identity shown in a Chinese identity card, which is the name in which he brought the visa application and the present proceedings.  
2.	The applicant’s true identity is not a matter that any of the decision makers have addressed.  The decision makers did, however, interview the applicant, and disbelieved his account of events in China which he claimed gave rise to a fear of persecution if he returned to that country.
3.	The applicant claimed to have had an unhappy relationship with a girlfriend whose parents disapproved of their relationship. She terminated it, and became a travel agent in Fuqing City.  The applicant left his home in Fujian in October 2007, and started a ‘fresh life’ in a town in Henan Province, working in his uncle’s bar with a pastry cook, Mr Z.  The applicant said that Mr Z guided him to study the bible soon after he arrived, and he attended gatherings at the Local Church or ‘Shouters’, which was banned by the PRC authorities.  The applicant said:
	We gathered together almost every evening, if possible; and these gatherings were normally held at private homes of church brothers or sisters.  On 6 January 2008, I was baptised in the bathroom of the place where Mr Z and I lived.
Another new believer, Mr L, was baptised with him, and the two of them “set up a youth gathering group at the local church” in that town.  
	From then on, the youth gathering group aimed at evangelising among young people, distributing the Local Church’s promotion materials or copies of Recovery Version Bible or sending to young people and organising gatherings of young people.  Eventually, the youth group was developed to 30 members in total.
4.	The applicant said that in May 2008 he and Mr Z were arrested when he met Mr Z at the bus station of the town. The applicant was interrogated, but the police released him after about four weeks’ detention.  Twenty other people were subject to investigation, and six including Mr Z were imprisoned.  The applicant and Mr L continued to organise activities of the youth gathering group, but in August 2008 Mr L and three students were arrested, and the applicant was advised to leave the town immediately.  He said: “obviously, I was exposed by Mr L and other 3 students, I have been on the ‘blacklist’ of the PSB since then”.  To escape from persecution, he obtained a false passport from his former girlfriend, and came to Australia.  
5.	No corroboration was provided to the Department of Immigration in relation to this story, but subsequently the Tribunal was given a document purporting to be a certificate of the applicant’s release from detention, and a document on the letterhead of the Local Church in Sydney which stated: 
	This is to confirm that (the applicant) has been meeting regularly with the church since September 2008.
6.	The applicant was interviewed by the delegate, who refused the visa application on 8 January 2009.  The delegate noted that recently the Local Church had ceased to be repressed in Fujian and some other provinces, and put this to the applicant.  Essentially, the delegate did not believe the applicant’s history, because he thought that elements in the story were unlikely to be true.  
7.	On appeal, the applicant attended a hearing of the Tribunal on 22 April 2009.  A transcript of the hearing has not been presented in evidence by the applicant, although he has been given that opportunity.  In the absence of better evidence, I accept the description of the hearing given by the Tribunal in its statement of reasons.  
8.	According to the Tribunal, it tested the applicant’s claims by exploring his knowledge of the geography of the town in which he claimed to have lived for nearly a year before coming to Australia.  It tested his religious claims against general information about Local Church practices, and also tested his knowledge of the bible.  The Tribunal put to the applicant problems in these areas, and also some inconsistency it detected between his account of his employment given to the delegate and to it.  
9.	Its concerns were subsequently put in writing to the applicant and his agent.  A response was received, which claimed that there had been misinterpretation at the Tribunal’s hearing at several key points, and in relation to other matters sought to explain or avoid the points that were put to him.
10.	The Tribunal decided to test the applicant’s criticisms of the interpretation at the hearing, by obtaining a further translation of the Mandarin spoken at three parts of the hearing.  After receiving the transcript, it put the transcript to the applicant for written comment.  The applicant’s agent presented further response by way of a purported statutory declaration of the applicant, which attempted to argue further about the points.  
11.	The interpretation received by the Tribunal tended to confirm that the Tribunal’s questions and the applicant’s responses had all been adequately translated at the hearing.  For example, one concern of the Tribunal’s was to detect whether the applicant knew the name of the main mountain and river in the locality of the town.  In relation to this section of the translation obtained by the Tribunal, it showed (omitting the Chinese characters, and making bold those parts in Mandarin):
	[track 2]
	Tribunal Member:	All right, but I want to know [about] whether there’re any mountains or rivers around (the town)?
	Interpreter:	I would like to know that (the town) – this place has, this place is close to what mountain, what river/water, and what river?
	Applicant:	It runs through a summer resort, a summer resort.
	Interpreter:	Scenic sites…people go to stay there in the summer
	Tribunal Member:	Mr (Applicant), I am not sure if you’re answering my questions.  Do you understand my questions?
	Interpreter:	Um, do you understand my question?  I can’t be sure whether or not you actually understand what I mean.
	Applicant: Is it possible to repeat once again?
	Interpreter:	Can I have the question again?
	Tribunal Member:	The question is pretty simple.  Were there any mountains or rivers around (the town)?
	Interpreter:	She thought this question was very clear.  That is, in (the town), ah, or near it, are there any mountains or any rivers?
	Applicant:	There is XXXX.  There is a mountain—the mountain coming in from Anhui Province.
	Interpreter:	There is a mountain to the East.  That’s to the border to Anhui province.
	Tribunal Member:	And, what is that mountain called?
	Interpreter:	And, what is this mountain called?
	Applicant:	It is called Qingzi Shan.
	Interpreter:	Qingzi Shan, Qingzi Mountain.
	…
	Tribunal Member:	All right, I have actually…um… I have looked up (the town) and they actually talk about it being close to or being in the basin between another mountain to the south and a river to the north.  Can you give me the name of the mountain?  
	Interpreter:	I read this map.  She’s saying that there is a mountain in the south and a river in the north.  So do you know the name of the mountain in the south?
	Applicant:	Oh, I don’t know because I have only been to the east- the east area.
	Interpreter:	No, I don’t know.  I only went to the east.
	Tribunal Member:	You don’t know the name of the mountain?  Because the encyclopaedia tells me that (the town) is situated in Henan, in the basin between a mountain and a river.  Could you please tell me of the name of the mountain or the river.
	Interpreter:	I looked it up in the encyclopaedia and you said that (the town) is in Henan.  It is in a basin.  The basin is between a mountain and a river.  Can you tell me the name of the basin?
	Applicant:	Sorry, I….I don’t know the name of the place.
	Interpreter:	Sorry I don’t know about this.  
	Tribunal Member:	Why not?
	Interpreter:	Why not?
	Applicant:	Because this is geographical knowledge, I don’t know about this?
	Interpreter:	I don’t know about this geographical question.
12.	The applicant’s response to the Tribunal’s contention that he had not known the name of the river flowing through the basin in which the town was situated, was that there had been a mistranslation in which the interpreter had misinterpreted the question by asking for the name of the basin.  As the extracted above shows, it is correct that at the end of the questioning the interpreter appears to have thought that the Tribunal was asking for the name of ‘the basin’. The question was difficult to translate, since it contained several elements. The applicant’s written response pointed out that the interpretation at this point was unreliable, but it failed to address the preceding questioning of the applicant.  This in my opinion, allowed the Tribunal to conclude that the applicant had avoided answering questions clearly asking him to name the river in the vicinity of the town, and that he was unable to answer this question.
13.	The Tribunal made its decision on 9 June 2009, affirming the delegate’s decision.  The Tribunal referred to the evidence taken at the hearing in relation to the applicant’s claims, and the various matters upon which the Tribunal had sought to test the applicant’s veracity.  In its findings and reasons the Tribunal relied on the matters which had been put to the applicant.  
14.	The Tribunal referred to the applicant’s inconsistent evidence in relation to his hours of employment:
	[43]	At hearing, the applicant stated he went to Local Church gatherings in the suburbs about 4-5 times a week from the end of October 2007 to January 2008. He stated the gatherings were for 2-3 hours each night. When asked was he employed at that time, he stated at that time he did not have a job however when it was put to him that in his application he stated he was working at the (named) Bar, he stated he always worked the shift from 4.00 a.m. to 12.00 p.m. The Tribunal finds that the applicant’s answers at hearing as to when he worked are different to the answers he gave the Department. The applicant has subsequently submitted that he might not have understood the delegate’s questions or the questions might not have been interpreted properly by the interpreter or he might have been too nervous to concentrate. He also stated he thought he had been asked about whether security guards and pastry cooks in general had to change shifts. The Tribunal does not accept these submissions. The Tribunal does not believe that the applicant did not understand or was confused. That is because the long and coherent exchange between the Department and applicant at interview is in the Tribunal’s opinion indicative of someone who not only understood the questions but was actively engaged in providing the answers. In addition, the Tribunal has obtained an independent translation of what transpired at its own hearing because the applicant again alleged that the interpreter had again failed to accurately interpret. The Tribunal finds that that independent translation confirms that the interpretation at hearing was accurate. Whilst this does not necessarily mean that the interpreter at the Departmental interview provided was accurate, it does mean that given the long and coherent exchange between the Department and applicant, the Tribunal is not prepared to give the applicant the benefit of the doubt when he merely alleges that the questions might not have been interpreted properly by the interpreter.
15.	The Tribunal discussed the applicant’s evidence about the geography of the town where he claimed to have been converted to Christianity, and assessed its written exchanges with the applicant and his agent concerning the alleged mistranslations.  The Tribunal formed the opinion that its concerns were properly founded in the applicant’s responses about the geography and economics of the town.  It also rejected the applicant’s attempt to avoid being shown not to have known the location of the bus station in the town.  The Tribunal said that, apart from the particular matters which it had identified, it thought there were:
	Other indicators including the applicant’s retelling of his work commitments as well (as) his knowledge of the geography of (the town) which suggest to the Tribunal he has not lived and worked in (the town).
16.	The Tribunal then assessed the applicant’s claim to have participated in Local Church gatherings in China.  In particular, it considered his evidence about its practices in relation to bible reading, which the Tribunal thought was inconsistent with independent information.  This was:
	The Local Church repeats verses in the style taught by Witness Lee, that is, a mix of singing and speaking called pray reading.
The applicant had denied that this occurred.  The Tribunal also thought that he was “not able to articulate in any meaningful way why he converted to Christianity in one week”.  It said:
	[52]	The Tribunal finds that even though the applicant displayed some knowledge of the Bible, it is not satisfied that he displayed a knowledge that is commensurate with someone who read the Bible after he arrived in Australia, that is he stated he knew that Jesus had cured people but could not give the name of any particular person or elaborate on whether the Old testament was about anything other than the laws of others. The Tribunal finds that such answers are indicative of someone who has learned information rather than read the Bible. He has subsequently stated this was because he was nervous however the Tribunal does not accept that someone who did read the Bible could not elaborate on their knowledge of the Old Testament beyond what the applicant was able to do.
17.	The Tribunal concluded:
	[53]	This and findings that the applicant has not been telling the truth about his employment in (his town) leads the Tribunal to conclude it is not satisfied he is a shouter or Christian or has told the truth about his attendance at Church gatherings in China or any of the events that he states have subsequently happened, that is the Tribunal does not believe he was baptised, or that he or Mr Z was arrested or that he and Mr L continually organised religious activities and Mr L and three students were subsequently arrested and the applicant was blacklisted. 
	[54]	Neither does the Tribunal believe the applicant has been telling the truth about his Church attendance in Australia and there is no conduct in Australia to disregard under section 91R(3). If the Tribunal is wrong about this and he has attended the Local Church in Australia, the Tribunal is not satisfied that he has done so other than for the purposes of this refugee claim and disregards this conduct under section 91R(3). 
18.	The applicant now applies to the Court to set aside the Tribunal’s decision and to remit the matter for further consideration.  I have power to make these orders only if the Tribunal’s decision was affected by jurisdictional error.  I do not have power myself to decide whether the applicant should be believed nor whether he should be given permission to stay in Australia.  
19.	The applicant relies on contentions set out in an argumentative fashion in his original application, and has not filed any additional amended application, written submissions nor evidence additional to that in the green book.  
20.	His grounds are:
	1.	The Tribunal erred by making its decision irrationally or illogically or unreasonably or improperly.
	Particulars:
	The Tribunal made a finding that my answers at the hearing as to when I worked are different to the answers I gave the Department.  The Tribunal rejected my explanation that I might not have understood the delegate’s questions or the questions might not have been interpreted properly by the interpreter or I might have been too nervous to concentrate.  The Tribunal said that:
	[referring to the first part of paragraph [43], which is set out in full above]
	The Tribunal’s finding was on two grounds.  Firstly, the Tribunal was in the view that “…the long and coherent exchange between the Department and applicant at interview....” was the evidence that I “….not only understood the questions but was actively engaged in providing the answers….”.  Secondly, the Tribunal found “…that independent translation confirms that the interpretation at the hearing was accurate….” even if I alleged that the interpreter “….had failed to accurately interpret….”.
	Apparently, “…the long and coherent exchange…” between the department and me at interview was definitely NOT the evidence that I “…understood the questions….” Being “….actively engaged in providing the answers….” was also NOT the evidence that I either understood the Delegate’s questions or that the questions were interpreted properly by the interpreter at the interview.
	Furthermore, the Tribunal has in fact denied the second ground by itself, because it has stated that “….this does not necessarily mean that the interpreter at the Departmental interview provided was accurate….”.
	2.	The Tribunal erred by making its decision on the ground of apprehended bias.
	Particulars
	Even today, I do indeed believe that the interpreter at the Tribunal’s hearing failed to interpret my oral evidence properly and accurately.
	But, on the other hand, there is no evidence in the Tribunal’s decision to consider my following evidence fairly and properly.
	…from October 2007 to August 2008, I spent about 10 months in (his town), Henan Province.  But, during that period, I had to work at (his place of employment) on one hand; and on the other hand, I had spent a great deal of time in the movement of the Local Church from October 2007.  Particularly, it was very dangerous to get involved in the movement of the Local Church; and thus I had to very much concentrate on every activity of the Local Church while I was in (his town).  In such a situation, it would be definitely impossible for me to pay any attention to geographical data of (his town) (paragraph 1 of the statutory declaration submitted to the Tribunal on 4/5/2009).
	Also, not having sufficient geographical knowledge about (his town) is definitely NOT the evidence that I have not stayed there for 11 months.  As a matter of fact, many and many people know nothing about geographic data of Sydney even if they have lived here for years. 
	3.	The Tribunal erred by making its decision based on the independent information obtained from unrealisable source.
	Particulars
	The Tribunal’s concern in relation to “Pray-reading” is actually the crucial point in its decision.  But, I do not think that the Tribunal has fairly and properly considered my evidence as follows:
	Regarding the “pray-reading”, I did tell the Tribunal that we reading the Bible and singing hymns when I asked about our gatherings during the Tribunal’s hearing.  Particularly, at the very beginning when I was asked about the gathering.  I indeed used to words in Chinese “(Chinese characters)” (dao-du in Chinese), which should be correctly interpreted as “pray reading”, at the Tribunal’s hearing, but the interpreter failed to interpret it correctly and accurately.  In the end, when I was repeatedly asked about how to read the Bible, I also used the words “(Chinese characters)” (dao-du in Chinese), “(Chinese characters)” (Shi-jing in Chinese).  “(Chinese characters)” (Shi in Chinese) means hymns and “(Chinese characters)” (Jing in Chinese) means the Bible.  So, meaning of “(Chinese characters)” (dao-du Shi-Jing in Chinese) is to read the Bible by singing and reading, and it is the meaning of “pray-reading”.  But the interpreter failed to interpret my oral evidence accurately and properly; instead, it has been interpreted as “dao-du the book” or “lead-reading” (paragraph 12 of Statutory Declaration submitted to the Tribunal on 4/5/2009).
	As a matter of fact, the central faith of the Local Church could easily be found at the website Living Stream Ministry (http://www.lsm.org/lsm-statement-faith.html) which is the most authoritative and up to date website for the Local Church.  According to the website, the central faith of the Local Church has been described as follows:
	Holding the Bible as the complete and only divine revelation, we strongly believe that God is eternally one and also eternally the Father, the Son, and the Spirit, the three distinct but not separate.  We hold that Christ is both the complete God and the perfect man.  Without abandoning His divinity, He was conceived in the womb of a human virgin, lived a genuine human life on earth, and died a vicarious and all-inclusive death on the cross.  After three days he resurrected bodily and has ascended to the heavens.  He is now in glory, fully God but still fully man.  We look to His imminent return with the kingdom of God, by which he will reign over the earth in millennium and in eternity.  We confess that the third of the Trinity, the Spirit, is equally God.  All that the Father has and is, expressed by the Son; and all that the Son has and is, is realized as the Spirit.  We further believe that mankind is in need of God’s salvation.  Though we were absolutely unable to fulfil the heavy demands of God’s righteousness, holiness and glory, Christ fulfilled all the requirements through his death on the cross.  Because of Christ’s death, God has forgiven us our sins, justified us by making Christ our righteousness and reconciled us to Himself.  Based on Christ’s redemption, God regenerates the redeemed with His Spirit to consummate His salvation, that they may become His children.  Now possessing God’s life and nature, the believers enjoy a daily salvation in His Body in this age and the eternal salvation in the coming age and in eternity.  In eternity we will dwell with God in the New Jerusalem, the consummation of God’s salvation of His elect.
	According to the above mentioned website, there is no evidence showing that the member of the Local Church must read the Bible in a particular way of “pray-reading”.  We even cannot find anything about so called “pray-reading” from the website.
	In summary I have never believed that my review application has been fairly and carefully assessed by the Tribunal.
21.	Counsel for the Minister has addressed these grounds with reference to authority in a manner which I would accept.  I do not think it necessary for me to repeat her submissions, which can be found on the file, nor repeat the references to all the authorities she cites.  
22.	The contention in the first ground that the Tribunal’s decision was affected by irrationality or illogicality appears to rely on principles which were applied in an exceptional case by Moore J in SZMDS v Minister for Immigration & Citizenship [2009] FCA 210 with reference to previous authority.  That decision is currently under appeal in the High Court, but I am bound to follow the principles identified by Moore J.  However, in my opinion, the two matters put in the argument under ground 1 fall far short of establishing any such jurisdictional error in the present case.
23.	The argument essentially attacks the Tribunal’s reasoning in paragraph [43] concerning the applicant’s evidence about his employment in his uncle’s bar.  Essentially, the Court is asked to find that this reasoning was irrational for two reasons.  First, because the applicant should have been believed in his claim not to have understood the delegate’s questions.  Secondly, because the Tribunal’s reasoning is internally inconsistent, since the Tribunal accepted that there might have been some inaccuracy in the interpreting at the delegate’s interview.  
24.	However, in my opinion, it was open to the Tribunal not to accept the applicant’s assertions by which he attempted to avoid his inconsistent evidence to the delegate.  It was rational and open to the Tribunal, in my opinion, to rely upon the record on the file as to what was said at that interview.  The applicant had not presented any evidence to the Tribunal, and has not presented any evidence to the Court, to give any substance to his contention of material misinterpretation at the delegate’s interview. 
25.	The Tribunal’s reference to “does not necessarily mean” does not show a basic inconsistency in its reasoning.  The sentence in which this was said needs to be considered in full.  The Tribunal accepted that logically there was a possibility of inaccuracy in the record of the delegate’s interview, but said that it was would not give the applicant the benefit of the doubt about this, in circumstances where the recorded response was ‘long and coherent’.  It was, in my opinion, reasonable and open to the Tribunal to find inconsistency in the applicant’s evidence based on a presumption of regularity in relation to the interpretation of the delegate’s interview.  Particularly, in circumstances where similar allegations of mistranslation at the Tribunal’s own hearing were shown not to be correct.
26.	I therefore do not consider that the argument presented under ground 1 identifies jurisdictional error affecting this part of the Tribunal’s reasoning.  
27.	Ground 2 must fail due to the basic difficulty of any contention that apprehended bias can be distilled from the reasoning ultimately given by a decision maker.  It was the task of the Tribunal to arrive at conclusions of fact when giving its decision.  The fact that the Tribunal made findings adverse to the claims and explanations of the applicant does not show that it arrived at its decision with a predetermined or closed mind.  
28.	In his oral submissions today, the applicant submitted again that the Tribunal should have accepted that he would not know basic geographical facts of the town in which he claimed to have had his religious conversion.  However, in my opinion, it was well open to the Tribunal to have tested the applicant’s claimed history by expecting some basic knowledge of the geography of his claimed place of residence for nearly one year before coming to Australia.  I can find no evidence, in this part of the Tribunal’s reasoning, nor anywhere else in the evidence before me, of anything supporting a finding of apprehended bias under the principles explained in Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]-[32].  
29.	Ground 3 challenges the Tribunal’s reasoning based upon the applicant’s account of bible reading at the Local Church gatherings, which it thought was inconsistent with general information about a peculiar style of Shouter “pray-reading”.  The applicant’s argument repeats contentions which the Tribunal did not accept, and invites the Court to look at further evidence which appears not to have been given to the Tribunal.  That evidence also appears not to be relevant to the point.
30.	In my opinion, the applicant’s argument does not establish any jurisdictional error.  I consider that it was open to the Tribunal to rely on the independent information which it discovered, and against which it tested the applicant’s credibility.  In my opinion, ground 3 rises no higher than an attack on the merits of particular factual reasoning of the Tribunal.  I can identify no jurisdictional error raised by the argument presented.  
31.	For the above reasons, I do not consider that the applicant has established any jurisdictional error affecting this decision of the Tribunal.  The decision is therefore a privative clause decision and I must dismiss the application.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Michael Abood

Date:  24 November 2009