SZMJH v Minister for Immigration - [2009] FMCA 1177

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMJH v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 1177

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.424, 424A

Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230
Minister for Immigration & Citizenship v SZNAV [2009] FCAFC 109
Minister for Immigration and Citizenship v MZXPA and Another (2008) 100 ALD 312; [2008] FCA 185
Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39
MZXRE v Minister for Immigration and Citizenship and Another (2009) 176 FCR 552; [2009] FCAFC 82
NADH of 2001 and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264; [2004] FCAFC 328
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405; [2000] HCA 1
Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28
Re Minister for Immigration and Multicultural Affairs and Another; Ex parte Epeabaka (2001) 206 CLR 128; [2001] HCA 23
SZLUD v Minister for Immigration and Citizenship [2009] FCA 549
SZMJH v Minister for Immigration & Anor [2008] FMCA 1320

Applicant:

SZMJH

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 987 of 2009

Judgment of:

Barnes FM

Hearing dates:

19 August 2009 & 12 November 2009

Delivered at:

Sydney

Delivered on:

12 November 2009

REPRESENTATION

Applicant:

In person

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

The application be dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 987 of 2009

SZMJH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Refugee Review Tribunal dated 27 March 2009 affirming a decision of the delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of the People’s Republic of China, arrived in Australia in November 2006 and applied for a protection visa. His claims were set out in a statement attached to his protection visa application. At the time of his application he had the assistance of a migration agent. The application was refused by a delegate of the first respondent and the applicant sought review by the Tribunal. The applicant attended a Tribunal hearing conducted by the Tribunal as originally constituted. The Tribunal also wrote to the applicant under s.424A of the Migration Act 1958 (Cth). The Tribunal affirmed the decision of the delegate and the applicant sought review in this court.
On 2 October 2008 orders were made by Driver FM quashing the decision of the Tribunal and remitting the matter for redetermination according to law (see SZMJH v Minister for Immigration & Anor [2008] FMCA 1320). The Tribunal as reconstituted invited the applicant to attend another Tribunal hearing, which he did. It sent a further letter to the applicant inviting comment on certain information under s.424A of the Act, to which he replied. The applicant provided some additional documentary information, in particular relating to his identity, to the Tribunal. It is the decision of the Tribunal as reconstituted that is before the court in these proceedings.
As set out in the statutory declaration attached to his protection visa application, the applicant’s claims, in essence, were that in February 2006 he and a Mr Chen were involved in a pay dispute with respect to labour provided for a labour contractor and uncovered evidence that the fee had been taken by that contractor. The applicant claimed that on 26 February 2006 he and Mr Chen had been arrested by police from the Public Security Bureau and that he and Mr Chen were “detained, legally, for 3 weeks” and while “rarely interrogated or questioned” they were “physically tortured and mistreated”. The applicant claimed that Mr Chen subsequently required psychiatric hospitalisation. He claimed that he was released on 17 March 2006 but that he had to “promise never to expose anything to the outside of the PSB”.
The applicant claimed that while the PSB never told them why they were detained, he believed it was because the labour contractor had bribed police through his cousin, who was a police officer. The applicant claimed that together with Mr Chen’s family, he was involved in petitions and protests that called for an end to government and police corruption, illegal detention of people and abuses of human rights and for an investigation into Mr Chen’s circumstances and compensation. He claimed that as a result of these activities he was questioned over 10 times between July and September 2006 by the police, particularly by the policeman who was related to the labour contractor, but that no evidence was found against him.
He claimed that in October 2006 he then helped organise an open protest against corrupt police, that the protest was suppressed by the police, but that although around 20 people were arrested he was protected by Mr Chen’s family and friends and escaped.
In his original statement the applicant claimed that “with assistance of a friend” he had his name changed and obtained a passport in that false name using which he left China. He claimed that after his departure the police had gone to his home in China with a warrant for his arrest.
In its findings and reasons the Tribunal set out in detail the applicant’s claims made in the protection visa application, the statutory declaration, and the responses to s.424A letters from the first and second Tribunals, as well as what occurred at the Tribunal hearing.
The Tribunal as reconstituted accepted the applicant’s claims and documentary evidence in relation to his true identity. However it was not satisfied that he had given a truthful account of his past experiences in China or that he was a witness of truth in that respect. It found that there were a significant number of inconsistencies in the applicant’s evidence and that he had either not explained those inconsistencies or that his explanations were not credible. In addition, the Tribunal found that the applicant’s evidence about significant parts of his claims was not credible. It gave detailed reasons, referring to concerns about particular aspects of the applicant’s evidence, and addressing the explanations that had been provided by the applicant at the hearing and in response to the s.424A letter.
For example, the Tribunal found that the applicant had given inconsistent evidence in the statement attached to the protection visa application and at the Tribunal hearing in December 2008 in relation to matters such as the length of the fence which he claimed he was contracted to build along a railway and the materials involved in its construction. In his statement he had stated he was contracted to build a 10 kilometre wooden protection fence. At hearing he told the Tribunal that “the length of the fence he was employed to construct was 5000 to 6000m long and that the fence was a wooden and cement construction”. The applicant’s explanation for this inconsistency was that his evidence in the written material and at the hearing had not been “described accurately” in relation to the project. He provided a further explanation about the nature of the fence that was being constructed and claimed it was 10 kilometres long overall, but with wooden boards for about 5,000 to 6,000 metres.
The Tribunal did not accept this explanation, being of the view that it had been open to the applicant to provide this evidence either in his written claims or at the hearing, but that he did not do so. The Tribunal was of the view that the applicant’s inconsistent evidence indicated that he was not involved in the fence construction project as claimed.
The Tribunal detailed a number of other respects in which the applicant had given inconsistent evidence about what happened including when he sought payment when the project was completed, what he did, where he went and at what time when he was seeking payment for the project, and also in relation to his detention.
The Tribunal set out the applicant’s evidence about what occurred in relation to his pursuit of payment, the differences in his accounts in writing and at the hearing and inconsistencies in his claims about what he did thereafter, in particular in relation to whether he went to the Railway Bureau to find out about his labour fee (as he said in his application) or whether he travelled with Mr Chen to the worksite and approached management (as he said at the hearing). The Tribunal also referred to differences in the applicant’s claims in writing and at the hearing about events surrounding his claimed detention, precisely when that occurred, his evidence in relation to being given medical treatment for an injury requiring three or four stitches and when or whether he was not given food while detained.
The Tribunal considered the applicant’s explanation for these inconsistencies to the effect that his evidence at the Tribunal hearing was not interpreted properly and accurately and also that there was confusion as to which calendar he was using. However the Tribunal was not satisfied that the inconsistencies in issue had resulted from inaccuracies in interpretation as claimed by the applicant in response to the s.424A letter. While it did accept that this would go some way towards explaining why the applicant said in his statement that the reason the contractor gave for not paying him was that he had not received the money (whereas at the hearing the applicant said at first that the reason the contractor gave was that his salary would be calculated after he returned home), the Tribunal found that the alleged inaccuracy in interpretation did not explain why the applicant had stated in his statement that he went to the Railway Bureau on 20 February 2006, whereas at the hearing he said that after he and Mr Chen went to the worksite, they went to the contractor’s house on either 13 or 14 February 2006 to ask why he took the money.
The Tribunal found that the applicant had not explained why he did not state in his statement that he went with 20 other people to the contractor’s house after finding he had taken the money and that it was of significance that he did not state that after he went to the Railway Bureau he went with 20 others to the contractor’s house. It was of the view that, if these claims were true, such a significant fact would be included in the original statement, particularly as it was written only a few months after the events in question.
The Tribunal found that there were other inconsistencies in the applicant’s evidence as to the dates of particular events. In his statement he had claimed that he went to the Railway Bureau on 20 February 2006 and was arrested on his return on 26 February 2006, whereas at the hearing he had stated that he went to the Railway Bureau before 13 or 14 February 2006 and that on 17 February, two or three officers asked him to go with them to the PSB office. The Tribunal considered the explanation given by the applicant for inconsistencies in dates (which was that the date of the Chinese New Year was based on the lunar calendar and that in 2005 the Chinese New Year was on 9 February 2005). The applicant had also claimed that when he was asked about what happened after he went home, the interpreter at the Tribunal hearing did not interpret his oral evidence properly and accurately. In response to the s.424A letter he claimed that in the first month after the Chinese New Year he approached the labour contractor and then went to the Railway Bureau. In his explanation he referred to this occurring on specified dates in February 2005 after the Chinese New Year.
However the Tribunal did not accept that the inconsistencies in the applicant’s evidence about dates related to the use of the lunar calendar, because the applicant had related events that occurred in January and February 2006 to the 2005 Chinese New Year. It accepted, based on independent information, that as the applicant claimed, the 2005 Chinese New Year did occur on 9 February 2005, but pointed out that the 2006 Chinese New Year occurred on 29 January 2006. It found that the applicant’s explanation made no sense and would appear to have been fabricated in an attempt to explain inconsistencies in his evidence about dates. This further led the Tribunal to doubt his credibility.
The Tribunal also referred to the fact that the applicant had acknowledged that he gave inconsistent evidence about his arrest and not many details about what had happened to him when he was detained. The Tribunal was not satisfied however that the applicant had explained the significant inconsistency in his oral and written evidence about the claimed dates of arrest.
The Tribunal also had regard to the absence of explanation for the fact that at hearing the applicant had stated he was hit by the police when interrogated, whereas in his statement he had stated he was rarely interrogated or questioned and had not stated he was hit. The Tribunal found that it would expect the applicant’s evidence about who hit him to be consistent.
The Tribunal found that the applicant was unable to explain why he would be taken to hospital to get three for four stitches while detained, while at the same time claiming that he was not being given food. The Tribunal also found it problematic that the applicant did not mention in his statement that he was taken to hospital as claimed, as it would expect this to have been included, together with other details of mistreatment. The Tribunal was of the view that if the applicant had been detained as claimed he would be able to give consistent and detailed evidence about the circumstances of his detention, that he had not done so and that his evidence about his detention was not credible.
The Tribunal also had regard to inconsistent evidence in the applicant’s statement and at hearing about whether the contractor had paid the money owed in part or in full. It found that such an inconsistency was of significance and that it had not been clarified at the hearing when the applicant was given the opportunity to do so.
The Tribunal also found that the applicant had given inconsistent evidence about the petitions and letters he claimed were distributed. It set out in detail its concerns and the applicant’s explanation that he did not consider his evidence to be inconsistent and his reasons, but did not accept this explanation, particularly as the applicant had not explained why he gave inconsistent evidence about whether he or Mr Chen had been named in the petition or whether they were anonymous. The Tribunal was of the view that if the applicant was involved in writing and distributing petitions as claimed, he would be able to give consistent and credible evidence about whether the petitions were anonymous or named him or Mr Chen. It did not accept that the applicant was involved in preparing and distributing petitions as claimed.
The Tribunal detailed a number of other respects in which the applicant gave inconsistent evidence about how the protest he claimed he was involved in was organised and how he escaped being arrested at the protest and how his passport was arranged. It set out its concerns in detail and the applicant’s response that he did not consider his evidence to be inconsistent but rather just adding detail. The Tribunal did not accept this explanation, having regard to the absence of any explanation for certain of these inconsistencies and the significant difference between whether the applicant and Mr Chen’s family alone had organised the protest or whether the applicant organised a meeting in his home with 20 workmates to organise the protest. It also found that the applicant had not explained the significant difference in his claims about whether a friend had assisted him to change his name and obtain a passport in a new name, or whether Mr Chen’s relatives arranged it and asked for photographs in advance.
The Tribunal was of the view that the issues it addressed in the decision were central to the applicant’s claims and should not have resulted in significant differences, even with the passage of time.
The Tribunal also found that the applicant’s claim that he had been able to escape after the protest by Mr Chen’s family getting him a taxi (when 70 or 80 police came to clear the protest and he was holding a banner and some of Mr Chen’s family were arrested) not to be credible.
The Tribunal had regard to the applicant’s general contentions in response to the s.424A letter in relation to inconsistencies which were based on his inability to communicate in English; the need to use an interpreter; the possibility of difficulties in interpretation or misunderstandings if either the interpreter or translator was from an urban area whereas he was from a rural area in China; the possibility that different cultural backgrounds may contribute to misunderstandings; and his claim that at the Tribunal hearing he was under “huge pressure” and may therefore have made a mistake.
The Tribunal did not accept that these difficulties explained the inconsistencies in the applicant’s evidence. The Tribunal stated that it had carefully considered the nature of the inconsistencies to determine whether they gave rise to an inference of a lack of truth or whether a later version or a failure to recall particular events was “simply a function of a truthful inability to be accurate due to the passage of time”. It acknowledged that a period of some years had elapsed between the events in question, the earlier written version, and the applicant’s oral evidence. However as it was of the view that the matters identified were central to the applicant’s claims, the nature of the inconsistencies led the Tribunal to doubt that the applicant was a witness of truth. It found that if the claims were true it would not have expected the number or type of inconsistencies it had detailed.
In addition the Tribunal expressed concern about the credibility of the applicant’s evidence in relation to significant parts of his claims, particularly his evidence about having been taken to hospital for three or four stitches to a head injury while detained. It found that it was not credible that a person being detained, mistreated and not being given food, as the applicant claimed, would be taken for hospital treatment involving only three or four stitches. Nor did the Tribunal find it credible that the applicant would have been able to escape from a protest at which he claimed he was a main organiser when 70 or 80 police came to dispel it. It found it even less credible that the applicant was able to get a taxi to escape the protest in the way he had claimed or that in the circumstances of the break up of a protest in the manner claimed, Mr Chen’s family would be able to impart details of where he should go to escape as he had claimed.
For all of these reasons the Tribunal found that the applicant was not a witness of truth and had not given a truthful account of his past experiences in China. As a result it was not satisfied that the applicant was employed by a labour contractor to build a fence or that the contractor failed to pay the fee on time. Hence it did not accept that after they unsuccessfully attempted to secure payment the applicant and Mr Chen were detained, that due to mistreatment Mr Chen became deranged and was sent to a mental hospital and the applicant was released. It followed that the Tribunal did not accept that Mr Chen’s family asked the authorities to investigate the detention, that the applicant was warned, that he and others distributed petitions or that he was questioned by the authorities as a result. Nor did it accept his claims about organisation of a demonstration, police suppression of the protest and the arrest of many people during his escape. Hence the Tribunal did not accept that the applicant obtained or adopted a false identity to leave China after escaping from a demonstration, that since he had left home the police had gone to his home in China with an arrest warrant, that his wife and family had been subject to investigation or that he and his family had continued to come to the attention of the Chinese authorities. Therefore the Tribunal was not satisfied that the applicant had a well-founded fear of persecution for any Convention reason if he returned to China now or in the reasonably foreseeable future.

The applicant sought review by application filed in this court on 27 April 2009. He relies on the grounds in the application. He has not filed written submissions. The hearing was adjourned as the applicant had not had the opportunity to receive the benefit of advice from a panel advisor under the New South Wales RRT advice scheme. He has since had the benefit of a consultation with a panel advisor.
There are a number of grounds in the application, several of which raise an allegation that the Tribunal’s decision was affected by apprehended bias. The first ground is a general contention that the “decision was affected by apprehended bias”. The particulars to this ground take issue with the Tribunal giving weight to “minor and irrelevant discrepancies” between the written claims and the applicant’s evidence at the hearing. The application referred to the applicant’s “evidence about the length and materials involved in the construction of the fence”, claimed that “the Tribunal failed to consider my difficulties in preparing my written claims or giving my evidence at hearing” and referred to the UNHCR Handbook (which suggests that understanding should be given to an applicant’s particular difficulties and needs).
However the Tribunal did consider the difficulties that the applicant claimed explained inconsistencies or other shortcomings in the evidence in his written statement and at the Tribunal hearing, including interpretation difficulties, different cultural backgrounds, language barriers and pressure. It also considered whether such differences might be the result of a truthful inability to be accurate at a later date given the passage of time. However it found that this did not explain inconsistencies about central elements of the applicant’s claims, finding also that if the applicant’s claims had been true it would not have expected the number or type of inconsistencies which it detailed in its reasons for decision.
In relation to the specific issue of the applicant’s evidence in relation to the fence, as set out above, the Tribunal detailed the different accounts given by the applicant in writing and orally. It considered the applicant’s explanation that his evidence had not been described accurately in relation to the project and his further elaboration in response to the s.424A letter. However the Tribunal did not accept this explanation, being of the view that it had been open to the applicant to provide this evidence, not only in his written claims but alternatively at the hearing, but that he had not done so. The Tribunal was of the view that this inconsistent evidence indicated that the applicant was not involved in the fence construction project as claimed. Such findings were open to the Tribunal on the material before it for the reasons that it gave.
Insofar as the applicant’s allegation of apprehended bias is based on the Tribunal’s rejection of his credibility based on inconsistencies and its failure to accept aspects of his evidence, even if alternative inferences may have been available to a decision maker, a mere disagreement or even unease about factual findings reached by the Tribunal is insufficient to establish a reasonable apprehension of bias in the sense considered in Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28 (see Re Minister for Immigration and Multicultural Affairs and Another; Ex parte Epeabaka (2001) 206 CLR 128; [2001] HCA 23 at [90]).
The Tribunal’s findings in relation to credibility were based on a number of factors which it set out in detail. Findings in relation to credibility are a matter for the Tribunal par excellence (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405; [2000] HCA 1). This is not a case in which the circumstances and the manner in which the Tribunal made its credibility findings either specifically or generally are such as to give rise to an apprehension of bias from the perspective of the hypothetical, fair minded, properly informed lay observer having regard to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias, see Ex parte H at [27] – [28].
More generally in relation to apprehended bias, I note that insofar as issue might be taken with the fact that the Tribunal raised with the applicant issues of concern, either at the hearing or in the s.424A letter, this is not such as to give rise to an apprehension of bias, see Minister for Immigration and Citizenship v MZXPA and Another (2008) 100 ALD 312; [2008] FCA 185. To the extent that the Tribunal (during the hearing or in the s.424A letter) may have been seen to express scepticism about any aspect of the applicant’s claims, it has not been established that it did so in a manner which evinced a determination to prove the falsity of the applicant’s claims (see SZLUD v Minister for Immigration and Citizenship [2009] FCA 549) or that was indicative of apprehended bias.
Nor is this a case in which it has been established that the fact finding was conducted in a manner which can be described as insubstantial, in respects unreasoned, as mere assertion, lacking rational or reasoned foundation, at times as plainly and ex facie wrong and as selective of material going one way, as considered by Allsop J in NADH of 2001 and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264; [2004] FCAFC 328 at [115].
The decision in issue before the court in this case is the second Tribunal decision. While the first Tribunal decision (by a different Tribunal member) was remitted in circumstances where an apprehension of bias was found to have been established, the particular circumstances that led to that finding were not present in this case. In particular, insofar as the applicant’s identity was in issue, the Tribunal in this case accepted the applicant’s claims about his identity and the documents that he provided in support of those claims. In contrast, the basis for the finding in respect of apprehended bias in relation to the Tribunal as originally constituted was that it had made adverse findings about the applicant’s identity contrary to representations it had made to him during the hearing and a finding as to identity fraud without making a logically prior finding as to the applicant’s identity. Any such apprehension of bias on the part of the first Tribunal does not affect or infect the decision of the Tribunal as reconstituted. Ground one is not made out.
The second ground is that the “Tribunal failed to consider [the applicant’s] evidence independently, fairly and properly. Once again, the Tribunal’s decision was affected by apprehended bias”.
In particular, this ground took issue with the Tribunal’s approach to the applicant’s evidence about what happened when he sought payment when the project was completed, what he did, where he went and at what time and about his detention. It was contended that there was “no evidence that the Tribunal has considered my following evidences”, (which he set out) “independently, fairly and properly”. The application then sets out part of the applicant’s explanation in response to the Tribunal’s s.424A letter in relation to the concerns that the Tribunal had raised in this respect, in particular his contention that his evidence at the hearing had not been interpreted by the interpreter properly and accurately and that owing to “improper interpretation” of the interpreter at the hearing, the Tribunal did not realise the project had been completed at “the end of 2005”.
However the applicant’s claims and explanations in relation to the dates on which particular events occurred and his suggestion of interpretation difficulties were in fact considered by the Tribunal in its reasons for decision. Indeed the Tribunal accepted an aspect of his explanation, insofar as it accepted that an interpretation inaccuracy may have gone some way towards explaining why the applicant made certain claims in his statement in relation to what occurred in relation to the contractor paying him. However it was open to the Tribunal to find that interpretation difficulties did not address the inconsistency in the applicant’s claims about whether he went to the Bureau or to the worksite and when and with whom, the omission of a significant claim in that respect in the original statement, or inconsistencies about dates, given in particular that the claims were about events in early 2006 while the applicant’s explanation was based on the fact that Chinese New Year in 2005 fell on 9 February 2005.
The concerns that the applicant raised in that respect in response to the s.424A letter were addressed by the Tribunal and the Tribunal made allowance for the possibility that if there had been inadequate interpretation, it would have gone some way towards explaining a particular apparent inconsistency. The Tribunal’s finding that the applicant’s contentions in that respect did not explain inconsistencies of concern to it is not indicative of apprehended bias. Hence, insofar as this is a contention that the Tribunal failed to consider the applicant’s explanation for the inconsistencies in his evidence, the Tribunal did consider his explanation, but was satisfied that the inconsistencies of concern to it did not result from inaccurate interpretation and that the applicant’s explanation about missed translation of certain dates was not reconcilable with independent country information. The Tribunal did not ignore the applicant’s explanations. It was open to it not to be satisfied on the basis of those explanations with the applicant’s claims either in particular or more generally.
I note generally in relation to interpretation that there is no evidence before the court of what occurred in the Tribunal hearing other than the Tribunal reasons for decision. The applicant took issue today with what he said was a particular interpretational inaccuracy at the Tribunal hearing in relation to what he had said about whether he had been fed during his detention.
However there is no evidence before the court to substantiate any claim that there was a mistranslation on the part of the interpreter or that the quality of the interpretation afforded during the Tribunal hearing denied the applicant the opportunity to give meaningful evidence before the Tribunal so that he was effectively prevented from giving his evidence or that errors occurred in translation which were so material as to have caused the decision-making process to have miscarried (see Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230 at [17] which has been referred to with approval in a number of subsequent cases). On the approach taken in Appellant P119/2002, for the applicant to succeed he must establish by probative evidence that the standard of interpretation at the Tribunal hearing was so inadequate that he was effectively prevented from giving evidence at the hearing, or that errors made by the interpreter at the Tribunal hearing were material to the conclusions of the Tribunal adverse to the applicant. That has not occurred in this case.
The concerns that the applicant raised today are not such as to establish jurisdictional error, particularly in light of the approach taken by the Tribunal to the explanations he provided in that respect in response to the s.424A letter. It has not been established that the Tribunal failed to consider that response, let alone that it failed to do so “independently, fairly and properly”. The fact that the Tribunal did not accept the applicant’s explanations is not indicative of a closed mind in all the circumstances. Ground two in the application is not made out.
Ground three in the application is that the “Tribunal failed to have basic knowledge about actual situation in China”. The applicant reiterated this contention in oral submissions today. It was contended that the Tribunal “did not have basic knowledge about the “Chinese year” according to lunar calendar” and that the Tribunal failed to consider the applicant’s explanation about Chinese New Year and the dates thereof provided in response to the s.424A letter and rejected his evidence on an “unreasonable and incorrect ground”.
However, as set out above, the Tribunal rejected the applicant’s explanation because the applicant had claimed that events occurred in 2006 and yet in response to the s.424A letter he provided explanations in relation to the 2005 Chinese New Year. The Tribunal referred to independent country information verifying the commencement of the 2005 and 2006 Chinese New Year according to the lunar calendar. Its findings in that respect in relation to the dates in question and what flowed from that were open to it on the material before it for the reasons that it gave.
It has not been established that the Tribunal’s rejection of the applicant’s explanation was unreasonable in the sense of Wednesbury unreasonableness or in the sense considered by the High Court in Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39. Nor has it been established that the Tribunal failed to consider the applicant’s claims or his explanations. Ground three is not made out.
Ground four is that the Tribunal “rejected [the applicant’s] evidences without giving any reasonable or logical reasons; and there is no evidence that the Tribunal has fairly considered [his] evidences”. The application refers to issues addressed in the response to the s.424A letter and explanations for inconsistencies, in particular about the date of arrest and what happened in the detention centre and the lack of detail in the applicant’s claims. However the Tribunal considered the explanations provided by the applicant. It not only set out the applicant’s statutory declaration submitted in response to the s.424A letter but also gave reasons for not accepting his explanations in relation to particular issues or inconsistencies of concern to it.
The fact that the Tribunal did not accept the applicant’s explanations for matters it regarded as central to his claims and of concern, in circumstances where it considered those explanations and gave reasons for failing to accept the explanations, as well as considering more generally his explanations for any shortcomings in his evidence, is not such as to establish either unreasonableness in a manner giving rise to jurisdictional error or a lack of logic, let alone a lack of logic demonstrating jurisdictional error or that the Tribunal failed to consider the applicant’s claims or the applicant’s explanations. Ground four is not made out.
Ground five contends “[t]here is no evidence that the Tribunal has fairly and properly considered my evidence”. In particular, the Tribunal is said to have “failed to consider my difficulties in preparing my written claims or giving my evidence at hearing”, giving weight to “minor and irrelevant discrepancies” and hence the Tribunal’s decision is said to have been affected by apprehended bias. Ground five takes issue with the Tribunal’s approach to the applicant’s explanation in response to the s.424A letter in relation to particular aspects of his claims and discrepancies between his oral and written claims and refers, in particular, to the claim that some evidence was not inconsistent.
Again, however, the fact that the Tribunal did not accept the applicant’s explanations in circumstances where it clearly gave consideration to those explanations does not amount to a failure to consider evidence. Nor is it such that, either taken alone or in combination with all of the other matters raised by the applicant, it is indicative of apprehended bias. None of the grounds in the application are made out.
I have touched on issues that the applicant raised today in oral submissions. He reiterated his concern about interpreter “mistakes” in oral submissions today, suggesting that in several places in the Tribunal hearing the interpreter made mistakes that affected his ability to answer the Tribunal’s questions clearly. As set out above, there is no evidence before the court to support these claims. Insofar as the applicant raised such issues with the Tribunal, these matters were considered in its reasons for decision. The applicant’s claims in this respect do not establish jurisdictional error on the material before the court.
Nor are the applicant’s claims about the Tribunal not understanding the situation in China (in particular that references to the New Year were references to the lunar calendar) such as to establish jurisdictional error. As set out above, the applicant raised this issue with the Tribunal and the Tribunal addressed it in its reasons for decision.
Another issue raised by the applicant was that the Tribunal was unreasonable in taking the view that he should have provided a complete statement from the start with all of his details. However the Tribunal did not go so far as to require that the applicant provide a complete statement from the start with all details. Rather it had regard to specific inconsistencies between his written claims and oral claims and to the absence of central or significant facts in the original statement which, as it stated, was written only a few months after the events in question. The Tribunal considered whether or not any such inconsistencies were due to either a lack of truth or simply a function of a truthful inability to be accurate due to the passage of time. No jurisdictional error is established on the basis of the approach taken by the Tribunal to the contents of the applicant’s written statement and/or his oral evidence at the Tribunal hearing.
The explanations that the applicant endeavoured to provide today for concerns that the Tribunal had in relation to his evidence do not establish that the Tribunal fell into jurisdictional error. Insofar as he seeks merits review or takes issue with the Tribunal’s factual findings, factual findings are a matter for the Tribunal and merits review is not available in this court.
For the sake of completeness, I note that the first respondent relied on written submissions which in part addressed the possibility that the Tribunal’s letter to the applicant advising him that the matter had been remitted for reconsideration might give rise to an issue under s.424 of the Migration Act as a s.424(2) invitation. However, not only is that letter in identical terms to that identified by the Full Court of the Federal Court in MZXRE v Minister for Immigration and Citizenship and Another (2009) 176 FCR 552; [2009] FCAFC 82 (which accepted that such a letter was not within s.424(2) because it did not specify any date by which a response had to be given), but also in light of the decision of the Federal Court in Minister for Immigration & Citizenship v SZNAV [2009] FCAFC 109 any issue about s.424(2) that may have arisen in the past is not made out in the circumstances of this case.
As no jurisdictional error has been established, the application must be dismissed. Before I make the orders I will hear submissions in relation to costs.
The applicant has been unsuccessful and the Minister seeks costs in the sum of $5,000. The applicant told the court that he had no money. However the applicant’s lack of funds is not, in the circumstances of this case, a reason for departing from the normal principle that the unsuccessful applicant should meet the costs of the first respondent, although it may be a matter to be taken into account by the Minister in determining when and how to seek to recover such costs. The amount sought is appropriate in light of the nature of this and other similar matters.

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 27 November 2009