SZHII v Minister for Immigration
[2007] FMCA 1629
•15 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHII v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1629 |
| MIGRATION – Appraisal of deficiencies in evidence is not “information” under s.424A – Tribunal not required to give advance notice of its reasons before reaching its decision – translation of Tribunal hearing not accepted as no affidavit by accredited interpreter. |
| Migration Act 1958 (Cth), ss.36(2), 420, 422B, 424A, 474 |
| Chen Xin He v Minister for Immigration and Ethnic Affairs (Federal Court of Australia, R.D Nicholson J, 23 November 1995, unreported) Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265 Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 276 W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 Abalos v Australian Postal Commission (1990) 171 CLR 167 SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 Re Refugee Review Tribunal & Anor; ex parte H & Anor (2001) 179 ALR 425 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592 F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 |
| Applicant: | SZHII |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1312 of 2007 |
| Judgment of: | Turner FM |
| Hearing date: | 15 August 2007 |
| Date of last submission: | 15 August 2007 |
| Delivered at: | Sydney |
| Delivered on: | 15 October 2007 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Ms L. Clegg |
| Solicitors for the Respondents: | Ms N. Johnson of Sparke Helmore |
ORDERS
The application, amended grounds, and amended application are dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1312 of 2007
| SZHII |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed on 24 April 2007 for an order to show cause why a remedy should not be granted in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) signed on 23 January 2007, which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa. The applicant filed amended grounds on 8 May 2007, and an amended application on 4 July 2007. The applicant made oral submissions to the Court in support of his application. An application by the applicant for an adjournment was refused as the applicant appeared to be coherent and able to conduct his proceeding.
The applicant was born on 16 April 1968 and claims to be from Indonesia and of the Christian faith (“the applicant”).
The applicant arrived in Australia on 4 July 1996 on a student visa issued in Jakarta.
On 13 April 2005 the applicant applied to the Department of Immigration and Multicultural Affairs for a protection visa. In this application he claimed that the present Indonesian government would persecute and detain him “on political charges” for his “period of service with the Soeharto government”. The applicant claimed that the present government would harm him “as a form of political revenge”. The applicant claimed that his life was at risk because he remained in Australia and did not return to Indonesia after his student visa expired. The applicant claimed that his Christian beliefs made him a target of “many Muslim organisations” because the political climate in Indonesia is “anti-Christian” and “Muslim fanatic beliefs [are] strong”. The applicant claimed that many of the leaders of the police and military are Muslim extremists and therefore those authorities would be unlikely to provide the applicant and his family with real protection from the Muslim groups he claimed would want to harm them (Court Book “CB” 18-20).
This application was refused by a delegate of the first respondent on 21 April 2005 (CB 25-34).
On 2 May 2005 the applicant filed an application for review of the decision of the Minister’s delegate with the Refugee Review Tribunal (CB 35). On 25 July 2006 the Tribunal affirmed the decision of the Minister’s delegate not to grant the applicant a protection visa (Affidavit of Nicola Johnson). The applicant sought judicial review with this Court, and on 15 October 2006 the Court set aside the decision and remitted the matter to the Tribunal to be determined according to law (CB 149).
On 9 January 2007 the applicant attended a hearing before the second Tribunal to give evidence and present oral arguments (CB 143). The applicant alleges that that date is incorrect and that the hearing took place on a later date. The actual date of the hearing is of no significance other than that the applicant alleges that he delivered a “video CD” to the Registrar of the Tribunal on 9 January 2007, who refused to accept it.
By decision signed on 23 January 2007 the Tribunal affirmed the decision of the Minister’s delegate refusing to grant the applicant a protection visa. In considering the applicant’s claims, the Tribunal found (CB 156-159) (highlighting added):
The Tribunal finds that the applicant has made a valid application for review under section 412 of the Act and that the Tribunal has jurisdiction to review the delegate’s decision under para.411(1)(c) of the Act.
Essentially the applicant claims that he fears to return to Indonesia because he fears harm there due to his religion, because he supported independence for East Timor while he was in Australia, because he worked for/under the Soeharto government in Indonesia and because it has become known in his country that he has applied for protection in Australia. He claims that he cannot get protection against the harm that he fears in his country.
The Tribunal accepts that: “applicants for refugee status face particular problems of proof as an applicant may not be able to support his statements by documentary or other proof, and cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule.” The Tribunal also accepts that: “if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt”. (The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para. 196). However, the Handbook also states (at para 203): “The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts”.
It is for the Tribunal not only to consider inconsistencies but also to determine what evidence it finds credible (Nicholson J. in Chen Xin He v MIEA, 23 November, 1995 (unreported) at p.11). The Tribunal does not have to accept uncritically all statements and allegations made by an applicant. (Beaumont J in Randhawa v MIEA, 124 ALR 265 at p.278). “The mere fact that a person claims fear of persecution for reasons of political opinion does not establish either the genuineness of the asserted fear or that it is well-founded or that it is for reasons of political opinion.[it is] for the Applicant to persuade the reviewing decision-maker that all of the statutory elements are made out.” (MIEA v Guo and Anor (1997) 144ALR 567 at 596).
The applicant produced his passport to the Tribunal and the Tribunal finds that he is a national of Indonesia and is who he claims to be. Based on the applicant’s evidence to the Tribunal and also the details in his passport the Tribunal finds that the applicant arrived in Australia from Indonesia in July 1996 and entered Australia on a student visa granted in Jakarta 1 July 1996 valid until 31 July 1998. The Tribunal finds that after the expiry of his student visa in 1998 the applicant remained illegally in Australia until he was detained by Australian immigration authorities. The Tribunal finds that the applicant first claimed protection in Australia in April 2005 after he was detained by Australian authorities. This was the applicant’s oral evidence to the Tribunal and was discussed with him by the Tribunal at the hearing.
The Tribunal accepts that the applicant went to a meeting supporting East Timor independence while he was in Australia in September 1996 and was involved with the low level activities he claims supporting East Timor until those activities decreased at the end of 1998. It accepts that he had some reduced contact with members of the movement who were friends until 2004. The Tribunal also accepts that the applicant was a Christian in his country before he came to Australia, that he went to church in Indonesia but was not active in spreading/conveying his faith. The Tribunal also accepts that the applicant was employed in his country under the Soeharto government.
The Tribunal does not accept as true that the applicant fears harm in his country because of his religion, his East Timor pro independence activities in Australia, his past employment with the Soeharto government or because it is known in Indonesia that he has made an application for protection visa.
The Tribunal considers that if the applicant were truly afraid of harm in his country because of his pro independence for East Timor activities in Australia or because he had worked for/under the Soeharto government he would have claimed protection in Australia prior to April 2005, especially given that he was illegally in Australia after the end of July 1998. He does not claim that he did not know his visa had expired as he told the Tribunal that he tried to get the student visa extended after 1998. He said that he was told by his relatives that it was unsafe for him in Indonesia in 1998 and yet he did not apply for protection until 2005. The Tribunal does not accept as true that he delayed making an application for protection in Australia because he was afraid those in Indonesia would find about it and that would be dangerous for him. The Tribunal finds that this latter claim by the applicant was invented by him to explain the delay in making his application for protection and so assist his application.
The Tribunal has found that the applicant was involved in low level activities to support East Timor independence in Australia as he claims, mainly between September 1996, when he attended one meeting, and the end of 1998, although there was some contact with the movement and friends therein until 2004, but there is no plausible evidence and no independent country information before the Tribunal that the applicant will suffer harm in his country because of those activities if he returned there in 2007. There is also no independent evidence before the Tribunal that the applicant would suffer harm in his country because he worked under the Soeharto government. The applicant himself said that he did not think he would be harmed because of this although he could not be 100% certain and he thought this claim was minor. The Tribunal finds on the evidence before it that the applicant will not suffer harm in his country because he once worked under the Soeharto government. The Tribunal considers that the letter dated 13 July 2005 from Dominggus Perreira which the applicant produced after the last Tribunal hearing does not provide reliable evidence of the facts that the applicant claims it does, namely that this false letter was sent by those who knew he had made a claim for protection in Australia to make him feel safe to return. In the Tribunal’s view it is not plausible that such a letter was sent for the purpose he claims almost ten years after he left his country and many years after he had been involved in any active way with the East Timor pro independence activities; he told the Tribunal that these activities decreased after the end of 1998. The applicant himself could not explain to the Tribunal why such a letter would be sent for him so long after the events, in July 2005. The Tribunal finds that this evidence was invented by or on behalf of the applicant to assist his application before the prior Tribunal.
The Tribunal does not consider that the applicant is a witness of truth. Although the Tribunal accepts that the applicant is a Christian and was a Christian in his country it has found above that he does not fear harm in Indonesia for that reason. The Tribunal notes that at the prior Tribunal hearing the applicant resiled from his claim that Christians are persecuted in Indonesia. Also had he feared harm in his country because he is Christian in the Tribunal’s view he would have made that claim before 2005. The Tribunal does not accept as true that he has become genuinely more committed and an evangelist Christian in more recent times in Australia. Although he did not agree when the Tribunal put it to him that he that he obtained a certificate of baptism in July 2006, after joining the Jesus Family Centre, to support his application for protection visa and application for review the Tribunal finds that this is the case. In the Tribunal’s view it is not plausible that the applicant would be baptized again in July 2006 if he were already a Christian. In the Tribunals’ view his explanation for why he did this, namely that he preferred to be baptized in the fully emerged fashion because of his sister’s experience and that his first baptism was not fully obedient”, is not reasonable. The Tribunal does not accept on the evidence before it that the applicant has become more committed about his Christianity and an evangelist Christian in Australia. Although the Tribunal accepts that the applicant will practice his Christianity in Indonesia in the same way that he did before he left there it does not accept that he or his family will suffer persecution for that reason in his country. Although the independent country information consulted by the prior Tribunal, and also the country information submitted to this Tribunal by the applicant indicates that there are some abuses of religious freedom in parts of Indonesia in the Tribunal’s view there is no persuasive or plausible evidence that the applicant before it will suffer harm in his country from Muslims or anyone else because of his religion. As the Tribunal does not accept that the applicant has become a genuine evangelical Christian in Australia it does not accept that he will practice as such in Indonesia if he returns there.
There is no plausible evidence before the Tribunal that it is known in Indonesia that the applicant has made an application for protection in Australia and the Tribunal finds that he will not suffer harm in his country for that reason. The Tribunal also finds that the applicant does not fear harm for this reason in his country. The Tribunal considers and finds that this claim was invented by the applicant to assist his application for protection.
The applicant submitted further evidence from witnesses in support of his claims and those witnesses gave oral evidence to the prior Tribunal. That evidence, and also their statements, is/are also before the present Tribunal. As these witnesses are family relations of the applicant whom the Tribunal considers has not given truthful evidence before it, the Tribunal does not consider that the evidence of his witnesses is reliable evidence and gives that evidence no weight.
The applicant also claims in his application for protection visa that he and his family will be harmed because there are strong anti western feelings in Indonesia. The Tribunal asked the applicant at the hearing on at least two occasions to outline to it why he feared harm in his country and the applicant did not specifically make this claim. To the extent that the applicant is claiming that he will be harmed if he returns to his country because he has lived in a Western country and there is anti Western feelings in Indonesia the Tribunal finds that there is no plausible evidence before it that the applicant will face harm in his country for this reason. If he did genuinely fear harm in his country for this reason in the Tribunal’s view he would have talked about this claim when given the opportunity at this hearing and/or before at the prior Tribunal hearing. He did not do so.
In the Tribunal’s view there is no plausible evidence before it that the applicant has suffered persecution in his country because of his religion, his political opinion, his imputed political opinion, because he is a member of a particular social group or for any other Convention reason. Nor in the Tribunal’s view does the evidence establish that there is a real chance that the applicant will suffer persecution for a Convention reason either now or in the reasonably foreseeable future if he returns to his country.
Having regard to the above the Tribunal is not satisfied, on the evidence presently before it, that the applicant has a well-founded fear of persecution in Indonesia within the meaning of the Convention.
Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in subsection 36(2) for a protection visa.
The applicant then filed the application in this Court, seeking judicial review of the Tribunal’s decision pursuant to Migration Act 1958 (Cth) (“the Act”).
The application
In his application, the applicant set out three grounds as follows:
(1)The Tribunal failed to consider the applicant’s claim of fear of persecution because of his role in supporting East Timorese independence when he was still in service of the Indonesian government. The Tribunal did not give the applicant the opportunity to present evidence to answer any doubts that the Tribunal have. The Tribunal also did not consider or refer to the evidence in the issue.
(2)The Tribunal failed to check the validity of information used against [the] applicant. The Tribunal did not give opportunity to the applicant to comment on that information before coming to decision.
(3)The Tribunal did not give opportunity to applicant to present any doubts, correction, clarification before handling down the decision.
The applicant filed a document by leave on 8 May 2007, setting out grounds in order “to correct the possibility of errors” in his application. The grounds effectively restate the grounds in the application. The corrected grounds are as follows:
(1)The Tribunal failed to consider the applicant’s claim of fear of persecution because of his role in supporting East Timor independence when he was still in service of the Indonesian Government.
(2)The Tribunal did not give the applicant the opportunity to present evidence to answer any doubts the Tribunal may have. The Tribunal also did not consider or refer to the evidence in the issue.
(3)The Tribunal failed to check the validity of information used against applicant. The Tribunal did not give opportunity to the applicant to comment on that information before coming to decision.
(4)The Tribunal did not give opportunity to the applicant to present any doubts, clarification, or even correction on the information (including translation) before handing down the decision.
The applicant filed an amended application on 4 July 2007 setting out the following grounds and particulars:
The grounds for review
(1)The Tribunal denied the procedural fairness and, in doing so, made a jurisdictional error.
(2)The Tribunal erred in law by not relying and understanding the evidence provided by the applicants rather than the country information without giving the applicant the opportunity to comment on them.
Particulars
(1)The applicant’s additional evidence in the form of video CD, presented on 9 January 2007, was not accepted because the Tribunal does not have the facilities to preview. Such conduct is an error of law.
(2)The Tribunal (in the Decision record pg.7, 2nd paragraph) consulted independent county (sic) information that against applicant’s evidence and failed to declare what kind of information and the references/sources so the applicant can comment on. Therefore the applicant concludes that the Tribunal decision was not based on balance and valid evidence. Such conduct is an error of law.
(3)The Tribunal decided to reject all the evidence presented by applicant’s witnesses simply because the witnesses are applicant’s relatives. The information, presented by applicant’s witnesses, supports applicant’s fear of persecution. And to the applicant, this information more trustworthy than that from any other sources. The Tribunal failed to acknowledge that applicant’s witnesses are the first hand / uncensored information sources which are free from any political influence. The Tribunal is only interested in information that contradicts to the applicant’s claim. Therefore, the Tribunal did deliver a biased decision.
(4)The Tribunal overlooked applicant’s well founded fear of persecution as a well known supporter of East Timorese independence and also a Lecturer at the University of Nusa Cendana who eventually has not a minor involvement but major involvement in supporting East Timorese independence.
(5)The Tribunal’s categorisation of applicant’s involvement in supporting East Timorese independence as low level is not right. There is no theory to support such way of categorisation. If the Tribunal realised the risks of the applicant’s activities when still serving as Indonesian public officer and violating the third principle (the unity of Indonesia) of PANCASILA (the base of all laws and rules in Indonesia), the Tribunal would not have that view/stand because the wage of the violation of PANCASILA according to Indonesian law is death penalty or life imprisonment.
(6)The Tribunal did not conduct enough studies on the law applied in applicant’s home country especially in matters related to consequences of applicant’s activities in supporting the separation of East Timor from Indonesia. All information used by the Tribunal is sourced from foreign observers or third parties and none of the reports used covers similar case as applicant’s which involves risks because of any legal conducts according to the country’s law. The lack of knowledge in Indonesian law caused the Tribunal to ignore all potential dangers to the applicant. Therefore, the Tribunal did not deliver a careful decision.
(n.b. The applicant’s wife knows this matter very well because she graduated from Indonesia school of law).
(7)The Tribunal did not give the applicant the draft decision before delivering the final decision. The applicant has no opportunity to give comments that help the Tribunal or to clarify any doubts or misunderstanding.
(8)The applicant relies on the transcript (still under translation process) which will be provided to the Court to see how the Tribunal failed to understand the background of the applicant and failed to at least accept his subjective fear of persecution as well founded should he be compelled to return to Indonesia and the consequences he will face because of his activities and political views as a violation of PANCASILA.
Findings of the Court in relation to the grounds in the application
Ground one is repeated in grounds one and two of the corrected grounds filed on 8 May 2007, and is considered under that heading.
Ground two is repeated in ground three of the corrected grounds filed on 8 May 2007, and is considered under that heading.
Ground three is repeated in ground four of the corrected grounds filed on 8 May 2007, and is considered under that heading.
Findings of the Court in relation to the corrected grounds filed on 8 May 2007
Ground one alleges that the Tribunal failed to consider the applicant’s fear of persecution because of his role in supporting East Timorese independence when he was still in the service of the Indonesian government. The Tribunal considered the applicant’s alleged fear of persecution because of his role in supporting East Timorese independence (CB 156.4, 157.2, 157.4, 157.5, 157.6, 157.9) and rejected that claim (CB 159.3). The Tribunal also considered the claim of fear because the applicant had worked for the Indonesian government (CB 156.4, 157.3, 157.4, 157.5) and rejected that claim (CB 157.8). Those were findings of fact that are not subject to review. There is nothing to show that the claims were connected as alleged. Ground one is rejected.
Ground two alleges that the Tribunal did not give the applicant an opportunity to present evidence to answer doubts the Tribunal may have, and did not consider or refer to the evidence in issue. The applicant and his witnesses gave evidence before the Tribunal on 12 July 2005 (CB 152) and had an opportunity to present evidence and argument. The Tribunal discussed the applicant’s claims with him in detail and raised the doubts that it had. The Tribunal set out evidence and the conclusions it reached form it. Such findings of fact are a matter for the Tribunal and are not subject to review. No breach has been established. Ground two is rejected.
Ground three alleges that the Tribunal failed to check the “validity of information used against the applicant” and did not give him a chance to comment on that information before coming to a decision. As stated in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]:
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.
In addition, “the Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances”:Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27].
As stated in NAHI above, “the question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court.” Country information is covered by the exception in s.424A(3)(a) and therefore it did not have to be put to the applicant under s.424A. Ground three is rejected.
Ground four complains that the Tribunal “did not give opportunity to the applicant to present any doubts, clarification or even connection on the information” before the Tribunal handed down its decision. Country information is excepted from s.424A. Also,
an appraisal of the deficiencies in the claims or lack of detail on key aspects of the Applicant’s claims is not “information”: VAF v MIMIA (2004) 206 ALR 471 at [24]; WAGP of 2002 v MIMIA (2002) 124 FCR 276 at [26]-[29]; Applicant S301/2003 v MIMA [2006] FCAFC 155 at [19].
The Tribunal was not required to put its appraisals or conclusions to the applicant before handing down its decision. No error of law has been established. Ground four is rejected.
Findings of the Court in relation to the grounds in the amended application filed on 4 July 2007
Ground one alleges a denial of procedural fairness. Division 4 of Part 7 of the Act is an exhaustive statement of the natural justice hearing rule in relation to this matter (s.422B). No breach has been shown. Ground one is rejected.
Ground two complains about the Tribunal relying on country information in preference to his evidence. The Court refers to the passage quoted from NAHI (ante) and rejects this complaint.
The applicant complains that he was not given an opportunity to comment on country information. Country information is covered by the exception to s.424A in s.424A(3)(a). As to the Tribunal not giving weight to the evidence called from witnesses for the applicant, the Tribunal rejected their evidence at CB 158 as follows (highlighting added):
The applicant submitted further evidence from witnesses in support of his claims and those witnesses gave oral evidence to the prior Tribunal. That evidence, and also their statements, is/are also before the present Tribunal. As these witnesses are family relations of the applicant whom the Tribunal considers has not given truthful evidence before it, the Tribunal does not consider that the evidence of his witnesses is reliable evidence and gives that evidence no weight.
Their evidence was rejected for a combination of reasons including that the Tribunal found that they did not give truthful evidence. As stated in W148/00A vMinister for Immigration and Multicultural Affairs (2001) 185 ALR 703 at [64]:
The Tribunal decision turned on the question of credibility. A finding as to credibility is a finding of fact and, as the authorities indicate, a reviewing body must not set aside such a finding simply because it thinks that the probabilities of the case are against, or even strongly against, the finding. As the High Court stated in Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479; 112 ALR 641 at 646 per Brennan, Gaudron and McHugh JJ:
If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the findings must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”.
See also Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179; 96 ALR 354. This latter case was concerned with the scope for review of a decision founded in part on demeanour where the court at first instance had an opportunity to observe witnesses and form an impression as to the reliability of evidence given in response to questioning. Often a conclusion as to the credibility of a witness will depend not only on the body language and general impression conveyed by a witness in the way in which questions are answered but also on a careful consideration of the factual background or available information, coupled with ordinary experience as to likely patterns of response. Such an impression cannot be communicated by consideration of the transcript alone.
The initial allegations in ground two are rejected, as are the particulars of ground two below.
Particular (1) alleges that the Tribunal refused to accept a “video CD” of evidence from the applicant. There is no reference to this in the material before the Court other than the allegation by the applicant. The Court refuses to accept the alleged translation of the transcript of the Tribunal proceeding into evidence, as it is not supported by an affidavit of an accredited interpreter and does not comply with order 4 of the orders of the Court dated 8 May 2007. In any event, the applicant claims that he gave a video CD to the Registrar of the Tribunal who refused to accept it. The applicant said that he did not mention the video CD in the hearing before the Tribunal. Even if the CD existed, the Tribunal had no knowledge of it and it cannot be complained that the Tribunal ignored something of which it had no knowledge. Failure to have recourse to the transcript therefore did not compromise the applicant. The “Response to Hearing Invitation” shows no request for special needs at the hearing (CB 105) Particular (1) is rejected.
Particular (2) complains that the Tribunal relied on country information in preference to the applicant’s evidence, and did not put the country information to him for comment. The Court refers to and repeats the passage quoted from NAHI (ante). The Court also refers to and repeats the passages quoted from Lee (ante). No error is shown. Particular (2) is rejected.
Particular (3) alleges that the Tribunal rejected all the evidence from the applicant’s witnesses simply because the witnesses were the applicant’s relatives. That is incorrect; the Tribunal found that they did not give truthful evidence (CB 158.8). That finding was open to the Tribunal. The Court refers to and repeats the passage quoted from Lee (ante). This allegation is rejected.
Particular (3) alleges bias. 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]. “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”:Re Refugee Review Tribunal & Anor; ex parte H & Anor (2001) 179 ALR 425 at [27]. Nothing has been put to establish bias (actual or a reason for apprehended bias). The Court rejects this claim. Particular (3) is rejected.
Particulars 4, 5 and 8 contain allegations that the Tribunal overlooked evidence about the applicant’s level of involvement in the independence of East Timor. The Court refers to CB 157.6 where the Tribunal records that the applicant claimed that he was involved in low level activities in support of East Timor’s independence. The Tribunal accepted that evidence. The applicant’s claims before the Court are inconsistent with that evidence. The Tribunal was entitled to accept the evidence of the applicant: Lee (ante) at [27]. The findings of the Tribunal were findings of fact that are not subject to review. The Court rejects those particulars.
As to particular (6), the Court accepts the following submission for the first respondent:
This ground of review suggests the Tribunal was required to look into certain legal matters (about which it is said that the applicant’s wife has knowledge). First, this allegation misconceives the basis upon which the Tribunal made the decision (i.e. a rejection of the applicant’s claims based largely on his own evidence and upon the Tribunal’s credibility concerns). Second, it is not for the Tribunal to make out the applicant’s case. Third, to the extent that this ground alleges a duty to inquire, it has no merit because it is well established that there is no such duty: MIMIA v SGLB (2004) 207 ALR 12 per Gleeson, Gummow and Hayne JJ at [1], [42] and [43]. M164/2002 [2006] FFC Lee, Tamberlin JJ, Dowsett J dissenting.
Particular (6) complains about the Tribunal’s reliance on country information. The Court refers to and repeats the passage quoted from NAHI (ante) and Lee (ante). Particular (6) is rejected.
Particular (7) complains that the Tribunal did not give the applicant a draft of its decision before handing down its final decision, and so denied the applicant an opportunity to comment. The applicant complains that his wife was given a draft decision for commment before final decision was made in her case, and says that he should have been given a draft. The Court rejects that submission. The Tribunal is not obliged to give the applicant advance written notice of its reasons or of steps in its reasoning process: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18]. Also, in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592 at [48] where the joint judgment approved a statement by Lord Diplock in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 that
… the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished.
Their Honours continued at [48] that:
Procedural fairness does not require the tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.
No breach of Division 4 of Part 7 of the Act has been established. Particular (7) is rejected.
Particular (8) states that the applicant will rely on a translation of the transcript of the Tribunal’s hearing. The translation is not verified by an accredited interpreter. It is not accompanied by an affidavit as ordered by the Court on 8 May 2007. The transcript is not evidence in a form acceptable to the Court and is not received into evidence. The two points the applicant wished to raise from the transcript were, however, accepted as submissions from the applicant, namely, that he did not raise the issue of the video CD with the Tribunal, and that he did make submissions about the Pancasila as mentioned in grounds five and eight of his application. The non-mention of the video CD has been dealt with above; as to the Pancasila, the Tribunal made findings of fact that
Nor in the Tribunal’s view does the evidence establish that there is a real chance that the applicant will suffer persecution for a Convention reason either now or in the reasonably foreseeable future if he returns to his country. (CB 159)
The Tribunal did not accept the allegations about the implications of Pancasila.
In his oral submissions the applicant claimed that the Tribunal should have based its decision on the material before it. The Court finds that the Tribunal did that. The applicant questioned how the Tribunal would know if witnesses are being truthful or not. That is a function of the Tribunal. It is up to it to accept or reject evidence as it thinks appropriate in all the circumstances: Lee (ante) at [27].
The applicant complains that the Tribunal should have checked material to see if it is true. It is for the applicant to establish their case. The Tribunal is under no duty to inquire: Minister for Immigration and Multicultural and Indigenous Affairs vSGLB (2004) 207 ALR 12 at [42]-[43]. The Court refers again to the decision of NAHI (ante) at [11] as follows (see paras.18-19 ):
It is not…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.
Conclusion
The Court finds that the Tribunal’s decision is a privative clause decision which has not been infected by jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
Accordingly, the application, amended grounds, and amended application are dismissed.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Turner FM
Acting Associate: Mary Giang
Date: 15 October 2007
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