//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2011] FCA 566
Federal Court of Australia
2011-05-25
Robertson J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 This appeal is from a judgment of the Federal Magistrates Court of Australia, given on 14 February 2011 in Brisbane. The decision of the Refugee Review Tribunal ("the Tribunal") in the matter was given on 21 April 2010 in Sydney, the decision being that the Tribunal affirmed the delegate's decision not to grant the applicant a Protection Visa (Class XA) visa. 2 I take the background to the matter from the judgment of the Federal Magistrates Court as follows: The applicant claims to be a citizen of China born on 17 May 1968 who arrived in Australia on 3 August 2008 as a dependent [sic] on her husband's UC-457 business visa. The applicant husband and her child voluntarily departed Australia in July 2009. The husband's visa was cancelled under s. 128 of the Migration Act 1958 (Cth) on 16 July 2009 and as a consequence of that decision the applicant's visa was consequentially cancelled under s. 140. From 17 July 2009 the applicant remained in Australia as an unlawful non-citizen. . . . The Tribunal affirmed the decision of the delegate not to grant the applicant a Protection Visa on 21 April 2010 and provided notice of that decision under cover of letter dated that date. The decision was founded on the basis that the applicant did not satisfy the criteria set out in s. 36(2) of the Migration Act. That is, the Tribunal was not satisfied that the applicant had a well-founded fear of being persecuted for a Convention reason if she returned to China and found that she was not a person to whom Australia had protection regulations [sic] under the Refugees Convention as amended by the Refugees Protocols. 3 The present appellant's main claim was that she feared persecution due to being a Christian and her involvement in underground Christian churches in China. She claimed to have been arrested on three occasions and suffered detention and mistreatment. The Tribunal did not accept that the present appellant had, in fact, been detained by police on the three occasions claimed, nor did it accept her alleged involvement in unregistered churches in China. The Tribunal found a lack of credibility in the present appellant's evidence arising from a number of inconsistencies, a delay of over 12 months in applying for a protection visa and, as it found, her lack of knowledge about Christianity. 4 At [109] of the Tribunal's reasons for decision, it said in relation to the question of delay: The Tribunal considers that the applicant's delay of more than [a year] before seeking protection in Australia, undermines the credibility of the claim that she came to Australia in order to seek protection. 5 At [122] the Tribunal referred to a number of conflicts which it said were in relation to the present appellant's alleged movements in China and found on that basis that she had not presented a true account of her movements in China. 6 At [124] the Tribunal said that it did not accept that the present appellant was detained by police on three occasions in China. The Tribunal also referred to the churches the appellant said she attended in Brisbane but said that neither of the two churches identified themselves as Methodist churches, as claimed by the present appellant in her statutory declaration. On this basis, the Tribunal did not accept that the present appellant was involved in unregistered churches in China. 7 As to the present appellant's knowledge of Christianity, the Tribunal at [127] did not accept that her knowledge of Christianity was commensurate with that of a person who was baptised in 1996, as the present appellant claimed, and had been an active member of Christian churches since then. 8 At [128] the Tribunal found that the present appellant's purpose in attending churches in Australia was to give her time to learn about Christianity and therefore strengthen her claim for protection. The Tribunal disregarded that conduct in attending those churches under s 91R(3) of the Migration Act. 9 At [129] the Tribunal said it had no reason to believe that should the present appellant return to China, she would become involved in unregistered churches and be at risk of adverse attention by the Chinese authorities. 10 For all of those reasons, the Tribunal found that the present appellant did not have a well-founded fear of persecution in China.
The Federal Magistrates Court 11 Turning then to the Federal Magistrates Court, before that court, the only ground advanced on behalf of the present appellant, was that the Tribunal member "made a wrong judgment on my credibility". The Federal Magistrate held that the Tribunal's findings were open to it on the evidence and there was no evidence to find that the Tribunal used incorrect legal principles or asked itself the wrong questions in leading to its conclusion. The Court also said it was well settled that findings as to credibility were findings of fact, par excellence, entrusted to the Tribunal alone to make. 12 The Federal Magistrate held that the findings were findings open to the Tribunal and properly made by it, and that the present appellant was seeking impermissible merits review. The Federal Magistrate held that the appellant had not demonstrated any jurisdictional error on the part of the Tribunal and the application was therefore dismissed. 13 Thereafter, it became necessary for the present appellant to apply for an extension of time in which to file and serve a notice of appeal from the judgment of the Federal Magistrates Court. 14 By order made on 11 April 2011 a judge of this Court, Logan J, ordered that the present appellant's application for leave to file and serve out of time be allowed. A further order was that the present appellant file and serve a notice of appeal in Form 55 by 19 April 2011. Further orders were that the appellant file and serve a written outline of submissions no later than seven clear working days before the hearing date, and the respondent file and serve a written outline no later than three clear working days prior to the hearing. 15 The notice of appeal before the Court was filed on 19 April 2011. The grounds of appeal are: 1. Breach of natural justice 2. Denial of procedural fairness 3. Failure to take into [account] relevant consideration 4. Failure to consider proper evidence 5. Taking into account irrelevant consideration 6. Failure to make proper facts findings 16 The appellant did not, in fact, file and serve a written outline of submissions. I have an outline of submissions from the first respondent, filed on 19 May 2011. 17 I agree with the submission of the first respondent that the five grounds raised in the notice of appeal make broad claims of error on the part of the Tribunal, however, they are not supported by any particulars to explain how the Tribunal made the errors claimed, nor do they make any attempt to identify any error in the decision of the learned Federal Magistrate. 18 Thus, the appellant had put nothing in writing to establish on the evidence that the Tribunal erred in any of the ways stated in the grounds of appeal. 19 I also find that the Tribunal's reasons themselves, do not disclose any basis on which to conclude that any of the grounds of appeal were made out. 20 In light of the absence of a written outline of submissions, I invited the appellant to put any oral submissions in support of the grounds of the notice of appeal before me today, and through an interpreter, Ms Wu, the appellant did make submissions. She put first, that the Tribunal had relied on incorrect evidence concerning her husband's work experience. Secondly, the appellant put that the Tribunal should not have found that her evidence lacked credibility. Thirdly, she said that the Tribunal had indicated at the beginning of its hearing that she should not tell any lie and, fourthly, the appellant submitted that the result or the decision was unfair. 21 These matters in my view do not amount to jurisdictional error. It was for the Tribunal to find the facts. Assuming, without deciding, that the Tribunal made any error in relation to the evidence - for example, as to which city the appellant was in at a particular time - I refer, as did the Federal Magistrates Court, to the reasons for judgment of North and Lander JJ in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51; 115 ALD 303, which observation was more recently cited with approval by a Full Court of this Court in MZXSA v Minister for Immigration and Citizenship [2010] FCAFC 123 at [83]; 117 ALD 441. The observation is that an error of fact, based on a misunderstanding of evidence in considering an applicant's claims, is not jurisdictional error so long as the error does not mean that the tribunal has not considered those claims. 22 Here, I am not persuaded that there has been any misunderstanding of the evidence or other error of fact. 23 Further, if the appellant is asserting bias on the part of the Tribunal, that claim has no basis in the evidence. 24 Thus I find that the Tribunal's decision was not affected by any jurisdictional error that has been either articulated or established. 25 For these reasons I dismiss the appeal from the Federal Magistrates Court. The order I make is that the appeal be dismissed with costs. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson.
BZAAB
Minister for Immigration & Citizenship