SZEQH v Minister for Immigration

[2007] FMCA 1482

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEQH v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1482

MIGRATION – Review of decision of Refugee Review Tribunal – Tribunal considered the applicant’s claims – no bias or bad faith on the part of the Tribunal – no reasonable apprehension of bias – Tribunal complied with obligations pursuant to s.424A – no entitlement to cross-examine persons who appear before the Tribunal – adverse credibility finding – no jurisdictional error – application dismissed.

Migration Act 1958, ss.91R, 424A, 427

SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471
Algama v Minister for Immigration and Multicultural Affairs (2001) 115 FCR 253
WABZ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 134 FCR 271
SZGQN v Minister for Immigration and Citizenship [2007] FCA 428
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592
NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241

Applicant: SZEQH

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2190 of 2006

Judgment of: Nicholls FM

Hearing date: 30 August 2007

Date of Last Submission: 30 August 2007

Delivered at: Sydney

Delivered on: 11 September 2007

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondents: Ms T Wong

Solicitors for the Respondents: Clayton Utz Lawyers

ORDERS

1. The reference to the first respondent be amended to read “Minister for Immigration and Citizenship.”

2. The application made on 9 August 2006 is dismissed and amended application made on 19 October 2006 is dismissed.

3. The applicant pay the first respondent’s costs set in the amount of $5,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2190 of 2006

SZEQH

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application filed in this Court on 9 August 2006 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), signed on 15 June 2006 and handed down on 6 July 2006, which affirmed the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.

Background

1. The applicant is a citizen of the People’s Republic of China.  On 2 April 2004, the applicant applied for a protection visa (reproduced in the Court Book (“CB”) at CB 1 to CB 10).  On 8 April 2004, a delegate of the respondent Minister refused the applicant a protection visa.  On 7 May 2004, the applicant applied to the Tribunal for review of that decision.

2. On 10 June 2004, the Tribunal wrote to the applicant and requested that he provide additional information (reproduced at CB 35 to CB 36).  On 5 July 2004, the Tribunal received correspondence from a “Ding Ning Sun” alleging her involvement in the applicant (and others) obtaining visas to travel to Australia, which had been obtained by deception through a person (“Mr Li”), whom she said had organised the travel and had “deceived” her as to its purpose (the “dob-in letter”) (reproduced at CB 37).  On 6 July 2004, the Tribunal received from the applicant a statutory declaration dated 1 July 2004 (reproduced at CB 39 to CB 43).

3. By letter dated 13 July 2004, the Tribunal invited the applicant to a hearing before it to be held on 23 August 2004.  On 18 July 2004, the Tribunal received a “Response to Hearing Invitation” form which indicated that the applicant wanted to attend the hearing before the Tribunal.  On 25 August 2004, the applicant’s then migration agent wrote to the Tribunal advising the Tribunal that the applicant requested that the writer of the “dob-in letter” attend the Tribunal to be cross-examined (reproduced at CB 48).  The writer of the “dob-in letter” attended the Tribunal to be interviewed (“interview of witness”) on 31 August 2007 (see the “Hearing Information Form” reproduced at CB 50 to CB 51).

4. The Tribunal (differently constituted) handed down its decision on 28 September 2004 to affirm the decision under review.  On 14 March 2006, orders were made in the Federal Court setting aside the orders made in the Federal Magistrates Court in November 2005, and remitting the matter to the Tribunal for redetermination (orders of Branson J reproduced at CB 56).

5. By letter dated 27 March 2006, the applicant was again invited to attend a hearing before the Tribunal.  By letter dated 5 May 2006, the Tribunal invited the applicant to comment on certain information (reproduced at CB 80 to CB 82) (“the s.424A letter”).  The applicant responded to the Tribunal’s invitation by statutory declaration dated 16 May 2006 (reproduced at CB 85 to CB 87).

The applicant’s claims to protection

1. The applicant’s claims to protection arise from his claimed involvement in China with a Christian religious organisation known as the “Shouters”.  The applicant claimed to have taken part in Bible studies and that he had been involved in the editing, printing and binding of religious materials.  The applicant further claimed that he was arrested twice by police and detained for periods of one and three months, respectively.  The applicant also claimed that he was forced by police to sign a statement to the effect that he promised not to become involved with this religious organisation again.

The Tribunal

1. The Tribunal made the following findings:

   1)The inconsistencies between the applicant’s statutory declaration annexed to his original application (one of the issues raised in the s.424A letter), and his statutory declaration dated 16 May 2006 in response, “cast doubt” both as to whether the applicant was telling the truth about his involvement with the “Shouters” in China, and as to the applicant’s credibility (CB 107.6).

   2)The applicant claimed that he travelled to Australia on a passport issued in his own name in circumstances where the advice of the Australian Department of Foreign Affairs was that persons who have come to the adverse attention of authorities in China would experience difficulty in obtaining such travel documentation in their real name (CB 107.8).

   3)That the applicant was issued with a passport in his own name suggested that he had not come to the adverse attention of authorities at the time the passport was issued (CB 108.5).

   4)It noted that the applicant obtained a visa to travel to Australia as a result of an invitation “issued by Mrs Sun Dingning to Mr Li Xuzhen and two people whom she understood to be his employees”.  It did not accept that it was a coincidence that the applicant travelled to Australia on the same flight as “Mr Li” and the other alleged employee, and considered it more likely that arrangements had been made for them to travel from China together (CB 108.8).

   5)The applicant’s evidence as to which church he attended after his arrival in Sydney was inconsistent and not reconcilable (CB 109.7).

   6)The letter from the “Local Church in Sydney” did not outweigh the Tribunal’s concerns as to the applicant’s credibility and it did not accept that the applicant’s claims to have attended such church in Sydney (CB 109.8).

   7)It accepted that the applicant attended this Church at Easter in 2006, but that this conduct was to be disregarded as the Tribunal found that the applicant did so in order to strengthen his claims to protection (CB 109.10).

   8)That the fact that the applicant travelled to Australia with two others cast doubt on his claim to have decided only on the evening of 1 March 2004 to leave China (CB 110.5).

   9)That it preferred the evidence of Mrs Sun as to how she had obtained the applicant’s mobile telephone number.  Further, that the applicant’s evidence, at variance with Mrs Sun’s, suggested that the applicant had not told the truth about how he obtained a visa to come to Australia (CB 100.6).

   10)It did not accept that he was involved with the “Shouters” in China, nor that he was detained on two separate occasions as a result of his involvement with that Church.  Nor did it accept that he genuinely feared to return to China (CB 111.4).

2. In all, the Tribunal did not regard the applicant as a witness of truth (CB 109.8), and formed an adverse view of the applicant’s credibility (CB 111.2). The applicant’s claims to protection based on claimed past harm and the likelihood of similar such harm if he were to return to China were rejected on this basis, and the Tribunal further disregarded the applicant’s conduct in attending churches in Australia in accordance with s.91R(3) of the Migration Act 1958 (“the Act”).  The Tribunal therefore found that the applicant did not have a well founded fear of persecution in China for a Refugee Convention reason.

3. The amended application filed 19 October 2006 puts forward the following grounds (with particulars):

   “1.  The Presiding Member, Mr Giles Short, of the Refugee Review Tribunal (“the Presiding Member”) failed to consider my claims properly and ignored my important claims intentionally, and misunderstood my claims unfairly; and made a wrong finding incorrectly.

   2. The Presiding Member failed to comply with his obligation under section 424A(1) of the Act.

   3. The Presiding Member failed to comply with its obligations under section 425 of the Act.

   4.  Moreover, I never believe that the Presiding Member has well considered following independent country information; and he has, intentionally, ignored relevant important issues in them.

   5.  Furthermore, regarding to my requirements to cross-examine Mrs Sun, I may understand that the Tribunal may not be a court of law, and thus the Tribunal may not have to do so.  But the key issue is that the Tribunal has given particular weight to Mrs Sun’s allegation against me without any substantial and objective evidences!  In other words, the Tribunal preferred the evidence of Mrs Sun to my evidence and rejected my claims without any substantial and objective evidences to support!

   6.  In SBBG v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 121, the Full Court of the Federal Court of Australia held at paragraph 20 of that judgment:

   ‘In light of the High Court decisions in S134 and S157, the jurisdiction of this Court in judicial review proceedings is broader than that on which the parties and the Court proceeded at first instance. It is clear from the High Court decisions that the Court’s jurisdiction is limited to “jurisdictional errors” (S157 at [76]) and that, in determining whether or not a particular error is a “jurisdictional error”, it is necessary to have regard to the whole of the Act, including s 474 (see S157 at [77]-[78]). However, this is a significantly broader jurisdiction than that assumed by the primary judge and by the parties. In particular, it is clear that this Court has jurisdiction pursuant to s 39B of the Judiciary Act 1903 (Cth) in relation to a breach of the rules of natural justice (as understood in the context of the Act). This would include, for example, a failure to afford a fair hearing.  It would also include a reasonable apprehension of bias. It is also clear that the Court has jurisdiction pursuant to s 39B of the Judiciary Act 1903 (Cth) where the Tribunal has proceeded on a misunderstanding of the law, at least in relation to defining its core task.  This includes, in particular, a misunderstanding of the legal meaning of “refugee”.’

   7.  In my case, the Tribunal’s decision has included a reasonable apprehension of bias, because the Tribunal preferred Mrs Sun’s evidence to mine without any substantial groups.

   8.  In summary, I NEVER ever believe that my application has been considered by the Tribunal, properly and fairly.”

Before the Court

1. The applicant appeared in person with the assistance of an interpreter in the Mandarin language.  Ms T Wong of Counsel appeared for the first respondent.  I have before me, in addition to the amended application and the Court Book, the first respondent’s outline of submissions filed on 22 August 2007, and a Supplementary Court Book filed on 23 August 2007.  The Supplementary Court Book contained the applicant’s statutory declaration of 29 March 2004 (the declaration provided to the earlier constituted Tribunal) and the earlier constituted Tribunal’s decision record.  At the hearing before me Ms Wong sought leave to file in court a replacement Supplementary Court Book which provided complete copies of these two documents.  Leave was granted.

2. At the hearing the applicant stated that Ms Sun (who had provided the “dob-in letter” to the Tribunal reproduced at CB 37), had “followed him like a ghost”, and gave a somewhat long and, at times, confusing account of having attended at the Roads and Traffic Authority and having found that his personal details, as recorded by them, were “not true”, and that sometime in May 2007, he had “caught this lady” and that this appeared to be in relation to the loss of his passport and drivers’ licence which he had reported stolen to the police, and asserted that some group or “organisation” has targeted him in changing his details.  All these events occurred after the Tribunal handed down its decision, but I understood, as best as could be understood, that the applicant was seeking to assert that Ms Sun and others were involved in some sort of conspiracy.  Although not plainly articulated by the applicant, it could be that such an assertion was put to the Court to seek to explain why Ms Sun would have provided the “dob-in letter” to the Tribunal, and to therefore cast doubt on her credibility.

3. The applicant was unable to assist further with what was put in the amended application  (it appears that this document had been drafted with the assistance of a “friend”) except to claim:

   1)That he had lived in the church from a young age and that he was refused by the Tribunal because he could not name the church and his explanation for being unable to name the church before the Tribunal was because he followed his parents.

   2)There was a difference between a “normal” and an “underground” church in China and that this relates to being baptised after reaching eighteen years of age.

4. The applicant’s first ground in the amended application is that the Tribunal failed to consider his claims properly, ignored his claims intentionally, misunderstood his claims unfairly, and made wrong findings.  When read with the particulars that follow, it is plain that the applicant has a number of complaints arising from this ground.

5. The applicant gives as examples of the Tribunal’s alleged failures in this regard, that it is “quite normal” that he was not sure of what kind of church his parents belonged to because he was “very young to understand it at that time”.  The applicant submitted before the Court that the Tribunal refused his application because he could not name this church.  Another example was that the applicant sought to explain his leaving China without being prevented to do so by the authorities for reason that the authorities did not discover his “special role in the secret propaganda centre of the Shouters” until after he had left the country.  I understood this as being directed to the Tribunal’s finding, contrary to the evidence presented by the applicant’s witness (Mr Guo) who had visited China and spoken to the applicant’s wife, that the applicant was of interest to the authorities.  The applicant’s submissions before the Court as to the difference between a “normal” church and an “underground” church appears also to take issue with the Tribunal’s having in part relied on the applicant’s evidence about his attendance at church with his parents as being one of many factors that led it to conclude that he had not told the truth in a number of respects (see CB 107.3).

6. In relation to each of these examples:

   1)The Tribunal’s finding in relation to the applicant’s attendance at church with his parents when he was young was not based solely on the applicant’s failure to remember the church. Plainly, that part of the Tribunal’s decision, one of many factors in the Tribunal finding that the applicant was not a witness of credit, arose out of inconsistencies in the applicant’s claims as variously put in both the statutory declaration accompanying his original application, his subsequent statutory declaration where he made no mention of having attended a Shouters underground church with his parents, and his subsequent evidence at the hearing before the Tribunal that his parents had attended a Shouters church and that they had sometimes taken him with them. (I should note that this issue was the subject of the Tribunal’s s.424A letter.) The applicant has misunderstood that the Tribunal’s finding was not necessarily based on his claimed inability to remember the name of the church, but on the inconsistency of the evidence that he had provided.

   2)Nor does the applicant’s submission now that the differences between the “normal” church and the “underground” church, that is, in relation to the baptising of a person after the age of eighteen assist in showing error in this context on the part of the Tribunal.

   3)The applicant asserts now that his “special role” with the Shouters was not discovered until after he left China. The Tribunal, however, addressed this issue (see CB 107.7) (and this was also the subject of the s.424A letter), that at the time of obtaining his passport the applicant had, on his own evidence, “twice been detained at his local police station on suspicion of being involved in the Shouters underground religious group”. The Tribunal further deals with the “secret propaganda centre” in its analysis at CB 108.3. This issue was plainly raised with the applicant by the Tribunal by way of its s.424A letter and at the hearing that the Tribunal conducted with the applicant (see the Tribunal’s account at CB 103.5).

7. Plainly, in relation to these examples, the Tribunal did not fail to consider the applicant’s claims.  Nor, on the material before the Court now, can I see that it failed to consider the claims “properly or made wrong findings”.  Any plain reading of the Tribunal’s decision record reveals that the applicant’s complaint in this regard is that the Tribunal did not accept what he had put to it as being accurate.  It was not that the Tribunal “ignored my important claims” but rather that it rejected them.  On what is before the Court now, these findings were clearly open to the Tribunal to make, on what was before it, and the Tribunal gave cogent reasons for doing so.  This aspect of the applicant’s complaint does not succeed.

8. To the extent that it could be said that this is also a complaint that the Tribunal failed to consider some claim or an integer of a claim, then there is no such indication on the material before the Court, let alone evidence, to support any such assertion.

9. The particulars to the first ground make repeated reference to the Tribunal, that is, the presiding member, as being “crafty”.  The applicant and “his friend”, whom he said assisted in the drafting of the amended application, seem to accept through what is stated in the amended application that the Tribunal “is entitled to decide my application”, but appears, by the repeated use of the word “crafty” (see particular (b), (c) and (h)), to assert that the Tribunal was biased against the applicant, or in some way acted with bad faith.

10. The applicant (and his friend) describes the Tribunal as being “crafty” because it failed to consider the claims properly and ignored his claims intentionally.  I can only agree with Ms Wong’s submissions that there is nothing on the face of the Tribunal’s decision to indicate that the Tribunal was biased against the applicant and that the applicant has provided no evidence whatsoever, beyond assertion, that the Tribunal was biased.  As Ms Wong submits, it would be a rare and exceptional case in which actual bias could be demonstrated from the reasons for decision alone (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]).

1. As is often said, applicants carry a heavy burden of establishing an allegation of bad faith and, indeed, bias, and no evidence in support of the particulars has been put before the Court.  That the applicant feels aggrieved that the Tribunal did not believe him, on its own, is clearly not sufficient to show to bias or bad faith on the part of the Tribunal.

2. I cannot leave this complaint without noting the following particular:

   “(b) Only one word coming to my mind at this moment ‘crafty’ but frankly speaking I had never expected that a person that has been appointed as the presiding member of the Tribunal is so crafty.”

3. It is not clear whether the applicant and his friend (who, given reference to various sections of the Act appears to have some greater understanding than the applicant was able to exhibit before the Court), understand how serious an allegation they have made. An allegation that goes to the personal integrity of the Tribunal member (but how much further the use of the word “crafty”), with all of its relevant connotations, is inappropriate. It was still open to the applicant and his friend to have asserted bias or bad faith on the part of the Tribunal without resorting to the use of an emotive (in context) term. The Macquarie Dictionary, revised Third Edition, defines “crafty” as:

   “1.  Skilful in underhand or evil schemes; cunning, deceitful, sly.”

   I did not see the amended application as being limited to:

   “2.  Skilful, ingenious, dexterous.”

4. The applicant complains at particular (a) to ground one, and in ground two, of the amended application that the Tribunal failed to comply with its obligations pursuant to s.424A of the Act. At particular (a) of ground one and particular (a) of ground two, the complaint appears again to be linked to the Tribunal’s alleged bad faith or bias, and the allegation appears to be that the Tribunal “almost ignored or denied all of my comments and information submitted in the 424A letter”.

5. First, in relation to the failure to comply with s.424A of the Act, the letter reproduced at CB 80 to CB 82 sets out in some detail the information the Tribunal said may be the reason or part of the reason for deciding that the applicant was not entitled to a protection visa. The relevance of each of the items of information was clearly explained and the Tribunal complied with its obligations pursuant to s.424A(1) of the Act by sending the letter and giving the applicant the opportunity to comment. An opportunity which he clearly took up.

6. The complaint, however, appears to be that the Tribunal did not accept his explanations for the issues raised by the Tribunal. The simple answer to the applicant’s complaint in this regard, is that s.424A of the Act does not compel the Tribunal to uncritically accept the applicant’s responses. The Tribunal plainly considered the applicant’s response to its letter (see CB 109.3 and what follows) and concluded that in light of the circumstances, and information and evidence before it, was not persuaded by the applicant’s explanation. This was clearly open to the Tribunal on what was before it, and the applicant’s challenge now, albeit crafted as one of bad faith on the part of the Tribunal, does not in reality arise above a request for impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259). Nor, in addition, does the Tribunal’s adverse views of the applicant’s explanation amount to “information” within the meaning of s.424A(1) of the Act (see SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18] and the reference to Finn and Stone JJ in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 LR 471 at 476-477).

7. At particular (f) to ground one and at ground five the applicant complains that the Tribunal did not allow him to cross-examine Ms Sun. The drafter of this document plainly understood that the Tribunal is not a court of law (see ground five) and that the Tribunal did not have an obligation to allow him to cross-examine Ms Sun. As Ms Wong submits, the applicant does not have such an entitlement to cross-examine persons appearing before the Tribunal to give evidence. Section 427(6)(b) of the Act plainly provides that the applicant has no such entitlement (see Algama v Minister for Immigration and Multicultural Affairs (2001) 115 FCR 253 at [64], per Whitlam and Katz JJ, cited with approval in WABZ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 134 FCR 271 at [63]-[64], per French and Lee JJ).

8. The Tribunal’s analysis reveals that it considered the evidence provided by Ms Sun, discussed her evidence at the hearing with the applicant and put to the applicant that it was “difficult to accept” the applicant’s evidence in light of Ms Sun’s evidence, and gave him the opportunity, by way of its s.424A letter, to further comment. That the Tribunal chose to give greater weight to the evidence of Ms Sun, as opposed to the evidence of the applicant, is within the Tribunal’s discharge of its duty as the finder of fact. I cannot see that the applicant’s complaint that the Tribunal’s preference for the evidence of Ms Sun to his evidence was made without “any substantial and objective evidence to support”. On what was before it, it was open to the Tribunal to reject the applicant’s evidence and to prefer that of Ms Sun. The Tribunal gave clear reasons for this. This aspect of the complaint also does not succeed.

9. The applicant also complains by way of particular (g) of ground one that the Tribunal “refused to contact Mr William for finding the truth”. Before the Tribunal, the applicant made a number of claims as to his attending Christian church in Australia. In relation to this, both before the earlier constituted Tribunal in his statutory declaration in response to the Tribunal’s s.424A letter, and at the hearing before the Tribunal, the applicant made various claims as to his attendance at church and his attempts to contact the Shouters church in Australia (see replacement Supplementary Court Book at page 13, the statutory declaration at CB 86 to CB 87, the Tribunal’s account of its hearing at CB 101.6 to CB 102.3, and the Tribunal’s account of its hearing at CB 105.2 and CB 106.1) until, ultimately, the applicant told the Tribunal (CB 106.3) that he had attended “Mr William’s church” which was “a Shouters church”. The Tribunal dealt with this issue in its analysis at CB 109.5 and found that “the applicant’s response is a transparent attempt to reconcile the inconsistencies in his evidence” (CB 109.7). The applicant complains that the Tribunal’s refusal to contact Mr William to find the truth is not understandable. Firstly, as Ms Wong submits, this is a matter to which s.422B of the Act applies and there is no obligation upon the Tribunal to exercise its discretionary investigatory powers pursuant to s.424 and s427 of the Act (see SZGQN v Minister for Immigration and Citizenship [2007] FCA 428 at [28]), but it is also not clear how contacting Mr William would have assisted the applicant in any event. Plainly a letter on the letterhead of the “Local Church in Sydney” signed, amongst others, by a “Mr William Poh, ‘Responsible Brother’” stated that the applicant attended the Local Church in Sydney in April 2004. The Tribunal did not reject this letter but found that what was stated in the letter did not outweigh its concerns with the applicant’s credibility. Having found, for reasons that were comprehensively explained, that the applicant was not “a witness of truth”, it found that what was asserted in the letter did not outweigh this finding by the Tribunal. This complaint also does not assist the applicant before this Court.

10. Ground three of the amended application asserts that the Tribunal failed to comply with its obligation pursuant to s.425 of the Act. The applicant (and his friend) appeared to misunderstand the provisions of s.425 of the Act. The applicant appears to argue (particular (b) and (c) to ground three) that following his response to the Tribunal’s “section 424A letter” the Tribunal still refused to find in the applicant’s favour and that in these circumstances, the Tribunal was obliged to invite the applicant to appear before it to give evidence and present arguments relating to the issues relevant to the decision under review. Plainly, this is not the meaning of s.425 of the Act. Section 425 of the Act mandates that the Tribunal invite the applicant to appear before it to give evidence except in circumstances where the Tribunal is of the view that it should decide the review in the applicant’s favour on the basis of the material before it. This does not oblige the Tribunal to provide a further hearing to the applicant in circumstances where it did not accept the explanations provided in the applicant’s s.424A letter and plainly in circumstances where the applicant had already appeared before the Tribunal on two occasions (once before the earlier constituted Tribunal) to give his evidence.

11. Further, the Tribunal is not required to provide the applicant the opportunity of a further hearing in circumstances where it has already provided the applicant with such opportunity, the Tribunal already having raised the relevant and determinative issues by way of its s.424A letter. This is plain where the determinative issues were raised before the (earlier constituted) Tribunal. That the applicant had fabricated his claims and was not a credible witness was plainly an issue identified by the earlier constituted Tribunal (see page 14 of the replacement Supplementary Court Book):

    “At the hearing before the Tribunal, the applicant changed his oral testimony on various occasions in a manner which left the Tribunal with the impression that he has hastily fabricated his claims and tried to tailor his responses to the Tribunal when the inconsistencies were pointed out.”

    Further, in the replacement Supplementary Court Book at page 16.3:

    “In light of the above, the Tribunal has formed the view that the applicant is not a credible witness.  He gave the impression of being rather unpersuasive.”

    The applicant’s lack of credit would have been known to the applicant, therefore, at the commencement of the second hearing before the Tribunal.  As Ms Wong submits, with reference to SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592, this finding was sufficient to put him on notice that everything that he had said in support of his application was in issue, and that no further obligation pursuant to s.425 of the Act could arise in those circumstances.

12. That the applicant’s lack of credit continued to be of concern to the Tribunal was also apparent at the second hearing conducted before the Tribunal.  The determinative issues were discussed with the applicant.  The applicant has not provided any evidence, for example, by way of transcript, of either hearing before the Tribunal, to challenge the account of what occurred at those hearings provided in the relevant decision records.  I cannot see, on what is before me, that the applicant was not alerted by way of both hearings to those issues that arose in his matter which, ultimately, led to the Tribunal rejecting his claims (see NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 at [21]). In all, therefore, I cannot see that the Tribunal failed in its obligation pursuant to s.425 of the Act.

13. At ground four of the amended application the applicant asserts that the Tribunal intentionally failed to consider two country reports issued by the US State Department (US State Department’s Country Reports on Human Rights Practices – 2004; US Department of State, Country Reports on Human Rights Practices for 2003).  I accept, however, Ms Wong’s submissions that there is no evidence that the applicant presented these reports to the Tribunal and that the Tribunal failed to consider them.  I also agree that the Tribunal determined in any event that the applicant is not a witness of truth and did not accept his claims because of this.  In those circumstances it was not necessary for the Tribunal to consider any independent country information, as now alleged by the applicant.

14. Ground six and ground eight of the amended application asserted that the Tribunal’s decision revealed “a reasonable apprehensive (sic) of bias”.  This is particularised with reference to the Tribunal’s preference for Ms Sun’s evidence over the applicant’s evidence.  The relevant test for apprehension of bias is whether the well informed lay observer would reasonably apprehend that the Tribunal did not bring an open mind to the proceedings: Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507, Re Refugee Review Tribunal; Ex Parte H (2001) 179 ALR 425.

15. As already set out above, the Tribunal’s preference for Ms Sun’s evidence over the applicant’s evidence was explained by the Tribunal (see CB 108.6 and CB 110.2 to CB 110.7).  The Tribunal provided cogent and substantive reasons for its preference.  I cannot see that the well informed lay observer could reasonably apprehend that the Tribunal exhibited bias towards the applicant or could be apprehended as having exhibited bias towards the applicant purely on the basis that it rejected the applicant’s claims (for which it gave comprehensive reasons) and preferred the account provided by Ms Sun of the applicant’s travel to Australia.  In all, therefore, this complaint also does not succeed.

16. In all, therefore, in neither the grounds as set out in the amended application, nor on the basis of what the applicant said at the hearing before the Court, can I discern jurisdictional error in the Tribunal’s decision.  Nor is jurisdictional error otherwise apparent in the Tribunal’s decision.  The application is therefore dismissed.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  A Douglas-Baker

Date:  11 September 2007