SZKJV v Minister for Immigration

Case •

[2010] FMCA 558

•

3 August 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKJV v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 558
MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal decision contrary to the principles in NAIS and Others v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 228 CLR 470; [2005] HCA 77.

Migration Act 1958 (Cth), ss.36, 91R, 414A, 417, 418, 422A, 424, 424A

Migration Regulations 1994 (Cth), reg.4.30
Blencoe v British Columbia (Human Rights Commission) (2000) 190 DLR (4th) 513; [2000] 2 SCR 307
Gaskell v Denkas Building Services Pty Ltd [2008] NSWCA 35
Minister for Immigration and Citizenship v SZJGV and Another; Minister for Immigration and Citizenship v SZJXOand Another (2009) 238 CLR 642; [2009] HCA 40
MZXRE v Minister for Immigration and Citizenship (2009) 176 FCR 552; [2009] FCAFC 82
NAIS and Others v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 228 CLR 470; [2005] HCA 77
SB (Sufficiency of Protection – Mafia ) Albania UKIAT [2003] 00028
SZIIF v Minister for Immigration and Citizenship (2008) 102 ALD 366; [2008] FCA 913
SZJGV and Others v Minister for Immigration and Citizenship and Another (2008) 170 FCR 515; [2008] FCAFC 105
SZKJV v Minister for Immigration & Anor [2008] FMCA 26
Applicant: SZKJV
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 2923 of 2009
Judgment of: Barnes FM
Hearing date: 7 June 2010
Delivered at: Sydney
Delivered on: 3 August 2010

REPRESENTATION

Counsel for the Applicant: Mr S Prince
(appearing with Mr D Mahendra)
Counsel for the Respondents: Ms R Francois
Solicitors for the Respondents: Clayton Utz

ORDERS

  1. The application be dismissed. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2923 of 2009

SZKJV

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

  1. This is an application for review of a decision of the Refugee Review Tribunal dated 27 October 2009 affirming a decision of the delegate of the first respondent not to grant the applicant a protection visa. 

  2. The applicant, a citizen of the People’s Republic of China, arrived in Australia on 5 December 2006.  On 22 December 2006 she lodged an application for a protection visa.  In a statutory declaration accompanying her application the applicant claimed to fear persecution from the authorities in China on the basis of her religious belief as a practising Christian.  She claimed that she was introduced to Christianity by a person she met at work (Ms Y), that she regularly attended Sunday meetings and that she was baptised in China in 2005. 

  3. The applicant claimed that in July 2006 some members of her church group who had been arrested gave the authorities the names of other members of the group and that she was then taken into police custody for two days.  She claimed that she was tortured and mistreated but “released because [the police] did not have enough evidence to charge [her].” 

  4. The applicant claimed that she went to Singapore where she stayed with her godmother between August 2006 and October 2006.  After she returned to China she continued to meet with friends from the church group, although she claimed that soon after her return police had visited her home and given her a letter stating that she would be in “trouble if [she] continued to be involved with [her] church cult activities”.  She claimed that she “took the threat seriously” and “started looking at how to get away from China”. 

  5. The applicant also addressed the circumstances in which she had been located by the New South Wales police in Sydney. 

  6. The applicant claimed that if she returned to China and continued to practice Christianity she would come to the attention of the police as a person with a police record who practises Christianity, that she would be taken into policy custody and tortured and that the authorities would be unable to protect her. 

  7. In her original handwritten application the applicant stated that she would provide a translation of a medical report and a letter from “Chinese police asking me to come for questioning”.  Subsequently the applicant’s solicitor lodged similar (but not identical) typewritten protection visa application forms for the applicant in which it was stated that the applicant would provide a medical report stating that she had been burnt with hot water in July 2006 while being interrogated at the police station and a translation of that report, but that she could not provide the letter from the police “threatening [her] if [she] continued to practice Christianity”.  No explanation was provided as to why this document could not be provided. 

  8. The applicant subsequently provided a copy of a medical certificate referring to treatment for hot water burns and belly pains and a letter clarifying that she had not met Ms Y at work, but rather when she was on holiday from college. 

  9. The application was refused by a delegate of the first respondent who considered that the “lack of detail in the application [did] not support the credibility” or “bona fides of the applicant’s claim to need protection”. 

The Tribunal Review

  1. On 19 January 2007 the applicant sought review by the Tribunal.  Her solicitors provided the Tribunal with a translation of a document described as a “Summons” from the local Public Security Bureau (PSB) dated 23 October 2006.  It was addressed to the applicant and stated that for her “involvement in a heresy organisation and illegal gatherings” in accordance with the Criminal Code she was required to attend the PSB for “interrogations at 9:00 am on 23rd October 2006 (sic)”. 

  2. The applicant provided a further statement in which she explained how she became acquainted with Ms Y who had introduced her to Christianity.  She elaborated on her claims about detention and mistreatment in July 2006 and claimed that her “aunt who was in Singapore knew about the incident and was very nervous about [her]” and asked her to visit Singapore “for a change”.  She claimed that she stayed in Singapore until her visa expired and that on her return the Chinese police visited her at her home on 22 October 2006 (sic) and “handed [her] a summons, demanding that [she] attend the police station for a second investigation.”  She claimed the police had questioned her about why she had been in Singapore and threatened her that if she continued to maintain her illegal behaviour they would officially arrest and prosecute her.  Thereafter she and her friend Ms Y began to plan their escape from China.  She came to Australia with Ms Y in December 2006. 

  3. The applicant’s solicitor provided the Tribunal with a copy of a letter dated 12 January 2007 from an address in Singapore from a person the solicitor described as the applicant’s “godmother/stepmother” that was addressed to the applicant as her “dearest daughter” and signed “Your stepmother”, as well as a supporting letter from a visitor to the Villawood Detention Centre. 

  4. The applicant attended a hearing conducted by the Tribunal as originally constituted on 13 February 2007. On 14 February 2007 the Tribunal wrote to the applicant under s.424A of the Migration Act 1958 (Cth) (the Act) raising a number of issues about her evidence including apparent inconsistencies and putting to her country information about forgery of official documents in China.

  5. The applicant’s solicitor replied to the s.424A letter and provided the Tribunal with a copy of a certificate of baptism certifying that the applicant had been baptised in China in April 2005. Also provided was a chronology of the applicant’s activities in association with the church in China, a certificate of employment confirming that she had worked in a particular company from August 2003 to December 2006 and the applicant’s comments on the information put by the Tribunal. The chronology stated that the applicant had first engaged in evangelising activities in May 2003; that on 28 October 2006 she and two others had distributed pamphlets and evangelised in Guangzhou; and that she last did voluntary work at an Aged Care Centre in Guangzhou on 3 December 2006.

  6. On 22 February 2007 the Tribunal affirmed the decision of the delegate not to grant the applicant a protection visa.  The applicant sought review of that Tribunal decision in this court.  Her application was dismissed (see SZKJV v Minister for Immigration & Anor [2008] FMCA 26). However orders were made by consent by the Federal Court of Australia on 27 August 2008, remitting the application to the Tribunal for redetermination on the basis of a concession by the first respondent that the Tribunal had committed an error of the type identified by the Full Court of the Federal Court in SZJGV and Others v Minister for Immigration and Citizenship and Another (2008) 170 FCR 515; [2008] FCAFC 105 (although now see Minister for Immigration and Citizenship v SZJGV and Another; Minister for Immigration and Citizenship v SZJXOand Another (2009) 238 CLR 642; [2009] HCA 40).

  7. In the meantime, on 14 July 2008 the applicant sought that the Minister exercise his discretion pursuant to s.417 of the Act and grant her a protection visa. In support of that application she provided a further statutory declaration in relation to her claims and addressed the fact that her friend Ms Y had not been called to give evidence before the first Tribunal, which she attributed to the absence of legal representation at the time of the hearing. She elaborated on her claims about Christianity and her mistreatment in China, and that she had been baptised in Australia. She provided a statutory declaration sworn by Ms Y as well as a copy of a Tribunal decision finding that Ms Y was a person to whom Australia had protection obligations under the Refugees Convention.

  8. After the matter was remitted to the Tribunal the applicant was invited to attend a hearing on 18 November 2008.  Further supporting documentation was provided, including copies of the information that had been provided to the Minister, a further statutory declaration from the applicant, supporting letters from pastors and parishioners at the Hillsong Church the applicant claimed to attend in Sydney, supporting letters from persons in China including the applicant’s mother, detailed written submissions from the applicant’s solicitors and further independent information. 

  9. The hearing of 18 November 2008 was adjourned part heard until 16 December 2008.  The applicant indicated that she would attend the adjourned hearing and asked that the Tribunal take evidence from Ms Y and from a pastor in Australia.  Further submissions and copies of statutory declarations provided to the Minister were provided to the Tribunal. 

  10. On 15 December 2008 the Tribunal advised the applicant’s solicitor that the Presiding Member was unable to conduct the hearing on 16 December 2008 and that as soon as a new hearing date was available the Tribunal would write again.  The applicant’s solicitor provided a telephone contact number to ensure that any correspondence from the Tribunal would be received over the Christmas break.  On 23 December 2008 the Tribunal advised that the adjourned hearing would be on 21 January 2009.  On 24 December 2008 the applicant responded that she would attend.  On 12 January 2009 the solicitors for the applicant requested an adjournment to a date after 30 January 2009 as both solicitors in the office were required by the Department to attend the Christmas Island Detention Centre and would be unavailable to attend a hearing until after that date.  On 13 January 2009 the Tribunal advised that the Presiding Member had agreed to this request and that the adjourned hearing had been rescheduled to 26 February 2009. 

  11. The applicant attended the adjourned hearing on 26 February 2009.  After the hearing, her solicitor wrote to the Tribunal addressing a number of matters raised at the hearing. 

  12. On 28 September 2009 the applicant’s solicitors wrote to the Tribunal enquiring about the progress of the decision.  On 16 October 2009 the Tribunal advised that the Presiding Member was “working on the decision” and that it should be available “shortly”.  The decision was made by the Tribunal on 27 October 2009.  The Tribunal affirmed the decision not to grant the applicant a protection visa.  It is that decision that is the subject of these proceedings. 

The Tribunal decision

  1. In its reasons for decision the Tribunal summarised the claims made by the applicant in the material provided in support of her application and in the evidence given at the hearings before it on 18 November 2008 and 26 February 2009. 

  2. The Tribunal summarised the applicant’s claim as in essence a claim to fear persecution by the Chinese authorities because she was “a Christian who was baptised in, and practised with, an underground/house church in China.”  It outlined her claims that she was “arrested, detained and seriously harmed and assaulted by police/authorities in China in July 2006 because of the practice of her religion as an underground Christian” and that she “went to Singapore in August 2006 so that she could recover from her trauma and seek protection there.”  It recorded her claim that on return to China in October 2006 she was “issued with a summons by police and went into hiding to avoid authorities and also took long leave from her employment” and bribed authorities to get a passport.  The Tribunal recorded that the applicant claimed that she practised as a Christian, participated in church activities and was also baptised in Australia. 

  3. The Tribunal accepted that the applicant was a citizen of China and that she had some knowledge of Christianity, which she had demonstrated.  However the Tribunal did not accept the applicant’s claims that she “left China and/or feared to return there because she was an underground Christian”, or that “she was, or [would] be, at any time be an underground Christian in China”.  In particular, the Tribunal did not accept that the applicant attended underground Christian church meetings or activities in China, that she was baptised in China in April 2005 in an underground church, that she was warned, arrested or harmed by police or authorities because of her religion, or that she took leave from her employment for the reasons claimed or sought to stay in Singapore permanently.  The Tribunal did not accept that the applicant had to bribe officials in China to get her passport.  It did not accept that she was of interest to the authorities for the reasons claimed.  Further, the Tribunal did not accept that the applicant feared that family members would suffer harm or harassment from authorities should she return to China because of her involvement in the underground church.  The Tribunal then stated: “The reason that the Tribunal finds against the applicant in respect of these claims is that it does not consider that she gave truthful evidence to the Tribunal about the claims”. 

  4. The Tribunal gave reasons for not accepting the applicant’s claim to have received a summons in October 2006 as follows:

    Having regard to all of the evidence before it about the summons document that the applicant claims to have received on 22 October 2006, including the country information referred to by the prior Tribunal and also this Tribunal, and discussed generally with the applicant by this Tribunal, namely that any official document can be either bought or forged in China, the Tribunal does not accept as true that the applicant was given a summons by police as she claims on 22 October 2006, or at any time, for the reasons that she claims.  The applicant did not mention a summons in her application for protection visa but refers to a letter from the PRC police; in the application, in the section relating to documents she will produce later, she describes a “letter from Chinese police asking me to come for questioning” and in her statement made 22 December 2006 she states that after she returned to China in October 2006 “Police visited me at home and gave me a letter stating that I will be in trouble if I continued to be involved with my church cult activities”.  A photocopy of a document clearly headed as a summons was sent to the Tribunal on 1 February 2007 before the first Tribunal hearing on 17 February 2007; the original of that document was given to the present Tribunal at the hearing on 26 February 2009.  In the Tribunal’s view if the applicant had received this document she would have mentioned it in her application for protection visa.  Further, the summons document is dated 23 October 2006, that is after the date that the applicant stated she received it, on 22 October 2006, and requires the applicant to attend the Guangzhou PSB for interrogatories at 9 am on that date, 23 October 2006.  Further and most importantly, the applicant has given conflicting evidence about getting that summons document and the Tribunal does not accept that she received a summons from police at any time as she claims.  When the present Tribunal asked her about the summons the applicant produced the original of a document described as the summons and said that it was delivered to her house and it was under her door when she went back home.  As the Tribunal pointed out to the applicant this differs from her evidence about receiving the summons in her statement made 22 December 2006 and in her statement made 25 January 2007; in the statements she states that the police visited her at home, and in the later statement she states that police handed her the summons and had contact with her at that investigation, questioned her about hiding in Singapore and threatened her.  The Tribunal does not consider that the explanations that she gave for the inconsistencies in her evidence about the summons namely that there was also a letter as well as a summons and that there must have been a problem with the interpretation, are reasonable.  The Tribunal finds that the document described as a summons that the applicant has given to the Tribunal in support of her claims is not reliable evidence of the facts in it. 

  5. The Tribunal did not accept as true that the applicant went to Singapore to recover from harm in China or that she told the authorities in Singapore of this and sought to stay in Singapore for that reason. It referred to the absence of claims to this effect in the applicant’s written statements of 22 December 2006 and 25 January 2007 and the fact that it was only when questioned about this by the prior Tribunal at the hearing and in a s.424A letter that the applicant claimed that her godmother told Singaporean authorities what happened to her in China but that as the authorities could not help her she did not make an application to stay in Singapore and that her purpose of visiting Singapore was to seek protection and recover from her trauma. The Tribunal found:

    Given the seriousness of what the applicant claims happened to her in China in July 2006, and given her stated purpose of visiting Singapore, in the Tribunal’s view if the applicant had sought assistance from Singapore immigration authorities and told those officers what happened to her in China, and had gone to Singapore for that purpose she would have mentioned it before being asked about it by the Tribunal in February 2007.  In addition in the Tribunal’s view if she had gone to Singapore to seek protection from the very serious harm she claims to have suffered in China in July 2006 she would not have stated in her statement made 22 December 2006 at para.22, “I had a good job that I loved in China, my family was there and I thought that things will just get better in China with passage of time.  I therefore went back to China in Mid October 2006”. 

  6. Nor did the Tribunal accept as true that the applicant was in hiding at any time in China, or in Singapore, or that she had taken leave from her job or changed her place of residence to avoid the authorities or harm in China.  It referred to the applicant’s statements in her protection visa application that she was a fashion designer employed with a named company from September 2003 until September 2006 and that she lived at a given address in Guangzhou from January 2003 until December 2006 (apart from a visit to Singapore) and that she told the Tribunal that she still owned that house.  The Tribunal observed that in her written statement of 25 January 2007 the applicant did not mention taking leave from her job or leaving her usual address (apart from her trip to Singapore) and that it was not until the Tribunal as originally constituted raised with her its concern about how she managed to live at her usual address and work at her job until December 2006 without being located by the authorities that the applicant said that she resided with a friend at another address and that after the issue of the summons she took long leave from work so the authorities could not find her. 

  1. In this respect, the Tribunal also had regard to the fact that the job reference/certificate of employment dated 20 December 2006 sent to the first Tribunal on 15 February 2007 stated that the applicant worked with a named company from August 2003 until December 2006 and to the applicant’s claims about evangelising activities after she returned to China from Singapore.  The Tribunal recorded that when it asked the applicant why she did not mention that she was in hiding in China when she made her protection visa application, the applicant agreed that she did not mention this until the Tribunal asked her and stated that the person who helped her with her protection visa application had not asked her about it and that she did not mention it because she thought “it was normal for her to hide when she got the summons.”  The Tribunal stated:

    The Tribunal does not consider that these explanations are reasonable or true.  The Tribunal also considers that the applicant’s claims that she was in hiding after she returned to China is not consistent with the details in the chronology of activities by the applicant sent to the prior Tribunal on 19 February 2007 under cover of a letter dated 15 February 2007.  When the present Tribunal queried with the applicant how she managed to continue to meet with her church friends if she was in hiding she told the Tribunal that she managed to do this when she was in hiding as she met them only once or twice to see the old people in the retirement village however the chronology indicates that on 28 October 2006 she went door knocking along a street in Guangzhou with friends handing out pamphlets and evangelising. 

  2. The Tribunal also had regard to the fact that the applicant had given various explanations to the Tribunal as reconstituted for why she stated in her protection visa application that she was employed in her job as a fashion designer until December 2006, when she claimed to it that she had not worked there from July 2006, and set these explanations out.  The Tribunal did not accept these explanations were true.  It considered that the applicant had “changed and embellished her evidence to answer concerns raised by the Tribunal about her veracity” and continued:

    The Tribunal considers that if the applicant had to leave her residential address or her employment at any time because she was afraid of harm from PRC authorities, she would have mentioned it earlier than she did.  It finds that she lived at her usual address in Guangzhou and worked in her employment up until she left China to come to Australia in December 2006 and that these facts are not consistent with her claims that she was persecuted in her country. 

  3. The Tribunal found that it was not consistent with the applicant’s claims that she was so seriously harmed and threatened in China in July 2006 and so afraid of further harm that she sought the assistance of Singapore authorities to stay in Singapore, that she then approached PRC authorities in Singapore to get a replacement travel document, returned to China in October 2006 and remained living there without harm until she left in December 2006.  The Tribunal did not accept as true the applicant’s claim that she was in hiding at any time or her explanation that she was worried about returning to China but had to do so because her visa had expired and staying illegally in Singapore would or could have placed her in a more difficult position with PRC authorities.  It noted that this was not what she had claimed in her statement of 22 December 2006, in which she had stated “I had a good job that I loved in China, my family was there and I thought that things will just get better in China with passage of time.  I therefore went back to China in Mid October 2006.”  The Tribunal did not accept as true that the applicant feared harm in China when she returned there from Singapore in October 2006. 

  4. The Tribunal continued:

    Given the country information about document fraud in China referred to by the prior Tribunal and also discussed generally with the applicant by the present Tribunal, and given that the present Tribunal does not accept that the applicant is a witness of truth, the Tribunal does not accept that the documents sent to the Tribunal to support the applicant’s claims that she was an underground Christian and harmed by authorities in China as she claims, including the hospital records and the certificate of baptism from the Guangzhou Dongshan Christian Church, are reliable evidence of the facts in them.  As the Tribunal does not accept that the applicant is a witness of truth it also does not accept that the letters from those persons in China described as her mother, her fellow church sisters/ friends in China, including Ms [Y] and Ms [M L], are reliable evidence of the facts in them.  Although a different Tribunal has found that the witness Ms [Y] satisfies s.36(2)(a) of the Migration Act, the present Tribunal is not bound by another Tribunal’s decision about Ms [Y] and this was explained to the applicant at the hearing.  The present Tribunal has given no weight to the evidence of Ms [Y] in this hearing as she is a friend of the applicant who waited in China to come to Australia with the applicant according to the applicant’s evidence and the Tribunal does not consider that her evidence is impartial. 

  5. The Tribunal accepted that the applicant had attended Christian church services and activities in Villawood Detention Centre and also after her release and that persons she had met in Australia who had given statements and oral evidence in support of her claim believed that she was a genuine Christian and (to the extent that she had told them about her claims) that her claims were genuine.  The Tribunal also accepted that the applicant was baptised in the Christian church she had been attending in Australia as claimed.  However it considered that the reason that the applicant had attended church and participated in church activities in Australia was to give her a “better chance of remaining permanently in Australia and the Tribunal finds accordingly”. It was not satisfied that the applicant attended church in Australia or that she had been attending or participating in church activities in Australia otherwise than to strengthen her claim to be a refugee and disregarded that conduct under s.91R(3) of the Act.

  6. The Tribunal concluded that in its view there was “no plausible evidence before it that the applicant had suffered or will suffer persecution in her country from authorities or from anyone else, because of her religion or imputed religion” or for any other Convention reason either now or in the reasonably foreseeable future if she returned to the PRC.  It was not satisfied that she had a well-founded fear of persecution in China within the meaning of the Refugees Convention and affirmed the decision not to grant the applicant a protection visa. 

These proceedings

  1. The applicant sought review by application filed in this court on 30 November 2009.  The application contained four grounds:

    The RRT erred when –

    1.  - it determined the summons was not reliable evidence …

    2.  - it dismissed reasonable explanations about the applicant seeking advice in Singapore about help for refugees …

    3.  - it disregarded Ms [Y]’s evidence but did not find that the evidence was untrue …

    4.  The RRT decision was contrary to the principles in NAIS v. Minister [2005] (228 CLR 470)  

  2. Counsel for the applicant advised that the first three “grounds” were not pressed as grounds, but were factors related to the only ground relied on by the applicant that is that the decision was contrary to the principles in NAIS. 

  3. The applicant relied on affidavits attaching English language transcripts of the hearings held by the Tribunal on 18 November 2008 and 26 February 2009. 

NAIS and delay

  1. The applicant contended that this case involved jurisdictional error of the type discussed by a majority of the High Court in NAIS and Others v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 228 CLR 470; [2005] HCA 77 having regard to what was said to be a substantial delay by the Tribunal in disposing of the application and the nature of its findings.

  2. In NAIS a husband and wife and their daughter applied for protection visas on the basis that they feared persecution in Bangladesh because of the parents’ “mixed” marriage (the husband was Muslim and the wife Catholic).  Their application was refused and they sought review by the Tribunal on 5 June 1997.  They attended Tribunal hearings on 6 May 1998 and 19 December 2001.  By a decision handed down on 14 January 2003 the Tribunal affirmed the decision of the delegate.  There was a delay of over four and a half years between the time the Tribunal heard the applicant’s evidence at the first hearing in 1998 and its decision in 2003 in which it did not accept as credible certain claims and evidence of the appellants about harm they had suffered in Bangladesh. 

  3. The appellants submitted that the Tribunal’s delay in determining the review involved a denial of procedural fairness or a failure by the Tribunal to perform its statutory functions.  The High Court by majority (Gleeson CJ, Kirby, Callinan and Heydon JJ, with Gummow and Hayne JJ dissenting) found that the Tribunal’s decision was affected by jurisdictional error. 

  4. According to Gleeson CJ (at [4]) there was no dispute as to the principles to be applied.  His Honour pointed out (at [5]) that “the circumstances in which delay, of itself, [would] vitiate proceedings, or a decision, [were] rare” and that there was nothing in the Migration Act that prescribed a time limit for decisions of the Tribunal and the Court had no power to determine some such limit.

  5. However Gleeson CJ (at [3]) also found that there was “no dispute that the delay on the part of the Tribunal was inordinate” and that there was nothing in the reasons of the Tribunal to explain or justify the delay, to recognise any possible effect of delay on the decision-making process, or to explain how any possible problem arising from such delay might have been taken into account or overcome.  In his Honour’s view: “The reasons are expressed in a form that appears to treat the time involved in the Tribunal’s process as immaterial to the adjudicative function” (at [3]).

  6. Gleeson CJ (at [7]) referred to the remarks of Bastarache J in Blencoe v British Columbia (Human Rights Commission) (2000) 190 DLR (4th) 513; [2000] 2 SCR 307 at 367 [102] that: “the principles of natural justice and the duty of fairness include the right to a fair hearing and that undue delay in the processing of an administrative proceeding that impairs the fairness of the hearing can be remedied”. 

  7. In NAIS what was said to be unfair was that the Tribunal had made demeanour-based findings against the appellants “in circumstances where four and a half years elapsed between the observation of the demeanour and the making of the findings” (at [7]) and that some of the findings of the Tribunal adverse to the appellants’ credit were made “in circumstances that must have been influenced by the Tribunal’s observation of their demeanour” (at [8]).  Gleeson CJ referred to the fact that “[e]vidence that was not inherently improbable, or contradicted by objective facts, was rejected as ‘implausible’” by the Tribunal.  In addition the Tribunal had treated the fact that the third appellant (then aged 12 years) was said to have “displayed no signs of trauma or concern” in her evidence at the second hearing (more than a year before the decision) “as indicating that her account of an attack, in which her mother intervened, was fabricated” (at [8]).  His Honour observed (at [9]) that because the Tribunal’s reasoning had ignored the question of the time lapse between the taking of the evidence and the final assessment of that evidence, it could “never be known how that assessment was in fact affected by the delay”. 

  8. Gleeson CJ stated that a “procedure that depends significantly upon the Tribunal's assessment of individuals may become an unfair procedure if, by reason of some default on the part of the Tribunal, there is a real and substantial risk that the Tribunal's capacity to make such an assessment is impaired.” (at [9]). 

  9. His Honour found at [10] that:

    In a case of failure to give a hearing when a hearing is required, the person complaining of denial of procedural fairness does not have to demonstrate that, if heard, he or she would have been believed.  The loss of an opportunity is what makes the case of unfairness.  The appellants in this case do not have to demonstrate that the Tribunal's assessment of them probably would have been more favourable if made reasonably promptly.  What they have to demonstrate is that the procedure was flawed; and flawed in a manner that was likely to affect the Tribunal's capacity to make a proper assessment of their sincerity and reliability.  The procedures required by the Act were designed to give the appellants a reasonable opportunity to state their claims and to have those claims competently evaluated.  If the Tribunal, by its unreasonable delay, created a real and substantial risk that its own capacity for competent evaluation was diminished, it is not fair that the appellants should bear that risk.  The delay on the part of the Tribunal in the present case was so extreme that, in the absence of any countervailing considerations advanced in the reasons of the Tribunal, it should be inferred that there was a real and substantial risk that the Tribunal's capacity to assess the appellants was impaired.  That being so, the appellants did not have a fair hearing of their claims by the Tribunal.

  10. Kirby J agreed with the conclusion of Gleeson CJ that to make good a claim of unfairness it was sufficient to establish that there was “a substantial risk…that the Tribunal’s capacity to assess fairly the appellants’ evidence, and to carry out its decision-making functions conferred by the Act, was impaired by the procedures adopted by the Tribunal” (at [106]) and rejected the view of Hayne J (dissenting) that the appellants must demonstrate that the risk that the Tribunal did not fairly assess their evidence actually eventuated.  His Honour was of the view that the delay in NAIS was clearly one which on its face gave cause for concern and that once inordinate delay was established, closer analysis of the circumstances of the case and of the effect of the delay was required (at [82]). His Honour pointed out that the significance of delay depended on the issues for decision and this necessitated examination of the matter actually decided in a particular case (at [84]) and stated at [88]:

    Where the decision-maker reaches a decision in reliance upon considerations of the credibility of parties or witnesses, significant delay undermines the acceptability of such assessments.   Where there is lengthy delay in the provision of a reasoned decision, whether by a judge or a tribunal, it may not be enough for the decision-maker simply to announce conclusions on credibility.  It may then be necessary to say why the evidence of a witness is believed or disbelieved, in effect to demonstrate that any countervailing evidence has not been forgotten or overlooked.  That it has not been would, in a timely provision of the decision, more readily be assumed.  (Footnotes omitted). 

  11. Kirby J suggested that there was a special danger of delay in a case of a tribunal such as the Refugee Review Tribunal consisting of the “risk of confusion between the facts of similar applications and elision between impressions about the reliability and truthfulness of witnesses in one case compared with another having common factual and legal features” (at [92]). 

  12. In addition, Kirby J regarded of special relevance the fact that the delay in question between the first hearing and the decision occurred in a Tribunal which of its nature needed to decide applications promptly to fulfil its statutory purposes and was dealing with persons of particular vulnerability (at [99]).  It was in that context that his Honour referred with approval to the fact that the Immigration Appeal Tribunal in the United Kingdom had suggested that in asylum appeals a delay of three months between hearing and preparation of the determination was unacceptable (at [100] and see SB (Sufficiency of Protection – Mafia ) Albania UKIAT [2003] 00028). 

  13. Kirby J found that prima facie the delay in the provision of the Tribunal’s decision was “materially excessive” and that “[o]n the face of things it deprived the appellants of a "decision" of the type required by the Act” (at [102]).  This was said to render suspect the reasons, findings and references to the evidence contained in the Tribunal's decision.  On this basis his Honour concluded (at [102]) that:

    The “decision” was not reached by a process that was procedurally fair and just to the appellants.  By reason of the delay, the "decision" was presumptively flawed by jurisdictional error. 

  14. His Honour supported the analysis and conclusions of Callinan and Heydon JJ in relation to the suggestion by the Minister that the Tribunal could remember, assess and evaluate such evidence for the credibility findings it made four years and seven months later. 

  15. In a joint judgment, Callinan and Heydon JJ described the issue as whether “an extraordinarily prolonged delay by the Refugee Review Tribunal in determining the appellants' applications… gave rise to an abuse of process such as to render the decision of the Tribunal refusing them invalid” (at [140]).  Their Honours stated that where there was what at first sight appeared to be an inordinate delay, the decision should be scrutinised “at the very least, with scepticism, especially if, as the decision in this case does, it depends in any way at all upon the assessment of competing claims of fact and credit, and impressions based on demeanour” (at [161]).  Their Honours agreed (at [167]) that delay of itself may undermine the basis of a judgment that required the weighing of claims and facts and concluded (at [168]) that it was not possible that the Tribunal decision “depending so much as it did, on the credibility of the appellants who gave oral evidence, was made fairly” and continued (at [169]):

    The outcome of the appellants' application for review of the decision not to grant them protection visas did depend in part at least on demeanour and credibility.  The appellants undertook the task of persuading the Tribunal that they did hold well-founded fears of persecution.  That in respect of some of the abuses they claimed to have suffered, they admitted fabrication, or were unable to deny collusion, provides no answer to their entitlement to have their other claims and their applications assessed in a comprehensive, unattenuated and not excessively delayed process.  Unlike the majority in the Full Court of the Federal Court we are unable to regard the possibility, indeed, even the likelihood if that be the case, of the consultation of contemporaneous notes and tape recordings of the proceedings, as a satisfactory substitute for the observation and formation of impressions of persons in the flesh, and the timely personal commitment of these to paper as part of the process of making a decision in the light of the materials supplied to the Tribunal and all the arguments advanced to it.

  16. Callinan and Heydon JJ emphasised at [172] that:

    … unfairness can spring not only from a denial of an opportunity to present a case, but from denial of an opportunity to consider it.  Failure by the Tribunal to consider a case can arise not only from obstruction by the Tribunal of its presentation but also from self-disablement by the Tribunal from giving consideration to that presentation by permitting bias to affect its mind: either way the case is prevented from having a fair impact on the Tribunal's mind.  Another way in which the Tribunal can disable itself from giving consideration to the presentation of a case arises where it permits so much time to pass that it can no longer assess the evidence offered.  That is what happened here.  The first respondent contended that the appellants could not succeed in the absence of findings that "delay by the Tribunal actually resulted in a material failure to analyse the oral evidence of the Appellants."  That finding ought to be made because it can be inferred from the delay that, in the absence of contrary evidence, the Tribunal had deprived itself of its capacity to do so, and there is no contrary evidence.

  1. However their Honours observed (at [174]) that the case before them was a “very exceptional” case in which the Court was bound to hold that “the proceedings had not been fairly conducted, by reason of the delays, both from beginning to end, and between each episode in them”.  Their Honours did not accept that the only relevant delay was that which occurred between the second oral hearing and the decision because the decision was concerned with demeanour on two occasions long separated in time in circumstances where each had to be related and compared to the other and weighed with a considerable volume of written evidence (at [174]). 

  2. The applicant submitted that such principles were applicable in this case, where there was a delay of eight months from the last hearing date to the decision, which was said to involve the weighing up of oral evidence given over a period of two years (on 13 February 2007, 18 November 2008 and 18 February 2009) as well as further written material. 

  3. Counsel for the applicant submitted that the reasons of the majority of the High Court in NAIS (Gleeson CJ at 472 – 476, [1] – [57]; Kirby J at 488 – 507, [58] – [125] and Callinan and Heydon JJ at 511 – 527, [140] – [176]) made it clear that in some circumstances there may be an unacceptable delay by the Tribunal in dealing with an application for review that would be inconsistent with the Tribunal’s obligations in the scheme of the Act.

  4. It was acknowledged that an unacceptable delay had to be coupled with some other factors to demonstrate that a fair hearing had not been provided.  It was said that in this case, as in NAIS, those additional factors were the relevance of the delay to the findings by the Tribunal as to the truthfulness of the witnesses appearing before it and the absence of any explanation by the Tribunal of the delay or the way in which it was taken into account. 

  5. Counsel for the applicant submitted that the approach of the Tribunal bore out the observations of Gleeson CJ in NAIS (at [9]) that “[a]n important purpose of the hearing was to enable the Tribunal to do just what it ultimately did, that is make a judgment about whether the appellants were worthy of belief”, as this was also a task undertaken in the present case.  It was submitted that the vice identified by Gleeson CJ in NAIS (at [9]) was also apposite to the present case. His Honour stated (at [9]):

    Yet ultimately the procedure directed attention to the Tribunal's assessment of [the appellants] as witnesses in their own cause.  A procedure that depends significantly upon the Tribunal's assessment of individuals may become an unfair procedure if, by reason of some default on the part of the Tribunal, there is a real and substantial risk that the Tribunal's capacity to make such an assessment is impaired.

  6. The applicant submitted that it was also relevant that there was nothing in the reasons of the Tribunal that sought to explain or justify the delay in the decision (cf Gleeson CJ in NAIS at [3]). Rather the reasons were expressed by the Tribunal in a form that appeared to treat the time involved in the Tribunal processes as immaterial to the adjudicative function (NAIS at [3] per Gleeson CJ). It was contended that because the Tribunal’s reasons ignored the question of the time that had elapsed between the taking of evidence and the final assessment of that evidence, it could not in fact be known how that assessment was in fact affected by the delay (NAIS at [9] per Gleeson CJ).

  7. The applicant referred to the fact that the delay in this case was in excess of the delay considered acceptable by the Immigration Appeal Tribunal in the United Kingdom, (three months), which had been referred to with apparent approval by Kirby J in NAIS (at [100] – [101]) and to the requirement in s.414A(1) of the Act that the Tribunal review the decision and record its decision within 90 days after documents were given to it by the Secretary of the Department under s.418(2).

  8. It was acknowledged that a delay in excess of three months would not of itself invalidate the decision (s.414A(2)), but submitted that this was a useful benchmark to determine the type of delay which strayed outside the contemplated scheme of the Act having regard to ss.414A and 422A of the Act which allows for reconstitution of the Tribunal for efficient conduct of the review in certain circumstances, including after three months from constitution (see reg.4.30 of the Migration Regulations 1994 (Cth)). It was also submitted that s.414A(2) was consistent with the reasoning in NAIS because the majority in that case had been at pains to say that mere delay did not lead to a jurisdictional error so that it was not a mathematical equation. 

  9. The applicant submitted that the Tribunal decision depended to some extent upon the assessment of competing claims of fact and credit and on questions based on demeanour, as discussed by Callinan and Heydon JJ in NAIS (at [161]) and that the delay had to be seen in light of the fact that the Tribunal’s decision was founded on its view that it did not accept the applicant as a witness of truth and had used that finding to reject evidence corroborative of the applicant’s claims from other witnesses and persons who provided supporting letters in respect of her claims.

  10. In particular, reference was made to the fact that the Tribunal gave no weight to the evidence of Ms Y, who had left China with the applicant and who had been accepted by the Tribunal (differently constituted) as a person to whom Australia owed protection obligations. Further, the Tribunal rejected any evidence concerning the extensive Christian activity of the applicant in Australia because it found that it was not satisfied that she had attended church and participated in activities in Australia otherwise than to strengthen her claim to be a refugee. It was submitted that the only apparent finding to support the Tribunal’s application of s.91R(3) was that the Tribunal considered that the reason the applicant had attended church and church activities in Australia was to give her a better chance of remaining permanently in Australia.

  11. It was submitted that (as in NAIS) there were numerous findings by the Tribunal adverse to the applicant and her witness Ms Y that turned on an assessment of the credibility of those witnesses in circumstances that must have been influenced by the Tribunal’s observation of their demeanour and that evidence that was not inherently improbable or contradicted by objective facts was rejected as implausible.  Thus the applicant submitted that the Tribunal had found that:

    (a)     the finding that the evidence of the witness [Ms Y] to the Tribunal was not impartial …;

    (b)     that “the applicant had changed and embellished her evidence in answer to questions raised by the Tribunal in relation to her veracity” …;

    (c)     “the applicant gave conflicting evidence about getting that summons document…[t]he Tribunal does not consider that the explanation that she gave for the inconsistencies in her evidence about the summons …” …;

    (d) “It was only when questioned about this [seeking immigration assistance in Singapore] by the prior Tribunal member on 13 February 2007 and later when it sent the applicant a s424A letter, that the applicant claimed that she/her godmother told the authorities what happened in Singapore… and

    (e)     “When the Tribunal asked the applicant whether there was a reason that she did not state in her original statement made 22 December 2006 that she had to leave her job she said she was persecuted and she was scared.  The Tribunal considers that the applicant has changed and embellished her evidence to answer concerns raised by the Tribunal about her veracity.” …

  12. At the time that the first respondent filed written submissions, the written submissions for the applicant had not been filed.  The first respondent submitted generally that there was no inordinate delay in this case, that the material the Tribunal was required to review was voluminous and that its reasons indicated the care with which it undertook its task.  It was submitted that the Tribunal decision turned upon clear inconsistencies in the written and oral evidence given by the applicant and did not involve an assessment of demeanour as had occurred in NAIS.  Counsel for the first respondent elaborated on her submissions in oral submissions in response to the applicant’s subsequent written and oral submissions. 

  13. As Gleeson CJ stated in NAIS (at [10]) the issue is whether “the Tribunal, by its unreasonable delay, created a real and substantial risk that its own capacity for competent evaluation was diminished” (also see Callinan and Heydon JJ at [171] – [172]).

  14. Consistent with NAIS it is necessary to have regard to all the circumstances of the case to form a view about the particular delay in question and any impact on the Tribunal’s capacity to assess evidence.  In particular, regard should be had to the Tribunal’s reasons for decision to determine whether or not the procedure was unfair such that there was a risk that the Tribunal had not been able to properly assess the evidence (see Gaskell v Denkas Building Services Pty Ltd [2008] NSWCA 35 in which a similar approach was taken in relation to delay in delivery of judgment by a trial judge).

  15. First, however, it is relevant to consider the extent of the delay in this case. It is not of the magnitude considered in NAIS.  The chronology from the time of application to the Tribunal is set out above.  While the application for review was in January 2007 the more relevant delay is that which occurred after remittal in August 2008.  The Tribunal as reconstituted did not conduct the hearing of 13 February 2007.  Hence while the applicant attended the hearing conducted by the first Tribunal on 13 February 2007, the Tribunal as reconstituted cannot be said to have relied in any way on the demeanour of the applicant at that hearing.  The hearing conducted by the Tribunal as reconstituted was on 18 November 2008.  It was adjourned to recommence on 16 December 2008 and the subsequent delay (to suit both the Tribunal and then the applicant’s solicitors) meant that it was completed on 26 February 2009.  The time between the two hearings conducted by the Tribunal as reconstituted was much shorter than the time between hearings conducted in NAIS and there is a reasonable explanation for the delay based on the availability of the Tribunal and the applicant’s solicitors.  After the hearing of 26 February 2009 the applicant’s solicitor made further submissions dated 12 March 2009.  The Tribunal’s decision was dated 27 October 2009. 

  16. While in some cases there would be no doubt that a delay was inordinate (as in NAIS), in others the question of whether the delay is such that there was an unfair procedure has to be considered having regard to the circumstances of the particular case. This is not a case in which it is clear that the delay was inordinate. While the 90 day period in s.414A(2) provides an indication of the government’s view of an appropriate period for the conduct of a review, the issue of whether in a particular case delay is such as to give rise to jurisdictional error, on the basis that it should be inferred that there was a “real and substantial risk” that the Tribunal’s capacity to assess the applicant was impaired in the sense considered in NAIS, is a matter to be determined in the particular circumstances of the case, rather than by reference to a specific standard in an exhortatory provision of the Act).  There should be no presumption that any delay beyond 90 days is such as to warrant (in the absence of countervailing considerations in the Tribunal reasons) the drawing of an inference that there was a real and substantial risk that the Tribunal’s capacity to assess the applicant was impaired. 

  17. The delay in this case is not such that it can be categorised as inordinate or so extreme that it should be inferred that there was “a real and substantial risk” that the Tribunal’s “capacity to assess” the applicant was “impaired” in the sense considered by Gleeson CJ at [10] in NAIS in the absence of explanation for or acknowledgement of the delay by the Tribunal.  The delay was not “extraordinarily prolonged” (see Callinan and Heydon JJ at [140]) or “materially excessive” such that the decision was “presumptively flawed” (see Kirby J at [102]). 

  18. The first respondent referred to the approach taken by Graham J sitting as a member of the Full Court of the Federal Court in MZXRE v Minister for Immigration and Citizenship and Another (2009) 176 FCR 552; [2009] FCAFC 82. In that case, after a Tribunal hearing, adverse decision, judicial review and remittal to the Tribunal as previously constituted, the appellant had failed to respond to an invitation under s.424 of the Act. The Tribunal proceeded to make a decision (without inviting the appellant to a further hearing) on the basis of the evidence that had been taken by the Tribunal member at the hearing prior to the judicial review. There was an eight month delay between that hearing and the date of the second decision.

  19. The appeal was dismissed by North and Rares JJ for reasons which did not relate to the issue of delay, but rather to the fact that the Tribunal was not obliged to invite the applicant to a second hearing under s.425 in those circumstances.  Graham J agreed, but his Honour also addressed the issue of whether the Tribunal’s obligation to extend procedural fairness to the appellant obliged it to invite him to a further hearing, given that the ultimate decision of the Tribunal was not handed down until some eight months after the hearing.  His Honour referred to the decision in NAIS and the views expressed by Gleeson CJ (at [9] – [11]) and Callinan and Heydon JJ (at [167] – [168]) before stating that in his opinion the eight month delay between the hearing and ultimate decision in that case could not be described as unfair. Graham J pointed out that there was invariably some delay between a hearing and a decision (particularly where a s.424A invitation was extended) and found that in the case before him there was an obvious explanation for the eight month delay which, in any event, “was not so extreme that it should be inferred that there was a real and substantial risk that the Tribunal's member's capacity to assess the appellant was impaired” (at [83]).  Graham J also expressed the view (at [80]) that the circumstances in which delay of itself would vitiate a decision are “rare”. 

  20. In a case such as MZXRE, where the “delay” was occasioned by judicial review and remittal and the matter had been otherwise dealt with reasonably promptly by the Tribunal, it is unsurprising that Graham J found that the eight month delay between the hearing and the ultimate decision of the Tribunal could not be described as unfair.  His Honour had regard to the obvious explanation for the delay and, in the circumstances of that case, concluded that the delay was not so extreme that it should be inferred that there was a real and substantial risk that the Tribunal member’s capacity to assess the appellant was impaired.  That is not to say that a delay of eight months might never be described as unfair in particular circumstances. 

  21. I have considered whether, having regard to the reasons for decision, it can be inferred that the time taken by the Tribunal in dealing with this application for review was inconsistent with its obligations under the Act in the particular circumstances of this case.  I have had regard to the delay between hearings as well as the delay between the last hearing date and the decision of the Tribunal and any explanation for the delay, as well as to the Tribunal reasons to consider whether they disclosed a real risk that the Tribunal could not have properly assessed the evidence. 

  22. In NAIS the High Court was of the view that, having regard to the generality of the reasons in that case, the Tribunal’s assessment of the credibility of the appellants must have had regard to their demeanour.  In the circumstances of the lengthy delay in question there was a real risk that the Tribunal could not have properly taken into account demeanour in making such findings after such a delay. 

  23. As indicated, in this case the time taken from the hearing to the decision was considerably shorter.  There was an explanation for the delay between hearings which was not, in any event, excessive.  It is the case that there was no reference to the relevance of any delay in the Tribunal reasons for decision.  However given the extent of the delay that is not such as to warrant an inference that the Tribunal member’s capacity to assess the applicant was affected in the manner considered in NAIS (see NAIS at [10] and MZXRE at [83]).

  24. Even though (as the first respondent conceded) demeanour is relevant in any assessment of credit, it is clear that the Tribunal’s assessment was not based on the applicant’s (or her witnesses’) demeanour alone or on bland assertions.  The Tribunal did not simply find that her evidence was implausible.  The Tribunal gave a number of reasons for its finding that the applicant was not a witness of truth in relation to her claims about what she said occurred to her in China.  These reasons were detailed and addressed specific aspects of the applicant’s claims and were not based only on issues about her oral evidence.  For example, the concerns that the Tribunal had in relation to the applicant’s claims about having received a summons related not only to concern about aspects of the applicant’s evidence in that respect but also to the fact that the document itself was dated 23 October 2006, which was after the date the applicant stated she received it (22 October 2006) and that the summons required her to attend the PSB for interrogations on 9 am on the date that it bore.  In addition, the Tribunal referred to country information about document fraud in China that had been discussed with the applicant and to the failure of the applicant to mention this document in the first written statement she made to the Department in connection with her protection visa application (referring instead to a letter from the police) or in her subsequent written statement (in which she referred to a letter stating that she would be in trouble if she continued to be involved in her church cult activities).  The Tribunal was of the view that if the applicant had received such a document she would have mentioned it in her application for a protection visa.  The Tribunal did have regard to inconsistency in the evidence given by the applicant about getting a summons document in not accepting that she had received a summons from the police.  However the Tribunal’s reasoning in this respect was not general.  It was carefully reasoned and based on an analysis of two of the applicant’s written statements (which had been put to her), her oral evidence and on an analysis of the document alleged to be a summons.  The Tribunal stated:

    Further and most importantly, the applicant has given conflicting evidence about getting that summons document and the Tribunal does not accept that she received a summons from police at any time as she claims.  When the present Tribunal asked her about the summons the applicant produced the original of a document described as the summons and said that it was delivered to her house and it was under her door when she went back home.  As the Tribunal pointed out to the applicant this differs from her evidence about receiving the summons in her statement made 22 December 2006 and in her statement made 25 January 2007; in the statements she states that the police visited her at home, and in the later statement she states that police handed her the summons and had contact with her at that time namely that they demanded that she come to the police station for a second investigation, questioned her about hiding in Singapore and threatened her.  The Tribunal does not consider that the explanations that she gave for the inconsistencies in her evidence about the summons namely that there was also a letter as well as a summons and that there must have been a problem with the interpretation, are reasonable.  The Tribunal finds that the document described as a summons that the applicant has given to the Tribunal in support of her claims is not reliable evidence of the facts in it. 

  1. Further, the reasons the Tribunal gave for not accepting the applicant’s claims that she went to Singapore to recover from harm in China, told the authorities there that she feared harm in China or sought to stay in Singapore to seek protection, related to the absence of any claim that she had sought assistance from immigration authorities in Singapore in her written statement in connection with her protection visa application or in her written statement provided to the first Tribunal and the fact that she only mentioned such a claim when questioned by the first Tribunal and in response to a s.424A letter. It was open to the Tribunal to find that given the seriousness of the applicant’s claims, if she had sought assistance from Singaporean immigration authorities and told them about events in China and had gone to Singapore for that purpose, she would have mentioned this before being asked about it by the Tribunal in February 2007 and also that if she had gone to Singapore to seek protection she would not have stated in her written statement of 22 December 2006 that she had a good job that she loved in China, her family was there and she thought things would get better there with the passage of time. Such reasoning also involved a careful analysis.

  2. Similarly, the Tribunal’s reasoning in connection with its rejection of the applicant’s claims that she was in hiding in China or in Singapore or that she took leave from her job or changed her place of residence to avoid the authorities or harm involved a careful analysis of her failure to mention such claims initially (until the prior Tribunal member asked her) and a lack of consistency between the applicant’s claims that she was in hiding after which she returned to China with the written chronology of activities she provided to the Tribunal, which among other things indicated that during the time she said she was in hiding she claimed she went door knocking on the street of Guangzhou with friends and handed out pamphlets and evangelised. 

  3. While the Tribunal clearly had regard to the applicant’s oral evidence and what it regards as changes and embellishments in her evidence to address concerns raised by it about her veracity in connection with the fact that she stated in her application that she was employed as a fashion designer until December 2006 but subsequently claimed that she had not worked there after July 2006, it also had regard to her failure to mention these claims earlier than she did. 

  4. In addition, in finding that it did not accept that the applicant feared harm in China when she returned there from Singapore in October 2006 the Tribunal had regard to her evidence (which it accepted) that she and her aunt approached the PRC authorities in Singapore to get her a replacement travel document and that she then returned to China and remained there until 3 December 2006.  It found that these claims were not consistent with the applicant’s claim that she was so seriously harmed and threatened in China after 2006 and so afraid of further harm that she sought the assistance of Singaporean authorities to stay in Singapore. 

  5. Finally, after it rejected the applicant’s credibility and did not accept that she was a witness of truth, the Tribunal considered whether, but did not accept that, the supporting documents were reliable evidence of the facts in them. It also considered the evidence of the witness Ms Y to which it gave no weight, as she was a friend of the applicant who had waited in China to come to Australia with the applicant and the Tribunal did not consider that her evidence was impartial. In making this finding the Tribunal had regard to the fact that a different Tribunal had found that Ms Y herself satisfied s.36(2)(a) of the Act. It was however open to the Tribunal to find that Ms Y was not impartial in relation to the applicant’s application based on their friendship (not an assessment of her demeanour and oral evidence).

  6. Finally, the clear findings the Tribunal had made about the applicant’s credibility led inexorably to it disregarding the conduct that it accepted had occurred in Australia under s.91R(3) of the Act. Reading the Tribunal decision as a whole, it is clear that this finding was made in a context in which the Tribunal had determined that the applicant was not a witness of truth and had not been an underground Christian in China.

  7. In all the circumstances, I am not satisfied that any delay that occurred in this case is such that it can be inferred that there was a real and substantial risk that the Tribunal’s capacity to assess the applicant’s evidence and evaluate her claims was impaired so that she was denied a fair hearing.  In reaching this conclusion I have had regard to the fact that while the applicant’s credibility was in issue and hence her demeanour was relevant to some extent to the Tribunal’s decision, the Tribunal did not simply announce its conclusions on credibility, but rather provided closely reasoned explanations for its disbelief of various aspects of the applicant’s claims which led it to the conclusion that the applicant was not a witness of truth.  Its reasoning was not based on inconsistencies in her oral evidence at the various hearings.  While there were hearings on three occasions, this is not a matter in which the Tribunal had to weigh up the credibility of oral evidence given to it on widely separated occasions (see NAIS at [168]). Nor is it a case in which the Tribunal allowed so much time to pass that it could be inferred that it could no longer assess the evidence proffered by the applicant. Where inconsistencies were in issue, they were inconsistencies between written and oral evidence rather than in various oral accounts that the applicant had given over time and, importantly, the inconsistencies identified were “both real and substantial” and were properly analysed, as were the other matters relied on by the Tribunal (cf SZIIF v Minister for Immigration and Citizenship (2008) 102 ALD 366; [2008] FCA 913 at [97] – [98] per Weinberg J).

  8. No jurisdictional error of the nature contended for by the applicant has been made out.  Hence the application should be dismissed. 

I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  3 August 2010

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SZKJV v Minister for Immigration [2008] FMCA 26
SZJGV v Minister for Immigration & Citizenship [2008] FCAFC 105
Minister for Immigration and Citizenship v SZJGV [2009] HCA 40