SZNTL v Minister for Immigration - [2009] FMCA 1153

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNTL v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 1153

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of a decision of the Refugee Review Tribunal affirming a decision of the delegate of the Minister not to grant a protection visa to the Applicant – Applicant a citizen the People's Republic of China claiming fear of persecution arising out of domestic violence by husband – credibility – merits review – allegation of bias – no reviewable error.

PRACTICE & PROCEDURE – Where applicant sought to make further submissions after judgment handed down.

Migration Act 1958 (Cth), ss.424A, 424AA, 425, 474(2)

Minister for Immigration, Local Government and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Re Minister for Immigration and Multicultural Affairs; Ex parte S20/2002 (2003) 198 ALR 59 at [12]
Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982
SZEPZ v Minister for Immigration and Multicultural Affairs [2006) FCAFC 107

Applicant:

SZNTL

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1720 of 2009

Judgment of:

Scarlett FM

Hearing date:

16 November 2009

Date of Last Submission:

16 November 2009

Delivered at:

Sydney

Delivered on:

16 November 2009

REPRESENTATION

The Applicant:

In person

Solicitors for the Respondents:

Ms Whittemore of Sparke Helmore

ORDERS

The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $3700.00 and I allow 4 months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1720 of 2009

SZNTL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

The applicant is a citizen of China. She is applying for judicial review of a decision of the Refugee Review Tribunal. In a decision made on 24 June 2009, the Tribunal affirmed the decision of a delegate of the Minister for Immigration and Citizenship, not to grant the applicant a protection visa. The applicant asks the court to:
a)make a declaration that the Tribunal’s decision was invalid and contrary to law,
b)make an order that the Tribunal’s decision should be quashed or set aside, and
c)make an order that her application be remitted to a differently constituted Tribunal, to be determined in accordance with law.
I have explained to the applicant that in order to make the orders that she seeks, the Court would need to be satisfied that the Tribunal decision was affected by a jurisdictional error. I also explained that even if the Court were satisfied that there had been a jurisdictional error on the part of the Tribunal, that the Court would not make an order that the matter be remitted to the Refugee Review Tribunal, constituted by another member. The Court certainly has the power to remit a matter to the Tribunal for determination according to law, and such orders are made quite frequently.
However, the Full Court of the Federal Court has expressed doubt that the Federal Magistrates Court, in remitting a matter to the Tribunal, has any power to make a determination about who or who should not constitute that Tribunal. The constitution of the Refugee Review Tribunal for a particular review, is a matter for the Principal Member of the Refugee Review Tribunal[1]. In any event, however, where a matter is remitted to the Tribunal, it is my understanding that the principal member would, as a matter of course, appoint another member of the Tribunal to re-hear the matter.
[1] See SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 107
As I said, the court needs to be satisfied that jurisdictional error has been made out. In her application, the applicant sets out three grounds of review, where she claims the Tribunal has fallen into jurisdictional error. They are as follows:
(1)The Tribunal failed to create a fair and genuine chance for me, while it reviewed my application for a protection visa, and the Tribunal failed to assess all of my evidence independently and fairly. And the Tribunal has, in fact, made its decision before the Tribunal’s hearing, and the Tribunal failed to comply with its obligations under section 425 of the Act. In the application, the applicant sets out particulars upon which she relies, to make out that ground.
(2)The second ground is the Tribunal’s decision has included a reasonable apprehension of bias, and the Tribunal made its finding based on its unwarranted assumption. Again, the applicant in her application has set out particulars of that claims as to why she believes there is a reasonable apprehension of bias.
(3)The applicant’s third ground is the Tribunal has ignored the most important documentary evidence submitted to it. Again, the applicant sets out particulars pointing out that she submitted documentary evidence of the Tribunal, but submits there is no evidence the Tribunal had taken any genuine attempt to consider her evidence fairly, properly and independently.
The applicant has also relied on a written outline of submissions, which was filed with the Court on 9 November 2009. It sets out her claims in two areas, and she has amplified those in the document. First of all, she said that:
The finding of the Refugee Review Tribunal has included a reasonable apprehension of bias, and the Tribunal ignored my important evidence, and the Tribunal misstated my claims or evidence, and the Tribunal made completely incorrect findings.
Second, she said that the Tribunal failed to create a genuine chance for her at the Tribunal hearing.
The Minister for Immigration and Citizenship filed a written outline of submissions on 28 October 2009. They are quite comprehensive, and address three grounds of review set out in the application. They do not reply to any material specifically included in the applicant’s written submissions, because the applicant did not file her submissions until 9 November.
On a preliminary issue, the applicant has told the Court that until the morning of the hearing, she did not receive a copy of the Minister’s outline of submissions. A copy of that document was provided to her this morning, and the court’s interpreter has told me that she translated that document for the applicant.
However, Ms Whittemore, solicitor, who appears for the Minister, takes issue with the applicant’s claim that she was not sent a copy of the Minister’s submissions. She has tendered in evidence a copy of a letter addressed to the applicant, dated 28 October 2009. The letter refers to the fact that it was sent by Express Post, and attached to it is a copy of the “Lift and Peel” sticker that is attached to Express Post envelopes, to be removed when they are posted. In this case, it bears the code number “CN5653866.” The letter says:
We refer to the above matter and enclose by way of service a copy of the first respondent’s submissions.
Ms Whittemore has told the Court that this document was sent by Express Post to the applicant’s address for service, which is a post office box number in a Sydney suburb. I have compared the address on the Minister’s letter with the address for service on the applicant’s application filed on 20 July 2009 and the address for service on the applicant’s written submissions filed on 9 November 2009. The address is identical.
I am satisfied on the evidence before me that the lawyers for the Minister did forward to the applicant at her address for service by Express Post a copy of the first respondent’s outline of submissions. Whilst it may be that the applicant says that she never received that document, I can provide no explanation for that, but I am satisfied that the document was sent to the right address on the day that the original was filed at the court registry.
As I said, the applicant is a citizen of China. She is a young woman who arrived in Australia on 31 December 2008. She arrived on a Chinese passport in the name of another person but disclosed her real identity once she had arrived in Australia.
On 30 January 2009 she applied for a Protection (Class XA) visa. In that application she acknowledged that she had left China on a passport in another person’s name and disclosed her real identity in the application. She claimed that she was unable to leave China on a passport in her genuine name because she had been put on an alert list of the Public Security Bureau. She explained her story that she was obliged to marry a man whom she did not want to marry. She had a boyfriend, but her parents objected to her marrying that person and, at the age of 20, in December 2004, the applicant’s parents and the parents of another young man arranged a marriage.
It was, on the applicant’s account, a highly unsuccessful relationship, as the husband was a violent man who dealt violently with the applicant on a number of occasions. Eventually, after having been beaten, in her statement she says that she was tortured with very cruel methods on the night of 6 February 2008. The applicant said that on the early morning on 7 February 2008 she escaped from the home but did not dare to return to her parents’ home.
She sought refuge with the police, but whilst she was waiting at the police station her husband arrived, and she claims that as a result she was tortured both by her husband and the police and, indeed, sexually assaulted. On the morning of the following day, 8 February 2008, she was sent back to her husband’s family.
She claimed that her former boyfriend, who had now married someone else, sympathised with her and attempted to assist her. In October 2008, the applicant claimed that her mother-in-law suffered from a heart attack and, whilst the family were with her in the hospital, the applicant claimed that she took the opportunity to escape. In her statement she referred to her former boyfriend, Mr Lin, and she said:
Mr Lin helped me to get a train ticket to Beijing and Mr Lin also gave me some money. I then prepared to leave for Beijing on 10 October 2008. Unfortunately, I was discovered by the police Fuzhou train station. I was immediately arrested and then sent to Fuqing PSB[2].
[2] See Court Book at page 19
The applicant claims that she was detained by the police and, indeed, tortured and ill-treated. However, on 31 October 2008 she was released and sent back to her husband’s family. She claimed that her former boyfriend, Mr Lin, and his wife assisted her, yet again, in her effort to escape. Mr Lin tried to get a passport for her. The applicant gave this explanation of Mr Lin’s efforts to obtain her a passport:
He, therefore, intended to get a passport for me with his contacts. But it was unsuccessful in the end because he found that I had been put on the alert list of the PSB which means that I have been regarded as a dangerous person with serious anti-government ideologies. So Mr Lin had to spend a lot of money to purchase a passport in the name of (and I will not mention that name[3])[4].
[3] Migration Act 1958 (Cth) s. 91X
[4] See Court Book at page 20
In her statement, the applicant said with the assistance of Mr Lin and his wife she was able to leave her home and left China on 30 December and arrived in Australia the following day. A delegate of the Minister for Immigration and Citizenship wrote to the applicant care of her migration agent on 10 March 2009 inviting her to attend an interview at the Department on Friday, 20 March. It appears, however, that the applicant did not attend the interview. On 7 April 2009, the delegate refused the applicant’s application for a visa.
The delegate set out the reasons for refusing this application in a Protection (Class XA) visa decision record. The delegate expressed considerable doubts about the veracity of the applicant’s claims, saying:
While I accept that the applicant may have been subjected to domestic violence by her husband during her marriage, I have difficulty accepting some aspects of her claim. For instance, the applicant stated that she attempted to travel to Beijing to seek assistance, but was stopped by police at the train station and detained and questioned regarding the purpose of her travel. I find this claim to be implausible given the fact that the applicant had earlier claimed that the police had refused to assist her as they considered domestic disputes to be a private matter. Given their initial disinterest, there is no plausible reason why the police would have any interest in preventing the applicant from travelling or in detaining the applicant. Furthermore, based on the country information cited above, there is no evidence to suggest that the applicant would be persecuted with the tacit acceptance of the Chinese authorities, nor is there evidence that the authorities encourage, or are powerless to prevent, such incidents of domestic violence which are essentially a private matter[5].
[5] See Court Book at page 45
After the application for a protection visa had been refused, the applicant, with the assistance of her migration agent, applied to the Refugee Review Tribunal for a review of the delegate’s decision. The court book shows that the Tribunal received the applicant’s application for review on 1 May 2009. No additional documentary evidence was provided with the application for review. On 18 May 2009, the Tribunal wrote to the applicant care of her migration agent and invited her to attend a hearing of the Tribunal to take place on 23 June 2009.
The applicant attended that hearing and gave evidence with the assistance of an interpreter in the Mandarin language. When the applicant attended the hearing, she provided three documents in Chinese but with English translations. Two of those documents were summonses from the Fuqing municipality Public Security Bureau. One was addressed to the applicant’s former boyfriend and one to his wife. There is a third document, again from the Public Security Bureau, which was a certificate of being released from detention relating to the applicant showing that the applicant was detained from 10 October to 31 October 2008[6].
[6] See Court Book at pages 64 - 66
The Tribunal made its decision on 24 June 2009 affirming the decision not to grant the applicant a Protection (Class XA) visa. The Tribunal decision shows that the Tribunal considered the Department’s file, the material referred to in the delegate’s decision and other material being the country information. The Tribunal also considered the applicant’s evidence to the Tribunal on 23 June 2009. The Tribunal noted that at the hearing the Tribunal member asked the applicant to go over her claims. At paragraph 26 of the decision, under the heading Oral Claims and Evidence, the Tribunal said:
At hearing, I went over in detail and at some length the events of the applicant’s last 12 months in China. They included the incidents described in paragraphs 23 and 24 above[7].
[7] See Court Book at page 73 at para.26.
The incidents referred to in paragraphs 23 and 24 related to the applicant’s experiences at the police station when she left her husband in February 2008, and her second attempt to escape in early October 2008 where the applicant was detained by the police, but then she returned to her husband. The Tribunal noted that at the hearing the Tribunal member and the applicant discussed country information available regarding government policy on domestic violence and the support available to women suffering abuse. The Tribunal also referred to the applicant’s documents saying:
The applicant submitted documents regarding her detention and the arrest of her former boyfriend for aiding her. I said that document forgery was very common in China and that I would assess these documents in terms of my conclusions about her other evidence[8].
[8] See Court Book at page 74
In its findings and reasons the Tribunal accepted that the applicant was a citizen of China. However, the Tribunal did not accept the applicant’s claims. The Tribunal said at paragraph 32:
The applicant’s oral evidence was consistent with her written claims, but I do not believe that her claims are based on fact. Her account of her unsuccessful attempt to reach Beijing in October 2008, and the circumstances of her successful escape to Australia, are not plausible[9].
[9] See Court Book at page 74
In paragraphs 33 to 35 of the Tribunal’s findings and reasons the Tribunal sets out why it did not believe that the applicant’s claims in that regard were credible. The Tribunal set out how the Tribunal member had expressed his doubts at the hearing. Paragraph 35 the Tribunal says:
I do not accept that such arrangements can be made at that speed. The story as a whole is simply not credible. The applicant had no explanation as to how this was possible. When I expressed my doubts at hearing, but maintained that this was how she left China. I do not accept that her account was truthful[10].
[10] See Court Book at page 74
The Tribunal then went onto consider the applicant’s documents and her claim as a whole and said at paragraph 36:
In the circumstances I am not prepared to give any weight to the documents the applicant submitted. I find that her entire account is a work of fiction. I do not accept that the events she described in her application, which she says occurred in February 2008, did in fact occur or any of the subsequent events. I do not accept that she intended to go to Beijing to complain of her treatment or of official corruption. I do not accept her claim that if she were to return to China, she would be imprisoned for any Convention reason[11].
[11] See Court Book at page 74 -75
The Tribunal found the applicant did not have a well founded fear of persecution in China and was therefore not a person to whom Australia has protection obligations under the Refugees’ Convention.
The applicant commenced proceedings in this court by filing an application and an affidavit in support on 20 July 2009. As well as the material set out in her application and her written submissions, the applicant has attended court today and made oral submissions. She claims that the Tribunal failed to create a fair and genuine chance for her while it reviewed her application, and failed to assess all her evidence independently and fairly. She claims the Tribunal made its decision before the hearing and failed to comply with its obligations under section 425 of the Act. In support of that the applicant pointed out the Tribunal heard her application on 23 June and made its decision on 24 June 2009, the day after. She claims that there is no evidence to show that the Tribunal assessed all of her evidence independently and fairly within just one day.
She claimed that whilst the Tribunal expressed some doubts about her account of her apprehension by the police in October 2008, and how she was able to obtain a passport to leave China, but claims that whilst the tribunal gave her that information orally at the hearing, it failed to give her clear particulars of any information that the Tribunal considered would be the reason or a part of the reason for affirming the decision that was under review. She claims that the Tribunal failed to ensure, as far as was reasonably practicable, why she understood the information as relevant and failed to advise her that she might seek additional time to comment on or respond to the information under section 424AA of the Migration Act.
She claimed that the Tribunal may not be obliged to comply with section 424AA, but should at least create a fair and genuine chance for her to present arguments relating to the issues arising in relation to the decision under review. She goes on to claim that the Tribunal had made its decision before the hearing and failed to comply with it obligations under section 425 of the Act. Whilst it may appear that the first ground already contains allegations of bias, the second ground makes that allegation even clearer. The applicant claims the Tribunal decision included a reasonable apprehension of bias and the Tribunal made its finding based on its unwarranted assumption. The applicant takes issue with the tribunal’s finding that whilst her oral evidence was consistent with her written claims, the Tribunal did not believe that her claims were based on fact.

She took issue with the Tribunal’s finding that her account of the PSB returning her to her husband to be unconvincing, and the Tribunal’s refusal to accept that arrangements for a passport, even a passport with another person’s name could be made at very short notice at such speed, and complained that the Tribunal’s finding that her story was not credible all added up to an apprehension of bias, or a finding based on unwarranted assumption. In her third ground, the applicant complains the tribunal ignored the important documentary evidence submitted to it. When asked at the hearing to confirm that the documentary evidence with the three documents produced, two being summonses and one the certificate of being released from detention, the applicant confirmed that those were the documents.
She claims there is no evidence the Tribunal made any genuine attempt to consider that evidence fairly, properly and independently. Again, she reiterates her claim the Tribunal made its finding based on unwarranted assumption or an apprehension of bias, rather than look at the documentary evidence.
In her submissions of 9 March 2009 the applicant reiterates her claims of a reasonable apprehension of bias, of ignoring important evidence and misstating her claims of evidence and making completely incorrect findings. She refers again to the Tribunal’s findings at paragraph 33 about the applicant’s leaving the hospital where her mother in law was a patient in October 2008, attempting to travel to Fuzhou. In particular she complains about the Tribunal’s finding that she was not able to explain to the Tribunal how the police would know that she was heading for Beijing.
The applicant refers to her earlier evidence in her application for protection visa, that her husband was a bully who had previously worked in the armed police, and had colleagues who had worked at the PSB in either Fuqing or Fuzhou. She also claimed that the Tribunal failed to consider important evidence that 1 October 2008 was the national day in China and it was quite common that many people took the opportunity to go to Beijing in order to seek appeal with the central government every year. Therefore, during the period around 1 October each year, the government always sent many police to abovementioned transportation centres in order to block those who might be suspected to go to Beijing for appeals.
Secondly, the Tribunal failed to consider that the distance Fuqing to Fuzhou is around 70 kilometres. She complains that, therefore, the Tribunal ignored the evidence and did not reach the conclusion that it would not be difficult for her husband and the police to locate her. As to her obtaining the passport, she claims that her evidence and her claims has been misstated because she never ever said that she phoned her ex-boyfriend on 28 December 2008 and then went to Shenzhen and on the same day obtained a passport with an Australian visa already in it and had her photo substituted for the photo in the passport.
Her evidence is that she had asked the ex-boyfriend to arrange her trip overseas early in December 2008. He was unable to obtain a passport because she already had been blacklisted, but then he immediately assisted her to get another passport in another name, and that it took several weeks. Further, the applicant submitted the Tribunal failed to create a genuine chance for her at the Tribunal’s hearing because it never ensured her to understand the issues arising from her review application. She reiterates the claim the Tribunal made its decision before the hearing.
In an oral submission to the court the applicant said she was not given a fair chance by the Tribunal, that, at the hearing, the Tribunal did not ask any questions of her and she was not given any indication that the Tribunal had concerns about her case. She was not asked questions and did not understand that her application was not going to be granted.
I also heard an oral submission from Ms Whittemore who appeared for the Minister, and I have had the opportunity to read the outline of submissions filed on behalf of the Minister.
In dealing with the applicant’s claims for judicial review, whilst there are three grounds, there is a considerable degree of overlapping between those grounds. It is a common thread throughout the applicant’s case that the Tribunal showed some bias towards her, in that her case had been already decided before she had attended the hearing. It is also fair to say that throughout the applicant’s claims there are attempts at merits review, which is a challenge to the Tribunal’s factual findings.
It is accepted law that the Court does not engage in merits review. The Court does not assess the merits of the applicant’s factual claims. That is a matter for the administrative decision-maker, in this case the Tribunal. It is clear that the Tribunal did not accept that the applicant’s case was credible, and it was the Tribunal’s rejection of the credibility of the applicant’s claim that led to its decision to affirm the delegate’s decision not to grant the visa.
Credibility, too, is a factual finding. Thus, whilst the applicant has gone into some detail to re-argue the factual merits of her case, this is not a matter that the court can deal with, because factual matters are solely for the Tribunal to determine[12].
[12] See Minister for Immigration, Local Government and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272
Dealing with the applicant’s first ground, it complains as part of the ground that the Tribunal failed to create a fair and genuine chance for the applicant while it reviewed her application for a protection visa. It also claims that the Tribunal failed to comply with its obligations under section 425 of the Act. Those two statements can be taken as one ground, a failure to provide a fair hearing under section 425 of the Act. That claim is reiterated in paragraph 2 of the applicant’s written outline of submissions.
The situation is that the applicant had submitted an application for a protection visa. The delegate rejected the claim and in the delegate’s reasons made findings that challenged the credibility of the applicant’s claims. Thus, when the applicant attended the hearing, she was on notice that the credibility of her claims was very much in issue. When the application for review reached the Tribunal, the Tribunal invited the applicant to attend the hearing. Section 425 of the Migration Act requires the Tribunal to do this unless it is satisfied on the material before it that it can make a decision in the applicant’s favour. Clearly, the Tribunal was not so satisfied, which is why it invited her to a hearing.
The applicant attended the hearing and she was provided with the services of an interpreter. At the hearing, she gave evidence. She complains that whilst the Tribunal voiced some doubts at the hearing that the Tribunal did not follow the requirements of section 424AA of the Migration Act. Whilst she concedes that the procedure under section 424AA is not binding on the Tribunal, she makes the argument that a failure to act in this way can be a breach of section 425 of the Act. In my view, that claim is misconceived.
The Tribunal expressed doubts to the applicant about aspects of her case. The material considered by the Tribunal came from the applicant’s own account of the circumstances that led her to leave China. The Tribunal also considered independent country information, as had the delegate beforehand.
Neither the applicant’s evidence, nor independent country information give rise to an obligation on the Tribunal under subsection 424A(1) of the Act, and consequently, whether or not the Tribunal elects to follow the procedure in section 424AA of the Act, is entirely irrelevant. The only account for the court as to what was said at the Tribunal hearing, is the Tribunal decision record. There is no transcript. In my view, the court is obliged to follow the account of the Tribunal hearing, as set out in the decision record, because there is no other information. There is certainly no information to the contrary.
Thus, at the hearing the Tribunal raised its doubts about aspects of the applicant’s claim, and about the overall credibility of her account. The applicant should have been well aware of that, because that is virtually what the delegate did when the delegate decided to refuse the application. The Tribunal did not refuse this application on any piece of information that was not otherwise discussed, or which the applicant would have been entitled to assume had been decided in her favour.
The Tribunal is not obliged to give a running commentary of its thought processes. And the applicant’s claim at the hearing today that because the Tribunal did not ask her questions, she was led to believe that her application would be granted. That does not constitute a breach of section 425. In any event, it is clear from the Tribunal decision record that the Tribunal did ask her questions about aspects of her claim, and that the Tribunal did not accept. As the Tribunal said, at paragraph 26:
At hearing I went over in detail and at some length the events of the applicant’s last 12 months in China[13].
[13] See Court Book at page 73
I am satisfied that there is no breach of section 425 of the Migration Act.
The other part of the applicant’s first ground, is a complaint of apprehended bias, because the applicant says:
And the Tribunal failed to assess all of my evidence independently and fairly, and the tribunal has, in fact, made its decision before the Tribunal’s hearing.
Similarly, in ground (2), the applicant claims:
The Tribunal’s decision has included reasonable apprehension of bias, and the Tribunal made its finding based on its unwarranted assumption.
It is fair to say, that is, well established allegations of bias must be clearly made and strictly proved. The test for apprehension of bias can be found in Re Refugee Review Tribunal; Ex parte H.[14] In my view, there is nothing to indicate an apprehension of bias. The fact that the Tribunal does not accept the credibility of an applicant’s evidence, does not of itself point to any apprehension of bias.
[14] (2001) 75 ALJR 982
The fact that the Tribunal made its decision the day after the hearing, does not indicate an apprehension of bias, or a failure to consider the applicant’s claims, or, and it certainly is not an indication that the Tribunal had already decided the case before the applicant had even had a chance to give evidence. There is just no evidence of that. There is, in fact, no evidence of bias, whether apprehended or actual bias.
The applicant claimed in her third ground, that the Tribunal had ignored the most important documentary evidence submitted to it. She is referring to the three documents, the two summonses, and the certificate of being released from detention provided at the hearing. The Tribunal did not ignore them. The Tribunal discussed those documents with the applicant at the hearing, as was set out in paragraph 30 of the decision:
The applicant submitted documents regarding her detention and the arrest of her former boyfriend for aiding her. I said that document forgery was very common in China, and that I would assess these documents in terms of my conclusions about her other evidence[15].
[15] See Court Book at page 74
What the Tribunal did do after considering the applicant’s evidence, was not to give weight to the three documents provided. The Tribunal, after discussing why it was rejecting her case on the basis of credibility, said at paragraph 36:
In the circumstances, I am not prepared to give any weight to the documents the applicant submitted. I find that her entire account is a work of fiction[16].
[16] See Court Book at page 74
In her submission to the court today, Ms Whittemore submitted that this was an indication that the Tribunal considered that the applicant’s credibility was so low, that the documentary evidence would not be of any assistance. She referred the court to Re Minister for Immigration and Multicultural Affairs; Ex parte S20 of 2002,
‘The well, she submitted, was already poisoned, beyond redemption[17].
In my view, that submission is correct.
[17] (2003) 198 ALR 59 at [12]
The Tribunal considered, but gave no weight to the applicant’s documentary evidence, because it had rejected her entire claim on the basis that it was not credible.
In my view, the applicant has not made out any jurisdictional error on the part of the Tribunal. As I said, there is no breach of section 425 of the Act. There is no bias. This is not a matter to which section 424A applies, let alone section 424AA. There is no jurisdictional error.
In the absence of jurisdictional error, the tribunal decision is a privative clause decision, as defined by subsection 474(2) of the Migration Act.
I would also comment that the applicant raised in her submissions, but not as a ground, a claim that the Tribunal had ignored certain evidence relating to China’s National Day, falling on 1 October, and consequently, the police were more active and, in fact, often apprehended people attempting to go to Beijing to make claims. Whilst this is not a ground, I will deal with it anyway. There is no evidence that a claim about China’s National Day was ever put to the Tribunal. So whether or not people were travelling on 1 October or around that time, and the applicant’s evidence was that she was travelling about a week later, but in any event, it is very much merits review. And the court has no jurisdiction to undertake merits review.
In all of the circumstances, the applicant has failed to make out a case. Because the decision is a privative clause decision, it is not subject to orders in the nature of certiorari or mandamus, it is final and conclusive.The application will be dismissed.
The applicant has indicated to the court that she had some other issues to raise. What she has effectively sought to do is reopen her case after the decision has been handed down. However, as I have not adjourned, I will deal with the issues that have been raised in order. One, the applicant says that she has no money to pay the amount of costs sought amounting to $3700. Whilst that is not a ground for not making an order for costs, it is a matter to be taken into account as far as allowing time to pay, and whilst I consider this is an appropriate case to make an order for costs in favour of the first respondent, and I am satisfied that the amount of $3700, which is less than the amount provided by the court scale, is a reasonable one, I will allow time to pay.
I will turn now to the other issues. The applicant now informs the Court that she brought a tape recorder to court and wishes to play the tapes, or, in this case, I imagine, the disks of the hearing in support of her claim that the Tribunal did not put certain issues to her and did not consider parts of her case. The first indication that any party has received of this claim was after I had handed down my reasons for decision. If it had been sought to have the recording of the Tribunal proceedings heard in court, the application should have been made before the Court commenced the hearing, not after judgment was handed down.
The applicant has reiterated her claim that she did not receive the written outline of submissions from the Minister until the morning of the hearing. I have already made a decision on this point, but I will set it out again. I have received evidence that the Minister’s lawyers sent by express post a copy of the Minister’s submissions to the applicant on 28 October. I am satisfied that the submissions were forwarded to the applicant’s address for service that she has given for these proceedings. The fact that the applicant claims that she did not receive them is not a matter to which I give any weight whatsoever.
The next point is that the applicant claims that if the Tribunal had doubts about aspects of her case, it should have put those doubts to her and given her the opportunity to reply, if necessary, in writing. I dealt with that issue during the hearing, but I will say again that the Tribunal is not under any obligation to act in that way. As I said in the hearing, the matter was decided on the basis of the Tribunal’s rejection of the credibility of the applicant’s account. The Tribunal is not obliged to put its thought processes to an applicant during the hearing.
The next point is that the applicant thought that at the date of the hearing that her application had been successful. She claims that the Tribunal did not let her know that it was going to make an unfavourable decision, and that she should have had another chance to explain herself to the Tribunal before the application was refused. That is not a requirement of the Migration Act, and the Tribunal is under no obligation at law to act in that way.
The applicant’s next point is that she does not think that the Tribunal read all of her written material carefully. The applicant’s written material related to her claims as set out in her protection visa application and the three documents that were submitted at the hearing. The Tribunal stated in its decision that it had read that material, and in respect of the three documents that were submitted at the hearing the Tribunal stated that it had discussed with the applicant the prevalence of document forgery in China and that it would assess the document in terms of its conclusions about the applicant’s other evidence. That, in fact, is what the Tribunal did when it found that it was not prepared to give any weight to the documents that the applicant had submitted. The Tribunal gave its reasons for doing that.
The applicant again wished to reargue her point in which she claims that the Tribunal misunderstood her evidence about the way her former boyfriend obtained a passport for her. I am not satisfied that that has been made out and, in any event, what the applicant is doing is effectively challenging the Tribunal’s factual finding. A court conducting judicial review does not reconsider the factual matters before the Tribunal. Those are all of the fresh issues that the applicant has raised. I have answered them all.

I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Scarlett FM.

Associate: A. Coutman

Date: 23 November 2009