SZSBR v Minister for Immigration

Case •

[2013] FCCA 847

•

18 July 2013

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSBR v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 847
Catchwords:
MIGRATION – Application for review of decision of Refugee Review Tribunal – whether the Tribunal fell into the error described in Machmud – whether the Tribunal misunderstood s.424AA of the Act – allegation of bias – possible complaint of unreasonableness or illogicality – no jurisdictional error – application dismissed.
Legislation:  
Migration Act 1958 (Cth), ss.36, 424AA, 424A, 425, 476
Machmud v Minister for Immigration & Multicultural Affairs [2001] FCA 1041
SZDWG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1339
SZDPF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 235
Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749
VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs[2002] FCA 668
Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 266 ALR 367
SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1
SZOYU v Minister for Immigration & Anor [2012] FMCA 316
Makouei v Minister for Immigration & Multicultural Affairs (unreported, Federal Court of Australia VG 327 of 1997, Wilcox J, 6 February 1998)
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
SZDWG v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1339
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 79 ALJR 1009; [2005] HCA 24
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; 206 ALR 471
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; (2006) 93 ALD 300; [2006] HCA 63; (2006) 81 ALJR 515
Applicant: SZSBR
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 2420 of 2012
Judgment of: Judge Nicholls
Hearing date: 23 May 2013
Date of Last Submission: 23 May 2013
Delivered at: Sydney
Delivered on: 18 July 2013

REPRESENTATION

The Applicant: In person
Counsel for the Respondents: Mr P Knowles
Solicitors for the Respondents: DLA Piper

ORDERS

  1. The title of the first named respondent is amended to ‘Minister for Immigration, Multicultural Affairs and Citizenship’

  2. The application made on 24 October 2012, and amended on 7 February 2013, is dismissed.

  3. The applicant pay the first respondent’s costs set in the amount of $6,000.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2420 of 2012

SZSBR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), on 24 October 2012 and amended on 7 February 2013, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 20 September 2012, to affirm the decision of the respondent Minister’s delegate to refuse the grant of a protection visa to the applicant.

Background

  1. The applicant is a citizen of the People’s Republic of China (“China”) (Court Book – “CB” – CB 12). She arrived in Australia on 15 November 2011. On 12 January 2012, and with the assistance of a migration agent, “Songtao Lu”, the applicant applied for a protection visa (CB 1 to CB 32, including attachments).

  2. On 30 April 2012 the applicant provided a statement in support of her application for a protection visa (CB 33 to CB 47). That statement, translated by her migration agent (CB 42), expanded upon the claims to protection made in her application.

  3. The applicant’s claims to protection can be summarised as follows:

    1)She was a Falun Gong practitioner in China and, because of her practice, she was persecuted (CB 19 to CB 20). The applicant claimed that she was imprisoned because of her beliefs and, upon her release, was “under constant harassment” by the Chinese police (CB 33.2).

    2)In particular, the applicant claimed that she was arrested in September 2005 and detained for two months, during which time she was “tortured…in a lot of ways” (CB 36.8 to CB 37.2). Further, that she was arrested in May 2009 and detained until November 2009. Although she was not tortured on that occasion, she was required “to do lots of physical work in the daytime” and to read anti-Falun Gong material (CB 39.8 to CB 40.5)

    3)The applicant claimed that, in the period between her arrests, she, variously, hid at her friend’s home and moved around China to avoid being found by the police (CB 39).

    4)Following her release, the applicant commenced work in a travel agency. Through her employment she heard of “how much freedom you could have in foreign countries” and, as a result, decided that she wanted to “escape out of China and [her] depressed life” (CB 41.5). In order to obtain a passport she was required to pay a large sum of money (CB 41.7).

    5)The applicant feared that if she returned to China she would be persecuted because of her Falun Gong beliefs and would be imprisoned by the Chinese authorities (CB 21). In addition, the applicant broadly claimed that life in China “was very tough” (CB 33.2)

The Delegate

  1. The applicant failed to attend the interview with the Minister’s delegate scheduled for 11 May 2012 (CB 57.7). On 14 May 2012, and without inviting the applicant to a further hearing, the delegate decided that he was not satisfied that the applicant was a person to whom Australia owed protection obligations (CB 63). In particular, “…in the absence of an interview, [the delegate was] unable to be satisfied that the applicant has a well founded fear of being persecuted for a Refugees Convention reason” (CB 60.4). Further, the delegate was not satisfied that the applicant met the complementary protection criterion for the grant of a protection visa (CB 61 to CB 62.3).

The Tribunal

  1. On 18 June 2012 the applicant applied to the Tribunal for review of the delegate’s decision (CB 64 to CB 67). She was assisted in making that application by the same migration agent (CB 65.6).

  2. By letter dated 21 August 2012, sent to her migration agent, the applicant was invited to attend a hearing before the Tribunal scheduled for 19 September 2012 (CB 72 to CB 74). The applicant attended that hearing (CB 77) and was assisted by an interpreter in the Mandarin language (CB 77).

  3. On 20 September 2012 the Tribunal decided to affirm the delegate’s decision (CB 91). The applicant was notified of the Tribunal’s decision by letter dated 21 September 2012 (CB 88 to CB 90). The Tribunal’s findings and reasons were set out in its decision record ([77] at CB 104 to [95] at CB 107), a copy of which was provided to the applicant.

  4. The Tribunal found that “…the applicant [was] not a truthful witness and that she [had] fabricated her claims to Australia’s protection” ([80] at CB 104). As a result, the Tribunal did not accept the applicant’s claim to have been a Falun Gong practitioner “…in China or at any time, nor to have been detained for that reason” ([80] at CB 104).

  5. The Tribunal’s adverse credibility finding was said to be based on a number of “concerns” held by the Tribunal including, relevantly, ([82] at CB 105):

    1)The lack of any corroborative evidence of the applicant’s claimed arrests and detention ([82](a) at CB 105).

    2)Her failure to make any effort to obtain evidence despite indicating at the hearing that it was available ([82](b) at CB 105).

    3)The three month delay between the applicant arriving in Australia and her lodging a protection visa application, noting that her protection visa was not lodged until three days before her tourist visa was to expire ([82](d) at CB 105).

  6. The Tribunal recorded that, pursuant to s.424AA of the Act, these “concerns” were put to the applicant, at the hearing ([83] at CB 105). Further, that the applicant’s response to those “concerns” was another recitation of her evidence at the hearing and did not resolve the Tribunal’s “doubts about the applicant’s credibility” ([83] at CB 105). As a result, the Tribunal was ([83] at CB 105):

    “…not prepared to accept the applicant’s claims or evidence unless those claims are corroborated by supporting and credible evidence or documentation, or are consistent with independent country information, or are otherwise credible by reason of internal logic, consistency over time, or compelling detail.”

    [Emphasis added. See further below.]

  7. Ultimately, the Tribunal found that ([92] at CB 107):

    “Given the relative lack of detail in the applicant’s claims (specifically, as to the dates of her claimed arrests and detentions, which the Tribunal would expect a person who had endured such events to recall with particular clarity), the absence of corroboration, the apparent contradiction in terms of the applicant’s facility with travel out of China, the delay which attended her seeking protection and the timing of that application, the Tribunal [was] not satisfied that the applicant’s claims [were] true. The Tribunal [did] not accept that the applicant was a Falun Gong practitioner in China, or that she was arrested twice and detained as such, or that she was obliged to hide from the Chinese police, or that she would have been unable to leave China if she had not paid a large sum of money to obtain a passport and exit visa.”

  8. Having found that it was not satisfied that the applicant had a well founded fear of persecution in the reasonably foreseeable future if she returned to China, the Tribunal considered the complementary protection criterion (s.36(2)(aa) of the Act and [96] – [97] at CB 107). The Tribunal was not satisfied that the applicant met that criterion ([97] at CB 107).

The Application to the Court

  1. The grounds of the amended application to the Court are as follows:

    “1. The Tribunal member has bias against me in making of the decision.

    2. The Tribunal member asked me to provide the dates on which I was arrested. I could not remember the exact dates because it happened in September 2005 and in May 2009. I just wondering how many people can remember exact dates happened 7 years ago and three years ago, even some special things happened on that day. The Tribunal member mentioned this issue many times in the decision letter, such as paragraph 81, 87 and 92.

    3. In paragraph 90 of the decision letter, RRT member mentioned that I lodged my application just three days before my visitor visa expired. The member did not consider the actual situation in relation to this matter. I arrived in Australia on 15 October 2011. Just a few days after I arrived in Australia, I went to a migration company to seek assistance. My migration agent Mr Songtao LU asked what happened to me when I was in China, and he agreed to assist me. He asked me to write down what had happened to me in China. Then he asked me go to his office on 5 January 2012. I thought he had already lodged my application for a protection visa after first time I arrived in his office. After my protection visa was refused by the Tribunal, I asked Mr Songtao Lu why he lodged my application on 12 January 2012. He just said that my visitor visa valid until 15 January 2012.

    4. The Tribunal member did not fully consider my claim that I had been persecuted in the past by Chinese government.”

    [Errors in original.]

Before the Court

  1. The matter was first before the Court on 7 November 2012. At that time, the applicant appeared in person and was assisted by an interpreter in the Mandarin language.

  2. I sought to explain to the applicant on that occasion that the Court was concerned with whether the Tribunal had made a jurisdictional error (“legal mistake”) and that the grounds of her application to the Court, as then drafted and on their face, failed to disclose such an error.

  3. The applicant had indicated her willingness to participate in the Court’s “RRT Legal Advice Scheme” and I urged her to attend, and listen carefully, to the lawyer on the panel of that scheme assigned to provide advice to her. A certificate on the Court’s file indicates that the applicant met with the panel lawyer and that written advice was provided to her.

  4. At that time, orders were also made, by consent, affording the applicant the opportunity to file an amended application. The applicant filed an amended application on 7 February 2013 (the grounds of that amended application are at [14] above).

  5. The matter was next before the Court for directions on 22 February 2013. At that time I raised with the Minister’s representative that, on its face, the Tribunal’s record raised some matters of concern. In particular, whether the Tribunal had offended the principle described in Machmud v Minister for Immigration & Multicultural Affairs [2001] FCA 1041 (“Machmud”) and other authorities (see SZDWG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1339 and SZDPF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 235). That is, whether the Tribunal had been unwilling to accept the applicant’s claims to protection unless corroborative evidence was provided by the applicant. In particular, I referred the applicant and the Minister’s solicitor to [82] – [83] (at CB 105) and [86] (at CB 106) of the Tribunal’s decision record.

  6. In addition, I raised three other matters in the Tribunal’s decision record with the Minister’s solicitor, being:

    1)The Tribunal reference to s.424AA at [83] (at CB 105) and whether the matters the Tribunal put to the applicant were “information” for the purposes of s.424A of the Act. Further, even if they were “information”, whether they were otherwise exempt under s.424A(3)(a) of the Act.

    2)The Tribunal’s concern regarding the “three month delay” between the applicant arriving in Australia and applying for a protection visa.

    3)The Tribunal’s concern that the applicant was not able to provide the specific dates on which she was arrested and detained by the police in China.

  7. The matter was set down for final hearing on 23 May 2013. At the final hearing the applicant again appeared in person and was assisted by an interpreter in the Mandarin language. Mr P Knowles of counsel appeared for the respondent Minister.

  8. Before the Court, the applicant stated that her concerns were as she had stated “before”. I understood this to be a reference to the grounds of the amended application. The applicant had nothing further to add, other than a reference towards to end of the hearing to not being able to understand why the Tribunal made an issue of when she lodged her protection visa application (three months after she arrived in Australia and just before the expiry of her tourist visa).

Consideration

Ground One

  1. Ground one of the amended application asserts actual bias on the part of the Tribunal member. It is trite to say that this is an extremely serious charge to make against an administrative decision maker, as it is an attack on that person’s integrity. For this reason, at least, such assertions must be “distinctly made and clearly proved” (Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 (“Jia Legeng”) at [69] per Gleeson CJ and Gummow J, see also SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749 at [43] per Tamberlin, Mansfield and Jacobson JJ, VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102 and Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425).

  2. The applicant has provided no particulars to explain this bare assertion, let alone any evidence to support it. In these circumstances, and in any event, having regard to what is before the Court, such an allegation is baseless.

  3. The Minister also made submissions on the basis that the applicant may have sought to extend the scope of her grounds to encompass an allegation of an apprehension of bias in relation to the Tribunal’s conduct.

  4. The test for the apprehension of bias is whether there is something in the Tribunal’s reasons which might make a hypothetical fair-minded lay person, properly informed as to the nature of the proceedings, reasonably apprehend that the Tribunal might not have brought an impartial and unprejudiced mind to its task (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ and Jia Legeng at [111]).

  5. Again, the lack of evidence hampers the applicant’s attempt to establish any such apprehension if this is what she intended to do. For example, the applicant has not put a transcript of the Tribunal hearing before the Court despite the opportunity afforded to her to provide any such evidence.

  6. As the Minister submitted, there is nothing in the Tribunal’s published reasons to even suggest the absence of an impartial mind. I note, as the Minister did, that it will be a “rare case” where bias of either ilk can be made out on the Tribunal’s decision record alone (SCAA v Minister for Immigration & Multicultural & Indigenous Affairs[2002] FCA 668 at [38] per von Doussa J, see also Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [18] per North and Lander JJ). Ground one is not made out.

Ground Two

  1. Ground two does not actually assert any legal error on the part of the Tribunal. Rather, it raises a complaint that the Tribunal asked the applicant to provide the dates on which she claimed to have been arrested in China. The application asks, rhetorically, how many people can remember exact dates for events seven, and three, years ago respectively?

  2. The Minister suggested, fairly, that the Court should consider whether the applicant, by ground two, was seeking to assert jurisdictional error in the Tribunal’s decision on the basis that the Tribunal’s reliance on the applicant’s inability to recall specific dates was “unreasonable”, “irrational”, “illogical”, “arbitrary” or “clearly unjust”.

  3. If that is the applicant’s complaint, then the issue for the Court is whether it was open to the Tribunal to come to the conclusion it did. A finding is not illogical or irrational where “logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence” (Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 266 ALR 367 (“SZMDS”) at [131] per Crennan and Bell JJ and the “sympathetic” judgment of Heydon J). That is, where minds might (reasonably) differ (see also SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1 (“SZOOR”)).

  4. An immediate problem for the applicant is that the complaint in ground two is not really an attack on the Tribunal’s decision as a whole, but to an antecedent finding (SZOYU v Minister for Immigration & Anor [2012] FMCA 316 (“SZOYU”) and SZOOR at [85] per McKerracher J). The Tribunal’s decision did not rest solely on the question of the applicant’s recall of these dates. Rather, that matter was but one of a number of matters on which the Tribunal found adversely to the applicant. In those circumstances, what was said in the authorities (SZOYU, SZOOR and SZMDS) provides the answer.

  1. In any event, even focussing on this specific matter, I agree with the Minister that the Tribunal’s reliance on the applicant’s inability to recall specific dates cannot be described as irrational, or unreasonable, or the like. That is because, while minds may differ as to this matter, it was reasonably open to the Tribunal to find that the applicant’s inability to provide relevant detail, and the absence of such detail weighed against the applicant’s claims to protection.

  2. The Tribunal’s reasoning was that the events relied on by the applicant were so traumatic (arrest, detention and physical harm) that there was an expectation that the applicant would have been able to have “sharp recall” of those events ([87] at CB 106). Further, and as noted above, the matter of the dates was only one aspect of the lack of details in this regard (see [87] at CB 106 and [92] at CB 107).

  3. In all ground two, even on a charitable view of what is asserted, is not made out.

Ground Three

  1. Ground three takes issue with [90] (at CB 106 to CB 107) of the Tribunal’s decision record:

    “The applicant’s delay in seeking Australia’s protection after she arrived in Australia is inconsistent with a genuine fear of persecution. The applicant did not seek Australia’s protection until 12 January 2012 despite having arrived in Australia on 15 October 2011 and, in particular, despite having a visa of such relatively brief currency. The applicant subsequently did not lodge her protection visa application until just three days before her visa expired, which would have rendered her liable to immediate removal for Australia as an unlawful non-citizen. This delay is not consistent with a genuine fear of persecution, and the Tribunal does not accept that the applicant delayed making a protection visa application because she did not know anyone in Australia, given that she was able to engage a migration agent to act on her behalf. Even if a stranger advised her not to apply until her tourist visa was to expire, which the Tribunal does not accept, there is no reason why the applicant would accept that advice if she were in genuine fear of return to China, and she has demonstrated by her subsequent action that she was able to engage professional migration advice and assistance.”

  2. That must be read in context with [91] (at CB 107):

    “The timing of the applicant’s protection visa application suggests that her motivation for applying for a protection visa was to regularise her migration status and to extend her stay in Australia rather than from any genuine fear of persecution if returned to China.”

  3. It is the case, as the Minister submitted, that a period of three months itself is not “especially long” (however, see also the Minister’s reference in written submissions at [16] to Makouei v Minister for Immigration & Multicultural Affairs (unreported, Federal Court of Australia VG 327 of 1997, Wilcox J, 6 February 1998)).

  4. In any event, the Tribunal’s reasoning needs to be understood in the context of the applicant’s claims and the circumstances surrounding her protection visa application. In particular, on her own account, the applicant arrived in Australia having experienced significant instances of harm in China.

  5. The Tribunal took the view that the three month delay in the applicant applying for a protection visa after arriving in Australia, in these circumstances and when seen also in light of the timing of the application (3 days before the expiry of the visa), was inconsistent with a genuine fear of persecution. The Tribunal was persuaded that, given the “relative brief currency” ([90] at CB 106) of the visa the applicant held when she entered Australia, she would have acted with greater urgency in light of her claimed fear. That finding was reasonably open to the Tribunal on what was before it.

  6. Further, it is of note that the matter of the delay and timing of the protection visa application was only one of a range of matters on which the Tribunal relied.

  7. It is also important to note that when the applicant was given the opportunity by the Tribunal to address the delay and timing of her application, her explanation was that she did not know anyone in Australia and “someone” (in context, a person previously unknown to her) at a park near Central Railway Station advised her to wait until the expiry of her visa ([63] at CB 101). In these circumstances, it was reasonably open to the Tribunal to find that this was inconsistent with a genuine fear of harm on return to China ([90] at CB 106).

  8. The Tribunal was also persuaded by the fact that the applicant had engaged a migration agent to act for her in the matter of the protection visa application. On the applicant’s account, she was referred to the migration agent by “the person” at the park ([66] at CB 101 and [70] at CB 102) soon after she arrived in Australia ([63] at CB 101). By way of her amended application, the applicant confirms that she went to the migration agent “a few days after [she] arrived in Australia”. The ground as stated asserts that she had thought that the migration agent had lodged her protection visa application earlier than he ultimately did.

  9. The difficulty for the applicant is that there is no evidence before the Court that this “explanation” was put to the Tribunal. The Tribunal cannot be held to account for failing to consider an explanation not put to it. Further, putting such an explanation to the Court now confirms the deficiency in the applicant’s ground. That is, she really seeks impermissible merits review from the Court (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”)). Ground three does not reveal jurisdictional error.

Ground Four

  1. Ground four asserts that the Tribunal did not “fully consider” the applicant’s claim of past harm in China. Given what is plainly set out in the Tribunal’s decision record in this regard ([41] at CB 97 to [59] at CB 100 and [67] at CB 101 and especially at [87] – [89] at CB 106 and [92] at CB 107) the ground really can only be understood as a complaint that the Tribunal did not accept her claims, rather than that it did not consider them. As such, ground four also seeks impermissible merits review (Wu Shan Liang).

Other Matters

  1. As set out above, I raised with the Minister’s representatives at the directions hearing in this matter, whether the Tribunal fell into error in the way described in Machmud (see [19] above).

  2. At [83] (at CB 105) of its decision record the Tribunal said:

    “…Accordingly, the Tribunal is not prepared to accept the applicant’s claims or evidence unless those claims are corroborated by supporting and credible evidence or documentation, or are consistent with independent country information, or are otherwise credible by reason of internal logic, consistency over time, or compelling detail.”

    [Emphasis added.]

  3. The relevant principle here is that a Tribunal falls into legal error if it requires an applicant to provide corroborative evidence in support of their claims before being prepared to accept those claims (see Machmud at [16] per Hill J):

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

    (See also SZDWG v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1339 at [7] per Wilcox J.)

  4. The question before the Court now, therefore, is whether the Tribunal in the current case fell into the error described in Machmud. The word “unless” as it appears at [83] (at CB 105) (see [47] above) of the Tribunal’s decision record may suggest that it did so.

  5. However, as Hill J also said in Machmud (at [17]):

    “I am conscious of the injunction of the High Court not to construe reasoning of the Tribunal pedantically”

  6. In this regard, I note Wu Shan Liang, and the reference there to Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280. That is, that a Tribunal’s decision record is “…not to be construed minutely and finely with an eye keenly attuned to the perception of error”.

  7. When the Tribunal’s decision record is read fairly, and that includes holistically, I accept the Minister’s submission that the Tribunal did not fall into the error indentified in Machmud (see [48] – [50] above). A fair reading of the whole of [83] (at CB 105), and in the context of [80] (at CB 104) and [82] (at CB 105) and what immediately follows at [84] (at CB 105), reveals that the Tribunal, on balance, reasoned that the applicant’s responses to the concerns that it put to her were not such as to assuage its concerns about the applicant’s credibility.

  8. I note that one of these concerns is in the following terms ([82](b) at CB 105):

    “That despite her credit being put in issue in the delegate’s decision record, which the applicant has read, she made no effort to obtain any evidence although she stated at the hearing that such evidence may be available.”

  9. In context, this reinforces the view that I have ultimately taken of the Tribunal’s reasoning. That is, the credibility of the applicant’s entire factual account was at issue, the Tribunal had doubts about her credibility (for a number of reasons), these doubts and reasons were exposed to the applicant, yet she made no effort to obtain any such corroborative evidence. That is, even though she had told the Tribunal that such evidence may be available.

  10. In this light, the issue for the Tribunal was its various doubts about the applicant’s claims which were not addressed by the applicant in the opportunity given to her. Ultimately that led to the Tribunal finding that the applicant had failed to give any satisfactory explanation for the absence of corroborative evidence. No legal error is revealed in these circumstances.

  11. A second matter not arising from the grounds of the application, but raised at directions earlier in the conduct of this case, involved the Tribunal’s stated use of s.424AA of the Act (see at [83] at CB 105).

  12. At [82] (at CB 105) of its decision record the Tribunal set out eight matters which it said went to its finding that the applicant was not a truthful witness (see also [80] at CB 104). At [83] (at CB 105) the Tribunal says: “These matters were all put to the applicant at the hearing pursuant to s.424AA…”.

  13. It would appear that the Tribunal misunderstood the operation of s.424AA of the Act. As was made clear in SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415, s.424AA is a facilitative mechanism by which the Tribunal can orally discharge its obligation in s.424A(1) of the Act to put to an applicant, in writing, information to an applicant which the Tribunal considers would be the reason, or a part of the reason, for affirming the decision under review (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 79 ALJR 1009; [2005] HCA 24).

  14. As set out above, s.424AA of the Act operates where the obligation in s.424A(1) of the Act is engaged. Two matters are of note here. First, the obligation in s.424A(1) of the Act extends to “information” as that term is understood in light of the High Court’s explanation in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 (see at


    [17] – [18] and the reference to VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; 206 ALR 471). Relevantly, what the Tribunal makes of the applicant’s evidence (its adverse views, subjective appraisals and the like) is not “information” for the purposes of s.424A(1) of the Act. Therefore it does not necessitate the use of the facility in s.424AA of the Act. Second, nor is the use of s.424AA necessary where “information” falls within one of the exemptions set out at s.424A(3) of the Act.

  15. The following may be said in relation to the eight matters which the Tribunal said it put to the applicant pursuant to s.424AA of the Act.

  16. Even on a charitable view, for the most part, the matters set out at [82] (at CB 105) are either the Tribunal’s view of the applicant’s evidence, the applicant’s evidence given to the Tribunal (exempt because of s.424A(3)(b)), country information (exempt because of s.424A(3)(a)) and what the applicant put in writing to the Minister’s department (exempt because of s.424A(3)(ba)).

  17. It may be that what the Tribunal was seeking to expose at [82] – [83] (at CB 105) was that it had complied with its procedural fairness obligations pursuant to s.425 of the Act and as explained by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; (2006) 93 ALD 300; [2006] HCA 63; (2006) 81 ALJR 515. That is, to expose to the applicant the detail of why the credibility of her entire factual account of past harm was at issue. That is one of the issues dispositive of the review in the current case.

  18. In any event, I accept the Minister’s submissions that, in the circumstances, the Tribunal’s reference to s.424AA of the Act does not reveal legal error. The unnecessary reference to s.424AA, or even the mistaken reference to it (instead of, perhaps, s.425 of the Act) is not an error going to the Tribunal’s exercise of its jurisdiction.

  19. As the Minister submitted, procedural fairness was accorded to the applicant. She could not have been in doubt that her entire factual account was at issue. She was given a reasonable opportunity before the Tribunal to respond and explain her claims.

Conclusion

  1. None of the grounds of the application, as amended, reveal jurisdictional error. Nor can I otherwise discern such error in the Tribunal’s decision. It is appropriate that the application, as amended, be dismissed. I will make an order accordingly.

I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  18 July 2013

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Cases Citing This Decision

2

SZTSE v Minister for Immigration [2015] FCCA 3108
SZSBR v Minister for Immigration and Border Protection [2013] FCA 1208