SZRRG v Minister for Immigration - [2013] FMCA 173

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRRG v MINISTER FOR IMMIGRATION & ANOR

[2013] FMCA 173

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal’s findings were open to it – whether the Refugee Review Tribunal’s decision was affected by bias – whether the Refugee Review Tribunal breached s.424A of the Migration Act1958 (Cth) – no jurisdictional error – application dismissed.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 36, 65, 91R, 474, Pt.8

Abebe v Commonwealth of Australia (1999) 197 CLR 510
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39
Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207
Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264
NAYU v Minister for Immigration and Multicultural Affairs [2004] FCA 528
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
Reg v The District Court; Ex parte White (1966) 116 CLR 644
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609
SZRLA v Minister for Immigration and Citizenship & Anor (SYG929/2012)
VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123
VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459
W389/01A v Minister for Immigration and Multicultural Affairs (2002) FCR 407
WAGJ of 2002 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 277
Waterford v The Commonwealth (1987) 163 CLR 54

Applicant:

SZRRG

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1627 of 2012

Judgment of:

Emmett FM

Hearing date:

12 March 2013

Date of Last Submission:

12 March 2013

Delivered at:

Sydney

Delivered on:

12 March 2013

REPRESENTATION

The applicant appears in person with the assistance of an interpreter

Solicitors for the Respondents:

Sparke Helmore

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1627 of 2012

SZRRG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Extempore

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 dated 29 June 2012 and handed down on 2 July 2012 (“the Tribunal”).
The applicant is a citizen of the People’s Republic of China (“China”) and of Christian faith. (“the Applicant”).
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 from China on 10 May 2011, which he claims to have done illegally utilising a passport and Tourist visa issued in his brother’s name.
On 1 August 2011, the Applicant lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.
On 29 September 2011, the Delegate refused the Applicant’s application for a protection visa.
On 20 October 2011, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
On 29 June 2012, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 26 July 2012, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

In their written submissions in SZRLA v Minister for Immigration and Citizenship & Anor (SYG929/2012), Minter Ellison, the solicitors for the first respondent, attached a useful summary of the relevant legislative scheme. That summary is as follows:
“1. Under section 65(1) of the Act, the first respondent may grant a visa if he is satisfied of a number of matters, including that the prescribed criteria for the particular visa have been satisfied.
2. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection (Class XA) visa (Regulation 2.01 of the Migration Regulations 1994 (the Regulations) and to the Regulations).
3. Section 36(2)(a) of the Act provides that:
(2) A criterion for a protection visa is that the Applicant for the visa is:
(a) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.
4. The 'Refugees Convention' is defined in section 5 of the Act as meaning the Convention relating to the Status of Refugees done at Geneva on 28 July 1951. The 'Refugees Protocol' is defined in that section as meaning the Protocol relating to the Status of Refugees done at New York on 31 January 1967.
5. Subject to certain exceptions, provided for in section 36(3) of the Act, Australia has protection obligations under the Refugees Convention to persons who satisfy the definition of 'refugee' in Article 1 of the Refugees Convention. Article 1A(2) of the Refugees Convention defines a refugee as a person who:
owing to 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, is unable or, owing to such fear, is unwilling to return to it.
6. Section 36(2)(aa) of the Act provides that:
(2) A criterion for a protection visa is that the applicant for the visa is:
(aa) a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.
7. Under section 411(1)(c) of the Act, a decision to refuse to grant a protection visa is a decision which may be reviewed by the second respondent.
8. Relevantly, in conducting that review, the second respondent must comply with the natural justice hearing rule, the requirements of which are exhaustively stated in Division 4 of Part 7 of the Act (section 422B(1) of the Act). That Division contains sections 424A and 425, which provide that:
424A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.
425 Tribunal must invite applicant to appear
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
9. Under section 474(2) of the Act, a decision of the second respondent is a 'privative clause decision'. Under section 474(1)(a) of the Act, a privative clause decision is final and conclusive.
10. However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.”

The Applicant’s application for a protection visa

The Applicant provided a statement in support of his protection visa application in which he stated the following:
a)He has had to leave China to escape being arrested by the Public Security Bureau (PSB) as he is a Christian and an activist for his local church which is regarded as an “Evil Cult” by the Chinese government.
b)In 2005 and 2006 respectively, the Applicant’s two sons arrived in Australia on student visas. In 2010, the Applicant learned that his eldest son was having problems in Australia and may have been suffering from depression. The Applicant was however unable to contact his son and was worried about him. The Applicant and his wife then unsuccessfully applied for Australian visas.
c)In 2010, the Applicant’s employment contract was terminated and he was unable to continue to financially support his sons in Australia.
d)In 2010, he was baptised as a Christian and became an active member in a Local Church, regularly attending secret gatherings of the Church.
e)In 2011, he established a secret gathering group of the Local Church and rented a house in his hometown, using it as a place to organize special gatherings for the group.
f)In May 2011, the police raided one of the gatherings of his Local Church. He escaped, however, eight of the members of the Church were arrested by the PSB. He was advised to go into hiding as he was in great danger.
g)He contacted his brother who had been planning to travel to Australia and persuaded his brother to let him travel in his place as part of a tour group, using his brother’s passport.
h)In May 2011, he arrived in Australia and ran away from the tour group.
i)He did not let anyone know that he had arrived in Australia on his brother’s passport as he was afraid he would be arrested by the Australian government.
j)He has since been informed that members of his Local Church in China have been arrested and more Christians, including his wife, have been subjected to investigations by the PSB.
k)The police in China have suspected that the Applicant’s brother let him go to Australia on purpose and, consequently, his brother has been arrested and placed in custody without release.
l)If he returns to China, he will be arrested by police and subjected to persecution by the Chinese government.

The Delegate’s decision

On 22 September 2011, the Applicant attended an interview with the Delegate.
On 29 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 accepted that the Applicant is a Christian, but was not satisfied that he was a member of a Local Church in China or could have been considered to be a leader of a Local Church in China. The Delegate was not satisfied that the Applicant had a genuine fear of harm and found that any fear of persecution was not well founded for those reasons.

The Tribunal’s review and decision

On 20 October 2011, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 30 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 12 March 2012 to give oral evidence and present arguments.
On 29 March 2012, the Tribunal wrote to the Applicant informing him of the alternative criteria for the grant of a protection visa under the Migration Amendment (Complementary Protection) Act 2011. The letter invited the Applicant to another hearing to present arguments on 30 April 2012.
On 12 March 2012 and 30 April 2012, the Applicant attended the Tribunal hearings and gave evidence.
At both hearings, the Tribunal explored the Applicant’s claims with him extensively. The Tribunal put to the Applicant matters of concern it had about his evidence and the Tribunal noted in detail the Applicant’s responses.
The Tribunal noted that it also had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.
Ultimately, the Tribunal found the Applicant’s explanations not to be credible. The Tribunal found a number of inconsistencies in the Applicant’s evidence which it identified in detail in the decision record, together with its concerns about the reliability of the Applicant’s evidence.
The Tribunal found the Applicant not to be a witness of truth and rejected his claims of his past experiences in China, his reasons for leaving China and his fears of returning to China.
Ultimately, the Tribunal did not accept that the Applicant has a well founded fear of persecution if he was to return to China for any Convention reason. The Tribunal was not satisfied “that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s being removed from Australia to China, there is a real risk that the applicant will suffer significant harm”.
The Tribunal concluded that the Applicant did not satisfy the criterion for being a refugee as set out in s.36(2)(a) of the Act and was not satisfied that the Applicant is a person to whom Australia has protection obligations under s.36(2)(aa) of the Act.
The Tribunal’s decision is accurately reflected in the written submission of the solicitors for the First Respondent, and are as follows:
“13. The Tribunal rejected the applicant’s claims to fear harm on the basis of strong adverse credibility findings: CB 186, par 186. The Tribunal found that the applicant came to Australia for the purpose of making contact with his eldest son, who had been studying in Australia since April 2005. The son had refused to speak to the applicant or the applicant’s wife since April 2010. The Tribunal relied on the applicant’s own evidence that he had begged his brother for the chance to come to Australia to find out the truth about what had happened to his son (CB 186-187, par 188) as well as the applicant’s visible distress when giving evidence about his son: CB 187, par 193. The Tribunal’s view was reinforced by the applicant’s evidence that he had met with his son on 26 December 2011 and tried to convince him to return to the PRC: CB 188, par 197. The Tribunal found this evidence was inconsistent with the applicant’s claimed fear of persecution in the PRC: CB 188, par 197.
14. The Tribunal also found that the applicant “was not forthright and honest” in relation to the information and evidence he gave about his financial circumstances in China which went to the core of his claim to fear persecution: CB 188, par 199. The Tribunal found that when the applicant lodged his protection visa application, he sought to give the impression that he was under great financial pressure which led him to join the Local Church. By contrast, the applicant’s evidence at the Tribunal hearing was that he was financially secure and did not need to earn a substantial income when he lost his job, given his assets and the rental income that he received: CB 188-189, pars 199-205.
15. The Tribunal also found that the applicant’s evidence about the incident on 6 May 2011 was inconsistent in an important respect, namely whether the police had knocked on the door of the unit or whether they were outside the wall surrounding the unit: CB 189, par 206.
16. On the basis of these findings, the Tribunal did not accept that the applicant had any involvement in the Local Church in China or that he fled China for that reason: CB 189, par 207. Nor did it accept that the raid on 6 May 2011 occurred, church members were arrested or the applicant escaped: CB 190, par 210. The Tribunal was not satisfied that the applicant had a well-founded fear of persecution for reasons of his religion should he return to China: CB 190, par 211.
17. The Tribunal was not required to accept the applicant’s claims at face value and the weight to be given to his claims and evidence was a matter for the Tribunal to assess as part of its fact-finding function.[1] Those findings were open to it on the available material and the court cannot review the merits of the Tribunal’s decision.[2]
18. The Tribunal accepted that the applicant attended Christian meetings in Australia but given its adverse credibility findings found that the applicant had engaged in this conduct solely to strengthen his protection claims: CB 190, pars 208-209. Accordingly and pursuant to s.91R(3), the Tribunal disregarded the applicant’s conduct in Australia for the purposes of assessing whether he faced a well-founded fear of persecution upon return to China.
19. The Tribunal was not satisfied that there were substantial grounds to believe that as a necessary and foreseeable consequence of the applicant being removed to China, there was a real risk that the applicant would face significant harm in accordance with s.36(2A): CB 190, pars 213-216. Accordingly, the Tribunal found that he did not satisfy the complementary protection criteria or that he was owed protection obligations under s.36(2)(aa).
20. In considering whether the applicant met the complementary protection criteria, the Tribunal expressly took into account the applicant’s conduct previously disregarded pursuant to s.91R(3). The Tribunal found that because the applicant’s knowledge of Christianity was obtained for the purposes of his application for a protection visa, he would not follow the practice of the Local Church if he returned to China: CB 190, par 214.
[1] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281-282
[2] Minister for Immigration & Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259 at 272
Accordingly, the Tribunal affirmed the decision under review.

The proceeding before this Court

The Applicant was unrepresented before this Court, although had the assistance of a Mandarin interpreter.
On 31 August 2012, the Applicant attended a directions hearing before me. I explained to the Applicant 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. The Applicant confirmed that he 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 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 his own language.

On 2 November 2012 the Applicant filed an amended application. However, the amended application was not served upon the First Respondent.
At the commencement of the hearing, the Applicant confirmed that he relied on the grounds contained in the amended application, filed on 2 November 2012. Whilst the First Respondent had not been served with a copy of the application, the solicitors had prudently searched the Court file and discovered that an amended application had been filed. In the circumstances, the First Respondent had prepared submissions addressing the amended application and therefore had no objection to leave being given to the Applicant to rely on the grounds in the amended application. Those grounds are as follows:
“1. The Tribunal made its findings based on completely incorrect evidence and information. …
Firstly, I clearly told the Tribunal that there were five doors in total. Three of them were in the storage (warehouse); and two of them in the wall surrounding the storage. Secondly, there was a dog inside the wall and outside the storage. Thirdly, the police knocked on the door urgently in the wall surrounding the storage, which not only caused the dog’s barking but also came to out attentions. However, obviously, the police were still outside the wall at that time. Finally, I therefore had a chance to help Elder Lin to flee away.
Apparently, it is definitely not he case that I have given the inconsistent evidence. Instead, the Tribunal misunderstood or misinterpreted or even changed my evidence.
In conclusion, the Tribunal made its finding based on completely incorrect evidence and information in relation to my claims.
Likewise, the Tribunal made its finding based on completely incorrect evidence and information in relation to my motivation to Australia as well as my elder son’s problem in Australia.

2. The Tribunal’s decision has included a reasonable apprehension of bias.
Particulars
According to the Migration Act 1958 (the Act), I have found that:
Section 420, Refugee Review Tribunal’s way of operating
420(1) The Tribunal, in carrying out its functions under this Act, is to pursue the objectives of providing a mechanism of review that is fair, just, economical, informal and quick.
(2) The Tribunal , in reviewing a decision:
(a) is not bound by technicalities, legal forms or rules of evidence; and
(b) must act according to substantial justice and the merits of the case.
I have never ever accepted that the Tribunal has acted according to substantial justice and the merits of the case. On the contrary, the Tribunal made an arbitrary finding about my motivation to Australia, which, the Tribunal though, was soely owing to my elder son’s problem.
3. The Tribunal failed to provide me with the particulars of the information which the Tribunal considered as a reason or part of the reason to affirm the decision under review. Particularly, the Tribunal failed to take necessary steps to genuinely ensure me to understand the information and failed to provide me a genuine opportunity to comment on or respond to the information.
Particulars
In the Tribunal’s decision, the Tribunal considered the information about my financial background (page 29-30) of the Tribunal’s decision) as a reason or part of the reason to affirm the decision under review. However, the Tribunal failed to clearly provide me particulars of the information; and the Tribunal failed to take necessary steps to genuinely ensure me to understand the information and failed to provide me a genuine opportunity to comment on or respond to the information. ”

The grounds of the amended application also contained extracts from a transcript prepared by the Applicant. Those extracts were objected to by the solicitor for the First Respondent, Ms Johnson, on the basis that the complaints made by the Applicant did not suggest that the Applicant’s summaries of the various exchanges it had with the Applicant were not accurate.
Further, the Applicant tendered a document purporting to be a transcript of the Tribunal hearing that was not verified by the translator, and was not served upon the First Respondent. The Applicant told the Court that the document had been prepared by his son. That document was also objected to by the First Respondent on the basis that it was not in proper form and had not been served, and on the grounds of relevance.
I directed the Applicant’s attention to the Orders made by the Court made on 31 August 2012, when the Applicant appeared before me at a directions hearing with the assistance of an interpreter. On that occasion, the Applicant was directed to file and serve by way of affidavit any additional evidence to be relied upon, including any transcript of a Tribunal hearing, by 9 November 2012. Any transcript of the Tribunal hearing was to be verified by way of affidavit by the translator. Further, if the Applicant wished to rely on a recording of the Tribunal hearing, then he was to give notice to the First Respondent and the Court by 9 November 2012 and identify the issue to which any part of the recording was relevant and the approximate duration of the relevant recording.
I asked the Applicant what was the issue to which the transcript or recording was relevant. He confirmed that he relied upon the extracts referred to in the amended application. I then directed the Applicant’s attention to the relevant paragraphs in the Tribunal’s decision record of its summary of the evidence referred to by the Applicant in the transcript extracts in the amended application. As stated above, the Applicant confirmed that the Tribunal’s summaries of those exchanges was accurate.
As a result, the First Respondent’s objection to the tender of the document purporting to be a transcript of the hearing was upheld, and the transcript was rejected.
Each of the grounds was interpreted for the assistance of the Applicant and the Applicant was invited to make submissions in support of each of the grounds and in support of the application generally.

Ground 1

Ground 1 asserts that the Tribunal ‘misunderstood or misinterpreted, or even changed’ the Applicant’s evidence and that therefore its findings were based on incorrect evidence and information.
The Applicant confirmed that his complaint arose from the Tribunal’s rejection of his evidence about his claims of being involved in a raid on 6 May 2011 in China as a result of his participation in a Local Church. The Tribunal comprehensively rejected the Applicant’s claims about any such incident and did not accept that the Applicant would follow the Local Church religion if he was to return to China.
The Applicant agreed that the Tribunal’s summary of his evidence on 6 May 2011 is correct and consistent with his statement in the amended application quoted above in the second paragraph of Ground 1.
The Tribunal expressed its concerns about the Applicant’s evidence of the incident on 6 May 2011 as follows:
“206. The Applicant’s evidence about what happened on 6 May 2011 was inconsistent in an important respect. He initially said during the first hearing that the people at the gathering realised they were surrounded when they heard a dog barking and urgent knocks on the door. After the Tribunal said it found it difficult to accept that the police would not block the three doors to the unit and prevent people from leaving, he said he did not leave through the doors and he believed that the police were still outside the wall surrounding the unit when they heard the dog bark. That they were still outside the wall is inconsistent with hearing urgent knocks on the door. It is also an illustration of the way the applicant’s evidence changed in response to questioning from the Tribunal. This inconsistency reinforces the Tribunal’s view that the Applicant was not a truthful witness.”
In the circumstances, it was open to the Tribunal to find that the Applicant’s evidence was inconsistent and that such inconsistency undermined the Applicant’s credibility.
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).
The Tribunal’s findings were open to it on the materials and evidence 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 Ground 1, the Applicant also asserted that the Tribunal’s finding in relation to the Applicant’s motivation in coming to Australia was based on incorrect evidence and information.
In his visa application lodged on 1 August 2011, the Applicant stated that in April 2010 he and his wife learned that their elder son, who was studying in Australia with another son, had some problems and might suffer from depression. He said he and his wife were very worried about the elder son and that, coincidently, the Applicant’s brother was planning to travel to Australia and New Zealand. The Applicant stated that he begged his brother for the chance to visit his two sons.
At the first hearing before the Tribunal, the Applicant said that on 22 November 2010 he asked his younger son to return to China because he was concerned that the loss of contact with his elder brother might affect his study and that he wished to hear from the younger son what had happened to the elder son. The younger son returned to Australia in January 2011 to continue his studies.
The Tribunal noted that it put to the Applicant that the reason the Applicant wished to come to Australia was because of his concerns about the elder son. The Applicant agreed.
The Tribunal’s concerns about the Applicant’s evidence about why he left China were explored with him at the hearing. On the evidence and material before it, it was open for the Tribunal to find that the Applicant’s claim of having been forced to leave China because of his role in the Local Church was not true.
In the circumstances, this complaint does not identify any jurisdictional error on the part of the Tribunal and appears more to be 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).
The following was stated in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] by North, Lander and Katzmann JJ:
“It was not for the Federal Magistrate’s Court, nor for this Court, to review the merits of the RRT’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. A wrong finding of fact is not an error of law: Waterford v The Commonwealth (1987) 163 CLR 54 at 77. Unsound reasoning is not an error of law: Reg v The District Court; Ex parte White (1966) 116 CLR 644 at 654; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.”
Accordingly, Ground 1 is not made out.

Ground 2

Ground 2 asserts that the Tribunal’s decision was affected by bias. The substance of the Applicant’s complaint of bias appears to arise from the Tribunal’s findings about his motivation for coming to Australia and its adverse credibility findings about the Applicant.
A claim of bias 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.
As stated above, the Applicant sought to tender a document purporting to be a transcript of the Tribunal hearing. However, there was no specific complaint made by the Applicant that any content of that document contained evidence of bias, beyond the Applicant’s disagreement with the Tribunal’s adverse findings and conclusions.
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]).
Otherwise, the Applicant was invited to attend a hearing before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. The invitation was sent to the Applicant in accordance with ss.425 and 425A of the Act. The Applicant gave evidence at two hearings. A fair reading of the Tribunal’s decision makes clear that the Tribunal explored the Applicant’s claims with him in some significant detail and put to him matters of concern that it had arising from his evidence, and noted his responses.
A fair reading of the Tribunal’s decision does not disclose any prejudgment on the part of the Tribunal in the sense that the Tribunal was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented.” (Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 at [69], [71]-[72], [127]).
A fair reading of the Tribunal’s decision does not suggest that the Tribunal approached its task other than 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 were open to it on the evidence and materials before it and for the reasons it gave.
Accordingly Ground 2 is not made out.

Ground 3

Ground 3 appears to suggest that the Tribunal breached its obligations under s.424A of the Act by asserting that the Tribunal failed to give to the Applicant information which the Tribunal considered may be part of the reason for affirming the decision under review.
I asked the Applicant what was the information which he contended was required to be given to him by the Tribunal for comment. The Applicant said that it was the Tribunal’s rejection of his evidence of his financial circumstances as reliable and the Tribunal’s concern that the Applicant had not been truthful when giving his evidence about his financial circumstances.
The evidence of the Applicant’s financial circumstances was given by the Applicant to the Tribunal for the purposes of its review. Section 424A(3)(b) and (ba) of the Act provides that the obligations of s.424A are not enlivened in respect of information given by an Applicant for the purpose for the application for review, or given by the Applicant during the process that led to the decision under review.
There was no other information before the Tribunal and to which it had regard that enlivened any obligation under s.424A of the Act. It is well established that the Tribunal’s disbelief of an applicant’s evidence arising from inconsistencies therein is not “information” for the purposes of s.424A of the Act. Neither does information include the Tribunal’s subjective appraisals, thought processes and determinations, defects, gaps or lack of detail in an applicant’s evidence (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 Immgration & Multicultural & Indigenous Affairs [2004] FCAFC 123 at [14] per Finn and Stone JJ).

As stated above, the Tribunal’s findings were open to it on the evidence and materials before it and for the reasons it gave.
Accordingly, Ground 3 is not made out.

Further Claims

At the conclusion of the First Respondent’s solicitor’s submissions, the Applicant was invited to say whatever he wished in response to those submissions and in support of his application generally.
The Applicant then raised a further complaint that the Tribunal should have investigated when he entered and left Australia, that he escaped the tour group and that he had entered on his brother’s passport.
The Tribunal rejected the Applicant’s claims of having used his brother’s passport to come to Australia, noting that the passport was not in evidence before it. The Tribunal found that as the Applicant was not a truthful witness, it was not satisfied that the passport used by the Applicant to enter Australia was his brother’s, nor was it satisfied that he had a brother. Further, it did not accept that the Applicant’s claims that the police in China knew that he had used his brother’s passport to come to Australia, or that he would be arrested and detained on return for that reason.
There is no general obligation on a Tribunal to investigate an applicant’s claims (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (Gleeson CJ agreeing); Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20] per Black CJ, Sundberg and Bennett JJ in joint judgment).
It may be that, in certain circumstances the Tribunal may be obliged to make some further investigation (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43]; Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20]; VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459 at [27]; WAGJ of 2002 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 277 at [21], [24] and [25]; W389/01A v Minister for Immigration and Multicultural Affairs (2002) FCR 407 at [74]-[78]; NAYU v Minister for Immigration and Multicultural Affairs [2004] FCA 528 at [18]-[21]). However, the case before this Court is not such a situation. The Applicant did not give any evidence of any degree of cogency that would have prompted an obligation on the part of the Tribunal to investigate his claims further.
The duty imposed on the Tribunal by the Act is a duty to review and not a duty to enquire. There is no obvious failure by the Tribunal in the case before this Court to make an obvious enquiry about a critical fact, the existence of which is easily ascertained, and none is identified by the Applicant (Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
Accordingly, such a complaint 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 at a hearing; and, had regard to all material provided in support. The Tribunal put to the Applicant matters of concern it had about his evidence and noted the Applicant’s responses. The Tribunal also put to the Applicant independent country information before it and invited the Applicant to comment upon it. 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-eight (78) paragraphs are a true copy of the reasons for judgment of Emmett FM

Date: 12 March 2013