SZLJG v Minister for Immigration
[2008] FMCA 825
•27 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLJG v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 825 |
| MIGRATION – Visa – protection (Class XA) visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – citizen of China claiming fear of persecution for reason of religious opinion – claim of fear of persecution as mother of an unregistered child – one child policy – claim of fear of persecution because of the applicant's de facto husband's political opinion – whether Tribunal misinterpreted the requirements of Migration Act 1958 (Cth) s 91R(3) – merits review – procedural fairness – credibility – whether Tribunal rejudged the applicant's case – wether Tribunal should have conducted its own independent investigation of the applicant's claims – no reviewable error. |
| Migration Act 1958 (Cth), ss.91R, 424A, 425, 474 |
| SZJSD v Minister for Immigration & Anor [2007] FMCA 604 cited distinguished Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 cited Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 cited Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572; [2004] FCAFC 264 cited Craig v South Australia (1995) 184 CLR 163 cited Abebe v Commonwealth [1999] HCA 14 followed Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 followed SZIRO v Minister for Immigration & Citizenship [2007] FCA 260 followed SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 followed SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358 followed |
| Applicant: | SZLJG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2962 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 28 April 2008 |
| Date of Last Submission: | 28 April 2008 |
| Delivered at: | Sydney |
| Delivered on: | 27 June 2008 |
REPRESENTATION
| Counsel for the Applicant: | Appeared in person |
| Solicitors for the Applicant: | Not legally represented |
| Counsel for the Respondents: | Ms Wong |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs fixed in the sum of $4,400.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2962 of 2007
| SZLJG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The applicant, a citizen of The People’s Republic of China, asks the court to set aside a decision of the Refugee Review Tribunal made on 28th August 2007. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa.
In her amended application, the applicant asks the Court to set aside the Tribunal’s decision and remit her application to the Tribunal for determination according to law. She also seeks an order for costs, although she is not legally represented.
The applicant claims that the Tribunal erred in law:
(1)In reaching its conclusion that the applicant did not have a well-founded fear of being persecuted on the basis of her religion as a Catholic;
(2)Having found that applicant only became baptised and involved with the Catholic Church in Australia for the purpose of strengthening her claim to refugee status, the Tribunal erred in then finding that if she were to return to China the applicant would not practise Christianity or Catholicism because (by implication) the motivation for doing so would have ended. This was an error in applying s 91R(3) of the Migration Act, as set out in SZJSD v Minister for Immigration & Anor[1];
(3)In considering the applicant’s response to a letter sent under the provisions of s 424A of the Act, the Tribunal erred in law regarding the identity about the identity of the parish priest at St Dominic’s Catholic Church in Flemington;
(4)The Tribunal’s questioning of the applicant’s step-son about the applicant’s claims to refugee status based on her religion was very brief and in consequence the Tribunal failed to accord to the applicant the procedural fairness required for a fair hearing.
[1] [2007] FMCA 604
In addition, the applicant raised two grounds in her oral submissions that did not appear in her amended application:
(5)The Tribunal should have conducted its own independent investigation of the applicant’s husband’s cases; and
(6)The Tribunal erred by using information downloaded from the Internet.
Background
The applicant arrived in Australia on 21st June 2000. She applied for a Protection (Class XA) visa on 18th January 2007. Her adult stepson applied as a member of her family unit. She claimed to fear persecution if she were to return to China on the basis that she had been baptised as a Christian and she feared that she and her infant daughter would be persecuted if she returned to China. She also claimed that she and her daughter would not have the rights of education or employment or other human rights under the “One Child” policy in China.
A delegate of the Minister refused the application for a visa on 4th April 2007. The delegate was not satisfied that the applicant’s claim of a well founded fear of persecution on the basis of her religion had been made out.
The delegate also noted that, in respect of the applicant’s claim to fear persecution under the One Child policy, the daughter was not an applicant. Accordingly, the delegate assessed the claim only as it would affect the applicant. The delegate found that any financial penalty that the applicant may be subject to would be through the administration of a law of general application.
The delegate also refused the application for a visa in the case of the applicant’s adult stepson.
Application for Review by the Refugee Review Tribunal
The applicant applied to the Refugee Review Tribunal for review of the delegate’s decision. The applicant later asked that her stepson be included as an applicant for review as well.
The Tribunal wrote to the applicant inviting both her and her son to attend a hearing of the Tribunal to take place on 29th May 2007. She made a written submission to the Tribunal in which she set out in some detail a claim to have been arrested and bashed by the police in December 1999. She also provided photographs and other documents to the Tribunal. The documents included statements from people who certified her attendance at services and other activities of the Chinese Catholic Community in Western Sydney.
The applicant and her daughter and stepson attended the hearing of the Tribunal on 29th May 2007. The applicant and her stepson both gave evidence.
On 9th July 2007 the Tribunal wrote to the applicant, advising that it was an invitation both to her and to her stepson to comment on information in writing. The letter was intended to comply with the provisions of s 424A of the Migration Act.
The Tribunal’s letter sought comments on certain information:
(a)A differently constituted Tribunal had found in 2004 that the applicant’s de facto husband was not a person to whom Australia owed protection obligations under the Refugees Convention.
(b)The applicant’s claim that the parish priest of her church was a Mr Maher was wrong.
(c)The applicant had claimed that her de facto husband may be compelled to remove himself to Hong Kong and that meant that they would have to wait ten years to be reunited.
(d)The Tribunal provided independent country information about entry to Hong Kong.
(e)The Hong Kong Immigration Department had advised the Refugee Review Tribunal that a Chinse citizen would not lose his status as a permanent resident even if absent from Hong Kong for long periods.
The Tribunal invited comments by 1st August 2007. The applicant replied in writing in a letter dated 20th July 2007[2]. She also provided to the Tribunal a Statement by her de facto husband, who was a detainee at the Immigration Detention Centre at Villawood, New South Wales. A copy of the statement appears at pages 176 to 183 of the Court Book. A further statement from the applicant’s de facto husband was provided.
[2] Court Book pages 173 - 175
The applicant also provided to the Tribunal a letter from Fr. Paul McGee dated 17th July 2007 in which he referred to the applicant’s claim that the priest was a ‘Mr Maher’. He said:
In the community I am known as Fr. Ma (Ma Shen Fu) – for easier communication with mostly non English speaking parishioners[3].
[3] Court Book at 224
The Tribunal signed its decision on 6th august 2007 and handed the decision down on 28th August.
The Refugee Review Tribunal Decision
The Tribunal affirmed the decision not to grant the applicant and her stepson Protection (Class XA) visas. A copy of the Tribunal Decision Record can be found at pages 228 to 249 of the Court Book. The decision sets out the applicant’s claims and evidence, being:
(a)the Applicant’s claims in her statement supplied with her application for a protection visa;
(b)the additional documents provided to the Tribunal by the applicant;
(c)a summary of the oral evidence at the hearing from the applicant and her stepson;
(d)the Tribunal’s s 424A letter to the applicant;
(e)a summary of the documents that the applicant provided in response to the s 424A letter.
The Tribunal also set out Independent Country Information upon which it relied, under the following headings:
· Unregistered Child
· Guangdong province
· Hong Kong
· Christians in Chongqing
· Do the leaders in the Family Church conduct Baptism ceremonies
· Passport Renewal for Chinese citizens
The Tribunal’s Findings and Reasons
The Tribunal’s findings and reasons are set out on pages 244 to 248 of the Court Book. The Tribunal found that both the applicant and her stepson were Chinese nationals on the basis of their Chinese passports.
The Tribunal referred to the applicant’s claim that she would suffer as the mother of an unregistered child as “only a minor claim”[4]. The Tribunal referred to independent country information and the applicant’s evidence and was satisfied that “any fee for registration would not be a financial burden to her”[5]. The Tribunal did not accept on the evidence that there was a real chance that the applicant would be unable to pay the ‘social compensation fee’ if she was required to do so in order to obtain a registration for her child. The Tribunal went on to find that the applicant would not suffer any adverse effects due to her child being ‘unregistered’ and found that she would not suffer harm or persecution because she was the mother of an unregistered child.
[4] Court Book at 244
[5] Court Book at 245
The Tribunal then considered the applicant’s claim that she would suffer because of her de facto husband’s political opinion. The Tribunal considered the material provided by the applicant’s de facto husband and the further statements and documents that the applicant provided in response to the s 424A letter.
The Tribunal noted that the applicant’s de facto husband had stated that the applicant may be subject to being questioned and monitored if it was known that she was associated with him but did not find that this would amount to serious harm. The Tribunal was not satisfied that the applicant was imputed with any adverse political opinion from her de facto husband’s claims and found that she would not suffer persecution if she returned to China for her de facto husband’s political opinion or her connection with him.
The Tribunal then considered the applicant’s claims that she was a Christian. The Tribunal had serious doubts about the credibility of the applicant’s claims in this regard, saying:
The Tribunal found the applicant’s oral evidence inconsistent and changed during the course of the hearing. The Tribunal finds the applicant’s evidence had the feel of a well rehearsed statement. The applicant started reciting a gospel story in rote fashion before the Tribunal could finish asking a question in relation to the gospel. The applicant also recited the sacraments. When the Tribunal asked the applicant to expand or explain the basic differences between an organisation like “Hillsong” and the “Catholic” Church she could not…The applicant changed claims during the hearing and appeared inconsistent and therefore lacked credibility[6].
[6] Court Book at 247
The Tribunal accepted the letter provided by the applicant from Fr. McGee but noted that the letter did not contain any statement as to the applicant’s attendance or commitment to Catholicism. The Tribunal found:
The Tribunal accepts that the applicant may have started attending Church and some functions but the Tribunal finds that this was only to strengthen her claim for refugee status.
The Tribunal has formed the view that the applicant was Baptised a Catholic simply in order to strengthen her claim for refugee status. The Tribunal is not satisfied that she has a real commitment to Christianity or the Catholic Church. As the Tribunal is not satisfied that the applicant’s conduct was otherwise then for the purpose of strengthening her claim to be a refugee under the Refugees Convention it must disregard her conduct in Australia as required by section 91R(3) of the Act[7]
[7] Court Book at 248
The Tribunal referred to the applicant’s oral evidence that she was interested in Christianity before she left China for Australia. The applicant came to Australia on business in 2000 with valid documents. The Tribunal stated:
The Tribunal finds it significant that while in the safe environment of Australia from 2000 onwards she did not pursue her interest in Christianity, because the Tribunal has found that the applicant was not a Christian now the Tribunal finds that the applicant was not a Christian in China. The Tribunal does not accept that the applicant was a Christian in China in 1999 or that she was ever detained or the subject of neighbourhood attention in 1999[8].
[8] Ibid.
The Tribunal found that the applicant would not be in danger if she were to return to China and found that she would not practise
Christianity or Catholicism is she were to return to China. The Tribunal was not satisfied that the applicant had a well founded fear of being persecuted for a Convention reason if she were to return to China and affirmed the decisions not to grant the applicant or her stepson Protection (Class XA) visas.
Application for Judicial Review
The applicant commenced proceedings in this Court by filing an application and an affidavit in support on 19th September 2007. she filed an amended application on 4th April 2008. The amended application was prepared for the applicant by a solicitor on the Refugee Review Tribunal Legal Advice Scheme Panel, Ms Nicholl, who did not appear for her at the hearing.
The applicant did not file any written outline of submissions, but I consider that the amended application is drafted in such a way that it includes submissions on each of the grounds in the application. The applicant attended Court and made oral submissions at some length.
The applicant told the Court the Refugee Review Tribunal mentioned that she went to the Hillsong Church. She said that she did not do so, only her husband went. Her submission was that she did not know the difference between the Hillsong Church and the Catholic Church because she never went to the Hillsong Church. Therefore, she said, the Tribunal decision was not a fair one.
The applicant claimed that the Tribunal made a mistake about the parish priest of the Church at Flemington. She said that due to a misunderstanding the Tribunal thought that she made up the name of a priest from that church.
The applicant referred to the letter from Fr. McGee that she had produced in answer to the Tribunal’s s 424A letter. She claimed that this letter proved that her family knew Fr. Ma very well and so the Tribunal decision was not fair. She claimed that the Tribunal misunderstood the letter or ignored the explanation.
The applicant also claimed that the Tribunal made an error when it came to the conclusion that she had gone to another church. She said this was based on the Tribunal’s prejudgment. The only evidence was that her husband’s case had previously gone to the Refugee Review Tribunal. She said she had not gone to another church.
The applicant claimed that the Tribunal did not give careful consideration to her oral evidence at the hearing.
The applicant also said that the Tribunal came to the conclusion that the Chinese Communist Party would persecute her husband but this would not result in her being persecuted. She said that the Tribunal should have conducted its own independent investigation.
The applicant told the Court that she was involved in an underground church in China. She said she was detained by the police in China.
The applicant told the Court that the Tribunal’s decision referred to material downloaded from the Internet. She did not believe that every individual case should be decided by information derived from independent country information.
In her submission in reply to the oral submission of the counsel for the first respondent, the applicant told the Court that the Tribunal Member did not ask her the difference between the Hillsong Church and the Catholic church but between Catholicism and Christianity. All of the information about the Hillsong Church related to her husband and not to herself.
The applicant said that she was asked about her husband at the hearing so she supplied evidence about her husband.
Counsel for the Minister, Ms Wong, submitted that the applicant’s grounds of review as set out in her amended application could be summarised as five grounds:
a)Ground 1 – the RRT failed to ask the applicant appropriate questions;
b)Ground 2 – The RRT erred by proceeding on a misunderstanding of the facts;
c)Ground 3 – The RRT erred by taking into account evidence it was required to disregard;
d)Ground 4 – the RRT failed to take into account relevant information; and
e)Ground 5 – the RRT failed to accord procedural fairness to the applicant.
Ms Wong submitted that the applicant had not showed any jurisdictional error and the Tribunal decision is a privative clause decision.
She submitted that the Tribunal had not asked ‘culturally specific’ questions but appropriate questions and that the Tribunal was entitled to determine which questions to ask. The applicant was seeking merits review of the Tribunal’s decision, which is not available in this Court (Minister for Ethnic Affairs v Wu Shan Liang[9].
[9] (1996) 185 CLR 259
As to Ground 2, the claim that the Tribunal misunderstood the facts, Ms Wong submitted that the applicant had failed to prove that the Tribunal’s summary of what had occurred at the hearing was incorrect and had failed to demonstrate any factual error in the Tribunal’s determination. The applicant had not shown any error of law in the manner in which the Tribunal approached its task.
In respect of that ground, taking into account evidence that should have been disregarded, Ms Wong submitted that the applicant’s analysis assumes that the Tribunal relied upon the applicant’s evidence of her activities in determining in determining that she would not practice Christianity or Catholicism if she were to return to China. However, the Tribunal had found that the applicant was not a committed Catholic or Christian, especially not in China, and used this evidence as a basis for its finding that the applicant would not so practice in China.
Ms Wong submitted that the Tribunal had not used the applicant’s activities in Australia in determining that she would not practice Catholicism or Christianity in China. Ms Wong submitted that the decision in SZJSD should be distinguished because there was no reliance on conduct that had occurred in Australia. Rather, the Tribunal had made that determination based on its questioning of the applicant.
As to the applicant’s Ground 3, Ms Wong submitted that the Tribunal did expressly consider the letter from Fr. McGee to which the applicant had referred.
Referring to the applicant’s claim that the Tribunal failed to provide procedural fairness, Ms Wong submitted that the Tribunal had provided to both the applicant and her step-son the opportunity to put further evidence to the Tribunal, but they had declined. The step-son had the opportunity to inform the RRT that he wished to give further evidence but declined to do so.
The applicant had not provided any evidence to demonstrate that her step-son gave evidence at the hearing about seeing the police in China arrest the applicant and take her away for detention. In any event, she submitted, the Tribunal is not required to refer to every piece of evidence and every contention made by an applicant when it gives its written reasons for its decision (Applicant WAEE v Minister for Immigration and Multicultural and Multicultural and Indigenous Affairs[10] ). It was open to the Tribunal to conclude, on the basis of the step-son’s evidence that he was not a Catholic and did not therefore have any grounds to make his own claim to be a refugee entitled to protection under the Refugees Convention. In any event, I note that the applicant’s step-son was a Part D applicant who was applying for a protection visa on the basis that he was a member of the applicant’s family unit. Thus, it was not open to him to make such a claim in the proceedings under review.
[10] (2003) 75 ALD 630
I also note that the applicant’s step-son is not an applicant in these proceedings, so any other claim that he might have for protection is irrelevant to these proceedings.
As to the additional claims that the applicant made at the hearing that did not appear in her amended application, Ms Wong submitted that the Tribunal did not have an obligation to investigate the claim of the applicant’s de facto husband. There was very little evidence that the applicant had suffered or would suffer any harm herself in the material provided in support of her de facto husband’s claims. It was therefore open to the Tribunal to consider the effect of the applicant’s de facto husband’s claims as to how they might affect the applicant personally.
The applicant’s final claim advanced at the hearing was that it was an error to rely solely on material downloaded form the Internet or other independent country information to decide a case. Ms Wong submitted that material from the Internet was not all that the Tribunal relied on in making its decision. In any event, it is open to the Tribunal to make use of material from the Department of Foreign Affairs and Trade and newspapers and other reputable sources (Minister for Immigration & Multicultural & Indigenous Affairs v NAMW[11]).
[11] (2004) 140 FCR 572; [2004] FCAFC 264
Ms Wong submitted that no jurisdictional error had been made out and the application should be dismissed.
Conclusions
The applicant’s Ground 1 claims that the Tribunal erred in law in reaching the conclusion that she did not have a well-founded fear of being persecuted on the basis of her religion as a Catholic. She claims that the Tribunal’s questioning of her at the hearing was based on culturally specific questions. She submitted that the Tribunal failed to ask the applicant open questions about her commitment to Catholicism that would properly test that commitment.
The applicant further submitted that the Tribunal fell into jurisdictional error by implicitly limiting its reasoning to the view that a person can only have a genuine commitment to a particular religion if that person can correctly recite the teachings of that religion as understood by the Tribunal. By asking itself the wrong question the Tribunal fell into jurisdictional error (Craig v South Australia[12]).
[12] (1995) 184 CLR 163
The applicant also submitted that the Tribunal erred in its conclusions by proceeding on a misunderstanding of the facts or a misstatement of the evidence regarding the applicant’s involvement with the Hillsong Church. Ms Wong of counsel characterised this ground as failing to ask the applicant appropriate questions.
I am not satisfied that the Tribunal asked the applicant culturally specific questions, and even if that were the case, there is no jurisdictional error. It is the task of the Tribunal to decide questions of fact and it is a matter for the Tribunal to decide what questions will be asked of the applicant. Even if the Tribunal makes a factual error, this is not jurisdictional error (Abebe v Commonwealth[13]).
[13] [1999] HCA 14
Whilst the applicant claims that the Tribunal asked itself the wrong question, there is nothing to indicate that the Tribunal had misunderstood its task or was unaware of the issues that it had to decide. By this ground, the applicant is seeking to review the factual merits of the decision reached by the Tribunal, which is not available in judicial review.
As Ground 1 in effect seeks merits review and discloses no jurisdictional error, is rejected.
The applicant’s Ground 2 claims that the Tribunal wrongly applied section 91R(3) of the Act, an error of the type described in SZJSD v Minister for Immigration (supra). I am not satisfied that this ground has been made out. The Tribunal was not satisfied that the applicant was a committed Catholic, having found that she was not a Christian in China. The Tribunal found that the applicant was not a Christian in Australia, finding it significant that she did not pursue her interest in Christianity when she arrived in the safe environment of Australia in 2000[14]. Because the Tribunal did not accept that the applicant was not a Christian in China or in Australia, the Tribunal found that she would not practise Christianity or Catholicism if she were to return to China.
[14] Court Book 248
The Tribunal was not basing its findings on the applicant’s conduct in Australia, which it had disregarded as required by s 91R(3) of the Act. Accordingly, the decision in SZJSD can be distinguished on the facts.
Ground 2 has not been made out.
The applicant’s Ground 3 claims that in considering the applicant’s response to a letter sent under the provisions of s 424A of the Migration Act, the Tribunal erred in law regarding the identity of the parish priest at St Dominic’s Catholic Church in Flemington. First of all, any confusion about the identity of the priest could only be an error of fact, not an error of law.
Second, the Tribunal considered and accepted the letter from Fr. Paul McGee dated 17th July 2007 that the applicant provided in reply to the s 424A letter. The Tribunal stated, in its findings and reasons:
The Tribunal notes that the applicant could not provide a reference from her parish priest or knew the name of the parish priest where she claims she worships. The Tribunal accepts the letter provided by the applicant to the Tribunal, after the hearing, from Fr. McGee. That letter states that the applicant would only have known Fr. Ma as a priest and did not come into contact with Fr. Robbie[15].
[15] Court Book at 248
The applicant’s amended application claims that no positive weight was given to Fr McGee’s corroborative evidence. This claim is not made out. It is for the Tribunal to consider and then give whatever weight it considers appropriate to the applicant’s evidence.
The amended application goes on to claim that in failing to properly consider the letter from Father Paul McGee and in failing to accord any weight in favour of the applicant the Tribunal has erred in law. In this regard it has only taken into account factors weighing against the applicant’s credibility and against her claims of being a committed Catholic, and placed no weight on evidence tending to support or corroborate the applicant’s claims.
This appears to be a claim of bias or lack of good faith. Such allegations should not be lightly made and must be clearly alleged and proved (SBBS v Minister for Immigration & Multicultural & Indigenous Affairs[16]). It is likely to be a rare and extreme circumstance that a lack of good faith on the part of the Tribunal Member will be apparent by reference only to the reasons for the decision (SBBF v Minister for Immigration & Multicultural & Indigenous Affairs[17]). There is no such evidence.
[16] [2002] FCAFC 361 at [43]
[17] [2002] FCAFC 358 at [16]
This ground clearly has not been made out.
The applicant, in her Ground 4, claims that the Tribunal’s questioning of her stepson about her claims to refugee status based on her religion was very brief and in consequence the Tribunal failed to accord to the applicant the procedural fairness required for a fair hearing.
The applicant has not provided a transcript of the Tribunal hearing. All that the court can rely on is the Tribunal’s Decision Record. The Tribunal summarised the stepson’s evidence and then states:
The Tribunal asked if there was any further evidence either of the applicants would like to put to the Tribunal. The applicants replied no[18].
[18] Court Book at 235
I am satisfied on the evidence that the Tribunal gave the applicant and her stepson an invitation to give further evidence if they wished to do so and that they declined the invitation.
There is nothing to suggest that the applicant was not given the opportunity for a fair hearing and I am satisfied that the Tribunal complied with s 425 of the Act. This ground fails.
The applicant raised two grounds at the hearing that were not referred to in her amended application. First, she claimed that the Tribunal should have conducted its own independent investigation of her de facto husband’s case.
The Tribunal has power under s 424 of the Act in conducting the review to get any information that it considers relevant. However, this section does not impose any obligation on the Tribunal to conduct its own independent investigation of any of the applicant’s claims. It is well established that the Tribunal’s power under s 424 is discretionary and it does not have a duty to investigate the applicant’s claims (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB[19]; SZIRO v Minister for Immigration & Citizenship[20]).
[19] (2004) 207 ALR 12 at 42-43
[20] [2007] FCA 260 at [12]
No jurisdictional error is made out.
The applicant claimed that the Tribunal relied on information downloaded from the Internet and independent country information in making a decision on her case. First, this information was not all that the Tribunal relied on. The Tribunal’s primary reason for rejecting the applicant’s claims was on the credibility of her oral evidence:
The Tribunal found the applicant’s oral evidence inconsistent and changed during the course of the hearing…
The applicant changed claims during the hearing and appeared inconsistent and therefore lacked credibility[21].
[21] Court Book at 247
It is well established that the assessment of a witness’s credibility is a matter for the Tribunal and not for the Court. The applicant gave oral evidence to the Tribunal and it was open to the Tribunal to accept or reject her evidence.
It is also well established that the Tribunal may rely on independent country information, including material that appears on the Internet. There is no jurisdictional error in doing so. This ground fails.
The applicant has not made out any jurisdictional error in the Tribunal decision. She is not legally represented, although she had advice from a lawyer of the Refugee Review Tribunal Legal Advice Panel, who prepared her amended application for her. I am unable to discern in the Tribunal decision any arguable case for a jurisdictional error that the applicant has not claimed.
In the absence of jurisdictional error the Tribunal decision is a privative clause decision and, as such, is not subject to orders in the nature of certiorari, mandamus or prohibition (s 474(1)).
The application will be dismissed with costs.
I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 27 June 2008
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