SZOBN v Minister for Immigration - [2010] FMCA 285

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOBN & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 285

MIGRATION – RRT decision – Indian applicants claiming religious persecution as Christians – disbelieved as to their religion – no weight given to corroborative documents and photographs – whether findings irrational or showed bias – no jurisdictional error found – application dismissed.

Migration Act 1958 (Cth), ss.424, 425

Abebe v The Commonwealth of Australia (1999) 197 CLR 510
Applicants A233 of 2003 v Refugee Review Tribunal [2004] FCAFC 296
Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759
Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration & Citizenship v Le (2007) 164 FCR 151
Minister for Immigration & Citizenship v SZIAI (2009) 259 ALR 429, [2009] HCA 39
Minister for Immigration & Citizenship v SZMOK (2009) 257 ALR 427, [2009] FCAFC 83
Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220
NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs(2004) 214 ALR 264, [2004] FCAFC 328
Perera v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 6
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59, [2003] HCA 30
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152
SZDTZ v Minister for Immigration & Anor [2005] FMCA 1392
SZIWY v Minister for Immigration & Anor [2007] FMCA 1641
SZJBA v Minister for Immigration & Citizenship (2007) 164 FCR 14
SZJBD v Minister for Immigration & Citizenship [2009] FCAFC 106
SZMDS v Minister for Immigration & Citizenship (2009) 107 ALD 361, [2009] FCA 210
SZNQI v Minister for Immigration & Citizenship [2010] FCA 164
SZNVW v Minister for Immigration & Anor [2009] FMCA 1299
VWFY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1723
WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 80 ALD 568, [2004] FCAFC 74
WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225

First Applicant:

SZOBN

Second Applicant:

SZOBO

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3081 of 2009

Judgment of:

Smith FM

Hearing date:

7 April 2010

Delivered at:

Sydney

Delivered on:

7 April 2010

REPRESENTATION

Counsel for the Applicant:

Second Applicant in person

Counsel for the First Respondent:

Mr G Kennett

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

The application is dismissed.
The applicants must pay the first respondent’s costs in the sum of $5,865.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3081 of 2009

SZOBN

First Applicant

SZOBO

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicants are a husband and wife who arrived in Australia in July 2008. On 22 August 2008, they lodged applications for protection visas, assisted by a migration agent. The agent attached a statement by the applicant wife explaining why she feared persecution if she returned to India.
The wife’s statement gave a history in which both she and her husband had received harms from the wife’s relations and from Indian police officers at the behest of the wife’s relations, including repeated rape of the wife by police officers, and repeated arrest and torture of the applicant husband by police officers. The animosity of her relations was said to have been caused by the wife pursuing her religion as a Catholic, and then marrying her husband, who also had that religious background. They claimed to have travelled to Australia in a party of people attending the World Youth Day, under arrangements made by a priest.
In the course of the proceedings before the Department and Tribunal, they submitted a great deal of country information about incidents involving violence against Christians in India. None of this material referred to the applicants themselves.
They also submitted to the Tribunal a number of documents concerning themselves, including identity cards and evidence of work qualifications of the wife as a nurse and of the husband as a carpenter and machine operator. They also submitted certificates of involvement by the husband in the Kerala Catholic Youth Movement, and other documents showing them to be members of the Catholic Church in Kerala. This included a letter from an assistant parish priest, a baptismal certificate of the wife, and other documents. They tendered photographs to the Tribunal at its second hearing, which appear to show a wedding celebration at a church, and video recordings of church events involving the applicant husband’s family.
The Tribunal received this material and, it appears to me, it examined all of it during and after two hearings attended by the applicant husband and wife, held on 19 February 2009 and 6 April 2009. According to the attendance record, the first hearing lasted for nearly four hours, and the second hearing lasted for more than two hours.
There was then a lengthy delay before the Tribunal made its decision on 7 December 2009. During that period, the applicant husband and wife attended the Tribunal office several times and presented evidence showing that the wife was pregnant and due to give birth, as she did in December 2009. During this period they presented to the Tribunal some evidence showing that in October 2009 and in some preceding months, the applicant wife suffered psychological problems with major depression and anxiety. This may explain why the Tribunal delayed making its decision.
The Tribunal affirmed a decision made by the delegate on 6 November 2008, which refused protection visas to both applicants.
Although the applicants’ migration agent had completed the original application forms so that the applicant husband signed a form D, as a member of the family who did not have their own claims to be a refugee, the Tribunal properly, in my opinion, understood the history recounted in the statement attached to the wife’s application, and which was elaborated at the hearings held by it, as including claims by the husband to be a refugee in relation to his own circumstances. No contention is made by the Minister nor by the applicants that the Tribunal erred in that respect.
It appears to me that in its statement of reasons the Tribunal accurately identified the claims made by both the husband and wife. At the commencement of its “Findings and Reasons”, it summarised the wife’s claims:
96.The Tribunal first considered the applicant’s claims. The applicant claims that she is Christian. She claims that she practises Christianity and attends a Christian church in Australia. She claims that she left her country and cannot return there because she was and will be harmed by family members who are Hindu, and other Hindu extremists, assisted by the police with whom her family members have connections, because she was/is Christian and practised Christianity and sought assistance from, and later married, a Christian man, the second named applicant when she realised she was not getting money sent to her by her mother who was overseas. She claims that she suffered shame in her country because her relatives called her a prostitute, that she was questioned by police about her being a prostitute at her nursing school in December 2007 and had to go for a medical examination and this was shameful for her and that she was taken by police and questioned on 26 June 2008 after her marriage to the second named applicant on 5 June 2008. She claims that she was raped on two occasions by police when she [was] taken by them in June 2008. She claims that her husband was arrested and ill treated by police on a number of occasions because he supported her and his family are being tortured by the same people because he has helped her. She also claims that her father who was a Christian and her pet were brutally murdered by Hindu fanatics and that her mother had to leave the country when the applicant was two years old because she married a Christian/Catholic; she claims that the feelings against her are increasing because she and her mother married Christians. The applicant claims that she is still being labelled as a prostitute in her country and this is shameful for her. She claims that her Hindu family members have influenced the Christians and both of them together are now trying to separate her and her husband from the church. She also claims that because her husband’s family members are in a high position in the Baptist church in Kerala her family will not leave them (the applicants) alone if they return to India. She said that she did not go out at all in her country and escaped to Australia because of what happened to her. She claims that she cannot get protection from the harm she fears in her country because those who will harm her have influence with the police and one of her Hindu relatives is a high ranking politician.
and the husband’s claims:
110.The Tribunal next considered the second named applicant’s claims. Essentially the second named applicant claims that he fears harm from his wife’s family members who are Hindu, one of whom is prominent in politics, and from all the Hindus from the area because of his involvement with and support of his wife. He also fears harm from Manichan because he has been involved in anti liquor activities as a member of the Kerala Catholic Youth Movement (KCYM) and because he is associated with his brother who was involved in anti liquor activities, and also he fears the police because of the protest he was involved in. He claims he is from a Christian family and that his father/family members are prominent in the church in his area, that he was beaten by thugs and taken and detained by police on occasions and that there are false charges against him because of his relationship with and support of his wife against her Hindu family members who have influence with the police. He claims he was injured in the hand when he was beaten by members of the applicant’s family in May 2005.
It appears to me that the Tribunal’s reference to the husband’s family belonging to “the Baptist Church”, was to a Roman Catholic church having the name St John the Baptist Church.
In its statement of reasons, after recounting the evidence received at the hearing and before and after the hearing by way of documents, the Tribunal explained conclusions which rejected almost the whole of the histories claimed by both of the applicants, in which they claim to have suffered persecution in the past and to fear persecution in the future by reason of their religion and family relationships. This included the refusal by the Tribunal to accept that either of the applicants were ‘Christian’, and had attended churches either in India or Australia.
In a close examination of their evidence, the Tribunal explained its conclusion about the wife’s claim to religion:
100.The Tribunal does not accept however that the applicant is Christian and has been Christian since she was baptised in January 1983 as she claims. In the Tribunal’s view she knew very little about Christianity when the Tribunal asked her what she had learned about that faith and what she did when she went to a church; she said that her husband knows things and she knows a little bit, namely that Jesus Christ died for the poor and you can tell all to him and that when she goes to church she prays in front of God. In the Tribunal’s view if the applicant were a genuine Christian and had been interested in that faith her whole life, through her mother and her husband, as well as during the years when she attended church in India as she claims she did, she would know more about Christianity than she could tell the Tribunal when it gave her the opportunity to do so. The Tribunal considers that the document that the applicant produced described as a letter from the priest does not assist the applicant as in the Tribunal’s view it conflicts significantly with the applicant’s own evidence about her upbringing and her faith; the letter states that the applicant’s mother converted to Catholicism and left India because her Hindu relatives harassed her but then states that the applicant, “who was left alone with her grandmother was brought up well in the strong Christian faith”. The applicant told the Tribunal that her grandmother and her aunties were not Christians and were opposed to her going to church which she had to do alone. In her statement made in support of her application for protection she states that her grandmother did not give her the money her mother sent for her and did not give her proper food and care and she went to the Church for help without the knowledge of her grandmother and aunts and uncles. The Tribunal also considered the baptism certificates produced in support of the applicant’s claims about her religion but given the prevalence of document fraud in India as referred to in the country information consulted by the Tribunal and discussed generally with the applicant at the hearing, the Tribunal does not consider that the baptism certificates of the applicant and her mother submitted in support of the applicants’ claims are reliable evidence of the facts in them.
The Tribunal also identified inconsistencies in some of the applicant wife’s claims of the history of persecution of her husband and herself by police at the instigation of, in particular, her uncle.
The Tribunal also thought that there was implausibility on the one hand, that the wife said that they had not suffered problems when the wife was attending a nursing school between 2004 and December 2007 and when the husband travelled to work in Saudi Arabia and back shortly before they married, and their claims that both of them then encountered serious acts of persecution at the hands of police.
The Tribunal thought there was also inconsistency with their claims of persecution, in the husband having pursued a career in carpentry in their home town, if at the same time he was being persecuted by police for events not only including his relationship with the applicant wife, but also what were claimed to have been church‑related anti‑liquor activities going back to 2001.
In relation to the latter claim, the Tribunal refused to give weight to some documents produced by the applicants to the Tribunal between the two hearings, purporting to corroborate that the applicant husband was the subject of “bail orders” made in 2006 for events that happened in 2001, which he claimed related to false charges arising from his anti‑liquor activities. Its reasoning in relation to this claim, which is also illustrative of the nature of its detailed reasoning in relation to other aspects of their claims, was:
104.In the Tribunal’s view it is not consistent with the applicant’s claims that her husband was of interest to authorities in India for the reasons that she claims that, according to her evidence to the Tribunal, he left India in November 2007 and returned there about April/May 2008 to live in Kerala, in/around [location], and then left again to come to Australia in July 2008, despite there being what the applicant describes as “bail orders” against him dated in 2006 for events that happened in 2001 according to the document. The Tribunal does not accept as true the applicant’s evidence that her husband had problems and suffered harm in India because of his anti liquor activities in India or because there were false charges against him. The applicant first made the claims about the anti liquor problem at and after the first Tribunal hearing and the document described as the court document in relation to the false charges was first produced by the applicant after the first Tribunal hearing; in the Tribunal’s view this claim would have been made earlier and the document in respect of the claimed false charges would have been produced earlier if they were genuine. The Tribunal does not accept as reasonable the applicant’s evidence that she knew her husband was having problems but he did not tell her what the problems were and that they/she did not include these claims because they were told by their agent that her problems were more important. Given the time the document was produced in support of the applicant’s claims, and given the evidence of the applicant that the relevant events complained of in the document happened in 2004, which is different from what is in the document, and given the prevalence of document fraud in India referred to in the country information, the Tribunal does not accept that the court document produced by the applicant is reliable evidence of the facts in it. It also does not consider that the documents produced by the applicants from the Kerala Youth Movement are reliable evidence of the facts in them.
The Tribunal identified country information suggesting that document fraud in India was prevalent, particularly to assist immigration applications. It referred to that evidence when explaining at several points why it did not accept the corroborative documents presented by the applicants. For example, it said:
106.Given the prevalence of document fraud in India and the difficulties that the Tribunal finds with the applicant’s credibility it does not consider that the other documents from the applicant’s country, including the magazine, the copies of the newspaper articles, the hospital record dated 3 March 2009, that the applicant has produced in support of her claims are reliable evidence of the facts in them. While the Tribunal accepts that the photographs and CD’S produced show what they show, including processions, church programs, the applicant standing with others and a flag and an injured hand, the Tribunal does not accept that these materials are reliable evidence to support the applicant’s claims that she and her husband were harmed and fear harm in India for the reasons that she claims by those she claims.
After explaining its adverse conclusions in relation to the wife’s claims, the Tribunal fully addressed the applicant husband’s claims. The Tribunal rejected all of his history upon which he claimed to fear persecution, including his claims based on his relationship with his wife before and after their marriage, and his claimed involvement in Christian activities, including anti‑liquor activities. In the course of its reasoning, it said:
115.The Tribunal also does not accept that authorities in his country are interested in the second named applicant for the reasons that he claims. It does not accept that there are false charges against him in his country and that he went to Court many times for two cases about a shooting in 2001 as he told the Tribunal he did. The Tribunal does not accept as true that the applicant feared or was harmed or threatened or wanted by the applicant’s Hindu relatives or other relatives, other Hindu persons, the police or anyone else in his country as he claims for the reasons he claims. In the Tribunal’s view these claims are not consistent with his evidence that he lived and worked in his country in and around [location] in Kerala for many years after becoming involved with the applicant in 2002, that he returned from Saudi, where he worked, to the same area in India and lived in and around [location] in Kerala in April/May 2008, including marrying the applicant on 5 June 2008, until he left to come to Australia in July 2008. In the Tribunal’s view these facts are not consistent with his claims of persecution in his country.
The Tribunal again addressed all the documents presented in corroboration of the applicant husband’s own claims, and said in relation to these:
116.As noted above when considering the documents submitted by the applicants in support of their claims in relation to the applicant’s claims, given the prevalence of document fraud in India which was discussed with the applicants generally at the hearings, and the difficulties that the Tribunal finds with the applicants’ credibility it does not consider that the documents from the applicants’ country, including the magazine, the copies of the newspaper articles, the hospital record dated 3 March 2009, the baptism certificates, the document described as the Court document, the KCYM documents produced in support of the claims are reliable evidence of the facts in them. As noted above in relation to the applicant’s claims, while the Tribunal accepts that the photographs and CD’S produced show what they show, including processions, church programs, the applicant standing with others and a flag and an injured hand, the Tribunal does not accept that these materials are reliable evidence to support the second named applicant’s claims.
117.Given that the Tribunal does not accept that the second named applicant is a credible witness it does not accept that he has attended Christian church in Australia.

In the course of its statement of reasons, the Tribunal referred to the medical evidence presented while the Tribunal’s decision was pending after both of the hearings. In relation to this, it said in its “Findings and Reasons”:
108.The Tribunal accepts that the applicant is anxious and worried about returning to her country as recent medical/psychological reports show but the Tribunal does not accept that she fears harm in her country for the reasons that she claims.
The applicants attended a first court date before me on 27 January 2010, and were referred for free legal advice which they obtained. They were given an opportunity to file an amended application giving particulars of grounds of jurisdictional error and evidence in support. My directions specifically drew attention to the possible need to file a transcript of the Tribunal’s hearings, if they were alleging that defects occurred in the course of the hearing. However, as I shall set out, the amended application filed by the applicants contains no particulars of such an allegation, and they have not presented a transcript of the hearing. Some particular criticisms of the hearing were only made for the first time in the course of his oral submissions by the applicant husband, who represented both the applicants at the hearing before me today.
I shall consider his criticisms below. However, I note at this stage that I gave careful consideration in the course of the hearing whether I should myself call for the recording of the hearings to be produced to the Court, and then listen to it, to discover for myself whether any of the applicant’s criticisms have a factual foundation. Such a course was opposed by the Minister, as was any further adjournment of the matter to allow for better particularisation of the applicants’ grounds of review and the presentation of relevant additional evidence by the applicants.
On balance, I decided that the applicants had been given sufficient opportunity prior to today’s hearing to foreshadow their case in a detailed manner, and to identify the relevant evidence of what actually happened at the hearing. I also decided that my embarking on listening to more than six hours of sound recordings in chambers would not be appropriate, but would be of such potential prejudice to the Minister and undue waste of time, as to lead me to exercise a discretion to exclude the tender of the sound recording, if I were to understand the applicant to have tendered it today (cf. SZNQI v Minister for Immigration & Citizenship [2010] FCA 164 at [38]‑[43]). After taking into account all the difficulties faced by the two applicants in presenting their case to the Court in the present proceedings, I decided that I should complete the hearing, and proceed to give judgment today upon the material and submissions presented by the parties.
The applicants must establish that the Tribunal’s decision was affected by jurisdictional error before I have power to send their matter back to the Tribunal. I do not have power myself to decide whether they should have been believed by the Tribunal in relation to all or any of their histories which were rejected by the Tribunal. I do not have power myself to decide whether they should be accepted as refugees and granted protection visas, or any other permission to stay in Australia.
Their original application filed in the Court had as its grounds only the following:
1.Not satisfied with RRT decision.
2.Jurisdictional Error.
3.Breach of Procedural Fairness.
The absence of adequate particulars to allow Grounds 2 and 3 to be meaningfully addressed, is manifest.
An amended application filed by the applicants contains grounds which are framed as follows:
The amended grounds:
1.That RRT failed to complete the exercise of its jurisdiction;
2.That the decision led to the omission of principles of natural justice while making a decision.
Particulars: 1
(a)The Tribunal rejected my claim on the basis that the court papers were not presented to it in support of my claim which led the Tribunal to conclude that failure to be an adverse credibility finding limiting the meaning of s424 in contravention to the Article 1A(2) of the Convention thus the Tribunal declaring that the credibility factor lies in providing the material evidences in support.
(b)The RRT failed to satisfy itself upon whether the applicants had a well founded fear of persecution based upon probative material or logical grounds:
Particulars:
The situation of religious factor was not taken into account and I was not guide by anyone when I was applied for protection visa application and I feel that I need to reconsider my situation.
(c)The RRT failed to make findings on all the applicants’ claims.
Particulars:
The RRT may freshly to refer to or reconsider the material placed before it by the applicants including those statutory declarations and other court material evidences.
In the light of unfavourable and hostile situation, I fear for the safety of my life.
To some extent, these grounds were amplified by a written submission filed by the applicants on 1 April 2010 which said:
This is to inform you that, the RRT member refuse to accept the facts. The real facts that I submitted to prove that I am a Christian. Even though I submitted the original photos and letter from the parish priest also they didn’t believe that I am a Christian.
I strongly believe that it was a pre occupied decision. So please give us a chance to prove my credibility with an another member of RRT.
As I have indicated above, particular criticisms supporting the second of these contentions were first made today in the course of the applicant husband’s submissions.
Despite the garbled and disorganised presentation of grounds of review by the applicants, I shall endeavour to address all of their contentions providing a discernable ground of jurisdictional error.
The contention in the amended application under the heading “Particulars: 1”, paragraph (a), is particularly obscure. It makes an unstated criticism of the Tribunal for rejecting “the court papers”. As I have indicated in the passage I have extracted above, the Tribunal gave no weight to the documents purporting to corroborate the applicant husband’s release on bail on false charges of involvement at a violent demonstration in 2001, on the ground, inter alia, of its late presentation. I assume that the criticism relates to this aspect.
In my opinion, that part of the Tribunal’s reasoning discloses no jurisdictional error, and is not supportive of any of the applicants’ grounds of review. I consider that the Tribunal’s reasoning in relation to those “court papers” was open to it, and its finding was within the exercise of its jurisdiction to decide matters of fact.
I cannot give any meaningful content to the balance of this particular, including its references to s.424 and Article 1A(2). The Tribunal’s jurisdiction clearly encompassed a power to determine the refugee claims by reference to the credibility of the claimants (see Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 575‑576, Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at 544‑545, Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 239‑241, Applicants A233 of 2003 v Refugee Review Tribunal [2004] FCAFC 296 at [11]‑[14], and SZDTZ v Minister for Immigration & Anor [2005] FMCA 1392 at [19]‑[20]).
The contention of illogicality which is made in paragraph (b) of these particulars was, I think, further explained by the applicant husband in his oral submissions to me. In these, he made two points. The first was that some of the corroborative documents, and in particular the photographs and videos which he tendered at the start of the second hearing to show that he and his wife had been married in church and that his family was involved in church activities, were obviously cogent, and appear to have been accepted by the Tribunal as showing “what they show”. In that circumstance, he submitted that it was unreasonable, even irrational, for the Tribunal to have arrived at a conclusion that neither he nor his wife were Christians, either in India or Australia.
Put in those terms, the applicants appear to raise a doubt about the merits of part of the Tribunal’s reasons which rejected totally their claimed religious association in India. However, in my opinion, this point does not identify any error amounting to jurisdictional error, appreciating the entire reasoning of the Tribunal when arriving at its ultimate conclusions in relation to the refugee claims. At most, it identifies possible error in the weighing of some of the evidence, within the province of the Tribunal’s fact finding.
However, the Tribunal’s conclusions were supported by many reasons for disbelieving the claimed history of persecution by the wife’s family and police officers at their instigation. It gave many reasons for rejecting various items of corroborative evidence, which were rational and open to it. The criticisms made by the Tribunal of the credibility of the two applicants, as witnesses whose evidence has been taken by it over six hours of hearing, are not shown on the evidence before me to be flawed by such irrationality or unreasonableness which could be characterised in any of the terms which have been suggested to show jurisdictional error (cf. Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59, [2003] HCA 30, and assuming the correctness of SZMDS v Minister for Immigration & Citizenship (2009) 107 ALD 361, [2009] FCA 210 pending delivery of the High Court’s judgment on appeal).
The present is not a case where the Tribunal has ignored or declined to consider the photographs and videos presented by the applicant. It is undoubted that the Tribunal has considered this evidence, since it summarised its contents and explained how it weighed it when arriving at its conclusions. I am not persuaded that its treatment of the evidentiary weight of this evidence shows any jurisdictional error.
The second point made by the applicant husband today, explaining his contention of irrationality or the absence of “probative material”, suggested that the Tribunal excluded or misunderstood the implications of how the original protection visa forms had been completed by the applicants’ agent, in particular, when putting the wife forward as the only refugee claimant. He suggested that the Tribunal belatedly understood the applicant husband to be making his own claims, and then failed to understand his explanation for not having presented corroborative evidence at an earlier time.
However, I am not persuaded that the Tribunal was not alive to that procedural background, nor that it led to any procedural or factual errors by the Tribunal, whether amounting to jurisdictional error or not. The Tribunal’s record of its procedures during the review show that it was more than ready to accept an obligation to address the claims of both the applicants when they were presented to it. I am not persuaded that it was not open to the Tribunal to consider adversely the timing of the presentation of some of the applicant husband’s claims and corroborative documents. I might not agree with the weight given by the Tribunal to some of its various considerations, but its reasoning in this respect does not, in my opinion, reveal any jurisdictional error.
Turning to particular (c) in the amended application, I am not persuaded that there was any piece of relevant evidence which was presented by the applicants to the Tribunal and which it failed to identify and consider before making its decision. The applicant husband today criticised the Tribunal for not appearing to give more attention to the photographs and other material which he presented at the hearing. However, it is undoubted from its statement of reasons that the Tribunal received and looked at that material and, in my opinion, it probably fully considered it before posting it back to the applicants, which appears to have happened after it made its decision.
The Tribunal’s discussion of the evidence tendered at the second hearing shows, in my opinion, that it was alive to all that evidence and took it into account. The fact that it decided not to give favourable weight to that evidence does not prove a failure to take into account relevant matters or evidence, amounting to jurisdictional error. I am not persuaded that in the present case there was conduct on the part of the Tribunal which amounted to ignoring or total disregard of corroborative evidence in the course of assessing the two applicants’ credibility as witnesses, as was found, for example, by the Full Court in WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 80 ALD 568, [2004] FCAFC 74. I am not persuaded that the Tribunal’s treatment of that evidence reveals jurisdictional errors such as were discussed by the Full Court cases such as WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 and Minister for Immigration & Citizenship v SZMOK (2009) 257 ALR 427, [2009] FCAFC 83).
The applicants’ written submission raised some of the matters which I have addressed above. It repeated the criticism of the Tribunal for rejecting totally that the applicants are Christians. However, as I have found above, I am not persuaded that this conclusion was not open to the Tribunal on the material before it, nor that, even if erroneous, it reveals any jurisdictional error vitiating its decision.
I discussed with counsel for the Minister whether procedural fairness was afforded to the applicants in relation to the issue of their religious affiliation, under principles applied by the High Court in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152. A contention that such a failure of procedural fairness occurred does not clearly emerge from the applicants’ documents. It might, however, be arguable that the reasoning of the delegate had accepted that the applicant wife’s religion was Christianity, that she had an involvement with the St John Baptist Church in her home town, and that she had married another Christian in the congregation. Certainly, the delegate’s reasoning did not reject that part of her claimed history.
However, the applicant wife’s Christianity was a matter which was specifically raised by the Tribunal in the course of at least the second hearing (see paragraph 73), and the tendering at that hearing of the purportedly corroborative evidence about the claimed involvement of both the wife and the husband in the church suggests that the two applicants probably appreciated that they needed to satisfy the Tribunal as to their having an association with the church in Kerala. Ultimately, I accept the submission of the Minister, pointing to the absence of a transcript of what happened at the hearing, that the Court could not be satisfied that the Tribunal inadequately flagged that issue to the applicants in the course of the hearing. An SZBEL error has therefore not been established to my satisfaction.
The applicants’ contention that the Tribunal’s decision was made by a Tribunal in relation to which there was an apprehension of bias was not particularised in any of the documents filed by the applicants prior to the hearing. However, the applicant husband asserted in his oral submissions that a number of defects had occurred at the hearing. In terms of the principle applied by the High Court in Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425, his contentions might be claiming that “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” from these matters.
As I understood his arguments, he pointed to the following matters in support of his contentions of bias:
·The Tribunal only later in the first hearing, and in the second hearing, recognised that the applicant husband was himself claiming to fear persecution as a Christian, and by reason of his Christian activities and his association with his wife.
·The Tribunal’s questions at some unspecified points in the hearing were superficial and appeared random, suggesting, in effect, that it was not conducting a serious investigation of their claims.
·The Tribunal treated the applicant wife unsympathetically, in particular, by (i) not appreciating that she would be embarrassed recounting parts of her history without a female interpreter, and (ii) by not responding appropriately to some points where his wife broke down and sobbed seven or eight times, and (iii) by not appreciating that the length of the hearing was unfair for his wife.
·He submitted generally that the Tribunal had not taken their case seriously, and this was shown, in particular, by the Tribunal’s rejection of their evidence and corroborative documents to show that they were practicing Christians in Kerala.
·The Tribunal’s emphasis to the evidence of the production of fraudulent documents to support Indian visa applicants was unbalanced, suggesting a closed mind.
·The Tribunal’s reasoning suggested it was applying a preconceived impression of life in India, and was not bringing an open mind to considering their own claimed circumstances.
·The Tribunal did not conduct further investigations, for example, by telephoning the parish priest to verify their claims.
I have in my above summary of his contentions, reformulated and reorganised them.
The difficulty with most of the contentions made by the applicant as to what happened at the hearing is that there is no evidence before me which satisfies me that the events which he refers to as happening in the hearing did happen. It is quite possible that the applicant’s perceptions of the hearing, which underlay his oral submissions to me, were mistaken. Certainly, in relation to the procedures of the Tribunal in coming to recognise that the applicant husband was making his own refugee claims, as I have indicated above, I consider that the Tribunal’s procedures showed a mind open to addressing those claims, rather than the converse.
In relation to the length of the Tribunal’s hearing, its manner of questioning, and how the wife responded in the course of the hearing, on the evidence before me which I would give weight to, being the Tribunal’s own description of the hearing, the wife suffered no impediments in the presentation of her evidence to the Tribunal. She was given a very ample opportunity to explain her history, and to respond to the Tribunal’s questions, and availed herself of that opportunity.
The Tribunal’s description of the hearing, and the thoroughness of its statement of reasons, shows, in my opinion, a Tribunal conscientiously attempting to arrive at opinions about the truth of the applicants’ claims. It certainly gives no support to the assertion of a superficial investigation or consideration of the evidence. I am not satisfied that there is any evidence suggesting inappropriate questioning, cultural insensitivity, or other improper conduct of the hearing by the Tribunal.
In relation to the claimed need for a female interpreter, such a claim was not made by the applicants to the Tribunal. They were given an opportunity, in particular, when responding to a specific enquiry in the Tribunal’s hearing invitation, to request a female interpreter, and did not do so.
Ultimately, the other complaints made about the Tribunal’s decision make criticisms of the Tribunal’s ultimate reasoning which are not, in my opinion, indicative of a closed mind before it arrived at its conclusions. It is the task of the Tribunal to weigh all the evidence presented by the applicants, and to arrive at decisions about their credibility. The fact that different conclusions about that evidence might have been reached by different Tribunal members, or by the Court itself, does not in this case point in my mind to a Tribunal deciding the case after receiving evidence with a closed mind (cf. NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs(2004) 214 ALR 264, [2004] FCAFC 328).

Minds can differ as to the weight to be given to country information indicating the availability and prevalence of unreliable corroborative documents in immigration matters. The experience of this Court suggests that such documents are frequently presented to the Department and Tribunal, and that the prevalence of false evidence creates real difficulties for the Tribunal when attempting to assess the veracity of refugee claimants. In the present case, I would not conclude that the weight given by the Tribunal to country information concerning fraudulent documents might cause a fair‑minded lay observer to conclude that the Tribunal might not have brought an open mind to considering all of the applicants’ evidence, including their documents and other items.
In relation to the complaint that the Tribunal failed to make inquiries to the assistant parish priest who was the purported author of a letter received by the Tribunal, I am not satisfied that this omission evidences any jurisdictional error. The Tribunal is normally not bound to make further inquiries to establish the authenticity or truth of corroborative documents, and there is no circumstance in the present case which brings the situation within the extraordinary circumstances in which a duty to make further inquiries might arise. I have assumed that Minister for Immigration & Citizenship v SZIAI (2009) 259 ALR 429, [2009] HCA 39 at [25] gives continuing life to the principles previously applied in cases such as Minister for Immigration & Citizenship v Le (2007) 164 FCR 151 at [77], and SZJBA v Minister for Immigration & Citizenship (2007) 164 FCR 14 at [59]‑[60]. In the absence of any obligation to make such an inquiry, the failure of the Tribunal to make it would not cause a fair‑minded lay observer in the present case to doubt whether the Tribunal might not be conducting its review with an open mind.
For all the above reasons, I am not persuaded on all the evidence before me that the Tribunal’s decision is vitiated on principles of apprehended bias.
I have above addressed all the points made by the applicants in their documents and the applicant husband’s oral submissions, except two further points made by the applicant husband today, which might give rise to jurisdictional error.
The first point arises from his drawing attention to the presentation to the Tribunal after the hearings of evidence about the applicant wife’s psychological problems exhibited in the latter part of 2009. It was unclear to me what principle of jurisdictional error this evidence was directed at. However, I have considered it under principles which I have applied in two previous cases: SZIWY v Minister for Immigration & Anor [2007] FMCA 1641 and SZNVW v Minister for Immigration & Anor [2009] FMCA 1299. In these, I discussed the duties of a Tribunal to consider evidence of mental impairments which might need to be taken into account when weighing oral evidence received at a hearing, and also the Court’s concern that a hearing pursuant to an invitation given under s.425 of the Migration Act 1958 (Cth) should have afforded a meaningful opportunity, taking into account all the evidence before the Court. My opinions favouring applicants in those cases are currently under re‑examination in the Full Court in an appeal by the Minister from the second of my judgments referred to above.
However, in the present case the evidence about the wife’s medical condition which is in the Court Book does not, in my opinion, establish that the Tribunal assessed the evidence given by the applicant wife at the two hearings upon false assumptions as to her mental capacities. I am not persuaded that it did not consider the medical evidence presented to it, according to its jurisdictional obligations. The evidence before the Tribunal, which is the only evidence still before the Court as to the applicant wife’s mental condition, does not establish that at the time of the hearings she suffered from impairments which denied her a meaningful opportunity to give her evidence on those occasions. Nor does it establish that she was suffering from any particular incapacity bearing on her presentation, which should have been taken into account by the Tribunal and was not taken into account by it. I therefore can find no jurisdictional error arising from the medical evidence referred to by the applicant husband.
The final point made by the applicant husband in his oral submissions criticised the interpreter provided by the Tribunal, not only for not being a woman, but also because the interpreter lacked an awareness of the applicants’ particular local culture. He suggested, without identifying the particular point in one of the hearings where it occurred, that the interpreter had conceded to the Tribunal a difficulty in translating a particular word. Whether this happened or not is not something shown on the evidence before me, but assuming that such an incident occurred, it would not, in my opinion, alone establish a failure by the Tribunal to provide adequate interpreting services (see Perera v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 6, VWFY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1723 at [27], Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759 at [25], [32], and SZJBD v Minister for Immigration & Citizenship [2009] FCAFC 106 at [73]). No other particular defect in interpretation was identified. I am not satisfied that the applicants were disadvantaged, either generally or in any particular respect, due to the provision of a male interpreter and not a female interpreter, particularly in the absence of a specific request for that made by the applicants or objection taken in the course of the hearing.
For all the above reasons, I am not satisfied that the applicants have established jurisdictional error affecting this decision of the Tribunal. I must therefore dismiss the application.

I certify that the preceding fifty-sixty (56) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 18 May 2010