SZLUD v Minister for Immigration

[2008] FMCA 799

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLUD v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 799

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal failed to make further enquiries about the applicant’s claims – whether the Refugee Review Tribunal engaged in misleading and unfair conduct in its hearing – whether the Refugee Review Tribunal breached s.420 of the Migration Act 1958 (Cth) – whether the Refugee Review Tribunal was biased – whether the findings of the Refugee Review Tribunal were illogical, irrational or unreasonable – whether the Refugee Review Tribunal made erroneous findings of fact.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 420; 425; 474; 427; pt.8 div.2

Maddy v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 233 ALR 503
NAEH of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 927
Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982
NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
NATC v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 52
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1985) 162 CLR 24
Minister for Immigration and Multicultural Affairs v SGLB (2004) 207 ALR 12
SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225
Semunigus v Minister for Immigration and Multicultural Affairs [1999] FCA 422
Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505
NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235
Minister for Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507
Re Ruddock; ex parte Applicant S154/2002 201 ALR 437
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63

Applicant: SZLUD

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 3892 of 2007

Judgment of: Emmett FM

Hearing dates: 15 May 2008 & 2 June 2008

Date of last submission: 2 June 2008

Delivered at: Sydney

Delivered on: 19 June 2008

REPRESENTATION

Counsel for the Applicant: Mr S. Prince

Solicitors for the Applicant: Ms C. Grygiel, SBA Lawyers

Counsel for the Respondent: Mr J. Mitchell

Solicitors for the Respondent: Ms Z. McDonald, DLA Phillips Fox

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3892 of 2007

SZLUD

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 7 December 2007 and handed down on 7 December 2007.

2. The Applicant claims to be from the People’s Republic of China (“China”) and of Christian faith (“the Applicant”).

3. The Applicant arrived in Australia on 7 October 2006 having departed on a passport issued in her own name and a student visa the details of which the Applicant cannot recall, having lost her passport.

4. On 11 November 2007, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural Affairs (“the Department”) under the Act.

5. On 5 October 2007, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.

6. On 9 October 2007, the Applicant lodged an application for review of the Delegate’s decision with the Tribunal. 

7. On 7 December 2007, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.

8. On 19 December 2007, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision. 

Legislative framework

1. Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.

2. Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.

3. Australia has protection obligations to a refugee on Australian territory. 

4. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

   “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

5. Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.

The protection visa application

1. In support of her protection visa application, the Applicant provided a statutory declaration in which she claimed that as a child she accompanied her parents to religious services in an underground church about once a week. In recent years the Applicant claimed to have met twice a week with the church where the 10 to 20 members “said prayers and read the bible.” The Applicant stated that in May 2001 the police found about the group and raided the Applicant’s house. The Applicant stated they did not arrest those who cooperated with them.

2. However, the Applicant stated her father and four others tried to escape but were caught and arrested. The Applicant stated her father’s leg was broken and he remained in hospital for about six months as a result. The Applicant stated that following his stay in hospital he was taken to the police station and detained for a further two months.

3. The Applicant stated that following this incident police would come to her house to check on them from time to time. The Applicant stated that her church group continued to meet secretly and that she continued to attend the meetings.

4. The Applicant stated that her father and siblings left the local area in 2004 because of the danger in being discovered again. The Applicant stated that because she was under 18 years old she did not face the same risk of arrest as others so was able to remain with her paternal grandmother. The Applicant stated that she continued to attend the services on a regular basis. She stated that her grandmother could not go to the meetings because of her age although was a committed Christian and knew a lot about the bible.

5. The Applicant stated that she became more committed to her faith from about the age of 15 years, however, was not baptised because in her church people were not baptised until they reached the age of 18 years.

6. The Applicant stated that in 2006 her father arranged for her to travel to Australia to study because she was soon to turn 18 years and would be in greater danger of arrest because of her religion once she reached that age were she to remain in China.

7. The Applicant stated that since arriving in Australia she practised her religion “by reading my bible regularly and attending church.” The Applicant stated that she went to a church in Lidcombe where there were a large number of Chinese people in the congregation. The Applicant stated that the priest at the church spoke English and used a Chinese interpreter. The Applicant stated that since she has been in Villawood she goes to services “regularly” and attends bible study every night.

8. The Applicant stated that she did not apply for a protection visa prior to arriving in Villawood because she did not know that this was possible because she is only 18 years old, speaks very little English and did not have anyone to help or advise her on what to do.

The Delegate’s decision

1. The Delegate refused the Applicant a protection visa on the basis she was not a person to whom Australia has protection obligations under the Convention.

2. The Delegate expressed doubts about the credibility of the Applicant’s claims and whether her fear of Convention related persecution was well-founded. The Delegate found that the Applicant’s “lawful departure from China is a strong indicator that her claimed involvement in an underground church is unlikely to be known to the PRC authorities, if indeed, she is a Christian.” In reaching that finding the Delegate identified independent country information to which it had regard.

3. The Delegate also had regard to the Applicant’s delay of 11 months in lodging her protection visa application after arriving in Australia, although acknowledged it was not an issue sufficient to “fatally undermine” the Applicant’s case. The Delegate found that the Applicant had manufactured her explanation in seeking protection in Australia in an attempt to “mitigate her considerable delay in seeking protection and accordingly support her claims for protection.”

4. The Delegate found that the Applicant’s claims “relating to her activities as a Christian are flimsy and unsubstantiated and she has provided no substantial information in support of her claims.”

5. The Delegate also noted that the Fujian province from which the Applicant comes is more tolerant than other provinces in dealing with unregistered religious groups.

6. The Delegate found that “the applicant’s circumstances show little evidence of any significant commitment to Christianity either in China or in Australia.” The Delegate had regard to the fact that the Applicant had not established that she was an influential member of the underground Christian church in China, nor did she present information to suggest that she would be capable of such activity if she were to return to China.

Review by Refugee Review Tribunal

1. The Applicant did not provide any further material at the time she lodged her application for review.

2. On 16 October 2007, the Tribunal wrote to the Applicant informing her that it had considered the material before it but was unable to make a favourable decision on that information alone. This letter also invited the Applicant to send any documents or written arguments by way of additional information that she wished the Tribunal to consider. The letter invited the Applicant to come to a hearing before the Tribunal to “give oral evidence and present arguments.”

3. Further, on 16 October 2007 the Tribunal wrote to the Applicant inviting her to comment on information that the Tribunal considered may be part of the reason for affirming the decision under review. The letter invited the Applicant to an interview with the Tribunal on 26 October 2007 to give comments on the information identified. The attachment to the letter identified the information as:

   i)the delay by the Applicant of 11 months in lodging her protection visa application after her arrival in Australia; and

   ii)the lack of detail in support of her claims to the Department.

4. In particular, the Tribunal’s letter noted “There is evidence of the applicant’s family having come to the adverse attention of local authorities (in 2001), but little beyond mere assertions as to continuing practice. Based on the evidence provided, the Tribunal may not be satisfied the suppression of the applicant’s alleged religious convictions would constitute persecution of her; or that there is a real chance she would give voice to same on return, and come to the adverse attention of government authorities or anyone else.”

5. On 18 October 2007, the Applicant lodged an Appointment of Representative/Appointment of Authorised Recipient form with the Tribunal with the details of her migration agent.

6. On 24 October 2007, the Applicant’s migration agent wrote to the Tribunal requesting an adjournment of the hearing before the Tribunal scheduled for 26 October 2007, in order to enable the Applicant to put additional evidence before the Tribunal which was “currently in transit from the PRC and should be with the applicant in the near future.”

7. In addition, on 24 October 2007, the Applicant lodged a statutory declaration with the Department in support of her review application. The statutory declaration purported to expand on the claims made in support of her protection visa application. In particular the Applicant stated the following:

   “5. Following the incident in May 2001, as described in my previous statutory declaration, the authorities came to our house and questioned my father about his involvement with the church on a number of occasions. When the authorities came to the house they would threaten my father by telling him that he would be arrested if they discovered that he was again involved in an underground church.

   6. I remember a specific incident in 2004, when the authorities came to our house and interrogated my father about his involvement in the church. I was at home with my father when this occurred I was very scared by what was happening. My father was again warned that if he were found to be involved in the church he would be sent to a place operated by the Public Security Bureau, where he would be brainwashed. It was this specific incident that motivated my father to leave our village.

   7. As I indicated in my previous statutory declaration, I went to live with my paternal grandmother along with my siblings. The authorities came to my grandmother’s house on a number of occasions looking for my father. They said that my father would be arrested because of his involvement in an illegal church.

   8. I consider myself to be a committed Christian. If I were to return to China I would join an underground church. I would not join an official church because these churches are controlled by the government. They are not true churches as their religious teachings are made to conform to the ideals of the communist party.

   9. I believe that I will be targeted and harmed by the PRC authorities because of my involvement in these underground churches.”

8. The Tribunal refused the migration agent’s request for an adjournment by letter dated 24 October 2007. The letter noted that the Applicant was still in detention and that the Tribunal was of the view that it was in her interest to have the matter finally determined. However, the letter stated that “one exception to provide for delay is that if there are reasonable grounds to do so.” The Tribunal declined the request to reschedule the hearing, however, noted it would consider further submissions on the matter.

9. Following the hearing on 26 October 2007, the Applicant’s migration agent wrote to the Tribunal on 5 November 2007 and 4 December 2007 enclosing the following:

   i)Copy of article “The Underground Church”;

   ii)Copy of article “Under House Arrest”;

   iii)Copies of various references to harm suffered by Christians in the PRC; and

   iv)Copy of a certificate from Pastor Waininau confirming that the applicant has completed the Reconnect Course” while she has been detained at Villawood Detention Centre.

10. The migration agent’s post hearing letters also referred to extracts from independent information which the letter said confirmed that China “continues to systematically harm members and leaders of unregistered churches in the PRC. We submit that this information supports [the Applicant’s] claim that despite her low profile involvement in an unregistered church in the PRC, she nevertheless has a well-founded fear of being harmed if she were to return to the PRC.”

The Tribunal’s decision

1. The Tribunal noted all evidence and material provided by the Applicant, including further material received from the Applicant’s migration agent post hearing.

2. At the heart of the Tribunal’s rejection of the Applicant’s claims was “the cumulative consequences of a number of adverse credibility findings.”

3. The Tribunal first considered whether at 18 years of age the Applicant was of sufficient maturity to prosecute her case and satisfied itself that she was. In making that finding the Tribunal had regard to the fact that she had travelled to Australia at the age of 17 years “to inter alia study an English language course”, having been educated in China until the age of 17 years. The Tribunal also noted that the Applicant did not provide any evidence to suggest that her experiences in China or Australia could have had traumatised her to such an extent that she was unable to prosecute her case before the Tribunal.

4. The Tribunal found that the Applicant had “embellished, if not entirely fabricated material aspects of her claim to be a refugee.” The Tribunal rejected all the Applicant’s material claims as false.

5. In particular, the Tribunal had regard to the Applicant’s delay of 11 months in applying for a protection visa after having entered Australia and her explanation in respect of such delay. The Tribunal did not accept that she did not have anyone in the Chinese community with whom she associated to advise her. Nor did the Tribunal accept her explanation that she did not know she could apply for refugee protection in Australia. Nor did the Tribunal accept that, if she feared protection in China for the reasons she claimed, she would not have made some effort to find out about refugee protection until after she had been detained in August 2007. In rejecting the Applicant’s explanation, the Tribunal had regard to her oral evidence at the hearing that she had regularly attended bible study in Auburn since January 2007 and had access to Chinese speaking students at the college she attended from May 2006 and also the places that she worked.

6. In relation to the Applicant’s claims of the 2001 and 2004 incidents, the Tribunal had regard to her oral evidence at the hearing where she resiled from her written claim that her father had been arrested in 2004. The Tribunal noted her explanation that she had become confused, however, did not accept that the quality of interpretation sufficiently explained the adverse credibility issues to which the Tribunal referred.

7. In relation to the Applicant’s claimed religious practice and belief, the Tribunal found the Applicant not to be a witness of truth. The Tribunal found that her level of knowledge about her religion was not consistent with the activities and opportunities that she claimed to have had in participating in regular religious study. The Tribunal found that the Applicant’s lack of knowledge about her alleged religious convictions was part of the reason for the Tribunal’s adverse credibility finding in respect of the Applicant’s evidence.

8. The Tribunal was not satisfied that the further material provided by the Applicant’s migration agent overcame the concerns the Tribunal had expressed about the Applicant’s credibility.

9. The Tribunal concluded it was not satisfied that the Applicant has a well-founded fear of persecution in China for a Convention related reason and affirmed the decision under review.

The proceeding before this Court

1. The Applicant was represented by Mr Prince, of counsel.

2. By consent, at the commencement of the hearing of this proceeding on 15 May 2008, the Applicant was given leave to rely on a further amended application provided to the Court in draft form on the basis that a further amended application in the same terms would be filed.

1. The further amended application was filed in Court on 2 June 2008 when this hearing resumed. The grounds relied upon are as follows:

   Ground 1

   “Contrary to s 420 of the Act, the Tribunal failed to conduct the hearing in accordance with the requirements of substantial justice:

   Particulars

   (a) The Tribunal failed to inquire orally about the police raid in 2001 which was the origin of the applicant’s fear of persecution due to her religious convictions; and

   (b) The Tribunal engaged in misleading and unfair conduct by:

   i. asking long and convoluted questions;

   ii. asking questions and making comments and withdrawing them;

   iii. instructing the applicant to respond in only “yes” or “no” answers;

   iv. interrupting the applicant when she was responding;

   v. failing to give the applicant a fair opportunity to state her case;

   vi. The Tribunal failed to give appropriate weight to the consideration that the applicant was a minor at all times in China and at all material times in Australia;

   vii. The Tribunal failed to consider the relevant provisions of the United Nations High Commissioner for Refugees Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, being paragraphs 218 and 219.

   viii. The decision of the Tribunal failed to give proper consideration and weight to the further evidence and submissions provided to the Tribunal on 5 November 2007;

   ix. The Member only made enquiries into facts that might discredit the applicant, and not those facts which may support the applicant’s case; and

   (c) The Member failed to give proper consideration to the significance of the 2001 incident in establishing the applicant well-founded fear of persecution; and

   (d) The Member failed to give proper consideration to the significance of the 2004 incident in establishing the applicant well-founded fear of persecution.”

   Ground 2

   “The decision of the Tribunal made wrongful, illogical or unreasonable findings of fact which were contrary to the evidence provided and not based on logical grounds.

   Particulars

   (a) The Tribunal wrongfully found that the applicant stated that her father had been arrested in 2004 when the applicant never made such a statement.

   (b) The Tribunal’s finding that the applicant had a lack of knowledge about her religious convictions was contrary to the evidence provided.”

   Ground 3

   “The Tribunal’s decision was affected by the Member’s illogical and irrational findings about the applicant’s credibility which were not based on findings or inferences of fact supported by logical grounds.

   Particulars

   (a) The Tribunal erred in finding that the applicant was of adequate maturity to prosecute her case given the failures of the Tribunal in (Ground 1) (b) vi and vii above.

   (b) Because of the Tribunal’s erroneous finding of fact described in (Ground 2) (a) the Tribunal made an irrational and illogical finding about the applicant’s credibility and truthfulness in providing information about the incident in 2001.

   (c) Because of the Tribunal’s erroneous finding of fact described in (Ground 2) (a) the Tribunal made an irrational and illogical finding about the applicant’s credibility and truthfulness in providing information about the incident in 2004.

   (d) Because of the Tribunal’s erroneous finding of fact described in (Ground 2) (b) the Tribunal made an irrational and illogical finding about the applicant’s adverse credibility and truthfulness in providing information about her religious convictions.

   (e) The Tribunal wrongfully found that the applicant was being evasive in answering questions and withholding relevant information given the errors of the Tribunal described in (Ground 2) (b) above.”

   Ground 4

   “ The decision of the Tribunal was induced or affected by the bias of the presiding Tribunal Member.

   Particulars

   (a) The member had a pre-determined view that was incapable of alteration on the following:

   i. the applicant’s reason for applying for a protection visa;

   ii. the reason for the applicant’s delay in applying for a protection visa once having arrived in Australia;

   iii. the behaviour of Chinese persons living in the Australian community;

   iv. the behaviour of Chinese persons who seek the protection of Australia as refugees;

   v. the behaviour of Chinese authorities;

   vi. the applicant’s truthfulness;

   vii. the quality and quantity of the applicant’s religious convictions.

   (b) The Member made enquiries only into facts that might discredit the applicant, and not those facts which may support the applicant’s case.

   (c) The Member failed to give proper consideration to the significance of the 2001 incident in establishing the applicant well-founded fear of persecution; and

   (d) The Member failed to give proper consideration to the significance of the 2004 incident in establishing the applicant well-founded fear of persecution.”

2. At the heart of the complaints in the further amended application, are the Applicant’s contentions that the Tribunal did not conduct its hearing in accordance with the requirements of substantial justice in that it did not approach its task with a mind open to persuasion; was biased; and, that the findings it made were, as a consequence, illogical and irrational.

3. Counsel for the Applicant sought to play the tapes of the Tribunal hearing to the Court on the basis that the unfair manner in which the hearing was conducted could only be properly appreciated by listening to the tapes. In particular, counsel for the Applicant submitted that it was necessary to listen to the tapes in order to fully appreciate instances where the Tribunal allegedly spoke over the Applicant, did not allow the Applicant to finish answers and asked long and convoluted questions, often without giving the Applicant a proper opportunity to respond. Counsel for the Applicant contended that this conduct by the Tribunal rendered the hearing unfair and demonstrated bias on the part of the Tribunal member.

4. However, listening to the tapes made clear the fair and measured way in which the hearing was conducted. The Tribunal member spoke slowly ensuring that his words were interpreted regularly (never more than two lines of transcript). The Tribunal repeated the only question he was asked by the Applicant to repeat, apologising for the lack of clarity in his first question, and the Applicant’s answer was appropriately responsive (see paragraph 60 (xvi) below).

5. The Tribunal member invited the Applicant throughout the hearing on three separate occasions to expand upon her claims or her answers. The Applicant’s answers were brief (see paragraph 60 (xxxiv), (xxxv) and (xxxvii) below).

6. For the most part, the Tribunal member gave the Applicant sufficient, if not, ample, time to respond to any question or concern put to the Applicant about her claims.

7. The Tribunal did cut off the Applicant in respect of two matters of concern it was seeking to put to the Applicant. However, listening to the tapes suggests that the Applicant’s answers may not have been responsive to the concerns expressed by the Tribunal. Each time the Tribunal apologised and rephrased its question or concern. (See paragraph 60 (xxxviii), (xxx), (xviii) and (xv) below).

8. For the reasons given below, I have found none of the complaints made by the Applicant about the hearing, whether in the further amended application or the written or oral submissions, to be made out.

9. The process engaged in by the Court in listening to the tapes was to follow a transcript of the hearing, which was also tendered, and for counsel for each party to interrupt at particular points of the tapes that it wished the Court to have regard to.

10. At the conclusion of counsel for the Applicant’s submissions, I went through my markings of the transcript with counsel to ensure they were accurate and comprehensive. Mr Prince confirmed that the matters I had identified were all those upon which he relied, as well as overall reliance on the cumulative effect of the manner in which the hearing was conducted by the Tribunal.

11. Accordingly, I have set out below a detailed and chronological analysis of the Tribunal hearing, identifying where appropriate matters in respect of which submissions were made and my determination of those submissions. Thereafter I have considered the grounds of the further amended application.

Analysis of the hearing tapes

1. Listening to the tapes and a fair reading of the transcript of the hearing discloses the following:

   i)At the outset the Tribunal member confirmed with the Applicant that she had the assistance of a registered migration agent in relation to her application for a protection visa and her review by the Tribunal. The Tribunal confirmed that the Applicant had no problem with using the interpreter at the hearing that she had seen in Villawood.

   ii)The Tribunal explained to the Applicant that both the Tribunal member and the interpreter had confidentiality obligations arising out of the Applicant’s protection visa application.

   iii)The Tribunal then explored with the Applicant what she studied when she came to Australia on her student visa.

   iv)The Tribunal then confirmed where the Applicant was presently living and where she had previously lived since being in Australia.

   v)The Tribunal then explored with the Applicant the kind of work that she did in Australia.

   vi)The Tribunal then explored with the Applicant when she asked her relatives in China to send the documents referred to in her migration agent’s letter dated 24 October 2007. The Applicant answered 1 or 2 weeks ago.

   vii)The Tribunal asked the Applicant from whom she requested the documents. The Applicant answered “My uncle”. The Tribunal asked whether the Applicant had telephoned him, emailed him or written him a letter and the Applicant answered “Telephone”.

   viii)The Tribunal asked the Applicant whether she asked for particular information or left it to her uncle to decide what information to send. The Applicant answered “I didn’t ask for particular information I told him to send any information available”.

   ix)The Tribunal asked the Applicant if her uncle had suggested what information he may be able to obtain. The Applicant answered that she thought the support letter and medical certificate of her father’s injury. The Tribunal member then sought to clarify that the medical certificate was in relation to her father’s broken leg in accordance with the claims made by her in her statutory declaration dated 11 September 2007. The Applicant answered yes.

   x)The Tribunal then explored with the Applicant whether the letter of support was coming directly from her uncle. The Applicant answered that the letter was written by church people. The Applicant confirmed that none of the information had arrived at the time of the hearing.

   xi)The Tribunal then asked how the uncle was going to send the information to her and the Applicant answered “I don’t know”. The Tribunal member asked if the uncle was going to send it to her migration agent and the Applicant answered “I don’t think so”.

   xii)The Tribunal member then asked the Applicant if her uncle knew where she lived in Australia and the Applicant answered “He knows I’m in Villawood”. The Tribunal member then asked the Applicant if she had given her uncle the address of Villawood Detention Centre in Australia and the Applicant answered “No”.

   xiii)The Tribunal then asked the Applicant how would her uncle know where to send the information and the Applicant answered that she thought he would send the letters to her Auburn address where she had lived before.

   xiv)The Tribunal then had an exchange with the Applicant about whether she had lived at Kempsey, Tempe or Campsie.

   Counsel for the Applicant submitted that it was not necessary for the Tribunal to have such a discussion with the Applicant about whether the Applicant lived at Kempsey, Tempe or Campsie because it was clear on her protection visa application that the address was Campsie.

   I do not accept that any reasonable criticism could be made about the Tribunal member’s discussion with the Applicant about confirming her address. The Tribunal member was speaking to the Applicant in a careful and measured fashion without the slightest hint of hostility, aggression, nor was the Tribunal member’s manner in any way overbearing.

   xv)The Tribunal then explored with the Applicant why she had come to Australia and put to her that she had only applied for a protection visa after she had been detained.

   Counsel for the Applicant submitted that the Tribunal did not give the Applicant a chance to respond to that statement. Certainly, the Tribunal immediately went on to say that it was obliged to put to the Applicant that it may appear that the only reason she was applying for protection was because she was detained and not because she had a well-founded fear of persecution. The Tribunal went on to read to the Applicant from her written claims that she had not applied for a protection visa because she did not know this was possible, was 18 years of age, spoke very little English and had no one to help her. The Tribunal ensured that the interpreter regularly interpreted his words (usually no more than two lines of transcript).

   In referring to that explanation, the Tribunal then put to the Applicant “But that is not correct is it”.

   Again before the Applicant answered, the Tribunal member said “Because from what you have said you regularly attended church in Lidcombe which had a number of Chinese people in the congregation. And where the sermon was apparently interpreted into Chinese. So it appears that you did have people to assist and advise you.” The Applicant’s answer was that she was introduced by her classmates to go the church in Lidcombe.

   I reject the submission by counsel for the Applicant that the Tribunal did not give the Applicant a chance to respond to its expressed concern that she had only applied for a protection visa after she had been detained. A fair reading of the Tribunal’s words, makes clear that the following words used by the Tribunal were to clarify for the Applicant precisely what the Tribunal was concerned about in relation to her delay in applying for a protection visa.

   In the circumstances, it was open to the Tribunal to find that it was not satisfied about the Applicant’s explanation about her delay of 11 months in applying for a protection visa.

   xvi)The Tribunal member then said to the Applicant that in its experience, “Members of a particular community who are not --- members of the Chinese community for instance would be aware of ways of remaining in Australia on a legal basis. And particularly church organisations. And the high profile that refugee issues has/have in this country. Church organisations are commonly very aware of access to refugee protection in Australia. So if you are introduced into this congregation by friends and a number – and they had a number of Chinese speaking people in the congregation… then I have to ask you why you did not – why you waited so long to apply for a protection visa and before you respond I am fully aware that it is a fairly convoluted way of asking a question. So would you like me to repeat it or would you like to respond to it at this time.” The Applicant replied “Yes please repeat.” (See further reference and submissions to the bolded part of the Tribunal’s question at (xix) below).

   xvii)The Tribunal member then said “Ok I, I, I think that it is possible that you may have had access to the information about remaining in Australia as a refugee. Through the church because you could have asked people in the church group. I therefore – sorry –I therefore may reject your claim that you did not know it was possible to apply for refugee protection in Australia. Do you understand what I have said”. The Applicant responded “Yes I did ask. And my friend there told me that the application needs an application fee of $3000 so I wanted to make the $3000 so I could lodge the application.” Thereafter the Tribunal member had a conversation with the Applicant about whether or not it was the application fee or the migration agent’s fee that would cost $3000.

   xviii)The Tribunal then asked the Applicant “So you had – you asked only one person”.

   At this point, counsel for the Applicant submitted that there was a long answer given in Chinese by the Applicant. The Applicant answered “All of them told me that I needed to pay $3000 to the agent and after…”, at which point the Tribunal member said “but my apologies – please continue.” The Applicant then said “and after if we succeed then we have to pay more.”

   Counsel for the Applicant submitted that the Tribunal cut across the interpreter giving that answer. I accept that the transcript discloses that indeed the Tribunal member did interrupted the interpreter when the interpreter was giving the answer. However, it is clear that the member immediately apologised and invited the Applicant to continue.

   No evidence has been provided to the Court to suggest that the interpretation was inaccurate in respect of the Applicant’s answer.

   In the circumstances, there was nothing remarkable in the manner in which the Tribunal member asked its questions about this issue.

   xix)The Tribunal then put to the Applicant that it did not believe that the Applicant would not have asked members of her church congregation for assistance if she really was a refugee, then corrected, its language to say that it may have difficulty in believing that she did not ask. The Tribunal explained that the reason was because “Refugee issues in Australia are extremely high profile and it’s the kind of thing – in my experience – commonly in the case that church groups get involved in assisting people who claim to be refugees. And particularly if you came from a church organisation where there were members of a community who – who regularly claim refugee protection in this country.”

   Counsel for the Applicant submitted that this statement was a sweeping generalisation made by the Tribunal. Counsel for the Applicant submitted that this statement, together with the Tribunal’s statement at (xvi) above were inappropriate and demonstrated prejudgment.

   Counsel for the First Respondent submitted that the Tribunal was entitled to rely on its own knowledge or personal experience to inform its view of relevant issues and to put such matters to the Applicant at the hearing.

   Counsel for the First Respondent referred the Court to Maddy v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 233 ALR 503 (“Maddy”) at [80] and NAEH of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 927 (“NAEH”) per Branson J at [13], where her Honour said, “[a]n administrative decision-maker is under no obligation to disregard his or her relevant personal experiences”.

   Counsel for the Applicant contended that the Tribunal’s comment went beyond “personal experiences”.

   I accept the submission of counsel for the First Respondent on this issue. The Tribunal was fairly and properly putting to the Applicant matters that ultimately were part of its reason for affirming the decision under review. The Applicant had been placed on notice of the issue of the unsatisfactory nature of her explanation in explaining her delay by the Delegate in his decision and by the Tribunal in its letter dated 16 October 2007 prior to the hearing. I reject counsel for the Applicant’s submissions that the Tribunal’s statements demonstrated prejudgment. It was open to the Tribunal not to accept the Applicant’s explanation in respect of the Tribunal’s concern about the delay on the evidence and material before it and for the reasons it gave in its decision.

   xx)The Tribunal then put to the Applicant again that it may find it difficult to accept that she had not asked members of her Chinese congregation and that she had only asked work colleagues. The Applicant answered “Yes”. Again the Tribunal member put to her that it may not accept that she did not ask church colleagues. The Applicant answered “I didn’t know that the church could help me in the application.”

   The Tribunal member then said “I understand what you have said – however I will need to consider it when I draft my findings and reasons.”

   Counsel for the Applicant submitted that that last statement by the Tribunal member reflected a prejudgment on behalf of the member about this aspect of her evidence. However, where credibility is an issue, as it clearly was in this case, the Tribunal is entitled to test the evidence presented “often vigorously” (Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982 (“Ex parte H”) at [30]; NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 (“NADH”) at [19]).

   As stated above, the issue of the Applicant’s explanation in relation to her delay had been at the forefront of concerns expressed by the Delegate and by the Tribunal in writing to the Applicant prior to the hearing and again at the hearing.

   In any event, the Tribunal was plainly saying that it would consider her explanations when drafting its findings and reasons. I do not accept that the Tribunal had prejudged this issue such that the Tribunal was no longer open to persuasion. It clearly had concerns that it put to the Applicant both in writing and at the hearing. In the circumstances, it was open to the Tribunal to reject the Applicant’s explanation on the evidence and material before it and for which it provided reasons.

   xxi)The Tribunal then briefly explored with the Applicant her education in China and when she finished school.

   xxii)The Tribunal then turned to the 2001 and 2004 incidents. The Tribunal put to the Applicant that in her statutory declaration to the Department she had said that her parents left her local area when she was 15 years old because they feared they may be caught practicing their religion in the underground church, whereas, in her statutory declaration to the Tribunal the Applicant had stated that her parents left in 2004 as a consequence of her father’s interrogation by authorities about his involvement in the church.

   A short time later in the hearing the Tribunal returned to the 2004 incident and the Applicant’s evidence where she said that her father left following interrogations by authorities. The Tribunal asked the Applicant various matters about that interrogation, such as whether the Applicant was living with her father at the time and whether she was at home when her father was interrogated. The Applicant responded that she was. The Applicant then, prompted by questions from the Tribunal, expanded on that incident informing the Tribunal that local police interrogated her father and that the Applicant was watching during the interrogation.

   When the Tribunal asked the Applicant what they asked her father the Applicant responded “They told people not to move people. People there were singing religious songs.” The Tribunal then sought to clarify with the Applicant that it was talking about the 2004 incident not the 2001 incident and said to the Applicant “Now you just said at the 2004 incident there were people singing religious songs at your home. Is that correct?” The Applicant answered “Yes and the policeman said that they had already given us many warnings – policeman asked why we were still singing the songs.” The Tribunal then asked the Applicant were there more than just family members in the home during the 2004 incident and the Applicant responded “Yes. Church people there but not many.”

   The Tribunal then put to the Applicant that, in her statutory declaration to the Department, she had mentioned the 2001 incident when her father was caught worshipping with other underground members. However, the Applicant did not mention in her statutory declaration that her father was caught again in 2004 practicing with other church members. Rather, the Applicant had said that her father feared that he may be caught again and so left.

   The Tribunal then said “You’ve now said that in fact your father was caught in 2004 by local police whilst singing religious songs with other church members.”

   The Tribunal then put to the Applicant that it may appear to the Tribunal that the Applicant is “embellishing if not entirely fabricating” some parts of her claims. The Applicant responded “We talk about 2001 – just now”. The Tribunal member “No, no I actually confirm with you that 2004 I in fact confirmed it twice that we were talking about the same thing. Would you like to comment? I have said in my view that you are embellishing if not fabricating your evidence about the 2004, the alleged 2004 incident. Because not before today’s hearing you have said that your father was caught with other church members at that time. That is in 2004.” The Applicant answered “My father received a warning from the police and he was arrested in the name of disturbing the social peace.” The Tribunal member said “I am not exactly sure what that means. You said your father was detained in 2001 but never did you say that he was detained in 2004. Are you now saying that he was detained in 2004?” The Applicant replied “Not detained. I never said that he was detained.” The Tribunal member said “Ok you used the word arrested though. Are you talking about the 2001 incident?” The Applicant replied “2001”. The Tribunal member responded “Ok I need for you to focus on the 2004 incident. Was your father detained or arrested in 2004?” The Applicant said “No”.

   Counsel for the Applicant submitted that this exchange between the Tribunal and the Applicant demonstrated a genuine confusion on the Applicant’s part and that it was not open to the Tribunal to find that this evidence by the Applicant was evasive, embellished or fabricated. Counsel for the Applicant submitted that the Applicant’s evidence with respect to this matter was not inconsistent.

   Whilst the Tribunal may have come to a different conclusion and found that the Applicant was merely confused about the various incidents, it was open to the Tribunal on the evidence and material before it to make the adverse findings that it did about the Applicant’s evidence in this respect (Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 (“Eshetu”) at [137]; NATC v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 52 (“NATC”) at [27]).

   The Applicant’s complaint about the Tribunal’s findings in relation to this matter is no more than a disagreement with the adverse credibility finding made by the Tribunal in relation to the matter. Credibility findings are a matter “par excellence” for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J). Such a complaint invites merits review which this Court cannot undertake (Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272; Abebe v Commonwealth of Australia (1999) 197 CLR 510; Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1985) 162 CLR 24 at 41per Mason J).

   Counsel for the Applicant submitted that the Tribunal should have asked the Applicant more questions about the alleged 2001 incident. However, the Tribunal was not obliged to make further inquiries about the Applicant’s claims (Minister for Immigration and Multicultural Affairs v SGLB (2004) 207 ALR 12 at [43]).

   xxiii)The Tribunal then discussed with the Applicant her statement that because she was under 18 years old during the 2001 and 2004 incidents she did not face the same risks as her parents. The Applicant answered “I would not be arrested.”

   The Tribunal then put to the Applicant on the basis of country information before it “it appears that the Chinese authorities can act in a fairly brutal manner. I therefore may not accept that you would not be arrested if you were in fact engaged in an underground church that you claim.” The Applicant responded “There is a law in China they cannot arrest people under 18.”

   The Tribunal then put to the Applicant that country information before it disclosed that it is “commonly claimed” that Chinese authorities do not always obey the law. The Tribunal then asked the Applicant is that all that she had to say on the matter. The Applicant replied “Yes”.

   Following the Applicant’s confirmation that she had nothing further to say on this matter, the Tribunal said “Ok it is my understanding that you do not wish to say anything more on this matter. I will therefore consider your claim that you have provided to me while I am drafting my findings.”

   Counsel for the Applicant submitted that it was not open to the Tribunal to put to the Applicant that it was “commonly claimed”. However, again, such a comment by the Tribunal is no more than the Tribunal having regard to its past experiences and knowledge, as it was entitled to do (see NAEH at [13] and Maddy at [80]).

   In the circumstances, it was open to the Tribunal, on the evidence and material before it, to prefer the country information to the Applicant’s evidence.

   xxiv)The Tribunal member then went on to discuss with the Applicant’s siblings, whether they worked in China, what type of work they did, whether they went to university, whether they lived with their parents, whether they were married, if she knew where they lived.

   xxv)The Tribunal then asked the Applicant how far her brother and sister travelled by airplane. The Applicant answered “I’m not sure a few hours.” The Tribunal then said “A few hours? By airplane? And why did they travel there? Was there work? Did they think they could get work?” The Applicant responded “They were afraid of interrogation from the police so they escaped.”

   Counsel for the Applicant submitted that this question by the Tribunal was “possibly loaded” in that it may have been suggesting an answer to the Applicant that may be adverse to her.

   Counsel for the First Respondent submitted that the question from the Tribunal did no more than disclose speculation on the part of the Tribunal as to its thought process about reasons the Applicant’s siblings may have left. I accept the submission by the First Respondent. I reject the submission by counsel for the Applicant that such a question suggests bias on the part of the Tribunal.

   xxvi)The Tribunal went on to say “But they took an airplane and they used there own name to buy tickets so they – they – it is hardly – it does not look like they were actually hiding.” The Applicant responded “I don’t know how but they were arranged by my relatives to go there.” The Tribunal then said, “So you don’t really know why they went there at all do you?” The Applicant responded “Because of the persecution. When my father escaped they were still at home.”

   Counsel for the Applicant submitted that the Tribunal member’s question that she did not really know why her siblings left was unfair in circumstances where she had previously answered that they had left because they were afraid of interrogation from the police.

   However, as is referred to above in these Reasons, it is open to the Tribunal to test the evidence of the Applicant “often vigorously” (Ex parte H at [30]). In my view the Tribunal was doing no more than testing the Applicant’s evidence. I would not describe the manner in which the Tribunal tested this evidence as “vigorous”. The tone of the Tribunal member was not overbearing. The Tribunal member’s voice was calm and measured. I would not regard the manner in which the Tribunal member tested the Applicant’s evidence resulted in the Applicant being “overborne or intimidated” (Ex parte H at [30]). There were not “constant interruptions” or “constant challenges” to the Applicant’s truthfulness and the plausibility of her evidence (Ex parte H at [32]). Procedural fairness demands that the Applicant be plainly confronted with matters that bear adversely on her credit or bring her evidence into question (Ex parte H at [30]).

   I reject the contention by counsel for the Applicant that such questioning demonstrated bias on the part of the Tribunal.

   xxvii)The Tribunal then explored with the Applicant who arranged for her travel to Australia. The Tribunal noted that the Applicant had already told the Tribunal that her father had arranged for her to travel to Australia. The Applicant answered “My relatives. My relatives made the arrangements. My father contacted them through telephone.” The Tribunal member responded “Ok because I have written down from your claims that the Department that your father arranged for you to travel to Australia.” The Tribunal then quoted to the Applicant what she had put in her protection visa application.

   Certainly the Applicant stated that “in 2006 my father arranged for me to travel to Australia to study… he told me by telephone that he had contacted an agency was making these arrangements… he was concerned about my future as I was going to turn 18 and I would be in greater danger of arrest…because of your religion once you’ve reached that age.”

   The Tribunal then put to the Applicant that she had just told the Tribunal that she did not know where her father was and that her father had contacted her relatives but it was her relatives who arranged for her to travel to Australia. The Tribunal then said “that seems to conflict with the evidence provided that I have just read out.” The Applicant answered “My father made arrangements through relatives but I really don’t know where he is.” The Tribunal then stated “Now I understand what you have just said but I still need to think about it when I am drafting my reasons.”

   Counsel for the Applicant submitted that the Applicant’s explanation should have been accepted and its failure to do so demonstrated bias. I reject such a submission.

   Whilst, again, it was open to the Tribunal to accept the Applicant’s explanation, it was equally open to the Tribunal to find, as it did, that the Applicant had not given consistent evidence.

   xxviii)The Tribunal then explored with the Applicant her evidence that since she had come to Australia she had attended church. The Tribunal put to the Applicant “in fact you have said you regularly attended this church.” The Tribunal then quoted to the Applicant what she had stated in her protection visa application to the Department namely “since arriving in Australia I have practised my religion by reading my bible regularly and attending church.” The Tribunal then stated that that statement by the Applicant may be interpreted to mean that she only read the bible “regularly”, but did not attend church “regularly”. The Tribunal then asked the Applicant if she was now saying that she did not attend church “regularly”. The Applicant answered “Yes”.

   The Tribunal then confirmed again with the Applicant “Ok that is my understanding. So I put to you that I understand that you are now saying that you did not attend church regularly.” The Applicant replied “Yes” and the Tribunal said “Ok. Can I ask you why you did not attend church regularly?” The Applicant replied “I didn’t know that friend and where the church was in the beginning.”

   Counsel for the Applicant submitted that this questioning by the Tribunal was confusing and inaccurate and therefore unfair in respect of the Tribunal’s use of the word “regularly”. However, plainly the Tribunal corrected itself to ensure what it was putting to the Applicant was accurate. The Applicant answered responsibly. Accordingly, I reject counsel for the Applicant’s submission that this exchange demonstrated any unfairness on the part of the Tribunal.

   xxix)The Tribunal then explored whether the Applicant had attended churches in Australia before June and July 2007. The Applicant responded “No”.

   xxx)The Tribunal then put to the Applicant that she had claimed to have escaped from China to practise her religious beliefs. The Applicant responded “Yes”.

   The Tribunal then stated “I am then have difficulty accepting that you are as sincerely religious in your beliefs as you claim otherwise I may have thought you may have sought to attend a church in Australia sooner than you did. Would you like to comment on that? I am sorry to interrupt – please comment on that.” The Applicant responded “I didn’t know the church people before until I moved to Auburn. In Auburn there were so many people from Fujian living there so I was introduced to the church.” The Tribunal responded “Ok I understand what you have just said but I will need to consider it when I draft my findings.”

   Counsel for the Applicant submitted that the Tribunal’s question that the Applicant had escaped China to practise her religious beliefs was loaded and therefore unfair.

   Counsel for the First Respondent submitted that it was a fair question in the circumstances where the Applicant had taken more than 6 months to find a church.

   Again, the Tribunal is entitled to test this evidence by the Applicant where her credibility is an issue (Ex parte H at [30] and NADH at [19]). Moreover, the Tribunal asked the Applicant an open ended question about whether she would like to comment on the Tribunal’s concern that it may have difficulty that she was sincere about her religious beliefs when she did not seek to attend church in Australia sooner than she did. Indeed, having asked the Applicant if she would like to comment the Tribunal then requested the Applicant “please” to comment.

   The Applicant’s answer was not responsive. In the circumstances, it was open to the Tribunal to have regard to the nature of the Applicant’s answers in considering her credibility on this issue. The manner in which an applicant gives evidence where credibility is the central issue is a matter the Tribunal is entitled to take into account (Ex parte H at [34]).

   xxxi)The Tribunal then went on to return to its concerns as to why the Applicant did not make inquiries about seeking protection earlier.

   The Tribunal put to the Applicant its concerns about her failure to attend church in Australia and that she could have asked fellow Chinese students where churches in Australia were. The Applicant answered “Yes”. The Tribunal then put to the Applicant “But you still did not do so.” The Applicant answered “Yes but they told me that there are different kinds of churches in different places. Some Catholic church some other churches.” The Tribunal replied “I understand what you have just said but I will need to think about it when I draft my findings. I am not sure I need to ask many more questions today. What I need to do is think about the claims you have provided to me and formally makes views on. There is a couple of things though, the thing that comes directly to mind at the moment is that I – I am wondering if I should delay making my decision – or making any decision – until – for a week or so until you get all – I’m sorry. I am considering delaying making any decision for a while to see if you can get – if you can receive this information from China from your uncle. You have no idea when this information may arrive. Is that correct?” The Applicant replied “That’s right. I can submit information later.” The Tribunal said “I am sure that – well I can presume that at some stage in the future you could but – I am also mindful of the fact that you know, you are currently in immigration detention and it is appropriate that within reason I finalise the decision as soon as I reasonably can. I guess that – sorry – the problem that I am having is whilst I am prepared to wait for some period I am not prepared to wait indefinitely before I oversee this information you are seeking from your uncle. Ok do you understand?” The Applicant replied “Give me about another week.” The Tribunal answered “I can easily wait another week that is not a problem.”

   Counsel for the Applicant submitted that the Tribunal should have asked the Applicant to explain further her answer about the different kind of churches in different places. However, the Tribunal was not obliged to ask the Applicant further questions about this matter. It is a matter for the Tribunal what issues it chooses to explore. What is important is that the Applicant has had a fair opportunity to give evidence and present oral arguments, in accordance with s.425 of the Act. In this case she has.

   Counsel for the Applicant also submitted that the Tribunal was shutting down the hearing indicating that it had made up its mind. In fact the Tribunal did not shut down the hearing and went on to explore other issues with the Applicant as discussed below.

   I reject counsel for the Applicant submissions that there was anything biased or unfair about the way in which the Tribunal told the Applicant that it would need to think about her claims and was unsure whether it needed to ask more questions. In the circumstances, the Tribunal was doing no more than musing out loud the way in which it may continue to proceed or not with the hearing.

   In any event, the Tribunal was at pains to ensure that the Applicant had reasonable time to provide the further documents in support of her application. The Tribunal was rightly concerned that the Applicant was in detention and that the decision should be finalised as soon as the Tribunal could reasonably do so. The Tribunal gave the Applicant without hesitation the time requested by her to provide those documents.

   In the circumstances, the Tribunal’s rejection of the Applicant’s explanation as to why she did not earlier attend church in Australia was open to it on the evidence and material before it and for the reasons it gave.

   xxxii)The Tribunal then revisited the 2004 incident with the Applicant.

   xxxiii)The Tribunal then explored with the Applicant where her grandmother lived. In the course of doing so, the Tribunal member said “Did your grandmother live in your uncle’s home?” It is apparent from the tape recording that the Applicant commenced with an answer. The Tribunal member then went on and said “Sorry, sorry – just yes or no please. Did your grandmother live with your uncle in your uncle’s home? Yes or no.” The Applicant answered “Not living with my uncle but in my uncle’s home.”

   Counsel for the Applicant submitted that the Tribunal talked over the Applicant which was inappropriate and unfair to the Applicant. I reject the submission by counsel for the Applicant that there was any inappropriateness by the Tribunal member in seeking to clarify with the Applicant the question it was asking. Plainly, the question it was asking invited a yes/no answer. When it became apparent to the Tribunal that the Applicant may have been saying more, it was open to the Tribunal to clarify with the Applicant the precise nature of its question. In my view, there was nothing unfair in the Tribunal’s conduct in relation to this exchange.

   xxxiv)Shortly thereafter, the Tribunal member came to the end of the hearing. At this time the Tribunal member said “Ok I understand what you have said. Is there anything in particular that you would like to tell me in support of your claim to be a refugee? Something for instance that I have not already asked you about?” The Applicant replied “No”.

   xxxv)Following this answer the Tribunal had the following exchange with the Applicant about her reading of the bible:

   “MEMBER: Okay. You’ve said that you– just as a matter of interest you said that you regularly read your Bible. Is that correct? Sorry I withdraw that- you said that since arriving in Australia you have regularly read your Bible.

   INTERPETER: Yes

   MEMBER: Did you read it with other people or did you just read it when you were on your own at home?

   INTERPRETER: Read with other people who were living in the same home as me.

   MEMBER: So what did you talk about… when you read the Bible? What kinds of things did you discuss?

   INTERRPETER: About- we talk about the miracles performed and that how god saved people.

   MEMBER: Do you have any- is there anything in particular- sorry – was there anything in particular that you talked about that you thought was partic--- that you thought was important and interesting to you?

   INTERPRETER: Luke, Chapter 10 verse 27. That you should love God.

   MEMBER: Is that all?

   INTERPRETER: Love people. Love people around you like you love yourself.

   MEMBER: Let me ask you another question which is a bit broader. What do you know about Christianity? Tell me some of the things that you know about Christianity.

   INTERPRETER: Jesus- is the lord is the God and the God created everything. Created the universe.

   MEMBER: Anything else?

   INTERPRETER: Before he was born he already knew what will happen in the future to the world.

   MEMBER: [Can I get someone to come into room 13 because I think I have a problem with the tape. Thank you.] I have been told that we have a computer recording system backup- so I intend to continue speaking notwithstanding the tape recorder seems to be – not beeping but emitting sound. So what other kinds of things do you know about Christianity?

   INTERPRETER: He sacrificed his only beloved son to save the world- to save people

   MEMBER: Okay. Let me try another tag. You’re claiming that if you had to suppress your religious beliefs to avoid persecution in China, that would be persecution for you. Please say that. [Direction to the interpreter to interpret the Tribunal’s words].

   INTERPRETER: Yes.

   MEMBER: If I think that the strength of your religious convictions was sufficiently strong- I may find that you may be persecuted in China. Please say that. [Direction to the interpreter to interpret the Tribunal’s words].

   But based on what you have told me so far I may not think that you know much – that you know enough about Christianity that I may be satisfied that you have any religious convictions. Please say that. [Direction to the interpreter to interpret the Tribunal’s words].

   So what is it about Christianity which you believe--- which compels you to practise it?

   INTERPRETER: Love from the God.

   MEMBER: Is that all?

   INTERPRETER: Yes.

   MEMBER: Okay listen now I understand what you have said.”

   In its findings the Tribunal referred to the Applicant’s answers in relation to this exchange. The Tribunal stated as follows:

   “That said, when asked what she discussed in her bible study classes, the applicant responded ‘miracles’, and that ‘God Save people’. When asked to tell the Tribunal her favourite bible story/s the applicant referred to ‘Luke Ch.7. “love God love people”. I then put to her I wished to assess whether she was a sincere Christian as she had claimed. I therefore asked her why she would be compelled to practise her religion in China. In response, the applicant said ‘Jesus is lord’, ‘God create the universe’, ‘before born already knew what would happen in the future’, ‘sacrifice only son’. She also claimed she would be compelled to practise her religion because ‘love from God.’”

   Counsel for the Applicant submitted that the Tribunal’s summary above of the Applicant’s evidence was not an accurate summary in that it suggested that the Applicant’s answers were, at best, brief and unresponsive. Counsel for the Applicant submitted the Applicant’s answers showed, “a well-rounded understanding about the central principles of Christianity”; that the Applicant does not have “insignificant knowledge of the Bible”; and, the Applicant’s “level of knowledge about Christianity is commensurate with her claim to be a practising Christian.”

   Counsel for the Applicant also submitted that the reference in the Tribunal’s reasons to Luke Ch.7 misstated the Applicant’s evidence of Luke Ch.10. That is true, however, nothing turns on such a misstatement. It was the brevity of the answers to which the Tribunal had regard, not the accuracy of the chapter number.

   At the heart of the Tribunal’s adverse findings, was the Applicant’s lack of knowledge about her religious convictions. Listening to the tapes makes clear that the Tribunal gave the Applicant every opportunity to inform the Tribunal about her religious beliefs. In particular the Tribunal asked the Applicant open ended questions such as, “what do you know about Christianity tell me some of the things you know about Christianity”; “what is it about Christianity which you believe which compels you to practise it”.    

   In the circumstances, the Tribunal’s summary of the Applicant’s evidence referred to above was not unfair and was open to it. It was also open to the Tribunal to find that it had difficulty eliciting evidence from the Applicant at the hearing leading ultimately to the Tribunal’s findings that all the Applicant’s “material claims are false”. The Tribunal’s adverse findings about the Applicant’s lack of knowledge and conviction about her religious belief were open to it on the evidence and material before it and for the reasons it gave.

   xxxvi)At the conclusion of the hearing the Tribunal stated “I have not formulated any particular views on this matter – well certainly I have not finalised anything on this matter. What I need to do is go and think about it and draft my findings for reasons.” The Tribunal then advised the Applicant to speak to her migration agent about requesting any further extension of time before it signed its decision and that it would only delay signing its decision if it thought it was reasonable based on the things that are put to it. The Tribunal asked the Applicant if that made sense and the Applicant responded “Yes”.

   xxxvii)The Tribunal member then said to the Applicant before closing “Is there anything else you wish to put to me before I close the hearing?” The Applicant responded “I’d like to thank you for your decision.”

Grounds of the further amended application

1. The grounds of the further amended application essentially centre around the Applicant’s contentions that the hearing was unfair; that the hearing was conducted in an unfair manner; that the Tribunal was biased; and, that the adverse findings of the Tribunal were not open to it on the evidence and material before it. None of the Applicant’s contentions are made out.

Ground 1

1. Ground 1 particular (a) states that the Tribunal failed to enquire orally about the police raid in 2001 that being the origin of the Applicant’s fear of persecution due to her religious convictions and that the Tribunal engaged in misleading and unfair conduct about the way in which it conducted its hearing.

2. In relation to particular (a), the Tribunal was not obliged to ask the Applicant about the police raid in 2001. It was obliged to ensure that the Applicant had an opportunity to say whatever she wished in support of her application. A fair reading of the transcript of the hearing and listening to the tapes, make clear that the Applicant was invited on three occasions to say whatever she wished in support of her claims. It is not for the Tribunal to make the Applicant’s case out for her (Abebe at 576; SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [14]-[16]).

3. Ground 1 particulars (b)(i) and (ii) are particulars of the allegation of misleading and unfair conduct by the Tribunal. However, listening to the tapes and a fair reading transcript does not support such a contention.

4. Certainly some questions were longer than others and capable of being described as inelegant. In relation to particular (b)(i) and (ii), “convoluted” is defined by the New Shorter Oxford English Dictionary as “coiled, twisted, complex, involved.” Simply because the Tribunal described one of its questions as “convoluted” does not necessarily make it so. The Tribunal’s question and the exchange that followed are dealt with in paragraph 60 (xvi) above. Whilst the question was long, it was interpreted every few words. The Applicant’s answer was ultimately plainly responsive and did not suggest any lack of understanding by the Applicant about what she was being asked. That is what matters.

5. In any event, even if one was to describe the question above as “convoluted”, in the circumstances where it is apparent that the Applicant understood and responded meaningfully following interpretation of the question every few words, no unfairness can exist.

6. There was no apparent difficulty expressed by the Applicant in either understanding questions or responding. The Applicant asked only once during the hearing for a question to be repeated and it was. (See paragraph 60 (xvi) above).

7. In relation to Ground 1 particulars (b) (iii), (iv) and (v), the Tribunal was entitled to ask questions inviting a yes/no response and to direct the Applicant’s answers to its concerns.

8. In my view, the Tribunal’s questions were pertinent to the concerns that it had about the Applicant’s claims. Listening to the tapes makes clear that the Tribunal put its concerns clearly to the Applicant and provided her an opportunity to respond. It also put to the Applicant open ended questions that gave the Applicant an opportunity to say anything further she wished in support of her claims. (See paragraph 60 (xxx), (xxxiv), (xxxv) and (xxxvii) above).

9. In relation to Ground 1 particular (b)(vi), the Tribunal made clear that it considered the Applicant’s age both at the time of the alleged incidents in China and at the time she was giving evidence in Australia. The Tribunal found that the Applicant had sufficient maturity to prosecute her case. That finding was open to the Tribunal on the evidence and material before it and for the reasons it gave.

10. In relation to Ground 1 particular (b)(vii), this was not a particular in respect of which the subject of any submission was made by counsel for the Applicant at the hearing of this matter. However, in his written submission, counsel for the Applicant stated the following in relation to this issue:

    “Further, the Member’s approach failed to consider, and was contrary to, the appropriate UNHCR Handbook guidelines that address the issue of unaccompanied minors. Namely that “[I]f there is reason to believe that the parents whish their child to be outside the country of origin on grounds of well-founded fear of persecution, the child himself may be presumed to have such a fear”. And that “[I]f the will of the parents cannot be ascertained… then the examiner… will have to come to a decision as to the well-foundedness of the minor’s fear on the basis of all known circumstances, which may call for a liberal application of the benefit of the doubt”.”

11. I accept the submissions of the First respondent on this issue that the UNHCR Handbook has no binding force on the Tribunal and it is not obliged to consider it or make findings in respect of it (Semunigus v Minister for Immigration and Multicultural Affairs [1999] FCA 422 at [8]-[9]).

12. In relation to Ground 1 particular (b)(viii), a fair reading of the Tribunal’s decision does not support such a contention. The Tribunal referred specifically to the post-hearing evidence and submissions, however, was not persuaded by either. It was not bound to accept either. However, it was bound to consider the materials, which it did. The Tribunal’s findings were open to it on the evidence and material before it and for which the reasons it gave.

13. Ground 1 particular (b)(ix) contends that the Tribunal member only made enquiries into facts that might discredit the Applicant and not those which may support the Applicant’s case. Listening to the tapes and a fair reading of the transcript do not support such a contention.

14. Listening to the tapes does not suggest that the Tribunal member was aggressive, hostile or overbearing in the manner in which he asked questions. The Tribunal member asked his questions slowly and carefully ensuring his sentences were interpreted every few words. The Tribunal provided the Applicant reasonable opportunities to respond.

15. It is quite proper that the Tribunal put to the Applicant matters of concern that it had arising out of her evidence, provided it also allowed the Applicant an opportunity to give evidence and present arguments. A fair reading of the transcript and listening to the tapes make clear that the Tribunal did precisely that. The Tribunal member asked the Applicant on four occasions open ended questions about her claims in general (see paragraph 60 (xxx), (xxxiv), (xxxv) and (xxxvii) above), made clear to her those aspects about her evidence in respect of which it had concerns; and invited her to respond. In the circumstances, there was every opportunity given to the Applicant to give evidence and present oral arguments to support her case.

16. The matters that the Tribunal explored with the Applicant, provided the Applicant with an opportunity to understand precisely the nature of the Tribunal’s concerns and to respond. The Tribunal was entitled to test the Applicant’s claims and evidence (Ex parte H at [30]; NADH at [19]). Listening to the tapes of the hearing makes clear that any “testing” was done by the Tribunal member in a calm, measured and non threatening manner ensuring that interpretation occurred every few words and included open ended questions, as well as questions inviting shorter responses.

17. Otherwise, the findings and conclusions of the Tribunal, including its adverse credibility findings were open to it on the evidence and material before it and for the reasons it gave.

18. In relation to Ground 1 particulars (c) and (d), a fair listening to the tapes and reading of the transcript made clear that the Tribunal put to the Applicant its concerns about inconsistencies in her evidence in relation to the 2001 and 2004 incidents in her statutory declarations and her further oral evidence at the hearing.

19. Whilst it was open to the Tribunal to accept her explanations, it was also open to the Tribunal to find that the Applicant was embellishing her evidence and that she was fabricating those parts of her claims to which she had not earlier referred. The Tribunal had particular concerns about the Applicant’s further evidence in relation to the 2004 incident. It was proper to put such concerns to the Applicant. The Tribunal was not obliged to explore further aspects of those incidents, beyond its concerns, in circumstances where it asked the Applicant open ended questions about her claims, thereby providing her an opportunity to say whatever further she wished about, inter alia, the 2001 incident.

20. As stated above in these Reasons, the Tribunal member asked the Applicant open ended questions about her claims and had regard to her responses. In the circumstances, the Tribunal’s adverse findings were open to it on the evidence and material before it for the reasons it gave.

21. To the extent the Applicant contends that the Tribunal was in breach of s.420 of the Act, s.420 is expressed to be facultative and not restrictive and does not create rights or a ground of review additional to those given in s.476 (Eshetu at 628; Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505 (“Sun Zhan Qui”) at [38]).

22. Accordingly, Ground 1 is not made out.

Grounds 2 and 3

1. Ground 2 particulars (a) and (b) and Ground 3 particulars (a) to (e) are no more than disagreement with the findings of fact made by the Tribunal. Such complaints invite merits review which this Court cannot undertake. As stated above in these Reasons, the Tribunal’s findings and conclusions, including its adverse credibility findings, were open to it on the evidence and material before it and for the reasons it gave.

2. In any event, illogical reasoning does not of itself constitute an error of law or a jurisdictional error (NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235 at [29]).

3. Moreover, I reject the submissions by counsel for the Applicant, that the Tribunal erred in finding that the Applicant said her father was arrested in 2004. Listening to the tapes and a fair reading of the transcript make clear that the Applicant had said her father was arrested in 2004, although she then resiled from that evidence.

4. The Tribunal considered whether or not the difficulty it had in eliciting evidence from the Applicant was due to interpretation. However, the Tribunal found that it was “commonly able to obtain a response meaningful to the question I asked, particularly if I repeated and rephrased my question”. In the circumstances it was open to the Tribunal to find that the Applicant was being “evasive” in her evidence.

5. Listening to the tapes and a fair reading of the transcript make clear that the Tribunal’s summary of its exchange with the Applicant at the hearing was open to it and not unfair in its terms. The Tribunal was satisfied that the unsatisfactory nature of the Applicant’s evidence was not explained by the quality of the interpretation. Again that finding was open to the Tribunal on the evidence and material before it and for the reasons it gave.

6. Again, listening to the tapes and a fair reading of the transcript make clear that the Tribunal findings about the Applicant’s lack of religious convictions was open to it on the evidence before it and for the reasons it gave. The finding was not perverse or without logical foundation (NATC at [27]). The Tribunal’s summary of its exchange with the Applicant about her religious conviction was open to it and was not unreasonable, perverse or without logical foundation.

7. Accordingly, Grounds 2 and 3 are not made out.

Ground 4

1. In light of the Court’s findings referred to above in these Reasons, the particulars in support of Ground 4 particulars (a) to (d) are no more than a disagreement with the findings and conclusions of the Tribunal including the Tribunal’s adverse credibility findings.

2. Counsel for the Applicant referred extensively to Sun Zhan Qui in support of the Applicant’s contention of bias on the part of the Tribunal. Counsel for the Applicant submitted that actual bias may be established by inference from the circumstances. He further submitted that, in considering bias, one should consider whether the Tribunal has, at least in some respect, prejudged the case so as to be unable or unwilling to decide it impartially; and that actual bias need not be confined to an intentional state of mind and maybe subconscious provided it is real (Sun Zhan Qui at 555).

3. In respect of the issue of bias, counsel for the First Respondent referred the Court to Minister for Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 (“Jia”) at [35] and [72] and submitted that a fair reading of the Tribunal’s decision does not disclose any prejudgment on the part of the Tribunal in the sense that the Tribunal was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented.” (Jia at [72]).

4. In NADH Allsop J, with whom Moore and Tamberline JJ agreed, stated the following:

   “The tribunal here must investigate the facts for itself unaided by counsel presenting the parties’ cases, to the degree and extent it thinks appropriate. The tribunal which has to reach a state of satisfaction may want to test and probe a recounted history. It may have particular matters troubling it for resolution, which require questioning and expressions of doubt which are entirely appropriate, but which if undertaken or said by a judge in open court in adversary litigation might give rise to an apprehension of a lack of impartiality.”

5. The rationale in NADH for the Court’s finding of bias was made in light of the detailed knowledge of the Christian religion and Catholic faith given by the applicant and a largely unreasoned rejection of documents as vague when they plainly were not (see NADH at [134] and [136]).

6. In the proceeding before this Court, a fair reading of the Tribunal’s decision, in the context of having listened to tapes of the hearing and having read the transcript, does not suggest the Tribunal approached its task with a mind not open to persuasion; nor that the Tribunal acted capriciously, arbitrarily or without proper credit findings and by whim or intuition (NADH at [135]).

7. The Tribunal invited the Applicant to attend a hearing in accordance with s.425 of the Act. The letter of invitation informed the Applicant that it was not able to make a favourable decision on the evidence and material before it. That statement is in accordance with the legislative framework and does not suggest a prejudgment on the part of the Tribunal. Neither, in my view, does an exploration by the Tribunal of matters that were plainly of concern to it such as: the Applicant’s explanations for her 11 month delay in applying for a protection visa application; inconsistencies between the Applicant's written statements and, oral evidence; and the Applicant’s lack of knowledge about Christianity. Such concerns were open to the Tribunal on the evidence and material before it. The Applicant’s credibility was an issue before the Delegate and the Tribunal also put its concerns about the Applicant’s delay in seeking protection in writing to the Applicant prior to the hearing.

8. In my view, listening to the tapes, even more so than reading the transcript, makes clear the measured, careful, unaggressive and unthreatening manner in which the Tribunal put to the Applicant concerns it had about her evidence. As referred to above in these Reasons, it also asked the Applicant open ended questions and invited her to say whatever she wished in support of her claims.

9. Further, listening to the tapes discloses that the Tribunal member was careful to ensure that his questions and exchanges with the Applicant were translated every couple of lines, regularly prompting the interpreter to “please say that” to the Applicant.

10. Listening to the tapes discloses that the Tribunal member cut off the Applicant’s answer on only a couple of questions and did so in a polite and tempered manner that ensured the Applicant’s answer was responsive to those particular questions. Similarly, as stated above in these Reasons, whilst a few of the Tribunal’s questions may be described as inelegantly framed, the question ultimately asked and the concern expressed were sufficiently clear as not to be unfair. The Applicant responded. In the circumstances, the Tribunal was entitled to evaluate that evidence in considering whether or not it was satisfied the Applicant had a well-founded fear of persecution for a Convention related reason.

11. When only reading a transcript of the hearing, one does not necessarily get a flavour of the manner in which questions are asked by a tribunal or answered by an applicant. However, in light of having heard the tapes, I reject the contention that the Tribunal conducted its hearing in an unfair manner; not in accordance with substantial justice; in a biased fashion; or that it had prejudged its decision, either consciously or unconsciously.

12. As stated above in these Reasons, credibility was an issue before the Delegate and remained an issue before the Tribunal. The Tribunal had expressed its concerns both in writing prior to the hearing and orally to the Applicant at the hearing. It is appropriate that such concerns be put to the Applicant (see Ex parte H at [30]; Re Ruddock; ex parte Applicant S154/2002 201 ALR 437 at [58]; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63). The Tribunal considered all the evidence and material provided to it by the Applicant in support of her claims. The Tribunal made findings based on the evidence and material before it and for the reasons it gave. The Tribunal reached conclusions based on its findings and applied the correct law to its findings in reaching those conclusions.

13. Accordingly, Ground 4 is not made out.

Conclusion

1. A fair reading of the Tribunal’s decision makes it clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant at the hearing; had regard to all material and evidence provided in support; put to the Applicant both in writing and at the hearing matters of concern it had about her evidence; and, put to the Applicant country information to which it had regard. The Tribunal made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision makes clear that the Tribunal reached conclusions based on the findings made by it and applied the correct law to these findings in reaching those conclusions. 

2. In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review. 

3. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

4. The proceeding before this Court is dismissed with costs. 

I certify that the preceding one hundred and seven (107) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate:  S. Kwong

Date:  18 June 2008