SZNUM v Minister for Immigration - [2009] FMCA 1042

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNUM v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 1042

MIGRATION – Review of decision of the Refugee Review Tribunal – Tribunal did not misunderstand relevant test or fail to properly apply it in assessing claims – Court cannot engage in impermissible merits review – while open to Tribunal to seek information pursuant to s.424, it is not obliged to do so – no general obligation for the Tribunal to make further inquiries – Tribunal did not fail to have regard to any aspects of claims – matter for the Tribunal to assess and weigh evidence before it – s.424A not engaged – information fell within exceptions – adverse credibility finding open to the Tribunal – Tribunal did not fail to consider evidence – no jurisdiction to review a complaint relating to delegate’s decision – Tribunal’s analysis not unreasonable – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.36(2), 65, 91R, 424, 424A, 424AA, 746

SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225
Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
Minister for Immigration & Citizenship v SZKTI [2009] HCA 3
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
SZIYN v Minister for Immigration & Citizenship [2008] FCA 151
NAYU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 528
Minister for Immigration & Multicultural & Indigenous affairs v SGLB (2004) 78 ALJR 992; [2004] HCA 32
W389/01A v Minister for Immigration & Multicultural Affairs [2002] FCAFC 432
Prasad v Minister for Immigration & Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155
VCAK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 459
WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Abebe v Commonwealth [1999] HCA 14; 197 CLR 510; 162 ALR 1; 73 ALJR 584
SZMCD v Minister for Immigration & Citizenship [2009] FCAFC 46
SZBYR v Minister for Immigration & Citizenship [2007] HCA 26
VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471
Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264; (2004) 140 FCR 572
VHAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 82
QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92
Associated Provisional Picture Houses, Limited v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223

Applicant:

SZNUM

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1848 of 2009

Judgment of:

Nicholls FM

Hearing date:

13 October 2009

Date of Last Submission:

13 October 2009

Delivered at:

Sydney

Delivered on:

13 October 2009

REPRESENTATION

The Applicant:

In person

Solicitors for the Applicant:

Appearing for the Respondents:

Ms L. Weston

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

The application made on 3 August 2009 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5200.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1848 of 2009

SZNUM

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

I have before me today an application made on 3 August 2009 under the Migration Act1958 (Cth) (“the Act”), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 7 July 2009, which affirmed the decision of a delegate of the first respondent Minister to refuse a protection visa to the applicant.

Background

The applicant is a citizen of the People’s Republic of China (“China”), who arrived in Australia on 24 November 2007 with a Student Guardian visa. He applied for a protection visa on 23 December 2008. The application is reproduced in the bundle of relevant documents that has been put before the Court (“the Court Book”, “CB”), (CB 1 to CB 32). This application included a statement made by the applicant in support of his claims (CB 29 to CB 30).

Claims to protection

The applicant claimed to fear harm from police in his home province in China and the Fuqing Religion Authority (“the Authority”) because of his wife’s activities in protesting against government corruption. The applicant claimed to have been involved with a Christian church, the “DONGPU Church”, and when the applicant’s church approached the Authority seeking funding and making inquiries of its church donation account, it was ignored. The applicant’s wife complained to the Authority but the Authority issued a warning and threatened to “punish” his wife. The applicant claimed that his wife attempted to protest at a summit attended by a senior government official but was removed by security guards and police. He claimed that she was later charged and detained by the relevant authorities, and that his wife was still detained and mistreated by the security authorities.
The applicant feared if he were to return he would be subject to the same treatment as had been meted out to his wife, and relied on his own participation in religious activities in China in support of his claims.

The delegate

On 19 March 2009 the delegate of the respondent Minister refused the application for a protection visa (see CB 56 to CB 71). In short, the delegate found that the applicant had never been of interest to the Chinese authorities, and rejected his claims. This was based on inconsistencies and implausibilities in the applicant’s evidence and what was said to be a “lack of substantiating evidence”.

The Tribunal

The applicant applied for review by the Tribunal on 2 April 2009 (see CB 72 to CB 75). He was invited to, and attended, a hearing conducted by the Tribunal on 11 May 2009. After the hearing, by letter dated 12 May 2009, he was invited to comment on, or respond to, information that the Tribunal considered would be the reason, or part of the reason, for affirming the decision under review (CB 108 to CB 109).
The Tribunal’s account of what occurred at the hearing is set out in its decision record (at CB 146 to CB 151).
The determinative finding by the Tribunal was that it: “found the applicant to be a witness who lacked credibility”. It considered him to be “inconsistent, confused and non-responsive in the way direct questions were answered” ([73] at CB 153).
This adverse credibility finding was based on what the Tribunal said was his “evasiveness, lack of detail, inconsistency and ineffective response to the Tribunal’s questions”. Specifically, it arose from the following:
(1)The applicant’s inability to explain why he was able to exit China legally on his own passport ([74]);
(2)The applicant’s inability to overcome the Tribunal’s concerns about discrepancies in the documentary evidence provided by him and his uncertainty as to whether his own documentary evidence was significant. As a result, the Tribunal placed no weight on this documentary material ([75], [76]);
(3)Inconsistencies in his evidence about when he found out about his wife’s detention ([78]);
(4)Inconsistencies in his evidence, and what it said were confused claims, in relation to having been contacted by a media representative in Australia, and his inadequate explanation for such inconsistencies ([79], [80], [89]);
(5)The applicant’s lack of knowledge of which Christian church he belonged to and his inability to explain his lack of knowledge ([81]);
(6)Inconsistencies about when his church decided to renovate ([82]);
(7)Inconsistencies between an article submitted by the applicant and his other evidence about the protest and his wife’s subsequent arrest ([83]).
In relation to claims made involving conduct in Australia, the Tribunal found that the applicant only attended church gatherings in Australia in order to strengthen his claims to protection and it disregarded this conduct pursuant to s.91R(3) of the Act ([85], [86]). In relation to the claim that he spoke to a reporter in Australia, the Tribunal found that no such conduct had occurred ([89]).
Because of its comprehensive rejection of the applicant’s credibility, it did not believe the central parts of the applicant’s factual claims to protection ([92]). In all, therefore, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason, and it therefore affirmed the delegate’s decision to refuse the applicant a protection visa.

Application before the Court

The applicant has put before the Court four grounds in his application which assert legal error on the part of the Tribunal. Despite opportunity to do so, the applicant has not provided any written submissions, nor any evidence, in support of those grounds.
The grounds are:
1. The Tribunal misunderstand and failed to apply the correct test in order to be satisfied as to whether the applicant had a well-founded fear of persecution for a convention reason of the grounds of religious.
2. The Tribunal has failed to comply with the requirement set out in s.424(3) of the Migration Act 1958 (Cth) in that it was aware that the Applicant has provided the evidences from “Christian Assembly of Sydney”
3. The Tribunal failed to give enough weight to the fact that it was the family church in China The applicant’s occupation is farmer and church Assistand also the Applicant participated in religious ceremonies prior to 1997. The Applicant attended at Lidcombe church that he has a genuine fear and will face persecution for a convention reason on the ground of his continued religious beliefs. S91R.
4. The Tribunal did not comply with its obligations under S424AA of the Migration act 1958 (“The Act”) in respect of the above-mentioned information.
a. As a matter of fact the Tribunal has apparently failed to give me the important information completely and clearly After the hearing.
b. The Tribunal has particularly failed to ensure me during the hearing to well understand why the information normally call as Independent country information (ICI)
[Errors in the original.]

Hearing before the Court

At the hearing before the Court today, the applicant appeared in person. He was assisted by an interpreter in the Mandarin language. Ms L. Weston appeared for the Minister. Written submissions have been filed on behalf of the Minister.
I should note that, during the course of the hearing today, at a point after the applicant had made his initial submissions, and at some point during submissions in reply by Ms Weston, my Associate, who was assisting as Court Officer in the hearing, collapsed. This caused some interruption to the proceeding. While the appropriate people were able to assist her, I did consider whether the hearing today should be adjourned to another day. The Minister’s representative was available to continue the hearing tomorrow.
The applicant said that he had some difficulty as he had booked an aeroplane flight to Melbourne, as I understood, to assist in some business involving a relative, and that he was due to depart Sydney some time late this afternoon, and would not be available until one or two weeks before Christmas.
Having adjourned for a short period, and having satisfied myself that my Associate was receiving proper medical attention, I felt able to continue with the hearing, and in light of the applicant’s inability to attend at some time in the near future, it was appropriate for the hearing to therefore continue today.
I am satisfied that the interruption, even containing some element of drama as it did, did not affect the opportunity for a fair hearing for both parties before the Court. Particularly in relation to the applicant, his submissions had already been made.
Before the Court, the applicant made a number of statements by way of submission today, and I will deal with those shortly, but I should just note by way of preliminary comment, that the applicant clearly, and understandably has no understanding of Australian law. On his own admission, he was not able therefore to provide any legal argument in support of his grounds, which he said remained the best that he could put before the Court by way of “legal complaint”.

Consideration

Ground One

In ground one of the application, the applicant complains that the Tribunal failed to apply the correct test in order to satisfy itself as to whether the applicant had a well-founded fear of persecution for reason of his religion. The applicant has not provided any particulars. He does not say how the Tribunal fell into error in this way.
It is the case that the relevant statutory regime applicable to applications of this type is to be found, first, in ss.65 and 36(2) of the Act, which relevantly require the Tribunal to reach a positive state of satisfaction as to whether Australia owes protection obligations before a protection visa must be granted (SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225 at [15] to [16]).
A plain reading of the Tribunal’s decision record reveals that the Tribunal did assess the applicant’s claim to fear persecutory harm on Convention grounds if he were to return to China.
It must be said that on any plain reading of its decision record, I cannot see that the Tribunal misunderstood the relevant test, or failed to properly apply it.
The Tribunal set out the relevant principles in the usual unexceptional terms (CB 143 to CB 145). As the Minister submits, this was in accordance with what the High Court said in Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379. The Tribunal understood and assessed the applicant’s claim to fear harm because of his wife’s protest activities and her subsequent detention, and because of his participation in a Christian church in China, and his claim to be a Christian practitioner.
It rejected his claims to have been a Christian practitioner, that his wife protested against government corruption, that any complaint to the authorities had been made, and rejected that the applicant was of any adverse interest to the authorities ([92] at CB 156). It concluded that there was no real chance that the applicant would be persecuted in the reasonably foreseeable future if he were to return to China.
The Tribunal did so, as I have already stated, because it simply did not believe the applicant’s evidence. It gave cogent reasons for finding that the applicant was not a credible witness. I can only see that such a finding was open to it on what was before it, and that such a finding was within the proper jurisdiction as the decision-maker “par excellence” (Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407).
The definition of the concept of persecution as it appears in the UN Convention on the Status of Refugees is, of course, qualified by what appears in s.91R of the Act. Simply put, for the applicant’s benefit in particular, the Tribunal is compelled to have regard to this section. I cannot see error in what has been relevantly done by the Tribunal.
Further, in relation to the applicant’s claimed attendance at Christian church services in Australia, the Tribunal found that the only reason the applicant participated in such conduct was to strengthen his claim to protection. It accordingly disregarded this pursuant to s.91R(3). Again, I cannot see that the Tribunal applied any incorrect test or misunderstood the relevant test in this regard.
Similarly, in relation to the applicant’s claim to have spoken to a media representative in Australia, it found that this conduct had not occurred. This, again, was a finding that was open to it on what was before it.
I should note that, in light of the High Court’s recent judgment in Minister for Immigration & Citizenship v SZKTI [2009] HCA 3 (“SZKTI”), I cannot see error in the Tribunals relevant approach. In particular, I note the judgment of Crennan and Kiefel JJ in this regard.
It is very clear that the applicant is aggrieved by the Tribunal’s conclusion. But unfortunately for the applicant, on its own, this does not reveal error on the part of the Tribunal, or create the basis for this Court to intervene. Nor, of course, as I explained to the applicant, can this Court substitute its own findings for those of the Tribunal. That is, this Court cannot engage in impermissible merits review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259).

Ground Two

In ground two of the application, the applicant alleges that the Tribunal failed to comply with s.424(3) of the Act in relation to the applicant’s provision of information from the Christian Assembly of Sydney.
I relevantly note the terms of s.424 of the Act which became operational before the application for review was made on 15 March 2009 (Act 10 of 2009, s.3 and Schedule 1 Item 9).
“424: Tribunal may seek information
(1) In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
(2) Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.
(3) A written invitation under subsection (2) must be given to the person:
(a) except where paragraph (b) applies – by one of the methods specified in section 441A; or
(b) if the person is in immigration detention – by a method prescribed for the purposes of giving documents to such a person.
In this regard, at paragraph [85] of its decision record, the Tribunal records that the applicant provided evidence about having attended church in Lidcombe and Hurstville in Sydney. This included photographs of himself and others at church, and relevantly, a statement with signatures of church members, and a statement and pamphlets from “the Chairman”. The Tribunal found that these documents: “gave no detailed information and are of a general nature” (CB 155).
The specific reference to the information from the “Christian Assembly of Sydney” appears to relate to the document that is reproduced at CB 50 to CB 52.
It must be said that the simple answer to the applicant’s complaint, as the Minister submits, is that no obligation pursuant to s.424(3) arose in relation to this statement, signed by a number of people, attesting to the applicant’s attendance at church, because there is no evidence before the Court that this was information which the Tribunal invited the applicant to give pursuant to section 424(2).
From what clearly appears in the Court Book, this statement was provided by the applicant to the Minister’s Department. In particular, I note the date stamp that is reproduced at CB 50 (17 March 2009).
Further, there is nothing else before the Court now to suggest that the Tribunal otherwise exercised its power pursuant to s.424(2) (SZKTI).
If the applicant is seeking to argue, by way of this ground, that the Tribunal had an obligation to write to the person who made the statement, or to those who signed this petition, then, with respect to the applicant, this complaint is misconceived. While it is certainly open to the Tribunal to seek additional information pursuant to s.424, there is no compulsion that it do so.

Further, and in particular, I note again what was relevantly said by the High Court in SZKTI, that s.424 is:
“…a general facultative power in aid of the inquisitorial functions of the RRT, distinguishable from the both the compulsory processes under the Act and the formal statutory process which could result in the loss of a right to hearing” (at [27]).
I also note that the Tribunal’s letter of 12 May 2009, seeking the applicant’s comments after the hearing, was sent pursuant to s.424A, and was not an invitation to provide information pursuant to s.424.
Further, to the extent that it may be that, by way of this ground, the applicant seeks to complain that the Tribunal did seek information from a person, but did not follow the procedure set out in s.424(3) of the Act, it is instructive to, again, refer to what the High Court said in SZKTI about the relationship between s.424(1) and s.424(3) (at [46]).
In any event, noting that the only record of what occurred in the process of the review before the Tribunal is that essentially encapsulated in the Tribunal’s decision record and in the other documents in the Court Book, I cannot see that the Tribunal did elect to seek information, or additional information, from any person, such as to engage s.424.
Even further, if the applicant’s complaint includes some element that the Tribunal should have made additional inquiries in relation to the document from the Christian Assembly, I note that the Tribunal is not generally obliged to undertake its own inquiries in this regard (SZIYN v Minister for Immigration & Citizenship [2008] FCA 151 at [16], NAYU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 528 at [18] to [21], Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 78 ALJR 992; [2004] HCA 32 per Gleeson CH at [19], per Gummow and Hayne JJ at [33] to [43], per Callinan J at [124]; note Kirby J contra at [74]).
In all, while it may be said that there is a duty to inquire or investigate in some circumstances (see, for example, W389/01A v Minister for Immigration & Multicultural Affairs [2002] FCAFC 432 and Prasad v Minister for Immigration & Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155), in the absence of any particular reason to do so, as in this case, then it can only be that there is no general obligation on the Tribunal to make any further inquiries (see, for example, VCAK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 459 at [27], WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277 at [24] to [25], and NAYU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 300 at [18] to [21]).
In all, therefore, this ground does not assist the applicant, as it is not made out.

Ground Three

In ground three, the applicant takes issue with what is said to be the Tribunal’s failure to attribute enough weight to certain “facts”. These are said to be the “family church in China”, the applicant’s “occupation”, the applicant’s involvement in “religious ceremonies” prior to 1997, and his participation in a church in Lidcombe in Australia after his arrival.
If it is the case that, by way of this ground, the applicant is alleging that the Tribunal did not consider a claim, or an aspect, or integer of a claim that he had made, then there is very clear authority that the Tribunal must consider all claims made by an applicant, the integers of such claims, or claims that could be said to clearly arise from the circumstances presented to it (Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244, Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184, NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1).
But on the other hand, it is also the case that the Tribunal is not required to make out an applicant’s case for him. Nor does the Tribunal need to have such evidence before it that positively undermines the applicant’s claims in order to reject them as being implausible (WAJS v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 139 at [17]).
In all, on what is before me, I cannot see that the Tribunal failed to have regard to any aspect of the applicant’s claims.
In reviewing the delegate’s decision, the task of the Tribunal is, as I have said, to consider all claims, and aspects of those claims, to give the applicant, in the appropriate circumstances, the opportunity to be heard at a hearing, and to evaluate such claims, evidence and information as it has before it.
I can only see that, on the material before the Court, in the current case the Tribunal complied with these requirements. Further, it made findings that were open to it on the material before it. This includes the finding as to the applicant’s credibility (Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1).
To the extent that the applicant also complains about the weight that the Tribunal attributed to evidence adduced in support of what he has described as the “facts”, then it is the case that the weight, sufficient or otherwise, to be accorded to documentary evidence, and to the extent that such “facts” were said to rely on the documentary evidence, is evidence for the Tribunal to assess and weigh (Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 per Mason CJ, and Abebe v Commonwealth [1999] HCA 14; 197 CLR 510; 162 ALR 1; 73 ALJR 584).
This ground also is not made out.

Ground Four

Ground four alleges that the Tribunal did not comply with s.424AA of the Act. In particular “a” in the application, this is said to be a failure to give certain information to the applicant after the hearing. By way of particular “b”, it is asserted that the Tribunal failed to ensure that the applicant understood the independent country information relied on by the Tribunal, and the consequences of it being relied upon during the hearing.
First, it must be noted that s.424AA is, as it has been described, a “facultative” provision, in that the Tribunal’s exercise of this avenue that is available to it pursuant to s.424AA, means that if the Tribunal properly exercises what is set out in that section, the provisions of s.424A(2A) would serve to relieve the Tribunal of any obligation contained in s.424A(1) (SZMCD v Minister for Immigration & Citizenship [2009] FCAFC 46 (“SZMCD”) at [2] per Moore J). The complementary relationship between ss.424A and 424AA was also clearly established, and is to be understood in light of what the Full Federal Court said in “SZMCD”.
Second, I note that nor would it be an error on the part of the Tribunal to say that it used s.424AA, even if it was not obliged to employ that section, because there was no reliance in its decision on “information”, as that term is understood pursuant to s.424A, or that “information” relied on otherwise fell within the exceptions set out in s.424A(3) of the Act (SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 (“SZBYR”) at [17] and [18]).
Even to get to the stage where s.424AA can be said to operate, there is the need for s.424A itself to be engaged. The information to which the applicant refers in the application is as follows:
1)information relating to the Christian Assembly of Sydney
2)the applicant’s occupation as a farmer and as a church assistant
3)the applicant’s participation in religious ceremonies before 1997
4)the applicant’s attendance at a church in Lidcombe in Australia after his arrival.
The short answer to the applicant’s complaint is that, bearing in mind the complementary, facultative relationship between s.424AA and s.424A, in relation to the information identified by the applicant, the obligation set out in s.424A(1) is not engaged, because it is information provided by the applicant himself for the purposes of the review, and ultimately falls within the exception contained in s.424A(3)(b) from the obligation in s.424A(1).
To the extent that the applicant may take issue with the Tribunal’s perceived negative treatment of such information, and I say negative treatment in the sense that it may have played a role in the adverse finding in relation to the applicant to varying degrees, then the Tribunal’s “subjective appraisals, thought processes or determinations”, and indeed its “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”, is not “information” for the purposes of s.424A (SZBYR at [18], per Gleeson CH, Gummow, Callinan, Heydon and Crennan JJ, citing what was said per Finn and Stone JJ in VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471 at 476 to 477), such that it then could be said that s.424AA was employed, and even engaged.
Nor can I see, on what is before me, that there is any other information that should have been put to the applicant in this way. The country information, for example, which is identified specifically in this ground, is referred to in paragraph [90] of the Tribunal’s decision record. This clearly falls within the exception contained in s.424A(3)(a) of the Act from the obligation in s.424A(1) (Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264; (2004) 140 FCR 572 at [71]; VHAP of 2002v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 82 at [12] to [14], QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 at [22]).
It is the case, in any event, that the Tribunal did indeed write to the applicant after the hearing, and put to him various inconsistencies. This of course is not “information” for the purposes of s.424A(1) (SZBYR at [18]). It put to him some relevant country information. Again there was no obligation on the Tribunal to have done so because of s.424A(3)(a). However, it also put to him that he had delayed in making his protection visa application, and the possible relevance of s.91R(3) to his claims. The applicant was given the opportunity to respond after the hearing, and he did so in writing on 8 May 2009 (CB 121). On what is before the Court I am satisfied the Tribunal complied with the obligation that, to the extent possible, the applicant understands the relevance of such information.

Further Consideration

Before the Court today the applicant read from a statement that he had brought. While some of the matters were expressed as questions, I understood the applicant to be putting these matters orally to the Court as his complaints about what the Tribunal had done. I therefore understood these to be the applicant’s “submissions”. To a large extent, these submissions related to matters already referred to, as they were said to arise from the stated grounds of the application.
However, it is appropriate that I enumerate these complaints.
The applicant asked why did the Tribunal find against him.
Taking this question at its face value, the short answer is that, as Ms Weston, in my view correctly, submitted today, the determinative issue in the Tribunal’s decision was its adverse finding as to the applicant’s credibility. As I have already said, findings as to credibility are within the proper exercise of the Tribunal’s jurisdiction, and I cannot see error in how the Tribunal went about its task in this regard, and its conclusion as to the credibility of the applicant’s relevant claims. For the applicant’s benefit the answer to his question is that the Tribunal did not believe what he said.
The applicant submitted that the Tribunal did not assess his claims properly.
Again, as Ms Weston submitted, this is a broad allegation, but I cannot see that the Tribunal failed to deal with any claim, or aspect of the applicant’s claims, as these appear in the material that has been put before the Court.
I should just note here, although it was not asserted by the applicant, for the sake of completeness in case it may be said that there was some claim made at the hearing not recorded by the Tribunal, that the applicant has not put before the Court any transcript of the Tribunal hearing to challenge by way of evidence the Tribunal’s account of what it said occurred. Ultimately, therefore, what the Court is left with is the Tribunal’s account. Based on this account, and indeed, as I said, the other material in the Court Book, the Tribunal’s adverse credibility finding was open to it. I cannot see error in this regard.
The applicant complained that the Tribunal did not apply the Convention or Australian law.
I have already dealt with this complaint in relation to ground one.
The applicant complained that the Tribunal did not consider his evidence.
I can only agree with Ms Weston’s submissions that, when regard is had to paragraphs [25] to [60] of the Tribunal’s decision record, this complaint is unfounded. I note again there is no transcript before the Court of what occurred at the Tribunal hearing. I note in particular that at the first Court date in this matter, an order was made providing the applicant with the opportunity to provide such evidence to the Court. On the Tribunal’s detailed summary of what it said had occurred at the hearing, and as Ms Weston also, in my view, correctly submitted, having regard to the written evidence, there is nothing before the Court to say that the Tribunal failed to consider the applicant’s evidence.
The applicant also claims that the Tribunal did not consider such evidence that was provided by him, such as that relating to his baptism, and his position in the church in China.
This again, on any plain reading of the Tribunal’s account and its reporting of the evidence before it, must be rejected. The Tribunal did understand the applicant’s evidence in this regard, and did consider this evidence. It dealt with it in a way that led to findings which were open to the Tribunal to make on what was before it.
The applicant said today that he attended church in Lidcombe, and that he does have a well-founded fear of persecution due to his religion. He complains that the Tribunal said that he merely engaged in this conduct to strengthen his refugee claims.
I cannot see error in how the Tribunal has approached and applied s.91R(3) in this regard. Ms Weston today referred the Court to paragraph [86] of the Tribunal’s decision record. On a plain reading of the Tribunal relevant reasoning, I cannot see error such as would assist the applicant today.
The applicant also complained that both the delegate and the Tribunal were unreasonable in reaching “the conclusion” relating to Church attendance in Sydney.
Care must be taken in understanding the extent to which unreasonableness may be said to be a ground of review. The relevant test is as set out in the Wednesbury sense of unreasonableness (Associated Provisional Picture Houses, Limited v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223).
I should just note, first, to the extent that the applicant seeks to complain about an aspect of the delegate’s decision, this of course is a “primary decision” as defined in s.476 of the Act. The delegate’s decision in the current case is a decision which is not only is reviewable under Part 7 of the Act, but in fact was reviewed under Part 7. Therefore, this Court has no jurisdiction to consider a complaint made by the applicant in relation to the delegate’s decision.
But, to the extent that the applicant complains that the Tribunal’s conclusion was unreasonable in this regard, then I cannot agree. On what is before the Court, the Tribunal’s analysis cannot be said to be unreasonable either in the Wednesbury sense, or, indeed, otherwise.
The applicant again emphasised that the Tribunal did not write to him to give him the opportunity to comment on “new evidence” according to s.424AA.
I have already dealt with that complaint in this Judgment. To the extent that the applicant complains that, during the course of the hearing, the Tribunal failed to ensure that he understood the relevance of the information that was put to him, and, in particular, failed to ensure that he understood the relevance of country information.
The Tribunal’s obligation at the hearing (in terms of procedural fairness and s.425) is to ensure that the determinative issues in the review are properly ventilated such that the applicant has the opportunity to address such issues (SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63). On what is before the Court the Tribunal complied with its obligation in this regard.
In relation to country information and ss.424A and 424AA, this is information that falls within the exception contained in s.424A(3)(a) from the obligation in s.424A(1), and therefore, the provisions of s.424AA cannot be said to be engaged. I note further, as I said before, that the Tribunal, in any event, wrote to the applicant pursuant to s.424A in this regard.
It may be that the applicant also complains pursuant to s.424AA (beyond the country information) that the Tribunal did not ensure that he understood what was put to him.
It is the case that the obligation of the Tribunal pursuant to s.424AA – in particular, paragraph (b) – is that it must ensure, as far as is reasonably practicable, that the applicant reasonably understands why the information is relevant to the review. I do not understand this to be some subjective test that the applicant must understand, but merely that the Tribunal act reasonably in its dealings with the applicant, so that the Tribunal’s obligation is limited to what is reasonable and practicable in the circumstances.
To the extent, therefore, that this may be a complaint that the applicant did not have understanding of what the Tribunal was saying at the hearing, whether it be information or otherwise, for the reasons which I have already said, s.424AA(b) does not assist the applicant.
If this was also meant to infer some wider lack of understanding, then, on the only evidence available to the Court, that is, the Tribunal’s own account of what occurred at the hearing, the applicant was assisted by an interpreter in the Mandarin language before the Tribunal, and the Tribunal specifically asked the applicant whether he had any problems understanding the interpreter, or indeed any objections to using the interpreter provided. The applicant did not respond with any difficulties in this regard (see [25] at CB 146).

Conclusion

In all, therefore, for the applicant to succeed before the Court today, the Court would need to discern jurisdictional error (at least) in the Tribunal’s decision. I cannot see such error as it is said to arise from the grounds of the application, or indeed, otherwise. The application, therefore, is dismissed.

Costs

The Minister has sought recompense for some of the legal costs that have been incurred in responding to the application.
The applicant has put to the Court that he does not have any money. While that is a regrettable situation, it is, unfortunately for the applicant, not such a reason as would cause the Court not to make the orders sought by the Minister. I therefore will make an order for costs.
Further, as to whether the amount sought, $5200, is a reasonable amount, I have regard to the relevant Schedule to the Rules of this Court, which I take as a guide as to what generally may be said to be reasonable. The Minister could have sought an amount up to $5865.
But quite separately, having regard to the material that has been put before the Court, the preparation and the filing and serving of multiples copies of the Court Book, the Minister’s written response, the Minister’s written submissions, the attendance at Court on two occasions, I am satisfied that the amount sought by the Minister is, in all the circumstances, a reasonable amount. I will make the order in that amount.

I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: D. Nestor

Date: