SZLWI v Minister for Immigration

[2008] FMCA 755

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLWI v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 755

MIGRATION – Review of decision of Refugee Review Tribunal – whether jurisdictional error – Protection (Class XA) visa – procedural fairness – whether breach of s.424A of the Act – merits review not function of judicial review – credibility – whether Tribunal properly considered applicant’s claims concerning China’s birth control policies – whether Tribunal decision based on “subjective opinion” – bias – whether applicant’s son unfairly treated at Tribunal hearing – quality of legal advice provided to applicant – whether unfairness in tapes of Tribunal hearing not being translated into Chinese – whether applicant given proper opportunity to present his case.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 36, 65, 91R, 91S, 422B, 424A, 474

SZBYR v Minister for Immigration & Citizenship [2007] HCA 26
SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68
SZHPD v Minister for Immigration & Citizenship [2007] FCA 157
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668
SBBS v Minister for Immigration and Multicultural & Indigenous Affairs (2002) 194 ALR 749
Re Refugee Review Tribunal; ex parte H & Anor (2001) 179 ALR 425
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] 168 ALR 407
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
NAHI v Minister for Immigration & Multicultural &  Indigenous Affairs [2004] FCAFC 10
Abebe v Commonwealth (1998) 197 CLR 510
SZBEL v Minister for Immigration and Multicultural Affairs [2006] HCA 63
NADH v Minister for Immigration [2004] FCAFC 328
Randhawa v Minister for Immigration & Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61

Applicant: SZLWI

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 43 of 2008

Judgment of: Orchiston FM

Hearing date: 16 April 2008

Date of Last Submission: 16 April 2008

Delivered at: Sydney

Delivered on: 11 June 2008

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent: Ms T. Wong

Solicitors for the Respondent: Australian Government Solicitors

ORDERS

1. The application filed on 9 January 2008 is dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $5,000 payable within five (5) months of the date of these Orders.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 43 of 2008

SZLWI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Application

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), as amended, (the Act) seeking review of the decision of the Refugee Review Tribunal (the Tribunal) handed down on 18 December 2007 which affirmed the decision of the delegate of the respondent Minister (the delegate) to refuse to grant a Protection (Class XA) visa to the applicant.

Background

1. The applicant was born on 10 February 1963.  He claims to be a national of China and of Christian faith.

2. The applicant arrived in Australia on 25 March 2007 on a Chinese passport issued in his own name.

3. The applicant lodged an application for a protection visa on 8 May 2007.  In a statement accompanying that application, the applicant claimed to fear persecution because of his religious beliefs and membership of an underground Christian church.  He claims that if he returns to China he will be treated badly and be unable to find employment (Court Book (CB) 27-29).

4. On 30 July 2007 the delegate refused to grant the applicant’s protection visa on the basis that the applicant was not a person to whom Australia had protection obligations under the Refugees Convention (CB 38-47) (see Legislative framework).

5. On 24 August 2007 the applicant applied to the Tribunal for review of the delegate’s decision (CB 48-51).

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 (the Convention).

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 particular 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 the persecution and membership of a particular social group when considering Article 1A(2) of the Convention.

The Tribunal proceedings

1. On 11 September 2007, the Tribunal sent a letter to the applicant inviting him to appear before it on 10 October 2007 to give oral evidence and present arguments (CB 56-57).

2. The applicant, and the applicant’s son, attended the Tribunal hearing and both gave evidence.

The Tribunal’s findings and reasons (CB 83–87)

1. I accept that the first respondent accurately summarises the Tribunal's findings and reasons as follows:

   Having regard to the applicant's limited knowledge and lack of knowledge in relation to a number of significant aspects of Christianity, even taking into account that practising Christians will exhibit different levels of knowledge of their Christian beliefs, the RRT determined that the applicant was not a credible witness and did not accept the applicant's claims in terms of his evidence regarding his Christian beliefs and practice in China: CB 85.

   With regard to the applicant's attendance at church in Australia, the RRT accepted that the applicant had, as a consequence, gained some knowledge of Christianity.  However, the RRT did not accept that this attendance and knowledge was because the applicant was a genuine practising Christian or that the letter from Mr Ken Tang was sufficient to overcome its adverse findings: CB 86.2.

   The RRT was also not satisfied that the applicant had engaged in this conduct in Australia otherwise than for the purpose of strengthening his claims to be a refugee.  Accordingly, pursuant to   s 91R(3) of the Act, the Tribunal disregarded this conduct:  CB 86.5.

   As the RRT did not accept that the applicant had ever been a genuine practising Christian in China or Australia, the RRT also did not accept that there was a real chance the applicant would be persecuted for reason of his religion if he returned to China now or in the reasonably foreseeable future:  CB 86.6.

   In relation to the applicant's claim that he was harshly treated by authorities following his breach of China's one child policy, the RRT accepted those penalties may have been significant and that he may have felt harshly treated and compelled to relocate as a result.  However, on the basis of the applicant's evidence, the RRT noted that such fines were imposed some years ago, that the applicant had been able to operate another business and that there was no evidence the authorities would continue to penalise the applicant.  Accordingly, the Tribunal was not satisfied the applicant would suffer serious harm for this reason in the foreseeable future:  CB 86-87.

   The RRT also accepted the applicant might be experiencing problems relating to his cow farm and that some of those problems may have arisen from his tax obligations.  However, the RRT did not accept these problems arose because of his religion or that the taxes imposed were imposed in a discriminatory manner for a Convention reason:  CB 87.4.

   Finally, while accepting the views expressed by the applicant in relation to the Chinese Community Party, on the evidence before it, the Tribunal did not accept the applicant would suffer serious harm on account of those views on his return to that country:  CB 87.5.

   The RRT was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason.  The RRT affirmed the decision of the Minister’s delegate not to grant the applicant a protection visa: CB 87. 

2. For these reasons, the Tribunal found there was not a real chance the applicant would suffer serious harm from his stated or perceived practice of Christianity.  The Tribunal was therefore not satisfied that the applicant had a well-founded fear of persecution if he were to return to China for reasons of being a Christian, a member of a particular social group, or for any other Convention reason, now or in the foreseeable future.

The proceedings before this Court

1. The applicant filed the application in this Court on 9 January 2008 setting out 2 grounds of review of the Tribunal’s decision.

2. The applicant appeared in person before this Court on 16 April 2008 with the assistance of a Mandarin interpreter.  Ms Wong of counsel appeared for the first respondent.

Grounds of application

1. The grounds of the application are:

   (1)The Refugee Review Tribunal decision was affected by jurisdictional error in that the applicant was denied procedural fairness.

   Particulars:

   The Tribunal failed to give the applicant information that the Tribunal considers would be the reason or part of the reason for affirming the decision that is under review and the Tribunal failed to invite the applicant to comment on it. By failing to do so the Tribunal breached the section 424A (1) of the Migration Act 1958.

   The applicant claims that he suffered persecution due to his breach of one-child policy and the Tribunal that persons fearing punishment for failure to comply with the one-child policy are not by virtue of that alone refugee.  The Tribunal failed to invite the applicant to comment in this information.

   (2)The Refugee Review Tribunal decision is affected by jurisdictional error as the Tribunal incorrectly applied the law.  The Tribunal found that one-child policy is a law of general application and therefore the mistreatment the applicant suffered in China does not amount to persecution.  By reaching such finding the Tribunal ignored the fact that the mistreatment the applicant suffered was not within the range of normal punishment prescribed by the Chinese birth-control law.  It was punishments amount to persecution and the convention reason.

Ground 1 of the application

1. The applicant asserts that he was denied procedural fairness in that the Tribunal breached s.424A(1) of the Act in failing to give him information that the Tribunal considered would be the reason or a part of the reason for affirming the decision that was under review and failing to invite him to comment on that information.

2. The obligation under s.424A is, however, subject to certain statutory exceptions. Relevant in the present case is that information that the applicant himself gave “for the purpose of the application for review” at the Tribunal hearing, is excluded from the requirements of s.424A(1) by virtue of s.424A (3)(b).

3. The further statutory exception under s.424A(2A), which incorporates s.424AA of the Act, also applies in this case, given that the Tribunal provided to the applicant, at the Tribunal hearing itself, clear particulars of the information upon which it would, subject to his response, make an adverse finding against him, in circumstances where the Tribunal ensured “as far as [was] reasonably practicable” that the applicant understood the relevance of that information to the review and the consequences of it being relied upon; orally invited the applicant to respond to or comment on that information; advised him that he may seek additional time to do so; and if so, that it would adjourn the review if it considered that he “reasonably need[ed] additional time, before the Tribunal [made] its decision” (CB 82-83). 

4. For instance, the Tribunal explained to the applicant and invited his response to its concerns that:

   … it may not accept the son’s evidence and may find in any case that his son’s evidence was very vague, including that he also could not identify which group the applicant belonged to (CB 82).

5. The Tribunal then pertinently asked the applicant:

   … whether he wished to request more time to comment on the concerns raised by the Tribunal. The applicant stated that he would like more time to comment, but wished to do so at the current hearing. The Tribunal accepted that the applicant wished to provide further comments, and provided him that opportunity, but considered that he did not reasonably require an adjournment of the hearing (CB 83).

6. In any event, it is also clear that a proper construction of the word “information” in the context of s.424A, and hence what information must be given to an applicant for comment, does not extend to the Tribunal’s subjective thought processes or appraisals of the evidence before it, including its disbelief of an applicant’s evidence: SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [18]:

   … if the reason why the Tribunal affirmed the decision under review was the Tribunal’s disbelief of the appellant’s evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of para(a) of s.424A(1).  Again, if the Tribunal affirmed the decision because even the best view of the appellant’s evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute “information”. Finn and Stone JJ correctly observed in VAF v Minister for Immigration & Multicultural & Indigenous Affairs that the word “information”

   does not encompass the Tribunal’s subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.

   If the contrary were true, s.424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process.  However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence.  The appellants were thus correct to concede that the relevant “information” was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.

   Equally at the forefront of the Tribunal’s thought processes and appraisals of the evidence in the present case, was the credibility of the applicant’s evidence. 

7. Likewise, in SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68 at [27], the Full Federal Court commented that:

   The proposition than an inference or deduction based upon two facts can constitute "information" for the purposes of sub 424A(1) does not fit easily into the structure of s.424A as a whole. In SZBYR the High Court stressed the distinction between the concept of "information" and the reasoning process leading to affirmation of the decision under review…... The drawing of inferences and the assessment of their relevance are more appropriately described as part of the reasoning process than as information for the purposes of sub 424A(1).

8. I thus detect no breach of s.424A of the Act and am satisfied that the applicant was accorded procedural fairness in compliance with the statutory regime.

9. The applicant further asserts that he was denied procedural fairness in that he had suffered persecution due to his breach of China’s one-child policy, that the Tribunal had found that persons fearing punishment for failure to comply with that one-child policy are not by virtue of that alone refugees, and that the Tribunal had failed to invite him to comment on this information.

10. According to the applicant’s statement, accompanying his protection visa application, he has three children, born respectively in February 1988, February 1989 and October 1990 (CB 28).

11. At the Tribunal hearing, the Tribunal drew the attention of the applicant to matters related to his claims concerning the impact on him of the one-child policy. The Tribunal indicated to the applicant that:

    The Tribunal might decide that any problems he may have experienced in relation to his farm in China, including in relation to his first farm where he claimed the authorities confiscated his land after he breached the one child policy, were not for a Convention reason (CB 82-83).

12. As outlined above, the Tribunal then raised with the applicant whether he wished to request more time to comment on the concerns raised by the Tribunal, including in regard to his claims concerning the one-child policy. The applicant stated that he would like more time to comment, but wished to do so at the current hearing.

13. Again, having complied with s.424AA by putting its concerns to the applicant at the Tribunal hearing, explaining the adverse consequences that it may draw therefrom and providing the applicant with the opportunity to have more time to comment, the Tribunal was not obliged to go further (CB 82-83).

14. I am satisfied therefore that the Tribunal provided procedural fairness to the applicant in its consideration of whether the applicant had suffered, or would suffer, persecution due to his breach of the China one-child policy. Contrary to the applicant’s assertion in this regard, the Tribunal invited the applicant to comment on relevant information concerning the alleged impact on him of the one-child policy.

15. The Tribunal made the following findings in regard to the impact on the applicant of the one-child policy:

    The applicant gave evidence that he was harshly penalised by the authorities in China because he had 3 children in breach of the government’s one child policy, and was required to pay substantial fines to the authorities. He also stated that the authorities confiscated land which left him with insufficient land to support his family and meant he had to move to Shenyang. He stated that the authorities used other implicit means to persecute him, for example they imposed exorbitant taxes on his cow farm which meant he would have to close the farm down. He also stated that he felt the CCP was corrupt and not interested in true sharing of assets, and there was no justice or fairness in China.

    The Tribunal accepts that the authorities may have imposed significant financial penalties on the applicant for breaching China’s one child policy. The Tribunal accepts that the applicant may have felt compelled to relocate to another area as a result, and that he may have felt harshly treated by the authorities. The applicant’s evidence is that these fines or penalties were imposed some years ago, and that he was able to operate a business after these events, albeit in another location. The applicant’s evidence does not establish that the authorities continued to penalise the applicant because of his breach of the one child policy, or that they would do so if he returned to China. The evidence before the Tribunal does not establish that there is any real chance that the applicant would suffer serious harm amounting to persecution if he returns to China now or in the foreseeable future, as a result of actions the authorities may have taken in the past because of his breach of the one child policy (CB 86-87).

1. I consider that the Tribunal’s finding that “[t]he applicant’s evidence does not establish that the authorities continued to penalise the applicant because of his breach of the one child policy, or that they would do so if he returned to China”, was open to it on the evidence before it.  Merely because the applicant disagrees with the Tribunal’s findings in this regard does not amount to an error of law.  It is not the function of this Court to engage in impermissible merits review (and see further under Applicant’s oral submissions).

2. The Tribunal correctly outlined the relevant law and principles applicable to determining whether someone is a refugee (CB 75-76).  It did not made any finding, as asserted by the applicant, that persons fearing punishment for failure to comply with the one-child policy are not, by virtue of that alone, refugees.

3. For the above reasons, I am satisfied that the applicant was accorded procedural fairness by the Tribunal in its consideration of the one-child policy, in compliance with the statutory regime.

4. In his oral submissions to this Court, the applicant submitted that:

   The RRT officer, after the hearing, should give the applicant a chance to explain the information the applicant already provided. RRT also has this obligation to consider such information. However, RRT officer did give a chance for applicant to explain on the hearing, but RRT officer did not give the applicant enough time to consider all the information, and so, that is breaching the section 424A in the immigration law (transcript, 16/4/08 p 3).

5. As stated above, I consider that the Tribunal provided the applicant with an opportunity to comment on its concerns raised at the Tribunal hearing and gave him the opportunity for an adjournment if he had so wished.

6. I also note that the Tribunal hearing was held on 10 October 2007, and its decision was not signed until 26 November 2007, some six weeks later. There is no evidence that the applicant attempted to contact the Tribunal at any time during that period or to alert them to any complaint he may have had in this regard.

7. Accordingly, Ground 1 of the application is rejected.

Ground 2 of the application

1. The applicant submits under this ground that the Tribunal found that the one-child policy is a law of general application and therefore the mistreatment the applicant suffered in China does not amount to persecution. In reaching this finding, the applicant asserts that the Tribunal ignored the fact that the mistreatment the applicant suffered was not within the range of normal punishment prescribed by the Chinese birth-control law but was a punishment amounting to persecution.

2. I accept the submission by the first respondent that, contrary to the applicant’s assertion, the Tribunal did not reach any conclusion that the one-child policy was a law of general application.

3. I am further satisfied, as dealt with under ground 1 above, that the Tribunal directly considered the impact of the one-child policy on the applicant and, having done so, reached the conclusion, based on the applicant’s own evidence that any penalty had been imposed on him some years ago; that his evidence did not establish that “the authorities continued to penalise [him] because of his breach of the one child policy, or that they would do so if he returned to China”; and that there was no real chance that the applicant would suffer persecution or serious harm in consequence of that policy if he returned to China. I accept the submission by the first respondent in this regard that:

   The findings of the Tribunal that the applicant's claims to fear persecution arising from China's one-child policy were founded on an acceptance of the applicant's evidence which showed the absence of any objective basis for the applicant's fear in the reasonably foreseeable future.

4. Accordingly, for the reasons stated above, Ground 2 of the application is rejected.

Applicant’s oral submissions

1. At the hearing, the applicant made the further oral submissions to the Court.

2. Firstly, the applicant points to the alleged subjectivity of the Tribunal and its determination regarding the credibility of his evidence:

   the RRT officer very subjectively gave his or her opinion about the applicant's case and make a decision based on very subjective opinion.  Regarding the credibility of the applicant, his participation in the Chinese underground church activities, the RRT officer did not have any ground to make a judgment (transcript, p 3).

3. The statutory obligation of the Tribunal was to determine whether the applicant satisfied the requirements of the Refugee Convention, as adopted under Australian law. In doing so, the Tribunal was required to determine the merits of the applicant's case. I consider that the Tribunal did so through a carefully reasoned process. The Tribunal closely reviewed the evidence before it and clearly set out the grounds for reaching its determination, including that it did not accept that the applicant was a practising Christian or had participated in Chinese underground church activities (CB 84-85).

4. Merely because the applicant disagrees with the Tribunal’s findings on these matters, does not mean that it conducted the hearing in an unfair manner, nor that its findings of fact, in particular as to the applicant’s credibility, were not reasonably open to it on the evidence before it.

5. It is unclear exactly what the applicant is alleging in this regard. To the extent that the applicant is alleging bias or bad faith on the part of the Tribunal, there are no particulars provided by him to identify the precise nature of the allegation. Further, as has already been noted above, the applicant has not provided the transcript of the Tribunal hearing before the Court.

6. It is well-settled that any allegation of bias must be “distinctly made and clearly proved”: SZHPD v Minister for Immigration & Citizenship [2007] FCA 157 at [22]; citing Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531, [69]. This has simply not been done in the present case.

7. I further note the observations by von Doussa J in SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38] that it “will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision.” His Honour further relevantly observed at [38]:

   The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision. Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed, that without more is unlikely to demonstrate that the decision maker had embarked on the case with a closed mind, not open to persuasion.

8. In order to establish bias or bad faith the applicant would need to demonstrate that the Tribunal “acted dishonestly or arbitrarily or capriciously”: SBBS v Minister for Immigration and Multicultural & Indigenous Affairs (2002) 194 ALR 749 at [56]-[59]. Again, this has not been demonstrated by the applicant. There is nothing disclosed on the face of the Tribunal decision record to support any assertion of actual bias on its part.

9. I am further satisfied that there is nothing on the face of the decision record to show that a “hypothetical fair minded lay observer who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias”, might reasonably apprehend that the Tribunal did not bring an impartial mind to the task of the decision making process: Re Refugee Review Tribunal; ex parte H & Anor (2001) 179 ALR 425 at [28].

10. I am satisfied therefore that no allegation of bias, whether actual or apprehended, can be demonstrated on the face of the Tribunal decision record.  Indeed far from demonstrating any form of bias on the part of the Tribunal, its careful questioning of the applicant at the hearing to try to get responsive and informative answers to its questions that went directly to the merits of the applicant's claim to fear persecution if he returned to China, militate against any such conclusion of prejudgment on its part or that it proceeded with a mind otherwise than open to persuasion.  I thus detect no procedural unfairness on this basis.

11. To the extent that the applicant is seeking to recanvass the Tribunal’s findings as to his credibility, these are findings of fact par excellence, not open to review by this Court: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] 168 ALR 407 at [67]. It is not the function of this Court to engage in fact finding concerning the merits of an applicant’s case: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10]. Furthermore, there is no error of law, let alone jurisdictional error, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth (1998) 197 CLR 510 at 560 [137].

12. The procedural fairness requirements in Part 7 Division 4 of the Act deal only with the process of decision-making, not the merits of the decision.  As relevantly stated by the High Court in SZBEL v Minister for Immigration and Multicultural Affairs [2006] HCA 63 at [25]:

    what is required by procedural fairness is a fair hearing, not a fair outcome … It is, therefore, not to the point to ask whether the Tribunal's factual conclusions were right. The relevant question is about the Tribunal's processes, not its actual decision.

13. Secondly, the applicant submitted in regard to his son that:

    When the applicant's son was answering questions, the RRT officer's attitude was not good.  Because of that, consequently, my son was very scared, so after the hearing, my son disappeared (transcript, p 3).

14. The applicant told the Court that his son was 18 years of age at the time of the Tribunal hearing (transcript, p 10).

15. The Tribunal summarised the evidence given by the applicant's son as follows:

    The applicant’s son gave evidence that his father brought him to Australia and worked here while he studied. They were under pressure and the father used income from work to cover his studies. They could no longer stay in China because the authorities did ‘wrong things’ to his father. When he was younger the authorities took his father away to the police or elsewhere. One thing that made an impression on him was that on 9 September 2004 they had passports which meant they could leave China. They appreciated God’s help in enabling them to leave. They had wanted to leave for a long time, and the date was important because they had the passports on that day. The Tribunal indicated that there was no evidence that he, the son, had a passport on that day as his passport was issued in 2006. He stated that his father obtained the passport on that day.

    The son stated that he was also involved in the underground church which was not permitted by the authorities. The Tribunal asked what kind of underground church it was. He stated it was a Christian group different from the official church. The official church followed the will of the CCP, whereas their church could do what they wanted without restriction. The Tribunal asked again which underground church his father belonged to. He stated the underground church believed in Jesus Christ. The Tribunal asked the applicant’s son again which underground church it was, and he stated he did not know (CB 82).

16. A Tribunal is entitled to control the direction of the hearing, including by asking questions of any person appearing before it in order to satisfy itself of the merits of an application: NADH v Minister for Immigration [2004] FCAFC 328 at [124]-[125]. Also, a Tribunal does not have to accept uncritically any claims made by an applicant or another witness: Randhawa v Minister for Immigration & Ethnic Affairs (1994) 52 FCR 437 at 451, 124 ALR 265 at 278; Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61 at 76A.

17. The applicant has not provided the Court with the transcript of the Tribunal hearing. I am satisfied that there is nothing disclosed on the face of the Tribunal decision record concerning the manner and form of questions asked of the son from which any inference might reasonably be drawn that the son was confused or had undue difficulties in giving evidence, or that the Tribunal acted in a biased or overbearing manner towards him, or that it engaged in oppressive or unfair questioning of him, or that it acted in a manner whereby the son was intimidated or overborne, or that it otherwise acted unfairly or in bad faith towards him.

18. There is also no evidence before the Court that the alleged fear by the son, and his alleged disappearance at some time after the Tribunal hearing, had anything to do with the manner in which the Tribunal had conducted its examination of him.

19. Thirdly, the applicant submitted in relation to the legal advice provided to him that:

    [he] did have a chance to seek free legal advice, however, the lawyer did not give applicant any suggestion regarding the hearing because the lawyer failed to give proper suggestions, so the applicant would not have any idea to point out the jurisdictional error the RRT officer made (transcript, p 4).

20. Again I note that the applicant has not provided the Court with the transcript of the Tribunal hearing. There is also no evidence that the applicant made any complaint to the Tribunal in this regard, either at the hearing or prior to the handing down of its decision.

21. I do not consider that any difficulties the applicant may have had with the legal advice provided to him raises any question of jurisdictional error by the Tribunal. I accept the submission of the first respondent that:

    some applicants may have difficulties representing themselves, but, unfortunately, it is for the applicant to obtain whatever legal advice he can and to ensure that his case is prepared properly when he comes to the Court (transcript, p 9).

22. Fourthly, the applicant submitted that the tapes of the Tribunal hearing should be translated into Chinese:

    The tapes, the video tapes, during the RRT hearing must be translated into Chinese.  However, the applicant did not have such financial ability to pay the translation fee, so the applicant would like the Judge to give the applicant a chance to let the government lawyers to translate the tape, the RRT tape, from English into Chinese to the applicant.  From this point, we can also see is the RRT officer's attitude towards the hearing (transcript, p 4).

23. The first respondent pointed out to the Court that this was the first time the Minister has been made aware of such a request by the applicant.

24. The applicant at the Tribunal hearing was provided with a NAATI Level 3 interpreter (CB 62). I consider that the Tribunal decision record makes clear that the Tribunal indicated to the applicant all of the concerns that it had with his evidence and gave him a full opportunity to respond to those concerns (CB 82-83). Also, the Tribunal addressed these matters in detail in its Findings and Reasons. Given that the Tribunal acted in accordance with these procedural fairness requirements (and see ground 1 above), I accept the submission of the first respondent that:

    it is not apparent, reading the Tribunal's summary of what occurred at the hearing, that those tapes would elucidate or illuminate any particular jurisdictional error (transcript, p 9).

25. Fifthly, the applicant submitted that the Tribunal did not give him a fair hearing:

    The last point is that the RRT officer did not give the applicant a fair hearing, so the applicant actually did not have a chance to explain all the information in China (transcript, p 4).

26. The applicant was not entitled to common law procedural fairness in this regard: s.422B of the Act. For the same reasons as stated above, in particular under ground 1, I am satisfied that the Tribunal afforded the applicant a fair hearing and gave the applicant sufficient opportunity to explain his claims.

27. Overall, in this regard, I consider that a fair reading of the Tribunal’s decision record makes it clear that the Tribunal understood the nature of the applicant's claims; explored those claims with him at the hearing; identified the determinative issues and gave him sufficient opportunity to give evidence and make submissions on those issues at the hearing; closely noted the applicant's responses; and then made findings based on all the evidence and material before it.

28. I consider that its findings of fact, in particular as to the applicant’s adverse credibility, were open to it on the evidence and material before it; that it provided well-articulated and detailed reasons for rejecting the applicant’s claims; that it applied the correct law to those findings; and reached its conclusions, based on those findings, that the applicant was not a person to whom Australia has protection obligations. In these circumstances, I am satisfied that the Tribunal complied with the statutory regime in the making of its decision and performed the task required of it in accordance with law.

Conclusion

1. The Court finds that 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.

2. The application before this Court is dismissed.

I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Orchiston FM

Associate:  Duncan Maconachie

Date:  11 June 2008