SZHRG v Minister for Immigration and Citizenship

Tribunal's reasons 4 The Tribunal had concerns about the veracity of the appellant's claims. Looking at the evidence as a whole, the Tribunal was not satisfied that the appellant was a credible witness. The Tribunal found the appellant did not know that Christians needed to be baptised to be cleansed of original sin and had no idea of the meaning of the Holy Trinity, although she had knowledge of other aspects of Christianity. However, when questioned about her activities, the Tribunal found the appellant to be vague, general and evasive. The appellant was found to have given contradictory information, on one hand that she had reported to the police when she had been released but quickly changed her evidence saying she did not actually do this. These matters indicated to the Tribunal that the appellant had fabricated her claims in order to support her application for a protection visa and this reflected poorly on the appellant's credibility. The Tribunal did not accept the appellant was a Christian or a member of an underground church or that she had been detained or ill-treated. The Tribunal did not accept the appellant went into hiding and had used a false passport. The Tribunal, based on its adverse credibility finding, was satisfied it was entirely plausible that the appellant's passport was her real passport and that the appellant's claim that she was really the person on the identity card was not truthful and accurate information. 5 The evidence that the appellant had been involved in Christian activities in Australia was accepted by the Tribunal but in light of the fact that she commenced these activities approximately seven days after her arrival and in conjunction with the Tribunal's adverse credibility finding, the Tribunal was satisfied the appellant was engaged in these activities for the purpose of strengthening her claims for a protection visa. The appellant's explanation for attending a Christian church so soon after arrival in Australia to seek comfort was unconvincing because the appellant had said that she was unaware that she could apply for a protection visa at the time but she had already lodged an application for one. The Tribunal was therefore not satisfied the appellant had a well-founded fear of persecution and affirmed the decision of the delegate.

Federal Magistrate's reasons 6 Before the Federal Magistrate, the appellant relied on an amended application filed on 27 June 2006 which raised three grounds of appeal. Firstly, the appellant asserted that the Tribunal failed to carry out a statutory duty by not providing information, relevantly the date on which the appellant lodged her protection visa application, to the appellant for comment. Secondly, the appellant raised grounds that the Tribunal made unwarranted assumptions that the appellant attended church to enhance her protection visa claims. Thirdly, there was an allegation that the Tribunal failed to carry out its review in a bona fide basis in relation to its assessment of the appellant's knowledge of Christianity, including assessing the appellant on the basis of a Christian in Australia rather than what could be expected of a practitioner of an illegal, underground church in China. 7 Federal Magistrate Scarlett considered each of the appellant's grounds in light of the Tribunal's decision and found no jurisdictional error. His Honour considered that the first ground alleged a breach of s 424A(1) of the Act but found that the ground must fail under s 424A(3)(b) as the information was submitted to the Tribunal by the appellant in her application for review on 5 July 2005. Turning to the second ground, his Honour noted that the Tribunal made conclusions on the appellant's credibility and stated that credibility findings were findings of fact which could not be reviewed by the Court conducting judicial review. In consideration of the final ground, his Honour found no evidence of bad faith. His Honour was mindful of the fact the appellant was not legally represented but was not satisfied the appellant had established any jurisdictional error on the part of the Tribunal.

Grounds of appeal 8 The notice of appeal raised the following grounds: '1. The learned Federal Court of Australia erred in law. 2. The learned Federal Court of Australia was wrong in finding that the Refugee Review Tribunal acted properly in its findings.' These were treated on the hearing of the appeal as requiring a re-agitation of the grounds raised before the Federal Magistrate. 9 The first ground related to the application of s 424A of the Act. The 'information' which the Tribunal used to reach this conclusion was the adverse finding it had made on her credit. No obligation to inform the applicant of the Tribunal's reasoning process in this respect arises under s 424A. The Tribunal's subjective appraisals, thought processes or determinations are not information for the purposes of s 424A: Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 at [54]; Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at 428 [95] per Allsop J and VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at 476-477 [24] per Finn and Stone JJ. 10 The second submission is that the Tribunal should have made inquiries with the Australian Mission in China to access the appellant's visa application file before making the finding that it was plausible that the appellant's real name was the one appearing on her passport. The Tribunal is under no obligation to make the case for an application (Abebe v The Commonwealth (1999) 197 CLR 510 at 579 [187] per Gummow and Hayne JJ; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592 at [40]) or to make the inquiries (Minister for Immigration and Multicultural Affairs v SGLB (2004) 207 ALR 12 at [43]). 11 The third submission is that the Tribunal was biased because it relied upon the substance of the letter from the Padstow Chinese Congregational Church in a manner adverse to her without first speaking to the author of the letter. It is submitted that the factual information which the Tribunal relied upon (that the appellant had been worshipping at the Church since 6 February 2005) was apparent upon the face of the letter. The letter was submitted to the Tribunal by the applicant for the Tribunal to use in assessing her claims. Reliance upon that information without reference to the author of the letter in no way creates an apprehension of bias.

Conclusion 12 For the above reasons I reached the view that the appeal could not succeed and made the orders appearing in these reasons. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholson.

Solicitor for the First Respondent: Australian Government Solicitor

Date of Hearing and Orders Made: 22 February 2007

Date of Judgment: 22 February 2007