SZQGQ v Minister for Immigration - [2011] FMCA 953

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQGQ v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 953

MIGRATION – Application to review decision of the Refugee Review Tribunal – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth) ss.91R , 424A

Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303; [2010] FCAFC 51
Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Re Minister for Immigration and Multicultural Affairs; Ex parteDurairajasingham (2000) 74 ALJR 405; [2000] HCA 1
Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28
SZORJ v Minister for Immigration and Citizenship [2011] FCA 251

Applicant:

SZQGQ

FirstRespondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

SecondRespondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1086 of 2011

Judgment of:

Barnes FM

Hearing date:

10 November 2011

Delivered at:

Sydney

Delivered on:

10 November 2011

REPRESENTATION

Applicant:

In person

Solicitors for the Respondent:

Minter Ellison

ORDERS

The application is dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1086 of 2011

SZQGQ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Refugee Review Tribunal dated 30 May 2011. The Tribunal affirmed the decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of the People’s Republic of China, most recently arrived in Australia on 1 April 2010. She applied for a protection visa on 20 August 2010.
The applicant claimed to fear persecution if she returned to China as a follower of I-Kuan Tao (referred to variously in the Tribunal decision in those terms and also as Yiguan Dao) on the basis that it was regarded as a cult by the Chinese authorities. The applicant provided details of her claims in a statement accompanying her protection visa application. In particular she claimed that she had been in Australia as a student but returned to China in March 2010 because her grandfather was ill and shortly after her return met an old friend who she claimed had introduced her to the practice of I-Kuan Tao.
The applicant claimed that on the first day that she attended an I-Kuan Tao ceremony, the police came to the ceremony. Other attendees escaped but as she had spilt hot water on herself she (and the owner of the property) were detained. She claimed that she was taken to the police station, forced to admit that she was “involved in cult activities”, detained for a day and bailed out by her family. She claimed that she was able to leave China because her family bribed the police.
She claimed the Chinese police had subsequently harassed her family, that her father had lost his job and that some religious friends had been arrested after being caught distributing leaflets and were still in detention. She also claimed she attended a temple in Australia.
The applicant attended a Departmental interview. Her application was refused by the delegate of the first respondent and she sought review by the Tribunal. She was invited to and attended a Tribunal hearing. After the hearing the Tribunal wrote to the applicant pursuant s.424A of the Migration Act 1958 (Cth) (the Act) by letter of 24 March 2011. The Tribunal also invited the applicant to provide documentary evidence to support her claims. The Tribunal suggested that she may wish to consider providing documentary evidence including letters of support or statutory declarations from other I-Kuan-Tao practitioners, photographs, medical evidence, and evidence of her communications with a person referred to in her evidence as Liu, including QQ communications or emails sent to him.
The applicant responded to the Tribunal’s letter by letter dated 18 April 2011. She provided supporting documentation of the nature referred to in the Tribunal’s letter.
In its reasons for decision the Tribunal set out the applicant’s claims made in connection with her protection visa application. It summarised the applicant’s evidence at the Departmental interview. It also set out the evidence of the applicant at the Tribunal hearing and referred to issues it had raised with her in the course of the hearing.
In its findings and reasons the Tribunal summarised the applicant’s claim as a claim that she was a “follower of Yiguan Dao and that she will be persecuted by the Chinese authorities if she returns to China as they considered this to be an evil cult”.
However the Tribunal found that the applicant was “not credible and was changing her claims and adding new claims in response to concerns raised by the Department and the Tribunal”. It had regard to specified concerns about information provided in support of the applicant’s claims and the plausibility of aspects of her claims, including inconsistencies between her evidence to the Department and to the Tribunal, the “significant escalation” of her claims at the Tribunal hearing and the implausibility of aspects of her claims.
It detailed its concerns.
The Tribunal did not find the applicant’s claims about the circumstances of her conversion to I-Kuan Tao to be credible. The Tribunal recorded that it put to the applicant its concerns about the plausibility of her claims about what she said happened at her friend’s house and the “rapidity of her conversion” on that day and also an inconsistency in her evidence about whether she converted then or on the first day she attended a temple in Australia.
Nor did the Tribunal find it plausible that “the other 8-10 people attending the underground gathering at [the friend’s house] were able to leave the second storey apartment through one entry door” as claimed “without being detected by the police” who were reported as having told the applicant that they had the apartment under surveillance. Were this so, the Tribunal would have expected that it would have been “easy for the police to arrest or detain all those in attendance”.
The Tribunal did not find credible the applicant’s claim her father lost his job as a result of her being detained as a I-Kuan Tao follower.
It had regard in that respect to inconsistencies in the applicant’s evidence about her father’s employment, which it detailed. The Tribunal did not accept that these inconsistencies were a “misunderstanding” as claimed by the applicant.
The Tribunal also had regard to concerns about what it regarded as a number of new claims raised at the hearing. It “formed the impression that the applicant was creating new claims in response to concerns raised by the Tribunal or the Department and finds that this reflected adversely on her credibility”. It referred to her claim at the hearing that her “fiancé had broken off their engagement as a result of her arrest because he was a member of the Communist party and worked in a state owned enterprise”. The applicant claimed that this was a highly significant and distressing event for her and the Tribunal accepted that if it had happened it would have been “very distressing” and would have “continued to affect her for some time”. In light of this, the Tribunal found it “surprising that this claim was not raised earlier”.
It did not accept the applicant’s explanation that she did not refer to this claim earlier because she was “struggling with it privately and was not aware it was important to her application”. It had regard to the fact that at the hearing the applicant initially stated that she had included this claim in her written statement. When the Tribunal pointed out to the applicant that she had not done so, she stated that she could not recall whether she had mentioned it or not. The Tribunal was of the view that the applicant would have “referred to such a significant negative consequence of her arrest prior to the hearing had it occurred and if she did not do so because of privacy concerns then she would not have mistakenly thought that she had included it in her written statement” in support of her protection visa application.
The Tribunal also had regard to the fact that at the hearing the applicant raised a new claim that her friend’s father had “accused her of coming to China from Australia to preach about Yiguan Dao and had provided a written statement to the police to this effect”. The Tribunal found this to be a “highly significant claim as it would provide documentary evidence upon which a prosecution of [the applicant] by the authorities could be based”. The Tribunal noted that the applicant had an opportunity during the Departmental interview to provide additional information and that she did not refer to this claim. In addition, this claim was said to be “inconsistent with [the applicant’s claim] at the hearing that the police told her they did not think she was a true believer as her trip from overseas was very short”. The Tribunal found it “highly unlikely (even if [the applicant’s] father had approached the head of the police station) that the police would have said such a thing if they had a signed document stating [the applicant] had returned from Australia in order to preach about Yiguan Dao in China”.
The Tribunal also had regard to new claims raised by the applicant at the hearing that “a penalty had been imposed as a result of her father assisting her to leave the country” and that “the police had searched the applicant’s computer and that she had previously had an email account that had been cut off, which she believes the authorities did”. The Tribunal stated that it “may have been willing to give the applicant the benefit of the doubt in relation to each of these claims individually” but “in combination with the other new claims raised at the hearing” and its other credibility concerns the Tribunal found overall that the applicant “appeared to be creating new claims in response to concerns raised by the Tribunal or the Department and finds that this reflects adversely on her credibility”.
Finally, the Tribunal had regard to inconsistencies in the applicant’s evidence in relation to her knowledge of what happened to her friend in China after arrest. It did not accept her explanation that her claims were consistent and set out the inconsistencies.
The Tribunal did not find credible the applicant’s claims that “the authorities were suspicious of her when she left China on the second occasion”. Insofar as she claimed that her father had paid a third party money to amend the records in relation to her arrest, the Tribunal found “if the records were amended then there would be no reason for the authorities to be suspicious” and that if they were not, then “on the applicant’s own evidence the authorities would have been unlikely to have allowed her to leave China”.
The Tribunal also found that the applicant’s delayed lodgement of her protection visa application after her return to Australia added to the impression that “her departure from China was unrelated to Yiguan Dao or any other refugee-related matter”. It acknowledged that in some cases there “may be good reasons” for such delay and that delay “did not necessarily preclude an applicant also having a well-founded fear of persecution”. However when asked about the delay at the hearing, the applicant had provided no plausible explanation, other than a general desire to return to China “if things calmed down” but claimed that she was unable to do so because of the claimed persecution. The Tribunal considered that the delay cast further doubt on the applicant’s claims.
The Tribunal considered medical evidence provided by the applicant about burns she claimed were caused as a result of spilling hot water on herself when attempting to flee from the friend’s apartment in China.
It observed that the medical evidence referred to an appointment on 6 April 2011 in relation to burn scars on the applicant’s abdomen and thighs but “did not provide any opinion on when or how the burns occurred”. The Tribunal placed little weight on this evidence and did not consider it overcame its significant concerns.
The Tribunal found for these reasons considered cumulatively that the applicant was “not a witness of truth and has fabricated her claims about what happened to her in China”. It found that she had no association with I-Kuan Tao in China. It did not accept that she had engaged in any conduct, I-Kuan Tao or other, secretly in order to avoid persecution; that the authorities detained and assaulted her; that she was burnt by hot water while trying to escape from the police or that her friend remained in the apartment in order to assist her or was detained and remained in detention as a result of I-Kuan Tao activities. Nor did it accept that a written statement had been provided to the police accusing the applicant of returning to China in order to preach about I-Kuan Tao; that the applicant’s father lost his job or was fined as a result of the applicant’s arrest; that her fiancé broke off their engagement as a result of her arrest; that her security record was cleared only due to intervention of a family connection or that she departed China for any other refugee-related reason.
Under the heading “sur place claims” the Tribunal referred to the fact that the applicant had raised significant new sur place claims at the hearing. She claimed she had communicated with an I-Kuan Tao follower in China by the name of Liu and that she had electronically sent him information about I-Kuan Tao from Australia that was used in brochures that were distributed. She claimed that the persons distributing those brochures had been detained and that they would have been aware that she had provided the information from Australia, although she did not know those persons.
The Tribunal recorded that at the hearing the applicant claimed not to be aware of any action taken against Liu as a result of these events. However in her post-hearing submission the applicant provided a translation of a claimed QQ communication with Liu dated 12 and 13 April 2011 (after the hearing and request for further information) which stated that he had been interrogated, searched and fined.
The Tribunal stated that it had a number of “significant concerns” in relation to these claims. It did not find it credible that the applicant “would be sending electronic communications to a person she does not know in China about Yiguan Dao when she knows that it is illegal”. Nor did it find it credible that she would “believe herself to be at risk due to the arrest of people she did not know” who were distributing information she had sent to Liu (whom she also did not know).
The Tribunal could see “no basis for such a fear when [the applicant] was not aware at [the time of the hearing] of any action having been taken Liu whom she claimed she had sent such information”. Although the applicant later provided the QQ communication suggesting action had been taken against Liu the Tribunal observed that “this was only in response to the Tribunal’s expressed concern about the plausibility of her claims”. The Tribunal also had regard to the fact that the applicant had not provided any evidence of claimed QQ or email communications from a time prior to the hearing.
The Tribunal found that the claimed QQ communication with Liu dated 12 and 13 April 2011 appeared to have been “staged”. It found it “highly unlikely that the one single communication would have covered so many issues relevant to the applicant’s protection visa application”, including her burn scars, mental health, what happened to her family in China, a description of the information she had previously sent to Liu, what happened to Liu and the other practitioners as a result of distributing that information, the applicant’s fears about her use of a named website and its subsequent banning, the fact she did not know Liu’s name, her broken engagement, her beliefs in I-Kuan Tao and a link to further information about I-Kuan Tao.
In addition, given the applicant’s claim that she did not know Liu, the Tribunal found it “difficult to understand how Liu would know that the police had been to the applicant’s family house and searched it but found nothing”, as set out in the QQ communication.
The Tribunal also had regard to the translated copy of a claimed QQ communication with another person that was also provided and dated after the hearing. Having regard to the applicant’s evidence that she was not in contact with this person and “had not seen her online for quite a while” the Tribunal found it suspicious that she had been able to re-establish contact with this person after the hearing.
In addition, the Tribunal had regard to the fact that the applicant had stated at the hearing that she did not know Liu’s full name or gender. In the QQ communication Liu had stated it was better that she did not know Liu’s name. However the Tribunal stated that the applicant’s QQ communication with the person the applicant claimed was Liu, included Liu’s full name as “Liu Qianxian” and the applicant referred to Liu as “him”. In light of these concerns and those set out elsewhere in the decision about the applicant’s general credibility, the Tribunal placed no weight on the QQ communications provided.
The Tribunal found, in light of its concerns and the adverse finding in relation to the applicant’s credibility, that the applicant “had not been sending information to a person in China about Yiguan Dao”. It did not accept her claim that she sent information used in pamphlets distributed illegally in China or that the persons distributing those pamphlets were subsequently detained.
The Tribunal then considered the applicant’s claims about practising I-Kuan Tao in Australia. It had regard to the fact that the applicant had provided photographs of her association with I-Kuan Tao in Australia, a copy of a baptism certificate dated 19 May 2010, a letter from a housemate attesting to her belief in I-Kuan Tao and found that at the hearing she had demonstrated some knowledge of the beliefs and practices of I-Kuan Tao followers. The Tribunal referred to the applicant’s claim that her temple was not allowed to issue a certificate for anyone who served in it, but that a named person was willing to give an oral reference if required. However, the Tribunal did not consider it necessary to contact such named person for oral evidence as it accepted that the applicant had engaged in I-Kuan Tao activities in Australia since 19 May 2010, that she had “conducted some limited evangelising and presented herself to others as being a genuine follower”. In view of the Tribunal’s overall adverse findings in relation to the applicant’s credibility and the fact the applicant claimed to have converted to I-Kuan Tao on the first day she attended temple in Australia, it was not satisfied that she had engaged in this conduct otherwise than for the purpose of strengthening her claims for protection. Hence it disregarded such conduct under s.91R(3) of the Act.
The Tribunal did not accept that if the applicant was to return to China she would continue to practise I-Kuan Tao. It found that she did not have a well-founded fear of persecution for a Convention reason if she were to return to China now or in the reasonably foreseeable future.
The applicant sought review by application filed in this court on 30 May 2011. The application contains six grounds. The applicant did not file written submissions but was given an opportunity to make oral submissions.

It is convenient to consider first the grounds in the written application. The first, second and third grounds repeat the basis for the applicant’s claim for protection and seek impermissible merits review.
The fourth ground is that the “Tribunal didn’t pay enough attention to the facts I have explained, as well as the evidences and witnesses provided after the hearing” (sic).
In one sense this ground also seeks merits review, insofar as it takes issue with the Tribunal’s failure to accept the applicant’s claims. This does not establish jurisdictional error and merits review is not available in this court.
Insofar as the applicant contends that the Tribunal failed to consider an integer of her claims, that is not made out on the evidence before the court. The Tribunal’s reasons for decision show that the Tribunal considered the claims made in the applicant’s protection visa application and her written statement in support, the claims she made in the interview with the delegate, as well as the evidence and arguments presented at the hearing and her response to the Tribunal’s invitation to comment and provide further information. There is nothing before the court to establish that the Tribunal failed to consider any aspect of the applicant’s claims in a manner constituting a failure to have regard to relevant considerations.
Insofar as this ground takes issue with the Tribunal’s credibility finding, credibility is a matter for the Tribunal par excellence (see Re Minister for Immigration and Multicultural Affairs; Ex parteDurairajasingham (2000) 74 ALJR 405; [2000] HCA 1) and the Tribunal’s findings were open to it on the material before it for the reasons which it gave. It is apparent from the Tribunal reasons for decision that it properly considered the criteria for the grant of a protection visa, in particular whether the applicant had a well-founded fear of persecution for a Convention reason. No error is apparent or suggested in relation to the Tribunal’s approach to the applicant’s practise of I-Kuan Tao in Australia and the application of s.91R(3) of the Act.
Insofar as this ground takes issue with the Tribunal’s consideration of the evidence the applicant provided after the hearing, the Tribunal specifically addressed this material. It considered the medical evidence of 6 April 2011 in relation to the applicant’s burns which it found did not provide any opinion on when or how the scars on the applicant’s abdomen and thighs occurred. In those circumstances the Tribunal considered but placed little weight on that evidence. The Tribunal also considered the QQ communications with Liu and another person, but for the reasons which it gave placed no weight on those communications. The weight to be given to items of evidence is a matter for the Tribunal. As discussed further in relation to ground 5, no jurisdictional error is established in that respect. Furthermore, the Tribunal considered the applicant’s evidence in relation to her practise of I-Kuan Tao in Australia, including her offer that a named person would give an oral reference if required. No error is apparent in the Tribunal’s view that it was unnecessary to contact that person because it accepted that the applicant had engaged in I-Kuan Tao activities in Australia, including conducting some limited evangelising and presenting herself to others as a genuine follower.
No jurisdictional error has been established on the basis contended for in ground 4 of the application.
Ground 5 is that:
Tribunal made a mistake to the evidence I have provided, for instance in paragraph 92-94, in regards to QQ communication between me and Liu and Haiyang ZHANG, I did claim that I did not know Liu’s full name and sex of his and this is true. The mistake is found in the following sentence: However in the QQ communication with Haiyang ZHANg (sic) it includes Liu’s full name as Liu Qianxian and the application refers to Liu as “him”. Apperantly (sic) this is a misunderstanding and wrong judgment as “Qianxian” is not first name of a person, instead this is a special calling or terminology used by Tao members to show each other’s respect. It like Mr or Ms when Tao’s member calling each other. In fact over here I still have no idea about the real name of Liu and sex of this person indeed. I suggest Tribunal better investigate the detail.

Reference is made to paragraphs [92] to [94] of the Tribunal decision in which it discussed the applicant’s sur place claim and the claimed QQ communications. The alleged mistake is said to be in regard to the QQ communications. The applicant acknowledged that she claimed that she did not know Liu’s full name and gender but submitted that the Tribunal made a mistake in finding:
However, in the QQ communications with Haiyan ZHANg (sic) it includes Liu’s full name as Liu Qianxian and the applicant refers to Liu as “him.”

There is no evidence, other than the applicant’s assertion, that the Tribunal did in fact make a mistake of fact in this respect. However, as the first respondent submitted, even if this was an error of fact, it nonetheless did not amount to a jurisdictional error or demonstrate jurisdictional error. As set out above, the Tribunal’s consideration of the applicant’s knowledge of Liu’s full name arose in the context of its consideration of whether any weight should be attributed to the QQ communications provided after the Tribunal hearing.
The Tribunal found that it was not credible that the applicant would be sending such communications to a person she did not know in China about an illegal cult, or that she would be at risk due to the arrest of people she did not know distributing such information. It had regard to the fact that at the time of the Tribunal hearing when the applicant made this claim she was not aware of any action having been taken against Liu, to whom she said she sent the information. The Tribunal also had regard to the fact that there was no evidence of any QQ or email communications made prior to the hearing, such as the communications in which the applicant said she had provided such information. Rather, all that the applicant provided was a translated copy of claimed communications dated after the hearing.
The Tribunal found the communication with Liu appeared to have been staged, for the reasons that it gave. It was also suspicious that the applicant would have been able to re-establish contact with the other named person following the hearing, given that she stated she had not been in contact with that person. It was after making those findings that the Tribunal noted, in addition, that the applicant had stated at the Tribunal hearing that she did not know Liu’s full name or gender.
It accurately recorded that in the QQ communication with the other person, the applicant referred to Liu as “him” and, in such context, stated that that communication included Liu’s full name as “Liu Qianxian”.
However, taking the applicant’s contention at its highest even if Qianxian is not a name, a wrong finding of fact of itself is not an error of law (see Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303; [2010] FCAFC 51 at [20] and NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10]). As the Full Court stated in NAHI jurisdictional error does not comprehend errors of fact as to the merits of the case put to the Tribunal.
Moreover there were a number of reasons given by the Tribunal for rejection of the applicant’s general credibility which did not relate in any way to the issue of the full name of Liu. The Tribunal also gave several reasons for rejecting her sur place claims. The issue about her knowledge of Liu’s name was one reason, but not an essential reason, why the Tribunal placed no weight on the QQ communications provided. As stated by Cowdroy J in SZORJ v Minister for Immigration and Citizenship [2011] FCA 251, in circumstances where there are a number of reasons given by the Tribunal for a finding that an applicant’s claims lacked credibility and one was “possibly” “open to question” (at [46]):
…since such reason was not critical to the determination and any of the other five reasons satisfied the Tribunal member that the appellant’s claim of persecution by the YCL was implausible, the Court considers that the Tribunal’s decision cannot be set aside on this ground alone.
The same may be said in relation to the alleged error of fact in relation to whether or not the QQ communication included Liu’s full name.
Insofar as this ground suggests that the Tribunal should “better investigate the detail”, this is not a case in which there was any obligation on the Tribunal to conduct an investigation. As Cowdroy J stated in SZORJ at [53]:
If the appellant intended to assert that the Tribunal ought to have sought further evidence, such is not the role of the Tribunal. The Tribunal is under no obligation to investigate or conduct an inquiry to discover whether the appellant’s case might be better put or even supported by their evidence.

The issues raised by the applicant in ground 5 do not establish a jurisdictional error on the part of the Tribunal.
Ground 6 is that:
Tribunal claimed that I have provided and concluded I was creating new claims in response to concerns raised by the Tribunal…(sic) I don’t think this is proper and fair judgment (paragraph 82). Tribunal is suggested to make right judgment and decision according to facts and thorough investigation in stead of personal assumption in my case (sic).
The Tribunal finding in relation to the applicant’s claim about her fiancé breaking off his engagement as a result of her arrest was open to it on the material before it for the reasons it gave. In oral submissions today the applicant suggested that she did not know about her fiancé having broken off the engagement at the time of the Departmental interview. However the Tribunal recorded that it gave the applicant an opportunity to explain why she had not raised this claim earlier and she claimed that she was struggling with it privately and was not aware it was important and that she initially stated that she had included it in the written statement in support of her protection visa application.
The claims that the applicant makes in oral submissions today seek to provide a further explanation for her failure to raise this claim at an earlier stage, but do not establish that the Tribunal fell into jurisdictional error in its approach to the claims raised by her. I note in that respect that the Tribunal did not simply reject the new claims because they were raised late. It acknowledged that it may have been willing to give the applicant the benefit of the doubt in relation to some individual new claims, but having regard to all the concerns it described and all the new claims, was of the view that the applicant appeared to be creating new claims in response to concerns raised by the Tribunal or the Department and that the fact that she did so reflected adversely on her credibility.
It was open to the Tribunal to have regard to the manner and circumstances in which the applicant raised new claims in reaching its adverse credibility finding. Again, credibility is a matter for the Tribunal par excellence. Its findings in that respect were open to it on the material before it for the reasons which it gave.
Insofar as the applicant suggested that the Tribunal should have made a further investigation, there is no general obligation on the Tribunal to carry out an investigation of an applicant’s claims. This is not a case in which the Tribunal can be said to have failed to make an obvious enquiry about a critical fact the existence of which is easily ascertained as was considered by the High Court in Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39.
No jurisdictional error is established on the basis contended for in ground 6 of the application.
I note for the sake of completion that in the orders sought by the applicant in her application, she stated that the Tribunal “questioned me at hearing (sic) and made me feel very sad” and “never trusted” her and that she did “not think that [the Tribunal member] had the right attitude” to her application. Taken broadly this may be seen as seeking to raise an allegation of actual or apprehended bias. The only evidence before the court of what occurred in the Tribunal hearing is the Tribunal reasons for decision. There is nothing in the Tribunal’s account of what occurred in the hearing to establish either actual or apprehended bias in the sense considered in Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28 and Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17. These are serious allegations which need to be distinctly made and clearly proved.
It is the case that the Tribunal questioned the applicant on her claims and aspects of the claims with which it had concern. However even vigorous questioning does not, of itself, constitute either actual or apprehended bias (see Re Refugee Review Tribunal; Ex parte H at [29] – [30]). It is apparent from the Tribunal account of what occurred in the hearing that the applicant was given the requisite opportunity under the Migration Act to present arguments and address issues relevant to the review. It is not apparent that the Tribunal had reached a predetermined conclusion. Nor is apprehended bias established from the perspective of the appropriately informed reasonable lay observer (Ex Parte H at [28]).
I also note that after the hearing the Tribunal put to the applicant under s.424A particulars of information that, subject to her comments, would the reason or a part of the reason for affirming the decision under review. It took the applicant’s responses into account. Contrary to any suggestion of bias, the Tribunal specifically gave the applicant the opportunity to provide further documentary evidence and gave her examples of the sort of evidence that might be of assistance to it. Such conduct is not indicative of actual or apprehended bias. In its reasons for decision the Tribunal considered such material. No jurisdictional error is made out on that basis.
In oral submissions, much of what the applicant said took issue with the merits of the Tribunal decision. No jurisdictional error is established on that basis. As indicated, merits review is not available in this court. Insofar as the applicant took issue with the Tribunal’s credibility findings and suggested that it needed to carry out an investigation, again, credibility findings are a matter for the Tribunal and there was no obligation on the Tribunal to carry out a general investigation of the applicant’s claims in the manner that appears to be contended.
As no jurisdictional error has been established on any of the bases contended for, the application must be dismissed. Before I make the orders, I will hear submissions in relation to costs.
Having regard to the relative lack of complexity in this case and the nature of the grounds raised (several of which sought no more than merits review) and the costs awarded in other similar cases of this nature, I consider that an appropriate and reasonable amount is the sum of $4,000.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Barnes FM

Date: 1 December 2011