SZOHB v Minister for Immigration

[2010] FMCA 651

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOHB v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 651

MIGRATION – Refugee Review Tribunal – whether Tribunal fairly considered applicant’s case – Tribunal did not ascribe a minimum standard of Christian practice – Tribunal’s findings were open to it to make – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.36, 65, 91R, 422B, 424A, 424AA, 425, 425A, 441A, 441C, 476
Migration Regulations 1994 (Cth), reg.4.35D

Machmud v Minister for Immigration & Multicultural Affairs [2001] FCA 1041
SZOCT v MIAC [2010] FMCA 425
Wang v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 548; (2000) 179 ALR 1; [2000] FCA 1599
WALT v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCAFC 2
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59
SZNYF v Minister for Immigration and Citizenship [2010] FCA 839
Wu v Minister for Immigration & Ethnic Affairs [1994] FCA 926; (1994) 48 FCR 294
Yilmaz v Minister for Immigration & Multicultural Affairs [2000] FCA 906; (2000) 100 FCR 495
Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248
Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed [2005] FCAFC 58
Attorney-General (NSW) v Quin (1990) 170 CLR 1
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
SZMCD v Minister for Immigration & Citizenship [2009] FCAFC 46
Saeed v Minister for Immigration and Citizenship [2010] HCA 23
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225
NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Randhawa v the Minister of Immigration, Local Government & Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265
Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547
W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703; [2001] FCA 679

Applicant: SZOHB

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 659 of 2010

Judgment of: Nicholls FM

Hearing date: 8 June 2010

Date of Last Submission: 8 June 2010

Delivered at: Sydney

Delivered on: 3 September 2010

REPRESENTATION

The Applicant: In Person

Appearing for the Respondents: Ms B Griffin

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application made on 25 March 2010 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $6,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 659 of 2010

SZOHB

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made on 25 March 2010 under s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 26 February 2010 which affirmed the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.

Background

1. The Minister has put a bundle of relevant documents before the Court (“Court Book” – “CB”).

2. The applicant is a national of the People’s Republic of China (“China”). She first arrived in Australia in March 2007 on a student visa. She returned to China on 6 April 2008. She again entered Australia on 2 May 2008 (CB 95 to CB 36 and CB 70 to CB 76).

The Protection Claims

1. She applied for a protection visa on 24 June 2009 (CB 1 to CB 30). She was represented by a migration agent (CB 32 to CB 34). Her claims to protection were set out in an attached statement (CB 32 to CB 34).

2. The applicant claimed to fear persecutory harm if she were to return to China on the Refugee Convention ground of religion. She stated that her father was a Christian who had been detained, tortured and imprisoned because of the Chinese government’s suppression of Christians. She claimed to have been targeted and detained on her return from Australia and warned not to “spread” religion to others in China, nor to attend “illegal” gatherings.

3. The applicant submitted a letter from the Padstow Chinese Congregational Church in Australia in support of her claims (CB 41 to CB 42).

The Delegate

1. The applicant attended an interview with the delegate (CB 39). The delegate found the applicant’s claims to have been raised as a Christian to be implausible given what she said in this regard at the interview (CB 57.7).

2. Further, the delegate found the information in the letter of support from the church to be inconsistent with the applicant’s claims (CB 57.8). This also led to doubts about her credibility. The delegate gave no weight to the letter.

3. The delegate was not satisfied that the applicant had a “basic” knowledge of Christianity, which led to serious doubts that she was a genuine Christian (CB 58.3). The delay in making the application for protection was also seen to cast serious doubts on the genuineness of her claim to fear persecution.

4. The delegate accepted she attended church in Australia, but disregarded this conduct pursuant to s.91R(3) of the Act. Given the above the delegate refused the application.

The Tribunal

1. The applicant applied for review to the Tribunal on 18 October 2009 (CB 60 to CB 63). She continued to be represented by the same migration agent (CB 61). She attended a hearing before the Tribunal on 2 December 2009 (CB 67 to CB 69 and CB 77).

2. By letter dated 2 December 2009 the applicant was invited to comment on information that the Tribunal said would be the reason or a part of the reason for affirming the decision under review (CB 79 to CB 82).

3. The information involved what she orally told the delegate about her Christian beliefs, inconsistencies in and between her written statement and what she told the delegate, evidence that she gave the Tribunal, information relating to the delay in applying for a protection visa, and information from Immigration department records regarding the cancellation of her student visa.

4. This included information relating to other persons living with the applicant who had also applied for protection visas before the applicant had done so. All of these had made claims similar to the applicant’s claims. Their claims also involved attendance at the Padstow Chinese Congregational Church.

5. The applicant was told of the relevance of this information to the Tribunal’s consideration.

6. The applicant responded in writing by letter sent to the Tribunal on 24 December 2009 (CB 83 to CB 85).

7. A further letter inviting comment was sent to the applicant dated 24 December 2009 (CB 87 to CB 89). It appears this letter, in almost identical terms, was sent to address an “incorrect” date in the earlier letter by which the applicant could respond (CB 87).

8. The applicant provided further documents in support of her claims on 5 January 2010 (CB 90 to CB 98). She also responded to the Tribunal’s second letter (CB 99 to CB 101).

9. The Tribunal found that the applicant was not a witness of truth or credible ([93] at CB 115). This was based on:

   1)Inconsistencies in the applicant’s evidence about when she became a Christian. The Tribunal did not accept her explanations for these ([83] to [84]).

   2)The change in the applicant’s evidence about who she lived with after her parents’ divorce. The Tribunal did not accept her explanation for this change ([85] to [86]).

   3)That the applicant’s claims at the hearing regarding her cousin’s claimed gaoling for being a Christian was a recent invention to support her claims ([87] to [88]).

   4)The Tribunal gave no weight to the documents she submitted after the hearing relating to her father’s detention. The Tribunal set out its concerns about the documents. For example, it noted that while the documents were said to relate to her father, one of the documents made reference to a “female” being released from detention ([89] to [92]).

10. The Tribunal rejected the applicant’s factual account relating to her father’s claimed Christianity and claimed subsequent persecution for this reason ([94] to [97]). It also rejected the applicant’s claim to have approached government officials on her father’s behalf because of its credibility concerns, and that it could not accept her evidence on its own ([98] to [100]).

11. On the same basis the Tribunal rejected her claims relating to her similar claims regarding her cousin. It noted the absence of “information” to support this claim ([101] to [102]).

12. The Tribunal accepted she attended the Padstow Church for some period. But it disregarded this conduct pursuant to s.91R(3) ([105] and [125]).

13. The Tribunal found the applicant’s knowledge of Christianity, as exhibited at the hearing, to be rehearsed and to have been developed since the interview with the delegate for the purpose of strengthening her refugee claims. Further, for reasons that it gave, the Tribunal found that the applicant made her “Christian” claims on the advice of people with whom she lived in Australia, and engaged in the practice of Christianity in Australia to facilitate her claims ([121] to [122]).

14. The Tribunal also found that the delay between the cancellation of her student visa and her lodging of the protection visa application (a period of nine months) indicated that she only made her application because of her “illegal” status in Australia and her desire to remain ([123]).

15. In all therefore the Tribunal was not satisfied the applicant had a well-founded fear of Convention related persecution and therefore affirmed the delegate’s decision.

The Application to the Court

1. The applicant relied on the following grounds:

   “1. I was not considered fairly by RRT. They low assess my risk to go back to China.

   2. I am not good at speaking. I just told the goodness of God to others. I did not preach.

   3. RRT protected the person like me who suffered and feared to go back. But the member did not protect us. It’s unfair”.

Before the Court

1. At the hearing before the Court the applicant appeared in person. She was assisted by an interpreter in the Mandarin language. Despite the opportunity provided to her by orders made at the first Court date, the applicant had put nothing further before the Court.

2. Ms B Griffin appeared for the first respondent. Written submissions were filed on behalf of the first respondent.

3. Before the Court the applicant explained the grounds in her application by complaining that:

   1)Ground one:

   a)The Tribunal did not pay much attention to her.

   b)Did not believe she was a Christian.

   c)She provided documentary evidence that she attended church in Australia and that her father had been detained in China. Yet the Tribunal did not believe her claims. In relation to her father the applicant directed the Court to CB 96, which was the document she submitted in support of her claim that her father had been detained and then released. The applicant submitted that the translation reproduced at CB 95 which contained the reference to “female” was a mistake in translation made by her agent.

   d)The Tribunal did not understand the risk she would face if she returned.

   e)Her case should be remitted because she did not receive “fair” treatment.

   f)The Tribunal discriminated against her. This was explained on the basis that the Tribunal put questions to her, but did not believe her.

   g)In a complaint that ultimately was understood as relating to the delegate, that the “member” did not believe her because “he sneered at me” and kept “shaking his head” while she was answering.

   2)Ground Two:

   a)The applicant did not “know the Australian system” before the Tribunal. I understood the complaint to be that the member wanted her to prove she was a Christian, yet did not believe her.

   3)Ground Three:

   a)The applicant explained the first sentence in this ground that other people who were Christians in China and were in the same position as the applicant were given protection.

Additional Concerns

1. At the hearing I did raise two additional matters with Ms Griffin. The first has to do with whether the Tribunal held as a matter of law that the absence of corroborative evidence meant that it was not open to the Tribunal to accept a part of the applicant’s factual account. In particular I had in mind [94] to [104] of the Tribunal’s reasons, and Machmud v Minister for Immigration & Multicultural Affairs [2001] FCA 1041 (“Machmud”).

2. I granted leave for the parties to make further written submissions. Submissions were subsequently only received from the Minister. This issue is dealt with below.

3. The second issue really arose out of the applicant’s complaints of unfairness, particularly at the Tribunal hearing, and my initial concern with some of the questioning, and the approach apparently used by the Tribunal in relation to the applicant’s claims to be a Christian. This issue is relevant to a number of complaints in ground one and goes to how the applicant perceived the Tribunal’s questioning at the hearing relevant to her Christian claims. As I understood it this in part sits below the complaint in ground two.

“Lot’s Wife”

1. Following the hearing in this matter, but before handing down this judgment, I have had the benefit of reading what Driver FM said in SZOCT v MIAC [2010] FMCA 425 (“SZOCT”), a case also dealing with claimed persecution in China as a Christian.

2. In that case, in addition to the Tribunal’s reasons (which included an account of the hearing), his Honour had before him a transcript of the Tribunal hearing which could be compared with that Tribunal’s account (see [18] to [19] and [27] to [29]).

3. In that case his Honour said (at [31]):

   “I conclude that the Tribunal committed a jurisdictional error because by approaching the applicant’s claims on the basis that he had to satisfy the Tribunal that he possessed a particular level of doctrinal knowledge to justify being regarded as a Christian, the Tribunal asked itself the wrong question and there was a constructive failure of jurisdiction.”

4. This was said to be based on the error identified in Wang v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 548; (2000) 179 ALR 1; [2000] FCA 1599 (“Wang”) (see at [30]). I note in particular at [16] per Gray J:

   “…Religion is a matter of conscientious belief, professed adherence and practice. The RRT seems to have approached the issue on the basis that the appellant had to satisfy the RRT that he was possessed of a specific level of doctrinal knowledge to justify being regarded as a Christian. It is not appropriate for the RRT to take on the role of arbiter of doctrine with respect to any religion. Compare Mashayekhi v Minister for Immigration & Multicultural Affairs [2000] FCA 321, (2000) 97 FCR 381, at [11] - [16]. Nevertheless, what the RRT said in the present case amounts to a finding that the appellant has a conscientious belief (‘his faith’), is a professed adherent of a recognised body of religion ("the Protestant Church") and has engaged (‘as a member of an unregistered congregation’) and continues to engage (‘as a member of the Chinese Presbyterian Church’) in the practice of his religion”

5. However I note also what was said more recently by a Full Court in WALT v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCAFC 2 (“WALT”) per Mansfield, Jacobson and Siopsis JJ in relation to Wang and this issue more generally (as also set out in SZOCT). I note in particular WALT at [28] to [30]:

   “[28] In Wang at 552, [16], Gray J pointed out that it is not appropriate for the Tribunal to take on the role of arbiter of doctrine with respect to any religion. So much may be accepted. Degrees of understanding and commitment of those practising any particular faith will vary. To ascribe to all who are, or claim to be, adherents to a particular religion a required minimum standard of practice or a required and consistent minimum understanding of its tenets may be erroneous.

   [29] But it does not follow that the questioning of a person, even a person as young as 11, who claims to have in effect given up his family and community connections for having espoused a particular religion, about that person’s beliefs on matters which that particular religion teaches or its tenets, means that the Tribunal is necessarily becoming the arbiter of the doctrine of that religion.

   [30] We agree with the learned primary judge, that the Tribunal did no more than that. It did not set a level of knowledge of, and commitment to, Christianity which the appellant was required to meet to satisfy it that he had converted to Christianity. It merely explored the level of his knowledge and understanding, and his commitment. Clearly, the appellant had virtually no knowledge or understanding of Christianity either at the time of his ‘conversion’, or at the time of the Tribunal’s hearing…”

6. In the current case on the evidence before the Court I cannot be satisfied that the circumstances as were before Driver FM in SZOCT exist in this case such as to find jurisdictional error on this point.

7. My concern in the current case was initially raised by what the Tribunal set out at [48] of its decision record, which was a part of its account of the hearing with the applicant:

   “The Tribunal asked the applicant a number of questions about the Christian religion. She was able to name the writers of the four Gospels. She was asked about miracles performed by Jesus. She recounted the story of Jesus walking on the sea. She said that 55 loaves and two fish fed more than 12000 people. She recounted the story of Jesus rolling back the stone on a tomb and raising the person from the dead. She could not name this person. The applicant did not know who Lots’ wife was or who Goliath was. She explained this as being because she did not know the English names. The Tribunal asked how she know the English names of Matthew Mark Luke and John. She said these were common names and are translated into Chinese but the other names were not.”

8. As Gray J said, and as accepted by the Full Court in WALT, religion is a matter of conscientious belief, professed adherence and practice. For that matter, and to a considerable extent, the same may be said about political opinion.

9. My concern is how the Tribunal appears to have gone about its task of understanding the applicant’s level of religious conviction. There are aspects of what is set out at [48] in the current case that appear to reduce the degree and understanding and commitment of the applicant’s adherence to Christianity to what I would describe as the “trivia night” or “pub quiz” approach.

10. The point is illustrated by the reference to “Lot’s wife”. It may be the Tribunal intended the question as being one of a series as to the applicant’s knowledge of biblical stories.

11. On the Tribunal’s reported answer the applicant explained she did not know the answer because she did not know the “English names”. The Tribunal’s following question conveys its rebuttal of the applicant’s explanation and that she did know the English names of the authors of the gospels.

12. On this account, the Tribunal’s own account, it is open to draw an inference that the Tribunal was asking the applicant to give the name of “Lot’s wife”. The difficulty for the applicant is that, if this were the case, nowhere in the Biblical book of Genesis, where the story of Lot’s wife appears (Chapter 19, Holy Bible, King James Version, New International Version), is Lot’s wife identified by name. She is simply referred to as “Lot’s wife”. (See also Luke 17:32.)

1. I raise the issue not so much because I believe this can lead to jurisdictional error (see below), but because it is the very kind of example that can lead applicants (such as in this case) to feel they have been unfairly treated by the Tribunal. In essence this encapsulates the applicant’s complaints under ground one of the application.

2. However in the current case, on the evidence before the Court, and when the Tribunal’s decision is read holistically, the circumstances are far closer to what was found in WALT. I naturally apply what was said by the Full Court in that case.

3. Unlike the situation found in SZOCT, and on the evidence, I cannot see on balance and when read at least fairly that the Tribunal ascribed a required minimum standard of Christian practice or required a minimum understanding of Christian tenets.

4. The applicant claimed at the Tribunal hearing that, although she sometimes prayed with her father, she only “completely committed” herself to Christianity when she went back to China in May 2008 ([47] at CB 110). This was explained by her at the hearing as “when you completely commit yourself to God” ([69] at CB 112).

5. I understood the Tribunal’s approach and reasoning to be that, notwithstanding her claimed complete commitment in May 2008 following some Christian related activity with her father previously and her claimed practice of Christianity at the Padstow Church since that time, it remained unpersuaded by her explanation as to why before the delegate (on 1 September 2009) she exhibited little knowledge of Christian beliefs and practices.

6. While the applicant was then able to give answers to “general questions” at the Tribunal hearing, in the circumstances the Tribunal found these answers to be “rehearsed” for the purpose of the hearing.

7. Critically the Tribunal’s ultimate lack of satisfaction as to the applicant’s credibility did not derive from an approach that required the applicant to satisfy a particular level of doctrinal knowledge about Christianity.

8. In derived from significant inconsistencies in her factual account, her unsatisfactory explanations for these inconsistencies, her failure to mention significant information at the relevant times, and the contradiction between what was stated in some documents she provided in support of her claims with what she herself said.

9. In relation to her claims to have practiced as a Christian in Australia, the Tribunal considered documents provided by the applicant in support. Despite some reservations about the lack of detail, the Tribunal accepted that she had been attending the Padstow Church for a period of time.

10. The critical and relevant part of the Tribunal’s analysis as to the applicant’s claims to be a practising and committed Christian relate, on the applicant’s own account, to events as they relate to her conduct in Australia.

11. The Tribunal’s analysis in this regard really begins at [112] of its decision record. It is at least clear that the Tribunal saw the applicant’s inability to answer questions about Christian beliefs and practices at the interview with the delegate as being important. This was some 16 months (on her latest version) after she said she became a committed Christian.

12. Given what was reported and found by the delegate, the Tribunal was entitled to subsequently explore with the applicant why she had been unable to “answer at least basic questions about the religion” some 16 months after she said she became fully committed to it ([114]).

13. In part the Tribunal did this by asking the applicant questions about common biblical stories. Importantly, the Tribunal found that, although the answers “appeared rehearsed”, she was able to answer some of these questions.

14. The Tribunal distinguished this from her inability to answer what were described as “less obvious but nevertheless relevant questions, particularly about the Old Testament stories” ([15] at CB 118.2). Presumably “Lot’s wife” falls into this category.

15. What the Tribunal was left with was that, 16 months after the time that she said she became a “completely” committed Christian, she could answer no questions about Christian beliefs. When this was reviewed at the Tribunal hearing some 3 months later, while the level of her knowledge had improved albeit presented in a rehearsed way, the Tribunal saw the limitations and differences in her knowledge as being reflective of an attempt to strengthen her refugee claims.

16. I cannot see (with reference to WALT) that the Tribunal set itself up as the arbiter of the doctrine of Christianity. Rather, it legitimately sought to explore not only the level of knowledge but the reasons for the differences displayed between the interview and the hearing.

17. When seen in this light, what was said about “Lot’s wife” and what follows at [48] is a clumsy expression of the Tribunal asking the applicant about whether she knew of the story of “Lot’s wife”. The subsequent reference at [48] to “names” must be read in light of the applicant’s own reported response, and her written response of 23 December 2009 (CB 99) to the Tribunal’s subsequent letters of 2 December 2009, and in particular 24 December 2009 (CB 87).

18. It is also important to note that the Tribunal had additional reasons for rejecting the credibility of the applicant’s claim to fear persecutory harm. For example, the delay in applying for protection after her student visa was cancelled and she remained “illegally” in Australia for nine months, and that the applicant lived with four other people at the same address who made claims on the same basis as the applicant ([121] to [123]).

The Absence of Corroborative Evidence?

1. This issue is whether the Tribunal held as a matter of law that the absence of corroborative evidence meant that it was not open to it to accept the applicant’s account of events in China as they related to her claims that her father was a Christian who had been harmed in China because of his Christian beliefs, that as a result she complained to officials and was subsequently detained, and further the applicant’s claim that her cousin in China was detained for 14 years because of his Christian beliefs.

2. The concern arose out of statements made by the Tribunal in its analysis that: “… There is no information to support this claim by the applicant” (as it related specifically to her cousin – [102] at CB 116) and the Tribunal’s repeated references in its analysis that it was: “… not prepared to rely on the applicant’s evidence alone in establishing whether her claims are genuine” ([93] at CB 115 and similar words at [95], [99], [101] and [104]).

3. I note what was said in Machmud per Hill J at [16]:

   “There is also the suggestion on the part of the Tribunal that there is some necessity for an applicant to the Tribunal to ‘substantiate’ claims. If that is intended to suggest that there must be some corroboration given by an applicant, it clearly is erroneous. The word ‘substantiate’ is defined in the Macquarie Dictionary 3^rd Edition as follows ‘1. to establish by proof or competent evidence:... 2. to give substantial existence to. 3. To present as having substance’. The ordinary English use might suggest that the Tribunal member did not regard the applicant's statement as being evidence at all but rather required some other evidence to be provided. The sense in which it is used may perhaps also suggest that the Tribunal thought that there was a need for corroboration. If corroboration were necessary there was the country information. But, be this as it may, there certainly is no necessity as a matter of law that an applicant to the Tribunal corroborate, if that is what the Tribunal meant, a statement made.”

4. The question then is: did the Tribunal’s repeated references as set out above, either separately or cumulatively, mean that it required corroboration from the applicant before it would accept the truth of what she said?

5. Ultimately I agree with the Minister’s submissions that, when the Tribunal variously referred to a lack of information or evidence other than that of the applicant in its analysis at [94] to [104], the expression when seen in context and when the decision is read as a whole can be more properly described as another “clumsy” or “infelicitous” expression rather than establishing a basis for the type of error outlined in Machmud.

6. First, such expressions on their own do not reveal jurisdictional error (Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259).

7. Second, I agree with the Minister that the Tribunal’s reasoning, when understood as a whole, mirrors to an acceptable extent the reasoning of the relevant Tribunal in Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59, in respect of which in a joint judgment McHugh and Gummow JJ said at [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. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party. If the critical passage in the reasons of the Tribunal be read as indicated above, the Tribunal is reasoning that, because the appellant cannot be believed, it cannot be satisfied with the alleged corroboration. The appellant's argument in this Court then has to be that it was irrational for the Tribunal to decide that the appellant had lied without, at that earlier stage, weighing the alleged corroborative evidence by the witness in question. That may be a preferable method of going about the task presented by s 430 of the Act. But it is not irrational to focus first upon the case as it was put by the appellant”.

8. The Tribunal rejected the applicant’s credibility because of the matters set out at [19] – [24] of this judgment above.

9. The Tribunal did consider some documents provided by the applicant but chose to give them no weight because they contradicted the applicant’s own evidence ([92] at CB 115).

10. I accept that when the Tribunal came to the statement reported at [93] (see [64] above) it had found the applicant’s credibility so weakened (because of inconsistencies etc) that no amount of corroborative documentation could retrieve the applicant’s position in this regard.

11. When read in context I see that [93] draws a line between the applicant’s evidence, the way she gave her evidence and the contradictions both in and between what she told the delegate and the Tribunal, and the separate and specific factual matters raised at [94] to [104] of the Tribunal’s decision.

12. Further, all of this must be read in context and holistically with what follows at [105] to the end of its analysis where the Tribunal gave further reasons for comprehensively rejecting the applicant’s credibility.

13. On at least a fair reading the Tribunal rejected her claims relating to her father because of its conclusion about her credibility. The documents provided by the applicant after the hearing in relation to her father were given no weight for the reasons that the Tribunal gave and which were open to it ([89] to [92]). Essentially these derived from the nature of the documents themselves and in part what was stated in them.

14. Incidentally, nor can I see that the Tribunal fell into error in the circumstances of this case as found in SZNYF v Minister for Immigration and Citizenship [2010] FCA 839 per Collier J at [24] to [26]. The failure to establish a link between the applicant’s credibility and the “veracity” of the documents to which no weight has been assigned is not evident in this case in circumstances where the Tribunal actively engaged in a process of consideration of the documents themselves.

15. What the Tribunal then says at [95], when read in this light, is a way of saying that, having comprehensively rejected the applicant’s credibility and given that the documents provided in support of the claim relating to her father carried no weight, there was nothing left on which the Tribunal could make a finding that the applicant’s factual claims in relation to her father could be accepted.

16. Similar reasoning can be discerned in relation to the applicant’s claims to have seen government officials on her father’s behalf ([98] to [99]), her claims relating to her cousin ([101] to [102]) and that the applicant was not involved with Christianity in any way before arriving in Australia ([104] at CB 116).

17. In all therefore I cannot discern error in this regard.

The Applicant’s Grounds and Complaints

1. Ground one of the application generally asserts unfairness on the part of the Tribunal. For the most part before the Court the “particulars” put by way of complaint seek to challenge the Tribunal’s findings and outcome. Her challenge to what happened at the hearing has already been addressed above.

2. As to the remainder, first, to the extent that the applicant sought to complain about the delegate’s conduct and decision, such a decision is not reviewable by this Court (s.476(2)(a) – a “primary” decision). Further, any defect contained in the delegate’s decision in the circumstances would be susceptible to be “cured” by the Tribunal’s decision (Wu v Minister for Immigration & Ethnic Affairs [1994] FCA 926; (1994) 48 FCR 294, Yilmaz v Minister for Immigration & Multicultural Affairs [2000] FCA 906; (2000) 100 FCR 495, Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248, and Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed [2005] FCAFC 58).

3. Second, the applicant’s complaint that the Tribunal did not consider her claim fairly is of no assistance to the applicant in these proceedings if it is directed to the outcome. That is, that the decision was “unfair” (Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-6 per Brennan J).

4. Division 4 of Part 7 of the Act does set out the exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with (s.422B of the Act).

5. In this regard no error can be discerned. The Tribunal complied with the obligation to invite the applicant to a hearing (s.425). The notice of invitation met all relevant requirements (see ss.425A, 441A, 441C, reg.4.35D of the Migration Regulations 1994 (Cth)).

6. As the applicant has not put any evidence before the Court to challenge the Tribunal’s account of what occurred at the hearing, then it remains the only relevant evidence before the Court.

7. The Tribunal’s account shows that the applicant’s entire factual account was discussed at the hearing. In terms of the Tribunal’s relevant procedural fairness obligations arising from s.425 and as set out in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152, I note that in any event the credibility of the applicant’s factual account was a live issue following the delegate’s decision.

8. The Tribunal complied with its obligation pursuant to s.424A(1). I note in particular the Tribunal’s “second” letter in this regard addressed the one deficiency in the earlier letter. In any event, the Tribunal also employed the facility available to it under s.424AA in this regard (see [54] and SZMCD v Minister for Immigration & Citizenship [2009] FCAFC 46).

9. No other breach of this Division is evident.

10. To the extent that in Saeed v Minister for Immigration and Citizenship [2010] HCA 23 the High Court explained (to the extent that what was said in relation to subdivision AB of Division 3 of Part 2 of the Act is directly relevantly to Division 4 of Part 7) that the procedural code set out there is the exhaustive statement only in relation to the matters that it deals with, I cannot see that the applicants complaint fall outside these matters.

11. The applicant’s complaints generally that the Tribunal did not pay much attention to her, did not believe her or did not understand the risk that she faced, do not in the circumstances rise above a request for impermissible merits review (Wu Shan Liang). The Tribunal’s finding as to the applicant’s lack of credibility was a finding within jurisdiction (Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407). The Tribunal’s findings in this regard were open to it for the reasons that it gave.

12. The applicant’s complaint that the Tribunal did not accept her documents or believe her claims in light of her documents must fail in light of what is already set out above.

13. Given what is before the Court the applicant could have been in no doubt that her entire account was at issue. Even if the principles of procedural fairness at general law were applied she knew what was put against her and was given the opportunity to satisfy the Tribunal as to the truth of her account. That she may remain aggrieved, particularly in circumstances where those with whom she lived may have otherwise been successful, does not, on its own, reveal any failure of procedural fairness on the part of the Tribunal.

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

Ground Two

1. On its face ground two, as the Minister submits, does nothing more than take issue with the Tribunal’s factual findings. On its own, this cannot succeed in these proceedings. The Tribunals’ findings as referred to above were all open to it for the reasons it gave.

2. To the extent that the applicant’s complaint that she was not good at speaking was relevant to her complaint that the Tribunal “wanted” her to “prove” she was a Christian but could not do so because she did not know the “Australian system”, this complaint must fail.

3. First, I cannot see that the Tribunal expected the applicant to “prove” anything. Such a complaint in any event misconceives the task facing the Tribunal. The Tribunal gave the applicant the opportunity both at the hearing to give her evidence, and in writing to explain her claims.

4. The relevant statutory test for the Tribunal (s.65 and s.36(2)) does not oblige the Tribunal to prove or disprove an applicant’s claims. Rather, the protection visa can only be issued, in fact must be issued, where the Tribunal reaches a requisite level of satisfaction that the applicant meets the definition of refugee set out in Article 1A(2) of the UN Refugees Convention (SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225 at [15] to [16], NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 at [4] to [5], Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73).

5. The Tribunal was unable to achieve such a level of satisfaction for the reasons it gave, and which were reasonably open to it on what was before it. No error is revealed. Ground two does not succeed.

Ground Three

1. The repetition of unfairness has already been dealt with above.

2. To the extent that the applicant complains that other persons who were Christians in China were granted protection, this does not assist her in showing jurisdictional error on the part of the Tribunal.

3. It is by now trite to say that each case before the Tribunal must be considered on its own merits. In this applicant’s case the credibility of her case, her factual account was at issue. She may assert others like her have been given protection, but this misunderstands the nature of the Tribunal’s task. It does not have to uncritically accept any or all of what she said (Randhawa v the Minister of Immigration, Local Government & Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265 per Beaumont J). So long as the Tribunal’s findings in this regard were open to it, no error is revealed (Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547 at 558-559, W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703; [2001] FCA 679 at [64]- [69] per Tamberlin and Nicholson JJ).

Conclusion

1. For the applicant to succeed before the Court the Court would at least need to find jurisdictional error in the Tribunal’s decision. As I cannot see such error, the application is to be dismissed.

I certify that the preceding one hundred and two (102) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date: