SZVHP v Minister for Immigration

[2015] FCCA 3001

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVHP & ORS v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3001

Catchwords:
MIGRATION – Application to review decision of the Refugee Review Tribunal – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.91R

Abebe v The Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 1
Minister for Immigration and Citizenship v SZMDS and Another (2010) 240 CLR 611; [2010] HCA 16

Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303; [2010] FCAFC 51
Minister for Immigration and Multicultural Affairs v Jia Legeng
(2001) 205 CLR 507; [2001] HCA 17
NADH of 2001 and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264; [2004] FCAFC 328

Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28

First Applicant: SZVHP

Second Applicant: SZVHQ

Third Applicant: SZVHR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2894 of 2014

Judgment of: Judge Barnes

Hearing date: 29 October 2015

Delivered at: Sydney

Delivered on: 29 October 2015

REPRESENTATION

First Applicant: In person

Counsel for the Respondents: Mr T. Reilly

Solicitors for the Respondents: Mills Oakley Lawyers

ORDERS

1. The name of the Second Respondent be amended to read “Administrative Appeals Tribunal”.

2. The Application be dismissed. 

3. The First and Second Applicants pay the costs of the First Respondent fixed in the sum of $5,800. 

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2894 of 2014

SZVHP

First Applicant

SZVHQ

Second Applicant

SZVHR

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Administrative Appeals Tribunal (formerly the Refugee Review Tribunal) dated 23 September 2014 affirming a decision of the delegate of the First Respondent not to grant the Applicants protection visas.  The Applicants are wife, husband and child.  Except where necessary, for convenience future references to the Applicant are to the First Applicant who was the primary visa Applicant. 

2. The Applicant is a citizen of the People’s Republic of China who first arrived in Australia in 2008.  She and her husband applied for protection visas in October 2012.  Subsequently, the Third Applicant was born and was joined in the application. 

3. The Applicant attended an interview with the delegate.  She provided a supporting statement and other documentation.  The delegate refused the application. 

4. The Applicants sought review by the Tribunal.  They attended a Tribunal hearing.  The only evidence before the Court of what occurred in the Tribunal hearing is the Tribunal’s account in its reasons for decision.

5. In essence, the Applicant claimed that she was a Christian and a member of an unregistered church in China.  She claimed that during a visit back to China in 2009 the police had raided a religious gathering held at her family home that she attended.  She claimed that she signed a confession of wrongdoing and undertook not to participate in an illegal gathering again.

6. The Applicant also claimed that she attended church in Australia.  In particular, she claimed that from 2009 on she had attended a Chinese church in Padstow and that she was baptised there in December 2011. 

7. The Applicant claimed that she and her husband married in a civil ceremony in October 2012 and their child was born in February 2013.  She claimed that the child had taken part in what she described as a christening ceremony and provided documentation referring to a “blessing ceremony for offering of the heart of children” in the Padstow Church on 25 December 2013.

8. The Applicant’s evidence (consistent with a letter from the Minister of the Padstow Church) was that she and her husband had not married in the Padstow Church because couples who had cohabitated before marriage or were not both baptised could not marry in that church. 

9. The Second Applicant’s evidence was that he had gone to the Padstow Church with the First Applicant since 2009, but had not been baptised.  He told the Tribunal that he intended to be baptised.

10. In its reasons for decision the Tribunal set out the First Applicant’s claims in the statement accompanying her protection visa application. It then made what it referred to as “uncontentious findings” about the Applicants’ birth, nationality, time in Australia, visa situation, study and employment. 

11. The Tribunal accepted that the First Applicant was baptised at the Padstow Church in December 2011 and that she and her husband were married in a civil ceremony five days before lodging their protection visa application at a time when she was four or five months pregnant.  It accepted that the Third Applicant was born in February 2013 and that the Applicants took part in the blessing ceremony for the child in December 2013.

12. Based on the First Applicant’s evidence, the Tribunal found that she and the Second Applicant were in a relationship before she returned to China in 2009 and that they began to live together in a de facto relationship after her return to Australia.  It also accepted that the First Applicant had visited the Second Applicant’s father in China and that they had worked in Australia and sent money back to him to pay for his medical treatment from at least 2009 until the First Applicant became pregnant.

13. The Tribunal accepted the Applicants’ explanation for why they did not marry in the Padstow Church.  However the Tribunal did not accept that the First Applicant’s protection claims were credible because of inconsistencies in her evidence.

14. The Tribunal had regard to concerns about several aspects of the Applicant’s evidence, including inconsistencies in her evidence about the police raid on the family home in February 2009.  The Tribunal recorded that during the hearing the Applicant had told it that five or six of the bibles the police took away during the raid were on the table and chairs.  It found, however, that in the statement accompanying her application, the Applicant had stated the bibles were in a bag.  The Tribunal found that this evidence was inconsistent.

15. In addition the Tribunal found that leaving bibles on the table and chairs was inconsistent with the Applicant’s evidence that her father had received a call warning him in advance that the police were coming and had told the priest and other brothers and sisters to leave (although some remained).  The Tribunal was of the view that if the Applicant’s parents and Christian brothers and sisters were aware of the police coming because they were holding an illegal Christian gathering the first thing they would have done would have been to hide the evidence of their gathering.

16. The Tribunal expressed concern about the Applicant’s written claims that her mother had told her that the police raided their home again on 24 December 2010, given that the Applicant had not mentioned this incident during the Tribunal hearing, even though the Tribunal had checked with her a number of times whether there was anything she wanted to add about why she was seeking protection and if anything else had happened in China.  The Tribunal recorded that when the First Applicant was asked about the fact that she had not mentioned this incident, the Applicant said she thought the Tribunal was asking about when she was in China.  The Tribunal did not accept that this satisfactorily explained why the Applicant did not mention this incident.  It was of the view that if the family home had been raided again at Christmas, a year after the 2009 raid, this would have been a memorable incident which the Applicant would have mentioned when asked about her reasons for seeking protection.

17. The Tribunal had regard to the Applicant’s claims about attendance at church and participation in church activities in Australia.  It accepted that the Applicant was baptised on 25 December 2011 but found that the claim that she was a member of the church choir at Easter 2010 was inconsistent with her oral evidence that a person could not be a member of the choir unless baptised.  The Tribunal stated that it had taken into account the Applicant’s claim that she had committed to receive baptism after witnessing God’s miracle in China in 2006.  However it did not accept that she had been baptised in China or that she was in the church choir in 2010.  It did accept she was in the church choir at Christmas 2012, after the protection visa application had been made.

18. The Tribunal found that the Applicant’s claim to have been a practising Christian since 2006 was inconsistent with the fact that she had lived in a de facto relationship since 2009 and only married after she was four or five months pregnant (a matter of days before lodging the application for a protection visa).  The Tribunal found that the reason the First and Second Applicants married was because they were lodging the protection visa application and that it had nothing to do with being a Christian.  It took into account the fact that one of the reasons the Padstow Church would not officiate at the marriage of the First and Second Applicants was because they were cohabiting before marriage, which indicated that the church did not view such conduct as consistent with being a member of that church.  The Tribunal had regard to the Applicant’s evidence about the Christian view of marriage and that they did not marry because they thought they were too young.  It found, however, that the Applicant gave inconsistent evidence about the marriage and her pregnancy in relation to when she knew she was pregnant and whether they married as soon as possible thereafter.

19. The Tribunal recorded that while the Applicant’s evidence was that she stopped working while she was pregnant because she had high blood pressure and a thyroid problem, when questioned at the hearing about not marrying sooner after becoming pregnant, the Applicant claimed that she did not know she was pregnant for the first three months.  The Tribunal found the Applicant knew she was pregnant from April 2012 and gave the evidence about not knowing she was pregnant until after three months to overcome the difficulty the Tribunal had raised.  In any event, it found that even if the Applicant did not know that she was pregnant for three months, she would have known by August 2012, but did not marry until October 2012. 

20. The Tribunal had regard to the Applicant’s evidence about the circumstances in which they decided to marry.  It observed that in the statement in support of her application she had stated that when they found out she was pregnant they talked to elders and other people at the church, told them of her fear of returning to China and her experience there and that she had no visa and that on their advice they married and applied for the protection visa.  However at the hearing the Applicant had said they talked to elders and decided to get a marriage certificate and chose 10 October 2012 because it was good day.  The Tribunal recorded that it put to the Applicant that in her application she had stated they married on the advice of the elders of the church and that the Applicant then said that they had planned to marry and just double-checked with the elders.  The Tribunal found on the evidence before it that the Applicants married for the purpose of applying for a protection visa and that they did so upon the advice of others.

21. The Tribunal concluded that for these reasons it found the Applicant’s evidence was not credible.  The Tribunal found it implausible that the first time the Applicant’s family was raided by Chinese authorities because of being family church practitioners was during her four-week visit to China in 2009 given her claims that they had been longstanding members of the family church, that her home had been used for gatherings since she was a child, that her family had taken her to visit people to spread the gospel and that she had attended family church gatherings in homes when she was growing up and committed to receiving baptism in about 2006.  The Tribunal took into account the Applicant’s claim that her family had been “blessed” in that they had not been raided before, but did not accept that this was the reason they had not been raided before her visit in 2009.  Rather, because the Tribunal did not accept that the Applicant’s evidence was credible, it did not accept her claims that she and her family were members of the family church or any other unregistered church in China or that there were police raids on a gathering during her visit to China in 2009 or at Christmas 2010.  It found that such claims were fabricated.  In making this finding, the Tribunal took into account the Applicant’s denial that she had made up the claims and that she had attended church with her mother since she was a child.  It nonetheless did not accept her evidence because it found it was not credible.

22. The Tribunal considered various letters of support from members of the congregation of the Padstow Church and photographs provided in support of the application.   It had regard to the fact that none of the letters submitted (including the letter from the church pastor) nominated a date when the Applicant began attending the Padstow Church.  It acknowledged that there were many photographs showing the Applicant involved in various church activities, but did not accept that any of them were taken before December 2011 when the Applicant was baptised.  In particular it did not accept that a photograph claimed to have been taken at a gathering in 2009 included the Applicant.  It observed that it was a very poor black and white copy and that the person said to be the First Applicant was completely black in the photograph.  The Tribunal found that the false evidence about church attendance reinforced its finding that the Applicant’s evidence was not credible.  It gave no weight to the 2009 photograph claimed to be of the Applicant at a gathering or to the claim that the Second Applicant also attended that gathering. 

23. The Tribunal addressed the Applicant’s explanation for the delay in lodging a protection visa application.  It recorded her evidence that she had not done so earlier because they need to consider it carefully, and that she was very sad when she visited the Second Applicant’s father in 2009 (who was ill).  The Tribunal accepted that the Applicant was sad and that she stopped studying to help earn money to pay medical bills for her partner’s father and her grandmother.  It had regard to her explanation that she was concerned that if she lodged a protection visa application she would have to go back to China, that then there would be no one to earn money to pay the bills and that for the sake of their child they thought they should take the responsibility to give him the best opportunity they could.

24. However, the Tribunal also had regard to the fact that the Applicant had acknowledged that she had been unlawfully in Australia for a couple of years, that she had been aware of the protection visa “for years” and knew Chinese people who had successfully claimed protection because they were Christians in the underground church. 

25. Based on the Applicant’s evidence and the finding that her claims about events in China were fabricated the Tribunal found that the First and Second Applicants applied for protection in October 2012 to give the Third Applicant the best opportunity they could and not because the first Applicant feared harm if she returned to China because she and her family had been or would continue to be members of the unregistered family church.  The Tribunal found that the First Applicant did not have genuine claims for protection and that this was the reason she did not apply until she was pregnant with the Third Applicant. 

26. In making these findings the Tribunal took into account the First Applicant’s explanation for problems with her evidence at the departmental interview and at the hearing (on the basis that she was nervous and forgot things). However it did not accept that these explanations explained the inconsistencies. 

27. The Tribunal considered the Applicant’s motivation for engaging in church activities in Australia (although it made no finding disregarding this conduct in terms of s.91R(3) of the Act). The Tribunal accepted that the Applicant had been attending the Padstow Church for at least six months before she was baptised in December 2011. However the Tribunal did not accept her denial that she did not attend church for the purpose of a protection visa application and learning about Christianity, and did not accept that the Applicant attended the Padstow Church and engaged in church activities otherwise than for the purpose of strengthening her claim to be a refugee. It found that her increased involvement in church activities since the birth of her child (after the visa application) was consistent with that finding. It took into account photographs in that respect.

28. The Tribunal reiterated that it did not accept that the Applicant was a genuine Christian or that she would practise Christianity if she returned to China.  Nor did it accept her claims that she had initially attended the Wesley Mission and then the Central Baptist Church in Australia because it did not accept that her evidence was credible. 

29. The Tribunal addressed the claims of the Second Applicant.  It recorded that he had told it that he relied on the claims of the First Applicant.  However it had regard to his evidence about going to the Padstow Church since 2009 and his claims that he was a Christian, although he was not baptised.  He claimed that while he had enrolled to prepare for baptism in April 2013 he been quite busy after the First Applicant gave birth.  The Tribunal recorded that it had commented to him that he had made no further efforts thereafter and that while he then said he was going to enrol in April of the next year and that preparation took several months and was only on a Sunday, he then said he wanted to be baptised in April.  The Tribunal found that this evidence was inconsistent with his claim that he would enrol in April and it would then take several months.  The Tribunal also had regard to the absence of any documentary evidence to support the Second Applicant’s claims about enrolling for baptism.  It accepted, based on the Padstow Church Minister’s letter, that the fact that the Second Applicant was not baptised and that he and the First Applicant were cohabitating were reasons why they could not marry in the Padstow Church.  It also found that the fact that he was not baptised and had been cohabitating before the marriage was inconsistent with his claims about being a practising Christian at that time.  The Tribunal did not accept that the Second Applicant’s claims about enrolling for baptism in either 2013 or 2014 (after the protection visa application) were genuine.

30. The Tribunal also observed that the Second Applicant had made no claim that he feared harm because of his religious belief if he returned to China.  The Tribunal found that he made his claims about Christianity to support his wife’s claims for protection, rather than making a claim for protection himself.  It found that he was not a practising Christian and would not be so if he returned to China.  It took into account the evidence of the Applicants and the material provided. 

31. Insofar as the Applicant wife claimed that she and her husband were both dedicated Christians, the Tribunal reiterated that it did not accept that her evidence was credible and that, apart from their claims and the “2009 photograph”, there was no evidence to support the claim that either of them had attended the Padstow Church since 2009.  It gave no weight to the 2009 photograph because it did not show either the First or Second Applicant.  It did not accept that the black figure was the First Applicant or the annotation claiming that the Second Applicant also attended the gathering.

1. The Tribunal did accept that the Second Applicant had accompanied the First Applicant to church on occasion and had attended the blessing ceremony for their child.  However it found that the best evidence of the Second Applicant’s commitment to Christianity was his conduct and for the reasons given, taking into account his conduct, it did not accept that he was a practising Christian. 

2. The Tribunal considered the situation of the Applicants’ child.  It recorded that the First Applicant claimed that returning to China for the child would be an even bigger problem and more disastrous than for her and her husband.  She claimed that he would no doubt choose to live in Australia, that he had been christened on Christmas Day 2013, that he attended a fellowship group at the church and enjoyed staying and playing with other children.  She also claimed that they had heard recently of forced closure and destruction of Christian churches in China and believed many incidents of suppression of religious freedom were not reported, that the child was innocent and could grow up happy and healthy in a country where he could have no fear of threat.

3. However the Tribunal had regard to the fact that for the reasons given it did not accept that either of the parents was a practising Christian or would be if they returned to China and to the fact that the child was only 18 months old.  It found that he was not at risk of harm because either of his parents would unlawfully practise Christianity or practise Christianity at all if they returned to China.  It did not accept there was any other reason he may suffer harm if he returned to China. 

4. The Tribunal concluded that the Applicants did not meet the Refugees Convention criterion.

5. In relation to the complementary protection criterion, on the basis of its earlier findings (in particular that it did not accept that the Applicant’s claims about events in China were credible and that she was a genuine Christian) the Tribunal was not satisfied that she met the complementary protection criterion.  It reached the same conclusion in relation to the Second Applicant based on its findings that it did not accept that he was a practising Christian or that he would be if he returned to China, or that, in any event, he feared harm for that reason. 

6. Further because the Tribunal did not accept that either of the adult Applicants was a practising Christian or would be in China, it did not accept that the Third Applicant would be at risk of harm because his mother was a member of the family church in China, because either or both of his parents had practised Christianity in Australia or would unlawfully practise Christianity (or practise Christianity at all) on return to China.  It did not accept that there was any other reason the Third Applicant may suffer harm if he returned to China.  It was not satisfied that he met the complementary protection criterion. 

7. In these circumstances, the Tribunal affirmed the delegate’s decision.

8. The Applicants sought review by application filed on 20 October 2014.  There is one ground in the application.  It is as follows: 

   Because the main reason of refusal of my application was based on the member’s imagination.

9. The Applicants did not take the opportunity to file an amended application or written submissions.  As the First Respondent submitted, insofar as the ground in the application involves a disagreement with the outcome of the Tribunal’s decision, the Court cannot review the merits of the Tribunal’s decision. 

10. In oral submissions the Applicant referred to a number of aspects of the Tribunal’s decision in support of her contention that the Tribunal decision was “based on the member’s imagination”.  She stated that she felt that the Tribunal was very subjective in its judgement of her case and that this was not a proper basis for its findings.  She reiterated her claims to be a genuine refugee.

11. She claimed that the Tribunal’s approach was not fair to her.  In particular, she referred to the fact that in its reasons for decision the Tribunal had referred to an inconsistency in her evidence about the whereabouts of the bibles the police took away during the raid in China in February 2009.  She had told the Tribunal they were on a table and chairs.  The Tribunal found that in her statement accompanying her application she had stated that the bibles were in a bag and that this evidence was inconsistent.

12. However, as the Applicant submitted, it is apparent that the Tribunal made a factual error in this regard, as was conceded by the Minister.  In the statement accompanying her protection visa application the Applicant’s account was as follows:

    While the service was being conducted, my dad received a call warning him that police were coming to our house.  Therefore, dad immediately and hurriedly told the priest and the other people to leave the house from the back.  He told me and my mum to stay home to take care of grandma.  Some brothers and sisters also chose to stay with us.  Things were chaotic.  A few moments later, police came.  During that time, there were still some brothers and sisters who did not run away but the police came.  They said they received report that that we held illegal religious gathering in our house and therefore, they came to investigate.  They asked for my father but he was not there.  They saw some bibles and hymn books scattered in the house.  So, they put the bibles and the hymn books in a bag and said they needed to take them away.  They also asked me and the other four people to follow them to go back to the “Pai Chu Suo” (police station).  They also asked my mother to tell my father to report to them immediately when he came back.  

13. Insofar as the Tribunal made a finding that the Applicant had stated that the bibles were in a bag when the place was raided, that is clearly not the case.  The evidence that she gave was not inconsistent in the manner described by the Tribunal.  However, the Tribunal’s finding about the whereabouts of the bibles was an error of fact.  It is well-established (see, for example, Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303; [2010] FCAFC 51), that an error of fact based on a misunderstanding of evidence or even overlooking an item of evidence in considering an Applicant’s claims is not jurisdictional error so long as the error, whatever it be, does not mean that the Tribunal has not considered the Applicant’s claim.

14. In this case, while the Tribunal undoubtedly made a mistaken factual finding, it considered the Applicant’s claims, not only about the raid of 2009 but more generally her claims to have been involved in Christianity in Australia and in China.  Moreover the particular matter that the Tribunal incorrectly found to be inconsistent was only one of several matters that the Tribunal took into account in finding the Applicant’s claims for protection not credible.  Its conclusion was open to it on the basis of such other matters. 

15. It is also relevant that in considering the claims about the raid of February 2009 the Tribunal found (on the basis that the bibles had been left on the table and chairs as the Applicant had claimed), that if the Applicant’s parents and Christian brothers and sisters were aware of the police coming because they were holding an illegal gathering, the first thing they would have done would have been to hide the evidence of their gathering.

16. Having regard to that finding and the other matters taken into account by the Tribunal in reaching its adverse credibility findings, while I accept that there was a factual error made by the Tribunal it is not such in all of the circumstances as to amount to a jurisdictional error.  Nor is it such as to warrant a conclusion that this initial factual error led the Tribunal “astray”, insofar as that seems to have been contended by the Applicant.

17. While aspects of the Tribunal’s reasoning could have been expressed with more clarity, the reasoning cannot be described as so unreasonable that no reasonable decision-maker could have proceeded on that basis.  Nor can it be said that such reasoning led the Tribunal to make findings that no reasonable decision-maker could have reached on the evidence.  Insofar as the Applicant’s contentions may be seen as raising a claim of unreasonableness in the Tribunal’s approach to her credibility, this is not a case in which it can be said that the credibility determination was in itself irrational, illogical or not based on findings and inferences of facts supported by logical grounds.  It cannot be said that no decision-maker could have followed the path that the decision-maker in this case took.  Neither the decision nor the underlying reasoning process is such as to lack an intelligible justification.  This is not a case in which the manner in which the Tribunal proceeded amounted to illogicality, irrationality, or unreasonableness such as to constitute a jurisdictional error (see Minister for Immigration and Citizenship v SZMDS and Another (2010) 240 CLR 611; [2010] HCA 16). Rather, while the Tribunal made a factual error in one aspect of the matters that it had regard to in reaching an adverse credibility finding, its findings were otherwise open to it on the material before it for the reasons it gave.

18. The Applicant also took issue with the Tribunal’s suggestion that the family could have taken the bibles away.  She suggested that the situation in the 2009 raid was chaotic, that the Tribunal was not there and that it did not know precisely what the situation was.  However it was open to the Tribunal to reach the conclusion that it did on the material before it.  The Applicant’s disagreement with the Tribunal’s approach in that respect is not of itself such as to demonstrate jurisdictional error, whether considered in terms of irrationality, illogicality, unreasonableness or otherwise.   

19. More generally, although the claim was not put in those terms, the evidence is not such as to support any claim of actual or apprehended bias.   There is no distinctly made and clearly proven allegation of actual bias.  There is no transcript of the Tribunal hearing in evidence before the Court.  It will be a rare and exceptional case where actual bias can be demonstrated solely from published reasons for decision.  The Tribunal is entitled to assess the evidence and to attach such weight to it as it regards appropriate.  Indeed, even if the Tribunal did not believe any element of the Applicant’s claim, that would not in itself be sufficient to establish bias.  There is nothing in the circumstances of this case to demonstrate prejudgment in the sense of a state of mind so committed to a conclusion already formed such as to be incapable of alteration (Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28). Nor is there sufficient in the material before the Court to establish an apprehension of bias in the sense considered in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17. The Tribunal’s fact-finding is not such as to be described as in substantial respects unreasoned and mere assertion, lacking rational or reasoned foundation, as discussed by Allsop J (as he then was), in NADH of 2001 and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264; [2004] FCAFC 328.  With the exception of the one factual error, the factual findings made by the Tribunal were open to it on the material before it and do not support any contention of actual or apprehended bias.

20. The Applicant also raised the fact that there was some time between 2009 and 2012.  Insofar as this related to the Tribunal’s concern that she had not mentioned the 2010 incident in China when asked about it at the hearing, it was open to the Tribunal to reach the view that it did in relation to the importance of such an incident and the likelihood the Applicant would have mentioned it when asked about her reasons for seeking protection if it was a claim about an event that had occurred.

21. The Applicant also took issue with the Tribunal’s approach to the question of her marriage and pregnancy, specifically when she knew she was pregnant.  As indicated, the Tribunal was of the view, having regard to her evidence, that she did not marry soon after she became aware she was pregnant.  It made these findings in the context of considering her explanation for not having married her de facto partner earlier (despite her claims about Christianity and the attitude of the church).  The Tribunal’s findings in this respect were open to it on the material before it.  Even if not all decision-makers would have reached the same conclusion about when the Applicant became aware she was pregnant, it cannot be said that the Tribunal’s findings were not open to it or that they could not have been reached by a reasonable decision-maker.  The explanation that the Applicant provided today for the timing of her marriage seeks impermissible merits review.

22. The Applicant submitted generally that there was not mutual trust with the Tribunal and that it did not stand in her shoes.  It appears that she took issue with the objectivity of the Tribunal’s reasons.  As indicated, the material before the Court is not such as to establish either actual or apprehended bias.  It is well-established that it is for an Applicant to advance evidence and argument in support of her contention that she has a well-founded fear of persecution for a Convention reason or meets the complementary protection criterion and the Tribunal must then decide whether that claim is made out: Abebe v The Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 1 per Gummow and Hayne JJ at [187]. In other words, the function of the Tribunal is to respond to the case the Applicant makes. In this case that occurred, notwithstanding the Applicant’s disagreement with the Tribunal’s reasoning. Even if minds may differ on the Tribunal’s reasoning it cannot be said that no reasonable person could have reasoned in the way that it did or reached the conclusions that it did in relation to the credibility of the Applicant’s claims.

23. The grounds raised by the Applicants and the concerns expressed in oral submissions do not establish jurisdictional error.  In these circumstances, the Application must be dismissed. 

24. The Applicants have been unsuccessful.  It is appropriate that the (adult) First and Second Applicants meet the costs of the First Respondent.  The amount sought is reasonable in light of the nature of this and other similar matters. 

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Associate: 

Date: 16 November 2015