SZJOC v Minister for Immigration

[2009] FMCA 646

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJOC v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 646

MIGRATION – Review of decision of Refugee Review Tribunal – information fell within exceptions contained within s.424A – Tribunal’s analysis, thought processes and adverse views of evidence not “information” for the purposes of s.424A – Tribunal took into account applicant’s illiteracy – Tribunal “sufficiently indicated” dispositive issue – applicant given opportunity to respond – no evidence to support applicant’s claims – applicant seeking impermissible merits review – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.424A, 425

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 215 ALR 162
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123
NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547
ReMinister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
Abebe v Commonwealth (1999) 197 CLR 510 [1999] HCA 14; 162 ALR 1
SJSB v Minister to Immigration Multicultural and Indigenous Affairs [2004] FCAFC 225
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Attorney-General (NSW) v Quin (1990) 170 CLR 1
Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405
W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703; [2001] FCA 679
SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105

Applicant: SZJOC

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 18 of 2009

Judgment of: Nicholls FM

Hearing date: 7 July 2009

Date of Last Submission: 7 July 2009

Delivered at: Sydney

Delivered on: 13 July 2009

REPRESENTATION

Appearing for the Applicant: In person

Solicitors for the Applicant: Nil

Appearing for the Respondents: Ms A Nanson

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application made on 5 January 2009 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $4,800.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 18 of 2009

SZJOC

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made under the Migration Act 1958 (Cth) (“the Act”) on 5 January 2009 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 11 December 2008, which affirmed the decision of a delegate of the first respondent to refuse a protection visa to the applicant.

Background

1. The following background can be derived from the bundle of relevant documents (the Court Book – “CB”) which was put before the Court by the first respondent in this matter.

2. The applicant is a citizen of the People’s Republic of China (“China”) who arrived in Australia on 27 December 2005. She applied for a protection visa on 8 May 2006 (CB 1 to CB 28). Her claims were initially set out in a statutory declaration (CB 23 to CB 25).

3. The applicant claimed to have been a member of an underground church in China and, as a result, to have come to the attention of the authorities. She claimed to have been arrested and detained on three occasions, and to fear persecution if she were to return to China, because of her religious beliefs and practices.

4. The delegate found that, in light of relevant country information, and given that she was able to depart China legally, the applicant was not of adverse interest to the authorities (CB 38). He also found that while independent country information revealed that it was possible to face difficulties in China due to religion, the applicant appeared to be a “low key Christian” to whom the authorities have been “relevantly tolerant” (CB 42).

5. The applicant applied for review on 7 June 2006 (CB 45 to CB 48). She attended a hearing before the Tribunal on 18 August 2006. The Tribunal (as previously constituted) affirmed the delegate’s decision. The applicant subsequently sought judicial review in this Court. By orders made by consent, the matter was remitted to the Tribunal for reconsideration (CB 139).

6. The Tribunal, as subsequently constituted, again conducted a hearing with the applicant and affirmed the decision of the delegate (CB 211 to CB 220). The applicant again sought judicial review in this Court. She was unsuccessful, but was ultimately successful on appeal (CB 224). The matter was returned to the Tribunal for reconsideration yet again.

7. The applicant appeared at a hearing for the third time before the Tribunal on 9 December 2008 (CB 244) and gave evidence. The various accounts of the applicant’s evidence are set out in the Tribunal’s decision record.

8. Throughout the process of the application for a protection visa, and throughout the period of the review before the Tribunal (as differently constituted), the applicant was represented by the same registered migration agent who made a number of submissions and submitted documents on her behalf (CB 26, CB 46, CB 272).

The Tribunal

1. The Tribunal found that it was not satisfied as to the credibility of the applicant’s claims to have been a member of an illegal underground Christian church in China, or to have suffered any harm for such a reason (paragraph [65] at CB 267). Having asked about the applicant’s activities in the underground church in her village, the Tribunal found that the applicant’s responses at the (“third”) hearing before it were: “notably vague, uninformative and lacking in circumstantial detail”. The Tribunal noted that her answers were: “bare assertions” and were made without: “any supporting detail”. It found her: “at times to be evasive”, and formed the view that: “there was little in the information she provided to suggest that she was speaking from the first-hand experience of someone who was so committed to her religion over a period of some three years that she had risked her safety by attending nightly religious gatherings and had suffered three arrests” (paragraph [66] at CB 267).

2. The Tribunal found that its doubts were “reinforced” by inconsistencies and improbabilities in the applicant’s claim concerning her alleged underground church, and found her explanations for some anomalies to be implausible (paragraphs [67] and [68] at CB 268).

3. Further, the Tribunal found that the applicant’s responses at the hearing suggested that she had “little knowledge of Christianity”, but in light of the fact that it accepted that she was “illiterate”, it placed no weight on this issue (paragraph [69] at CB 268).

4. The Tribunal accepted, on the evidence before it, that the loss of the applicant’s business (“a duck farm”) was not as a result of her being punished for any involvement in any illegal underground church, but rather was as a result of the government taking a “necessary step” in the face of “a major threat to the health of the community” in that her ducks “had fallen victim to bird flu” (paragraph [70] at CB 268).

5. In all, the Tribunal was not satisfied that the applicant was ever a member of any illegal underground church in China, or that she had suffered harm for any such reason. It was unable to be satisfied, therefore, as to the credibility of her associated claim that her husband and son were drawn into the underground church because of her own involvement (paragraph [71] at CB 268).

6. The Tribunal also took into account various documents provided by the applicant in support of her claims and, in particular, noted certificates said to be from a priest in China, three receipts for fines paid in relation to her claims of having been held in detention, and a letter from her husband, which the Tribunal accepted had been written by him, but found that: “its tone is expository in part and suggests that it has been written to support her claims”.

7. In relation to the applicant’s claims to have attended a Christian church in Australia, the Tribunal gave the applicant the benefit of the doubt, finding that she had attended a church on a number of occasions, on the basis of supporting material that she had provided, but it was unable to be satisfied that this conduct was done other than for the purpose of strengthening her claim to be a refugee and, consistent with s.91R(3) of the Act, disregarded this conduct.

8. In all, therefore, the Tribunal was not satisfied that the applicant was a person to whom Australia owed protection obligations, and it therefore affirmed the delegate’s decision.

Application to the Court

1. The application to the Court puts forward three grounds with particulars:

   “1. The Tribunal has failed to comply with his [sic – its] obligations under Section 424A(1) of the Act.

   …

   2. The Tribunal has failed to comply with his [sic] obligations under Section 425 of the Act.

   …

   3. The Tribunal’s finding is completely incorrect; and the Tribunal’s finding is made based on completely incorrect evidences or incorrect information.

   …”

Hearing before the Court

1. At the hearing before the Court the applicant appeared in person. She was assisted by an interpreter in the Fuqing language. Ms A Nanson appeared for the first respondent. I note that, despite opportunity, no written submissions have been received from the applicant, nor has any transcript of the Tribunal hearing been put before the Court. The Court has the Minister’s Response and written submissions before it.

2. At the hearing the applicant was unable to assist further with anything of substance to add to, or explain, what had been put in the application to the Court. She confirmed that the application had been drafted by a “friend”.

3. Her complaints were that:

   1)The Tribunal decision was unfair.

   2)She had not been given an opportunity to “comment in writing”.

   3)The Tribunal did not take any of her documents into consideration.

   4)What she had told the Tribunal at the hearing was “all true”.

   5)She was illiterate and that it was therefore “difficult” for her.

Consideration

Ground one

1. In ground one, the applicant complains that the Tribunal failed to comply with its obligations under s.424A(1) of the Act. The applicant makes reference to certain parts of the Tribunal’s analysis and “submits” that the Tribunal considered this information as the reason, or part of the reason, for affirming the decision under review and that, notwithstanding that it may have discussed this information with her at the hearing, it should have put this information to her in writing. This was because it was “impossible” for her to understand the “pieces of information” and their relevance to the Tribunal’s decision, and to accordingly respond to the information without being provided with the particulars in writing, given her “poor education and background” and given that she was “illiterate”.

2. The “information” that the applicant claims should have been put to her is as follows:

   1)The particulars to the application at 1.b (which is a quote from paragraph [67] at CB 267 of the Tribunal’s decision record):

   “… My doubts on this issue are reinforced by a number of inconsistencies and improbabilities in the Applicant’s claims concerning her alleged underground church. She claimed at the hearing that it was teamed [sic – named] the True Jesus Church. As put to her, this was the first time she has raised such a claim. I am not satisfied that, if this had been the name of her church, she would have failed to mention it previously.”

   2)The particulars to the application at 1.b (which is a quote from the Tribunal’s decision record paragraph [72] at CB 268):

   “As put to her at the hearing, there are features of some of these documents which raise doubts as to their authenticity. The certificate said to be from her priest in China provides a date for the formation of the church which is clearly inconsistent with her own claims of involvement. The locations and, in one case, the date of the receipts for her alleged fines are inconsistent with her previous claims to the Tribunal about where and when these were paid. Although I accept that the letter said to be from her husband may well have been written by him, its tone is expository in part and suggests that it has been written to support her claims. I note also the independent country information which indicates that fraudulent documents, including documents said to have been issued by the PSB, are easily and commonly available in China ...”

   3)The particulars to the application at 1.b (which is a quote from the Tribunal’s decision record at paragraph  [74] at CB 269):

   “ … I have considerable doubt as to the Applicant’s ability to participate in services at this church given that, according to the pamphlets, they are conducted in Mandarin and Cantonese (or in Mandarin only, as the Applicant stated at the hearing) neither of which languages she speaks. She claims to understand a little Mandarin but also stated that she was unable to understand questions asked of her in Mandarin at the airport when she was leaving China. She also claims that other people at the services would tell her what was being said. I have further doubts about the extent of her involvement there given her inability to say whether or not ‘Priest Chu’ (which I accept could be a version of the name of Reverend Dominic Ku) was even ethnically Chinese ...”

3. The current version of s.424A, which became operational on 29 June 2007 (Migration Amendment (Review Provisions) Act 2007 (Cth)), does not apply to this case. The appropriate version as at the date of application – 8 May 2006 – is different. But the differences do not affect the circumstances of this case, nor the complaint made.

4. Section 424A(1) required that the Tribunal give to the applicant (in writing – see SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 215 ALR 162) for comment:

   “… particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.”

5. I note also, relevantly, the provisions of s.424A(3):

   “This section does not apply to information:

   (a)     that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

   (b)     that the applicant gave for the purpose of the application; or

   (c) that is non disclosable information.”

6. Those parts of the Tribunal’s decision record quoted in the application and underlined refer to:

   1)What the applicant was reported as having told the Tribunal at the hearing concerning the name of her church (see also [37] at CB 62 of the Tribunal’s decision record).

   2)A certificate purportedly from her priest in China (see also CB 61) provided by the applicant at the first hearing before the previously constituted Tribunal on 28 August 2006 (see CB 129.3).

   3)Pamphlets from the applicant’s church in Australia (see also CB 157 to CB 209), provided to the Tribunal by the applicant on 17 May 2007 at the hearing conducted by the “second” constituted Tribunal (see CB 215.3).

7. First, what the applicant told the Tribunal at the hearing, and the information in documents submitted to the Tribunal by the applicant for the purposes of the review, all fall within the exception contained in s.424A(3)(b) to the obligation set out in s.424A(1).

8. Second, with reference to the remainder of the quotes, the Tribunal’s analysis, its thought processes, and its adverse views of the applicant’s evidence is not “information” for the purposes of s.424A(1) (see SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18] and the reference there to VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123 per Stone and Finn JJ).

9. The applicant complains in her application and before the Court that she is “illiterate” and that it was difficult for her before the Tribunal. The application “argues” that, given her illiteracy, the Tribunal should have put the matters set out in ground one to her in writing.

10. First, for the reasons already set out above, the Tribunal was not compelled by s.424A to have done so.

11. Second, the application also “argues” that the Tribunal should have realised that it was “definitely impossible” for the applicant “to be ensured to well understand that these pieces of information would become the reason or part of the reason for” affirming the delegate’s decision.

12. Even though it was not compelled to do so, it was still open to the Tribunal to have written to the applicant. I understand the applicant’s complaint to be that if it had done so, it may have overcome the disadvantage she felt because of her “illiteracy”.

13. Putting to one side that there was no breach of the relevant part of the natural justice hearing rule as it applied in this case, I cannot see, in any event, that the Tribunal acted unfairly in a more general sense in the circumstances of this case.

14. The applicant has not put any evidence before the Court to challenge the Tribunal’s account of what occurred at the hearing. Any plain reading of the Tribunal’s account ([30] at CB 260 to [59] at CB 266) shows that the Tribunal went to some effort to explain what it was doing and what it was concerned about.

15. For example, even an illiterate person would not have difficulty in understanding the importance of her being able to explain and demonstrate her Christian beliefs in an application where she was claiming to be a committed, practising Christian, who had suffered harm as a result of her Christianity in China.

16. Paragraphs [32] to [34] (CB 261) are revealing in this regard. The Tribunal attempted to obtain from the applicant her account as to how she first came into contact with Christianity, and the development of her practice, by asking questions to prompt the applicant to give her account. The Tribunal did seek to explain to the applicant the reasons for its questions:

    “33 I explained to the Applicant that I was trying to understand how her Christian belief had developed after Sister Zhou told her about Christianity in 2002.”

17. The applicant does not claim to have some mental incapacity. Being illiterate would not have prevented her from understanding what the Tribunal was seeking from her.

18. Further, the applicant was represented by a migration agent throughout the process of the review. There is nothing in the material before the Court to show that the agent raised any such problem with the Tribunal on her behalf.

19. In any event, the Tribunal recognised the applicant’s state of illiteracy and took it into account in its findings in relation to her knowledge of Christianity ([69] at CB 268):

    “The Applicant’s responses at the hearing suggested little knowledge of Christianity. She provided brief information about one of the miracles performed by Jesus, the substance of John 3:16 and the facts of Christ’s crucifixion, resurrection and assumption but I gained a clear impression from this that she had rehearsed these answers. However, I accept that she is illiterate, having had only five years of formal education, and I have placed no weight on this issue.”

20. The applicant’s ground does not succeed.

Ground two

1. In ground two the applicant complains that the Tribunal failed to comply with its obligations pursuant to s.425 of the Act. The applicant complains that while she attended the hearing before the Tribunal, and while she “might” have been given a chance to give her oral evidence, this was not a “genuine opportunity”.

1. The applicant’s complaint appears to be that the Tribunal “never ensured” that she understood the issues arising from the review, and secondly, that the Tribunal made her “think” that her explanation had been understood in the sense that it had been accepted, and that she did not need to make any further comment. The applicant appears aggrieved of the fact that when the Tribunal made its decision it did not accept her explanations.

2. To the extent that the applicant’s complaint relies on what she said occurred at the hearing (that is, the hearing before the Tribunal member who made the current decision), then I note that the applicant has not provided a transcript or any other evidence of what she says occurred (or more precisely: what did not occur) at the hearing to support the claims.

3. The only account available to the Court, and to which the Court can have regard, is the Tribunal’s own account, which has been properly put before the Court, both by the applicant herself by way of her affidavit which accompanied her application to the Court, and in the bundle of relevant documents filed by the Minister. It is, of course, not open to this Court to draw inferences as to what may have occurred at the hearing without evidence before it on which the inferences may be based (NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241).

4. The Tribunal’s procedural fairness obligations pursuant to s.425 were enunciated by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152. The obligation of the Tribunal in this regard is to “sufficiently indicate” to the applicant those issues which are determinative and dispositive of the review, which are not issues which could be said to arise as a result of the delegate’s decision.

5. I cannot see that the applicant’s complaint can succeed in light of the Tribunal’s unchallenged account of what occurred at the hearing. The issue determinative of this review was, clearly, the credibility of the applicant’s claims to have been a member of an illegal underground church in China, and to have suffered harm as a result. A plain reading of the Tribunal’s account of what occurred at the hearing reveals that the Tribunal squarely put (let alone “sufficiently indicated”) its concerns to the applicant about this issue, and about the factual basis of her account, evidence, and documentation in support of this issue. The Tribunal told the applicant that it was “trying to understand” the development of her Christian belief (at paragraph [33]), and its difficulties with her explanations (see for example paragraphs [35], [37], [40], [43]). The Tribunal, in particular, said: “I explained to the Applicant that I had some doubts as to whether she had been a Christian in China …” (at paragraph [48] at CB 264).

6. On what is before the Court the applicant was given the opportunity to understand the Tribunal’s concerns, and she was given the opportunity to respond. In the circumstances, I agree with the Minister’s submissions that it appears that the applicant’s complaint is a disagreement with the Tribunal’s findings. This, on its own, of course, does not reveal jurisdictional error.

7. Further, as referred to above, it is clear that the Tribunal was plainly alert to the applicant’s limited education, and that it made allowances for this. For example, notwithstanding the applicant’s responses at the hearing, which suggested that she had little knowledge of Christianity, the Tribunal said: “However, I accept that she is illiterate, having had only five years of formal education, and I have placed no weight on this issue” (at paragraph [69] at CB 268).

8. In relation to the applicant’s complaint that the Tribunal never accepted her explanation, the short answer to the applicant is: it does not have to. The Tribunal’s task, of course, is to properly evaluate the claims and evidence put before it, and only where it reaches the requisite level of satisfaction that the applicant meets the definition of “refugee” as set out in Article 1A(2) of the UN Refugees Convention must the visa be granted.

9. In the current case, the Tribunal, for reasons that it gave, made findings of fact, including findings as to the applicant’s credibility, which were plainly open to it on the material before it. (Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547, ReMinister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407). I cannot see error in this regard.

10. As to the applicant’s complaint that she was not given a “genuine opportunity” to present her evidence and submissions to Tribunal, such a complaint is not made out on what is before the Court.

11. As Ms Nanson submitted, there is no evidence before the Court that the applicant had any difficulty in putting her case to the Tribunal. As already referred to above, the applicant was represented by a migration agent throughout the process of the review. No complaint was made by the applicant or the agent as to any difficulty.

12. Further, there is nothing before the Court to show that there was any problem as to the level of interpretation provided at the hearing. An interpreter in the “Fuqingese” language was provided, who is accredited to “NAATI Level 3” (CB 244). I cannot see any basis on which this complaint can succeed.

Ground three

1. The applicant’s third ground claims that the Tribunal’s “finding is completely incorrect” and was made on “completely incorrect evidence or incorrect information.” 

2. The applicant’s particulars assert, first, that the applicant never claimed at the hearing that her church was “teamed to the True Jesus Church”, and asserts a mistake on the part of the interpreter.

3. This appears to be a reference to that part of the Tribunal’s decision to record set out at [37] (at CB 262):

   “I asked the Applicant if her church in China had a name. She said it was called the True Jesus Church. I put to her that she had never mentioned this name before. She said she was illiterate. Later in the hearing I noted that the certificate from the priest Zhang Fu Wang gives the name of the church as ‘The Chinese Underground Christian Church Gang Tou Branch.’ She said this was an alternative name for the True Jesus Church. I noted that she had never previously referred to it as the True Jesus Church. She repeated that this was an alternative name for the underground church, and that this was the same thing in Chinese. I put to her that the term ‘underground church’ seemed a more generic title which could cover many different kinds of church. She said that in her local language these things were mixed together.”

4. The short answer to the applicant’s complaint is that there is no evidence before the Court to support this claim. This is despite her being given the opportunity to do so. The applicant was referred to a lawyer on the panel of the Court’s Legal Advice Scheme, and had the assistance of a friend who was, at least, able to present arguments derived from certain parts of the Act. Without evidence, this complaint cannot succeed.

5. As to the applicant’s claim that she did not say that her church was named the “True Jesus Church” or, if the word “teamed” is taken to imply that it was connected to the “True Jesus Church”, then again, no evidence has been presented to the Court to support the applicant’s claim. Further, on the evidence that is before the Court (that is, what is set out at paragraph [37] of the Tribunal’s decision record) the reference to the “True Jesus Church” does not appear to be some passing reference such as to suggest that some mistake, or some slip, has occurred on the part of the applicant. The Tribunal’s account (noting again that it remains unchallenged before the Court) shows that there were a series of questions put by the Tribunal on this matter such that the applicant’s complaint now appears to be some attempt to challenge the Tribunal’s findings arising out of her evidence (see, in particular, paragraph [67] at CB 267).

6. In all, without any evidence, this particular does not succeed.

7. In the second particular the applicant challenges, or appears to challenge, the Tribunal’s finding that the contents of the certificate (which I understood to be a reference to the certificate provided from her priest in China regarding her religious practice – see CB 61) was inconsistent with her “previous claims to the Tribunal”. This appears to be a reference to the Tribunal’s finding at paragraph [72]:

   “The certificate said to be from her priest in China provides a date for the formation of a church which is clearly inconsistent with her own claims of involvement.”

8. To the extent that the applicant now says that the finding was said to be inconsistent with “my previous claims to the Tribunal” it is clear from the Tribunal’s account of what occurred at the hearing that the inconsistency of the contents was found to be with what the applicant herself told the Tribunal at the hearing before it, not some inconsistency with what she had said at an earlier hearing. The Tribunal’s unchallenged account of what occurred at the hearing plainly shows that the Tribunal was seeking to provide an opportunity to the applicant to explain the development of her Christian beliefs and when she first came to accept Christianity (see, in particular, paragraph [32] at CB 261).

9. In her evidence, the applicant stated that she first came into contact with Christianity in 2002 and that the Church to which she belonged was founded in 2001 (see paragraph [38]). At paragraph [39] the record of the hearing reveals that the Tribunal squarely put to the applicant that what was written on the face of the document was inconsistent with some of her evidence given at the hearing before it.

10. In these circumstances, it is difficult to understand the applicant’s complaint that the Tribunal failed to provide any evidence showing that the contents of the letter were inconsistent with her claims. Plainly, the Tribunal did not compare the contents of the letter with the applicant’s “previous claims”. The comparison was made with the evidence that she gave to the Tribunal at the hearing. Clearly, the Tribunal did have evidence before it – the contents of the document that she provided and her own evidence. In the absence of any transcript to challenge the Tribunal’s account of what occurred, the applicant’s complaint is plainly not made out.

11. The third particular repeats the applicant’s evidence given to the Tribunal that she was able to participate in religious practice at a church in Australia because, even though the services are conducted in Mandarin and Cantonese (languages which the applicant does not speak), there were many people in the congregation who spoke Fuqing, and that the applicant was therefore able to participate.

12. The Tribunal’s account of the relevant exchange at the hearing is set out paragraph [47] at CB 264. The applicant’s complaint that the Tribunal’s finding in this regard is “incorrect” is misconceived. While the Tribunal expressed “considerable doubt” as to the applicant’s ability to participate in the services of this church (see paragraph [74] at CB 269), ultimately, the Tribunal was “prepared to give her the benefit of the doubt by accepting that she has attended the Padstow church on a number of occasions.” The applicant’s complaint is, in context, misconceived.

13. I agree with submissions by the Minister that the applicant’s complaints in ground three are not made out. It is for the applicant to satisfy the Tribunal that she meets the criteria set out in Article 1A(2) of the UN Refugees Convention; that is, that she meets the definition of “refugee” (Abebe v Commonwealth (1999) 197 CLR 510 [1999] HCA 14; 162 ALR 1, SJSB v Minister to Immigration Multicultural and Indigenous Affairs [2004] FCAFC 225).

14. The applicant’s challenge to the factual findings of the Tribunal in considering whether the applicant met this definition or not, does not reveal jurisdictional error on its part. The Tribunal plainly made adverse credibility findings in relation to the applicant’s claims and evidence. Such findings were open to it on the material that was before it (Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547). As the Minister submits, the merits of a case, including the weight to be given to an applicant’s documents provided in support and the credibility of the claims, are for the Tribunal alone to determine (Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259).

15. I cannot see that this ground succeeds.

Applicant’s Complaints

1. Before the Court the applicant also complained that the Tribunal’s decision was unfair.

2. The applicant does not particularise why she says the Tribunal’s decision was unfair. If it is that she is simply aggrieved by the outcome then this amounts to a request for impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). This Court does not have jurisdiction to determine whether the Tribunal’s decision was “fair”. The Tribunal is required to provide fairness in the procedures that it employs and applies (see further below). But as to the outcome, it is as the High Court said in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [25] that procedural fairness requires a “fair hearing not a fair outcome” (with reference also to Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35 to 36 per Brennan J).

3. On what is before the Court the Tribunal’s findings were findings of fact within jurisdiction. These were findings of fact “par excellence” (Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405 at [67], per McHugh J). The Tribunal gave cogent reasons for its findings which were open to it on what was before it (Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547 at 558 to 559, W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703; [2001] FCA 679 at [64] to [69] per Tamberlin and Nicholson JJ).

4. She also complained that the Tribunal did not take all of her documents into account. This complaint fails at a factual level. The Tribunal’s decision record reveals that it did take into account “the various documents provided by” the applicant in support of her claims ([72] at CB 268). While it noted difficulties with some of the documents (the certificate said to be from the priest in China and receipts for fines were found to contain information inconsistent with her own evidence), other documents were accepted (the letter from her husband). Ultimately, the Tribunal found ([72] at CB 268 to CB 269):

   “Having considered all these documents I am not satisfied that they outweigh my concerns about the credibility of the Applicant’s claims as expressed at the hearing.”

5. As to documents provided in support of her claim to have participated in Church services in Australia, it was “on the basis of this supporting material she has provided [that the Tribunal was] prepared to give her the benefit of the doubt by accepting that she [had] attended the Padstow church on a number of occasions” ([74] at CB 269).

Other Considerations

1. The material before the Court reveals that the applicant was given the opportunity to put forward her claims at a “third” hearing before the Tribunal. This is not a case where a subsequently reconstituted Tribunal compared evidence given to a previously constituted Tribunal. Any plain reading of the Tribunal’s decision record, and its analysis, reveals that it was the inconsistent, implausible, vague, and general nature of the applicant’s evidence given at the “third” hearing, the analysis of this evidence, and the comparison of this evidence with documents that she had provided in support of her claims, which led the Tribunal to make its adverse credibility finding – a finding which, as I have already said, was open to it on the material before it.

2. The Tribunal found that the applicant was not a member of an illegal underground church in China, or that she had ever suffered harm for such a reason and, separately, because of the lack of satisfaction as to the credibility of these claims, it was not satisfied that her attendance at a Christian Church in Australia was done other than for the purpose of strengthening her claims to be a refugee. The Tribunal, therefore, properly disregarded such conduct pursuant to s.91R(3) of the Act (SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105).

Conclusion

1. For the applicant to succeed before this Court, the Court would need to find jurisdictional error (at least) in the Tribunal’s decision. I cannot discern such error as it is said to arise from the applicant’s grounds, complaints, or otherwise. This application, therefore, is dismissed.

I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  C Darcy

Date:  13 July 2009