SZNYY v Minister for Immigration - [2010] FMCA 318

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNYY v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 318

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in China – Tribunal decision turned on credibility – whether Tribunal correctly applied s.91R(3) – Whether the Tribunal’s decision is illogical, irrational or so unreasonable no reasonable person would accept it – Whether there was apprehended bias – no reviewable error found.

Migration Act 1958 (Cth), ss.91R(3), 91R(3)(b), 424AA

Minister for Immigration v Eshetu (1999) 197 CLR 611; [1999] HCA 21
Minister for Immigration v SZJGV (2009) 238 CLR 642; [2009] HCA 40
Minister for Immigration, Re; Ex parte Applicant S20/2002 (2003) 198 ALR 59; [2003] HCA 30
Minister for Immigration, Re; Ex parte Durairajasingham [2000] 168 ALR 407; [2000] HCA 1
NAHI v Minister for Immigration [2004] FCAFC 10
Refugee Review Tribunal, Re; Ex Parte H (2001) 179 ALR 425; [2001] HCA 28
SCAA v Minister for Immigration [2002] FCA 668
SZLGP & Anor v Minister for Immigration & Anor [2008] FCA 1198

Applicant:

SZNYY

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2486 of 2009

Judgment of:

Pascoe CFM

Hearing date:

6 May 2010

Date of Last Submission:

6 May 2010

Delivered at:

Sydney

Delivered on:

14 May 2010

REPRESENTATION

Solicitor Advocate for the Applicant:

Mr Turner

Solicitors for the Applicant:

Turner Coulson Immigration Lawyers

Counsel for the Respondents:

Ms Mitchelmore

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2486 of 2009

SZNYY

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

This is an application to review a decision of the Refugee Review Tribunal (‘the Tribunal’). The decision was made on 16 September 2009. The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a protection visa.
The Applicant is a national of the People’s Republic of China. She claims to have well-founded fear of persecution on the ground of religion (and implicitly, imputed political opinion) as a member of an illegal Christian group in China known as the ‘Shouters’ or the Local Church. She claimed that they were considered ‘anti-government’.
The Applicant claimed that she was from Fujian Province. She claimed that in June 2007 she commenced work in customer relations in a shop for a textile printing factory owned by Ms Wu in Lichuan in Jiangxi Province. She indicated that the textile factory was located in a village on the outskirts of Lichuan whilst the shop was located in the city.
The Applicant claimed to have resided at the rear of the shop with, amongst other people, another employee named Ms Xue who was an active member of the Local Church. In August 2007 the Applicant, through Ms Xue, commenced attending secret home gatherings of the church organised by another member, Mr Chen. The Applicant continued to attend gatherings and on 15 October 2007 she was baptised.
In January 2008 the Applicant travelled home to Fujian for a holiday where she was introduced to Mr He, a key member of the Local Church in her hometown.
On her return to Lichuan on 22 February 2008 she discovered that Mr Chen and Ms Xue had been arrested by the Public Security Bureau (‘PSB’) for organising illegal religious gatherings. The Applicant was arrested on 23 February 2008 on suspicions of involvement in illegal religious gatherings and transporting the “Recovery version Bible” which was only used in the Local Church. She claimed to have been interrogated and beaten.
The Applicant was released from detention on 31 March 2008. She later discovered that Mr Chen and Ms Xue had been sent to labour camps.
The Applicant claimed to have been deeply moved by Mr Chen and Ms Xue and resolved to re-establish the Local Church in Lichuan. She sought the assistance of Mr He who sent Mr Yu to Lichuan and the Applicant and Mr Yu quickly re-established the group. She claimed that the Church consisted of over 30 members and that they began to evangelise and distribute pamphlets and leaflets in the villages in or around the Lichuan area.
On 11 July 2008 Mr Yu and two other members were arrested and they confessed to the Applicant’s role. The Applicant went into hiding. On 21 July 2008 she left China on a passport with a fraudulent identity because her name had been ‘blacklisted’.
She arrived in Australia on 23 July 2008. The Applicant claimed to have been attending religious services of the Local Church in Sydney.
The Applicant filed an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship (‘the Department’) on 15 August 2008.
The Applicant provided to the Department an identity card in her name, a translated document titled “Certificate of Detention” to support her claim of being arrested by the Public Security Bureau, a photograph of the Applicant claiming to be with other Local Church participants and a reference from the Local Church in Sydney dated 25 January 2009 in support of her attendance and participation in church activities in Australia. She also attended an interview before the delegate on 29 September 2008.
A delegate of the First Respondent refused the application on 31 October 2008.
On 1 December 2008 the Applicant applied for a review of the delegate’s decision before the Tribunal.

The Tribunal's decision

The Tribunal held two hearings in relation to the Applicant’s application. The first hearing was held on 28 January 2009 (the ‘first hearing’) and the second was scheduled for 16 April 2009 (the ‘second hearing’) after the Applicant raised (in a statutory declaration) concerns about the adequacy of the interpretation of religious terms at the first hearing. The Applicant attended both hearings unaccompanied by her migration agent and gave evidence through an interpreter in the Mandarin and English languages. On 1 May 2009 the Tribunal received a second statutory declaration from the Applicant in response to some of the Tribunal’s concerns raised at hearing. It also raised concerns regarding the adequacy of interpretation with respect to religious terms.
The Tribunal accepted the Applicant’s identity card authenticated by the Department’s Document Examination section and accepted she was a citizen of the People’s Republic of China. The Tribunal noted she claimed to fear persecution because of her membership of the Local Church or “Shouters”.
The Tribunal referred to the Applicant’s submissions regarding the inadequacy of translation at hearing regarding religious terms. It then stated it would give the Applicant the benefit of the doubt and not take into account any adverse evidence in relation to the Applicant’s evidence regarding religious knowledge and practice, and differences between the Local Church and the government church.
In any event, the Tribunal accepted the Applicant was able to provide an understanding and knowledge of the beliefs and practices of the Local Church.
The Tribunal accepted the Applicant attended the Local Church in Australia but for reasons later set out, it was not satisfied she engaged in this conduct in Australia other than for the purpose of strengthening her refugee claims. It then stated that:
Knowledge does not necessarily establish belief and for the reasons set out below, including internal inconsistencies, and implausibility in her evidence, the Tribunal finds that the applicant is not a genuine Local Church member.
The Tribunal’s decision on the Applicant’s activities in China was based on two major findings: the Applicant’s lack of knowledge of the Lichuan area and the inconsistencies in her evidence about the re-establishment of the church after the arrest of Mr Chen and Ms Xue.
The Tribunal noted the Applicant lived and worked in Lichuan for a year, that she attended gatherings three times a week, distributed promotional materials to villages and organised members to do the same. The Tribunal found that despite her involvement, the Applicant was unable to name various landmarks in the region, the surrounding counties nor the village in which the textile factory was located. It stated, “She confirmed that she did not know much about the place”.
In particular the Tribunal looked at the claim that the Applicant organised the distribution of pamphlets and attended at least ten villages. However, she gave limited and inconsistent evidence as to the names of the villages and her role in relation to pamphlet distribution.
The Tribunal also considered the Applicant’s reasons as to why she lacked knowledge of the area (such as the fact she never went anywhere far away and the other members transported her to and from gatherings) but did not accept her answers as plausible, finding her answers contradictory and inconsistent.
The Tribunal found her lack of knowledge significant in light of her specific claims and expected her to “have some knowledge of the area and its surrounds, rather than knowing nearly nothing of it”.
The Tribunal considered the fact that the Applicant referred to both Lichuan and Linchuan in her application to the delegate. The Tribunal noted that Linchuan is the prefecture level city with jurisdiction over Lichuan county and recorded that the Applicant clarified she lived in Lichuan. The Tribunal stated it would not take into account any adverse information provided by the Applicant on specific references to Linchuan at the first hearing.
The Tribunal also found her evidence with respect to the gatherings after the arrest of Mr Chen and Ms Xue was inconsistent, especially as to whether church gatherings were continued by other older members after those arrests.
The Tribunal found the Applicant was not a witness of truth, that she had not lived and worked in the Lichuan area and was not involved in the Local Church in Lichuan (or Linchuan). It did not accept her claims as to her activities in China.
With respect to the Applicant’s Certificate of Detention, the Tribunal had regard to independent country information from the Department of Foreign Affairs (DFAT) which stated that irregular or improper issue of documentation is widespread in China. Based on the country information and its findings that she was not a witness of truth (due to her lack of knowledge of the Lichuan area), the Tribunal placed no weight on her corroborating document.
Although the Tribunal accepted the Applicant attended the Local Church in Australia, based on its findings that she was not a member of the Local Church in China, the Tribunal was not satisfied she engaged in this conduct in Australia other than for the purpose of strengthening her claims. The Tribunal accordingly disregarded her conduct in accordance with s.91R(3) of the Migration Act 1958 (Cth) (‘the Act’).
The Tribunal was not satisfied on the evidence that the Applicant had well-founded fear of persecution and affirmed the decision not to grant a protection visa.

Grounds and contention

On 15 October 2009 the Applicant commenced proceedings in this Court seeking review of the Tribunal’s decision.
An amended application was filed on 1 February 2010 setting out the following grounds and particulars:
Grounds of application
1. The Tribunal failed to comply with its obligation under s. 424A(1) of the Act
2. The Tribunal failed to consider my claims properly and fairly.
3. The Tribunal’s decision has included a reasonable apprehension of bias.
Particulars
a. The Tribunal, on a fair reading of its decision, closed its mind after the first hearing and did not bring an open mind to the second hearing.
b. Continued to rely on evidence which it knew was unreliably interpreted.
c. Relied upon country information (para 145) which was out of date
On 27 April 2010 the Applicant’s solicitors forwarded to the Court a Further Amended Application and indicated leave would be sought to file that document in Court. The Further Amended Application asserted that the Tribunal’s decision was vitiated by the following jurisdictional errors:
1. The Tribunal incorrectly applied the substantive law
Particulars
(a) The Tribunal applied the Migration Act 1958 s.91R(3) in such a way that it was impossible for the Applicant to comply with it.
2. The Tribunal’s decision was infected by apprehended bias.
a. The Tribunal, on a fair reading of its decision, closed its mind after the first hearing and did not bring an open mind to the second hearing.
b. Relied upon country information (para 145) which was out of date) [sic]
I heard the application on 6 May 2010 and granted leave for the Applicant to file the Further Amended Application.
The Applicant filed on 22 April 2010 written submissions addressing the grounds of bias and irrationality, illogicality and/or unreasonableness. The submissions go to the following findings of the Tribunal:
a)The Tribunal required the Applicant to have some general knowledge of the Lichuan area because she claimed to have lived and worked there for a year. She indicated there were plausible reasons why she did not have the knowledge of the region as expected by the Tribunal.
b)That the Applicant engaged in Local Church activities in Australia to strengthen her claims; and
c)That the Applicant’s corroborating document was fraudulent based on general country information.
On 28 April 2010 the Applicant through her solicitor filed Supplementary Submissions addressing the grounds raised in the Further Amended Application.
The submissions assert the Tribunal incorrectly applied s.91R(3) of the Act:
By finding that the conduct came within s.91R(3) of the Act simply because the Applicant did not practise the religion in China, the Tribunal has effectively found that no conduct engaged in Australia could possibly be taken into account unless identical conduct was undertaken by an applicant in their own country.
With respect to the ground of apprehended bias, written submissions indicate that this argument went to the Tribunal’s treatment of evidence relating to the Applicant’s conduct in Australia which therefore indicated a closed mind. In particular, the Tribunal did not turn its mind to the Applicant’s practice of Christianity. The submissions ask “what more could an applicant produce” in support of a claim of genuine practice.
The written submissions also challenge the Tribunal’s use of the country information to reject the Applicant’s corroborating document regarding her detention.
Finally, the written submissions raise a ground of apprehended bias on the basis that the Tribunal’s decision is irrational, illogical and so unreasonable that no reasonable person would accept it.
The Respondent’s Counsel submitted written submissions which addressed the grounds raised in the Further Amended Application and contended there was no jurisdictional error in the decision of the Tribunal and sought for the application to be dismissed with costs.
Both legal representatives appeared at hearing before me and provided oral submissions. The Applicant’s solicitor tendered into evidence the Court Book containing the Tribunal’s decision and a document titled “Country Information Report No. 301/00” which was relied upon by the Tribunal at [145] of its decision.

Reasoning

Section 91R(3) of the Act states:
For the purposes of the application of this Act and the regulations to a particular person:
(a) in determining whether the person has a well‑founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;
disregard any conduct engaged in by the person in Australia unless:
(b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.
It was submitted on behalf of the Applicant that the Tribunal had applied the wrong test by requiring applicants to have engaged in identical conduct in the country in which they claimed to have well-founded fear of persecution. At hearing, the solicitor for the Applicant referred to the fact that the Tribunal had accepted the Applicant had knowledge of the beliefs and practices of the Local Church and that she attended in Sydney. He submitted there was sufficient information before the Tribunal to find the Applicant had engaged in genuine practice as a member of the Local Church in Sydney.
Counsel for the Respondents referred to the High Court decision in Minister for Immigration and Citizenship v SZJGV (2009) 238 CLR 642; [2009] HCA 40 and submitted that the observations of French CJ and Bell J indicated the language of the section was one of command. It was for the Applicant to satisfy the Tribunal that she had engaged in the conduct in Australia for a purpose other than strengthening her protection visa application. The Tribunal had read s.91R(3) to the Applicant and explained its effect to her. The Applicant had an opportunity to comment and reiterated her claim of being a Christian and that she did not engage in the church activities to strengthen her case. The Tribunal in this case was not satisfied [of s91R(3)(b)] and it was open to the Tribunal, absent further evidence to the contrary, to disregard her Local Church involvement in Australia.
I accept Counsel for the Respondent’s submissions and find that it was open to the Tribunal to lack satisfaction with regards to the purpose of the Applicant’s conduct in Australia based on its general adverse credibility finding that the Applicant was not a witness of truth and that no other evidence (besides her claims linked to her activities in China) was provided to persuade the Tribunal as to her purpose in attending the Local Church in Sydney. In circumstances where the Tribunal found the Applicant was not a witness of truth and did not accept her claims as to her activities in China, the fact the Applicant had knowledge of the beliefs and practices and attended the Local Church in Sydney was not sufficient to satisfy the Tribunal that this conduct was for a reason other than to strengthen her claims for protection.
With respect to the Applicant’s concern that the Tribunal’s findings meant “the Tribunal has effectively found that no conduct engaged in Australia could possibly be taken into account unless identical conduct was undertaken by an applicant in their own country”, this does not express jurisdictional error. The Applicant’s written submissions assert that it was impossible for her to comply with s.91R(3) and therefore the Tribunal incorrectly applied the law.
Counsel for the Respondent submitted that the Tribunal was aware of the correct test to be applied and referred to paras [153] and [132] of the Tribunal’s decision where the Tribunal indicated it was not satisfied the Applicant was motivated to engage in the conduct in Australia other than for the purpose of strengthening her refugee claims.
The intention of s.91R(3) is that applicants for protection visas should not be able to make their case for refugee status stronger by evidence of conduct which they have engaged in for that purpose, since their arrival in Australia: Minister for Immigration and Citizenship & SZJGV & Anor (above) per Crennan & Kiefel JJ at 657 [27]. In this case the Tribunal considered her evidence regarding her activities in China and made a strong credibility finding against the Applicant. Without further evidence it was open to the Tribunal to disregard her conduct. It was for the Applicant to provide further evidence in support of her conduct in Australia.

In relation to the ground of apprehended bias Counsel for the Respondents referred to the decision of Re Refugee Review Tribunal; Ex Parte H (2001) 179 ALR 425; [2001] HCA 28 at 434-435 [27]-[28]:
The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided. That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of "a fair-minded lay observer" when, as is the case with the Tribunal, proceedings are held in private.
Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is 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. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof.
(footnotes removed)
In relation to the Applicant relying solely on the Tribunal’s decision record to support the ground of apprehended bias, Counsel for the Respondents refer to the comments of von Doussa J in SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38] (although that matter referred to actual bias):
In my opinion it will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision. Reasons for decision reflect conclusions reached at the end of the decision making process, and if the decision is against the party complaining, the expression of adverse findings on credit and fact are an inevitable part of the expression of the reasons. The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision. Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed, that without more is unlikely to demonstrate that the decision maker had embarked on the case with a closed mind, not open to persuasion.
The Tribunal invited the Applicant to a hearing and rescheduled a second hearing in light of the Applicant’s concerns regarding interpretation issues with respect to religious terms. It did not make any adverse findings against the Applicant in relation to those issues.
The Tribunal was concerned to make sure that it had correctly understood the evidence of the Applicant and at the second hearing sought clarification on whether in her protection visa she referred to living in ‘Lichuan’ or ‘Linchuan’.
The Tribunal noted that it raised with the Applicant the issues of concern to it in relation to her evidence and complied with s.424AA by putting to her at hearing information which may be the reason or form part of the reason for decision and explaining to her the consequences of it relying on such information. In particular, the Tribunal put to the Applicant in oral evidence, information she had given at the Departmental interview. She was given the opportunity to respond both at hearing and also provided to the Tribunal two statutory declarations, to which the Tribunal gave due consideration.
At all stages the Tribunal had put to the Applicant the issues of importance to it, was open to receiving information from the Applicant and the record for decision indicates that it had considered the evidence she provided. In considering the Tribunal’s decision, it set out its reasons for decision and articulated clearly the evidence that supported its decision. I am therefore not of the view that there is any apprehended bias or actual bias demonstrated by the Tribunal.
The Applicant submits there is a link between the Tribunal’s consideration of s.91R(3) and the ground of apprehended bias. Her solicitor submitted that the Tribunal’s finding that “knowledge does not necessarily establish belief” is an artificial prescription of otherwise convincing evidence. It was submitted that the Tribunal applying an artificial test indicates lack of an ‘open mind’. The question was put on behalf of the Applicant, “What more could she [the Applicant] have done?”
The Tribunal’s finding on the Applicant’s conduct in Australia must be seen in context of its finding that she had not attended the Local Church as claimed in China. The Tribunal’s use of the phrase ‘not necessarily’ indicates that in some cases knowledge can establish genuine belief, but not in all cases. I do not see how the Tribunal’s reasons here demonstrate any apprehended bias.
I am not of the view that a consideration of what the Applicant could further have done to convince the Tribunal of her claims in the circumstances of this case would assist the Applicant in establishing any jurisdictional error. In the circumstances of this case the Tribunal’s consideration of the Applicant’s conduct in Australia and its consideration of it in terms of s.91R(3) was open to it on the evidence.
I find that there is no error in the Tribunal’s consideration of the Applicant’s conduct in Australia nor did it demonstrate apprehended bias.
The Applicant seeks to demonstrate that there was unreasonableness in the Tribunal’s decision which could amount to an apprehension of bias. Counsel for the Respondents referred to the comments of Gleeson CJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59; [2003] HCA 30 at 61 [5] referring to Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at 626 [40] where: “to describe reasoning as illogical, or unreasonable, or irrational, may merely be an emphatic way of expressing disagreement with it”. The Respondent submitted that any disagreement with the factual findings sought merits review and did not establish illogicality or unreasonableness.
One part of the Tribunal’s decision is based on the incongruity between the Applicant’s lack of knowledge of the region and her claims of being actively involved in the Local Church in her region. It found the Applicant knew “nearly nothing” of the region but expected her to have “some knowledge of the area” because of her claims that she had:
a)Lived and worked in Lichuan for a year;
b)Organised the distribution of, and had distributed, Local Church pamphlets in the area on occasions, and
c)Attended Local Church gatherings at least three times per week.
I accept it is not unreasonable or illogical for the Tribunal to expect the Applicant to have ‘some knowledge’ of the region in light of these claims. The Tribunal cited the need for her to have knowledge of the region in the context of the Applicant’s claimed circumstances in China. In particular, she claimed that she was active in the Local Church and organised pamphlet distribution and moreover visited at least ten villages to hand out pamphlets. The Tribunal clearly stated that it found her paucity of knowledge was significant in light of her claims.
I do have some concern about the evidence the Tribunal relied upon to find the Applicant knew ‘nearly nothing’. The Tribunal relied on the fact:
[T]he applicant was unable to name the village close by where the textile factory was situation, despite selling products manufactured there. She further did not know the main city close by, the names of any counties close by, the name of the mountains close by, or whether where she lives is famously known by any other name.
The Tribunal had also recorded in its decision, but not under the heading findings and reasons, that it had discussed with the Applicant other facets of the region, such as the postcode and dialing code and that she did not correctly provide this information.
At para [29] of the Tribunal’s record of decision the Tribunal had asked the Applicant whether she could tell the Tribunal anything about the area in which she had lived. The Tribunal recorded that “she said it is noted for its ceramics and famous mushrooms and fungus”. It can be inferred from this that the Applicant does appear to be aware that Lichuan is famous for porcelain, although the questioning at the time related to Linchuan.
I note also that the Applicant had only distributed pamphlets since the res-establishment of the Church and therefore was involved in such activity for at most only 3 months.
Although submissions were not made on this point, I have considered whether the evidence on which the Tribunal based its adverse credibility finding is rational or logical. In SZLGP & Anor v Minister for Immigration and Citizenship & Anor [2008] FCA 1198 Gordon J found that the Tribunal’s reasoning was illogical or there were irrational findings or inferences of fact where (at [26]):
[T]he inconsistencies (or rather, omissions) in the first appellant’s evidence adverted to by the Tribunal are at most minor or trivial. Further, the Tribunal’s reasons disclose no legitimate articulable basis for the finding, based on those omissions, that the first appellant fabricated fundamental aspects of his refugee claims. Instead, the Tribunal, even while acknowledging that it is not to be expected that an applicant will include every detail in the initial application, concludes without reasons that these are details that should have been provided, finds that they are details so weighty or important as to go to fundamental aspects of the claims, makes an adverse credibility finding, and infers that the claims were fabricated.
It is arguable whether knowing the “name of the mountains close by” or knowing whether the area is “famously known by any other name” is of minor significance in deciding whether a person has lived and worked in a region and had engaged in the activities claimed by the Applicant. However, in this case the Applicant confirmed she knew very little about the Lichuan area and even gave reasons for her lack of knowledge of the region. The Applicant’s confirmation that she “did not know much about the place” is not minor or trivial. The questions the Tribunal had asked in relation to establishing general knowledge of the region is, in these circumstances, supportive of its findings.
Additionally, the Tribunal relied on other evidence as to the Applicant’s lack of knowledge of the region, which is directly related to her claims. With respect to the distribution of pamphlets, the Tribunal found of her evidence (at para [137]):
Further despite giving evidence at hearing that she handed out pamphlets to many villagers at many different villages and claiming in her statement that she organized the distribution of Local Church promotional material, she could only name two villages, Chu Chang and Tadou at the first hearing. In contrast at the second hearing, approximately three months later, she indicated at first she did not know the name of the villages where she delivered pamphlets to and then said one may be Chayao”.
With respect to her working in the region, the Tribunal found at para [141]:
Further the Tribunal views as significant that she did not know where the textile factory was situated, despite claiming it was located in the Lichuan area, even though she was working in customer relations talking about products produced by that factory.
I am of the view that the Tribunal had relevant evidence to enable it to make the finding that she did not know much about the region and that it was not unreasonable or illogical for the Tribunal to expect her to have more knowledge of the region than she expressed, in light of her claims.
Beyond the issue as to the Applicant’s lack of knowledge of Lichuan, the Tribunal’s decision was also based on internal inconsistencies in the Applicant’s evidence. A review of the Tribunal’s consideration of the inconsistencies reveals no unreasonableness or illogicality.
Based on its findings the Tribunal made an adverse credibility finding against the Applicant which I find was open to it on the evidence. Credibility is a matter for the Tribunal: Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] 168 ALR 407; [2000] HCA 1.
The solicitor for the Applicant referred to the independent country information relied upon by the Tribunal. At hearing, he challenged the probity and relevance of the country information on the basis of it being outdated – it was almost 10 years old at the time of the Tribunal’s decision – and its actual subject matter. He submitted that the country information related to summons documents whereas the Applicant’s document was a certificate of detention. The country information only ‘loosely’ applied to the document because the Tribunal did not rely on the specific findings as to summonses but rather to DFAT’s general comment that:
As a general comment on the value of Chinese official documents, this embassy’s experience has shown that any official document can be either bought or forged in China. Irregular or improper issue of documentation is widespread. Thus, we would suggest that little evidentiary weight can be placed on any official Chinese document, including summonses.
Counsel for the Respondents refer to the decision of NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]-[13] as authority for the proposition that the selection of independent country information is a factual matter for the Tribunal. I note in particular the Full Court of the Federal Court stated at [11] that:
The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.
The assessment of the country information, including its ‘accuracy’ is properly one for the Tribunal. The weight to be placed on the corroborating document is also a matter for the Tribunal. There is no evidence to indicate that the Tribunal should not have relied upon this information.
Additionally, the Tribunal had put to the Applicant that independent country information indicated that many documents in China are forged and that this may lead the Tribunal to place no weight on the document she produced. Although there is no evidence the Applicant was aware of the date of the country information, she was aware of the Tribunal’s concerns at hearing and had the opportunity to put further information to the Tribunal as to the issue of fraudulent documents.
I find there is no error on the part of the Tribunal relying on the independent country information in this context.
With respect to the Tribunal’s rejection of the documentary evidence, In Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (above) Gleeson CJ stated (at 63 [12]):
It is not necessarily irrational, or illogical, for a finder of fact, who is convinced that a principal witness is fabricating a story, which is considered to be inherently implausible, to reject corroborative evidence, even though there is no separate or independent ground for its rejection, apart from the reasons given for disbelieving the principal witness
In the same matter, McHugh and Gummow JJ stated (at 70 [49]):
In a dispute adjudicated by adversarial procedures, it is not unknown for a party’s credibility to have been so weakened in cross examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption.
In this case the Tribunal found the Applicant was not a witness of truth and did not accept her claims as to living and working in Lichuan or that she had been involved in the Local Church in China. As I have previously noted, the Tribunal made a very strong credibility finding against the Applicant. In any event, the Tribunal did not rely solely on an adverse credibility finding but rejected her evidence in conjunction with the independent country information.
I am unable to ascertain any illogicality, unreasonableness, or irrationality in the Tribunal’s decision as a whole.
I find that the grounds raised by the Applicant do not establish any jurisdictional error in the decision of the Tribunal.

Conclusion

The Tribunal’s decision is not affected by jurisdictional error. Accordingly, it is therefore a privative clause decision and the application before this Court is dismissed.
I will hear the parties as to costs.

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

Date: 14 May 2010