SZNZJ v Minister for Immigration - [2009] FMCA 1290

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNZJ v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 1290

MIGRATION – Review of decision of Refugee Review Tribunal – a failure to comply with s.420 not jurisdictional error – findings open to Tribunal on what was before it – applicant seeking impermissible merits review – Tribunal complied with s.424A – Tribunal put dispositive issue to applicant pursuant to s.425 – weight attributed to country information a matter for the Tribunal – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.420, 422B, 424A, 424AA, 476

Minister for Immigration and Multicultural and Affairs v Eshetu [1999] HCA 21; 197 CLR 611
SZBPQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 568
Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (Unreported, Federal Court of Australia, 6 May 1997), [1997] 324 FCA; (1997) 81 FCR 71
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
SZLUN v Minister for Immigration & Anor [2009] FMCA 1013
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
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
SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46
SZMMP v Minister for Immigration and Citizenship [2009] FCA 233
Randhawa v the Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265
Abebe v The Commonwealth (1999) 197 CLR 510; [1999] HCA 14
SZJHR v Minister for Immigration and Citizenship [2007] FCA 1901
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609
VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471
Iyer v Minister for Immigration & Multicultural Affairs (2001) 192 ALR 71
NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10
Applicant NABD of 2002 v Minister for Immigration & Multicultural Affairs [2005] HCA 29; (2005) 216 ALR 1
NBKT v Minister for Immigration & Multicultural Affairs [2006] FCAFC 195; (2006) 156 FCR 419

Applicant:

SZNZJ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2546 of 2009

Judgment of:

Nicholls FM

Hearing date:

17 December 2009

Date of Last Submission:

17 December 2009

Delivered at:

Sydney

Delivered on:

23 December 2009

REPRESENTATION

Appearing for the Applicant:

In person

Solicitors for the Applicant:

Appearing for the Respondents:

Ms E Baggett

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

The application made on 21 October 2009 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5,300.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2546 of 2009

SZNZJ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made on 21 October 2009 under the Migration Act 1958 (Cth) (“the Act”) to review the decision of the Refugee Review Tribunal (“the Tribunal”) made on 22 September 2009, which affirmed the decision of the delegate of the respondent Minister to refuse a protection visa to the applicant.

Background

The applicant is a national of the People’s Republic of China (“China”), who arrived in Australia on 20 January 2009, using a passport which was not in her real name. She applied for a protection visa on 2 April 2009 (Court Book – “CB”, CB 1 to CB 29). The applicant was assisted by a migration agent in the making of this application (Priscilla Yu of Priscilla International Co. – CB 26 to CB 27).

Claims to Protection

The applicant’s claims were that she feared persecutory harm if she were to return to China on the ground of political opinion, on the basis that she would be perceived by the authorities to be, and was regarded as, an organiser of anti-government activity.
The circumstances giving rise to this were said to be as follows. Due to her family’s financial difficulties, she sought employment as a nanny and found such employment at the home of a senior police officer with the Public Security Bureau, who required such services while his wife was absent in her work with the media.
The applicant claimed that she was sexually assaulted by her employer. She complained to police. While they initially promised to assist her, this changed when she was accused of seducing her employer in order to obtain money to solve her family’s financial hardship.
She claimed to have been detained, interrogated, and mistreated. Upon release, she discovered that she had been dismissed from her vocational school. As a result, she and another woman organised a protest, or a “sit-in”, against the corrupt officials. The protest took place on 12 December 2008. The police attended, suppressed the demonstration, and made some arrests. The applicant was able to escape, and she went into hiding with a friend while the police went to her home town looking for her with arrest permits and search warrants. She claimed to have finally escaped overseas with the help of the boyfriend of the friend who had hidden her.

The Delegate

The delegate understood that the applicant’s claims were to fear persecution, owing to her imputed political opinion (CB 65). But for the reasons given, the delegate found that the applicant was not a credible witness, and that she had fabricated both the claims of sexual assault and the subsequent protest demonstration. The delegate therefore rejected the basis of the applicant’s claim to fear harm, that is, her factual account of what she said had occurred in China, and found that she did not have a well founded fear of persecution if she were to return to China. The delegate therefore refused to grant the protection visa (CB 67).

The Tribunal

The applicant applied for review by the Tribunal on 22 June 2009 (CB 69 to CB 73). She was again assisted by the same migration agent (CB 69 and CB 71).
She was invited to, and ultimately attended, a hearing before the Tribunal on 5 August 2009 (CB 83). A Mr Harry Huang, who was described as her representative, was also present (CB 83). The hearing resumed on 21 August 2009 (CB 100). The Tribunal’s account of what occurred at the hearing is reproduced in its decision record ([36] at CB 121 to [87] at CB 131).
The applicant also provided two documents in support of her application at the hearing – a “Certificate of Being Released from Detention”, and a “Summons” from the Fuzhou Municipality Public Security Bureau (CB 87 to CB 90).
Following the Tribunal’s hearing, the applicant also provided a statutory declaration (CB 106 to CB 109) which addressed matters raised by the Tribunal during the course of the hearing over the two occasions.
The Tribunal found that the applicant was not telling the truth in the factual account of what she said had occurred in China, including her account of her working as a nanny, being assaulted, participating in the protest, and escaping from China without paying any money ([98] at CB 133).
The Tribunal set out a number of reasons for coming to this conclusion ([98] at CB 133 to [107] at CB 135). In essence, the Tribunal had regard to inconsistencies between the applicant’s oral and written statements to the Minister’s Department, and the oral and written evidence provided to the Tribunal, and to the unsatisfactory explanations provided by the applicant for these inconsistencies. The Tribunal also did not believe that the applicant was assisted by her friend’s boyfriend to leave China in the circumstances put forward by her ([106] to [107]).
Further, the Tribunal found that, given its adverse finding as to the applicant’s credit, and given independent advice from the Australian Department of Foreign Affairs and Trade as to the ready availability of forged, or fraudulent, documents available in China, that: “… little evidentiary weight could be placed on any official Chinese document …” ([108], and see [109]). It therefore gave greater weight to its finding as to her not being a witness of truth, than it gave to these documents.
In all, the Tribunal rejected the applicant’s factual account of what she said had occurred in China, and concluded that she did not have a well founded fear of Convention related persecution if she were to return to China. On this basis, the Tribunal affirmed the delegate’s decision.

Application to the Court

The applicant has put three grounds, with particulars, before the Court. The grounds are:
“1. I have never ever believed that the Tribunal has acted according to substantial justice and the merits of the case (s.420 of the Act) while the Tribunal decided my review application for a Protection Visa.”
[Particulars follow. Although for the most part, they appear to be in the nature of submissions.]
“2. The Tribunal has misstated my evidences or the Tribunal has made its finding based on incorrect information. Again, I have never ever believed that the Tribunal has acted according to substantial justice and the merits of the case (s.420 of the Act) while the Tribunal decided my review application for a Protection Visa.”
[Particulars follow.]
“3. The Tribunal failed to take any genuine attempt to consider the documentary evidence which I have submitted to it. So, once more, I have never ever believed that the Tribunal has acted according to substantial justice and the merits of the case (s.420 of the Act) while the Tribunal decided my review application for a Protection Visa.”
[Particulars follow.]

Hearing before the Court

At the hearing before the Court the applicant appeared in person. She was assisted by an interpreter in the Mandarin language. Ms E Baggett appeared for the first respondent. I note also that written submissions have been filed on behalf of the first respondent.
The applicant confirmed that she had received the assistance of a “friend”, who was not a lawyer, in the preparation and drafting of her application to the Court. She stated, however, that she did not want to reveal the name of this friend. She also confirmed that she had received advice from a lawyer on the panel the Court’s “RRT Legal Advice Scheme”.

The Applicant’s Complaints

The applicant submitted to the Court that the Tribunal’s decision was “unfair”, and that according to s.420 of the Act, the Tribunal should have made its decision based on the facts. The applicant took issue with the Tribunal’s adverse finding as to her credibility, based on what were said to be inconsistencies in her evidence.
She particularly complained about the Tribunal’s failure to believe that she worked as a nanny, based on the Tribunal’s finding that she gave inconsistent evidence as to how much money she had been paid. She claimed that she had raised this “problem”, rather than the Tribunal having found it, and, therefore, on this basis, the Tribunal should have found that she was “a credible person”. I understood this to be an assertion that she had brought the Tribunal’s attention to the fact that what she had previously claimed to be the amount of her salary was incorrect.
The applicant similarly took issue with the Tribunal’s findings relating to her failure to consult a doctor after the claimed assault, submitting that the Tribunal should have taken into account that the assault would have been seen as a “disgrace” by people in her village for a person of her background and circumstances. That this accounted for her failure to consult a doctor.
The applicant also took issue with the Tribunal’s reliance on inconsistencies between what she claimed before the delegate, and what she told the Tribunal. The applicant submitted that the reason that the Tribunal provides an applicant with the opportunity of a hearing is so that that an applicant can provide further evidence and detail in support of their claims. It is therefore unfair for the Tribunal to rely on inconsistencies that may subsequently arise in her evidence. She saw this as a distortion of her evidence, and a breach of s.420, to the extent that it was not “fair and just”.
The applicant also took issue with the Tribunal’s finding in relation to the assistance provided to her by her friend, and her friend’s boyfriend, in leaving China. She claimed that it was a “distortion” by the Tribunal to consider that her friend’s assistance was given on the basis of money, and not out of friendship.
The applicant also complained that the Tribunal refused to accept what she had written in response to the concerns that were raised with her at the hearing, and that the Tribunal’s conclusions were based on “subjective assumptions”.
Finally, the applicant also complained about the Tribunal’s approach in dealing with her documents. She submitted that the Tribunal relied on country information about the availability of false documents, and that it cannot be the case that every document in China is false. Therefore, it should not have made that assumption in her case.

Consideration

Section 420

All of the applicant’s grounds assert a breach of s.420. This section is in the following terms:
“Refugee Review Tribunal’s way of operating
(1) The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
(2) The Tribunal, in reviewing a decision:
(a) is not bound by technicalities, legal forms or rules of evidence; and
must act according to substantial justice and the merits of the case.”
I note that this section is contained in Division 3 of Part 7 of the Act, a Division concerned with setting out the exercise of the Tribunal’s powers.
To the extent that the applicant, or her friend, who drafted the application on her behalf, relies on alleged breaches of s.420 to argue jurisdictional error on the part of the Tribunal, that assertion must fail. As the Minister, submits any failure to comply with s.420 is not, of itself, considered to be jurisdictional error.
The operation and effect of s.420 of the Act was considered by the High Court in Minister for Immigration and Multicultural and Affairs v Eshetu [1999] HCA 21; 197 CLR 611 (“Eshetu”)
In Eshetu the High Court was concerned with the relationship between s.420(1) and s.476 of the Act, as it then was, and in particular, whether s.420 prescribed a procedure to be observed by the Tribunal in the making of its decision, such as to found a right of review in circumstances where the Tribunal was said to have breached that procedure.
For the purposes of the current case, the reasoning and conclusions of the High Court can equally be applied to the current version of s.476, which is concerned with the jurisdiction of this Court in relation to migration decisions.
In Eshetu the Court (per Gleeson CJ and McHugh J at [49], in particular, and also see [46] to [51]) found that provisions such as s.420:
“...are intended to be facultative, not restrictive. Their purpose is to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law, and regarded as inappropriate to tribunals …”
Gummow J (at [108] to [109]) agreed with the consideration by Lindgren J in Sun Zhan Qui v Minister for Immigration and Ethnic Affairs [1997] 324 FCA; (1997) 81 FCR 71 that:
“In particular, the direction in s 420(1) that the Tribunal pursue the objective of ‘providing a mechanism of review that is fair, just, economical, informal and quick’ did not amount to a requirement that the Tribunal observe a procedure in connection with the making of a particular decision for the purposes of par (a) of s 476(1).”
Further, Hayne J (at [158]) agreed with Gleeson CJ and McHugh J that:
“…s 420 of the Act does not create rights or a ground of review additional to those given in s 476.”
(Even further, see Callinan J at [179].)
I note also the Minister’s reference to SZBPQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 568 (at [15]) per Hely J where the Court considered:
“It is neither necessary nor appropriate to call in aid the provisions of s 420 of the Act in support of the appellant’s contention that the RRT was guilty of jurisdictional error in failing to treat the best interests of the child as a primary consideration. It is not appropriate to proceed in accordance with the appellant’s submission because s 420 of the Act is ‘facultative, not restrictive’ in its intent: Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at [49]. Compliance with its provisions is not a precondition to lawful decision-making.”

Ground One

In essence, ground one as pleaded (whether reliant on s.420 or not) takes issue with the Tribunal’s factual findings concerning inconsistencies in the applicant’s evidence, claims, and statements made both to the delegate and to the Tribunal. Before the Court the applicant explained that this was not “fair” for the Tribunal to have done so.
Whoever drafted the application on the applicant’s behalf appears to concede that it is open to the Tribunal to reject an applicant’s evidence on credibility grounds, but generally takes issue with the Tribunal having found inconsistencies, and argues that these should not have been fairly, or properly, regarded as matters going to the applicant’s credibility. The following specific examples seek to explain this complaint.
The applicant complains specifically about the Tribunal’s finding of an inconsistency in her evidence concerning her claim to have been employed as a nanny. The applicant explains that the inconsistency in her evidence, arising from the two accounts that she gave of her income as a nanny, was not an inconsistency, as she said, “discovered by the Tribunal itself”, but was “voluntarily” put to the Tribunal by the applicant herself at the beginning of the hearing.
The evidence before the Court reveals that at the interview before the delegate the applicant claimed that her salary as a nanny: “… had been almost 1,500 RMB a week …” (See [27] of the Tribunal’s decision record.)
The Tribunal’s subsequent account of what occurred at the hearing remains unchallenged before the Court by any evidence to the contrary brought by the applicant. (For example, there is no transcript of the hearing before the Court.) This account reveals that at the hearing, contrary to what appears to be the inference, at least, in the applicant’s pleading, the Tribunal itself first referred to the applicant’s evidence that she worked as a nanny. (See [38].)
Then (at [39]) the Tribunal reports: “I asked the applicant how much she had been paid for this work.” At this point the applicant:
“… said that she had been very nervous at the Departmental interview so she had made a mistake. She said that she had been paid 1,500 yuan a month or around 360 or 370 yuan a week. I put to the applicant that she had claimed at the Departmental interview that she had been paid 4,500 yuan for three weeks’ work. The applicant repeated she had been very nervous during the interview …”
The Tribunal’s account then refers to the applicant’s evidence in further explanation as to why she had provided that information in that way to the delegate:
“… She said that she had been counting and exchanging between those two currencies and she had kind of messed them up. She said that she had counted 300 per week and then she had been trying to convert it into Australian dollars in Chinese yuan. I asked the applicant why she would have been trying to convert the amount into Australian dollars, given that she had been talking about what she had been paid in yuan. The applicant said that after living here for half a year she had been very nervous so she had converted Australian dollars into Chinese yuan.”

The Tribunal specifically put this discrepancy in her evidence to her further at the hearing (at [58]). It told the applicant that this information was relevant to the review because it went to whether the Tribunal would accept that she had been working as a nanny at all.
This matter was also raised at the resumed hearing (see [69]), where the Tribunal squarely put to the applicant that it had difficulty with her explanation as to why she had given two separate amounts as her relevant salary.
Notwithstanding this, the applicant also pressed her explanation in her subsequent written response to the Tribunal. (See item 1 at CB 107, and [88] of the Tribunal’s decision record.)
Regardless of whether the applicant gave this information voluntarily at the hearing before the Tribunal, on any plain reading of the Tribunal’s analysis in its decision record, what remains is that it was not so much the discrepancy itself as to the actual salary amounts, but the applicant’s explanation for the discrepancy, which the Tribunal found difficult to accept, that was one of the many elements that led the Tribunal to make the finding adverse to her credit.
The applicant also complains in this regard that the Tribunal unfairly and improperly failed to take into account that the applicant would have been subject to serious discrimination according to the local culture of her home village, and its traditions, if it became widely known that she had been assaulted, or raped. That the Tribunal should have considered that her reaction, and behaviour, would have been affected by these cultural traditions.
This complaint appears to arise from the Tribunal’s finding that after the claimed sexual assault, in which the applicant claims (amongst other things) to have suffered bruises on her face, the applicant did not go to hospital, or see a doctor, but did attempt, ultimately with her mother, to report the matter to the police. (See [99] to [101].)
The Tribunal’s reasoning was that her failure to seek medical attention, while attending at the police station, was a matter that went to the credibility of her claim to have been assaulted. The Tribunal did consider the applicant’s explanation that, due to cultural factors, her reputation would have been damaged, and that doctors and nurses could not be trusted to keep this information confidential. (See [100].)
The applicant’s complaint is that it was unfair of the Tribunal not to have accepted this explanation. The difficulty for the applicant is, in this regard (and it must be said, in respect of her other complaints), 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).
While a different Tribunal member may indeed have come to a different conclusion, what remains is that the finding in this regard was plainly open to the Tribunal to make on what was before it, and for which it gave cogent reasons. In these circumstances, the applicant’s complaint is really a challenge to the Tribunal’s findings of fact, which includes the finding as to the applicant’s credibility. On its own, this is not susceptible to review by this Court.
The applicant’s third “particular” under ground one takes issue with the Tribunal’s findings of inconsistencies and omissions in her evidence. The applicant complains that it is “impossible” to provide a “perfect statement” in the initial application for the visa, such that the Tribunal should be understanding when differences appear in subsequent evidence.
I have some sympathy with the applicant’s argument. Often, a tribunal seizes on trivial discrepancies between evidence given to the Minister’s Department, and what is put before it, to find adversely on an applicant’s credit. (For example, see SZLUN v Minister for Immigration & Anor [2009] FMCA 1013.)
Unfortunately for the applicant, this is not such a case. The Tribunal did not seize on one or two trivial, or minor, inconsistencies to find adversely to the applicant’s credit.
First, the Tribunal drew on a wide range of concerns about the applicant’s evidence, which were not confined solely to inconsistencies, but to her subsequent explanations, and the plausibility of the evidence given at the hearing before it.
Second, and in relation to the specific example given in the applicant’s third particular (that is, the Tribunal’s finding in relation to her claimed involvement at the sit-in protest), the omissions in the applicant’s evidence were significant. In particular, the subsequent claim that she held up a banner in the front of the protest was certainly a significant matter going to the nature, and role, of her involvement in the protest. It was open to the Tribunal to rely on this omission as one of many elements of its findings that ultimately led to the rejection of the applicant’s factual account of what occurred at the sit-in protest. That is, that it did not occur at all.
What the applicant must realise is that this was not just an omission of detail. The contrast between what she told the delegate at the interview, that she and another person had been at the front of the demonstration holding a banner, but that she had not handed out pamphlets herself, was in sharp contrast with what she had subsequently put in writing, that her role at the sit-in protest involved handing out pamphlets.
These are not just matters of mere detail. They go to the critical issue of whether her conduct at the protest was such that the authorities would take particular interest in her, as opposed to the many others at the protest who were not arrested or detained. But importantly, again, it was also the applicant’s explanations at the hearing before the Tribunal in seeking to reconcile the two differences in these two accounts that, again in part, led the Tribunal to its ultimate adverse conclusion.
In all, therefore, the applicant’s complaints in ground one, as pleaded and as repeated before the Court orally by the applicant, do not, as Ms Baggett correctly submitted, in my view, rise above a request for impermissible merits review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259).
The applicant’s complaint that the Tribunal was “unfair” (notwithstanding that it was put in the context of s.420) does (given her unrepresented status before the Court) give rise to consideration as to whether the applicant’s complaint should therefore more properly be seen as some sort of failure of procedural fairness by the Tribunal.
In this regard, however, I note that this is a case to which s.422B of the Act applies, making the provisions of Division 4 of Part 7 of the Act the exhaustive statement of the natural justice hearing rule (absent bias) (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]). The matters set out in that Division, therefore, are the exhaustive expression of “fairness” in the procedures that the Tribunal employs and provides.
Having regard, therefore, to the various relevant provisions in that part of the Division of the Act, I cannot see any breach of s.424A(1).
The Tribunal’s account of what occurred at the hearing (which, as I stated earlier, remains unchallenged by evidence to the contrary) reveals that at the hearing on the first occasion the Tribunal gave to the applicant certain information which it considered would be the reason, or part of the reason, for affirming the decision under review. These words invoke the Tribunal’s obligations pursuant to s.424A(1). In the circumstances the Tribunal clearly employed the facility available to it pursuant to s.424AA to put such information to the applicant orally at the hearing.
The relationship between these two sections has been found by a Full Federal Court in SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46 to be facultative and complimentary. Relevantly, s.424AA is, in that sense, no more than a method by which the Tribunal may comply with its obligation under s.424A(1). (See SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46 at [90], SZMMP v Minister for Immigration and Citizenship [2009] FCA 233 at [51].)
I note also that s.424A(2A) provides that compliance with s.424AA discharges the obligation pursuant to s.424A. (See [57], and as to the items of information [58] to [67] in the current case.)
The Tribunal properly advised the applicant as to her entitlement to seek additional time to comment on, or respond to, the information orally at the hearing (at [68]). The Tribunal complied with the applicant’s request (made after obtaining advice from her representative) that the hearing be adjourned so that the she could comment orally at some future time. The Tribunal quite reasonably gave the applicant more than two weeks to prepare for the resumption of the hearing.
On resumption, the applicant provided her comments ([69] to [86]), where the Tribunal further set out its concerns about her initial evidence, and about her comments and explanations in relation to the information that had been provided to her.
The Tribunal also considered the applicant’s further comments made by way of a written (statutory declaration) response directed to this information ([88] to [94]). The applicant’s complaint before the Court that the Tribunal refused to accept her written response, can only really be seen as a complaint that the Tribunal was not persuaded that her explanations for the inconsistencies and implausible aspects of her evidence were such as to cause it to conclude that her account of claimed events in China was credible.
The answer to this complaint is that the Tribunal is not obliged to uncritically accept the applicant’s evidence and claims arising from her factual account (Randhawa v the Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265). Second, the Tribunal’s subsequent findings about the applicant’s written submissions were all open to it to make on what was before it. These findings are not susceptible to substitution by this Court of its own factual findings. No error is revealed in relation to the applicant’s written submissions.
On a plain reading of what the Tribunal said was information put to the applicant for comment, it would appear that a large part of that “information” either fell within one of the exceptions contained in s.424A(3), or constituted the Tribunal’s views of the inconsistencies in the applicant’s evidence, such that it would not be considered “information” for the purposes of s.424A(1) (SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 at [17] to [18], noting the reference there to VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471 per Finn and Stone JJ).
The exception would appear to be what the applicant told the delegate at the interview, which would not fall within any of the exceptions in s.424A(3) from the obligation s.424A(1).
Nonetheless, no breach of s.424A is revealed by the Tribunal putting this material to the applicant.
The Tribunal did not make specific reference to any particular section of the Act in this part of its decision record, and it may be that when it referred at paragraph 57 to “some information” the Tribunal sought to compress information (bearing in mind s.424A), and issues, which its procedural fairness obligations pursuant to s.425 of the Act required it to put to an applicant at a hearing. That is, those issues that were dispositive of the review that were not determinative before the delegate (SZBEL at [47])
In this latter regard, it is clear that the applicant was unsuccessful before the delegate because the delegate found that she was “not a credible witness”, and that she had fabricated her factual account regarding the sexual assault and the sit-in protest (CB 67.4).
Nonetheless, the Tribunal again exposed to the applicant to its concerns about the credibility of her entire factual account, with a comprehensive discussion of the key incidents which the applicant had claimed had occurred. It squarely put to her its concerns. (See, in particular, in this regard [42], [56], and in particular, at [66]: “... I might not accept that she was telling the truth …” Further, at [69] to [86], and in particular at [87]: “… I put to the applicant that it appeared to me that she was not telling the truth …”)
It is quite clear that following the delegate’s decision the applicant was on notice as to the credibility of her factual account of what she said had occurred in China, and would have been in no doubt that this exact issue was the live issue that was ultimately determinative of her application for review before the Tribunal.
As Ms Baggett submitted, there is no other section in Division 4 that could reveal, in the current circumstances of this case, any failure of procedural fairness, or breach of any such section, on the part of the Tribunal, such that it could be said that the Tribunal’s decision was “unfair”.
In all, ground one is not made out.

Ground Two

The complaint in ground two is similar to what is set out in ground one. The applicant asserts that the Tribunal based its decision on what was said to be “incorrect findings”. The particular as pleaded refers to the Tribunal’s finding that it appeared implausible that her friend’s boyfriend had spent such a large amount of money, and went to such effort, in assisting her to escape China.
The Minister submits that even if some factual finding made by the Tribunal contained some error of fact, this in itself does not constitute jurisdictional error (Abebe v The Commonwealth (1999) 197 CLR 510; [1999] HCA 14 at [137], and see also SZJHR v Minister for Immigration and Citizenship [2007] FCA 1901 at [45]).
In any event, I cannot see, on the material before the Court, that it was not open to the Tribunal to find that the circumstances put forward by the applicant contained this implausible element. Given the amount involved (probably over 100,000 Yuan) and that she was also given $3,000 when she boarded the flight to come to Australia, and having taken into account the applicant’s explanations, it was clearly open to the Tribunal to find it difficult to accept. As it said:
“… however charitable her friend and her friend’s boyfriend may have felt towards her, they would have expended these sorts of sums on her” (at [106]).
Ground two, therefore, being a challenge to the Tribunal’s findings of fact, in this regard (and it must be noted that this was only one such findings of fact amongst many that led to its adverse credibility finding) does not reveal jurisdictional error on the part of the Tribunal. Ground two, therefore, is not made out.

Ground Three

In ground three the applicant complains that the Tribunal did not make any genuine attempt to consider the documentary evidence that she provided in support of her claims. The applicant complains that, while there may indeed have been country information regarding the ready availability of fraudulent documents in China, it does not mean that all documents obtained in China are not genuine. The applicant emphasised at the hearing before the Court, that the complaint is that the Tribunal did not make any “genuine” attempt to consider her documentary evidence, but it simply applied the country information.
Any plain reading of the Tribunal’s analysis reveals that this complaint must be rejected.
The Tribunal raised its concerns about these documents with the applicant during the course of the hearing on the first occasion (see [67]). After referring to country information relating to the availability of fraudulent or forged documents in China, the Tribunal squarely put to the applicant:
“… I put to the applicant that this information was relevant to the review because I might give greater weight to the view I formed of her credibility that (sic: than) I did to the documents she had produced.”
The Tribunal’s relevant finding reveals (see [108] and [109]) that the applicant’s documents were not rejected as forged or fraudulent simply based on the country information indicating that forged and fraudulent official documents were readily available in China. On any plain reading of its decision record, the Tribunal’s reasoning was that it had comprehensively rejected the credibility of the applicant’s factual account of what she said had occurred in China. It was in this light, and having regard to the country information, that the Tribunal said it gave greater weight to the view that it formed of the applicant’s credibility, than it did to the official Chinese documents which she had produced.
As Ms Baggett submitted, this is not such a case where the Tribunal made a finding as to the documents being fraudulent or forged, simply because of country information, as the applicant now submits. What the applicant has failed to realise (or more pointedly, whoever drafted the application on her behalf) is that it was the view that the Tribunal formed of her own evidence, the comprehensive finding of the lack of credibility of her account, that was the key to the finding in relation to her documents.
But nor did the Tribunal reject her documents as forged or fraudulent. The Tribunal clearly balanced these documents in the context of the availability of forged and fraudulent documents, as against the credibility of the applicant’s own factual account, and found that it placed greater weight on its finding of adverse credibility of the applicant’s account, than on these documents. The subtlety of the Tribunal’s reasoning, in this regard, appears to have escaped whoever drafted the application to the Court for the applicant.
I also note that in relation to the country information provided by the Department of Foreign Affairs and Trade that, as the Minister submits, the relevance and weight given to country information is a matter for the Tribunal (Iyer v Minister for Immigration & Multicultural Affairs (2001) 192 ALR 71, NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10 at [11] to [13], Applicant NABD of 2002 v Minister for Immigration & Multicultural Affairs [2005] HCA 29; (2005) 216 ALR 1 at [8] per Gleeson CJ, NBKT v Minister for Immigration & Multicultural Affairs [2006] FCAFC 195; (2006) 156 FCR 419 at [81] to [84]).
In all, therefore, ground three is not made out.

Other Considerations

Given that the applicant appeared unrepresented before the Court, and given that the applicant’s grounds as pleaded appear to be misconceived in so many important aspects, I did consider whether the reference to s.420 in the applicant’s complaint, that the Tribunal did not act “fairly”, was really meant to be some reference to what appears in s.422B(3) of the Act.
But even if that were the case, relevant Full Court authority (Minister for Immigration & Citizenship v SZMOK [2009] FCAFC 83 – “SZMOK”) provides that s.422B does not add any additional procedural fairness obligations on the Tribunal, beyond what is already set out in Division 4 of Part 7.
In the relevant parts of SZMOK the discussion of the relevant statutory provisions were expressed as matters of general proposition, and exposition of understanding about these legislative provisions, and the relationship between s.422B(3) and the other sections in Division 4. What the Court said was not limited only to the factual situation before the Court in that case. (See SZMOK at [12] to [18].)

The Full Court gave clear direction as to how the relationship between s.422B and Division 4 is to be understood. (See from [6] of SZMOK .) I note in particular:
“15 Clearly, s.422B (1) has not been repealed by s.422B (3). Accordingly, s.422B (1) continues to exclude common law procedural fairness in relation to the matters dealt with by Division 4, except to the extent of the procedural codes set out in Division 4. Section 422B(3) may be understood as an exhortative provision in the same way as s.420(1) is an exhortative provision. Just as s.420 does not create rights or a ground of review, additional to specific rights of review that are expressly given by the Act, so s.422B (3) should not be understood as creating a procedural requirement over and beyond what is expressly provided for in Division 4 ...”
In short, therefore, there is no additional, or general, procedural fairness requirement of “fair” and “just” to be applied to the provisions in Division 4, above and beyond those provisions.

Conclusion

In all, none of the applicant’s grounds as pleaded reveal jurisdictional error on the part of the Tribunal. The applicant’s oral submissions before the Court mirrored the particulars given in the application as pleaded and, in themselves, did not rise above a request for impermissible merits review, in the sense that the applicant sought to challenge the relevant factual findings made by the Tribunal. In all, therefore, I cannot discern jurisdictional error in the Tribunal’s decision, as pleaded, as submitted, or otherwise. The application is therefore dismissed.

I certify that the preceding ninety-seven (97) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: C Darcy

Date: 23 December 2009