SZONL v Minister for Immigration - [2010] FMCA 836

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZONL & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 836

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether there was information that enlivened s.424A of the Migration Act 1958 (Cth) – whether the Refugee Review Tribunal failed to give information to the applicants in accordance with s.424A of the Migration Act 1958 (Cth) – whether the Refugee Review Tribunal considered their claims “properly and fairly” – whether the decision of the Refugee Review Tribunal was affected by bias or apprehended bias.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 65(1)(b); 91R; 424A; 424A(1); 474; pt.8 div.2

SZBYR v Minister for Immigration & Citizenship (2007) 96 ALD 1
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1986) 162 CLR 24

First Applicant:

SZONL

Second Applicant:

SZONM

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1572 of 2010

Judgment of:

Emmett FM

Hearing date:

13 October 2010

Date of Last Submission:

13 October 2010

Delivered at:

Sydney

Delivered on:

5 November 2010

REPRESENTATION

The first named applicant appeared on behalf of both applicants with the assistance of a Mandarin interpreter

Counsel for the Respondent:

Mr P. Knowles

Solicitors for the Respondent:

Mr G. Johnson, DLA Phillips Fox

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1572 of 2010

SZONL

First Applicant

SZONM

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 24 June 2010 and handed down the same day.
The first named applicant claims to be a citizen of the People’s Republic of China (“China”) and to have been involved in protests in China against actions of the Chinese government (“the Applicant”). The second named applicant is the Applicant’s daughter and her claims are entirely dependent on the claims of the Applicant.
The issues in this case are whether there was information that enlivened s.424A of the Act and, if so, whether the Tribunal gave any such information to the applicants in accordance with s.424A of the Act. The other issues raise by the applicants are whether the Tribunal considered their claims “properly and fairly” and whether the decision is affected by bias or apprehended bias on the part of the Tribunal. These issues are considered below in the context of considering whether the Tribunal’s decision is affected by jurisdictional error.
Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the Applicant’s protection visa application claims and the decision of the delegate of the First Respondent (“the Delegate”) and a summary of the Tribunal’s review and decision.

Background

The Applicant arrived in Australia on 16 December 2007 having departed legally from Baiyun on a passport issued in her own name and a subclass 580 (Student Guardian) visa issued on 14 November 2007. The Applicant had previously applied for a Visitor Visa whilst in China, which was refused on 1 December 2005.
On 14 July 2009, the Applicant lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act. On 9 September 2009, the second applicant was joined as a member of the Applicant’s family unit in this application.
On 19 October 2009, the Delegate refused the applicants’ application for protection visas.
On 16 November 2009, the applicants lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
On 24 June 2010, the Tribunal affirmed the decision of the Delegate not to grant protection visas.
On 19 July 2007, the applicants filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then s.65(1)(b) mandates that the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R of the Act expands on the notion of persecution and serious harm when considering Article 1A(2) of the Convention.

The Applicant’s application for a protection visa

In the protection visa application, the Applicant claimed that she feared persecution by the Chinese authorities by reason of her and her brother’s involvement in a protest against the Chinese government’s compulsory acquisition of lands occupied by a company the Applicant worked for and in which she owned shares. The Applicant claimed to be the public relations manager of that company.
The Applicant claimed that the Chinese government would not pay reasonable compensation for the seizure of the property and only very inadequate compensation had been offered.
The Applicant claimed that in September 2007 she and her brother organised a protest group to publically rally against the governments acquisition by visiting various public parks and distributing pamphlets on National Day, 1 October 2007.
The Applicant claimed she and another woman were in charge of organising pamphlets and two men, one being her brother, were responsible for encouraging further participants to the protest.
The Applicant claimed that the police “disbursed us with police sticks” at the first park visited. She claimed some protesters fought with police and that she and the other organisers were “unable to control the situation”. She claimed many people were seriously wounded and about 15 protesters were arrested, including her brother and the other male organiser.
The Applicant claimed that she and the other female organiser fled the park and the Applicant went to her sister’s home. She claimed she was arrested the next day, 2 October 2007. She claimed the police did not know she was an organiser of the protest but that she was detained until 23 October 2007, during which time she was interrogated, “humiliated, mistreated or tortured”, “persecuted by other criminals” and “forced to do punitive jobs”. She claimed that she was released because she had not been incriminated by her brother or others who had been arrested, her husband had paid a bribe and she had paid a fine. She claimed she was further questioned by police 4 or 5 times prior to leaving China.
The Applicant claimed that her leaving China was “arranged by a very good friend who used to work at Changle International Airport”.
The Applicant claimed that, since she left China, the other female organiser of the protest rally had returned to China and had been arrested and detained. She claimed this woman implicated the Applicant in the organisation of the rally and that her husband has twice been interrogated by police.

The Delegate’s decision

On 19 October 2009 the applicants attended an interview with the Delegate.
On 19 October 2010, the Delegate refused the applicants’ application for protection visas on the basis that the Applicant is not a person to whom Australia has protection obligations under the Convention. The Delegate found the Applicant’s verbal account of her claims to be identical to her written claims but given in a manner that appeared rehearsed and was not convincing.
The Delegate found the Applicant’s responses to questions relating to her information not contained in her written statement to be vague. The Delegate also found some of the Applicant’s oral evidence before it to be inconsistent with her written claims. The Delegate found that her claims had been fabricated for the purposes of seeking protection in Australia.

The Tribunal’s review and decision

On 16 November 2009, the applicants lodged an application for review of the Delegate’s decision by the Tribunal.
The applicants provided further documents in support of their review application.
On 25 November 2010, the Tribunal wrote to the applicants informing them that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicants to attend a hearing on 13 January 2010 to give oral evidence and present arguments. This hearing was rescheduled to 10 February 2010 by letter dated 13 January 2010.
On 10 February 2010, the applicants attended and gave oral evidence at the hearing which was adjourned and recommenced on 17 February 2010.
On 16 March 2010, the Tribunal wrote to the applicants inviting them to attend a second hearing on 6 April 2010. The applicants attended this second hearing and gave oral evidence.
On 9 April 2010, the Tribunal wrote to the applicants identifying information that may form part of the reason for affirming the decision under review, explaining its relevance and inviting the applicants to comment upon it. On 23 April 2010, the applicants responded to the Tribunal’s letter.
The decision of the Tribunal is accurately summarised by counsel for the First Respondent in his written submissions as follows:
“THE TRIBUNAL’S DECISION
12. By letter dated 24 June 2010 the Tribunal notified the Applicants of its decision to affirm the Delegate’s decision (CB 217).
13. The Tribunal refused the First Applicant’s claim for protection after concluding:
[P]roblems with the evidence presented in support of her claims as well as inconsistencies between information provided in her protection visa application and the applicants’ other visa applications have led the Tribunal to conclude that the first named applicant is not a credible witness ([98] at CB 238).
14. The Tribunal expanded upon this conclusion with reference to the following matters:
(a) the First and Second Applicants had given accounts of the First Applicant’s arrest following the protest which, to some extent, were inconsistent ([99] at CB 238);
(b) the Tribunal found the First Applicant’s response to questions about her position with the Company ‘vague and less than forthright’ ( [100] at CB 239);
(c) the Tribunal considered the First Applicant was unable to satisfactorily explain a contradiction in her protection visa application. She had said that Ms Fang had ‘taken a risk’ returning to China, but also said that her arrest upon return was ‘unexpected’ ([101] at CB 239);
(d) the First Applicant had told the Delegate that, at the time of her release, she was suffering from a stomach haemorrhage, but before the Tribunal said she had stomach problems rather than bleeding ([102] at 239);
(e) although the First Applicant claimed to work as the Public Relations Manager of the Company, in her application for a student guardian visa she had claimed to be a housewife with no previous employment outside the home ([103] at 240); and
(f) the documentation submitted in support of the Second Applicant’s student visa application referred to in paragraph Error! Reference source not found. above was inconsistent with the First Applicant’s claim of having worked with the Company ([104] at 240).
15. As the Second Applicant made no separate claims for protection, upon refusal of the First Applicant’s application, the Tribunal also refused the Second Applicant’s application ([109] at CB 242).”

The proceeding before this Court

The applicants were unrepresented before this Court, although had the assistance of a Mandarin interpreter.
On 9 August 2010, the Applicant attended a directions hearing before me on behalf of herself and the second applicant. The Applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the Tribunal hearing.
At the directions hearing, the Applicant was referred to the Court’s Legal Advice Scheme for free legal advice. The Applicant has participated in the Court’s Legal Advice Scheme and received free legal advice. The Applicant was also provided with the contact details of legal services providers and interpreting and translation services in documents headed in the applicants’ own language.
On 23 September 2010, the Applicant filed written submissions in support of her application before this Court. The submissions appear to be a mixture of a repetition of the grounds of her initiating application with further particulars, together with submissions that are more in the nature of a summary of her claims in support of her application for a protection visa. The Applicant confirmed that the grounds referred to in her written submission were the grounds upon which she relied. The grounds are as follows:
“1. This is to submit that the Refugee Review Tribunal (“the Tribunal”) failed to comply with its obligations under s.424A(1) of the Migration Act 1958 (“the Act”).
Particulars
According to the Tribunal’s decision (Paragraph 102 of the Tribunal’s decision), the Tribunal considered the information, which I gave at my interview with the delegate, in relation to my release from detention. On the surface, the Tribunal may have given me an opportunity to explain the inconsistence (sic) at the Tribunal’s hearing. But, significantly, the Tribunal failed to indicate me, clearly and carefully, that the information would be the reason, or a part of the reason, for affirming the decision that is under review; and the Tribunal failed to ensure me to understand why it would be relevant to the review; and the Tribunal failed to create a genuine opportunity for me to comment on the information.
…
2. This is to submit that the Tribunal failed to consider my claims properly and fairly and the Tribunal’s decision has included a reasonable apprehension of bias.
Particulars
As the Tribunal has stated in her decision, “What has undermined and damaged the first named applicant’s credibility most is the inconsistent information and evidence provided about her employment in China” (Page 103 of the Tribunal’s decision)”.
Actually, it is very clear and simple that I lived above my husband’s shop and owned the property consisting of my husband’s shop but I worked as the Public Relations Manager of the Tianyi Company.
Particularly, I have clearly explained it either at the Tribunal’s hearing or in my Statutory Declaration submitted to the Tribunal after the Tribunal’s hearing as follows:
…”
At the commencement of the hearing, the Applicant confirmed that she had not filed any evidence in support of her application and that she had no further documents to present to the Court in support of her application.
Each of the grounds was interpreted for the assistance of the Applicant and she was invited to make submissions in support of each of the grounds and in support of the application generally.
There was no transcript of the Tribunal hearing provided to this Court, nor did the Applicant provide any evidence to this Court to suggest that the Tribunal’s decision record is not accurate. At the directions hearing on 9 August 2010 the Applicant was given an opportunity to file a transcript of the Tribunal hearing. The Applicant was also directed to give notice if she wished to rely on recordings of the hearing. However, no step was taken by the Applicant to rely on any such evidence. In the circumstances, the Court accepts as accurate the Tribunal’s summary of the oral evidence given by the applicants and exchanges it had with the applicants at the Tribunal hearing.

Ground 1

In Ground 1, the Applicant asserts that the Tribunal gave her information that enlivened s.424A of the Act without clearly identifying the information or ensuring that she understood its relevance and that the Tribunal failed to give her an opportunity to comment.
I asked the Applicant what was the information that she asserts the Tribunal should have given her under s.424A(1) of the Act. After some discussion, it became apparent that at the heart of the Applicant’s complaint was an assertion that the Tribunal had not made its concern about what it saw to be her inconsistent information given to the Delegate that she was released from detention because of stomach bleeding; and her oral information given to the Tribunal that she was released from detention because her husband paid a bribe and because she had a stomach problem.
The Tribunal recorded that the Applicant specifically stated in answer to a question from the Tribunal, whether she was suffering serious stomach bleeding at the time of her release, that “she had a stomach disease but did not have bleeding. She said that her husband bribed the police and she was bailed out.”
A fair reading of the Tribunal’s decision record makes clear that the information given by the Applicant that caused it concern was not the information given to the Delegate that she had stomach bleeding. Rather, it was the inconsistency in that information with the information given by the Applicant to the Tribunal about her release from detention. The Tribunal’s decision record records stated as follows:
“[78] The Tribunal informed that (sic) first named applicant that it had listened to a recording of the interview she had with the delegate on 19 October 2009 during which she stated that she was released from detention in China suffering stomach bleeding. The Tribunal told the first named applicant this was not consistent with her oral evidence to the Tribunal that she had not experienced any bleeding. The Tribunal told the first named applicant that the inconsistency was relevant because it could lead the Tribunal to find that the Certificate of Being Released from Detention and Decision on Guarantor Pending Trial documents she had submitted to the Department which stated that she was released with severe stomach haemorrhaging were not genuine, the other documents she submitted in support of her protection visa application were not genuine, she was not detained and mistreated in detention, she had not been truthful, her refugee claims were not true and she was thus not a refugee.” (emphasis added)

In referring to the inconsistent evidence given by the Applicant in relation to her stomach bleeding, the Tribunal stated as follows:
“[102] The first named applicant has been inconsistent about the basis for her release from detention. During her interview with the delegate she stated that she was released because her husband paid a bribe and she was suffering from a stomach haemorrhage. However, she was adamant at the first hearing that she had not suffered from stomach bleeding and that she just had stomach problems at the time of her release. Given the opportunity to explain this inconsistency the first named applicant repeated at the first hearing that her husband paid a bribe to have her released and that she had a stomach problem not stomach bleeding. The assertion that her husband paid a bribe might explain why the Certificate of being Released from Detention and Decision on Guarantor Pending Trial might have incorrectly stated that she was suffering stomach bleeding if she was not but does not explain why the first named applicant herself gave inconsistent information to the delegate and the Tribunal about whether or not she was suffering from stomach bleeding at the time of her release. The Tribunal has taken into account the first named applicant’s statement to the Tribunal that she was suffering stomach problems during her interview the delegate (sic). However, there is nothing before the Tribunal to indicate that the first named applicant was unwell during her interview or that she informed the delegate at any time that she was affected by illness during the interview. The Tribunal notes that the first named applicant also claimed she was unwell at the second hearing. Whilst she appeared to become upset when the Tribunal informed her it had adverse information it wished to put to her it seemed to the Tribunal that she had understood the questions she was asked at the hearing, gave thought to her answers and appeared capable of responding to the Tribunal’s questions. Further, in the absence of medical evidence of a condition which could have affected the first named applicant during her interview with the delegate or adversely impacted on her ability to give evidence to the Tribunal, the Tribunal does not believe the first named applicant’s ability to present oral evidence and arguments was impaired by any condition.” (emphasis added)
Whilst oral information given to a delegate by an applicant is capable of being information that forms part of the reason for a tribunal affirming a decision under review, it is well settled that inconsistencies in evidence do not constitute such information. Inconsistencies in evidence found to exist by the Tribunal are the subjective appraisals, thought processes and determinations in relation to the evidence before it and therefore do not enliven any obligation under s.424A(1) of the Act (SZBYR v Minister for Immigration & Citizenship (2007) 96 ALD 1 at [17]-[18], [25]).
Accordingly, there was no information of the kind particularised in Ground 1 or otherwise that enlivened any obligation under s.424A of the Act.
Ground 1 is not made out.

Ground 2

Ground 2 asserts that the Tribunal failed to consider properly and fairly the Applicant’s claims and that the Tribunal’s decision included a reasonable apprehension of bias.
I asked the Applicant why she said the Tribunal failed to consider her claims “properly and fairly”. The Applicant responded that it was because the Tribunal failed to make her aware of certain information. In the particulars in support of Ground 2, the Applicant referred to the Tribunal’s statement that “what has undermined and damaged the first named applicant’s credibility most is the inconsistent information and evidence provided about her employment in China.”
I read those particulars to the Applicant and asked her if she wished to say more about why she says the Tribunal failed to consider her evidence properly and fairly. The Applicant then responded that the Tribunal was biased because it did not believe that she was working as public relations manager for the company in China. The Applicant said that she gave her explanation repeatedly that the curtain shop run by her husband was run from her home and that she and her husband lived upstairs. The Applicant said that the curtain shop was the property of her husband and that the information in her guardianship application was not handled by her personally. The Applicant said that she told this information to the Tribunal. The Applicant sought to explain that she did not mention in her guardianship application the Chinese company for which she claimed to work because she did not want to cause trouble for the company.
The Applicant maintained her assertion that she had given her explanations repeatedly to the Tribunal and that the Tribunal’s decision included a reasonable apprehension of bias. I explained to the Applicant that she had not filed any evidence in support of her allegation of an apprehension of bias by the Tribunal. The Applicant said that she could not afford to have a transcript of the Tribunal hearing prepared. I reminded the Applicant that she had also been given the opportunity to rely on tapes of the Tribunal hearing which she had chosen not to do.
In the circumstances, I asked the First Respondent whether, if the Applicant made an application to give oral evidence in support of her allegations, the First Respondent would object. Counsel for the First Respondent did not object to leave being granted to the Applicant to give evidence orally, provided that the First Respondent was able to reserve the right to seek further time for instructions and to file further evidence if it became necessary.
The Applicant then sought leave from the Court to give oral evidence in support of her allegations of apprehended bias or bias on the part of the Tribunal and her allegation that the Tribunal had not considered her claims properly and fairly. That leave was then granted.
In evidence in chief in answer to questions by the Court in the nature of those referred to in paragraphs 49 and 50 above, the Applicant repeated the answers she had already given to the Court. In particular, the Applicant reiterated her complaint that the Tribunal did not make clear to the Applicant that it regarded inconsistencies in her evidence as causing it serious concern.
In cross examination, counsel for the First Respondent put to the Applicant various inconsistencies that the Tribunal found to exist and that the Tribunal decision record made clear were put to the Applicant. The Applicant’s response was that she had given her explanations to the Tribunal. She agreed that the Tribunal had told her at the hearing that it viewed her evidence in support of a protection visa application as inconsistent with evidence given in support of her Student Guardian visa application. She also agreed that the Tribunal told her that the inconsistency may lead the Tribunal to find that her evidence was not truthful and that she was not a refugee. She also agreed that the Tribunal explained to her that inconsistencies may be a reason why it may refuse her a protection visa application. The Applicant also agreed that the Tribunal told her about the inconsistencies in her evidence given to the Tribunal and the information she gave to the Delegate at interview and that the Tribunal drew those matters to her attention.
Counsel for the first respondent specifically took the Applicant to the Tribunal’s decision record where it referred to the inconsistent evidence given by the Applicant in relation to her stomach bleeding. The Applicant agreed that the Tribunal told her that the inconsistency was important because it may lead the Tribunal to believe she was not a refugee.
The Applicant did not deny that the Tribunal had told her that it was inconsistent to tell the Delegate that she had stomach bleeding but to tell the Tribunal that she had stomach problems. The Applicant agreed that the Tribunal told her that that inconsistency may lead it to believe that the documents in respect of her alleged release were not genuine. The Applicant maintained that the Tribunal did not give her the particulars of what it found to be the inconsistent evidence in telling the Delegate that she had stomach bleeding and the Tribunal that she had stomach problems. However, the Applicant did agree that the Tribunal told her that the inconsistency in her evidence may lead it to believe that the documents that she gave were not genuine and that those documents stated that she had stomach bleeding at the time of her release.
The Applicant eventually conceded that she knew that the Tribunal’s concern about the genuineness of the documents arose from her inconsistent evidence to the Tribunal where she told the Tribunal that she did not have stomach bleeding. She also eventually conceded that the answer that she gave the Delegate was different to the answer that she gave the Tribunal on that issue.
However, the Applicant maintained that the Tribunal had not given her an opportunity to respond to its concerns and that the Tribunal used the difference in her answers to refuse her application in circumstances where she was not made aware of the serious consequence that her inconsistent evidence may deliver. She said that the Tribunal failed to make her understand that her inconsistent evidence about her stomach bleeding was very important and that her explanation was not satisfactory or that her application might be refused. She reiterated that it was very unfair that the Tribunal had not given her an opportunity to respond to the information.
As stated above, the Applicant agreed that she had given inconsistent answers. She stated that before the Delegate she had been asked how she had been released and that she had answered, because she had stomach bleeding. She said that the Delegate had not asked her anything further. However, she stated that when the Tribunal asked her a similar question she answered that she had stomach problems. She said that when the Tribunal asked her whether her evidence that she had stomach bleeding was true or false, she said that her husband had bribed an officer to secure her release. The Applicant submitted that those answers could not be inconsistent and were not contradictory.
However, the Applicant failed to recognise that her answer was not responsive to the Tribunal’s question and that her answers provided a foundation for the Tribunal to find that she had given inconsistent evidence to the Delegate in that she had told the Delegate that she had stomach bleeding and she had departed from that evidence before the Tribunal.
In the circumstances, the Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave, including its adverse credibility finding arising out of what the Tribunal found to be inconsistent evidence in relation to her allegation of stomach bleeding and stomach problems.
The Applicant also claimed that the Tribunal was biased because it focussed on her employment before coming to Australia and did not accept that she was the public relations manager of the company in China. She stated that the Tribunal had concluded that she was not the public relations manager of the company in China because she had not provided that information in her student guardian visa. The Applicant asserted that the Tribunal’s conclusion was wrong. She asserted that, simply because she referred only to her husband’s curtain shop in her student guardian visa for which she worked did not mean that she was not the public relations manager for the Chinese company.
However, the Tribunal was entitled to have regard to the information provided by the Applicant in her student guardian visa application and any inconsistent evidence given by the Applicant to the Tribunal that was inconsistent with the information given in that student guardian visa.
The Tribunal gave that information to the Applicant in writing, by letter dated 9 April 2010, pursuant to s.424A of the Act. The letter informed the Applicant that, in support of her daughter’s student visa application made on 2 July 2007, a letter dated 18 June 2007 was provided from her husband stating that she and her husband had jointly managed the curtain shop since 2002. The letter also referred to photographs and photocopies of various stock bills dated 2005, 2006 and 2007 stating that the Applicant received various goods, including fabrics, bedding and blinds. The Tribunal’s letter advised the Applicant that the information was relevant to the review because it seemed inconsistent with the information provided by the Applicant in support of her protection visa application and her oral evidence given at the Tribunal hearing that she had been the public relations manager of a landscaping company in China since 2002 and she did not work or help in her husband’s curtain shop. The Tribunal’s letter also advised the Applicant that the information may cause the Tribunal to find that she had not been truthful in stating that she was the public relations manager of the landscaping company and that business cards she submitted in support were not genuine.
The Tribunal’s letter also stated that the information may lead the Tribunal to find that she did not organise a protest because the government had expropriated land used by the landscaping company and that the letter from her husband did not recount events which actually occurred and that her other refugee claims are not true. The letter invited the Applicant to comment. The Applicant did so by statutory declaration, dated 23 April 2010.
The Applicant’s statutory declaration gave various explanations for concerns expressed by the Tribunal. The Tribunal did not accept the various explanations provided by the Applicant and indeed found some parts of the explanation to be “nonsensical”.
Ultimately, the Tribunal found the Applicant not to be a witness of truth and rejected comprehensively all her claims in support of her protection visa application. The Tribunal’s findings were open to it on the evidence and materials before it and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
In relation to the Applicant’s claim of bias and apprehended bias, such allegations are serious. The oral evidence provided by the Applicant in support of those allegations is more in the nature of a disagreement with the findings and conclusions of the Tribunal and does not support such allegations in the face of the Tribunal’s decision record. A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the Applicant’s claims and explored those claims in some detail with the Applicant at a hearing. Further, the Tribunal’s decision record makes clear that the Tribunal put to the Applicant during the hearing matters of concern it had arising out of her evidence. The Applicant ultimately conceded as much in cross-examination.
The Tribunal also gave to the Applicant in writing information that the Applicant provided in her guardian visa application and her daughter’s student visa application that was inconsistent with evidence that she gave to the Tribunal and which the Tribunal was of the view may be the reason or part of the reason for affirming the decision under review.
To the extent that Ground 1 alleges bias by the Tribunal against the Applicant, such a claim is serious and requires evidence, such as a transcript of the Tribunal hearing. Further, it is a rare and exceptional case where bias can be demonstrated solely from the published reasons of a decision. Similarly, the mere fact that the Tribunal makes adverse findings in respect of the Applicant does not give rise to an inference of bias or, by itself, suggest that the decision-maker approached its task other than with a mind open to persuasion (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]).
As stated above, the applicants were directed on 9 August 2010 to file and serve any evidence by way of affidavit to be relied upon, including any transcript of the Tribunal hearing. As stated above, the applicants were also directed to give notice if they relied on recordings of the Tribunal hearing. As stated above, no such evidence was filed by the applicants. Neither did the Applicant seek to tender the recordings of the Tribunal hearing.
A fair reading of the Tribunal’s decision does not suggest that the Tribunal approached its task other with a mind open to persuasion. There is no evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind in determining the application for review (Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]-[32]; NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115]).As stated above, the Tribunal’s findings and conclusions were open to it on the evidence and material before it and for the reasons it gave.
Moreover, following the Delegate’s decision, the Applicant would have been on notice that her credibility was critically in issue. Thus, the Delegate’s decision and the Tribunal’s exchanges with the Applicant during the hearing were sufficient to indicate to the Applicant that everything she said in support of her application was in issue (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [35] and [47]).
Otherwise, in the circumstances, the Applicant’s complaint that the Tribunal failed to consider her claims properly and fairly does no more than invite merits review which this Court cannot undertake (Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [195] per Gummow and Hayne JJ; Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1986) 162 CLR 24 at 40-42 per Mason J).
Accordingly, Ground 2 is not made out.

Conclusion

A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the applicants at two hearings; and, had regard to all material provided in support. The Tribunal put to the applicants matters of concern it had about their evidence, both at the hearing and in writing, and noted the responses. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court should be dismissed with costs.

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Emmett FM

Date: 5 November 2010