THE PRESENT APPEAL
19 The notice of appeal advanced the following grounds:
· The Federal Magistrate erred in deciding that the Tribunal had not fallen into jurisdictional error in that he had erred in finding that:
- the Tribunal had reviewed the appellant's claim in the manner required by the Tribunal's Guidelines on the Assessment of Credibility and Conduct of Hearings;
- the Tribunal was not obliged to make express findings concerning its rejection of specific evidence in support of the appellant's claim;
- the Tribunal was entitled to substitute its own lay opinion concerning the appellant's mental state over that of the appellant's treating psychologist;
· The Federal Magistrate erred in deciding that the Tribunal had provided the appellant with a meaningful opportunity to be heard in that he had erred in finding that:
- the brevity of the hearing and the Tribunal's failure to ask questions concerning the appellant's Christianity did not undermine the review even though the Tribunal found that the appellant's claim that he had converted to Christianity was not credible;
- the conduct of the hearing did not raise a reasonable apprehension of bias in that the member of the Tribunal had turned her back to the appellant while he responded to her questions, failed to make notes of his responses and affected a dismissive, disinterested demeanour towards him which adversely affected his ability to provide his evidence;
· The Federal Magistrate failed to afford the appellant procedural fairness by:
- finding that the times during which the member of the Tribunal had her back turned would have been few;
- finding that the appellant and his solicitor had exaggerated the length of time the member of the Tribunal had turned her back throughout the hearing but had failed to put this conclusion to the appellant and his solicitor.
20 At the hearing of the appeal the appellant submitted that the Tribunal had failed in its statutory task to assess the appellant's claim that he feared persecution because he had converted to Christianity from Islam and that it had failed to assess that claim by reference to the evidence before it, comprising letters from ostensibly reputable religious organisations in Nigeria and Australia, the United Nations Special Rapporteur's Report on Freedom of Religion or Belief: Mission to Nigeria - 7 October 2005 ("the Special Rapporteur's Report") and the psychological assessment of the appellant dated 15 October 2007. The appellant submitted that the Tribunal was obliged to make findings about evidence that was material to the issues that needed to be decided.
21 The appellant further submitted that the Federal Magistrate erred in holding that it was permissible for the Tribunal to fail to make findings on independent evidence if it decided it did not believe the appellant in one or more aspects of his claims, even if those aspects were concerned with peripheral issues.
22 The respondent submitted that the Tribunal had not failed to consider the appellant's claim and that the Tribunal's decision rested on an adverse assessment of the appellant's credibility which finding was open to the Tribunal on the material put before it.
23 Further, it was submitted by the respondent that credibility findings are uniquely within the jurisdiction of the Tribunal and not within the jurisdiction of the court and that the Tribunal rejected the appellant's fundamental claim that he had sought or would seek to convert from Islam to Christianity in Nigeria. Accordingly, the respondent submitted that there was no basis to contend that the Tribunal did not consider the evidence before it - it was simply a matter for the Tribunal as to what, if any, weight that evidence should be given. A similar submission was put forward in respect of the weight given to the evidence comprising the Special Rapporteur's Report.
24 I am satisfied that the Tribunal did not fall into jurisdictional error in the respects submitted by the appellant and that the Federal Magistrate did not err in deciding that the Tribunal had not so fallen into jurisdictional error. The key to the Tribunal's ultimate conclusion is found in the fact that the Tribunal did not accept or believe the appellant's evidence and claim that he had converted to Christianity in Nigeria and that he was a genuine Christian convert. Also, the Tribunal did not accept that either the appellant or his family had been harmed or threatened in relation to their religion. The Tribunal gave its reasons for these findings, namely that "important aspects of the Applicant's claims and evidence were not credible". The Tribunal found that the appellant was an unsatisfactory witness who had not given truthful information on a number of important issues and it set out what it described as "serious flaws" in the appellant's evidence. The Tribunal considered that the letters he presented from clerical persons in Nigeria and Australia supporting his claims were outweighed as evidence by these serious flaws.
25 These findings were squarely within the province of the Tribunal. As McHugh J said in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (supra) at par [67], a finding on credibility "is the function of the primary decision‑maker par excellence".
26 Counsel for the appellant accepted that the Tribunal had to be satisfied that the appellant was a genuine convert and criticised the Tribunal for not asking one question during the hearing about the appellant's knowledge of Christianity. It was submitted that the Tribunal misdirected itself by focussing on how the appellant came to Australia and the circumstances surrounding his occupational training visa. It followed, said counsel for the appellant, that the Tribunal could not have been in a position to be satisfied that the appellant was not a genuine convert without having examined that fundamental issue. This submission, even if it be correct as a matter of factual analysis of what the Tribunal did, does not give rise to a jurisdictional error on the part of the Tribunal. The fact finding and assessment of credibility is quintessentially the task for the Tribunal. It is not for the Court, on review, to dictate to the Tribunal the method by which it is to undertake its factual analysis and assessment of the credibility of an applicant.
27 The Tribunal may not have asked a specific question about a specific aspect of the appellant's knowledge of Christianity, but what is clear from a reading of the transcript of the hearing and listening to the audio recording of the hearing is that the Tribunal asked the appellant questions relating to his activities and actions as a Christian. The Tribunal asked the appellant whether, and when, he was baptised as a Christian, when he converted to Christianity, and what was involved in the classes to which he went for preparation to be baptised. In short, this submission of the appellant is no more than a claim to obtain merits review.
28 Counsel for the appellant criticised the Tribunal for focussing on the manner in which the appellant came to Australia, namely as an occupational trainee, rather than examining whether the appellant was a genuine convert to Christianity. Counsel relied upon the reasoning in NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 and submitted that the present case was an example of the observations of the Full Court at par [115]:
"By and large fact‑finding is a task within jurisdiction, though factual error is not necessarily mutually exclusive of jurisdictional error: Re Minister for Immigration and Multicultural Affairs, Ex parte Applicant S20/2002 (2003) 198 ALR 59; 73 ALD 1; [2003] HCA 30. Where fact‑finding has been conducted in a manner which can be described, as here, as in substantial respects unreasoned, and mere assertion lacking rational or reasoned foundation, at times as plainly and ex facie wrong and as selective of material going one way, these considerations may found a conclusion that the posited fair‑minded observer might, or indeed would, reasonably apprehend that the conclusions had been reached with a mind not open to persuasion and unable or unwilling to evaluate all the material fairly. …"
29 I reject the submission that the matters identified by the Full Court in that extract applied to the Tribunal's reasoning in the present case. The Tribunal explained why it had not found the appellant's evidence credible and why he was an unsatisfactory witness. It may be that other tribunals or courts may have approached the issue of the credibility of the appellant's evidence on a different basis and considered different aspects of the appellant's evidence in forming a view on the appellant's credibility but it was not for the Federal Magistrate, nor is it for this Court to undertake that task. As Mansfield J said in SZCSC v Minister for Immigration and Multicultural Affairs [2007] FCA 418 at par [55]:
"It is not the role of the Court to form a view as to whether it would have reached a different factual conclusion on the evidentiary material."
30 Having rejected the fundamental basis of the appellant's claims, it was not necessary for the Tribunal to make specific findings or reach specific conclusions in relation to other aspects of the evidence of the appellant, such as the letters from clerical persons in Nigeria and Australia supporting his claims, and the Special Rapporteur's Report as the Tribunal found they were outweighed by "serious flaws" in the appellant's evidence. As Gleeson CJ said in Re Minister for Immigration and Multicultural Affairs, Ex parte Applicant S20/2002 (supra) at par [12]:
"It was contended that this passage shows that the tribunal member adopted a flawed approach to her evaluation of the evidence, failing to assess the evidence of the applicant/appellant in the light of the corroborating evidence, and giving no weight to the evidence of the corroborating witness for reasons that had nothing to do with the quality of that evidence. The essence of the complaint is that the tribunal failed to consider the evidence as a whole, but first considered, and disbelieved, the evidence of the applicant/appellant, without taking account of the corroboration, and then considered and rejected the corroboration because of the rejection of the evidence of the applicant/appellant. I do not accept that this is a fair criticism of the tribunal's reasons. In my view, all that the member was saying was that, for reasons already given at length, she found the applicant/appellant's story implausible, and in some important respects unbelievable, and that she also rejected the evidence of the corroborating witness, even though she had no separate reason to doubt his credibility other than the reasons that she had already given for rejecting the claim she was considering. The member could have expressed herself more clearly. It is not necessarily irrational, or illogical, for a finder of fact, who is convinced that a principal witness is fabricating a story, which is considered to be inherently implausible, to reject corroborative evidence, even though there is no separate or independent ground for its rejection, apart from the reasons given for disbelieving the principal witness."
31 The Tribunal did not ignore or disregard the appellant's claim or the evidence upon which he relied. In the section of its decision headed "CLAIMS AND EVIDENCE" the Tribunal set out in considerable detail the claims and evidence upon which the appellant relied. In particular the Tribunal noted that the appellant feared persecution because he was a convert. It is also clear from this section of the Tribunal's decision that it included in its consideration the Tribunal's Guidelines on Credibility. The Tribunal referred to them in its decision and was not obliged to comply strictly with the guidelines given that they are not statutory in nature. In any event, failure to comply with the guidelines does not give rise to an apprehension of bias. It is also clear that the Tribunal took into account and had before it in the consideration of its decision the psychologist's report which, according to the Tribunal:
"Stated that he will have difficulty presenting his case well at an RRT hearing. He is likely to become anxious and confused. He has trouble remembering dates and incidents."
32 It is also clear from the Tribunal's decision that it had before it, and had taken into account, the Special Rapporteur's Report which had been referred to by the appellant's representative in her submission to the Department on 23 July 2007. The appellant accepted that the Tribunal did not have to make separate findings on each piece of evidence which was placed before it but he submitted that although it was open to the Tribunal to prefer the United States State Department Report on Religious Freedom over the Special Rapporteur's Report, the Tribunal should have set out why it preferred that report over the Special Rapporteur's Report. It was not a jurisdictional error or, indeed any error, for the Tribunal not to give this explanation: see, eg, Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at 423; Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294; Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268 at par [29]; SZALW v Minister for Immigration and Multicultural & Indigenous Affairs [2004] FCA 1690 at pars [18], [19] and [29].
33 The appellant submitted that there was no evidentiary basis upon which the Tribunal could have decided that the appellant was not a genuine convert for the reasons that the Tribunal set out in its findings. The appellant submitted that in such circumstances jurisdictional error was established. In support of this submission the appellant relied on SZLGP v Minister for Immigration and Citizenship [2008] FCA 1198. In that case the Court quashed the Tribunal's decision on the basis that the Tribunal's determination was based on illogical or irrational findings or inferences of fact which led the Court to the conclusion that the determination of the Tribunal was "an unreasoned decision". The Court said at par [26]:
"Here, the inconsistencies (or rather, omissions) in the first appellant's evidence adverted to by the Tribunal are at most minor or trivial. Further, the Tribunal's reasons disclose no legitimate articulable basis for the finding, based on those omissions, that the first appellant fabricated fundamental aspects of his refugee claims. …"
34 Those observations are not apposite to the Tribunal's reasoning in this case. The Tribunal formed an adverse view of the credibility of the appellant and it explained by reference to a number of particulars why it had reached that conclusion. The matters to which the Tribunal referred were not, in my view, minor or trivial. True it is that they did not bear directly upon any aspect of the appellant's conversion to, or belief in, Christianity. Nevertheless, they did provide a rational basis upon which it was open for the Tribunal to form a view as to the general credibility of the appellant's evidence.
35 The respondent submitted that there was no proper basis for the appellant's submission that the Federal Magistrate had failed to afford the appellant procedural fairness, given that the Federal Magistrate had listened to the audio tape of the Tribunal hearing and read the transcript prepared by the appellant's representative.
36 I am satisfied that there is no substance in the appellant's submission that the Federal Magistrate failed to afford the appellant procedural fairness. The Federal Magistrate was given the opportunity by the appellant and his representative to listen to the audio recording of the hearing before the Tribunal and to read a written transcript of that hearing in addition to their affidavit evidence as to the conduct of the hearing. The Federal Magistrate found that the transcript and the audio recording did not reveal any improper conduct on the part of the Tribunal and concluded that there would be few passages which could properly be described as a few minutes, as described by the appellant's representative, during which the Tribunal member would have had time to turn her back and not take notes in the manner described by the representative. That finding and conclusion was certainly open to the Federal Magistrate on the material before him.
37 During the course of submissions, I was provided with the audio recording of the Tribunal hearing to which I listened, and the written transcript of the hearing which I read. On the basis of what I heard and read I am satisfied that the Federal Magistrate did not err in his reasoning, findings and conclusion referred to in pars [16] and [17] above.
38 Further, it was not a want or lack of procedural fairness for the Federal Magistrate to:
"… suspect that in the strain of the moment, both the Applicant and Ms Psihogios‑Billington have somewhat exaggerated the periods of any time during which the Tribunal member's back may have been turned."
The Federal Magistrate was not obliged to put this issue or finding to the appellant or his representative in the course of the hearing. His "suspicion" was not integral to his finding that the Tribunal member had not brought a biased mind to the proceeding. It was his assessment of what he had heard on the audio recording that led him to the conclusion that there were would be few passages which could properly be described as a few minutes during which the Tribunal member would have had time to turn her back and not take notes in the manner described.
39 The ground that the Federal Magistrate erred in finding that the Tribunal is entitled to substitute its own lay opinion concerning the appellant's mental state over that of the appellant's treating psychologist is not made out. The Federal Magistrate made no such finding. The Tribunal referred to the psychologist's report that the appellant had problems with his memory due to stress and anxiety that might affect his evidence and said that such memory problems were not apparent during the hearing. The Tribunal said that the difficulty with the appellant's evidence was not one of gaps, confusion or lack of clarity but of stark inconsistencies. The Federal Magistrate observed that the Tribunal was not disbelieving of the appellant's medical practitioner but was rather saying that whatever illness the appellant might have been suffering had not been observed by it to prevent the appellant giving his evidence. This finding and conclusion was open to the Federal Magistrate to find and I can discern no error in the Federal Magistrate's conclusion.
40 There was no basis for the ground that the Tribunal member's conduct of the hearing raised a reasonable apprehension of bias. The Federal Magistrate found that what he heard on the audio recording of the hearing and what he read in the transcript of the hearing did not show either unfairness to the appellant or a predisposition amounting to a mind not open to argument. It was open to him so to find. The member of the Tribunal may have been discourteous at times in the course of the hearing as deposed to by the appellant and his representative, but the matters complained of do not raise any issue of a reasonable apprehension of bias.
41 The appeal will be dismissed with costs.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg.