MZYZB v Minister for Immigration

[2012] FMCA 1257

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYZB v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 1257

MIGRATION – Hearing before the Tribunal adjourned twice – power to adjourn discretionary – credibility – adverse finding – inconsistencies in evidence – complementary protection provisions – whether risk of suffering “significant harm”? – bias alleged, not established – whether applicant denied opportunity to explain.

Migration Act 1958 (Cth), ss.5(1), 36, 363(1)(b), 474.

Abebe v Commonwealth (1999) 197 CLR 510
Anadaraj Subramaniam v Minister for Immigration and Multicultural Affairs (1998) VG310 of 1997
Chen v Minister for Immigration & Multicultural Affairs [1999] FCA 1022
Chen Xin He v Minister for Immigration and Ethnic Affairs [1995] FCA 1682 (Federal Court of Australia, 23 November 1995, unreported)
Huo v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 383
Huo v Minister for Immigration & Multicultural Affairs [2002] FCA 617
Kamal v Minister for Immigration 126 FCR 467
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 (FC)
Lee vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] FCAFC 162
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431
NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10
NBMB v Minister for Immigration & Citizenship (2008) 100 ALD 118
Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407
Re Refugee Review Tribunal & Anor; Ex parte H & Anor (2001) 179 ALR 425
SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
SZHPD v Minister for Immigration and Citizenship [2007] FCA 157
SZHSQ v Minister for Immigration & Multicultural Affairs [2006] FCA 1295
SZINP v Minister for Immigration and Citizenship [2007] FCA 1747
Tefonu Pty Limited v Insurance and Superannuation Commissioner (1993) 44 FCR 361
VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872
VQAB v Minister for Immigration and Multicultural Affairs [2004] FCAFC 104
WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277
W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703

Applicant: MZYZB

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 797 of 2012

Judgment of: Turner FM

Hearing date: 10 December 2012

Date of Last Submission: 10 December 2012

Delivered at: Melbourne

Delivered on: 10 December 2012

REPRESENTATION

The applicant appeared In Person with the assistance of a Mandarin Interpreter

Counsel for the Respondents: Ms Szydzik

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application for judicial review filed on 2 July 2012 is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $6,471.00

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 797 of 2012

MZYZB

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Ex tempore & Revised)

1. This is an application for judicial review of a decision of the Refugee Review Tribunal (the “Tribunal”) dated 5 June 2012. That decision affirmed the decision of a delegate to the Minister not to grant the applicant a Protection (Class XA) Visa.

2. The applicant arrived in Australia on 10 May 2008 as a holder a Student Visa (Court Book “CB” p.34 and 131). On 10 May 2011, the applicant applied for a Protection (Class XA) Visa (CB p.1). On 7 July 2011, the Department notified the applicant that his application for a Protection Visa had been refused by a delegate (CB p.43).

3. On 3 August 2011, the applicant applied to the Tribunal for a review of the decision of the delegate. After the first Tribunal hearing on 2 April 2012, the Tribunal wrote to the applicant inviting him to supply additional information relevant to the assessment of the claim under the Complementary Protection Provisions in s.36(2)(aa) of the Migration Act 1958 (the “Act”) (CB p.82). The applicant’s migration agent responded on 26 April 2012.

4. By letter dated 7 May 2012, the Tribunal invited the applicant to attend the hearing on 31 May 2012 (CB p.92). The applicant’s migration agent telephoned the Tribunal on 31 May 2012 and advised that the applicant would not be attending the hearing (CB p.95). The hearing was then rescheduled to 1 June 2012 (CB p.101).

5. The applicant has told the Court today that he received a letter rescheduling the hearing to 1 June 2012, but that he could not read it and therefore did not attend. The Court finds that explanation inconsistent with material in the Court Book, which indicates that the applicant’s migration agent advised the Tribunal that the applicant had the flu and would not be attending the video conference on 1 June 2012 (CB p.103).

6. The Court finds that the applicant had every opportunity to attend the hearing before the Tribunal. The hearing was not rescheduled again. The applicant chose to not read the letter, or not get it interpreted to him, when he received it from the Tribunal. The Tribunal notified the applicant properly in writing of the hearing and he chose not to read the letter or have it read to him. The Tribunal complied with its obligation to notify the applicant.

7. The power under s.363(1)(b) to adjourn a hearing is discretionary. Therefore, the Tribunal did not have to list the matter for further hearing.

8. The power in s.363(1)(b) of the Act is couched in permissive and not mandatory terms. In NBMB v Minister for Immigration & Citizenship (2008) 100 ALD 118, Flick J observed at [14] that:

   “Decisions as to whether or not hearings should be adjourned are largely within the discretion of administrative decision-makers. Relevant to the exercise of that discretion by the Tribunal in the present context is the legislative direction that it must conduct its review in a manner which “is fair, just, economical, informal and quick.” Procedural decisions of tribunals… should not be lightly disturbed”.

9. The Migration Review Tribunal (“MRT”) is generally under no duty to use its permissive statutory powers: see WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277 at [21], [24]-[25]. The MRT is also not required to give reasons for its exercise of discretion: SZHSQ v Minister for Immigration & Multicultural Affairs [2006] FCA 1295. But in any event, the first respondent contends that the MRT did in fact provide reasons as to why it decided to not adjourn. In the Full Federal Court decision in Huo v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 383, which upheld a decision of Conti J in Huo v Minister for Immigration & Multicultural Affairs [2002] FCA 617, the applicant complained that the MRT should have waited for a related decision. Conti J concluded at [31]:

   The Tribunal was entitled in the exercise of its discretion to withhold from awaiting the Tribunal's decision on the JNZ application… there was no error of law apparent or manifest in the conduct of the Tribunal below. It was under no obligation to postpone its decision-making, merely because Mr Huo wished to attempt, either at Departmental level or in the forum of another Tribunal hearing, to meet a statutory criterion found not as yet to have been fulfilled. (emphasis added)

10. Similarly, in Chen v Minister for Immigration & Multicultural Affairs [1999] FCA 1022 at [26], Marshall J found that there was no error in the MRT offering a three week adjournment when the applicant requested a 6-8 week adjournment “having regard to the statutory command in s420(1) of the Act for the MRT to provide a “quick” review”.

11. No error in the Tribunal’s exercise of discretion has been shown.

12. The applicant claimed that he belonged to the Han ethnic group and is a Christian (CB p.2). He claims to fear persecution because of his faith, and on the basis of imputed political opinion because his mother is a church house leader. The applicant claims that there is no religious freedom in China (CB p.33). He claims that his mother was arrested because of church gatherings.

13. The Tribunal raised a number of matters with the applicant and invited him to respond. The matters raised were:

    ·Inconsistencies in the applicant’s evidence (CB p.128 – 129).

    ·Country information concerning document fraud and detention (CB p.129)

    ·Country information regarding freedom of worship in Fujian Province (CB p.130)

    ·Lack of country information regarding persecution in Fujian Province (CB p.130)

    ·The applicant’s immigration history in Australia which indicated he had been in Australia illegally for over a year before he applied for a protection visa (CB p.131).

14. Delay in applying for a visa is a legitimate matter to be taken into account when assessing the genuineness of an applicant’s fear of persecution. In Anadaraj Subramaniam v Minister for Immigration and Multicultural Affairs (1998) VG310 of 1997, the Court held that even a three month delay in lodging a protection visa application is a legitimate matter to take into account when assessing the genuineness or depth of an applicant’s fear of persecution.

15. The applicant was offered an adjournment to respond to the above concerns, but chose to respond immediately (CB p.131.5).

The Tribunal’s Decision

1. The Tribunal noted that the applicant made no claims based on his race, nationality or expressed political opinion (CB p.173.7.)

2. The Tribunal accepted that the harm feared by the applicant was based on religious and imputed political opinions which are Convention-related reasons (CB p.174.3).

3. The Tribunal found that the credibility of the applicant was seriously undermined. Country information indicated that house churches had been permitted to register and worship openly and freely in Fujian Province (CB p.176.1.)

4. “Both the choice and the assessment of the weight of” country information is a matter for the RRT. “The Court cannot substitute its own view of the material, even if it had a different view from that reached by the Tribunal”. (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [13])

   “The Tribunal was not obliged to comment on every item of material before it, to the extent of saying why it rejected it, or attributed less weight to it than to another item”. (NAHI [14])

   “The Tribunal does not commit jurisdictional error when it prefers one body of country information over another”.

   NAHI (supra) at [13-14] affirmed by the Full Court in VQAB v Minister for Immigration and Multicultural Affairs [2004] FCAFC 104 at [26].

5. The Tribunal found that there was a significant degree of freedom of worship by Christians in Fujian Province (CB p.176.9) The Tribunal found that the applicant’s claims were not supported by country information (CB p.176.10)

6. Findings of fact are matters for the Tribunal and are not amenable to review. 

7. In NAHI (supra), the Full Court of the Federal Court decided at [10] as follows:

   “In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s.39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to merits of the case put to the Tribunal”.

8. “By s.420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s.424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that”. (NAHI (supra) at [11]).

9. As stated in Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at [7]

   “A decision-maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion by an applicant is not made out”.

10. The Court refers to the following decisions:

    “The Tribunal’s conclusion that the Applicant was not credible and his claims untrue are findings of fact par excellence… and no detailed reasons need to be given as to why that particular witness was not believed…In any event, the reason for disbelief is apparent in this case from the use of the word “implausible”. The disbelief arose from the Tribunal’s view that it was inherently unlikely that the events had occurred as alleged. : Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 (HCA/McHugh J) at [67]. So long as the Tribunal’s findings were open to it, no error is demonstrated: Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 (FC) at 558-559; W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 (FCA/FC) at [64-69] per Tamberlin and RD Nicholson JJ. The Tribunal’s findings were open for the reasons it gives. The Court cannot review the merits of the Tribunal’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, and there is no error of law, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth (1999) 197 CLR 510 at [137]”.

11. In Chen Xin He v Minister for Immigration and Ethnic Affairs [1995] FCA 1682 (Federal Court of Australia, 23 November 1995, unreported) RD Nicholson J stated at [24]:

    “It is not the case, as the submissions for the applicant appear to assume, that the evidence of the applicant should have been believed by the Tribunal unless specifically disproved by the objective evidence before the Tribunal. Rather it was for the Tribunal to decide what facts it found on a consideration of all the evidence, subjective and objective. This required the Tribunal not only to consider inconsistencies but also to determine what evidence it found credible”.

12. As stated in Tefonu Pty Limited v Insurance and Superannuation Commissioner (1993) 44 FCR 361 per Beazley J at [54]:

    “The weight which is to be given to a relevant factor is a matter for the Tribunal, unless it can be said that the Tribunal’s decision is manifestly unreasonable. (Minister for Aboriginal Affairs and Anor. v. Peko-Wallsend Limited and Ors (1985-1986) 162 CLR 24 at 41; Associated Provincial Picture Houses, Limited v. Wednesbury Corporation (1948) 1 KB 223 at 230, 233-234)”.

    The decision must be so unreasonable “that no reasonable body could have come to it”: Ibid at [41].

    The Court does not make that finding in this case.

13. As stated by the Full Court of the Federal Court in Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] FCAFC 162 at [95]:

    “Plainly, the weight to be accorded to the applicant’s evidence was a matter for the RRT. It is not a matter for this Court”.

14. As stated by the Federal Court of Australia in Lee vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27]:

    “The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.”

15. The Court refers to the decision of Collier J in SZINP v Minister for Immigration and Citizenship [2007] FCA 1747 at [26] as follows:

    “Decisions of the Tribunal are privative clause decisions and as such are not open to review on the facts: S157/2002 v Commonwealth (2003) 211 CLR 476. As is clear from such cases as Attorney-General (NSW) v Quin (1990) 170 CLR 1 and NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 76 errors of fact do not give rise to jurisdictional errors”.

    And at [29]:

    “if the Tribunal made an error of fact, it is not a jurisdictional error if there is some evidence upon which the finding of fact could be made: Epenisa v Minister for Immigration and Multicultural Affairs [2007] FCA 80 at [36], Abebe v Commonwealth (1999) 197 CLR 510”.

16. The Tribunal found that reports of targeting unregistered house churches did not specifically refer to Fujian Province (CB p.177.2).

17. The Tribunal found that the country information it referred to indicates that there is a relative degree of freedom of religious worship in Fujian Province (CB p.179.6). The Tribunal found that the overall trend in independent country information does not support the proposition that there has been ongoing, or regular raids or arrests of ordinary followers of unregistered house churches in Fujian Province (CB p.180.5).

18. The selection of country information, the weight given to it and the findings of fact above were all open to the Tribunal and are not amenable to review. As stated by the Court to the applicant at the beginning of this hearing, it is up to him to show the Tribunal made an error of law.  Findings of fact are not amenable to review: NAHI, VQAB and Lee (supra).

19. The Tribunal made its adverse credibility finding of the applicant based on the rejection of many aspects of the applicant’s evidence. A finding on credibility is a finding of fact par excellence. The Court refers to the decision in Durairajasingham (supra). That finding is not amenable to review. The Court refers to the decision in Wu Shan Liang (supra).

20. The adverse credibility finding was based on inconsistencies in the applicant’s claims concerning his, and his mother’s, religious activities in China (CB p.181.4).

21. Inconsistencies in evidence are an accepted basis for assessing credibility.

    The Court adopts the following statement of law:

    “Whilst a decision maker concerned to evaluate the credibility of the testimony of a person who claims to be a refugee in Australia will need to consider, and in many cases consider sympathetically, possible explanation for any delay in the making of claims, and for any evidentiary inconsistencies, there is not a rule that a decision maker may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for the delay or inconsistency (Taylor, “Informational Deficiencies Affecting Refugee Status Determinations”). Nor is there a rule that a decision maker must hold a “positive state of disbelief” before making an adverse credibility finding in a refugee case. The reference by Foster J, sitting as a member of the Full Federal Court in Guo’s case at 191, to a requirement for a “positive state of disbelief” was not directed to this issue of the determination of credibility, but rather to the question of when an adverse credibility finding will logically found a positive finding that a particular fact asserted by the witness does not exist”.

1. “It is not for the Court, on reviewing a decision of the Tribunal, to form its own view as to whether it would have given the perceived inconsistencies the significance attributed to them by the Tribunal, or upon any such view to conclude that the Tribunal’s assessment of the applicant’s claims should not have been made. Those evaluative processes are for the Tribunal. I do not think that the Tribunal’s assessment in this matter shows that it did not apply the law correctly in the way alleged by the applicant. The matters to which it had regard were matters which, logically, it might have considered. The applicant’s contention really is that an erroneous conclusion was reached, and that therefore the weight given to the factors must have been misplaced. The Court is not empowered to review the Tribunal’s decision on the merits. It is confined to the ascertainment of reviewable error in terms of s 476(1) of the Act. In my judgment, no error of the nature contended for has been demonstrated”. Kamal v Minister for Immigration 126 FCR 467 per Mansfield J at [36].

Adverse Credibility Finding

1. The Tribunal found that the applicant had a limited knowledge of the house church he said he belonged to (CB p.182.2). For instance, he was unable to indicate whether the denomination of his house church was Catholic or Protestant.

2. In making the adverse credibility finding, the Tribunal found that the applicant gave conflicting evidence about his parents’ involvement in a house church (CB p.182.3), and referred to discrepancies in the information given by the applicant regarding the church he attended in China (CB p.182.4).

3. The Tribunal referred to major inconsistencies between his claims and the details in the applicant’s original application and his evidence at the first hearing (CB p.183.5). These inconsistencies included that in his original application, the applicant claimed that three police came to his house in August 2006 and searched for a Bible. In the first hearing he said that there were no incidents in 2006 or, that he said he had no recollection of these events (CB p.183.9).

4. The Tribunal found that the applicant’s evidence was inconsistent about the number of times his mother was detained. The Tribunal gave detailed consideration to this issue (CB p.185-190). The Tribunal referred to the applicant giving inconsistent evidence about how he obtained his passport (CB p.195-197).

5. The evidence that the Tribunal did not accept includes that referred to in the following paragraphs: 308, 309, 315 – 317, 322, 323, 326 – 331, 335 – 337, 343, 344, 353, 358 – 360, 366, 373, 387, 388, 393, 394, 398, 399, 403 – 405, 411, 417, 418, 420, 421, 425 and 426. The Court finds the Tribunal was entitled to accept or reject that evidence and make those findings: NAHI and Lee (supra).

6. The Tribunal found that the applicant’s credibility was seriously undermined. The Tribunal made a finding of fact that the applicant was a member of an unregistered local church house, but found as a fact, that neither he, nor his mother, had the kind of profile to attract adverse attention from the authorities (CB p.199.4).

Delay in Lodging Application

1. The Tribunal considered the three year delay in the applicant lodging his application for a protection visa (May 2008 to May 2011) (CB p.199.6). The Tribunal considered, but did not accept, the applicant’s explanations for the delay. The Tribunal was entitled to accept or reject the evidence proffered: NAHI and Lee (supra). The Tribunal gave greater weight to the delay than to the explanations given (CB p.200.4).

2. As stated in Tefonu (supra) per Beazley J at [54]:

   “The weight which is to be given to a relevant factor is a matter for the Tribunal, unless it can be said that the Tribunal’s decision is manifestly unreasonable. (Minister for Aboriginal Affairs and Anor. v. Peko-Wallsend Limited and Ors (1985-1986) 162 CLR 24 at 41; Associated Provincial Picture Houses, Limited v. Wednesbury Corporation (1948) 1 KB 223 at 230, 233-234)”.

   The decision must be so unreasonable “that no reasonable body could have come to it”: Ibid at [41].

   The Court does not make that finding in this case.

3. As stated in Applicant A125 of 2003 (supra) at [95]:

   “Plainly, the weight to be accorded to the applicant’s evidence was a matter for the RRT. It is not a matter for this Court”.

4. As stated in Lee (supra) at [27]:

   “The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances”.

   And at [29]:

   “the weight given by the Tribunal to evidence before it, both oral and written evidence, is a matter for the Tribunal in its role as the arbiter of fact: Wu Shan Liang (supra)”.

5. Because of the adverse credibility finding and the lack of precise detail about the church that the applicant alleges he attended in Darwin, the Tribunal did not accept that the applicant attended church services in Darwin (CB p.200.6). The Tribunal did not accept that the applicant has engaged in any Christian activities since arriving in Australia (CB p.200.7). The Tribunal did not accept that the applicant would face a real chance of persecution now or in the reasonably foreseeable future by reason of his religion or his imputed political opinion, or because of membership of a particular social group (CB p.204.2). Those findings of fact were open to the Tribunal and are not amenable to review.

6. The Tribunal considered that the applicant could belong to the particular social groups of membership of a Christian family or of failed asylum seeker’s, but found that the applicant does not face a real chance of persecution for reasons of membership of a particular social group (CB p.203.7 and 204.2). Those findings of fact are not amendable to review.

7. The Tribunal did not accept that the applicant faces a real chance of persecution for a Convention-related reason (CB p.204.5). That finding of fact is not amenable to review.

Complementary Protection Provisions

1. The Tribunal considered the complementary protection provisions in s.36(2)(aa) of the Act. The applicant has not claimed that he would face arbitrary deprivation of life, or the death penalty. The meaning of “significant harm”, as referred to in s.36(2)(aa), is set out in section 36(2A).

2. Given the reasons for rejecting the applicant’s claims, the Tribunal was not satisfied that there were substantial grounds for believing that there is a risk that the applicant would suffer significant harm, as defined in s.36(2A).

3. The Tribunal considered the definitions of “torture” and “cruel or inhuman treatment or punishment”, and “degrading treatment or punishment” set out in s.5(1) of the Act, and was not satisfied that the applicant would suffer significant harm as defined upon being removed from Australia to China (CB p.205.2). That finding of fact was open to the Tribunal, and is not amenable to review.

4. The Tribunal was not satisfied that the applicant has a well-founded fear of persecution in China on a Convention-related reason, and found that the applicant does not satisfy the criteria in s.36(2)(a) of the Act. The Tribunal then found that the applicant does not meet the criteria in s.36(2)(aa) of the Act (CB p.205.6).

5. The applicant’s grounds for judicial review are:

   (1)RRT failed to assess my case objectively against all information in front of it ad has formed an opinion under influence of biased presumption. RRT considered and article dated 21 Feb 2012 from China Aid Association which specifically stated that “Many of these mega-pastors continue to be harassed by the secret police and some are being frequently, if irregularly. “invited for tea” meetings;” (Decision record para 201). The introduction to its annual reports also says that “It is important to note that these cases are only the tip of iceberg, representing only a small portion of the total number of cases of religious persecution taking place all across China.” (Decision record para 217). Regardless of all positively illustrated information, RRT insisted that “the China Aid Association has only specifically reported on two incidents of persecution in Fujian province” (decision record 273) and gives greater weight to the evidence regarding the freedom of religious worship in Fujian province and maintains that there is “lack of country information regarding the ongoing persecution of house churches in Fujian province” (decision record 285). RRT’s processing of this information is clearly affected by presumed bias which caused RRT’s reasoning problematic. Therefore, I was not receiving a fair assessment.

   (2)I have been denied the benefits of doubts by RRT. I said that I have been confused about the dated of the police home visits in 2006 and couldn’t remember exactly the date of each event. RRT however, considers the contradictions in my evidence go beyond simply an issue of forgetfulness of dates (Decision record para 306). RRT simply took advantage of my forgetfulness of the incident took place in August 2006 or August 2007 and formed an adverse opinion on my claims. RRT denied the chance for me to give the explanation of the doubts”.

Ground One

1. Ground one alleges bias.

2. No particulars are provided and no evidence has been filed to comply with the requirement that an allegation of bias must be “distinctly made and clearly proven”: SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 at [22], citing Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507. The Court also accepts that it “will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision”: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38].

3. To establish bias the applicant would have to show that the Tribunal “acted dishonestly or arbitrarily or capriciously”: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 per Tamberlin, Mansfield and Jacobson JJ at [56-59].

4. In order to make out a case of actual bias on a decision maker’s part, the person alleging bias must establish that, before a conclusion could properly be reached, the decision maker had made up his or her mind and was incapable of being persuaded differently; see JiaLegeng (supra) at 531 per Gleeson CJ and Gummow J.

   A party alleging bias carries a heavy onus. The allegation must be “distinctly made and clearly proved” see Jia Legeng (supra) at 531 per Gleeson J and Gummow J and 546 per Kirby J. A case of actual bias is seldom made out by reference solely to the decision maker’s reasons for decision.

5. The Court refers to the following passage in SCAA (supra) at [38]:

   “Reasons for decision reflect conclusions reached at the end of the decision making process, and if the decision is against the party complaining, the expression of adverse findings on credit and fact are an inevitable part of the expression of the reasons. The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision. Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed, that without more is unlikely to demonstrate that the decision maker had embarked on the case with a closed mind, not open to persuasion”.

6. Further, the fact that the Tribunal did not believe his claims is not evidence of bias. Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431, VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872.

7. In ground one the applicant complains that the Tribunal gave greater weight to certain aspects of country information over others. Weight is a matter for the Tribunal: NAHI, Tefonu, Applicant A125, Lee and Wu Shan Liang (supra).

8. In ground one the applicant complains about findings of fact by the Tribunal that are not amenable to review, and about the weight given to evidence. The applicant then alleges “presumed bias”, which the Court takes to mean “apprehended bias”.

9. In Re Refugee Review Tribunal & Anor; Ex parte H & Anor (2001) 179 ALR 425 at 434 at [27], the High Court stated (citing Ebner v Official Trustee in Bankruptcy (2000) 176 ALR 644 at 647 [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ) that:

   “The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided”.

   There is nothing to show that a “fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided”. Bias has not been established.

10. The Court refers again to SCAA (supra) at [38]:

    “Reasons for decision reflect conclusions reached at the end of the decision making process, and if the decision is against the party complaining, the expression of adverse findings on credit and fact are an inevitable part of the expression of the reasons. The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision. Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed, that without more is unlikely to demonstrate that the decision maker had embarked on the case with a closed mind, not open to persuasion”.

11. The Court does not find that the Tribunal was biased, or that there is a basis for the claim of apprehended bias.

12. Ground one is dismissed.

Ground Two

1. In ground two the applicant alleges that the Tribunal “simply took advantage of my forgetfulness of the incident (sic “that”) took place in August 2006 or August 2007” and denied the applicant a chance to give an explanation.

2. The Court accepts the written submissions for the first respondent that findings on credibility or findings of fact that are not amenable to review.

3. The Court accepts that the Tribunal approached its assessment of the evidence carefully and gave it serious and careful consideration. The Tribunal considered whether the inconsistent evidence about the incident in August 2006 was simply the result of forgetfulness, and decided that it was not.

4. The Tribunal found that the evidence regarding the August 2006 incident of a police home visit goes beyond simply an issue of forgetfulness of dates (CB p.184.5). The Tribunal set out its reasons for that finding. The Tribunal then considered whether the applicant was confused regarding the dates (CB p.185.5).

5. It is clear that the Tribunal did not simply take advantage of the applicant’s forgetfulness. The applicant claims that he was denied an opportunity to explain. That is not correct. The applicant was given an opportunity to explain various inconsistencies including about the alleged incident in August 2006 (CB p.129.3). The Tribunal offered an opportunity for an adjournment for the applicant to respond, but the applicant declined an adjournment and responded immediately (CB p.131.5).

6. Ground two is dismissed.

7. The Court finds that the Tribunal’s decision is a privative clause decision that has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.

8. The application for judicial review is dismissed.

I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of F. Turner FM

Date:  29 January 2013