SZIDW v Minister for Immigration

[2007] FMCA 993

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIDW v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 993

MIGRATION – Refugee – Tribunal did not believe applicant’s claims – adverse credibility finding – applicant claimed Tribunal findings were illogical and unreasonable – Wednesbury unreasonableness – no s.424A error – “what if I am wrong?” test – no denial of procedural fairness – application dismissed.

Migration Act 1958, ss.424A, 424A(3)(b), 422B, 91R(3)

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1
SAAP v Minister for Immigration & Multicultural and Indigenous Affairs [2005] HCA 24
Minister for Immigration and Multicultural and Indigenous Affairs v Al Shamry [2001] 110 FCR 27
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2
Minister for Immigration & Multicultural Affairs v Rajalingam & Others [1999] 93 FCR 220
Minister for Immigration and Multicultural Affairs v Yusef (2001) 206 CLR 323
Minister for Immigration and Ethnic Affairs v Guo and Anor (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Abebe v The Commonwealth (1999) 197 CLR 510
Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat [2006] FCAFC 61
SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62
Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17
Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431
NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 328
VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872

Applicant: SZIDW

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 207 of 2006

Judgment of: Nicholls FM

Hearing date: 17 May 2007

Date of Last Submission: 9 May 2007

Delivered at: Sydney

Delivered on: 17 May 2007

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondents: Ms. R. Francois

Solicitors for the Respondents: Clayton Utz

ORDERS

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

2. The application is dismissed.

3. The applicant to pay the first respondent’s costs set in the amount of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 0207 of 2006

SZIDW

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore: Revised from Transcript)

1. I have before me an application filed in this Court on 20 January 2006 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) signed on 30 November 2005 and handed down on

   
   

   20 December 2005 to affirm 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 who arrived in Australia on 17 June 2005 and lodged an application for a protection visa with the first respondent’s Department on 30 June 2005. On 11 August 2005 a delegate of the respondent Minister refused to grant a protection visa to the applicant.  On 9 September 2005 the applicant applied to the Tribunal for review of this decision.

Applicant’s claims to protection

1. The applicant’s claims to protection are contained in his application for a protection visa (reproduced at Court Book (“CB”) 1 to CB 26), in a letter with an attachment dated 29 June 2006 from the applicant’s migration agent to the first respondent’s department (CB 30 to CB 31), and a letter from the applicant’s migration agent to the Tribunal (also with attachments) dated 23 November 2005, including, inter alia, the applicant’s application for review to the Tribunal (CB 49 to CB 66). The applicant’s claims were that he left the People’s Republic of China as an electrical engineer on a ship, and landed in Australia with the intention of seeking protection in Australia. The applicant claimed that due to his involvement in the Christian church, and his distribution of sensitive religious material and organisation of church events, he suffered severe religious persecution and as a result, had his home searched by police, all religious material confiscated and his family threatened by the police.

The Tribunal hearing

1. The applicant attended a hearing before the Tribunal on 29 November 2005, with the assistance of his “advisor”, and gave oral evidence (CB 111.2). The Tribunal’s account of what occurred at the hearing is reproduced in its decision record at CB 111.2 to CB 114.4.

2. The Tribunal’s “Findings and Reasons” are reproduced at CB 114.4 to CB 118.4. The Tribunal found:

   1)The applicant is a citizen of China and he is outside that country (CB 114.9).

   2)It had concerns about various aspects of the applicant’s case, including his credibility (CB 114.10).

   3)At the hearing before the Tribunal, the applicant changed his oral testimony in a manner which left the Tribunal with the impression he was tailoring his response to the Tribunal rather than offering genuine explanation and answers (CB 115.1).

   4)There were inconsistencies in the applicant’s evidence at the Tribunal hearing and some of his responses were vague despite being given the opportunity to clarify (CB 115.2).

   5)There were plausibility concerns (CB 115.3).

   6)It was not satisfied of the applicant’s claims during the hearing that he was nervous and his mind was “muddled”, having carefully observed the applicant (CB 115.3).

   7)The specific reasons for its concerns were:

   1)The applicant gave evidence that he never attended church in China but went to the home of a Minister, agreed there were “lawful” (registered) churches in China and that it was possible to openly practice Christianity, yet he had never done so (CB 115.3 to CB 115.4).

   2)It found the applicant’s explanations “unpersuasive”: including that his Minister told him that churches are run by the government (CB 115.4), that his Minister was persecuted by the Chinese authorities and did not believe in services held in Churches but thought it was good to worship at home, that going to Church in China is complicated and he would have needed an ID which his Minister could not issue (CB 115.5). Taken as a whole, the Tribunal was satisfied that the applicant’s lack of attendance raised real doubts as to the genuineness of his claimed Christianity (CB 115.5 to CB 115.6).

   3)It found the applicant’s responses about his circulation of church related material “vague” and noted that questions had to be repeated a number of times to get a more specific response from the applicant. Further, it found his claim that he did not know at the time that such material would have been banned in China was simply “incredulous” (CB 115.6 to CB 115.8).

   4)

   It noted the applicant provided the Tribunal with photographs and other material which he had not previously provided, and gave various explanations, namely that he was not experienced in applying for a protection visa, did not pay much attention to the documents, and did not know that he could rely upon letters from his wife. When it considered those explanations with the applicant’s evidence that he was advised that he did not have a good chance in obtaining the protection visa as he did not have sufficient evidence and that his wife had been given the documents as early as

   
   

   2 June 2005, the Tribunal found his explanations “unconvincing”. Further, it found that in consideration of the evidence as a whole, it was satisfied that the late provision of material supported the Tribunal’s concerns about the applicant’s credibility (CB 115.9 to CB 116.2).

   5)It was not convinced of the applicant’s explanation that he had not provided to the Tribunal the photographs he had previously provided to the Department because he had “made a mistake”. The Tribunal found the applicant clearly changed his evidence as a reactionary response to the Tribunal rather than it being a genuine mistake (CB 116.3 to CB 116.5).

   6)The Tribunal found the applicant’s evidence that he received the documents entitled “Public Notice for Assistance in Investigation” (Folio 9) and “List of seized Articles” (Folios 5-7) in late September 2005 “unpersuasive”, given the translator’s stamp on the document entitled “List of seized Articles” dated 3 September 2005, which indicated the document had been received prior to the claimed date. When the Tribunal put to the applicant that his claims could not be true, he said his “mind” was “muddled” despite his earlier confirmation he was certain about that date (CB 116.5 to CB 116.7).

   8)In light of the above conclusions and observations, the Tribunal was satisfied the applicant had fabricated his claims in order to support his application for a protection visa, which reflected poorly on his credibility (CB 116.8).

   9)Given the credibility concerns, and the evidence as a whole, the Tribunal rejected that the applicant was brought up a Christian, that his mother was discriminated against on the basis of her religion, that he was baptised in 1997 and that he was involved in any “Christian-related” activities in China or that he was a member of a family church (CB 116.7 to CB 116.8).

   10)Further and for those reasons, it did not accept that the applicant had circulated any “Christian-related” material in China or that he had organised any “Christian-related” activities in China. (CB 116.8 to CB 116.9).

   11)The Tribunal also did not accept the applicant’s claims that a “Father Wang” had been arrested, that the authorities had ever searched the applicant’s home or that they had confiscated any items relating to the circulation of religious material or that police recorded his telephone conversations (CB 116.10 to CB 117.1).

   12)In essence, it did not accept the applicant was of any interest to the Chinese authorities on the basis of any religious related activities (CB 117.1).

   13)The Tribunal considered and gave regard to the documents he had provided to it, but given the adverse credibility finding and in consideration of the evidence as a whole, did not accept the documents contained accurate and/or truthful information (CB 117.1 to CB 117.7).

   14)In considering the letter dated 24 August 2005 from St. Georges Hurstville Anglican Church, it accepted the applicant had been attending church since June 2005, that he is a Christian who has a genuine interest in Christianity, and that he demonstrated knowledge of certain facts relating to Christianity, and that he had been attending church and bible study meetings in Australia. But given his adverse credibility the Tribunal was not satisfied the applicant had done so in good faith, and was satisfied that he engaged in “Christian-related” activities in Australia for the purpose of enhancing his application for a protection visa (CB 117.8 to CB 117.10).

   On the basis of the evidence as a whole, the Tribunal did not accept that the applicant had suffered any Convention related harm and did not accept that there was a real chance of this happening to the applicant in the foreseeable future. On this basis, the Tribunal affirmed the decision not to grant a protection visa (CB 118.2 to CB 118.4).

The Applicant’s claims

1. The applicant’s application for review filed on 20 January 2006 states the following grounds of review:

   “1. The decision involves jurisdictional error in that:

   (i)  the Tribunal’s findings that “the late provision of material supports the Tribunal’s concerns about the applicant’s credibility”, and

   (ii)    The Tribunal’s rejections of the applicant’s other claims such as “the applicant was brought up as a Christian, or that his mother was discriminated against on the basis of her religion, or that he was baptised in 1997, …” (see page 11 of the decision letter)

   were unreasonable, illogical and not based upon findings or inferences of fact supported by logical grounds.  Such findings did not follow the rule that if the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true. (See MIMA v Rajalingam) [1999] 93 FCR 220).

   2. The Tribunal failed to afford the applicant procedural fairness by preventing him from submiting (sic)  further evidence and failing to invite him to comment on important information.

   Particulars:

   (i)  The applicant indicated during the hearing that he had additional information to provide.  The Tribunal made a decision without offering the applicant an opportunity to submit further evidence. The applicant was denied procedural fairness. The applicant believes that the additional information would be important in establishing his refugee status.

   (ii) The applicant has provided a letter dated 24 August 2005 from the St Georges Hurstville Angnican (sic: Anglican) Church stating that he has a genuinie (sic: genuine) interest in Christianity. The Tribunal failed to give this letter consideration by incorrectly applying Section 91R (3) of the Act. ”

Hearing before the Court

1. At the hearing before the Court, the applicant appeared in person with the assistance of an interpreter in the Mandarin language. Ms. R. Francois appeared for the first respondent. The applicant put to the Court:

   1)That during the Tribunal hearing, the Tribunal member interrupted him.

   2)That the Tribunal did not believe him.

   3)That at the end of the Tribunal hearing, he tried to provide telephone records to the Tribunal but that these were not accepted by the Tribunal and that the applicant found this to be illogical.

   4)That he did attend church in Australia, but in spite of this, the Tribunal member “denied everything”. I took this to be a claim that the Tribunal member had rejected his claims.

   5)That at the hearing before the Tribunal, he had difficulty in that he did not have a good memory, particularly for dates, and that it was unfair and illogical for the Tribunal to reject this explanation and to find that he had made mistakes with the dates. Further, that this was used as part of the adverse credibility finding.

2. The applicant also sought to tender a document to the Court which the Court ultimately understood to be written legal advice that had been provided to the applicant by the lawyer on the panel of the Court’s legal advice scheme, to whom the applicant had been referred. I note from the file, that the applicant had been referred to a barrister on the Court’s legal advice panel. The Court explained to the applicant the issue of privilege. The applicant did not press the tender of that document. However, the applicant did seek to put before the Court a document headed, “Draft Amended Application”, which the applicant asserted had been provided to him by the lawyer on the Court’s panel.

3. I note that the applicant attended at the first Court date for this matter on 14 February 2006 and was assisted at that time by an interpreter in the Mandarin language. On that date, the applicant signed short minutes of order, which subsequently became orders of the Court. Order 4 of the short minutes of order, relevantly provides, that the applicant was given the opportunity to file and serve any amended application by 28 April 2006. Further, Order 3 relevantly states the applicant was given the opportunity to file and serve any affidavit containing additional evidence relied upon, including a transcript of the Tribunal hearing, by 28 April 2006.

4. In relation to the document headed “Draft Amended Application”, notwithstanding the late presentation of this document, and notwithstanding that this had been drafted by Counsel on the applicant’s behalf, (thereby, the applicant would have had the opportunity to have ascertained how to have filed such a document with the Court’s registry at the relevant time), nonetheless I accepted the grounds stated in the document as an amendment by way of addition to the grounds already stated in the originating application. 

5. I also note that in relation to the “Draft Amended Application”, the grounds asserted relate to what the applicant claims occurred at the hearing. Specifically, the applicant claims that he was interrupted, that he felt intimidated, and that this caused reluctance on his part to continue with the answers in any real detail. If it is the case that such a ground was drafted with the assistance of Counsel, I make the following observations. Firstly, the applicant would have had the opportunity to have been advised by Counsel as to the need to support such assertions by way of evidence, and, in particular, for the need to provide a transcript of the Tribunal hearing to the Court. Plainly, this has not been done.

6. Whilst the Court must exercise some caution in drawing any conclusions as to what may or may not have transpired between the applicant and the panel adviser, I will refer this issue to the Registrar of this Court to remind the adviser of the need to provide comprehensive advice to such applicants rather than seeking to assist applicants with drafting amended applications, and if it is the case, then subsequently not providing the applicant with advice relating to the necessary evidentiary requirements to support such contentions. I say this with great caution, but will ask the Registrar to refer what has occurred in Court today to the relevant panel adviser.

7. In considering what is before the Court, the first aspect of stated ground 1 is that the Tribunal’s findings in at least two aspects were “unreasonable” and “illogical”. That is, the Tribunal was “unreasonable” and “illogical” in its finding that the late provision of material supported the adverse finding on credibility, and in its finding that it rejected his claims to have been brought up as a Christian and that his mother had been subject to discrimination because of her religion.

8. Ms. Francois submitted that this ground raises the issue of Wednesbury unreasonableness (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 (“Wednesbury”). (See paragraph 9 of the Minister’s written submissions filed on 9 May 2007). On what is before me, I agree that such a complaint is not made out. Even further, to the extent that illogicality or unreasonableness is otherwise available to the applicant as a ground for review (that is, apart from the test of unreasonableness established in Wednesbury), without going into the lines of authorities that define the parameters of such availability, I cannot see, on any plain reading of the Tribunal’s decision record, that such a ground can be sustained.

9. The applicant appeared before the Tribunal on 29 November 2005. He was assisted at that hearing by his adviser. The only account of what occurred at that hearing is contained in the Tribunal’s decision record (reproduced at CB 111 to CB 114). The applicant, despite opportunity, has not provided to the Court any transcript of the hearing. On any plain reading of the Tribunal’s unchallenged account, it is clear that the Tribunal formed an adverse view of the applicant’s evidence at the hearing. In this regard, plainly, its “Findings and Reasons” (at CB 114.3 to CB 119.6) in its decision record, mirror the events the Tribunal describes occurred at the hearing.

10. In relation to the issue of the late provision of material, the Tribunal found the applicant’s explanation for this (which he gave at the hearing) unconvincing and unpersuasive. Findings of fact, including findings on credibility, are for the decision maker par excellence (McHugh J. in Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 at [67]).

1. On what is before the Court now, it was open to the Tribunal to find that the applicant’s explanations were unconvincing, and, to use the Tribunal’s term, “reactionary” to the Tribunal’s questioning (CB 116.3 to CB 116.4). No illogical or unreasonable thinking, in my view, is revealed, let alone sufficient to establish Wednesbury unreasonableness, that is, that it was an abuse of the Tribunal’s statutory power.

2. The same can be said for the Tribunal’s finding in relation to the applicant being brought up as a Christian, and its finding in relation to the discrimination alleged to have been suffered by his mother. In this regard, the Tribunal, had already formed a clear view as to the applicant’s credibility based on the applicant’s presentation at the hearing:

   “In light of the above conclusions and observations the Tribunal is satisfied that the applicant has fabricated claims purported to support his application for a protection visa, reflecting poorly on his credibility” (CB 116.7).

3. Having arrived at that very clear position, it was open to the Tribunal to then reject the applicant’s claims of a Christian upbringing and of his mother’s claimed discrimination. In all, with particular reference to the matters asserted by the applicant himself in the application to the Court, no illogicality or unreasonableness is revealed.

4. I should note, that although it was not raised by the applicant in his application before the Court, in considering what the High Court said in SAAP v Minister for Immigration & Multicultural and Indigenous Affairs [2005] HCA 24, the majority of the Full Federal Court in Minister for Immigration and Multicultural and Indigenous Affairs v Al Shamry [2001] 110 FCR 27 and subsequently, the illumination provided by the Full Court in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 (“SZEEU”) in relation to s.424A of the Migration Act 1958 (“the Act”) and in relation to ‘information’, I cannot see that the Tribunal, in making its credibility finding, relied on information contained in the applicant’s protection visa application such that the absence of the documents subsequently presented could be said to be a comparison of two sets of information. Further, I cannot see that the Tribunal therefore drew upon some inconsistency between the two sets of information derived from the absence of these documents referred to in the protection visa application, with the subsequent situation of these having been provided later to the Tribunal.

5. In particular, I have in mind here what the Full Court said about this issue in SZEEU, particularly Allsop J at [221]. In my view, on a plain reading of the Tribunal’s decision record, it is evident that in forming its adverse view of the applicant’s credibility, the Tribunal relied upon what the applicant himself said at the hearing and based its conclusions and findings on the unconvincing and unpersuasive nature of his evidence at the hearing.

6. As such, the information, therefore, that the Tribunal relied upon was information that the applicant himself gave for the purposes of review. Such information falls within the exception contained in s.424A(3)(b) of the Act, from the requirements in s.424A(1) of the Act. Incidentally, I should also note that the documents themselves were also provided by the applicant to the Tribunal for the purposes of review and as such, also fall within the statutory exception in s.424A(3)(b) of the Act.

7. The first stated ground in the application also makes reference to Minister for Immigration & Multicultural Affairs v Rajalingam & Others [1999] 93 FCR 220 (“Rajalingam”). Ms. Francois submitted that this was probably with reference to the, “what if I am wrong?” test. I thank Ms. Francois for assisting the Court in directing the Court to what Sackville J. stated at [62] (see paragraph 11 of the Minister’s written submissions). In essence, Sackville J. stated that if a finding is not made with a sufficient level of confidence by the Tribunal, then the Tribunal may be obliged to consider the possibility that its finding is incorrect when it comes to its determination of whether an applicant has a well founded fear of persecution.

8. In this regard, in general, for the “what if I am wrong?” test, I am also guided by the High Court in Minister for Immigration and Ethnic Affairs v Guo and Anor (1997) 191 CLR 559, what was relevantly said in  Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shan Liang”) and to some extent Abebe v The Commonwealth (1999) 197 CLR 510. The critical issue for the purpose of today is, that even putting the observations in  Rajalingam aside (and I note the reference to what the High Court said in the matter of Minister for Immigration and Multicultural Affairs v Yusef (2001) 206 CLR 323), I agree with Ms. Francois that, on any plain reading of the Tribunal’s decision record, there was clearly no such doubt on the part of the Tribunal as to oblige the Tribunal to consider the alternative situation and to consider whether the alternative situation may be true.

9. In all therefore, I cannot see that the reference to Rajalingam can assist the applicant today.

10. The second ground of the applicant’s application, asserts a denial of procedural fairness in that the applicant claims that he was denied the opportunity to submit further evidence and that the Tribunal failed to invite him to comment on “important information”. I note that this is a case to which s.422B of the Act applies, which makes the provisions set out in Division 4, Part 7 of the Act the exhaustive statement of the natural justice hearing rule (Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat [2006] FCAFC 61 at [59] to [67] and SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [8]). I can only agree with Ms. Francois that on any basis of procedural fairness, whether under general law, or by virtue of what is exhaustively contained in Division 4 of Part 7 of the Act, that this complaint is not made out.

11. It is relevant to note that the applicant was assisted by a migration agent (CB 51). The applicant and his agent would have had notice of the process that the Tribunal was to adopt in reviewing the application (in this regard see the Tribunal’s letter to the adviser and the applicant at CB 67 to CB 68). The letter, amongst other things, advised the applicant of the opportunity to provide evidence to the Tribunal, and outlined the ways by which this opportunity could be exercised.

12. Further, the applicant was invited to a hearing, and attended the hearing with his adviser. The invitation to the hearing is reproduced at CB 69 and CB 70. Again, that letter makes reference to documents and evidence and the manner by which these could be put before the Tribunal. To emphasise the attendance of the applicant’s agent, I note CB 78, CB 94 and CB 111.2).

13. There is nothing before the Court now to show that the applicant was denied the opportunity to provide further evidence. Specifically, there is nothing before the Court to show that he or his adviser sought any such opportunity beyond the opportunities that were provided and exercised by the applicant and his adviser. I can only emphasise that despite opportunity, the applicant has provided no evidence, for example, by way of transcript of the hearing before the Tribunal, to challenge the Tribunal’s account of what occurred at the hearing. The Court, of course, can only proceed on the evidence before it. On that evidence, there is nothing to show that the applicant sought any such opportunity, let alone that he was denied such an opportunity to submit further evidence. Nor is there evidence that he was denied the opportunity at the hearing to provide evidence.

14. To the extent that the applicant may be asserting that this ground relates to the adverse conclusions of the Tribunal, that is, that he was denied the opportunity to comment on the Tribunal’s adverse conclusions, and particularly, denied the opportunity to provide even further evidence in light of those adverse inferences, I note that the Tribunal is not required in the context of Division 4, Part 7 of the Act, to put its adverse thought processes to the applicant for comment in writing. Those relevant parts of the statute, of course, require information to be put to the applicant for the purposes of comment in writing.

15. Nor was it the case, in terms of procedural fairness at general law, that the applicant would have been in any doubt at the hearing that the Tribunal had doubts about what he was saying. Again, the Tribunal’s unchallenged account before the Court reveals that the Tribunal put its doubts to the applicant and that he was given the opportunity to comment. Therefore, a complaint now that the applicant was “left in the dark” as to what would ultimately be the reasons for the Tribunal’s decision, are not made out.

16. In particular, I note from the Tribunal’s account of the hearing:

    1)At CB 111.9, the Tribunal put to the applicant that it found it odd that he never went to church in China.

    2)At CB 112.6, in relation to the applicant’s claim to have organised church related events, the Tribunal put to the applicant that he had given evidence earlier that he had never been to church in China.

    3)At CB 112.8 to CB 112.9, in relation to seven photographs provided to the Tribunal, the Tribunal asked the applicant to explain the reasons for not having provided the photographs to the Tribunal at an earlier time.

17. It would have been clear to the applicant during the course of questioning about these documents, that the Tribunal had concerns about the applicant’s explanations and aspects relating to those documents provided by the applicant. If there was any doubt, it is clear that the Tribunal put the matter beyond doubt when it put to the applicant that it had “doubts about his claims” (CB 113.4).  Further, the Tribunal put the applicant on notice that whilst it might be plausible that the applicant had engaged in Christian related activities in Australia, if the Tribunal were to reach a conclusion that he had engaged in those activities for the purpose of enhancing his application for a protection visa, the Tribunal would disregard those activities (CB 113.5 to CB 113.6).

18. Further, the Tribunal put to the applicant that his wife was not impartial, and the Tribunal may not give weight to her letters (CB 113.7 to CB 113.8). Even further, the Tribunal put to the applicant that it had doubts about the document “Decree of correction through labour” and may not give it any weight (CB 113.8). Had there been any remaining doubt, the matter was again put beyond doubt when the Tribunal put to the applicant that the Tribunal had concerns about the authenticity of some of the documents and/or the accuracy of the information they contained (CB 114.1).

19. In all, even if denial of procedural fairness at general law were available to the applicant, on what is before the Court now, such a complaint is not made out.

20. The second aspect of ground 2 of the application relates to the letter provided to the Tribunal by the applicant. That is, the letter from St Georges Hurstville Anglican Church. The applicant’s complaint is that the Tribunal incorrectly applied s.91R(3) of the Act. Again, I accept submissions made by Ms. Francois, that on what is before the Court, this particular of the ground is not made out. The Tribunal made a very clear finding that the applicant had engaged in Christian activities in Australia. Therefore, the Tribunal accepted on its face what was in the letter, that is, that the applicant had engaged in Christian activities in Australia, but also very clearly found that his activities were for the purpose of strengthening his refugee claim (CB 117.8)

21. On what is before the Court, this was open to the Tribunal on what was before it. That is, having formed a very clear adverse view of the credibility of the applicant's claims, notwithstanding that it accepted what was on the face of the letter from the Anglican Church, the Tribunal disregarded this conduct because, with reference to s.91R(3)(b) of the Act, it could not be satisfied that the applicant engaged in such conduct otherwise than for the purpose of strengthening his claims to be a refugee. As I said, the finding was open to the Tribunal and I cannot see that there was any incorrect application of s.91R(3) of the Act.

22. In relation to the ground asserted in the draft amended application, and bearing in mind what the applicant himself put to the Court in submissions today, the ground asserts, variously, matters that the applicant says occurred at the hearing before the Tribunal. The applicant asserts that he was prevented from presenting his claim in a fair and reasonable manner. In the statutory context, this is presumably with reference to s.425 of the Act, in that he was denied the real opportunity of a hearing as required pursuant to that section.

23. Even if the complaint is made in the context of denial of a fair hearing against principles at general law, the applicant's complaint that he was interrupted by the Tribunal, that the Tribunal spoke over him, that the Tribunal told the applicant that it would draw adverse inferences because the applicant took notes during the course of the hearing, that he felt intimidated by the Tribunal, and that he was therefore reluctant to continue with any answers in real detail, is simply unsupported by any evidence put before this Court.

24. The only evidence put before the Court as to what occurred at the hearing, is the Tribunal's own account as set out in its decision record. Clearly, there is nothing in that account to indicate or sustain the applicant's complaints in this regard.

25. The applicant also complained before the Court today that at the end of the hearing he was denied the opportunity to provide telephone records to the Tribunal.  No detail, particularity or explanation whatsoever was provided to the Court as to the relevance of any such telephone records to the Tribunal's consideration. In the absence of anything further, it is not for the Court to speculate now as to how any such telephone records could be relevant. Further, as Ms. Francois submitted, even beyond there being nothing to link telephone records with any relevance, there is simply no evidence before the Court that any such opportunity was sought by the applicant and subsequently denied.

26. The applicant also complained that, in effect, it was not open to the Tribunal to find that his mistakes in relation to certain dates at the hearing before the Tribunal went to his credibility, and that the Tribunal should have accepted that it was simply that he did not have a good memory.  This complaint, taken together with the complaint that the Tribunal did not believe him, simply can rise no higher than a request for this Court to engage in impermissible merits review (Wu Shan Liang).

27. As I have already stated, the Tribunal’s finding on credibility was open to it on what was before it. The Tribunal found that the inconsistency in dates was not due to “muddle” or mistake but was as a result of the applicant seeking to tailor his answers to the Tribunal’s questions (CB 115.1 to CB 115.2).  These findings were open to the Tribunal. I cannot see that any claims of illogicality, unreasonableness or unfairness are made out in this regard.

28. Ms. Francois also submitted that the applicant’s complaints may be said to assert bias or even the apprehension of bias on the part of the Tribunal. That is, the conduct of the Tribunal interrupting the applicant, speaking over the applicant, and the Tribunal telling the applicant that it would draw adverse inferences because of note-taking.  With all the relevant authorities in mind, particularly the High Court in Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17 and the Full Federal Court authorities in Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431, NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 328 and the Federal Court in VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872 and SZHMJ v Minister for Immigration and Citizenship & Another [2007] FCA 102 at [15] to [19], I cannot see, on the material before the Court, that there is any basis for this very serious allegation, if indeed, this is the allegation, on either of those grounds.

29. In all, therefore, in considering the grounds as put forward in the originating application, the ground in the document headed “Draft Amended Application” (which I took as an addition to the originating application), in considering what the applicant himself has said to the Court today, and in otherwise considering the material that has been put before the Court, I cannot discern jurisdictional error in the Tribunal's decision. As such, the application to the Court is dismissed

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  Dawnie Lam

Date: 3 July 2007