SZHYH v Minister for Immigration
[2009] FMCA 531
•4 June 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHYH v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 531 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 424A; 424A(1); 424A(3)(a); 424A(3)(b); 424A(3)(ba); 474; pt.8 div.2 |
| WAGU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 912 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 688 Chen Xin He v Minister for Immigration and Ethnic Affairs (Nicholson J u/r 23 November 1995) Randhawa v Minister for Immigration and Ethnic Affairs 124ALR 265 Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 Kopalapillai v Minister for Immigration and Multicultural and Indigenous Affairs (1998) 86 FCR 547 W396/01 v Minister for Immigration and Multicultural Affairs (2002) 68 ALD 69 SZEEO v Minister for Immigration and Multicultural Affairs (2005) FCA 246 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 |
| Applicant: | SZHYH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 626 of 2009 |
| Judgment of: | Emmett FM |
| Hearing dates: | 24 April & 4 June 2009 |
| Date of last submission: | 4 June 2009 |
| Delivered at: | Sydney |
| Delivered on: | 4 June 2009 |
REPRESENTATION
| Applicant appeared in person assisted by a Mandarin interpreter |
| Counsel for the Respondent: | Mr P. Reynolds |
| Solicitors for the Respondent: | Ms J. Vu and Ms J. Dinihan, Clayton Utz |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 626 of 2009
| SZHYH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex tempore)
(As Corrected)
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 13 February 2009 and handed down on 16 February 2009.
The applicant claims to be a citizen of the People’s Republic of China (“China”) and an elected Village Committee Member in his area in China (“the Applicant”).
On 22 April 2005, the Applicant lodged an application for a tourist (subclass 757) visa with Australian authorities in China, which was granted on 28 April 2005.
The Applicant arrived in Australia on 3 May 2005 having departed legally from Guangzhou on a passport issued in his own name and a tourist visa issued on 28 April 2005.
On 17 May 2005, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.
On 4 August 2005, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.
On 9 September 2005, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
On 28 October 2005, the Refugee Review Tribunal affirmed the decision of the Delegate not to grant a protection visa.
The Applicant sought judicial review of the decision of the first tribunal in this Court and, on 25 May 2007, the matter was remitted to the Refugee Review Tribunal by Federal Magistrate Raphael for determination according to law.
On 26 September 2007, the Refugee Review Tribunal, differently constituted, affirmed the decision of the Delegate not to grant a protection visa.
The Applicant sought judicial review of that decision in this Court and, on 15 October 2008 the matter was remitted to the Refugee Review Tribunal by consent for determination according to law.
On 16 February 2009, the Refugee Review Tribunal, again differently constituted, affirmed the decision of the Delegate not to grant a protection visa.
On 16 March 2009, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Applicant’s application for a protection visa
The Applicant provided a statutory declaration, affirmed 5 May 2001, in support of his protection visa application.
The Applicant claimed that, on 25 September 2004, he was elected President of his home village. The Applicant claimed that in January 2005 his constituents asked him to approach the Chinese authorities to reduce heavy taxes and levies. They also wished to have “a clean government” that recognised basic human rights.
The Applicant claimed that, in the middle of January 2005, his neighbour, Mr Wei, committed suicide because he could not pay his taxes and levies.
The Applicant claimed that he and two others were elected to negotiate with the authorities in Sanshan Town and Fuqing City to reduce taxes, take steps to protect basic human rights and “to give reasonable compensation to Mr Wei’s family”.
The Applicant claimed that he drafted a petition to this effect which was signed by more than 100 people in his village and that his deputation of three were away conducting negotiations from late January to early February 2005. The Applicant stated that, whilst he was away, he suggested that some people from his village have a “sit-in protest in Sanshan Town” and others in Fuqing City.
Throughout this period the Applicant claimed that he was still waiting to have his presidency confirmed, and ultimately it was not. The Applicant claimed that, on 8 February 2005, he was arrested by the Public Security Bureau in Fuqing City for organising anti-government protests. The Applicant said he was detained until 11 March 2005, following payment by his wife for his release. The Applicant claimed that during his detention, he was “subject to mistreatment and torture” and forced to confess.
The Applicant claimed that following his release he was required to report weekly to the police and was prohibited from organising any further anti-government protests.
The Applicant stated that a friend with travel agency contacts arranged for him to leave China in early May 2005.
The Delegate’s decision
On 4 August 2005, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Convention.
The Delegate expressed concerns regarding the Applicant’s overall credibility for reasons it gave. The Delegate also had regard to independent country information that suggested that because the Applicant was able to depart China lawfully he was not of adverse interest to the Chinese authorities at the time he left the country.
The Tribunal’s review and decision
On 6 September 2005, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal. The Applicant nominated a migration agent, Priscilla Yu, as his authorised recipient.
The history of the Applicant’s various hearings before the Refugee Review Tribunal and two prior decisions of earlier and differently constituted tribunals are summarised above in the Introduction to these reasons.
On 27 November 2008, the Tribunal, whose decision is the subject of the proceeding before this Court, wrote to the Applicant inviting the Applicant to come to a hearing on 15 January 2009 for the purpose of giving oral evidence and presenting arguments. The letter informed the Applicant that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone.
The Applicant attended a hearing before the Tribunal on 15 January 2009. The Tribunal explored the Applicant’s claims with him and put to the Applicant matters of concern that it had arising out of his evidence.
The Tribunal did not accept that the Applicant left China for the reasons claimed and did not accept that the Applicant was engaged in the organisation of protests and the preparation of petitions in China or that he engaged in any anti-government conduct in China or was elected to any position in his village.
The Tribunal found the Applicant gave confused and conflicting evidence to the Tribunal about his employment in China and did not accept the Applicant’s explanations in respect of this issue.
The Tribunal did not accept that the Applicant had difficulties with his memory in remembering details of his claims because of the beatings he received. The Tribunal found that the Applicant “changed or modified details of his claims and evidence in an attempt to explain discrepancies in that evidence”.
The Tribunal noted that, on 25 October 2005, the Applicant sent to the Tribunal a certificate purporting to show that he had been elected “Director of the Villagers Committee” on 25 December 2004. The Tribunal found that the certificate did not accord with the Applicant’s evidence to have been elected President. The Tribunal did not accept the Applicant’s explanation of the difference in the titles. Because the Tribunal did not accept the Applicant was a witness of truth, it did not find that the certificate was reliable evidence of the facts asserted in it. In making that finding the Tribunal noted the statement by French J in WAGU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 912 at [36] where His Honour stated “corroborative evidence may be rejected as of no weight because it is dependent upon and can be shown to be undermined by findings as to the tendering party’s credibility”.
The Tribunal rejected the Applicant’s claims that his wife and children who remain in China are using false names, noting that they still go to the local school. The Tribunal noted that the Applicant’s assertion that his wife and children use false names, was made only after the Tribunal queried how his family manage to continue to live in China with his children going to the local school.
The Tribunal also found that the Applicant’s claims of persecution in China and his ability to leave without difficulty using a passport and visa in his own name were not consistent with country information before it. The Tribunal rejected the Applicant’s explanation and found that, if the Applicant were of interest to authorities in China, it would have been very difficult for the Applicant to leave China using a passport in his own name.
The Tribunal found there was no plausible evidence before it that the Applicant had suffered any past harm in China for any Convention-related reason and was not satisfied that there was a real chance that the Applicant would suffer persecution for a Convention reason in the reasonably foreseeable future, were he to return to China.
Accordingly, the Tribunal affirmed the decision under review.
The proceeding before this Court
The Applicant was unrepresented before this Court, although had the assistance of a Mandarin interpreter.
On 1 April 2009 the Applicant attended a directions hearing before this Court and was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit. The Applicant was also directed to have any transcript of the Tribunal hearing upon which he may seek to rely verified by affidavit. The Applicant was also directed that if he wished to rely on recordings of the Tribunal hearing he must give notice to the Court and the First Respondent.
At the directions hearing it was explained to the Applicant that this Court had no power to interfere with the decision of the Tribunal unless the Court is satisfied that the Tribunal’s decision is affected by a legal mistake that goes to the jurisdiction of the Tribunal.
At the directions hearing, the Court referred the Applicant to the Court’s legal advice scheme for free legal advice. The Court also provided to the Applicant, headed in his own language, a contact list of providers of legal assistance and interpreting services. The Applicant has participated in the Court’s legal advice scheme.
At the directions hearing, the Court also provided to the Applicant a copy of the applicable costs schedule of the Court and explained to the Applicant the consequences that would follow for him if a costs order was made against him. Namely, that whilst ever any costs order remains unpaid it becomes a debt to the Commonwealth of Australia. As such, the Applicant’s ability to obtain any other type of visa or re-enter Australia may be significantly affected. The Court then confirmed with the Applicant that he wished to continue with his application.
At the commencement of the hearing before this Court on 24 April 2009, the Applicant confirmed that he relied on the grounds contained in an application filed on 16 March 2009. The Applicant also confirmed that he had not filed any evidence or written submissions in support of his claims.
The grounds of the application are expressed to be as follows:
“1. There was an error of law in the Tribunal’s decision constituting a jurisdictional error;
2. There was procedural error in the Tribunal’s decision constituting an absence of natural justice.
Particulars:
1. The Tribunal’s finding has included a reasonable apprehension of bias; and the Tribunal made its finding unreasonably, illogically and based on nothing but only its unwarranted assumption.
Particulars:
In the Tribunal’s decision, it has stated that:
49. The Tribunal does not accept that the applicant left China for the reasons he claims. Further the Tribunal does not accept that the applicant cannot or will not return to China because he fears persecution there for the reasons he claims. It does not accept that the applicant was engaged in the protests and petitions that he claims in his country, or that he engaged in any other conduct that was perceived as anti government, or that he was elected to a position with the Villagers Committee and resigned his employment following the election as he claims; it follows that the Tribunal does not accept that the government refused to appoint him to his elected position or detained or threatened him at any time as he claims for the reasons that he claims. The Tribunal does not accept that the applicant or his family members are or were of interest to authorities in China for the reason that the applicant claims. The reason that the Tribunal finds against the applicant in relation to these matters is that the Tribunal does not accept that the applicant is a witness of truth. The Tribunal considers that the applicant invented details about his claims to explain discrepancies and to answer the concerns of the Tribunal and make his claims sound genuine.
So the main ground in the Tribunal’s decision is that “… the Tribunal does not accept that the applicant is a witness of truth. The Tribunal considers that the applicant invented details about his claims to explain discrepancies and to answer the concerns of the Tribunal and make his claims sound genuine…”
The Tribunal then stated that:
50. The Tribunal (sic) has given confused and conflicting evidence to the Tribunal about the employment he had in China which he claims he had to give up when he was elected to the position with the Villagers Committee at the end of 2004. He omitted his employment with the colour printing company from his application fur (sic) protection visa application and stated in that application that he was employed from 1998 until December 2004 with a computer company. It was only when the first Tribunal wrote to the applicant pursuant to s.424A of the Act prior to the first hearing and asked for his comments about the discrepancies between his employment details in his application for visitor visa lodged April 2005 and the details in his application for protection visa that he wrote to the “tribunal and stated that he worked for both companies; he said that he worked at the colour printing company from 2002 until August 2004 and he normally worked 3 hours per day (15 hours per week) for the company and that he also worked as a senior manager for the computer company from August 1998 to December 2004 and he normally worked about 5 hours per day (20 hours, per week) for that company. The applicant told the present Tribunal that he did not include the details of his employment with the colour printing company in his application for protection visa as he thought the Department would know about his employment from his application for visa when he came to Australia. The Tribunal does not accept this is a reasonable explanation for his inclusion of a different employer in his application for protection visa where he was asked in the application form to give details of all his past employment. Further the applicant told the present Tribunal that he worked for the colour printing company until August 2004 and a friend obtained a false certificate for him when he obtained his visa to come to Australia because he faced persecution. He said that he had worked for the colour printing company until August 2004 and he left because of his health and because his wile (sic) asked him to leave. The applicant then told the Tribunal that he came to Australia on business for that company in October 2004. When the Tribunal reminded him that he had earlier said that he stopped working for the colour printing company in August 2004 and asked how it was that he came to Australia in October 2004 on the company’s behalf he said that he was beaten in the past and he could not remember and it affected his speech. He said that he was confused when he gave the details to his representative and then that date appeared in the other documents. The applicant’s evidence to the Tribunal that he worked for the colour printing company until December 2004 conflicts with his written advice to the prior Tribunal that he tell the colour printing company in August 2004.
51. The Tribunal does not accept as true that the Applicant had difficulties remembering details of his claims because he was affected when he was beaten and because the events happened a long time ago. He also gave conflicting evidence about the dates of the cessation of his employment with the colour printing company in his oral evidence before the prior Tribunal in 2005. The Tribunal considers that the applicant changed or modified the details of his claims and evidence in an attempt to explain discrepancies in that evidence.
Firstly, my claims for a protection visa have completely been relied on the matter which has happened since December 2004. It is the matters that have happened to me since I was selected as the Deputy President of the Village. However, the Tribunal rejected the matters, which have happened since December 2004, based on the matters which had happened before December 2004.
Secondly, as a matter of fact, my employment with Fujian Fuqing Longxing Color Printing Co. or my employment with Fuzhou Changxin Computer Co. Ltd. is actually nothing in relation to my central claims for a Protection Visa. No matter what has happened to me, I resigned from these two companies completely before December 2004.
Thirdly, my employments with above-mentioned two companies are also nothing in relation to the matter that I have been selected as the Deputy President of the Village. The election has been involved and decided by the local villagers and the local authorities, and the election has definitely no connection with above-mentioned two companies.
Apparently, the Tribunal’s finding has included a reasonable apprehension of bias; and the Tribunal made its findings unreasonably, illogically and based on nothing but only its unwarranted assumption.
In the Tribunal’s decision, it has stated that:
52. On 25 October 2005 the applicant sent the Tribunal a document described as a Certificate of the Villagers Committee Member indicating that he was elected Director of the Villagers Committee of the named village at the 2004 elections; the certificate was dated as issued 25 December 2004. The applicant’s initial claims in his application were that he was elected as the President of his home village and later he claims that the position was Vice/Deputy President. In his letter to the Tribunal dated 24 October 2005 his explanation for this difference in title in the certificate, namely that the position was described as “Director” in the certificate, is that a candidate had to be first elected as Director and then appointed by the government as the President or Deputy President which, in his case, the government refused to do for the reasons that he claims. When the Tribunal asked him about this discrepancy at the hearing he said that Director is the same as Vice President; the Director is the President or Vice President and there are several directors. The applicant also said that in formal documents the person is called Director of the Villagers Committee. The applicant said that in proper documents the position is referred to as Director and those well educated will use that term but other ordinary people address the person as President. He said that due to the level of his education it says he was elected as Director but that is the same as President. If e was elected President his actual title would be Deputy President. The Tribunal does not accept that the applicant’s explanation of the discrepancy in title in the document is true. Given that the Tribunal does not accept that the applicant is a witness of truth it finds that the document described as a Certificate of the Villagers Committee Member is not reliable evidence of the facts in it. The Tribunal notes the comments in WAGU v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 912 at [36] per French J. “Corroborative evidence may be rejected as of no weight because it is dependent upon and can be shown to be undermined by findings as to the tendering party’s credibility.”
The Tribunal’s finding is absolutely unreasonably and illogically. Apart from the comments in WAGU v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 912, which is actually nothing directly in relation to my case, the Tribunal made its finding based on nothing but its poor knowledge about actual situation in China. The Tribunal failed to provide any evidences or the evidences from the independent sources. So, I have to say that the Tribunal finding has included a reasonable apprehension of bias; and it has based on nothing but only its unwarranted assumption.
The main ground in the Tribunal’s decision is that “…the Tribunal does not accept that the applicant is a witness of truth. The Tribunal considers that the applicant invented details about his claims to explain discrepancies and to answer the concerns of the Tribunal and make his claims sound genuine…
2. The Tribunal failed to comply with its obligations under s.424A(1) of the Act.
Particulars:
I strongly believe that while the current Tribunal adopt the information from the previous Tribunal, the current Tribunal must be obligated to provide me particulars of the information, to ensure me to understand it would be in relation to the review; and to invite me to comment on it. Unfortunately, the current Tribunal failed to do so.
In summary, I never ever believed that my application has been assessed by the Tribunal, fairly and carefully”
Ground 1
Ground 1 makes a bare assertion of jurisdictional error unsupported by particulars, evidence or written submissions.
The Applicant submitted in support of ground 1 that the Tribunal only went through the formalities of dealing with his case; did not assess his application fairly; and, refused his application based on the views of the first and second earlier and differently constituted tribunals.
However, a fair reading of the Tribunal’s decision record does not support the Applicant’s allegations.
There was no transcript of the Tribunal hearing provided to this Court, nor did the Applicant provide any evidence to this Court to suggest that the Tribunal’s decision record is not accurate. At the directions hearing on 1 April 2009 the Applicant was given an opportunity to file a transcript of the Tribunal hearing. The Applicant was directed to ensure that any such transcript was verified by affidavit. The Applicant was also directed to give notice if he wished to rely on recordings of the hearing, however, no step was taken by the Applicant to file or tender any such evidence. In the circumstances, the Court accepts as accurate the Tribunal’s summary of the oral evidence given by the Applicant and exchanges it had with the Applicant at the Tribunal hearing.
A fair reading of the Tribunal’s decision record makes clear that the Tribunal accurately summarised the Applicant’s written claims. The Tribunal noted the Applicant’s complaint in his application for review that the Delegate had not fairly considered his claims.
The Tribunal also summarised the documents and material provided to it in support of the Applicant’s claims, including the copy of the certificate purporting to certify that the Applicant had been elected as Director of the Villagers Committee at the 2004 elections.
The Tribunal noted that the Applicant gave oral evidence about his claims on 27 October 2005 to an earlier and differently constituted tribunal.
The Tribunal noted in detail the matters that it explored with the Applicant and noted the matters of concern that it put to the Applicant about his evidence, noting his responses.
In its findings and reasons, the Tribunal found the Applicant’s evidence to be inconsistent in some respects with country information before it and preferred the country information. It is a matter for the Tribunal, the country information to which it has regard and the weight it gives that information (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10).
The Tribunal noted that it was for the Tribunal not only to consider inconsistencies but also what evidence it finds credible (Chen Xin He v Minister for Immigration and Ethnic Affairs (u/r 23 November 1995 per Nicholson J). The Tribunal also noted that it is not obliged to accept uncritically all statements and allegations made by an applicant (Randhawa v Minister for Immigration and Ethnic Affairs 124ALR 265 at 278 per Beaumont J). The Tribunal also noted the principle espoused by the Kirby J in Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567 at 596 that:
“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… [it is] for the Applicant to persuade the reviewing decision-maker that all of the statutory elements are made out”.
The Tribunal comprehensively rejected the totality of the Applicant’s claims of his political activities in China, including his activities in organising a petition and protests. The Tribunal also rejected comprehensively the Applicant’s claims of past harm in China for any Convention-related reason, including the Applicant’s claim of arrest, detention and mistreatment.
The Tribunal’s findings were open to it on the evidence and materials before it and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
Accordingly, the Applicant’s allegation that the Tribunal did not assess the Applicant’s claims fairly or based its decision on the decisions of earlier constituted tribunals or that the Tribunal only went through the formalities of dealing with this case, is not made out.
Accordingly, ground 1 is rejected.
Ground 2
Ground 2 asserts that the Tribunal’s decision contained procedural error constituting an absence of natural justice. The particulars in support of ground 2 alleged reasonable apprehension of bias; illogical reasoning on the part of the Tribunal and unwarranted assumption. The further particulars provided in support of these allegations consisted of large slabs of the Tribunal’s decision record with which the Applicant disagrees. In particular, the Applicant disagreed with the Tribunal’s finding that the Applicant is not a witness of truth and that he invented details about his claims to explain discrepancies, to answer concerns of the Tribunal and to make his claims sound genuine.
Counsel for the First Respondent in his written submissions accurately summarised the particulars as asserting the following:
“(a) the Tribunal erred by relying on matters preceding December 2004 to reject matters occurring after December 2004;
(b) the Tribunal erred because the Applicant’s employment status did not relate to his “central claims” and he resigned from these companies before December 2004; and
(c) the Tribunal erred because the Applicant’s employment status did not relate to his selection as the Deputy President of the Village.”
In relation to (a) a fair reading of the Tribunal’s decision record does not support such an allegation. A fair reading of the Tribunal’s decision record makes clear that the Tribunal had regard to all evidence and material provided by the Applicant in support of his claims and was not ultimately satisfied that the Applicant met the criteria for being a refugee. True it is that the Tribunal’s conclusion was based largely on its adverse credibility findings in respect of the Applicant’s evidence.
It was open to the Tribunal to reject comprehensively, as it did, the totality of the Applicant’s claims for the reasons it gave.
In relation to (b) and (c), the Applicant’s complaint of the use made by the Tribunal of the evidence he gave relating to his employment and election as President of his village does not demonstrate any jurisdictional error on the part of the Tribunal. It is for the Tribunal to evaluate and consider the totality of the Applicant’s evidence in assessing the credibility of his claims. It is open to the Tribunal to find inconsistent evidence in respect of less important matters as supporting its adverse credibility findings (Kopalapillai v Minister for Immigration and Multicultural and Indigenous Affairs (1998) 86 FCR 547 at 552 and 559).
Illogicality
In relation to the Applicant’s claim in ground 2 of illogicality and unreasonableness, it is well established that illogicality does not, of itself, demonstrate jurisdictional error. It is unclear from the Applicant’s grounds what is the illogicality alleged by the Applicant, and none is apparent to this Court on a fair reading of the Tribunal’s decision record. (W396/01 v Minister for Immigration and Multicultural Affairs (2002) 68 ALD 69 at [33]; SZEEO v Minister for Immigration and Multicultural Affairs (2005) FCA 246 at [14] per Tamberlin J).
Failure to investigate
The Applicant’s complaint that the Tribunal failed to provide any evidence from independent sources misunderstands the obligations of the Tribunal. It is not for the Tribunal to make an applicant’s case for him (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] and Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20]). It is for the Applicant to satisfy the Tribunal as a relevant decision-maker that he meets the criteria required for being a refugee. There is nothing on the evidence or material provided by the Applicant to the Tribunal that would suggest that the Tribunal had any further duty to investigate any of the Applicant’s claims, and none has been identified by the Applicant (Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169 to 170 per Wilcox J).
Apprehension of bias
In relation to the Applicant’s allegation of an apprehension of bias, such an allegation is serious and requires evidence.
A fair reading of the Tribunal’s decision does not disclose any prejudgment on the part of the Tribunal in the sense that the Tribunal was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented” (Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17 at [69], [71]-[72], [127]).
A fair reading of the Tribunal’s decision does not suggest that the Tribunal approached its task other than open with a mind open to persuasion. There is no evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind in determining the application for review (Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 at [27]-[32]; NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115]; SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 688 at [38]).
During the course of his submissions in support of ground 2, the Applicant made for the first time a complaint that the interpreter at the Tribunal hearing had not interpreted everything said by the Applicant and had interpreted the Applicant’s evidence incorrectly.
The hearing was adjourned and the Applicant directed to serve an amended application giving complete particulars of such a ground together with any evidence, including any transcript of the Tribunal hearing and written submissions in support of the application by 22 May 2009. The hearing was adjourned until today.
At the commencement of the hearing this morning, the Applicant confirmed that he had not filed any amended application, evidence or submissions in accordance with those directions, or otherwise. The Applicant told the Court he had nothing further to say in support of that further complaint about interpretation or in relation to any of the other grounds of his application. In the circumstances, there is no evidence before this Court to support the Applicant’s unparticularised complaint about interpretation at the Tribunal hearing. A fair reading of the Tribunal’s decision record does not suggest that there was any complaint made by the Applicant to the Tribunal at any time during or after the hearing about the accuracy of the interpreting.
Following the First Respondent’s submissions, the Applicant made for the first time a further allegation that the Tribunal’s tone treated him as if he was a criminal. The Applicant sought leave to give further evidence in support of that allegation. Leave was opposed by the First Respondent and refused by the Court in separate reasons given by me ex tempore on that issue.
The Applicant’s complaint about the tone of the Tribunal is no more than a further particular of an allegation of bias or apprehended bias. The Applicant has had at least two opportunities to file and serve evidence in support of such allegations, including a transcript of the Tribunal hearing or a recording of the Tribunal hearing in support of such allegations. At no time has the Applicant filed any evidence or submissions in support of his allegations. For the reasons referred to above in considering the Applicant’s complaint of apprehended bias, this further complaint by the Applicant made this morning that the tone of the Tribunal member treated him like a criminal does not demonstrate jurisdictional error on the part of the Tribunal.
Accordingly, the allegation of bias or apprehended bias is not made out.
Accordingly, ground 2 is not made out.
Further Ground 2
In a further ground 2 of his application, the Applicant alleged that the Tribunal had failed to comply with s.424A of the Act. The information identified by the particulars was information from the earlier and differently constituted tribunals. Such a complaint misconceives the purpose of s.424A(1) of the Act.
A fair reading of the Tribunal’s decision record makes clear that the only information to which the Tribunal had regard in affirming the decision under review was information provided by the Applicant to the Tribunal and country information before it. Such information is excluded from the obligations of s.424A(1) of the Act by reason of s.424A(3)(a), s.424A(3)(b) and s.424A(3)(ba) of the Act.
To the extent that the Tribunal had regard to inconsistencies in the Applicant’s evidence, such inconsistencies are no more than the thought processes of the Tribunal. The Tribunal’s thought processes do not enliven the obligations of s.424A(1) of the Act (SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18]).
Accordingly, the further ground 2 is dismissed.
Conclusion
A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant at a hearing; and, had regard to all material provided in support. The Tribunal put to the Applicant matters of concern it had about his evidence and noted the Applicant’s responses. The Tribunal also put to the Applicant independent country information before it and invited the Applicant to comment upon it. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding eighty six (86) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: E. Maconachie
Date: 4 June 2009
Notes of corrections and amendments to ex tempore judgment delivered and published on 4 June 2009
Paragraph 7: the words “(“the First Tribunal”)” are deleted.
Paragraph 10: the words “(“the Second Tribunal”)” are deleted.
Paragraph 23: the words “The Applicant’s claim” are replaced with “The Applicant claimed” in the first sentence.
Paragraph 28: the word “expresses” is changed to “expressed” in the first sentence.
Paragraph 36: the word “did” is inserted between the words “Tribunal” and “not” in the third sentence.
Paragraph 51: the word “than” is changed to “that” in the third sentence.
Paragraph 57: the letter “d” is removed from the word “and” in the second sentence.
Paragraph 72: moved to paragraph 77.
Heading: “Interpretation at Tribunal Hearing” above paragraph 73 is removed.
Paragraph 75: (now paragraph 74) is amended to include at the end of the paragraph “In the circumstances, there is no evidence before this Court to support the Applicant’s unparticularised complaint about interpretation at the Tribunal hearing. A fair reading of the Tribunal’s decision record does not suggest that there was any complaint made by the Applicant to the Tribunal at any time during or after the hearing about the accuracy of the interpreting.”
Heading: “Tone of the Tribunal” above paragraph 76 is removed.
Paragraph 77: (now paragraph 76) the words “alerting the Applicant to the question of whether he wished to rely on” in the second sentence are deleted.
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