SZJVA v Minister for Immigration and Citizenship

BEFORE THE SECOND TRIBUNAL 6 The Tribunal accepted that the appellant was a citizen of China. The Tribunal, however, found the appellant was not a truthful witness. The Tribunal cited inconsistencies in the appellant's evidence relating to when he distributed the propaganda material and how he distributed that material. The Tribunal also had regard to inconsistencies relating to the appellant's place of residence in China. The Tribunal was not satisfied with the appellant's explanation for these inconsistencies. 7 The Tribunal also cited problems with the appellant's evidence relating to his alleged detention by the Chinese authorities including the fact that the appellant did not raise this claim with the Department and then added pieces to the story at each of the Tribunal hearings. The Tribunal found the appellant's claims in relation to when and why he left China to be implausible. There were inconsistencies in the appellant's evidence regarding his mother's practice of Falun Gong. There were also inconsistencies in the evidence of the appellant's witness, who was unable to recall the appellant's mother's name (despite having claimed to have visited her). 8 The Tribunal did not accept the appellant's claims and therefore did not accept that the appellant had a real chance of persecution if he were to return to China.

ON REVIEW BY THE FEDERAL MAGISTRATES COURT 9 Before the Federal Magistrate the appellant claimed: 1. The Tribunal decision was affected by bias as it ignored or failed to consider claims made by the appellant. He also asserted that the Tribunal ignored relevant material or misunderstood the appellant's claim or made a mistake in relation to an important finding of fact; 2. The Tribunal ignored additional information and claims submitted by the appellant in response to the s 424A letter; 3. The Tribunal failed to comply with s 424A(1) of the Migration Act 1958 (Cth) (the Act) as it did not provide the appellant with the genuine information used in its reasons for determining the application. 4. The Tribunal failed to comply with s 425 of the Act as it failed to arrange another hearing for the appellant where it was unable to make a decision in favour of the appellant according to additional information or material provided to it. 5. The Tribunal identified a wrong issue, relied on irrelevant material and made an erroneous finding. The application was not assessed fairly and properly. 10 The learned Federal Magistrate observed that in the absence of the transcript of the hearing it could not be inferred on the material before the Court that the Tribunal was biased or that there was a reasonable apprehension of bias. Her Honour found that the Tribunal's credibility finding went to the entirety of the appellant's claims and it was not necessary for the Tribunal to make specific findings in relation to every factual contention raised by the appellant. 11 In relation to the second claimed ground, her Honour was satisfied that the Tribunal did consider the appellant's responses, but that it did not accept the appellant's account or the reasons given for the variations in his claims. 12 On the third claimed ground the Federal Magistrate held that information provided to the original Tribunal was information provided for the purpose of the review and that pursuant to s 424A(3)(b) of the Act the Tribunal was not required to provide the appellant with this information. Her Honour also held that the Tribunal was not required to provide details of its appraisals of the appellant's credibility as such appraisals are not information for the purposes of s 424A(1) of the Act. 13 The learned Federal Magistrate was satisfied that the Tribunal raised all of the determinative issues, particularly the Tribunal's concerns regarding the plausibility of the appellant's claims, with the appellant during the hearing. Her Honour stated that there was no evidence before the Court that the Tribunal had failed to give the applicant an opportunity to give evidence, or that it had erred in the manner in which it had assessed the evidence given by the appellant at the first and second Tribunal hearings pursuant to s 425 of the Act. 14 Finally, the Federal Magistrate found that the generality of the appellant's claims regarding the fifth claimed ground did not establish any jurisdictional error in the Tribunal decision. Her Honour was satisfied that the Tribunal's view in relation to the inconsistencies of the appellant's evidence was open to it on the material before it. As no jurisdictional error was established, the application was dismissed.

GROUNDS OF appeal 15 The notice of appeal raises the following grounds: 1. The Federal Magistrate erred in not finding that the Tribunal decision was affected by bias. The Tribunal ignored claims made by the appellant, ignored relevant materials before it, misunderstood the appellants claim and made a mistake in relation to an important finding of fact. The Tribunal ignored the appellant's additional claims submitted to the Tribunal in response to its s 424A letter. 2. The Federal Magistrate erred in finding that the Tribunal complied with its obligation under s 424A of the Act because it did not provide the appellant with the 'genuine' information used in its reasons for determining the application. 3. The Federal Magistrate erred in finding that the Tribunal complied with its obligations under s 425 of the Act because it failed to provide a genuine opportunity for the appellant to give oral evidence in support of his claims and to present his argument in relation to the issues raised in relation to the review. 4. The Tribunal identified a wrong issue, relied on irrelevant material and made an erroneous finding in its determination. 5. The Tribunal did not assess the appellant's claim fairly and properly. 16 Although grounds 4 and 5 are directed against the Tribunal rather than the Federal Magistrates Court, for the purposes of this appeal, the grounds will be considered as alleging a failure on the part of the Federal Magistrates Court to identify those failures of the Tribunal. 17 At the hearing of the appeal before me the appellant did not wish to expand upon his grounds of appeal or raise any other matters. Counsel for the first respondent relied on his written submissions.

Bias 18 Actual bias exists where the decision-maker has a pre-existing state of mind so as to render him or her unwilling or unable to undertake any proper evaluation of the relevant evidence: Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507. No inference of bias can be drawn from the mere adverse findings of the Tribunal's decision: VFAB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 102. 19 Apprehended bias exists where a fair minded lay observer, informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, would apprehend that the Tribunal might not bring an impartial mind to the resolution of the question to be decided: Re Refugee Review Tribunal; Ex parte H [2001] HCA 28. 20 The learned Federal Magistrate found that, in the absence of the transcript of the Tribunal hearing, it could not be inferred on the material before the Court that the Tribunal was biased. Her Honour found nothing in the Tribunal's reasons for decision to establish bias in the sense of predetermination or to establish any claim of apprehended bias from the perspective of a reasonably well-informed lay observer. 21 In its decision the Tribunal found the appellant was not a credible or truthful witness. This conclusion was based on inconsistencies and implausible elements in the appellant's evidence. The Tribunal therefore rejected the appellant's claims for protection. The findings of the Tribunal had a clear evidentiary basis. The findings of the Tribunal appear to have been open to the Tribunal on the evidence and material before it. The Tribunal appears to have given full consideration to all of the appellant's evidence and discussed with the appellant each of the matters that led to the decision. There is no basis for the suggestion that the Tribunal did not bring an open, independent mind to the decision, or that a fair minded lay observer, informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, would perceive the Tribunal to be biased. The circumstances of the present case give no indication of actual or apprehended bias on the part of the Tribunal.

Reference to Evidence 22 The Tribunal is not obliged to refer in its reasons to every item of evidence that was before it: Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 and NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10. An omission to refer to a piece of evidence does not necessarily mean that it has been overlooked: Karras v Minister for Immigration & Multicultural Affairs (1998) 56 ALD 167 at 173. 23 Nor is it necessary for the Tribunal to make specific findings in relation to every factual contention raised by the appellant: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 and Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] 168 ALR 407. 24 The Tribunal did not ignore the appellant's s 424A response letter. The Tribunal set out the contents of the appellant's response in its reasons for decision. The Tribunal made extensive reference to the appellant's responses in the letter under the heading 'Reasons for Decision'. The appellant's explanations in the letter for the inconsistencies were noted; however they were not accepted by the Tribunal. The Tribunal is not obliged to provide a running commentary about its opinion of the evidence given: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152. 25 To the extent that the appellant's complaint is that the Tribunal did not accept his explanations in the s 424A response letter, the weight the Tribunal gives to any piece of evidence is a factual matter for it to decide. The weight it attaches is not amenable to judicial review: NBKT v Minister for Immigration and Citizenship & Multicultural & Indigenous Affairs (2006) 156 FCR 419 and Lee v Minister for Immigration and Citizenship & Multicultural & Indigenous Affairs [2005] FCA 464.

The appellant being misunderstood 26 The appellant has not provided particulars to support this claim and there appears to be no factual basis to support his contentions. A fair reading of the Tribunal decision indicates that the Tribunal did not misunderstand the appellant's claims or overlook relevant material. Rather, the Tribunal did not accept the appellant's claims. There is no evidence in the Tribunal decision that it failed to understand the appellant's claims or that it ignored any evidence presented to it by the appellant.

Mistake of fact 27 No particulars were provided in this regard. A fair reading of the Tribunal decision does not reveal any mistakes of fact. Barnes FM also noted that it was not established that the Tribunal had made a mistake as to an important fact. Even if the Tribunal did make a factual error that would not constitute a jurisdictional error because there is no error of law simply in making a wrong finding of fact: Abebe v Commonwealth (1999) 197 CLR 510. 28 The appellant's claim in this regard appears to amount to a challenge of the Tribunal's fact finding. The task of findings of fact, including findings of credibility, is for the Tribunal alone: Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547. To engage in fact-finding about the merits of the appellant's case is no part of the function of the Court in dealing with judicial review of an administrative decision: NAHI [2004] FCAFC 10. 29 To establish that there is a legal error in connection with a finding of the Tribunal, the appellant must be able to demonstrate that there was no basis whatsoever for the inference drawn by the Tribunal: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. 30 The Tribunal's findings of fact were open to it on the evidence before it. The reasons for the Tribunal's decision show a clear evidentiary basis for the Tribunal's findings of fact. The ground is not made out.

Ground 2 - s 424A 31 The appellant has not provided any particulars in support of this contention. 32 Section 424A(1) of the Act requires that the Tribunal provide the applicant with 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. The Tribunal's decision was based upon evidence given by the appellant in writing in his original application for a visa, a letter submitted to the Tribunal, the first and second Tribunal hearings, independent country information and the appellant's response to the s 424A letter. 33 Section 424A(3)(b) provides an exemption to the obligation under s 424A(1) where the information was given by an applicant for the purposes of the review, while s 424A(3)(ba) provides an exception where the information has been given by an applicant during the process that led to the decision that is under review other than information provided orally to the Department. Section 424A(3)(a) provides an exception where the information is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member. 34 Further, the information that the Tribunal is required to provide to the appellant under s 424A(1) does not extend to the Tribunal's subjective thought process or appraisals of evidence before it, including disbelief of an applicant's evidence: SZBYR v Minister for Immigration and Multicultural and Indigenous Affairs (2007) 81 ALJR 1190. The information does not extend to gaps, defects, or lack of detail or specificity in evidence or to the conclusions the Tribunal reaches in terms of the weight attributed to these factors: VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471. 35 Despite this, the Tribunal sent the appellant an s 424A notice detailing its concerns with the inconsistencies in his evidence, to which the appellant responded. The appellant has not demonstrated any failure by the Tribunal to comply with its obligations under s 424A and therefore the ground is also not made out.

Ground 3 - s 425 36 Under s 425 of the Act, the Tribunal must invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. 37 The Tribunal will have breached s 425 where it fails to notify the appellant of the determinative issues arising in relation to the decision under review: SZBEL 228 CLR 152. If the Tribunal takes no steps to identify the issues which it considers dispositive or determinative, an applicant is entitled to assume that the issues that the delegate considered dispositive or determinative are the issues arising in relation to the decision under review: SZBEL. 38 The learned Federal Magistrate found that it could not be established that there was a failure by the Tribunal to afford the appellant the opportunity to give evidence and address the issues arising in relation to the decision. Her Honour was satisfied that the determinative issues, particularly the plausibility of the appellant's claims, were raised with the appellant during the course of the hearing. Based on the information contained in the Tribunal decision, the Tribunal appears to have given the appellant sufficient opportunity to present his case and has fully understood the nature of the claims and explored these claims with him at the Tribunal hearing. 39 The ground is not made out.

Irrelevant Issue 40 The appellant has not provided any particulars detailing what evidence relied on by the Tribunal was irrelevant. The Tribunal's reasons for decision reveal that in making the decision, the Tribunal relied on the information provided by the appellant in written statements, the first and second Tribunal hearings and independent country information. 41 The choice and use of independent country information is a matter for the Tribunal, as is the weight to be accorded to such information: NAHI [2004] FCAFC 10. 42 The Tribunal's decision was based on its analysis and evaluation of the appellant's evidence and information provided as well as country information. The matters considered by the Tribunal were relevant to the question it was required to address in conducting the review, that is, whether it could be satisfied that the appellant's claims disclosed a well-founded fear of persecution for a Convention reason.

Mistake of Fact 43 No particulars were provided in this regard. As indicated above, there is no indication of any mistakes of fact made by Tribunal. 44 The ground is not made out.

Genuine Attempt 45 It will not be considered a genuine attempt to assess the appellant's claim should a decision-maker make a decision by reviewing the evidence with the only purpose being to look for reasons why the claim should be rejected: SZIAY v Minister for Immigration & Anor [2006] FMCA 1680; NAIS v Minister for Immigration & Multicultural and Indigenous Affairs [2005] HCA 77. Further, where a decision-maker has made unsupported, unreasonable and capricious decisions or conclusions and/or failed to address significant evidence this will not be considered to be a genuine attempt to assess the appellant's claim; SZIAY. 46 However, in this instance, there is no basis for this claim. The Tribunal understood the appellant's claims and questioned him about his evidence. The Tribunal addressed all of the evidence before it, and there is no evidence in the reasons for decision of any critical flaws in its reasoning process. All of his claims and evidence were considered by the Tribunal before it reached its decision and the conclusions made were open to the Tribunal on the evidence before it.

Bad Faith 47 An allegation of bad faith involves personal fault on the part of the decision maker: SBAP v Refugee Review Tribunal [2002] FCA 590. The allegation must be distinctly made and clearly proved: SBAP,see also Jia Legeng 205 CLR 507. In order for bad faith to be established it must be shown that the Tribunal acted dishonestly, arbitrarily or capriciously: SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749. A presence or absence of honesty is often crucial in determining the existence of bad faith. A finding that a decision maker has not acted in good faith is likely to be rare and extreme, especially where the only evidence available to support the allegation is the Tribunal's reasons for decision: SAAG v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 547. 48 The appellant has not provided a transcript of the Tribunal hearing. There is nothing in the reasons for Tribunal decision to indicate that the Tribunal acted in bad faith in any way. 49 This ground also fails.

CONCLUSION 50 The appeal will bedismissed. The appellant is to pay the costs of the first respondent fixed at $3,460. I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.

Associate: Dated: 5 November 2008 The Appellant represented himself.