SZRJD v MINISTER FOR IMMIGRATION & ANOR
[2012] FMCA 875
•19 September 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRJD v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 875 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – no jurisdictional error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5, 36, 65, 91R, 422B, 424A, 425, 425A, 474, Pt.7, Pt.8 |
| Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 SGBB v Minister for Immigration and Multicultural and Indigenous Affairs(2003) 199 ALR 364 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 Abebe v Commonwealth of Australia (1999) 197 CLR 510 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123 SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 |
| Applicant: | SZRJD |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 821 of 2012 |
| Judgment of: | Emmett FM |
| Hearing date: | 4 September 2012 |
| Date of Last Submission: | 4 September 2012 |
| Delivered at: | Sydney |
| Delivered on: | 19 September 2012 |
REPRESENTATION
The applicant was represented by her mother who was appointed her litigation guardian. The applicant’s litigation guardian was assisted by an interpreter in the Indonesian language.
| Appearing for the Respondents: | Ms S Zowghi |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The proceeding before this Court, commenced by way of application filed on 16 April 2012, is dismissed.
The applicant’s litigation guardian pay the costs of the first respondent fixed in the amount of $5,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 821 of 2012
| SZRJD |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 23 March 2012 and handed down on 26 March 2012.
The applicant was born in Australia on 11 May 2010 to parents who hold Indonesian citizenship and whose mother brings things proceeding as his litigation guardian.
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, a summary of the decision of a delegate of the first respondent (“the Delegate”), and a summary of the Tribunal’s review and decision.
Background
On 18 July 2011, the applicant’s parents lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act on behalf of the applicant.
On 14 September 2011, the Delegate refused the applicant’s application for a protection visa.
On 29 September 2011, the applicant’s parents lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal on behalf of the applicant.
On 23 March 2012, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 16 April 2012, the applicant’s mother filed an application in this Court seeking judicial review of the Tribunal’s decision. On 15 May 2012, the applicant’s mother was appointed the applicant’s litigation guardian for this proceeding.
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, is 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 as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”
Pursuant to s.91R(1) of the Act, a Convention related reason must be the essential and significant reason for the persecution, must involve serious harm to the person and involve systematic and discriminatory conduct. Section 91R(2) of the Act expands on the notion of persecution and serious harm when considering Art.1A(2) of the Convention.
The applicant’s application for a protection visa
The applicant’s parents set out the applicant’s claims for protection in his protection visa application.
The applicant was born in Australia, however, as the applicant’s parents hold sole citizenship of Indonesia, the applicant is an Indonesian citizen.
It was claimed that the applicant’s father converted to Christianity from Islam while in Australia.
The applicant’s parents claimed that the applicant has been baptised in Australia and has attended church in Australia with them and “is indeed a commmited [sic] Christian as his parents are”.
If returned to Indonesia, the applicant’s parents claimed that the applicant would be harmed by “Muslim fanatics and by Family Members who never wanted the Father to change his religion to Christianity” and that the applicant and his parents would not be protected by the Indonesian authorities. Further, the applicant’s mother claimed that allegations had been made to the authorities in Indonesia that the applicant’s parents had been converting those in Australia to Christianity.
The Delegate’s decision
On 15 August 2011, the Delegate invited the applicant to attend an interview on 9 September 2011. The applicant attended the interview and was accompanied by both of his parents. The applicant’s mother spoke on the applicant’s behalf.
On 14 September 2011, the Delegate refused the applicant’s application for a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Convention.
The Delegate was not satisfied that if returned to Indonesia that the applicant would be targeted for reason of his religion. In making this finding, the Delegate found that the claims advanced by the applicant’s mother were done so for the sole purpose of enhancing the applicant’s application for a protection visa. In any event, the Delegate noted that the claimed fear of harm was from the applicant’s father’s family. The Delegate noted that Indonesia was not under an obligation to guarantee the safety of its citizens from non-state agents. The Delegate concluded that there was not a real chance that Convention related persecution would occur if the applicant were to return to Indonesia.
The Tribunal’s review and decision
On 29 September 2011, the applicant, with the assistance of his parents, lodged an application for review of the Delegate’s decision by the Tribunal.
On 9 January 2012, the Tribunal wrote to the applicant informing him 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 applicant to attend a hearing on 23 February 2012 to give oral evidence and present arguments. A Response to Hearing Invitation form was completed and returned to the Tribunal. The applicant’s parents ultimately spoke on the applicant’s behalf at the hearing before the Tribunal.
The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.
The decision of the Tribunal is accurately summarised by the solicitor for the First Respondent in her written submissions as follows:
“9. The Tribunal had regard to the Department's file relating to the Applicant, including documents submitted by the Applicant's Parents in support of his Protection Visa application and the oral evidence the Applicant's parents made on his behalf at the hearing.
10. The Tribunal's findings and comments are recorded in paragraph 52 to 62 of the decision record (CB 68 to 71):
11. At the hearing, the Tribunal found a number of significant inconsistencies and deficiencies with the oral evidence presented by the Applicant's parents on his behalf. These included:
(a) the oral claims given in evidence at the hearing were generally problematic as both the Applicant's mother and his father failed to address questions put to them and seemed deliberately evasive and vague when testifying (para [54], CB 69);
(b) both the Applicant's mother and his father provided inconsistent information in relation to:
(i) whether the Applicant's father was in fact Christian and if so on what date did he become Christian;
(ii) why the Applicant's father was not baptised if he was Christian;
(iii) the Applicant's fathers non-existent understanding of the basic tenants of Christianity despite having allegedly attended Church 2-3 times a month on average for several years; and
(iv) whether the Applicant was actually at risk of being killed or physically harmed by fanatical Muslim relatives of the Applicant's father and/or extremist community groups (para [55]-[58], CB 69).
12. Based on the evidence, the Tribunal ultimately found the parents not to be truthful or credible witnesses. Due to this lack of credibility, the Tribunal did not accept that the Applicant's father converted from Islam to Christianity and found that he was still a Muslim (para [59]. CB 70).
13. Further, due to the adverse credibility finding, the finding that the Applicant's father has not converted to Christianity and the absence of a baptism certificate led the Tribunal to not accept that the Applicant has been baptised or is being raised as a Christian by his parents or has a Biblical name (para [59], CB 70).
14. Having rejected the above claims, the Tribunal found that the Applicant would not be harmed in Indonesia by either his father's family or Muslim groups for any reason if his parents returned to Indonesia with the Applicant. The Tribunal concluded that the evidence only indicated that the families did not approve of the Applicant's parents' interreligious relationship. There was no evidence to suggest that either family would subject them to serious harm for that reason (para [59], CB 70).
15. On the issue of the Applicant's mothers concerns regarding the Applicant's health and the possibility of inadequate health care in Indonesia, the Tribunal found that there was no evidence to suggest that the Applicant would be denied the health care he may require in Indonesia for a Convention reason (para [59], CB 70).
16. Thus the Tribunal found that there was no real chance that the Applicant would be persecuted in the reasonably foreseeable future for reasons of religion or any other Convention reason(para [59]-[60], CB 70).”
Under the heading “Findings and Reasons” the Tribunal noted that the applicant’s claim for protection was reliant on the applicant’s father conversion from Islam to Christianity while in Australia. However, the Tribunal noted that it “found the oral evidence given by the applicant’s parents at the hearing most problematic”. It found that the applicant’s mother’s answers were “generally lengthy yet often failed to specifically address the question asked” and the applicant’s father’s responses were “brief, vague and hesitant… which often failed to address the question asked”. When the applicant’s parents were asked to give details about the applicant’s father’s alleged religious conversion, the Tribunal noted that they appeared to “resist giving specific information” and when pressed “they provided inconsistent information”.
When the Tribunal questioned the applicant’s father about his current religious beliefs it noted that he “seemed deliberatively evasive when asked what fundamental beliefs of Christianity he believed in… [and when] questioned further he eventually provided such a general response that it appeared that he had no real understanding of Christianity despite claiming to have been attending church for several years…”
In relation to the harm that the applicant’s parents claimed the applicant would face if returned to Indonesia, the Tribunal noted that they seemed to change and exaggerate their evidence. The Tribunal found that the applicant’s mother changed her evidence from a claim that the applicant’s grandfather would hurt the applicant and wanted to kill him, to a claim that instead the father’s family would insult the applicant and put him down. The Tribunal put this inconsistent evidence to the applicant’s mother and noted her response that a friend had informed her that her husband’s family had made such a statement. The Tribunal found that had such a statement been made, and the applicant’s mother was made aware of this, the applicant’s mother would have mentioned this when the Tribunal posed the question of what harm the applicant would face if returned to Indonesia. The Tribunal found that the applicant’s mother had embellished her evidence to strengthen the applicant’s claims.
In relation to the applicant’s father’s responses to what harm the applicant would face if returned to Indonesia, the Tribunal noted that the applicant’s father was “vague” and provided inconsistent responses. The applicant’s father also mentioned that he had been in contact with his family while in Australia and they were aware that he had converted to Christianity and was raising his son as a Christian, but had not threatened to harm the applicant. The Tribunal did not find it credible that the applicant’s father would maintain contact if he truly believed that he and his son would face harm from them if returned to Indonesia. Accordingly, the Tribunal found that the applicant’s father’s family had “never seriously harmed him, his wife or anyone else for reasons of their religious beliefs”.
Ultimately, the Tribunal found that the applicant’s parents were not credible witnesses. The Tribunal found that the applicant’s father had not converted to Christianity and therefore was still a Muslim and that the applicant has not been raised as a Christian. Consequently, the Tribunal found that if returned to Indonesia, the applicant would not face harm from the applicant’s father’s family or from Muslim groups. The Tribunal affirmed the decision of the Delegate not to grant the applicant a protection visa.
The proceeding before this Court
The applicant was represented by his mother, who had been appointed his litigation guardian and who had the assistance of an interpreter in the Indonesian language.
On 15 May 2012, the applicant and his mother attended a directions hearing before me. I explained to the applicant’s mother that this Court had no power to interfere with the decision of the Tribunal, unless the Court is satisfied that the Tribunal’s decision is affected by a mistake going to the jurisdiction of the Tribunal. I also explained to the applicant’s mother that the grounds of the application made bare assertions that were unsupported by particulars and did not by themselves disclose an error capable of review by this Court. The applicant’s mother confirmed that the applicant wished to continue with the application. 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, as well as submissions in support.
At the directions hearing, the applicant was referred to the Court’s RRT Legal Advice Scheme for free legal advice. The applicant’s mother has participated in the Court’s RRT Legal Advice Scheme and received free legal advice. The applicant’s mother was also provided with the contact details of legal services providers and interpreting and translation services in documents headed in her own language.
At the commencement of the hearing, the applicant’s mother confirmed an amended application had not been filed on behalf of the applicant. The applicant’s mother confirmed that the only document filed in support of the applicant’s claim since the directions hearing was an affidavit of the applicant’s mother, sworn and filed on 3 July 2012, attaching a purported transcript of the Tribunal hearing.
The applicant’s mother confirmed that the applicant relied on the grounds contained in the application filed on 16 April 2012 as follows:
“1. The RRT member overlooked the fear of persecution and possible death in Indonesia.
2. The RRT misapplied the law.
3. The RRT member is bias and has no right to say that the parents are not credible witnesses.”
Each of the grounds was interpreted for the assistance of the applicant’s mother and the applicant’s mother was invited to make submissions in support of each of the grounds and in support of the application generally.
The applicant read an affidavit of herself attaching an alleged transcript of the Tribunal hearing. The transcript attached was not verified by an affidavit of the translator. It was objected to by the solicitor for the first respondent on the grounds of relevance. I asked the applicant what was the relevance of the transcript. The applicant referred evidence given by her to the Tribunal that the applicant’s father is afraid to go back to Indonesia because he is afraid that his family may harm the applicant.
As I understood the applicant’s submissions in support of the tender of the alleged transcript, it was to show that what she had told the Tribunal was truthful. The applicant did not appear to be asserting that the Tribunal’s decision record was in any way inaccurate in relation to the Tribunal’s summary of exchanges that it had at the hearing with the applicant’s mother and the applicant’s father. I understood the applicant to be tendering the transcript to show that she did in fact tell the Tribunal of the fears that she and the applicant’s father held for the applicant from the applicant’s father’s family and the Muslim community if the applicant was returned to Indonesia. Otherwise, the applicant was unable to identify the relevance of the transcript to any issue before this Court.
Accordingly, on the basis that the applicant’s mother was unable to establish its relevance and the fact that the transcript had not been certified by the translator, its tender was rejected.
Ground 1
Ground 1 was unsupported by particulars, evidence or written submissions.
Following a brief discussion with the applicant’s mother, I understood her complaint in relation to ground 1 to be an assertion that the Tribunal did not understand the difficulties of an interreligious marriage in Indonesia and the risk of harm in which the applicant would be placed because of his parent’s interreligious marriage. However, as is apparent from the reasons below, the applicant did not claim to fear harm in Indonesia because of his parent’s interreligious marriage.
A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims made on behalf of the applicant are that, because of the applicant’s father’s conversion from Muslim to Christianity and the applicant’s Christian belief, the applicant would be at risk of harm from the applicant’s father’s family members and the Muslim community in Indonesia.
The Tribunal noted that the applicant’s mother confirmed to the Tribunal that “she feared Muslim fanatics and family members, specifically her husband’s relatives, would harm the applicant for reason of her husband’s conversion to Christianity”.
The Tribunal noted that it questioned the applicant’s mother about her claim to fear Muslim fanatics she believed would harm the applicant. The Tribunal noted her response that the applicant’s father’s family were fanatic Muslims and did not want their descendants to be of different religions. The Tribunal noted that “she added that perhaps Muslim groups who knew her husband and son were Christians would harm her son”.
The Tribunal noted that it questioned the applicant’s mother as to why she believed that the applicant’s father’s family would harm the applicant. The Tribunal noted her response that her belief was based on her own experience where her father was a Muslim and her mother was a Christian and she had been treated “unpleasantly” by her father’s family. The applicant’s mother said that she had been “insulted and put down” and did not want the applicant to have a similar experience. The Tribunal then queried the basis of the claim that the applicant’s father’s family would want to kill the applicant. The applicant’s mother responded she said that she meant to say that they would “insult and put him down which would be like being killed”.
The Tribunal summarised exchanges it had with the applicant’s father about his conversion to Christianity and the applicant’s baptism. The Tribunal noted that when it asked the applicant’s father when the applicant was baptised, the father “hesitantly stated it was a few months after his birth”. The Tribunal noted that it asked for the applicant’s baptismal certificate and was told it had not been brought to the hearing. The Tribunal requested that it be provided after the hearing. The Tribunal noted that the baptismal certificate was never provided post hearing.
The Tribunal noted that it asked the applicant’s father about harm the applicant may face from his family. The Tribunal noted the applicant’s father’s response that his natural brothers and sisters would be angry and not acknowledge the applicant, but that he did not know if they would harm him. The Tribunal noted that it put to the applicant’s father that being angry and not recognising the applicant did not seem to amount to serious harm. The Tribunal noted the applicant’s father’s response that his family was angry and “could do anything – verbal or physical things”.
The Tribunal also noted that it put to the applicant’s father why he believed his family would harm the applicant, given that they did not harm the applicant’s mother because of their interreligious relationship. The Tribunal noted that it asked the applicant’s father whether his family had said anything to indicate that they would seriously harm the applicant’s father, mother or the applicant. The Tribunal noted the applicant’s father’s response that they had not verbalised any threats “but their tone was not a nice one”. The Tribunal noted that it put to the applicant’s father that there did not seem to be any foundation for his claim that his family would harm him, the applicant or his wife.
The Tribunal also noted exchanges it had with the applicant’s father about the applicant’s mother’s religion. During this exchange, the applicant’s father told the Tribunal that the applicant’s mother’s father was a Muslim when he was young but later became a Christian.
The Tribunal noted that it then took further evidence from the applicant’s mother. The Tribunal put to her that the applicant’s father had said that the applicant’s mother’s father was a Christian who had converted from Islam and asked the applicant’s mother why she had said that her father was a Muslim. The Tribunal noted the applicant’s mother’s response that she had been subjected to unpleasant treatment and believed it would be worse for the applicant. The Tribunal noted that the applicant’s mother said that in Indonesia a lot of people got together and there were many Muslim gatherings so it did not feel pleasant or secure. The Tribunal noted the applicant’s mother’s evidence that she had lived in fanatic Muslim surroundings in which Christians were viewed as forbidden. The Tribunal noted the applicant’s mother’s evidence that she had not been harmed by Islamic groups because she had not been born a Christian.
As stated above, ultimately, the Tribunal comprehensively rejected the applicant’s parents claims that the applicant’s father had converted from Islam to Christianity and that the applicant was being raised as a Christian. The Tribunal’s findings were based on its adverse credibility findings in respect of each of the applicant’s parents. Those findings were based on the evidence given by each of the applicant’s parents which the Tribunal found to be “deliberately evasive”, “brief, vague” and inconsistent in significant aspects. The Tribunal found that neither the applicant’s mother nor the applicant’s father had been subjected to serious harm by reason of their interreligious marriage from either parent’s family.
The Tribunal noted that it was not claimed that the applicant would be harmed because of his parents interreligious marriage or because his mother is a Christian. The Tribunal noted there was no evidence to support such a claim. The function of the Tribunal is to respond to the case that the applicant advances (Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at 405 per Kirby J; SGBB v Minister for Immigration and Multicultural and Indigenous Affairs(2003) 199 ALR 364 at [17] per Selway J; NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 at [58]-[60] per Black CJ, French and Selway JJ).
A fair reading of the claims made on behalf of the applicant are that the applicant fears harm in Indonesia because of the applicant’s father’s conversion from Muslim to Christian and the applicant’s upbringing as a Christian. The Tribunal rejected both those claims. Having rejected those claims, the Tribunal found that the applicant would not be harmed in Indonesia either by his father’s family or by Muslim groups if the applicant returned to Indonesia with his parents.
Those findings were open to the Tribunal on the evidence and material 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).
It is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).
To the extent that ground 1 asserts that the Tribunal overlooked the applicant’s claim of a fear of persecution and possible death in Indonesia, for the reasons above, such a claim is not made out.
Otherwise, ground 1 appears to be more in the nature of a disagreement with the findings and conclusions of the Tribunal. Such complaints invite merits review which this Court cannot undertake (Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54; 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).
Accordingly, ground 1 is not made out.
Ground 2
Ground 2 was not supported by particulars, evidence or oral or written submissions.
At the commencement of its decision record, the Tribunal identified the correct law in considering whether or not the applicant had a well-founded fear of persecution for a Convention related reason. A fair reading of the Tribunal’s decision record makes clear that the Tribunal applied that law to the findings that it made in reaching its ultimate conclusion that there was not a real chance the applicant would be persecuted in Indonesia in the reasonably foreseeable future for any Convention reason and that the applicant does not have a well-founded fear of persecution in Indonesia for a Convention reason.
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.
The Tribunal is required to conduct its review in accordance with Pt.7, Div.4 of the Act. Section 422B of the Act provides that Pt.7, Div.4 is an exhaustive statement of the natural justice hearing rule. The applicant was invited to come to a hearing in accordance with s.425 and s.425A of the Act to give evidence and present arguments.
The Tribunal’s adverse credibility findings were based on information given by each of the parents for the purposes of the applicant’s review application. It is well established that the Tribunal’s assessment of the evidence before it and inconsistencies that it finds in that evidence, leading to its adverse credibility findings, is not information that enlivens any obligation under s.424A of the Act on the part of the Tribunal. Further, neither are the Tribunal’s subjective appraisals, thought processes and determinations, defects, gaps or lack of detail in an applicant’s evidence capable of being information that enlivens s. 424A of the Act (see SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18] per Gleeson CJ, Gummow, Callinan Heydon and Crennan JJ; VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123 at [14] per Finn and Stone JJ).
The Tribunal put to the applicant’s parents its concern that there was no baptismal certificate in respect of the applicant’s baptism and gave the applicant’s parents two weeks to provide evidence of the applicant’s baptism. The Tribunal noted that at the date of its decision record no baptismal certificate had been provided. The Tribunal’s hearing concluded on 23 February 2012 and the decision record was dated 23 March 2012.
In the circumstances, the assertion in ground 2 that the Tribunal “misapplied the law” is not made out.
Accordingly, ground 2 is rejected.
Ground 3
Ground 3 was not supported by particulars, evidence or written submissions.
In support, the applicant restated that the Tribunal did not understand the situation in Indonesia in respect of persecution of different religions. That complaint has been largely dealt with in ground 1 above.
Otherwise, to the extent that ground 3 asserts bias on the part of the Tribunal, such a claim is serious and requires evidence. 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]).
Whilst the applicant’s mother tendered an unverified transcript that was rejected, she did not seek to tender the transcript in support of any bias allegation. As stated above, the applicant’s mother did not assert that the Tribunal’s decision record was in any way inaccurate or deficient. The applicant’s mother did not provide any other evidence to support the allegation of bias.
Again, the complaint in ground 3 appears to be more in the nature of a disagreement with the Tribunal’s findings and conclusion thereby inviting merits review which this Court cannot undertake (see 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).
Accordingly, ground 3 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 applicant’s parents at a hearing; and, had regard to all material provided in support. The Tribunal put to the applicant’s parents matters of concern it had about their evidence and noted the applicant’s parent’s 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 seventy-five (75) paragraphs are a true copy of the reasons for judgment of Emmett FM
Date: 19 September 2012
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