SZNYN v Minister for Immigration

[2010] FMCA 245

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNYN v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 245

MIGRATION – Review of decision of Refugee Review Tribunal – no apprehension of bias – Tribunal considered all claims and evidence – findings open to Tribunal on what was before it – Tribunal gave cogent reasons for findings – applicant seeking impermissible merits review – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.424A, 427, 476

SZHPD v Minister for Immigration & Citizenship [2007] FCA 157
Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507; [2001] HCA 17
Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361
Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431
VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Abebe v The Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14
MZWBW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 94
Applicant A169 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 8
NAAP  v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 76
SZBEL  v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1
Randhawa v the Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26, 235 ALR 609
Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6; [1999] FCA 507
Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 1376
NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241

Applicant: SZNYN

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2369 of 2009

Judgment of: Nicholls FM

Hearing date: 1 April 2010

Date of Last Submission: 1 April 2010

Delivered at: Sydney

Delivered on: 9 April 2010

REPRESENTATION

Appearing for the Applicant: In person

Solicitors for the Applicant: -

Appearing for the Respondents: Mr B O’Brien

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. The application made on 28 September 2009 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $4,600.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2369 of 2009

SZNYN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made on 28 September 2009 under the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 7 September 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 arrived in Australia on 10 January 2009. She applied for a protection visa on 24 February 2009. (See Court Book – “CB”, CB 1 to CB 32.) She appointed a migration agent to assist her: “Harry Huang” of Pricilla International (CB 30).

Claims to Protection

1. She claimed to fear harm if she were to return to China because she would be regarded as “anti-government”, and having “anti-communist ideology”. Specifically, the applicant claimed to have been involved in a motor vehicle accident with police in September 2005. She was seriously injured and hospitalised. She returned home in November 2005.

2. She was subsequently told by eyewitnesses that the police were “beastly drunk”. Attempts to have the matter investigated by police or the Pubic Security Bureau (“PSB”) were unsuccessful.

3. After referral to a number of other government agencies, she was ultimately notified in April 2008 that an investigation had concluded that the four police officers were not responsible for the incident. The applicant was found to be responsible. She was threatened if she were to seek any appeal.

4. The applicant, nonetheless, sought a review of her case. This was unsuccessful. In October 2008 she led a public demonstration. Police dispersed the demonstration. She was accused of organising an anti-government protest and was ultimately arrested.

5. She was detained for 23 days and mistreated by other “criminal” detainees, and interrogated and mistreated by the police. She was released after her husband posted a bond and bribed the officer in charge. Upon release she was continuously harassed by police. She obtained a visa for Australia and left China on 9 January 2009.

The Delegate

1. The delegate refused the application on 21 May 2009 (CB 41 to CB 52). The delegate found that she did not have any adverse profile which was of interest to the Chinese authorities.

The Tribunal

1. The applicant applied for review by the Tribunal on 18 June 2009. The same agent continued to represent her (CB 53 to CB 57). She attended a hearing before the Tribunal on 6 August 2009. Her daughter gave evidence as a witness (CB 67).

2. Following the hearing, by letter dated 11 August 2009, the Tribunal invited the applicant to comment on certain information which it said would be the reason, or a part of the reason, for affirming the decision under review (CB 89 to CB 92). The Tribunal sought her comments on inconsistencies between her evidence to the delegate and to the Tribunal, and inconsistencies between her evidence to the Tribunal and that of her daughter.

3. Further, the applicant was asked to comment on information that the applicant had previously, and unsuccessfully, applied for a student guardian visa on 31 July 2007, which predated many of the events that she described as having occurred in China, and in particular, showed that she had made plans to leave China prior to first being threatened in April 2008 (CB 90).

4. The applicant’s response was by way of Statutory Declaration (CB 93 to CB 96).

5. The Tribunal accepted some initial aspects of the applicant’s claim, that is, that she was involved in some accident and that she sustained injuries. But the Tribunal did not accept that this involved a vehicle containing four drunken police. The Tribunal rejected the greater bulk of the applicant’s factual claims, on the basis that it found her not to be a truthful witness, and that she had manufactured a set of claims in order to obtain refugee status in Australia ([57] at CB 117 and [73] at CB 122).

6. The Tribunal variously found her claims to be inconsistent and not credible, and that when she was required to deviate from her written statement, she was often “evasive and did not respond to the questions asked” ([57]).

7. In particular, the Tribunal found:

   1.The applicant’s evidence to be “problematic”, as to action taken by her husband to obtain compensation, and whether, and how, a lawyer had been consulted ([58] to [59]).

   2.That it had difficulties with the daughter’s lack of knowledge about actions taken by her father. The Tribunal found the explanation for this to be that “untruthful evidence” was given in relation to this issue ([60]).

   3.The evidence relating to the claimed writing of a letter to the local government to be “highly problematic and inconsistent”. It found the applicant’s evidence in this regard to be indicative that she had “not provided truthful evidence” ([61]).

   4.The evidence given at the hearing about how she went about making complaints to various government departments to be “extremely vague” ([62]).

   5.The applicant’s evidence as to visits by the police was “inconsistent” ([63]).

   6.Her evidence as to action taken by the police following the claimed visits to various government agencies was “highly lacking in credibility” ([64]).

   7.The applicant’s evidence in relation to the “timing” of her passport, and the first application for a student guardian visa, was: “… indicative of the fact that she planned to leave China well before she claimed to have experienced adverse attention from the authorities.” The circumstances presented by the applicant as to the timing and circumstances of her claimed complaints, lacked credibility ([65]). Her later explanation as to her purpose in coming to Australia was “… belatedly manufactured in an attempt to overcome the Tribunal’s concerns as expressed at the hearing and in the post hearing letter” ([66]).

   8.The Tribunal found the applicant’s evidence about “basic aspects of her circumstances in China” to be “highly problematic.” The Tribunal gave examples ([67]).

   9.Its concerns relating to the applicant’s evidence about her husband’s employment were increased by her daughter’s lack of knowledge ([68]).

   10.The applicant’s evidence relating to her daughter’s circumstances in Australia was also “problematic”. The Tribunal did not accept the applicant’s explanation for the inconsistencies between her evidence and her daughter’s evidence in this regard ([69] to [70]). It found the applicant’s evidence to be “highly lacking in credibility” ([71]).

   11.It found this matter, and the issue of the husband’s employment, although “peripheral” to her claims, to be indicative nonetheless of her: “… overall poor credibility and of her willingness to provide untruthful evidence” ([72]).

8. In all, the Tribunal accepted that the applicant had been involved in an accident, involving the applicant’s three wheeled vehicle and another vehicle, and that she may not have been adequately compensated. Beyond that, however, the Tribunal comprehensively rejected, on credibility grounds, the applicant’s factual account about what she said had then occurred in China.

9. The Tribunal found that the applicant’s accident did not, in any way, relate to the Refugees Convention. The Tribunal accordingly found that it could not be satisfied that the applicant had a well founded fear of persecution if she were to return to China, and affirmed the decision under review.

The Application to the Court

1. The application to the Court pleads three grounds asserting jurisdictional error:

   1.An allegation of apprehension of bias.

   2.That the Tribunal failed to “consider” her “claims properly, independently and impartially.”

   3.The Tribunal ignored her “important evidence”.

Before the Court

1. The applicant appeared before the Court in person. She was assisted by an interpreter in the Mandarin language. Mr B O’Brien appeared for the first respondent. Both parties have filed written submissions. The applicant’s submissions, for the most part, repeat the factual matters that she put before the Tribunal, repeat the assertion that the Tribunal did not bring an open mind to the review, and attempt to provide an explanation for some of the perceived deficiency in her evidence presented to the Tribunal.

2. Before the Court the applicant:

   1.Repeated at some length her factual claims put before the Tribunal.

   2.Claimed that the Tribunal’s adverse credibility finding, based on inconsistencies in the evidence, was not a “fair” conclusion. The Tribunal did not give “fair” consideration to her explanations.

   3.Challenged the Tribunal’s factual findings in rejecting her explanations for deficiencies in her knowledge of certain events. For example, what her husband did in “engaging” a lawyer for her, and the reasons for her daughter’s lack of knowledge.

   4.Explained that at the interview with the delegate, and at the hearing with the Tribunal, she was unable to “communicate everything directly through the interpreter”. She said that she did not complain about the interpreter. But I understand that the applicant’s complaint was that this explained the perceived inconsistencies in her evidence. As did her “low educational level” and “cultural differences.”

   5.The Tribunal accepted that she had been seriously injured in China. But it did not then consider that her mental state and memory was severely affected. She felt enormous pressure at the interview with the delegate, and at the hearing with the Tribunal, and this, combined with her mental stress, caused problems in her being able to express herself “thoroughly”. She was nervous at the hearing. It was “possible” that all this caused her to be “not coherent”.

Consideration

Ground One

1. Ground one asserts an apprehension of bias. The only basis advanced by the applicant to explain this assertion is to say that the Tribunal was “definitely incorrect” to find that she had manufactured her claims, and that she was evasive, and that her evidence was inconsistent and problematic.

2. In written submissions the applicant repeats her factual claims made before the delegate and the Tribunal. She provides generally the same explanations put before the Tribunal in relation to some of the Tribunal’s concerns about her evidence. She asserts that there is no evidence that the Tribunal brought an impartial and independent mind to its consideration.

3. I note relevant authorities in relation to apprehended bias. (See SZHPD v Minister for Immigration & Citizenship [2007] FCA 157, Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507; [2001] HCA 17, Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28, SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361, Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431, VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102.)

4. None of the “particulars” referred to by the applicant goes anywhere near to showing that a fair minded lay observer would reasonably apprehend that the Tribunal failed to bring an open mind to the proceedings.

5. On what is before the Court, I can only agree with the respondent’s submissions. The applicant has made no attempt to provide any proper basis for the making of such a serious allegation going, as it does, to the integrity of the decision maker.

6. The applicant’s written submissions do not assist her in the assertion that the Tribunal did not bring an open mind to the proceedings. Simply being aggrieved of the Tribunal’s findings of fact, including findings as to credibility, does not provide a basis for establishing an apprehension of bias. The Tribunal, after all, is the relevant finder of fact (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407). The applicant’s attempts now to press her factual claims before the Court cannot, in the circumstances, and without anything further, rise above a request for this Court to substitute its own findings for those of the Tribunal. This Court, of course, cannot do so (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 – “Wu Shan Liang”).

7. As the Minister submits, even if some finding by the Tribunal (although there is no evidence of this) were to be shown to be incorrect, this, on its own, again does not lead to jurisdictional error (Abebe v The Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14, MZWBW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 94, Applicant A169  of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 8 at [37] per Finn, Marshall and Mansfield JJ, NAAP  v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 76 at [37] per Gray, Moore and Weinberg JJ).

8. The applicant’s submission, that there is no evidence to show that the Tribunal brought an independent mind to the consideration of her claims, is not the appropriate formulation of the relevant test. As set out above, the test is whether the well informed lay observer would reasonably apprehend that the Tribunal failed to do so. Other than repeating some of her claims and explanations put before the Tribunal, in respect of which it was reasonably open to the Tribunal to make the findings that it did, the applicant has not identified any matter on the material before the Court, or indeed put any other evidence before the Court, to show that a well informed lay observer would reasonably apprehend bias.

9. Before the Court the applicant complained that the Tribunal’s adverse conclusions as to her credibility were not fair. It is the case that this Court does not have jurisdiction to determine whether the Tribunal’s decision (that is, its conclusion) was “fair”. While the Tribunal is required to provide fairness in the procedures that it employs and applies, what is required, as the High Court said in  SZBEL  v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 (at [25]), is a “fair hearing not a fair outcome” (with reference also to Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 at 35 to 36 per Brennan J).

10. The applicant saw the Tribunal’s adverse credibility finding as being unfair, and therefore as evidence to support her claim of apprehension of bias. The Tribunal’s conclusion was based on relevant findings which were open to it to make and for which it gave cogent reasons. This aspect of the applicant’s complaint does not succeed.

11. This ground is not made out.

Ground Two

1. To some extent, this ground overlaps the first. That part of the complaint does not succeed for the reasons already set out above.

2. For the remainder, the complaint appears to be that the Tribunal did not properly consider the applicant’s claims because it relied on “trifling things”, and ignored her evidence.

3. As to the former, this appears to be a reference to the Tribunal’s findings in relation to the applicant’s evidence as to her husband’s relevant actions, her knowledge about her husband’s employment circumstances, her daughter’s knowledge about her case, and her knowledge about her daughter’s studies.  

4. First, the Tribunal itself acknowledged that the husband’s employment circumstances and her knowledge of her daughter’s studies were “peripheral” to her claims relating to the action that she allegedly took to obtain compensation for her injuries ([72] at CB 122).

5. But these were clearly not the only matters on which the Tribunal relied to form an adverse view of the applicant’s credibility. The Tribunal’s analysis reveals that there were a number of concerns arising from the applicant’s core claims and evidence. (See [15] above.) These two matters, in context, were clearly seen as a further indication of the applicant’s poor credibility.

6. Second, the applicant’s complaint that the Tribunal significantly relied on her daughter’s lack of knowledge about her case is, in context, misleading. Again, it was not the only significant concern that the Tribunal had.

7. But further, what the applicant ignores is that her daughter gave evidence on her initiative. There is nothing before the Court to suggest that the Tribunal summonsed the daughter to give evidence (s.427(3)(a)), nor that it otherwise required the daughter to attend the hearing.

8. Although the applicant did not give the Tribunal notice that the daughter would attend to give evidence (CB 66), she did attend at the relevant place at the time scheduled for hearing (CB 67), and gave evidence ([46] to [49]). There is nothing to show that she was under any compulsion or direction by the Tribunal to do so.

9. Specifically in relation to the daughter’s lack of knowledge about her father’s actions to obtain compensation on behalf of her mother, the Tribunal accepted that the daughter would not be expected to have a detailed knowledge. What the Tribunal could not accept, however, was that she would have no awareness of it at all ([60] at CB 118). On what was before it, this was reasonably open to the Tribunal.

1. Further, it was open to the Tribunal, on what had been put before it, to find inconsistencies between the applicant’s evidence and that of her daughter. Again, noting that these inconsistencies and the daughter’s lack of knowledge were only one part of the Tribunal’s analysis of the applicant’s claims and evidence.

2. Again, it appears that, on what is before the Court, the matter of the husband’s actions to obtain compensation for the applicant was raised by the applicant herself at the interview with the delegate (CB 107.3). In these circumstances it was open the Tribunal to pursue this matter at the hearing. It was the applicant’s evidence, in response, that the husband had engaged a lawyer ([37] at CB 111), and that he spoke to some witnesses ([39] at CB 112). The Tribunal’s subsequent report as to what relevantly occurred at the hearing ([40] to [41] at CB 112) provides the basis for the Tribunal’s finding, which was open to it to make on what was before it, that her evidence about the husband’s actions was “problematic”.

3. Far from ignoring her evidence, the Tribunal extensively relied on that evidence to ground its conclusion that the applicant was not telling the truth. On what is before the Court, the applicant’s complaint that the Tribunal ignored her evidence can only be properly understood as a complaint that the Tribunal did not accept her evidence. Simply, the Tribunal does not have to uncritically accept any, or even all, of what an applicant says (Randhawa v the Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265). It is for the Tribunal to evaluate the evidence before it, and to make findings of fact, including findings as to credibility, that are reasonably open to it to make on what is before it. That is what the Tribunal has done in the current case.

4. What the applicant appears not to understand, or does not want to accept, is that the Tribunal’s finding that she was not a credible witness was based largely on her own evidence. The findings that informed its ultimate finding in that regard were all reasonably open to it on what was before it. Further, the Tribunal gave cogent reasons for these findings. On what is before the Court, I cannot see that the Tribunal failed to properly consider her claims. Noting further, in this regard, the applicant has not put any evidence before the Court to challenge, or contradict, the Tribunal’s account of what it said occurred at the hearing.

5. The applicant’s challenge before the Court to the Tribunal’s factual findings in this regard does not reveal error in the Tribunal’s decision.

6. Ground two is not made out.

Ground Three

1. Ground three asserts that the Tribunal ignored the applicant’s important evidence. The particulars to the ground explain that the Tribunal ignored her response to its “s.424A letter”.

2. I note that, somewhat in contradiction to her earlier grounds, the applicant appears to concede that her evidence at the Tribunal hearing, and what she told the delegate at the interview, “may be inconsistent”.

3. In any event, this complaint does not succeed. Any plain reading of the Tribunal’s analysis reveals that her response to its letter inviting comment was considered, and taken into account.

4. The Tribunal’s letter is dated 11 August 2009 (CB 89 to CB 92). It was clearly sent after she appeared at the hearing with the Tribunal on 6 August 2009. A large part of the letter is directed to inconsistencies in the applicant’s claims and evidence. Of course, such inconsistencies are not “information” for the purposes of s.424A (SZBYR v Minister for Immigration and Citizenship [2007] HCA 26, 235 ALR 609 at [18]). But no error is revealed in the Tribunal in any event, putting these inconsistencies to her in its letter. The applicant’s response was by way of Statutory Declaration (CB 94 to CB 96).

5. In its decision record the Tribunal provides a comprehensive presentation of what the applicant said in her statement in response ([55] at CB 115 to CB 116). The Tribunal did not just reproduce the applicant’s response word for word. Given that presentation, an inference can be clearly drawn that the Tribunal looked at each paragraph in the applicant’s Statutory Declaration, and produced a comprehensive presentation of each point.

6. But far more importantly, and conclusively, any plain reading of its analysis reveals that the Tribunal not only did not ignore what she said, but carefully took it into account. (See generally [61], [63], [66], [67], [69], [70], [73] as to the matters relevant to her declaration.)

7. On what is before the Court the applicant’s ground, again, can only properly be understood as a complaint that the Tribunal did not accept her explanations for the matters raised in its letter. As such, and in the absence of anything else, this is a request for impermissible merits review (Wu Shan Liang).

8. Ground three is not made out.

Other Complaints

1. In oral submissions before the Court the applicant restated her factual claims before the Tribunal. To the extent that, by doing so, the applicant was asking the Court to substitute its own findings for those of the Tribunal, then this can only be seen, in the circumstances, as a request for this Court to indulge in impermissible merits review (Wu Shan Liang). Her restatement of her account, on its own, does not reveal error on the part of the Tribunal.

2. The applicant also complained about difficulties in communicating through the interpreter, both at the interview with the delegate, and at the hearing with the Tribunal. I did not understand her complaint to be seeking a review of the delegate’s actions or decision, but that her claimed communication difficulties at the interview, as at the hearing, explained the inconsistencies in her evidence as found by the Tribunal.

3. I should note that, even if the applicant were to seek review of the delegate’s decision, this Court lacks jurisdiction in the circumstances. (See s.476 of the Act. The delegate’s decision is the “primary decision”, as it plainly is reviewable under Part 7 of the Act: s.476(2)(a) and s.476(4).)

4. Properly understood, the applicant’s complaint was not a complaint about the level of interpretation, or its adequacy, at the hearing. I did not understand her complaint to be such as to require consideration of such authorities as Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6; [1999] FCA 507 or Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 1376.

5. Rather, the applicant’s complaint before the Court was that the inconsistencies and deficiencies in her evidence are explained by her “low” education, the fact that there was a language barrier between her and the Tribunal (and the delegate), and cultural differences.

6. The applicant has not put any evidence before the Court to challenge the Tribunal’s account of what occurred at the hearing. In these circumstances, it is not open to the Court to make assumptions about what may otherwise have been said (NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241).

7. The Tribunal’s account relevantly shows that while the applicant generally raised her mental and emotional state, there was nothing at the hearing about her “low” education, language difficulties, or cultural differences as being factors to explain inconsistencies put to her ([25] at CB 109 to [53] at CB 114). 

8. For example, and in particular, I note that when the Tribunal squarely put to her that she: “… appeared to be having difficulty explaining what she did at the [government] offices [when she said that she went to complain]” ([43] at CB 113), there was no mention of any difficulty in communication or explanation.

9. The Tribunal wrote to the applicant after the hearing and raised with her inconsistencies in her evidence. In her response (CB 94 to CB 96) the applicant relevantly raised the following matters:

   1.Paragraph 1: She may have made a “mistake” at the interview with the delegate as to the exact date of the accident. Amongst other things, she was: “questioned by an officer who spoke completely different language” (CB 94.3).

   2.Paragraph 5: At the hearing with the Tribunal she misunderstood the Tribunal’s questions about whether she had provided documents to the government agencies she claimed to have visited (CB 94.10).

   3.Paragraph 8: She explained that she did not know what her daughter was studying in Australia and her daughter was unable to provide details about her father’s activities because of cultural and traditional factors in her hometown (CB 95.5 and CB 95.9).

   4.Paragraph 8: She explained that, in part, she could not remember what her daughter was studying in Australia because she does not: “understand any English” (CB 95.6).

10. I note that, as referred to above (see [51] and [52]), the Tribunal did take all of the matters raised in the applicant’s statutory declaration into consideration.

11. Specifically, in relation to each of the items at [63] above:

    1.The Tribunal accepted that the applicant had been injured in a motor accident. It made no adverse finding as to the applicant’s “mistake” before the delegate as to the exact date of the accident ([57] at CB 117).

    2.The Tribunal acknowledged the applicant’s explanation in her written declaration submitted after the hearing that she did not understand the Tribunal’s questions at the hearing as to whether she provided any documents to the government agencies while she made complaints to them. The Tribunal accepted the applicant’s explanation that the question may have been confusing as to whether there had been any formal lodging of documents. But the Tribunal did not accept the applicant’s evidence at the hearing that she did tell the delegate that she had sent a letter to the local government. The Tribunal listened to the recording of the interview and found that she had in fact said this to the delegate ([61] at CB 118 and CB 119).

    3.The Tribunal squarely considered, and for the reasons that it gave, did not accept, the applicant’s explanations as to her lack of knowledge about her daughter’s studies ([70] at CB 121), and her daughter’s lack of any knowledge about her father’s activities ([68] at CB 121). In relation to the applicant’s claim that she could not say through the interpreter that her daughter was studying “business”, the evidence given by the daughter was not credible ([70] at CB 121).

    4.The Tribunal squarely rejected, amongst other things, that she did not know how to say in English what her daughter was studying ([69] at CB 121).

12. This complaint does not succeed in showing any error on the part of the Tribunal. 

13. The applicant also complained that another explanation for the inconsistencies in her evidence was her memory loss, nervous disposition, psychological pressure, difficulties and her “bad mood” as a result of the suffering arising from her accident in March 2005.

14. I understood the applicant to complain that the Tribunal did not take this into account.

15. This complaint must be rejected. The Tribunal plainly considered this explanation given by the applicant for her inconsistent evidence. It rejected it for the cogent reasons that it gave in its analysis generally and, in particular, in its specific relevant conclusion at [73] (CB 122). This complaint is not made out.

16. As to the remainder of the applicant’s submissions before the Court, they did not rise above a request for impermissible merits review.

Conclusion

1. For the applicant to succeed, the Court would need to discern jurisdictional error (at least) in the Tribunal’s decision. As no such error is revealed, the application will be dismissed.

I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  C Darcy

Date:  9 April 2010