SZVLL v Minister for Immigration - [2016] FCCA 1908

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVLL & ORS v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 1908

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the Administrative Appeals Tribunal afforded procedural fairness to the applicants in circumstances where following a resumed hearing, the first applicant wished to have the Tribunals’ questions put to her in writing for response – whether the Administrative Appeals Tribunal complied with section 425 of the Migration Act 1958 (Cth) in inviting the applicants to come to a hearing to give evidence and present arguments – whether the decision of the Administrative Appeals Tribunal is affected by bias – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 31, 36, 65, 411, 422B, 424A, 425, 474
Migration Regulations 1994 (Cth), regs.2.01, 2.08

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29
Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
Minister for Immigration v SGLB [2004] HCA 32
Hinton v Minister for Immigration [2015] FCA 408

First Applicant:

SZVLL

Second Applicant:

SZVLM

Third Applicant:

SZVLN

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 3084 of 2014

Judgment of:

Judge Emmett

Hearing date:

21 July 2016

Date of Last Submission:

21 July 2016

Delivered at:

Sydney

Delivered on:

10 August 2016

REPRESENTATION

The Applicants appeared in person with the assistance of a Mandarin interpreter.

Counsel for the Respondents:

Mr Patrick Knowles

Solicitors for the Respondents:

Minter Ellison Lawyers

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
SYDNEY

SYG 3084 of 2014

SZVLL

First Applicant

SZVLM

Second Applicant

SZVLN

Third Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated 13 October 2014 and handed down on 14 October 2014 (“the Tribunal”).
The first applicant is a citizen of the People’s Republic of China (“China”) and of Roman Catholic faith, who fears harm from the Chinese authorities (“the Applicant”). The second applicant is the partner of the Applicant and was included in the Applicant’s application for a protection visa as a member of her family unit. The second applicant’s claims are wholly dependent on those of the Applicant.
The third applicant is the daughter of the Applicant and the second applicant, who was born after the Applicant’s protection visa application was made. She was included in the Applicant’s protection visa application by the operation of reg.2.08 of the Migration Regulations 1994 (Cth) (“the Regulations”).
Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the Applicant’s claims in support of a protection visa, a summary of the decision of a delegate of the first respondent (“the Delegate”), and a summary of the Tribunal’s review and decision.

Background

On 6 May 2007, the Applicant arrived in Australia on a student visa.
On 3 September 2012, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”).
On 16 July 2013, the Delegate refused the Applicant’s application for a protection visa.
On 7 August 2013, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 14 October 2014, the Tribunal handed down its decision affirming the decision of the Delegate not to grant a protection visa.
On 6 November 2014, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

Pursuant to s.65(1) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection (Class XA) visa (reg.2.01 of the Regulations and Schedule 1 to the Regulations).
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 36(2)(aa) of the Act provides that:
“(2) A criterion for a protection visa is that the Applicant for the visa is:
(aa) a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.”
Sections 36(2A) and 5 of the Act defines “significant harm.”
Under s.411(1)(c) of the Act, a decision to refuse to grant a protection visa is a decision which may be reviewed by the second respondent.
The requirements of the natural justice hearing rule are exhaustively stated in Division 4 of Part 7 of the Act (s.422B(1) of the Act). Division 4 Part 7 includes ss.424A and 425, which provide that:
“424A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the Applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.
425 Tribunal must invite Applicant to appear
(1) The Tribunal must invite the Applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.”
Under s.474(2) of the Act, a decision of the second respondent is a ‘privative clause decision’. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.
However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).

The Applicant’s application for a protection visa

The Applicant provided a statement in support of her protection visa application in which she stated:
a)She was born into a Roman Catholic family in China and her family was persecuted by the Chinese authorities due to their religion.
b)When she was young, the police would often come and arrest her parents and detain them for a few days at a time.
c)Roman Catholics oppose the family planning policy of the Chinese government.
d)In 2007, a pregnant Roman Catholic woman in her village was arrested by the Chinese government to force her to have an abortion.
e)Her father, along with ten other Roman Catholics, tried to protect that woman and they clashed with the local police.
f)During the conflict, her father’s head was beaten with police batons and he fell unconscious. Her family sent her father to the hospital, but the hospital followed police instruction and refused to treat her father. Her father died as a result.
g)Following her father’s death, she had to withdraw from her studies as she had to work and support herself.
h)In 2008, she met her partner. In March 2012, she became pregnant. She is attending a baptismal class in the St Dominic Catholic Church and will be baptised after she completes her class. Her husband is also interested in Catholicism.
i)In July 2012, her brother was arrested for his involvement in the in 2007 incident.
j)She fears harm in China due to her religion. She also fears that she will be punished because her marriage has not been legally registered in China. She loves children and does not want to be subject to the Chinese family planning policy.

The Delegate’s decision

On 7 February 2013, the Applicant attended an interview with the Delegate.
The Delegate found that the delays of five years in the Applicant’s application for a protection visa indicated that she did not have a fear of returning to China.
The Delegate also found that according to country information, the Applicant would not be subject to forced abortion or sterilisation in China.
Accordingly, on 16 July 2013, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant was not a person to whom Australia has protection obligations under the Convention and did not meet the alternative complementary protection criterion.

The Tribunal’s review and decision

On 7 August 2013, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 20 February 2014, the Tribunal wrote to the applicants identifying information that may form part of the reason for affirming the decision under review, explaining its relevance and inviting the applicants to comment upon it (“the s.424A Letter”).
On 6 March 2014, the Applicant provided a Statutory Declaration in response to the s.424A Letter.
On 25 March 2014, the Tribunal wrote to the applicants informing them that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicants to attend a hearing on 29 April 2014 to give oral evidence and present arguments (“the First Hearing”).
On 29 April 2014, the Applicant and the second applicant attended the First Hearing and gave evidence. However, on the evidence before it, the Tribunal accepted that the Applicant was suffering from post-natal depression and was unfit to take part in the hearing. Accordingly, the Tribunal adjourned the hearing for a period of three months.
On 19 May 2014, the Tribunal invited the applicants to a resumed hearing on 6 August 2014 (“the Resumed Hearing”).
On 6 August 2014, the Applicant and the second applicant attended the Resumed Hearing before the Tribunal.
At the Resumed Hearing, the Tribunal noted that its questions to the Applicant were followed by extended periods of silence. The Tribunal noted that it was not confident as to whether the Applicant did not want to answer the Tribunal’s questions, or whether she was unable to answer them. The Tribunal asked the Applicant if she preferred to respond in writing to questions put to her through her representative, rather than responding to the Tribunal’s questions at the Resumed Hearing. The Applicant said she preferred to answer in writing.
The Tribunal wrote to the Applicant's representative on 13 August 2014, setting out the questions it would have put to the Applicant at the Resumed Hearing. On 12 September 2014, the Tribunal received a response to those questions from the Applicant's representative.
The Tribunal noted that there were inconsistencies between the Applicant’s claims in support of her protection visa application and her Statutory Declaration declared on 6 March 2014. In the circumstances, the Tribunal found that the Applicant was not a credible witness. The Tribunal did not accept the Applicant’s claims about what happened to her and her family in China, nor did the Tribunal accept that the Applicant left China because she feared persecution due to her religion.
The Tribunal also found the Applicant’s delay of five years in lodging a protection visa application to be significant. The Tribunal did not accept the Applicant’s explanation for her delay. The Tribunal noted that such delay affected the credibility of the Applicant’s protection visa claims.
The Tribunal accepted that the Applicant commenced attending Church in Australia in 2012, and was baptised in 2013. The Tribunal found that the Applicant’s conversion to Catholicism was not for the sole purpose of strengthening her protection claims. However, given its concerns about the Applicant’s credibility, the Tribunal did not accept that her father was killed for the reasons the Applicant claimed. Further, the Tribunal did not accept that the Applicant’s brother was subject to criminal charges because of his religion.
The Tribunal accepted that the Applicant would continue to practice Catholicism in an underground Church if she returned to China. However, the Tribunal noted that, according to country information, the Applicant would not be persecuted for being a member of an underground Church.
As to the Applicant’s claim that the her family would suffer harm due to her violation of China's family planning laws, the Tribunal noted that those laws were laws of general application. The Tribunal accepted that the Applicant and the second applicant would have to pay a social compensation fee because the third applicant was born out of wedlock. However, the Tribunal found that the payment of the fee would remove any discrimination faced by the third applicant in China. The Tribunal did not accept that the Applicant and the second applicant could not pay the social compensation fee, nor did it accept that the fee itself would be so substantial as to amount to significant economic hardship.
Having considered the Applicant’s claims, the Tribunal found that there was no evidence to support a finding that the applicants would suffer harm for a Convention related reason were they to return to China. The Tribunal also found that the applicants did not have a well-founded fear of persecution in China, and for this reason, the applicants were not persons to whom Australia owed protection obligations.
The Tribunal also considered whether the applicants met the alternative criterion for complementary protection under s.36(2)(aa) of the Act and concluded that they did not. The Tribunal found that there was no credible evidence before it that the authorities in China would take an adverse interest in the applicants.
Accordingly, the Tribunal found that there were not substantial reasons for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to the receiving country, China, there was a real risk that the applicants would suffer significant harm.
Having determined that the applicants did not satisfy the refugee criterion in s.36(2)(a) of the Act, or the alternative criterion in s.36(2)(aa) of the Act, the Tribunal affirmed the decision under review.

The proceeding before this Court

The Applicant was unrepresented before this Court, although had the assistance of a Mandarin interpreter.
On 5 March 2015, the Applicant attended a directions hearing before a Registrar of this Court. The Applicant was given leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the Tribunal hearings, as well as submissions in support. On that occasion, the Applicant was also provided with the contact details of legal services providers and interpreting and translation services in documents headed in her own language. The matter was then set down for a show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth).
On 18 June 2015, the Applicant appeared before this Court in person with the assistance of a Mandarin interpreter. The solicitor for the first respondent, Mr Julian Pinder, conceded that the way the Tribunal conducted its review raised some matters that would be more appropriately dealt with at a final hearing. Accordingly, the Applicant was again given leave to file and serve any further evidence by way of affidavit, including any transcript of the Tribunal hearings, as well as submissions in support. The matter was set down for hearing today.
At the outset of today’s hearing, I explained to the Applicant that the role of this Court is very different to that of the Tribunal, and that it is not for this Court to reconsider her claims and reach different findings or conclusions. I also explained to the Applicant that the only issue before this Court is whether or not the decision of the Tribunal is made according to law. I explained to the Applicant that this Court has no power to interfere with the decision of the Tribunal, unless the Court is satisfied that the decision of the Tribunal is affected by a mistake going to its jurisdiction. I further explained to the Applicant that disagreement with the findings and conclusions of the Tribunal rarely, by itself, establishes such a mistake.
The Applicant read an affidavit, annexing three documents, being a document titled ‘My Statement – Grounds of Appeal’, various medical reports, and a document referring to two compact discs of the First Hearing and the Resumed Hearing before the Tribunal.
Counsel for the first respondent, Mr Patrick Knowles, objected to the compact discs on the basis that there had been no compliance by the Applicant with directions made by me on 18 June 2015. Those directions stated that if the Applicant wished to rely on a recording of the hearings before the Tribunal, notice must be given to the first respondent and the Court stating the issue to which the recording was relevant, and the approximate duration of the relevant recording. I asked the Applicant what were the relevant parts of the recording upon which the Applicant relied, and the nature of the Applicant’s complaint that was supported by the compact discs. The Applicant did not make any complaint about the accuracy of the Tribunal’s summary of various exchanges that took place at the First Hearing and the Resumed Hearing, and did not suggest that the Tribunal’s summary was otherwise incomplete. On that basis, the tender of the compact discs was rejected on the grounds of relevance.
Each of the Applicant’s Grounds of Appeal, as annexed to her affidavit, was interpreted for the Applicant. The Applicant confirmed that those were the grounds upon which she relied. The Applicant was then invited to say whatever she wished in support of each of the grounds. Those grounds are followed:
“1. RRT decision does not comply with the procedural fairness.
2. RRT decision does not give an overall consideration to my actual condition and to the evidence I provided (as stated underneath).
3. Due to the impact of my brain tumour and the miscarriage I had suffered before the hearing, I had been unwell physically and emotionally the RRT hearing. I felt very tired during the hearing and I found it hard to answer the hearing questions or to express myself clearly during the hearing. I was simply not fit enough to continue the hearing session.
4. I had RRT member about this condition that I had experienced during the hearing. I also had shown the doctor letter and my medical report to the RRT members. However, the hearing continued in this condition regardless of my expression of unfitness during the hearing. So the RRT member failed to give consideration to the fact that my physical and emotional condition at that time would have an adverse impact on me during the hearing. Neither RRT decision gave the due consideration to this factor. Hence this decision is made under the influence of biased perception on the part of RRT member. (Please refer to item 121 – 127 (in page 24 of 54) of the RRT Decision Record).”
(Errors in original).

Grounds of Appeal

I asked the Applicant in what way the Tribunal failed to comply with “procedural justice”. The Applicant responded that the Tribunal had failed to give consideration to the fact that she had a brain tumour at the time of the Resumed Hearing. The Applicant confirmed that it was the evidence of her tumour that the Tribunal had failed to consider that was at the heart of the assertion in Ground 2.
I indicated to the Applicant that this was the first time that she had complained about the Tribunal’s failure to consider evidence about her alleged brain tumour. I asked the Applicant if she wished to give evidence about that assertion and she responded that she wished to do so.
The Applicant was then sworn in. She gave equivocal evidence as to whether she had given a medical report from her specialist to the Tribunal that diagnosed a brain tumour. She also stated that she was going to see the specialist on 6 August 2014, being the date of the Resumed Hearing, but that she has still not seen the specialist. When it was put to her that there was no report from a specialist diagnosing a brain tumour, the Applicant responded that she was not sure.
I asked the Applicant whether there was any other evidence that the Tribunal did not consider. The Applicant responded that she had two miscarriages and that the Tribunal did not take those into consideration.
In cross-examination, the Applicant agreed that she had the services of a migration agent and that she had given letters from her consultant psychiatrist, Dr Eddie So, to the Tribunal at the Resumed Hearing. Those letters were shown to the Applicant, and it was put to her that they did not mention a brain tumour. The Applicant responded that, at the time, she was suffering from post-natal depression although there was a tumour in her brain.
Counsel for the first respondent also showed the Applicant copies of four other documents, being referrals to specialists, none of which referred to the Applicant having a brain tumour. Again, the Applicant responded that the day of her appointment with the specialist was on the day of the Resumed Hearing, and therefore she could not go to the appointment. The Applicant said that her doctor was certain that she had a brain tumour and that he had told her so. Counsel for the first respondent put to the Applicant that that was not true. The Applicant responded that it was true and that was what she was told.
The Applicant confirmed that there were no other medical documents that had been provided by her to the Tribunal.
Following the Applicant’s cross-examination, I asked the Applicant again how the Tribunal denied her procedural fairness. The Applicant responded that at the First Hearing, her mental state had not been good and that the Tribunal could not stop asking her questions, and that she had a headache.
I then asked the Applicant what was the actual condition that she asserted the Tribunal had failed to take into account. The Applicant responded that she was sick, had post-natal depression, and had miscarriages. I asked her what was the evidence that the Applicant provided that she said the Tribunal did not consider. The Applicant answered that it was her miscarriages, her post-natal depression and her headache.
I also asked the Applicant in what way she asserted the Tribunal was biased, as asserted in Ground 4. Again, the Applicant made the general response that the Tribunal made its decision without considering her medical conditions.
The history of the conduct of the review by the Tribunal is accurately summarised in the first respondent’s submissions as follows:
“CONDUCT OF THE REVIEW BY THE TRIBUNAL
6. The applicants applied to the Tribunal for review of the Delegate’s decision (CB 118–123). The third applicant pursed [sic] her own claims for protection before the Tribunal (CB 153–167). These claims were supported by a statutory declaration by the first respondent [sic] (CB 149–152). That statutory declaration repeated the matters set out in the first applicant’s earlier statement to the Delegate. It also added that:
(a) the first applicant’s brother was arrested by police in July 2012 in relation to the same incident where her father received a fatal injury;
(b) the third applicant will be discriminated against in China because the applicants will be unable to afford the “social compensation fee” payable by the parents of children born out of wedlock. Unless that fee is paid, the third applicant will not be able to be registered on the household register known the “hukoa”. An unregistered child is known as a “black child”.
7. The Tribunal invited the applicants to attend a hearing scheduled for 29 April 2014 (CB 175). The Tribunal in its reasons for decision recorded the events of the hearing as follows:
The applicants, together with their representative, attended the scheduled hearing ... It became apparent that applicant 1 was not fit to take part in the hearing. She was unable to understand and answer simple questions about her upbringing and was unable to provide coherent answers for those that she did understand. The applicant’s representative expressed his concern at applicant 1’s state of mind. After a short adjournment the representative said that the applicant was suffering from significant health issues and had recently had an abortion. The paperwork he provided at the hearing showed there had been a non-viable pregnancy, although applicant 1 continued to say it had been an abortion. Applicant 3 had also been recently hospitalised with an arm injury.
After some discussion I decided that it was not appropriate to continue the hearing. This decision was made on the basis that applicant 1’s physical and mental state was such that she could not effectively discuss her claims (CB 314).
8. As a result, the hearing was adjourned for three months.
9. On 22 July 2014, the applicants’ representative provided the Tribunal with two consultation reports from Dr Eddie So, a consultant psychiatrist (CB 214–215).
10. The first report (CB 214), dated 24 June 2014, diagnosed the first applicant as having post-natal depression, and set out a management plan for this condition involving the prescription of anti-depressant medication and the assistance of a mental health nurse. The report stated that the first applicant’s condition would be reviewed in two weeks.
11. The second report (CB 215), dated 9 July 2014, also stated that the first applicant suffered from post-natal depression, reinforced the need for the first applicant to continue to take anti-depressant medication, and noted that a first appointment with a community mental health nurse had been booked for 11 July 2014. The report stated that the first applicant’s condition would be reviewed in two months.
12. A rescheduled hearing took place on 6 August 2014. At the resumed hearing the Tribunal asked the first applicant whether she was taking any medication. She said that she was. The Tribunal asked the first applicant whether she was well enough to undergo the hearing. She said that she was quite nervous.
13. The first applicant made some statements in support of her claim at the hearing. However, in response to some of the Tribunal’s questions, the first applicant paused for an extended period. The Tribunal asked whether the first applicant did not want to answer or whether she could not answer. There was another long pause. Ultimately, the Tribunal asked the first applicant whether she would prefer to respond to questions put in writing through her representative, rather than answer questions at the hearing. She said she would prefer to answer questions in writing. The Tribunal, in its reasons, records the following exchange:
I said that I was concerned to ensure that the applicant received natural justice and I did not think this could happen at the hearing today. ... I repeated that I would send the questions to their representative and allow him at least a month to take instructions and respond to me. I noted this was an unusual case. I said I did have concerns about the applicant 1’s to have a ‘normal’ hearing [sic]. I said I was concerned I would not hear directly from the applicant but said that in terms of providing her natural justice what I was proposing appeared to me to represent the best way forward. I repeated that I was concerned that she was not able to present her case herself.
14. The Tribunal subsequently sent the applicants’ advisor a list of 30 questions described as the “questions that would have been asked at hearing” (CB 235–240). The first applicant responded to the questions by way of a statutory declaration (CB 261–269).
15. The Tribunal considered the first applicant’s responses, but decided to affirm the decision of the Delegate. The Tribunal did not accept that the first applicant would be at risk of harm in China by reason of her religion (CB 291 at [76]), or because she had given birth out of wedlock (CB 296 at [93]) at [91]). The Tribunal also dismissed the applicants’ claims for complementary protection based on the claim that the first applicant would be subject to enforced family planning measures or denied medical treatment, or because the third applicant would be considered a “black child” (CB 296–300).”
The Applicant’s complaints in the Grounds of Appeal that the Tribunal failed to consider her mental and physical health at either hearing are not made out.
In relation to the First Hearing, the Tribunal noted that the applicants, together with their migration agent, attended the scheduled hearing on 29 April 2014. The Tribunal noted that the Applicant did not appear to be fit to take part in the hearing because she was unable to understand and answer simple questions and was unable to provide coherent answers to those that she did understand. The Tribunal noted that the Applicant’s migration agent expressed concern at the Applicant’s state of mind and informed the Tribunal that the Applicant was suffering from significant health issues, and that she had recently had an abortion. The Tribunal noted that the paper work provided at the hearing showed that there had been a non-viable pregnancy, although the Applicant continued to say that it had been an abortion. The Tribunal also noted that the Applicant’s child, the third applicant, had been recently hospitalised with an arm injury.
The Tribunal decided that it was not appropriate to continue with the First Hearing on the basis of the Applicant’s physical and mental state as she could not effectively discuss her claims. Accordingly, the Tribunal adjourned the hearing for three months. The Tribunal also informed the Applicant’s migration agent that a letter had been sent pursuant to s.424A of the Act and a written response had been received.
The Tribunal said that it was not prepared to consider the case on the papers at that stage, but that it would do so if there was no improvement in the Applicant’s condition. The Tribunal indicated that if it was to adopt that course, it would put to the Applicant in writing the questions that would otherwise have been put orally at the Resumed Hearing. The Tribunal asked the migration agent to keep the Tribunal informed of any change in the Applicant’s condition.
In those circumstances, there can be no complaint of a denial of procedural fairness to the Applicant in respect of the First Hearing before the Tribunal. The First Hearing was adjourned for three months due to the Applicant’s “significant health issues”. The Tribunal’s decision record makes clear that it was aware of the health issues that the Applicant claimed to have at that stage.
In relation to the Resumed Hearing on 6 August 2014, the Tribunal noted the medical reports received from the Applicant and the prescribed medication that was being taken by the Applicant. The Tribunal noted that it asked the Applicant whether she was well enough to undergo the Resumed Hearing, and noted that the Applicant responded that she was quite nervous.
The Tribunal proceeded to ask the Applicant’s partner, the second applicant, information about his family, why he had not returned to China, what work he had been doing over the past few years in Australia, and why he had not left Australia when his immigration status changed to that of an illegal immigrant. The Tribunal also explored the second applicant’s relationship with the Applicant and confirmed that they were still not married as at the date of the Resumed Hearing.
The Tribunal raised with the Applicant her five year delay in applying for protection in Australia and her changing account of past conduct in China. The Tribunal then noted that after a long silence on the part of the Applicant, it appeared that the Applicant did not want to answer the Tribunal’s questions. However, the Tribunal noted that it was not confident that the Applicant was in a state where she could answer the questions. The Tribunal said to the Applicant that this might be because she did not want to answer the questions, or because she was not able to answer the questions. The Tribunal noted that the Applicant “eventually said that she could not remember”. The Tribunal asked the Applicant whether she could not remember writing the statement or that she had changed her story. The Tribunal then noted there was another long pause by the Applicant.
The Tribunal then asked the Applicant if she would prefer to respond in writing to the questions the Tribunal had, rather than to respond to the Tribunal’s questions at the Resumed Hearing. The Tribunal noted that the Applicant said that she preferred to answer in writing. The Tribunal then indicated the nature of the questions it would be asking. The Tribunal also put to the Applicant that the country information before it was extensive and did not support her claim that her child could not be registered in China. The Tribunal said that it would provide a list of questions, as well as the country information the Tribunal would be considering, to the Applicant’s migration agent.
The Tribunal informed the applicants that it would consider any other information provided to it in addition to the information presently available to the Tribunal. The Tribunal said to the Applicant that it was concerned to ensure that she received natural justice and that the Tribunal did not think that could happen at the Resumed Hearing.
The Tribunal then noted that the Applicant said that she had serious health conditions, including a lump on her brain. The Tribunal referred to four medical reports provided by the Applicant. They were referral letters, together with a medical certificate stating that the Applicant was not fit to attend the Resumed Hearing. The Tribunal noted that the Applicant also said that she had been told that she had a lump in her breast. The Tribunal noted that the reports provided made no reference to a lump on the Applicant’s brain or breasts. The Tribunal noted that the Applicant’s CT scan was said to be normal, and noted the Applicant’s response that nothing showed on the CT scan as the growth was too small to be visible.
The Tribunal said that it would send the questions to the Applicant’s migration agent and allow him at least a month to take instructions and respond. The Tribunal noted that it had concerns about the Applicant’s capacity to have a “normal hearing”. The Tribunal then said that whilst it was concerned that it would not hear from her directly, in terms of providing natural justice to the Applicant, the Tribunal’s proposal appeared to it as the best solution.
The Tribunal then asked the applicants if they wanted to say anything before the Resumed Hearing ended, and noted that they did not wish to do so.
In its decision record, the Tribunal referred to the medical reports and noted their contents. The contents were essentially that the Applicant was a Hepatitis B carrier, had elevated levels of prolactin, and that a cerebral CT scan was normal. The Tribunal also noted that the Applicant was still suffering from post-natal depression and had a miscarriage with subsequent hospital treatment. The Tribunal noted that at the Resumed Hearing, the Applicant again repeated that she had serious health conditions including a lump in her brain, and noted the four medical reports provided to the Tribunal at that time. As stated above, those were referral letters which made no reference to any lump in the Applicant’s brain or breasts.
The Tribunal accepted that the Applicant had the health issues identified by health professionals, and also accepted that the Applicant feared that she may have other illnesses. The Tribunal found that there was nothing in the country information before it to suggest that the Applicant would be deprived of access to medical treatment and medication for her post-natal depression and Hepatitis B if she was to return to China.
The Tribunal concluded that there were not substantial grounds for believing that the Applicant would be denied access to medical treatment or medication in China and was therefore not at a real risk of significant harm if returned to China.
The above summary of what occurred during the Resumed Hearing makes clear that the Tribunal was aware of, and considered, all the medical conditions to which the Applicant referred this morning before me. Namely, that she was sick, had post-natal depression and had suffered a miscarriage. The fact that the Tribunal may have omitted to mention the Applicant’s headache as well, even if such an omission occurred, is not sufficient to establish jurisdictional error on the part of the Tribunal.
To the extent that the Applicant said that the Tribunal ignored the fact that she had a brain tumour, the Tribunal was plainly aware of the Applicant’s assertion to that effect, but noted that the medical evidence did not support such a diagnosis at that time. In particular, the Tribunal noted that a medical report stated that a CT scan was normal.
In the circumstances, none of the Applicant’s complaints in her Grounds of Appeal are made out.
The Tribunal’s findings were open to it on the evidence and material before it, and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the Tribunal (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J). A credit finding is sound if it was “open to [the Tribunal] on the material, was based on rational grounds and was arrived at on consideration of matters that were logically probative of the issue of credibility” (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547).
The Tribunal then considered whether the Applicant’s medical condition was such that she was deprived of a meaningful opportunity to attend a hearing before the Tribunal as required by s.425 of the Act. A fair reading of the Tribunal’s decision record does not suggest that the Applicant’s condition, as found to exist by the Tribunal at the Resumed Hearing, was such as to deny her the capacity to give an account of her experiences; or to present arguments in support of her claims; or, to understand and respond to questions put to her. It is well established that where an applicant is not disabled by psychological deficit in giving evidence and presenting arguments, a hearing in accordance with s.425 of the Act is not nullified by a mere failure by the applicant to present the case in the best possible light (see Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41 at [20] – [22] per Keane CJ (“SZNVW”)).
In order to demonstrate a failure by the Tribunal to comply with s.425 of the Act the Applicant must show that her health conditions were such as to deny her the capacity to give an account of her experiences; or present arguments in support of her claims; or, understand and respond to the Tribunal’s questions.
The reports of Dr Eddie So indicated that the Applicant had been diagnosed with post-natal depression and was taking anti-depressant medication. The Tribunal also noted the elevated levels of the protein prolactin in the Applicant’s blood and that she was taking medication for that condition. That was the nature of the medical evidence before the Tribunal in respect of the Applicant’s health conditions, all of which were accepted by the Tribunal.

There was no evidence before this Court, including any expert evidence, to suggest that by suffering from those conditions, the Applicant was unable to give an account of her experiences; or present arguments in support of her claims; or, understand and respond to the Tribunal’s questions. The Tribunal noted that it appeared that the Applicant did not want to answer the Tribunal’s questions, although the Tribunal was not confident that she was in a state where she could answer the Tribunal’s questions.
The Tribunal’s decision record makes clear that it gave thoughtful consideration as how best to fairly give the Applicant every opportunity to present her case in the best light. The Tribunal raised with the Applicant whether she would prefer to answer questions in writing through her migration agent, rather than continue with the Resumed Hearing. The Tribunal did not make a finding that the Applicant was unable to participate in the Resumed Hearing.
Moreover, there was no further adjournment requested after the adjournment of the Resumed Hearing. There is no evidence before this Court to suggest that there was anything before the Tribunal to suggest that there would be any utility in a further adjournment. The Tribunal noted that this was an unusual case.
In the circumstances, the Tribunal’s approach was fair at the time the Tribunal adjourned the Resumed Hearing. The Tribunal’s approach was reinforced as fair when the Applicant responded to the questions given in writing to her migration agent by the Tribunal.
There is nothing before this Court by way of evidence to suggest that the Applicant did not understand the Tribunal’s question to her at the Resumed Hearing as to whether she would prefer to proceed by way of questions put in writing. She was supported at that hearing by both her husband, the second applicant, and her migration agent, neither of whom complained about the Tribunal’s proposal. Further, there was no suggestion that the Applicant could not meaningfully consent to the Tribunal’s proposal.
In its decision record, the Tribunal noted in detail the written questions that it gave to the Applicant and quoted in full the Applicant’s responses.
Ultimately, the Tribunal made comprehensive adverse credibility findings in respect of the Applicant’s claims as to the alleged harm suffered by her father in China for the reasons claimed. The Tribunal gave detailed reasons as to why it reached those adverse credibility findings. As stated above, the Tribunal’s adverse credibility findings were open to it on the evidence and material before it, and for the reasons it gave.
Moreover, it is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 per Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).
Further, the Tribunal had particular regard to country information before it that did not support the Applicant’s claims that her fear of returning to China was well-founded. It is well settled that the country information to which the Tribunal has regard and the weight it gives that information is a matter for the Tribunal (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).
The Tribunal gave careful consideration as to whether the Applicant met the complementary protection criterion in s.36(2)(aa) of the Act in respect of her claims based on religion, China’s “black child” policy, forced sterilisation and the Applicant’s health issues.
It was open to the Tribunal to have regard to all the evidence before it, including the oral evidence provided by the Applicant, such as it was, in circumstances where the Tribunal otherwise complied with s.425 of the Act. Section 422B of the Act states that Division 4 – Part 7 of the Act is a total recitation of the natural justice required in such hearings. The Tribunal complied with s.424A of the Act in respect of information that it gave to the Applicant that may be the reason for it affirming the decision under review. Otherwise, the Tribunal conducted its review in accordance with Division 4 – Part 7 of the Act.
To the extent that the Applicant’s Grounds of Appeal asserted bias, as stated above, the bias was said to arise because the Tribunal failed to consider the Applicant’s medical conditions. That assertion by the Applicant is not made out. Otherwise, there is nothing either in the conduct of the review by the Tribunal or its decision record to suggest that the Tribunal disclosed any prejudgment, or that the Tribunal approached its task other than with a mind open to persuasion (see Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 at [69], [71]-[72], [127] per Gleeson CJ and Gummow J; Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]-[32] per Gleeson CJ, Gaudron and Gummow JJ).
In the circumstances, as stated above, the Applicant’s mental state did not deprive her of a meaningful opportunity to participate in the hearing mandated by s.425 of the Act (see Minister for Immigration v SGLB [2004] HCA 32 at [19] per Gleeson CJ; SZNVW at [20] per Keane CJ).
Further, and in any event, it may be that such conduct amounted to a waiver by the Applicant of her right to attend a further hearing in those circumstances. Such a submission was put by counsel for the first respondent, and I am inclined to accept that as correct in the light of s.425(2)(b) of the Act which confirms that a visa applicant may waive his or her entitlement to a hearing (see Hinton v Minister for Immigration [2015] FCA 408 at [10] and [13] per McKerracher J).

Conclusion

The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no power to interfere.
The proceeding before this Court should be dismissed with costs.

I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 10 August 2016