SZMFI v Minister for Immigration
[2008] FMCA 1269
•9 September 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMFI v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1269 |
| MIGRATION – Review of decision of Refugee Review Tribunal – whether jurisdictional error – Protection (Class XA) visa – whether breach of ss.424A and 424AA of the Act – applicant must make out own case – merits review not function of judicial review – credibility – procedural fairness – whether proper consideration of claims – whether breach of s.425 of the Act – natural justice – apprehended bias. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5, 36, 65, 91R, 91S, 422B, 424A, 424AA, 425, 474 |
| SZLTC & Ors v Minister for Immigration & Anor [2008] FMCA 384 SZGIY v Minister for Immigration & Citizenship [2008] FCAFC 68 MZWBW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 94 Applicant A169 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 8 NAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 76 Yao-Jing Li v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275 WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 Abebe v Commonwealth (1999) 197 CLR 510 Randhawa v Minister for Immigration & Ethnic Affairs (1994) 52 FCR 437 SZBEL v Minister for Immigration & Multicultural Affairs [2006] HCA 63 SZBYR v Minister for Immigration & Citizenship (2007) HCA 26 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] 168 ALR 407 Chen Xin He v Minister for Immigration & Ethnic Affairs Federal Court of Australia, RD Nicholson J, 23 November 1995, (unreported) SZHPD v Minister for Immigration & Citizenship [2007] FCA 157 SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 Re Refugee Review Tribunal; ex parte H & Anor (2001) 179 ALR 425 |
| Applicant: | SZMFI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1123 of 2008 |
| Judgment of: | Orchiston FM |
| Hearing date: | 15 August 2008 |
| Date of Last Submission: | 15 August 2008 |
| Delivered at: | Sydney |
| Delivered on: | 9 September 2008 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
The application filed on 5 May 2008 is dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $3,800 payable within three months (3) of the date of these Orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1123 of 2008
| SZMFI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Application
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 8 April 2008 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
The first applicant was born on 28 November 1974. She claims to be a national of China, of Han ethnicity, and of Catholic faith.
The applicant arrived in Australia on 3 September 2007 on a Chinese passport issued in her name.
The applicant lodged an application for a protection visa on 16 October 2007 on the basis that she had been persecuted, arrested, interrogated, and beaten by the authorities in China due to her involvement in the Roman Catholic Underground Church (Court Book (CB) 25-29).
On 8 January 2008 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 49-56) (see Legislative framework).
On 8 February 2008 the applicant applied to the Tribunal for review of the delegate’s decision (CB 58).
Legislative framework
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.
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).
Australia has protection obligations to a refugee on Australian territory.
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.
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
On 21 February 2008, the Tribunal sent a letter to the applicant inviting her to appear before it on 17 March 2008 to give oral evidence and present arguments (CB 66-67).
On 27 February 2008, the Tribunal also wrote to the applicant pursuant to s.424A of the Act (CB 71-73) inviting her comment and response on the following information which it considered may be a reason or part of the reason for affirming the decision under review:
The Tribunal noted that the applicant was able to depart the country on a passport issued in her own name and also that she delayed her application for the protection visa after her arrival in Australia. This was said to be relevant as it may indicate that she was of no interest to the Chinese authorities at the time of her departure and also that she did not have a genuine fear of persecution. The Tribunal also referred to the information concerning the applicant’s employment provided with her visitor visa application, which appeared to inconsistent with the information about her employment provided on the protection visa application. This was said to be relevant to the assessment of the applicant’s credibility. The Tribunal also noted that the applicant had not provided any evidence of her religious activities in Australia when making the application or during the processing of the application and this was said to be relevant as it may cause the Tribunal to conclude that the applicant was not a devout Catholic, as claimed.
On 12 March 2008 the applicant provided a statutory declaration in response to the matters raised in the s.424A letter (CB 74-77).
The applicant attended and gave evidence at the Tribunal hearing on 17 March 2008.
The Tribunal’s findings and reasons (CB 113–115)
I accept that the first respondent accurately summarises the Tribunal's findings and reasons as follows:
The Tribunal rejected the applicant's credibility and consequently the entirety of her claims. The Tribunal gave the following cumulative reasons for its adverse credibility finding.
i)The applicant's oral evidence was evasive, particularly when she was asked about matters that went beyond her written statement.
ii)The applicant gave inconsistent information about her employment in her visitor visa application and PVA. In her response to the Tribunal's section 424A letter the applicant claimed she was not aware of the information in the visitor visa application. The Tribunal found the applicant's willingness to provide false information, or her indifference to this, to achieve a migration outcome, caused it to further doubt the applicant's credibility.
iii)Aspects of the applicant's oral evidence were vague, for example, her claims as to how she organised three religious groups.
iv)The Tribunal was suspicious about the convenient timing of certain events described as having occurred in China.
The Tribunal considered the evidence of Father McGee. The Tribunal gave his evidence about the applicant's activities in China little weight, on the basis that he could not recall having direct contact with the applicant after she started to attend the Church in Australia.
The Tribunal considered the photograph the applicant presented. The applicant claimed it was a photograph of her and a priest in China. The Tribunal gave the photograph no weight because it was not possible to ascertain when or where it was taken or that the person was a priest.
The Tribunal accepted that the applicant had attended Church in Australia. However because it had rejected her credibility and her claims to have been involved in the Catholic Church in China, the Tribunal was not satisfied that the applicant engaged in religious activities in Australia otherwise than for the purpose of strengthening her refugee claims. Accordingly, the Tribunal disregarded the applicant's conduct in Australia pursuant to section 91R(3) of the Act.
In conclusion, the Tribunal found that the applicant would not engage in religious activities of the underground Catholic Church, or any other unauthorised religious activities, if she were to return to China now or in the reasonably foreseeable future. The Tribunal therefore found that there was no real chance that the applicant would face persecution because of her religion or for any other Convention reason if she were to return to China now or in the reasonably foreseeable future.
The proceedings before this Court
The applicant filed the application in this Court on 5 May 2008 setting out 2 grounds of review of the Tribunal’s decision.
The applicant appeared in person before this Court on 15 August 2008 with the assistance of a Mandarin interpreter. Ms Hooper appeared for the first respondent.
The applicant was invited to say anything she wished to in support of the grounds of review, and generally, after each ground was translated for her.
Grounds of application
Ground 1 of the application
Ground 1 of the application states that:
The Tribunal failed to comply with its obligations under s.424AA of the Act
Particulars
Before I attended a hearing before the Tribunal (“The Tribunal's hearing”), I was invited to comment the issues, which were mainly regarding my departure from China and my late lodgement for a protection visa, in a Tribunal's letter (“s.424 letter”).
In the Tribunal’s decision, the Tribunal has stated that:-
The Tribunal consider it to be at least suspicious that the applicant would apply for the Australia visa after Mr Xue was arrested, that she would be granted such visa only a few days after Mr Chen’s arrest and that Mr Chen would confess only after she safely left the country …
The Tribunal has considered the evidence of Fr McGee about the applicant's involvement with the Church in Australia… Fr McGee told the Tribunal that the applicant's level of knowledge was consistent with her exposure to the church in China, however he also stated that he could not recall having direct contact with the applicant after she started to attend the church …
The applicant presented a photograph of herself and another person dressed in religious vestments. The applicant claims that it is a photograph with a priest in China. As the Tribunal pointed out to the applicant at the hearing, it is not possible to ascertain from the photograph where or when it was taken or that the person is in fact a priest of the underground Catholic Church in China …
However the information in relation to when I actually started applying for the Australian visa, the information in relation to Fr McGee’s evidences, and the information in relation to the photograph presented by me at the Tribunal's hearing have never been included in the s.424 letter. So, under the s.424AA of the Act, the Tribunal is obligated to:
(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
It is apparently that the Tribunal failed to do so.
The applicant argues that the three matters particularised under this ground, namely, the information in relation to when she started applying for the Australian visa, the information in relation to Father McGee’s evidence, and the information in relation to the photograph she presented at the Tribunal's hearing, were not included in the s.424A letter. The applicant argues that the Tribunal was therefore obliged to comply with s.424AA of the Act, seemingly, to overcome their omission from the s.424A letter.
Section 424AA(a) gives the Tribunal a discretion, not an obligation, to put orally to an applicant at the hearing particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review. A Tribunal that elects to embark on this procedure must comply with the procedural fairness requirements in s.424AA(b). The effect of s.424A(2A) is that a Tribunal that acts in a manner that complies with s.424AA is exempt from any obligation under s.424A(1) of the Act.
I consider that the Tribunal decision record provides no indication that the Tribunal sought to invoke s.424AA in this case by putting information to the applicant orally in accordance with that provision. There is simply nothing on the face of the Tribunal decision to indicate that it purported to invoke s.424AA: cf SZLTC & Ors v Minister for Immigration & Anor [2008] FMCA 384 at [17] per Driver FM. In fact, the Tribunal adopted the course of writing to the applicant pursuant to s.424A of the Act. In these circumstances, any question of an alleged breach of s.424AA simply does not arise.
Whilst not argued by the applicant, I have also considered whether there has been any breach of s.424A in this case, that is, whether the Tribunal was obliged to put the three matters particularised by the applicant, to her in writing for her comment or response.
Particular 1: information in relation to when the applicant started applying in China for a visa to travel to Australia.
The applicant concedes in the terms of ground 1 itself that:
Before I attended a hearing before the Tribunal (“The Tribunal's hearing”), I was invited to comment the issues, which were mainly regarding my departure from China and my late lodgement for a protection visa, in a Tribunal's letter (“s.424 letter”).
In her response to the s.424A letter (CB 76), the applicant raised various matters relevant to the sequence of events leading up to her departure from China on 2 September 2007. The applicant also gave evidence on this matter at the Tribunal hearing, as follows:
The Tribunal again asked the applicant when she applied for the Australian visa. She said that Xue Xiao Yong was arrested in June. She said that may be on 20 August she was told that the visa was granted. The Tribunal asked the applicant if she knew when she applied for the visa. She said that Chen Li Hua was arrested in August and she went to hide with one of her fellow believers and she asked a friend to do it quickly. The Tribunal asked the applicant whether she applied for the visa after Ms Chen's arrests. She said it was after Mr Xue's arrest (CB 109).
The Tribunal in its Findings and Reasons concluded that it was:
… at least suspicious that the applicant would apply for the Australian visa after Mr Xue was arrested, that she would be granted such visa only a few days after Ms Chen's arrest and that Mr Chen would confess only after she safely left the country. The Tribunal is concerned that these events have been created by the applicant to strengthen her claims (CB 114).
I consider that this “information” in Particular 1, falls within the statutory exception: s.424A(3)(b), being information that the applicant gave “for the purpose of the application for review”. I accept the submission by the first respondent in this regard that:
the sequence of events described in the [Tribunal's] finding and relied upon by the applicant was given by the applicant in her oral evidence to the [Tribunal] within section 424A(3)(b). Similarly, the date of the grant of the visitor visa to the applicant was recorded in a stamp in her passport, which she submitted at the [Tribunal] hearing [CB 84], and therefore this is also a matter captured by section 424A(3)(b).
Furthermore, the Tribunal's conclusions as to the credibility of the applicant, arising from her evidence concerning the timing of events leading to her departure from China, do not enliven the Tribunal’s obligations under s.424A(1). It is clear that a proper construction of the word “information” in s.424A(1) does not extend to the Tribunal’s subjective appraisals, thought processes or determinations on the evidence, including its disbelief of the applicant’s evidence. As relevantly observed by the High Court in 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, in the present case, the lack of credibility of the applicant’s claims was at the forefront of the Tribunal’s thought processes.
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)
I thus detect no breach of s.424A on the basis of Particular 1.
Particular 2: the oral evidence of Father McGee
The Tribunal in its Findings and Reasons stated that:
… Fr McGee told the Tribunal that the applicant's level of knowledge was consistent with her exposure to the church in China, however he also stated that he could not recall having direct contact with the applicant after she started to attend the church. In these circumstances, the Tribunal gives Fr McGee's evidence about the applicant's activities in China little weight (CB 114).
The obligation enlivened under s.424A(1) only applies to information that "the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review." Nothing in Father McGee's evidence comes within this category of information. It does not contain information which in its terms constitutes "a rejection, denial or undermining of the appellants' claims to be persons to whom Australia owed protection obligations": SZBYR at [17]. Rather, whether or not Father McGee had contact with the applicant when she first started attending the Church was relevant only to the weight that the Tribunal was prepared to accord to his evidence.
I thus detect no breach of s.424A on the basis of Particular 2.
Particular 3: information in relation to the photograph
The applicant submitted a photograph of herself and another person dressed in religious vestments at the Tribunal hearing (CB 89). The applicant claimed that it was a photograph with a priest in China.
I consider that the photograph falls within the statutory exemption: s.424A(3)(b), being information that the applicant gave “for the purpose of the application for review”. Also, the Tribunal's consideration of the weight it accorded to the photograph, was an appraisal of the evidence and not “information” within s.424A(1): SZBYR at [18].
I thus detect no breach of s.424A on the basis of Particular 3.
Accordingly, for the reasons stated above, Ground 1 of the application is rejected.
Ground 2 of the application
Ground 2 of the application states that:
There was procedural error in the Tribunal's decision constituting an absence natural justice. The Tribunal's decision has included apprehended bias.
Particulars
According to the evidence that I have provided either to the Department or the Tribunal in my Statutory Declaration attached to my protection visa application:
(14) On 16 June 2007, a young man named as “Xiao Yong Xue” was arrested by the PSB while he had distributed some religious propaganda materials in Houban Village. Mr Xue was a new believer who did not know me actually, but he knew that a young lady called as Rosa had been in charge of 3 Catholic groups in Yidu area. His confession made the PRC authorities pay much more attention to Rosa from then on. Although the police, at the that time, still had no knowledge about that I had actually been called the “Rosa” wanted by them, I had to consider my own safety. In case that I would be discovered by the PSB, I had to ask a friend to find a way for me to go to the overseas in order to escape from persecution from the PRC authorities.
(15) On 19 August 2007, Ms Li Hua Chen was arrested by the PSB while she attended a Catechumen class in a secret place in Longtian Town. About 10 Catholics in the Catechumen class were taken away by the police in the same time. Although I firmly believed that Ms Li Hua Chen would definitely be impossible to expose me, I was scared. In case that I would be in troubles, I went to Fuzhou and stayed in a reliable church sister’s home. Meanwhile, I pushed my friend to make everything ready for my going to the overseas as soon as possible. I obtained my visa late in August 2007. With assistances of my friend, I left China on 2 September 2007.
It is apparently that I started applying for the visa through my friend in June instead of August 2007; and that it has taken for two months instead of only a few days.
If the Tribunal had fairly gave me a chance according to s.424AA of the Act or if the Tribunal had carefully consider my evidences; then it would have assessed my credibility correctly.
It is apparently that it must have some misunderstanding between the Tribunal and Fr McGee’s evidences; otherwise, it must be impossible that Fr McGee, on one hand, said that the applicant's level of knowledge was consistent with her exposure to the church in China; but on the other hand, he said that he could not recall having direct contact with the applicant after she started to attend the church…
It is apparently that I would have certainly been able to ascertain from the photograph, which I have presented at the Tribunal's hearing, where or when it was taken or that the person is in fact a priest of the underground Catholic Church in China if I were to be given a fair chance subjected to s.424AA of the Act. However, the Tribunal failed to do so.
The applicant makes a general assertion that the Tribunal's decision included an absence of natural justice and apprehended bias. However the supporting particulars set out under this ground seek to challenge the conclusions reached by the Tribunal on three specific matters, each of which, in effect, raises issues other than those relevant to general allegations concerning natural justice and apprehended bias. I shall therefore deal with the supporting particulars first.
The applicant first asserts that the Tribunal misunderstood the claimed sequence of events leading up to the grant of her visitor visa to travel to Australia and her subsequent departure from China in that:
It is apparently that I started applying for the visa through my friend in June instead of August 2007; and that it has taken for two months instead of only a few days.
and that:
if the Tribunal had carefully consider my evidences; then it would have assessed my credibility correctly.
I do not consider that the Tribunal either misunderstood the applicant's evidence on the claimed sequence of events leading up to the grant of her visitor visa to travel to Australia and her subsequent departure from China, nor that it failed carefully to consider her evidence on this matter.
In the statutory declaration attached to her protective visa application (CB 28) and in her oral evidence (CB 108-109) the applicant claimed that she had asked a friend to arrange for her departure from China in June 2007, after the arrest of a Mr Xue on 16 June 2007. The applicant claimed that on 19 August 2007, a person named Ms Chen was arrested, and that the applicant 'pushed' a friend to make sure everything was ready for the applicant's travel (CB 28). The applicant also claimed that in late August 2007, she obtained her visitor visa and she departed China for Australia on 2 September 2007 (CB 28).
The Tribunal clearly appreciated this sequence of events. It provided an accurate chronology of these claims in its summary of the statement attached to the applicant's protective visa application (CB 100-101); it explored this chronology with the applicant orally at the hearing; and put to her its reservations as to the convenience of this claimed series of events (CB 109).
The Tribunal concluded that:
The Tribunal is also concerned about the applicant’s explanation about the timing of events she described in China. The Tribunal considers it to be at least suspicious that the applicant would apply for the Australian visa after Mr Xue was arrested, that she would be granted such visa only a few days after Ms Chen’s arrest and that Mr Chen would confess only after she safely left the country. The Tribunal is concerned that these events have been created by the applicant to strengthen her claims.
I consider that the Tribunal's findings demonstrate no misunderstanding of the claimed sequence of events leading up to the applicant's departure from China. Rather, its conclusion is not inconsistent with the applicant's claims. It is clear that the Tribunal is referring to “the grant of the visa” a few days after Ms Chen's arrest, on 19 August 2007. The Tribunal was not suggesting, as the applicant appears to assert, that it had concluded that the applicant only applied for the visa a few days prior to it being granted.
I also consider that even if, contrary to the above determination, the Tribunal had erred in the manner asserted by the applicant, this would not give rise to jurisdictional error. It is well-established that an incorrect factual finding is not sufficient, of itself, to constitute jurisdictional error: MZWBW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 94 at [28]; Applicant A169 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 8 at [31] per Finn, Marshall and Mansfield JJ and NAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 76 at [37] per Gray, Moore and Weinberg JJ.
The applicant secondly asserts that there must have been a misunderstanding by the Tribunal in regard to Father McGee's evidence because he would not have said that the applicant's knowledge was consistent with her exposure to the Church in China, and then also have said that he could not recall having direct contact with the applicant after she started to attend the Church.
The Tribunal recorded Father McGee's evidence as follows (CB 103):
As far as he could remember, [the applicant] started attending the church six to seven months ago. He had conversations with her more recently but could not remember if he had done so from the start. The Tribunal asked Fr McGee to comment on the applicant's knowledge of Christianity or Catholicism at the time when she started attending. He said it was what he would expect from an average practising person. … The Tribunal asked Fr McGee whether his view [was] formed when [the applicant] started attending the church or at a later stage. He said that he could not say when he formed a particular judgment on the matter.
The Tribunal reached the following conclusions in regard to the evidence of Father McGee:
The Tribunal has considered the evidence of Fr McGee about the applicant's involvement with the Church in Australia and accepts that the applicant has been attending the church for the past six to seven months. Fr McGee told the Tribunal that the applicant's level of knowledge was consistent with her exposure to the church in China, however he also stated that he could not recall having direct contact with the applicant after she started to attend the church. In these circumstances, the Tribunal gives Fr McGee's evidence about the applicant's activities in China little weight (CB 114).
The applicant has not provided the Court with the transcript of the Tribunal evidence in support of any contention that the Tribunal misquoted or misinterpreted Father McGee's evidence in such a way as to give rise to jurisdictional error.
I consider that it was reasonably open to the Tribunal to give Father McGee's evidence concerning the applicant's religious commitment in China little weight, given that his evidence was equivocal about whether he had formed his view of the applicant's religious knowledge based on when she first started attending Church in Australia, or whether she may have gained that knowledge at an earlier time.
The applicant thirdly asserts that she would have been able to ascertain when and where the photograph (CB 89) she produced to the Tribunal was taken and whether the person was a priest, had she been given a fair chance to do so.
It is well settled that although the concept of onus of proof is not appropriate to administrative inquiries and decision making: Yao-Jing Li v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275 at 288, the relevant facts of an individual case will have to be supplied by the applicant herself, in as much detail as is necessary to enable the decision-maker to establish the relevant facts.
The Tribunal is not required to make the applicant’s case for her: SZBEL at [40]; WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 at [73]. As stated by the Full Federal Court in Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 at [76]:
In an inquisitorial process, it was for the respondent to put whatever evidence or argument he wished to the decision-maker to enable her to reach the requisite state of satisfaction.
As also observed by the High Court in Abebe v Commonwealth (1999) 197 CLR 510 at [187]:
It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.
The Tribunal is not required to accept uncritically any and all allegations made by the applicant: Randhawa v Minister for Immigration & Ethnic Affairs (1994) 52 FCR 437 at 451.
In any event, the applicant presented the photograph to the Tribunal claiming that it was taken in China and that the person in question was a priest. The Tribunal raised its concerns about the photograph with the applicant at the hearing, therefore giving her the opportunity to give evidence and present arguments in an attempt to overcome these concerns (CB 106.6). Ultimately, the Tribunal was not persuaded by the arguments presented by the applicant, and afforded the photograph no weight:
As the Tribunal pointed out to the applicant at the hearing, it is not possible to ascertain from the photograph where or when it was taken or that the person is in fact a priest of the underground Catholic Church in China. The Tribunal gives this document no weight.
I consider that this factual finding was reasonably open to the Tribunal and for the reasons it gave.
natural justice
To the extent that the applicant makes a general assertion that he was denied natural justice by the Tribunal, the applicant is not entitled to common law natural justice: s.422B of the Act. In regard to any alleged breach based on s.424AA, as referred to in the particulars in relation to this ground, or based on s.424A, I rely on my reasoning under ground 1 above in the present context.
I am further satisfied that the Tribunal complied with its statutory obligations under s.425(1) of the Act. The Tribunal at the hearing identified and put to the applicant the determinative issues in this case, in particular the plausibility of her claims and gave her the opportunity to give evidence and make submissions thereon in accordance with the principles in SZBEL v Minister for Immigration & Multicultural Affairs [2006] HCA 63 at [33]–[48] before reaching its conclusions. Beyond this, as observed in SZBEL at [47]-[48], procedural fairness does not require the Tribunal to disclose its mental processes and subjective appraisals, including its disbelief of an applicant’s claims and her lack of credibility, in reaching its decision.
The procedural fairness requirements in Part 7 Division 4 deal only with the process of decision-making, not the merits of the decision. As relevantly stated in SZBEL 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.
This statement reflects the well-established case law that it is not part of 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].
I consider that the Tribunal carefully considered the evidence of the applicant before concluding (CB 113-115) that she was not a credible witness, for the following reasons, including that:
·her evidence was evasive, especially when the Tribunal asked her about matters that were outside the scope of her written statement;
·her evidence in relation to her employment was inconsistent, which the Tribunal observed it had put to the applicant in its s.424A letter;
·her evidence was vague, and gave various examples in this regard;
·the Tribunal had concerns about the sequence of events surrounding the applicant's visa application and her ultimate departure from China.
The Tribunal’s finding that the applicant was not a credible witness was a finding of fact par excellence, not open to review by this Court:
If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word “implausible”. The disbelief arose from the Tribunal’s view that it was inherently unlikely that the events had occurred as alleged”: Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] 168 ALR 407 at [67].
The Tribunal was not required to go into the subset of its reasons for rejecting the applicant's credibility, although, in this case, it set out in detail the reasons for doing so.
Merely because the applicant disagrees with the Tribunal’s factual conclusions and its ultimate conclusion does not amount to an error of law: Chen Xin He v Minister for Immigration & Ethnic Affairs Federal Court of Australia, RD Nicholson J, 23 November 1995, (unreported) at [24].
Accordingly, I detect no breach of s.425(1) and s.424A of the Act in this case. I am satisfied that the applicant was accorded procedural fairness by the Tribunal in accordance with the statutory framework of the natural justice hearing rule under the Act.
Overall, I consider that a fair reading of the Tribunal’s decision record makes it clear that the Tribunal understood the nature of, and set out a detailed and reasoned analysis of, the applicant's claims; explored those claims with her at the hearing; identified the determinative issues and gave her sufficient opportunity to give evidence and make submissions on those issues at the hearing; and closely noted the applicant's responses. The Tribunal then made findings based on all the evidence and material before it.
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 conclusion that the applicant was not a person to whom Australia has protection obligations, based on those findings. 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.
apprehended bias
To the extent that the applicant is asserting apprehended bias on the part of the Tribunal, I note that she has not provided the Court with the transcript of the Tribunal hearing.
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.
I further note the observations by von Doussa J in SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38] that:
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.
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].
I am satisfied therefore that no allegation of apprehended bias can be demonstrated on the face of the Tribunal decision record to support the proposition that the Tribunal pre-judged the matter or embarked on it with a mind not open to persuasion.
Contrary to the applicant’s assertion, I thus detect no procedural unfairness on this basis.
Accordingly, for the reasons stated above, Ground 2 of the application is rejected.
Conclusion
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.
The application before this Court is dismissed.
I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of Orchiston FM
Associate: Duncan Maconachie
Date: 9 September 2008
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