SZNWY v Minister for Immigration

[2009] FMCA 1224

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNWY v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 1224

MIGRATION – Review of decision of Refugee Review Tribunal – no bias or apprehension of bias – findings open to Tribunal on what was before it – Tribunal sufficiently indicated dispositive issue – circumstances distinguished from Applicant S20 – Tribunal comprehensively rejected applicant’s credibility – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.36, 65, s.422B, 425

Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425
SCAA v Minister for Immigration [2002] FCA 668
Minister for Immigration Multicultural Affairs v Jia (2001) 205 CLR 157
SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361
Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431
VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61
SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62
SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR; [2007] HCA 35 Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83
NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241
SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225
NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171
SZNPG v Minister for Immigration & Anor [2009] FMCA 1033
SZLUW v Minister for Immigration & Anor [2009] FMCA 1169
Re Minister of Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30

Applicant: SZNWY

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2209 of 2009

Judgment of: Nicholls FM

Hearing date: 8 December 2009

Date of Last Submission: 8 December 2009

Delivered at: Sydney

Delivered on: 16 December 2009

REPRESENTATION

Appearing for the Applicant: In person

Solicitors for the Applicant: -

Appearing for the Respondents: Mr G Johnson

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. The application made on 10 September 2009 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $4,900.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2209 of 2009

SZNWY

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made on 10 September 2009 under the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 12 August 2009, which affirmed the decision of a delegate of the first respondent to refuse a protection visa to the applicant.

Background

1. The applicant is a national of the People’s Republic of China (“China”) who first arrived in Australia on 11 May 2008 as the holder of a student guardian visa. She appears to have departed Australia on 12 March 2008 and arrived for a second time on 10 May 2008. (See Court Book – “CB”, CB 13, CB 28, and CB 29.)

2. She applied for a protection visa on 30 December 2008 (CB 1 to CB 33). She was assisted by a migration agent, Mr Harry Huang of Pricilla International Co (CB 32).

The Claims to Protection

1. The applicant claimed to fear persecutory harm if she were to return to China because of her involvement (with her father) in a protest against overcharging and unnecessary medical tests at a local hospital in April 2008.

2. The applicant claimed dissatisfaction with hospital treatment and expense at the time of her husband’s hospitalisation in 1999. Her husband died in hospital. Then, in 2008, when her mother fell ill, she claimed that unnecessary tests were performed at great cost to her family.

3. The applicant claimed that police arrived at the protest. That she, her father, and others were accused of an “illegal” and “anti-government” protest in the “Olympic year”. She claimed to have been arrested and taken to the Public Security Bureau (“PSB”), where she was detained, assaulted, and tortured. She was subsequently released for the purposes of obtaining medical treatment because of “bleeding”.

4. With assistance, she escape China. Her father and another person involved in the protest were “unlawfully” arrested and sent to a labour camp, where they remain.

5. On 23 March 2008 the applicant’s migration agent subsequently provided three documents to the first respondent’s Department in support of her claims (CB 44 to CB 54):

   1)A copy of a PSB document indicating that she had been arrested and detained.

   2)A copy of a hospital treatment record.

   3)A copy of a receipt from a hospital.

The Delegate

1. The applicant attended an interview with the delegate on 16 March 2009 (CB 62).

2. The delegate refused the application because he found the applicant not to be a credible witness. He found that her answers at the interview contained “major inconsistencies”, she avoided answering questions, she refused explanations, and that there were inconsistencies in her evidence as to her medical treatment, and implausible aspects to her claims (CB 67).

3. The delegate did not accept two of her documents as genuine, given that document fraud was widespread in China (CB 68). The third document was found to relate to an operation in China that she had planned to have before she left Australia, and not an operation that was caused as a result of injuries that she sustained after her return to China as claimed.

4. The delegate rejected the applicant’s relevant factual account of what she said had occurred in China (CB 68).

The Tribunal

1. The applicant applied for review by the Tribunal on 24 April 2009 (CB 69 to CB 73). She was again represented by the same migration agent (CB 71).

2. The applicant appeared at a hearing before the Tribunal on 7 July 2009 to give evidence. She provided a number of documents in support of her application:

   1)An ultrasound examination report (CB 89).

   2)An extract of hospital records (CB 90 to 91).

   3)A letter from her youngest son (CB 94 to CB 95).

   4)A letter from her younger sister (CB 98).

3. Following the hearing, the Tribunal sent a letter dated 8 July 2009 to the applicant seeking her comments on certain information which it said would be the reason, or part of the reason, for affirming the decision under review (CB 102 to CB 111 with annexures).

4. The applicant’s response was by way of statutory declaration (CB 113 to CB 116).

5. The Tribunal did not accept that any of the claimed events in China underpinning her claim to fear persecutory harm had occurred ([48] at CB 134).

6. The Tribunal found that, while the applicant’s claims remained consistent over time, when she was asked to elaborate, her answers were not convincing. It found some of her evidence to be “highly unlikely”, and in other respects, found that her explanations were not meaningful, and were also unconvincing ([49] at CB 134).

7. Notwithstanding these concerns, the Tribunal reasoned that it may have given her the benefit of the doubt. However, the Tribunal rejected the truth of the applicant’s claims when, in addition to the above concerns, it added the inconsistent evidence in relation to the reason for her operation in China, and other inconsistencies between her evidence to the Tribunal and what she had put to the Minister’s Department ([50] at CB 134 to CB 135).

8. The Tribunal found her explanation as to the change in her evidence as to the reason for her operation in China to be based on a “remarkable” coincidence ([50] at CB 134).

9. It found that medical documents provided by the applicant were not genuine, and were not evidence of the alleged events. The Tribunal based this on its concerns about the applicant’s evidence and the prevalence of document fraud in China, including the prevalence of false medical documents. The Tribunal therefore rejected all of the applicant’s documentary evidence ([50] at CB 134).

10. The Tribunal also considered the applicant’s submission that she authorised the Tribunal to take steps to “verify” the documents. It declined to do so, and relied instead on the “applicant’s oral evidence provided” ([50] at CB 134).

The Application

1. The application contains two particularised grounds:

   “1. The Tribunal’s decision was affected by apprehended bias.

   Particulars

   In the Tribunal’s decision, the Tribunal stated that:

   49. The applicant’s claims as described in her statement have remained consistent over time. In particular, the Tribunal accepts that she consistently stated her mother was in hospital for 2-3 days. However when the applicant was asked to elaborate on matters not described in her statement, the applicant’s answers were not convincing. The applicant claims that her mother was admitted to hospital because she was ‘suddenly spitting blood’ and that it made her undergo unnecessary tests. Given that her mother was found spitting blood, the Tribunal considers that it is highly unlikely that the applicant who is medically untrained would, a short time thereafter assume that nothing was wrong and would question her mother’s medical results solely on the basis of her own observations and a nurse’s say-so. This is so despite the applicant’s claims that the nurse was a relative and that the applicant already had a distrust of hospitals. The applicant has also claimed that she along with others some of whom had similar experiences protested because they wanted their money back from the hospital and they also wanted to stop the corruption in the hospital and gain proper health care for the community however the applicant was unable to explain in any meaningful way how a protest would result in her parent’s reimbursement. The Tribunal remains unconvinced that if the applicant was genuinely seeking reimbursement, she would protest rather than attempt to find another course of redress that could result in a tangible remedy for her parents The Tribunal also considers it highly unlikely that the applicant would be able to find others who were willing to protest and in the same position as her family less than one month after her mother was allegedly scammed.

   Apparently, the Tribunal’s decision was affected by apprehended bias as follows:

   - Given that her mother was found spitting blood, the Tribunal considers that it is highly unlikely that the applicant who is medically untrained would, a short time thereafter assume that nothing was wrong and would question her mother’s medical results solely on the basis of her own observations and a nurse’s say-so.

   - …if the applicant was genuinely seeking reimbursement, she would protest rather than attempt to find another course of redress that could result in a tangible remedy for her parents.

   - The Tribunal also considers it highly unlikely that the applicant would be able to find others who were willing to protest and in the same position as her family less than one month after her mother was allegedly scammed.

   Significantly, there is no evidence that the Tribunal has considered my following evidence independently and fairly as follows:

   - As a matter of fact, during the recent years, many hospitals in China cheat innocent people like us who do not have any medical knowledge.

   - The doctor said that my mother might suffer from lung cancer … but, many tests … were actually nothing with the lung cancer.

   - Coincidently, Mr Zhi Guang ZHONG, another relative of my family was also cheated by the hospital; and he even spent more than RMB 80,000 yam.

   2. The Tribunal failed to consider my documentary evidences independently and fairly.

   Particulars

   In the Tribunal’s decision, the Tribunal stated that:

   50 Be that as it may without more, the Tribunal may have given the applicant the benefit of the doubt in relation to her claim that she protested. However in this case a Departmental file note dated just before the applicant left Australia for China states that the applicant told the Department she was going to China and may be required to stay for 2 months for a major operation. When the existence of this file note was first revealed to her at an interview on 16 March 2009 she agreed the planned operation was for internal injuries in her womb. The Tribunal finds that the applicant, subsequently stated she had a pan-hysterectomy and did spend 2 months in China, however by the time she got to China, she was told by it doctor that the operation was unnecessary and that the operation she had was because of police brutality. The Tribunal finds the operation the applicant explained to the Department she was having in China before she left Australia is the [same] operation she in fact had in China but later alleged was as a result of her alleged injuries. In the Tribunal’s view this and the period she actually spent in China is a remarkable coincidence which given the Tribunal’s other concerns as detailed above, cannot be believed. The Tribunal has considered the various medical documents that the applicant has provided however given the Tribunal’s concerns in relation to the applicant’s testimony and given evidence before it of the prevalence of document fraud in China including hospital documents, the Tribunal does not accept that any of the documents submitted including the medical report which states that the applicant complained that she was hit by people with a police club are genuine or evidence of the alleged events contained therein. The Tribunal has considered the applicant’s submission that she authorises it to take any steps or methods to verify the documents however given the country information that states that irregular and improper issue of documents is widespread, the Tribunal has not pursued this and has relied upon its own assessment of the applicant’s oral evidence provided.”

   In my case, even the Tribunal itself has, in fact, accepted that written evidence is consistent with my oral evidence. Some of my evidence, in the Tribunal’s opinions, seems to be a ‘remarkable coincidence’; but the Tribunal’s concerns are either due to its apprehensive bias or its own unwarranted assumption. In such a situation, the medical documents, which have submitted to the Tribunal, become significantly important.

   As I have claimed to the Tribunal,

   It may be the case that fake documents are easy to obtain in China; but we cannot say every document obtained from China is fake. In my case, what I can say is that I am willing to authorize the Tribunal to take any steps or use any methods or through any ways to verify documents submitted by me in support of my review application.

   However, the Tribunal failed to take any genuine attempt to look at the medical documents which I have submitted to it simply with an excuse that ‘… irregular and improper issue of documents is widespread …’

   To my understanding, the Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that it fair, just, economical, informal and quick. The Tribunal, in reviewing a decision, is not bound by technicalities, legal forms or rules of evidence, but the Tribunal must act according to substantial justice and the merits of the case.

   In my case, the Tribunal has, obviously, failed to act according to substantial justice and the merits of the case.”

Before the Court

1. The applicant appeared in person. She was assisted by an interpreter in the Mandarin language. Mr G Johnson appeared for the first respondent. No written submissions have been filed by the applicant, despite opportunity. Submissions have been filed on behalf of the first respondent.

2. For the most part, the applicant presented before the Court in a seemingly agitated, sometimes tearful, and on occasion, dramatic state. I allowed her a short adjournment so that the applicant could compose herself.

3. Nonetheless, her submissions were clear and coherent. I was satisfied that she was able to conduct the case on her own behalf, noting of course, the usual difficulties faced by applicants generally in matters of this type – linguistic, cultural differences, and a lack of personal knowledge of relevant law.

4. The applicant has had the benefit of legal advice provided by counsel on the panel of the “NSW RRT Legal Advice Scheme”. Nonetheless, she submitted to the Court that her migration agent, who represented her before the Tribunal, also assisted with the application to the Court.

5. The applicant pressed both grounds of the application. She submitted that the Tribunal was biased (in context, I understood this to be an assertion of apprehended bias) because it did not believe her “true” claim that: “the hospital cheated us”. The applicant submitted that the factual account of relevant events in China that she had given to the Tribunal at the hearing was true. In this light, she saw the Tribunal’s questioning in relation to her claims as revealing bias on its part.

6. In relation to ground two, the applicant submitted that the documents which she submitted to the Tribunal were “real” and that the Tribunal should not have found that they were fraudulent.

Ground One

1. The test for the apprehension of bias is well established. (See Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 at [27], [28] and [30] to [31].) It is understood that a well informed lay observer might reasonably apprehend that the Tribunal did not bring an open mind to the proceedings. That is, that it was not open to persuasion.

2. The applicant relies entirely on extracts from the Tribunal’s decision record to assert this ground. It is a rare case that bias can be made out with reference only to the Tribunal’s decision record. (See SCAA v Minister for Immigration [2002] FCA 668 per von Doussa J at [38]: “In my opinion it will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision.”)

3. Such an allegation is extremely serious as it goes to the very core of the integrity of the relevant decision maker. It requires evidence to be established (Minister for Immigration Multicultural Affairs v Jia (2001) 205 CLR 157, SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 at [43] to [44], Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431, VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872, Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425).

4. But the applicant’s complaint as particularised does nothing more than take issue with the Tribunal’s analysis and findings. I cannot see any evidence before the Court to support the applicant’s complaint. Simply because the applicant is aggrieved with the Tribunal’s conclusion does not, on its own, go anywhere near to establishing an apprehension of bias.

5. The applicant’s particulars set out paragraph 49 of the Tribunal’s decision record in full. The applicant then states that an apprehension of bias is apparent because of three findings made in that paragraph.

6. This is nothing more than a challenge to the Tribunal’s findings. Given that the Tribunal made findings which were open to it to make on the evidence before it, and for which it gave cogent reasons, the applicant’s complaint does not rise above a request for this Court to engage in impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259).

1. The applicant’s particulars also assert that the Tribunal failed to consider certain aspects of her evidence “independently and fairly”. In particular, this is said to relate to her claims:

   1)That “many hospitals in China” “cheat” innocent people.

   2)That although the doctor said that her mother may have lung cancer, the tests had nothing to do with this disease.

   3)That a relative of her family was also “cheated” by the hospital.

2. In relation to the claim of a lack of fairness, it is the case that error is not revealed with what an applicant feels is an unfair outcome, but with unfair procedures (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 – “SZBEL”). This is a case to which s.422B of the Act applies, making the matters set out in Division 4 of Part 7 of the Act the exhaustive statement of the natural justice hearing rule, absent bias, in relation to the matters that it deals with (Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 at [59] to [67]; SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [8]; SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR; [2007] HCA 35 at [48]; Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83, in particular at [8] to [18]).

3. The Tribunal’s procedural fairness obligations in this regard are relevantly in relation to s.425 of the Act, and as explained in SZBEL.

4. The Tribunal’s account of what occurred at the hearing remains unchallenged by any evidence to the contrary that could have been put by the applicant before the Court. In these circumstances, it is not open to this Court to make inferences as to what may have otherwise be said to have occurred (NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241).

5. On what is before the Court, the Tribunal discharged its procedural fairness obligations.

6. The applicant is reported as having told the Tribunal that “lots of hospitals got money” by conducting unnecessary tests. (See [35].) This was put as part of her evidence relating to her mother’s hospitalisation. In this regard, the Tribunal more than sufficiently indicated to the applicant its concerns with her relevant evidence. (See [35] to [37].)

7. Whether or not “lots of hospitals” were involved in conducting unnecessary tests for monetary reward, what remains is that the Tribunal understood the applicant’s claim in this regard, and put to her its concerns that, amongst other things, the applicant’s evidence was inconsistent. That is, her claim that her mother was “spitting blood”, but that then there was nothing wrong with her, and that, therefore, the tests were unnecessary.

8. Further, apart from relying on her own inexpert observation, and her own stated distrust of hospitals, she relied on a nurse’s “say so”, a nurse who just happened to be a relative.

9. This matter was discussed at the hearing. The applicant was given the opportunity to provide her explanations. That the Tribunal did not accept her explanation does not reveal a failure to act fairly, or reveal an apprehension of bias, or for that matter, actual bias.

10. The applicant’s second particular, in relation to an assertion that her mother did not have lung cancer, was dealt with at the same time by the Tribunal and in a similar fashion, which also does not reveal error.  

11. The third particular relates to the applicant’s evidence that a relative was also “cheated” by the hospital. This assertion first appears in the applicant’s protection visa application (see CB 18.7).

12. This does not appear to have been pressed at the hearing. But, in any event, it may have been subsumed in the applicant’s general assertion at the hearing that “lots of hospitals” acted in this way. The Tribunal dealt fairly with this matter as set out above.

13. As the Minister submits, the issue as to possible error arises from whether the Tribunal’s findings were open to it on what was before it. They were. There is no jurisdictional error in the Tribunal simply not accepting the applicant’s claims (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259).

14. Before the Court, the applicant complained that her claims were “true”, and yet the Tribunal did not believe her factual account of what she said had occurred in China, particularly in relation to her mother’s hospitalisation, and being “cheated” by the hospital.

15. The short answer to the applicant’s complaint is that the Tribunal is not obliged to uncritically accept what an applicant says. In fact, so long as it is open to it to do so, and it gives reasons, the Tribunal could reject everything an applicant says.

16. The task for the Tribunal is to consider an applicant’s claims, and all aspects of these claims. The relevant statutory regime as expressed in ss.65 and 36(2) of the Act requires the Tribunal to reach a requisite level of satisfaction such that a visa must be granted. If it is unable to reach this level of satisfaction, the visa must be refused (SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15] to [16], NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 at [4] to [5], Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73).

17. The Tribunal did not accept that the relevant aspects of the applicant’s factual account of what occurred in China had, in fact, occurred, or that, in one aspect (her own operation), it was done for the reason that was advanced by the applicant. The Tribunal’s assessment of the applicant’s own evidence is a matter for it within the proper exercise of its jurisdiction.

18. The applicant also complained before the Court that the Tribunal’s questioning of her at the hearing revealed bias.

19. First, the applicant has not, despite opportunity, put evidence before the Court (for example, a transcript of the hearing) to challenge the Tribunal’s account of what it said had occurred at the hearing.

20. As already stated above, bias, or the apprehension of bias, is very difficult to establish with reference to the Tribunal’s decision record alone.

21. There is nothing in the decision record, or otherwise in the material before the Court, to indicate (let alone establish) bias, or the apprehension of bias, by the Tribunal. 

22. Merely asking for explanations from the applicant is not bias. Indicating its concerns about her evidence is also not bias. On what is before the Court the Tribunal was properly putting its concerns to the applicant in the proper discharge of its obligations to provide procedural fairness to her.

23. In all, ground one is not made out.

Ground Two

1. In ground two the applicant complains that the Tribunal did not consider her documentary evidence “independently and fairly”.

2. This, again, is particularised with reference to the Tribunal’s decision record. The Tribunal’s findings in relation to the documents are set out at paragraph 50 of its decision record. The particulars seek to assert that the Tribunal’s concerns were again due either to apprehended bias, or to the making of “unwarranted assumptions”.

3. The applicant also pressed her claims on the basis that she gave the authority to the Tribunal to take further steps to “verify” the documents.

4. Before the Court the applicant submitted that the Tribunal should not have found that her documents were fraudulent.

5. As the Minister submits, the Tribunal did consider her documentary evidence. Any implied assertion that it failed to do so must be rejected on what is before the Court.

6. The real complaint underlying the claims of an apprehension of bias, unwarranted assumptions, and grievance with the Tribunal’s findings, is to take issue with the Tribunal’s reasoning and its relevant findings.

7. The Tribunal rejected the applicant’s documentary evidence as forgeries on two bases. First, it found that the applicant was not a witness of truth. Second, that country information available to it stated that the irregular and improper issue of such documents in China was widespread.

8. These findings provided a probative basis for the way in which the Tribunal dealt with the documents. Without anything further, this does not establish that the lay observer would apprehend bias on the part of the Tribunal.

9. The Minister also submitted that when the Tribunal proceeds to dismiss an applicant’s documentary evidence as fraudulent, issues of procedural fairness may arise if an applicant is not put on notice of its concerns.

10. In the current case the applicant would have been on notice following the delegate’s decision that her documents may be rejected, given any dishonesty on her part, and the widespread availability of fraudulent documents in China.

11. In any event, both these issues were squarely raised by the Tribunal at the hearing. I have already referred to the Tribunal’s raising of its concerns about the applicant’s evidence. In relation to document fraud the Tribunal reports ([42] at CB 129):

    “The Tribunal stated the circumstances of her alleged protest at the hospital including why and how she protested, that is how many people were involved may be unlikely. The Tribunal also stated it may find she had misled the Tribunal in the past in relation to whether she was married to another person, that she did not reveal the reason why she went back to China until the Department had told her that they had a record of the conversation she had before she departed Australia, that she told the Department at interview that her mother was hospitalised for 2-3 weeks and not 2-3 days. The Tribunal also put to her that it had information that suggested that fake documents were easily obtained in China and this may lead the Tribunal to place little to no weight on the hospital documents. The applicant stated her uterus had been removed because she had been beaten by the police.”

12. The Tribunal thereby fulfilled its procedural fairness obligations pursuant to s.425 (with reference to SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152

13. Further, the Minister submits that this matter is distinguishable on its facts from such cases as WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171, where the Tribunal failed to raise its concerns about the genuineness of the documents submitted in that case. Clearly, this is not such a case.

14. During the hearing, I raised with Mr Johnson that in two recent Judgments of this Court (SZNPG v Minister for Immigration & Anor [2009] FMCA 1033 (“SZNPG”) per Driver FM and SZLUW v Minister for Immigration & Anor [2009] FMCA 1169 (“SZLUW”) per Raphael FM) the Court has raised concerns about the Refugee Review Tribunal’s seeming reliance on Re Minister of Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 (“Applicant S20”) to reject corroborative documentary evidence. (See Applicant S20, particularly at [49] per McHugh and Gummow JJ.) That a failure to properly understand the effect of what was said, and its misapplication in certain circumstances, could lead to an apprehension of bias.

15. In SZNPG the Court found at paragraph 39:

    “The combination of the Tribunal’s unwillingness to make comprehensive findings of untruthfulness against the applicant, its unwillingness to engage in a proper consideration of the corroborative evidence advanced on his behalf and the Tribunal’s apparent determination to adhere to its view that the applicant had never been baptised and was not at any stage a Christian, in my view supports a conclusion that a fair-minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias would apprehend that the Tribunal may not have brought an unprejudiced mind to bear on its decision.”

16. In SZLUW Raphael FM cautioned against the Tribunal’s rejecting possibly corroborative documentary evidence in circumstances where it may utilise the decision in Applicant S20 with greater latitude than allowed by what was said in Applicant S20. (See SZLUW at [16] to [20].)

17. Ultimately, the current case can, in my view, be distinguished from SZNPG on the basis that the Tribunal ultimately made a clear finding that the applicant was not credible in her oral evidence and in the presentation of her claims ([51]).

18. The Tribunal’s account of the hearing reveals that the applicant would have been put further on notice that her credibility (that is, her oral factual account) was at issue.

19. The applicant was on notice that the concerns about her oral evidence, and the availability of fraudulent documents, may lead the Tribunal to place little to no weight on them.

20. Further, I agree with Mr Johnson that the current case can be distinguished from the circumstances in Applicant S20 and the other two cases. In the current case, the Tribunal initially expressed its concerns at the hearing, and in its subsequent letter, as leading to a finding that it would give little or no weight to the documents. However, it did put the applicant on notice that her factual account may be disbelieved, and of the widespread availability and use of fraudulent documents in China.

21. These two latter matters provided the probative basis for the Tribunal to ultimately find that the documents were not “genuine or evidence of the alleged events contained therein.”

22. This finding distinguishes this case from Applicant S20 and the other two cases. This was not a case where the comprehensive rejection of the applicant’s factual account led to little or no weight being attributed to otherwise genuine documents. In the current case, the documents were found not to be genuine, so they could not have provided corroborative support to the applicant’s claims.

23. Ultimately, I cannot see that an allegation of bias can be sustained in the way that the Tribunal dealt with the documents. The Tribunal was not unwilling to make a clear finding that the applicant was not credible. Nor was the corroborative evidence considered independently of this finding. While the Tribunal clearly relied on independent evidence as to the availability of fraudulent documents, it was also its complete rejection of the applicant’s credit that led it to reject these documents as assisting the applicant.

24. Having comprehensively rejected the credibility of the applicant’s factual account, it would clearly have served no purpose for the Tribunal to have taken up the applicant’s invitation to verify the authenticity of the documents. The Tribunal did consider the applicant’s request, but its finding that it: “… has relied upon its own assessment of the applicant’s oral evidence provided” means that any such task would have been futile.

Conclusion

1. In all, therefore, for the applicant to succeed, there would need to be jurisdictional error (at the very least) in the Tribunal’s decision. I cannot see such error. This application is therefore dismissed.

I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  C Darcy

Date:  16 December 2009