SZTIW v Minister for Immigration

Case •

[2014] FCCA 1582

•

14 July 2014

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTIW & ORS v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1582
Catchwords:
MIGRATION – Application for review of decision of Refugee Review Tribunal – alleged failure to consider claim – alleged failure to afford the applicants procedural fairness – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 65, 91R, 424A, 425, 476
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
SZDFZ v Minister for Immigration and Citizenship & Anor [2008] FCA 390
Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759; (2000) 183 ALR 188
WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171
Appellant P119 /2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
WALT v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCAFC 2
Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 231; [2003] HCA 26
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1
Associated Provincial Pictures Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16
Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225
NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Machmud v Minister for Immigration & Multicultural Affairs [2001] FCA 1041
Minister for Immigration & Cultural 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
First Applicant: SZTIW
Second Applicant: SZTIX
Third Applicant SZTIY
First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 2412 of 2013
Judgment of: Judge Nicholls
Hearing date: 14 July 2014
Date of Last Submission: 14 July 2014
Delivered at: Sydney
Delivered on: 14 July 2014

REPRESENTATION

Applicants: First applicant in person appearing as litigation guardian for third applicant and on behalf of second applicant.
Appearing for the Respondents: Ms S Given
Solicitors for the Respondents: Sparke Helmore

ORDERS

  1. The application made on 8 October 2013 is dismissed.

  2. The first and second named applicants pay the first respondent’s costs set in the amount of $6,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2412 of 2013

SZTIW

First Applicant

SZTIX

Second Applicant

SZTIY

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript (in part))

  1. [This matter was heard and determined on 14 July 2014. I attempted to deliver a judgment orally to the first applicant who attended Court. However, the judgment was interrupted by the persistent and very loud crying of the third applicant (a young child). The delivery of the judgment was temporarily adjourned. However, on resumption it was clear that the third applicant could not be comforted. As a result the delivery of the oral judgment was terminated midway through. The following paragraphs from [2] to [26] were read onto the record. The subsequent paragraphs are from my notes and which I intended to deliver.]

  2. I have before me today an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) made on 8 October 2013 which seeks review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 12 September 2013 which affirmed the decision of the Minister’s delegate to refuse protection visas to the applicants.

Background

  1. I have in evidence a bundle of relevant documents filed by the Minister in these proceedings (the Court Book (“CB”)). The following relevant background can be drawn.

  2. The first and second applicants before the Court who, at the relevant time, were described as being in a de-facto marital relationship applied for protection visas on 13 July 2012 (CB 1 to CB 37). Both are citizens of the People’s Republic of China (“China”) (CB 13 and CB 28). Only the first applicant (“the applicant”) made claims to fear harm (CB 12 to CB 26 and CB 34 to CB 37). The second named applicant (“the applicant’s partner”) applied as a member of her family unit (CB 27 to CB 33). He made no initial independent claims to protection. The third named applicant (“the applicant’s child”) was born in Australia in October 2012 (CB 43). He was added to the application for the visas on 22 November 2012 on the basis of being a member of his mother’s family unit (CB 46 to CB 52). 

  3. The applicant’s claims to fear harm were said to be put first on the basis of religion. That is, her membership of the Local Church in her home area in China which had come to the adverse attention of the Chinese authorities (CB 34 to CB 36). Second, because her son, the third applicant, was born out of wedlock. Further, that her child would be a “black” child, which would cause harm to all the applicants (CB 36 to CB 37). The delegate refused to grant the visas on 17 December 2012 (CB 61 to CB 90).

  4. The applicants applied for review to the Tribunal on 10 January 2013. They attended a hearing before the Tribunal on 4 September 2013 (CB 104 to CB 106). The applicant gave evidence. I note that although the applicant’s partner had made a separate claim to be a practicing Christian in Australia before the delegate, when asked by the Tribunal if he had any claims he said he did not, and chose not remain in the hearing ([7] at CB 120).

  5. The Tribunal found that the applicant was not a credible witness. It found her evidence to be “contradictory, implausible and vague” ([54] at CB 128). The Tribunal gave a large number of examples to support that finding (see [55] at CB 128 to [61] at CB 129). On this basis, the Tribunal did not accept the applicant’s claim of fear of returning to China because of her claimed involvement with the Local Church ([62] at CB 130). Further, it found that the fact of having a child out of wedlock was not such as to cause serious or significant harm if the applicants were to return to China ([63] at CB 130 to [78] at CB 133). 

  6. I note from the Minister’s submissions filed in these proceedings, the Minister’s summary of the Tribunal’s findings. I find them to be an accurate reflection of what the Tribunal found in this matter and for convenience, I adopt them for the purposes of this judgment ([8] – [16] of the Minister’s written submissions):

    “[8] Specifically, the Tribunal found that the applicant gave contradictory and changing evidence about the period in which she attended the Local Church in China (CB 128 at [56]) and that she had a lack of knowledge about whether Christmas and Easter were celebrated in the Local Church, the practices of pray-calling and the tripartite notion of human beings (CB 128 at [57]).

    [9] The Tribunal also found that the applicant had given inconsistent and conflicting evidence about whether she knew the amount of the fee required to register a child born out of wedlock (CB 128 to 129 at [58]) and found that she had given vague evidence about what materials she allegedly sent to her aunt in China (CB 129 at [59]).

    [10] The Tribunal found that the applicant had fabricated her evidence and this was the cause of her inconsistent, vague and changing evidence throughout the hearing (CB 128 to 129 at [58]). The Tribunal did not accept that the applicant sent any religious materials to China and/or that this was known to the Chinese authorities (CB 129 at [59]).

    [11] On the basis of evidence provided by Brother William Poh, the Tribunal accepted that the applicants had attended the Local Church in Australia since February 2012 (CB 129 at [62]). However, given that the applicants only started attending in the year that they applied for Protection visas, which was almost 6 years after they arrived in Australia, the Tribunal found that this attendance was for the sole purpose of furthering their claims for protection and therefore disregarded this conduct in assessing their claims (CB 129 to 130 at [62]). The Tribunal also found that the first and second applicant did not have a genuine commitment or interest in the Local Church and would not have contact with the Local Church when they return to China (CB 129 to 130 at [62]).

    [12] The Tribunal accepted that the third applicant was born out of wedlock and that China’s family planning rules require parents to pay a fee where children are born out of wedlock. The first applicant indicated at the commencement of the hearing that she and her [partner] intended to marry. The Tribunal found that if this occurred their child could be covered by the exemption rules (CB 130 at [64]). If they did not marry, the Tribunal found that they would be able to pay a fee to register their child. The Tribunal found that they would be able to pay the social compensation fee based on the applicants’ evidence that their income totalled $200-$300 per week or more (CB 130 at [65]).

    [13] Although the first applicant later said that she feared that the second applicant would leave her as a result of family disapproval, the Tribunal found that she would be able to register the child on her own Hukou and did not accept that she could not obtain work to support herself and the child (CB 130 to 131 at [66]). The Tribunal found on the basis of accepted independent country information that sole parents are able to survive in Fujian (CB 130 to 131 at [66]).

    [14] On the basis of accepted independent country information, the Tribunal found that the applicant’s claims of social discrimination were not established (CB 130 to 131 at [66]). The Tribunal found that a child living with a “mum” and “dad” would face little discrimination and even if the child was not registered and faced discrimination, it would not amount to serious harm or persecution (CB 131 at [68]). On the basis of accepted independent country information, the Tribunal found that the applicant could access private education and health care (CB 132 at [72] and [75]). The Tribunal accepted that the child may be subject to social stigma but found that the child was unlikely to suffer serious social disadvantage (CB 132 at [72] and [75]).

    [15] Although the Tribunal disregarded the applicant’s conduct in Australia for the purposes of assessing the applicant’s Convention related claims, the Tribunal considered this conduct when assessing the complementary protection obligations. It found that there was no risk of significant harm as there was nothing on the evidence before it to indicate that the applicants would continue to have contact with the Local Church if returned to China or that the Chinese authorities would become aware of their contact with the Local Church in Australia (CB 132 at [74]).

    [16] Having considered the claims individually and cumulatively, the Tribunal was not satisfied that the applicant had a


    well-founded fear of persecution for any Convention reason or that there was a real risk that they would face significant harm if he returned to China (CB 133 at [76] to [78]).”

  7. I add to this that the applicant claimed that the applicant’s partner, in company with the applicant, had some contact with the Local Church in Australia. In relation to both, the Tribunal disregarded this conduct pursuant to s.91R(3) of the Act ([62] at CB 129 to CB 130).

  8. In relation to the complementary protection criterion, the Tribunal recognised that such conduct could not be disregarded (“excluded”) under the complementary protection criterion. However, it found that there was nothing before it to indicate that any of the applicants, either individually or collectively would continue to have contact with the Local Church in China if they returned to China. Further, that in the circumstances the authorities in China would remain unaware of their conduct in Australia.

Application Before the Court

  1. The application made to the Court proposes, or seeks, five orders from the Court and then sets out four items that are said to be the grounds of the application:

    “Orders Sought by the Applicant

    1, I don’t think DIAC and RRT’s decision re fair and reasonable as they failed to take a good consideration in my commitment of religion, ignoring my background and actual practice of Christian in China and Australia.

    2, RRT did not consider my statement and comments given to the questions asked in the hearing and judge my faith simply by knowledge, instead of real practice and fact.

    3, RRT failed to prudently consider our risk, especially my child due to my commitment of paralyzing if we return to origin.

    4, RRT failed to consider my statements, explanation, and evidence provided in supporting my claim as a whole.

    5, RRT treat my case unfair and unreasonable and did not consider that I will be punished by the Chinese government due to family planning issue

    The Grounds of the Application are:

    1, I am a Chinese student and have faithful and committed Christian faith. I have been persecuted and threatened by Chinese authority due to underground church practice, and have a fear of return to origin. People associated to local church activity are also adversely affected.

    2, I have been actively involved in church actives in Australia. My action and religious performance has been evidenced by church elder with reference.

    3, RRT unreasonable suspect of the truthfulness of my claims just because of the absence of the evidence

    4, Tribunal’s over objective in judging the explanation and the response of the applicant at the hearing”

    [Errors in the original.]

Before the Court

  1. At the hearing today, the applicant appeared in person. She was assisted by an interpreter in the Mandarin language. The third applicant, a young child, attended Court with her. I note an order that I made previously appointing the applicant as the litigation guardian for her child.  The applicant’s partner did not appear. The applicant said that he was at work. I accept the applicant’s statement made to the Court that he knew she was here and she would speak for him.


    Ms S Given appeared for the Minister.

Consideration

  1. When given the opportunity to address the Court, the applicant stated that the Tribunal did not “help” her.  She said that the Tribunal refused her plea and asked of the Court why the Tribunal did that.

  2. In short, the answer to that question is to be found on a fair, if not plain, reading of the Tribunal’s decision record. Essentially, the Tribunal did not believe what she said. It is the case that the Tribunal is not compelled to believe or accept anything, or everything, that an applicant says to it (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437). The obligations on the Tribunal are to consider the claims made by an applicant, make findings of fact in relation to those claims, and to then assess in light of those findings of fact whether the applicant satisfies either one of the criteria that is set out at s.36(2) of the Act.

  3. The Tribunal rejected the applicant’s claims, particularly in relation to the matters of religion, that she had a well-founded fear of serious harm or would be subject to significant harm if she were to return to China.  It is trite to say that findings of fact, including findings on credibility, are for the Tribunal to make, and so long as those findings are reasonably open to the Tribunal to make on what is before it, the Court cannot intervene (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 (“Durairajasingham”).

  4. When given a second opportunity to speak before the Court today, the applicant in essence made complaints that went to the conduct of the hearing before the Tribunal.  It is the case that applicants before the Tribunal are entitled to a fair hearing and a meaningful opportunity to give their evidence and present their arguments (SZDFZ v Minister for Immigration and Citizenship & Anor [2008] FCA 390 at [22] per Flick J and Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759; (2000) 183 ALR 188 at [31]). For such applicants who are not English speakers or who do not have adequate proficiency in English and interpreters are required, the level of interpretation must be adequate to the purpose (WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171 and Appellant P119 /2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230).

  5. The applicant submitted to the Court that the Tribunal asked her “one question” many times. She claimed that she was already nervous at the beginning of the Tribunal hearing. This persistent question further confused her and she did not know how to answer the Tribunal. The applicant said that she could not now remember what this “one question” was. Further, the applicant also complained that the tone of the interpreter was “serious”. She asserted that these circumstances showed that she was not fairly treated.

  6. I note that at the first Court date in this matter on 4 December 2013, I gave the applicants the opportunity to file and serve an amended application and any affidavit containing additional evidence that they wished to rely upon. Despite that opportunity, in the over seven months that the applicants have had to attend to these matters, nothing further has been filed by them in these proceedings. 

  7. The applicant’s complaints today, therefore, can only be assessed on the evidence that is actually before the Court. Relevantly, the evidence that is contained in the Tribunal’s decision record.  There is nothing in that material to suggest that the Tribunal persisted with “one question” such that that would have made the applicant nervous or confused. 

  8. Rather, the Tribunal’s decision record reveals that the Tribunal had “difficulty” in obtaining the “most basic evidence” from her and, separately, that many important aspects of her evidence left her claims in a vague state ([39] at CB 125 and [54] at CB 128). On the evidence that is before the Court, I cannot see that the Tribunal denied the applicant a meaningful opportunity to give her evidence. Similarly, I note that there is nothing on the face of the Tribunal’s decision record to suggest that there were any difficulties with interpretation. 

  9. It may be that the applicant’s complaints today were an attempt to explain the Tribunal’s perception of the quality of her evidence. But whatever the situation, the evidence before the Court does not support the applicant’s complaints made today.

Grounds of the Application

  1. Grounds one and two of the application are no more than a restatement of the applicant’s claims to protection as put before the Tribunal. There is no express, or even reasonably implied assertion of legal error on the part of the Tribunal expressed in these grounds. At their highest, these grounds seek the Court to engage in impermissible merits review and, plainly, for that reason, are not made out (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259).

  1. To the extent that what is said at grounds one and two was some attempt by the applicant to establish some background, or context, to her other complaints, then these matters are dealt with below. I will return to grounds three and four later. 

  2. Under the heading of “Orders Sought by Applicant”, the applicant has set out five items. Here, rather than being an assertion of proposed orders, it may be that this is some attempt to assert some legal error on the part of the Tribunal. While it is the case that these items may in some ways overlap with grounds three and four, it may be convenient to deal with them separately. For ease, I will refer to these items under the heading of “Orders Sought by the Applicant” as complaints.

  3. To the extent that the first complaint refers to “DIAC”, in context, I understood this to be a reference to the delegate’s decision. In the current case, the delegate’s decision was not only reviewable by the Tribunal, it was in fact reviewed by it. As such, it is a primary decision and plainly the Court lacks jurisdiction in relation to such decisions (s.476 of the Act).

  4. In any event, the complaint concerning the Tribunal can be understood as being that the decision was not fair or reasonable because the Tribunal did not give proper (“good”) consideration to her religious conviction and practice. It does not appear that the complaint is that the Tribunal gave no consideration to her religious claim.

  5. [It was at this point that the oral judgment was interrupted to such an extent by the third applicant that I was unable to continue to provide my oral judgment – the remainder of this judgment, as stated above, is derived from my notes.]

  6. Rather, the reference to the word “good” infers that the complaint is that the Tribunal did not find favourably for her. This again seeks impermissible merits review.

  7. Even if it is the former situation, the Tribunal’s decision record reveals that it gave active consideration to the applicant’s claims and evidence. The Tribunal did not believe the applicant. Its findings were reasonably open to it on what was before it, and it gave reasons probative of the material before it. In these circumstances the Tribunal’s findings of fact, including the findings as to her credibility, were all within jurisdiction (Durairajasingham).

  8. Complaint two directs attention to the Tribunal’s questions at the hearing directed to the assessment of the applicant’s religious claims. It appears to be different to the complaint the applicant made about the “one question” at the hearing today. As stated above, despite opportunity, the applicants have not put a transcript of the Tribunal hearing before the Court. The only relevant evidence as to what occurred at the hearing, therefore, is the Tribunal’s own record.

  9. The Minister submits that this complaint may be understood as a claim that the Tribunal fell into error by adopting the approach of making itself the arbiter of religious doctrine (WALT v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCAFC 2).

  10. Here, the Minister relied on Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108 at [38] per Kenny J:

    “Absent an explicit statement in the Tribunal’s reasons that an applicant must meet a particular standard of knowledge to establish that he is a follower of his claimed religion, it may not always be possible to distinguish a potentially illegitimate a priori approach from a legitimate exploration of an applicant’s knowledge. As the analysis in WALT and SBCC demonstrates, the Tribunal’s reliance on other factors besides its evaluation of an applicant’s knowledge will typically be a strong indicator that the Tribunal has conducted a legitimate exploration rather than made a determination by reference to a preconceived minimum standard of knowledge. Even where the Tribunal relies primarily on its evaluation of the applicant’s answers, however, it will not necessarily run into jurisdictional error. As the authorities emphasize, there is nothing objectionable in the Tribunal questioning an applicant about his or her beliefs. When the Tribunal does so, it is not prohibited from evaluating the applicant’s answers against probative material evincing the doctrines of the religion in question, and the weight to be given to that evaluation will generally be a matter for the Tribunal.”

  11. I agree with the Minister that there is nothing on the face of the Tribunal’s account of the hearing, or its subsequent analysis, to suggest it, relevantly, did anything more than evaluate the applicant’s evidence as to her faith and commitment, and that of the applicant’s partner in relation his claimed religious activities in Australia.

  12. In these circumstances, the complaint that the Tribunal did not consider the applicant’s evidence given at the hearing can only be seen as a complaint that the Tribunal was not persuaded by her claim that she had a genuine fear of returning to China because of her claimed religious conviction and practice. In short, it also seeks impermissible merits review.

  13. I agree with the Minister that the word “paralyzing” as it appears at complaint three was in, all probability, an attempt to refer to “proselytising”. I have proceeded on that basis. I note that it may also have been an attempted reference to “preaching”.

  14. It may be therefore, that this complaint can be understood as an assertion that the Tribunal failed to consider this aspect or integer of her claims. That is, that she feared harm for herself, the applicant’s partner and particularly her son, the third applicant, if she were to return to China because she would engaged in proselytising or preaching activities.

  15. It is the case that a failure to consider a claim, or an aspect of a claim, may give rise to jurisdictional error (Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 231; [2003] HCA 26). Such a claim however needs to be expressly made or clearly arising from the circumstances presented such as to engage any obligation on the Tribunal’s part in this regard (NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1).

  16. The applicant’s claims were set out throughout the application process as follows. Initially, they were set out in a statement attached to her protection visa application (CB 34 to CB 37), reported in the delegate’s decision following an interview with the applicant, and the applicant’s partner (CB 69 to CB 73), and a report of the applicant’s


    post-interview submissions (CB 73). Further, the claims were set out again in the Tribunal’s account of the hearing ([7] at CB 120 to [48] at CB 127).

  17. Nowhere in this material is there any express claim that the applicant had, or would engage in proselytising, or preaching, if she were to return to China. Nor is there anything such as could be said that such claims clearly arose from the circumstances presented.

  18. The applicant’s claim before the delegate that “she enjoyed discussing the Bible” (CB 70.10) was clearly put in the context of having such discussions in the context of her church attendance. It was not that she had engaged in proselytising or preaching, as these terms can be understood with their usual or common meaning.

  19. The applicant did make a claim that she sent material on the internet to her aunt in China ([25] – [26] at CB 123). This, in context, again cannot be understood as proselytising or preaching. Her claim was that her aunt was a leader within her own church and that she had sent materials to her that she found on the internet. In any event, the Tribunal specifically considered this claim ([59] at CB 129). The Tribunal rejected the factual premise underlying the applicant’s claim. This is another illustration that what the applicant seeks now is impermissible merits review.

  20. The fourth complaint is similarly a challenge to the Tribunal’s adverse findings. There is no evidence, nor does the applicant give particularity or detail, that the Tribunal failed to consider her claims and evidence. Rather, in the circumstances, the complaint is that it did not accept the claims as being true.

  21. Complaint five asserts that the Tribunal was unfair and unreasonable in finding that she would not be punished by the Chinese government for what she described as the “family planning issue”.

  22. The Tribunal did consider the applicants’ claim in relation to the birth of their child out of wedlock, and the consequences of this in the context of China’s family planning and registration laws if they were to return to China ([63] at CB 130 to [73] at CB 132).

  23. The Tribunal’s findings based, in part, on a number of possible scenarios, were all reasonably open to it on what was before it. It gave cogent reasons. The Tribunal specifically addressed the applicant’s claims of the harm she said she and her family would suffer. Its decision cannot be said to be unreasonable in the Wednesbury sense (Associated Provincial Pictures Houses Ltd v Wednesbury Corporation [1948] 1 KB 223). Nor is it illogical, irrational or unreasonable in circumstances where minds may differ as to the outcome (Minister for Immigration and Citizenship v SZMDS [2010] HCA 16).

  24. In the circumstances the complaint of unfairness does not appear to be directed to the procedures adopted by the Tribunal in the conduct of the review, but rather that the decision was “unfair”. In these circumstances, while the applicants are entitled to a fair hearing, there is no obligation on the Tribunal to make the correct, or “fair”, decision as the applicants urge (Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1).

  25. In any event, no breach of the Tribunal’s procedural fairness obligations is apparent on the material before the Court. The applicants were invited to a hearing before the Tribunal pursuant to s.425 of the Act. They attended and the applicant gave her evidence (see [6] above). There is nothing to suggest that this was not a meaningful opportunity to explain their claims.

  26. Further, the only available evidence to the Court as to what occurred at the hearing, the Tribunal’s account, reveals that the issues dispositive of the review were discussed (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152).

  27. In relation to the applicant’s claim to fear harm on the basis of her religious conviction and activity, the Tribunal comprehensively rejected the credibility of her claims as they related to circumstances in China. The Tribunal’s “grave doubts” about her evidence were raised with her at the hearing (see at [39] at CB 125). In any event this would not have been an unexpected circumstance for the applicants, given the delegate’s relevant finding in this regard (see CB 73 to CB 76).

  28. Nor is any breach of s.424A(1) of the Act apparent. The information which the Tribunal can be said to have considered would be the reason or a part of the reason for affirming the delegate’s decision was not caught by s.424A(1) of the Act. It was either information given by the applicants for the purposes of the protection visa application, given to the Tribunal for the purposes of the review, or country information. As such it was exempt from the obligations in s.424A(1) of the Act (see s.424A(3) of the Act). Further, the Tribunal’s subjective appraisal of this information is not in itself, information for the purposes of s.424A(1) of the Act (SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [17] – [18]).

  29. Ground three of the application asserts unreasonableness on the part of the Tribunal because it found adversely to her credit. Given what is relevantly set out above, that assertion is not made out.

  30. Nor can it be said the Tribunal found adversely to the applicant’s credit, simply because of the absence of evidence. This complaint appears to misunderstand the task set for the Tribunal. It is for the applicant to present her evidence and arguments to the Tribunal. It is not for the Tribunal to make out her case for her.

  31. The relevant statutory test set for the Tribunal before the visa must be granted is that expressed at s.65 of the Act. The Tribunal, as an inquisitorial body, is required to reach the requisite level of satisfaction that the applicant meets the relevant criteria for the grant of the visa before the visa must be granted (SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225, NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 and Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73).

  32. Here the Tribunal’s evaluation of that evidence, and its findings were all reasonably open to it, and it explained why the requisite level of satisfaction could not be reached. Further, this is not a case where the Tribunal refused to believe the applicant in the absence of corroborative evidence (Machmud v Minister for Immigration & Multicultural Affairs [2001] FCA 1041).

  33. Ground four asserts that the Tribunal was “over objective in judging” her explanations at the hearing. This is perhaps an attempt to say that the Tribunal was “subjective”, or did not bring an open mind to the conduct of the review.

  34. As the Minister submits, if this is an attempt to assert an apprehension of bias then there is nothing in the material before the Court to suggest that the Tribunal’s approach to the applicant’s evidence would lead a fair minded lay observer to conclude the Tribunal member did not bring an open mind to its task (Minister for Immigration & Cultural 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 and Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425)

Conclusion

  1. In all, the complaints raised variously in the application to the Court and raised by the applicant before the Court do not reveal jurisdictional error. Nor is such error otherwise apparent. It is appropriate that the application be dismissed. I will make an order accordingly.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 22 July 2014

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