SZLUD v Minister for Immigration and Citizenship [2009] FCA 549 (27 May 2009)

Last Updated: 27 May 2009

FEDERAL COURT OF AUSTRALIA

SZLUD v Minister for Immigration and Citizenship [2009] FCA 549

MIGRATION – appeal – application for protection visa – alleged failure by Tribunal to comply with s 420 of the Migration Act 1958 (Cth) - whether Tribunal made wrongful, illogical or unreasonable findings of fact – whether Tribunal decision affected by actual or apprehended bias – whether adverse credibility findings open on evidence before Tribunal

Held: The appeal be dismissed

Migration Act 1958 (Cth) ss 420, 476

Abebe v Commonwealth of Australia (1999) 197 CLR 510
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Bains v Minister for Immigration and Multicultural Affairs [2001] FCA 403
Greyhound Racing Authority (NSW) v Bragg [2003] NSWCA 388
Maddy v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 233 ALR 503
Minister for Immigration and Citizenship v MZXPA [2008] FCA 185
Minister for Immigration and Multicultural Affairs v Al-Miahi [2001] FCA 744; (2001) 65 ALD 141
Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12
NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235
NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328; (2004) 214 ALR 264
NAEH of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 927
NATC v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 52
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165
Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka (2001) 206 CLR 128
Re Minister for Immigration and Multicultural Affairs; Ex parte S154/2002 (2003) 77 ALJR 1909
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425
Semunigus v Minister for Immigration & Multicultural Affairs [1999] FCA 422
SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225
Sun v Minister for Immigration and Ethnic Affairs [1997] FCA 324; (1997) 81 FCR 71
SZJEZ v Minister for Immigration and Citizenship [2008] FCA 1741
SZLUD v Minister for Immigration and Anor [2008] FMCA 799

SZLUD v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 1047 OF 2008

MCKERRACHER J
27 MAY 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1047 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLUD Appellant

AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	MCKERRACHER J
DATE OF ORDER:	27 MAY 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant is to pay the costs of the first respondent to be taxed if not agreed.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website..

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1047 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLUD Appellant

AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	MCKERRACHER J
DATE:	27 MAY 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1. The appellant is a citizen of China. She arrived in Australia on 7 October 2006 on a student visa to study English. On 11 September 2007 she lodged an application for a protection visa with the Department of Immigration and Citizenship. That application was refused by a delegate of the first respondent on 5 October 2007. On 9 October 2007 the appellant applied to the Refugee Review Tribunal (the Tribunal) for a review of that decision. The Tribunal affirmed the decision of the delegate of the first respondent to refuse to grant a protection visa to the appellant. It is the manner in which the Tribunal hearing was conducted that now falls for consideration.
2. A Federal Magistrate, on 19 June 2008, dismissed an application for judicial review of the decision of the Tribunal (SZLUD v Minister for Immigration and Anor [2008] FMCA 799). This is the judgment on appeal from that decision.

THE APPELLANT’S CLAIMS

3. The appellant claimed to fear persecution because she was a member of a group involved in an underground Christian Church. She claimed that as a child she attended meetings with the group with her parents about once a week and continued to attend as she got older. In May 2001 the police found out about the group and raided her house during one of the meetings. The appellant stated that her father and four others tried to escape but were caught and arrested. The appellant stated her father’s leg was broken and he remained in hospital for about six months. Following his stay in hospital he was detained by the police for a further two months. Subsequently, the police would come to her house to check on them from time to time. Her church group nevertheless continued to meet secretly and she continued to attend the meetings.
4. The appellant stated that her father and siblings left the local area in 2004 because of the danger of being detained again. She claimed that she was unaware of where they were at the time of the hearing before the Tribunal. Because she was under 18 years old, she said she did not face the same risk of arrest as others so she was able to remain with her paternal grandmother. She claimed that she continued to attend the group services on a regular basis. Her grandmother could not go to the meetings because of her age although she was a committed Christian and knew a lot about the Bible.
5. The appellant says that in 2006 her father arranged for her to travel to Australia to study because she was soon to turn 18 years and if she were to remain in China would be in greater danger of arrest because of her religion once she reached that age.
6. The appellant stated that she did not apply for a protection visa prior to arriving in Villawood Detention Centre because, as an 18 year old person, she did not know that this was possible. Further, she speaks very little English and did not have anyone to help or advise her on what to do.

BEFORE THE TRIBUNAL

7. The Tribunal found that the appellant was not a credible witness. It was satisfied that the appellant had ‘embellished, if not entirely fabricated, material aspects of her claim to be a refugee’.
8. The Tribunal referred to her 11 month delay in applying for a protection visa after arriving in Australia, stating that it would have expected her to have made more of an effort to seek to remain in Australia on a lawful basis. The appellant’s explanation regarding her age, lack of understanding of the English language and lack of access to persons who could assist her did not satisfy the Tribunal as being acceptable reasons to explain her delay in applying for a protection visa.
9. The Tribunal also referred to her inadequate knowledge of Christianity, finding that her level of knowledge was not consistent with the activities that she claimed to have participated in and participation in regular religious study. This issue in particular now falls for consideration.
10. The Tribunal dismissed her application on the basis of ‘the cumulative consequences of a number of adverse credibility findings’. The Tribunal also found that additional overseas material provided by the appellant did not overcome the concerns the Tribunal had regarding her credibility.

THE FEDERAL MAGISTRATES COURT

11. Before the Federal Magistrate the appellant was represented by Mr S Prince of counsel as she was in this appeal. Mr J Mitchell appeared on both hearings for the Minister. Before her Honour the appellant contended:
    1. Contrary to s 420 of the Migration Act 1958 (Cth) (the Act), the Tribunal failed to conduct the hearing in accordance with the requirements of substantial justice.
       
    2. The decision of the Tribunal made wrongful, illogical or unreasonable findings of fact which were contrary to the evidence provided and not based on logical grounds.
       
    3. The Tribunal’s decision was affected by the Member’s illogical and irrational findings about the [appellant’s] credibility which were not based on findings or inferences of fact supported by logical grounds.
       
    4. The decision of the Tribunal was induced or affected by the bias of the presiding Tribunal Member.
12. The learned Federal Magistrate, in considering the Tribunal’s decision in light of the serious claims made by the appellant found that listening to the hearing tapes actually ‘made clear the fair and measured way in which the hearing was conducted’. Her Honour found that the Tribunal Member asked the appellant open ended questions about her claims and had regard to her responses. Her Honour found that, in the circumstances and for the reasons it gave, the Tribunal’s adverse findings were open to it on the evidence and material before it.
13. Her Honour held that to the extent the appellant contended that the Tribunal was in breach of s 420 of the Act, s 420 is expressed to be facultative and not restrictive and does not create rights or a ground of review additional to those given in s 476 of the Act.
14. The learned Federal Magistrate found that Grounds 2 and 3 merely disagreed with the findings of fact made by the Tribunal, inviting a merits review which could not be undertaken by the Court. Her Honour stated that the Tribunal’s findings and conclusions, including its adverse credibility findings, were open to it on the evidence before it. Her Honour noted that illogical reasoning does not of itself constitute an error of law or a jurisdictional error.
15. In relation to the fourth ground, the learned Federal Magistrate found the particulars in support of this claim were no more than a disagreement with the findings and conclusions of the Tribunal, including its adverse credibility finding. Her Honour found that, based on a fair reading of the Tribunal decision and her review of the hearing transcript and tapes, there was no evidence that the Tribunal approached its task with a mind not open to persuasion; nor that the Tribunal acted capriciously, arbitrarily or without proper credit findings and by whim or intuition.
16. As no jurisdictional error was established, the application was dismissed.

GROUNDS OF APPEAL

17. The notice of appeal raised the following grounds:
    1. Her Honour erred by failing to find that the Second Respondent failed to discharge its functions under the Act, namely s 420, by failing to conduct the hearing in accordance with substantial justice.
       
    2. Her Honour erred by failing to find that the decision of the Second Respondent made wrong, illogical or unreasonable findings of fact which were contrary to the evidence provided and not based on logical grounds.
       
    3. Her Honour erred by failing to find that the decision of the Second Respondent was affected by the presiding Member’s illogical and irrational findings on credibility which were not based on findings or inferences of fact supported by logical grounds.
       
    4. Her Honour erred in failing to find that the decision of the Second Respondent was induced or affected by the bias of the presiding Member.
       
    5. Her Honour erred by applying Maddy v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 233 ALR 503 in circumstances where the presiding Member’s comments went beyond the scope of ‘personal experiences’.

STATUTORY FRAMEWORK

18. The two sections of the Act that are primarily relevant in this appeal are s 420 and s 476. Respectively they provide:

Section 420

Refugee Review Tribunal's way of operating

(1) The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

(2) The Tribunal, in reviewing a decision:

(a) is not bound by technicalities, legal forms or rules of evidence; and

(b) must act according to substantial justice and the merits of the case.

Section 476

Jurisdiction of the Federal Magistrates Court

(1) Subject to this section, the Federal Magistrates Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.

(2) The Federal Magistrates Court has no jurisdiction in relation to the following decisions:

(a) a primary decision;

(b) a privative clause decision, or purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500;

(c) a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B or 501C;

(d) a privative clause decision or purported privative clause decision mentioned in subsection 474(7).

(3) Nothing in this section affects any jurisdiction the Federal Magistrates Court may have in relation to non-privative clause decisions under section 8 of the Administrative Decisions (Judicial Review) Act 1977 or section 44AA of the Administrative Appeals Tribunal Act 1975.

(4) In this section:

"primary decision" means a privative clause decision or purported privative clause decision:

(a) that is reviewable under Part 5 or 7 or section 500 (whether or not it has been reviewed); or

(b) that would have been so reviewable if an application for such review had been made within a specified period.

ANALYSIS

19. Before dealing with each of the grounds, some general submissions were raised orally. To some extent these overlapped with the appellant’s written submissions but I will deal with them first.
20. The appellant raised two specific errors in the Tribunal decision. The passage of the decision in relation to the first suggested error needs to be reproduced. It is as follows:

Secondly, in Australia the applicant did claim to have regularly read her ‘Bible [as well as] attending Church.’ Attached to the migration agent’s letter of 5 November 2007 was also a ‘certificate’ from a named pastor ‘confirming the applicant has completed the “Reconnect Course”, while she had been detained at Villawood Detention Centre. At the Tribunal hearing, the applicant also claimed the bible readings in Australia (prior to her detention) were conducted with friends, for instance at the home in which she lived in Auburn (where she resided with 3 or 4 other people). I understand that church services, as they exist in Australia, may not reflect church services in other countries. Further, the dangers involved in the practice of some religions in some countries, may limit the opportunity to gain a detailed knowledge of a religion in-country. However, as stated above, the present applicant did claim to have attended an underground church ‘regularly’ in China (in community with others), and to have studied her Bible regularly in Australia. The issue therefore, includes assessing whether the knowledge level of the applicant is consistent with claimed relevant activities and opportunities.

That said, when asked what she discussed in her bible study classes, the applicant responded ‘miracles’, and that ‘God Save people’. When asked to tell the Tribunal her favourite bible story/s the applicant referred to ‘Luke Ch.7. “love God love people”.’ I then put to her I wished to assess whether she was a sincere Christian as she had claimed. I therefore asked her why she would be compelled to practice her religion in China. In response, the applicant said ‘Jesus is lord’, ‘God create the universe’, ‘before born already knew what would happen in the future’, ‘sacrifice only son’. She also claimed she would be compelled to practice her religion because ‘love from God’.

21. The correct citation (and the appellant did give the correct citation) was Luke Ch 10 verse 27. It reads:

27 So he answered and said, “‘You shall love the LORD your God with all your heart, with all your soul, with all your strength, and with all your mind,’ and ‘your neighbour as yourself.’ ”

22. The Tribunal cited the wrong chapter. What is perhaps more important, in my view, and is a fair submission from the appellant is that a quick reading of the paragraph dealing with the questions about religion would give the impression that the answers given were jumbled and confused. In fact, the appellant says, the answer as to the content of the passage from the bible was a perfectly accurate, if abbreviated, summary of it.
23. I think there is some force to this submission. The question is also whether the Tribunal’s decision conveys that the appellant could not easily demonstrate familiarity with the Bible or religious concepts.
24. Whether this is so requires a more detailed examination of the transcript on this topic. I have set that out below:

MEMBER: Okay I understand what you have said. Is there anything in particular that you would like to tell me in support of your claim to be a refugee?

Something for instance that I have not already asked you about?

INTERPRETER: No

MEMBER: Okay. You’ve said that you- just as a matter of interest you said that you regularly read your Bible, is that correct? Sorry I withdraw that- you said that since arriving in Australia you have regularly read your Bible.

INTERPRETER: Yes

MEMBER: Did you read it with other people or did you just read it when you were on your own at home?

INTERPRETER: Read with people who were living in the same home as me.

MEMBER: So what did you talk about... when you read the Bible? What kinds of things did you discuss?

INTERPRETER: About- we talk about the miracles performed and that how god saved people.

MEMBER: Do you have any- is there anything in particular about- is there any subject in particular- sorry – was there anything in particular that you talked about that you though was partic- that you thought was important and interesting to you?

INTERPRETER: Luke, Chapter 10 verse 27. That you should love God.

MEMBER: Is that all?

INTERPRETER: Love people. Love people around you like you love yourself.

MEMBER: Let me ask you another question which is a bit broader. What do you know about Christianity? Tell me some of the things that you know about Christianity.

INTERPRETER: Jesus- is the lord is the God and the God created everything. Created the universe.

MEMBER: Anything else?

INTERPRETER: Before he was born he already knew what will happen in the future to the world.

MEMBER: [Can I get someone to come into room 13 because I think I have a problem with the tape. Thank you.] I have been told that we have a computer recording system backup- so I intend to continue speaking notwithstanding the tape recorder seems to be- not beeping but emitting a sound. So what other kinds of things do you know about Christianity?
**********End of Tape One**********

INTERPRETER: He sacrificed his only beloved son to save the world- to save people

MEMBER: Okay. Let me try another tag. You’re claiming that if you had to suppress your religious beliefs to avoid prosecution in China, that would be prosecution for you. Please say that.
**********Start of Tape Two**********

INTERPRETER: Yes.

MEMBER: If I think that the strength of your religious convictions was sufficiently strong- I may find that you may be persecuted in China. Please say that.

But based on what you have told me so far I may not think that you know much – that you know enough about Christianity that I may be satisfied that you have any religious convictions. Please say that.

So what is it about Christianity which you believe- which compels you to practice it?

INTERPRETER: Love from the God.

MEMBER: Is that all?

INTERPRETER: Yes.

MEMBER: Okay listen now I understand what you have said.

I really- I have not formulated any particular views on this matter- well certainly I have not finalised any views on this matter. What I need to do is go and think about it and draft my findings for reasons.

Now I am prepared to – what’s today? –today is Thurs- Friday, 26th October, I am certainly prepared to give you to the close of business next Friday before I finalise any decision that I may write up. Please say that.

Are you intending to speak to your migration agent or is your migration agent intending to meet up with you some time next week?

25. In my view, reasonable minds may differ on the issue of whether this passage does or does not display a knowledge of the Bible and Christianity. But there is nothing in the exchanges, taken alone or with the totality of the questioning which suggests bias, procedural unfairness or other jurisdictional error on this topic.
26. The second major factual error, according to appellant’s counsel, related to the conclusion as to the alleged embellishment of the accounts concerning the confrontations with the police in 2004. Counsel for the appellant, Mr Prince stressed that the two statutory declarations taken together with the questioning of the Tribunal should lead to the inference that there was no mistake, inconsistency or embellishment.
27. Counsel for the first respondent submitted that the questioning, in particular by the Tribunal, clearly showed embellishment in the sense that the Tribunal Member made it abundantly clear on three occasions to the appellant that he was questioning about the 2004 incident. There were only two incidents. Yet she ‘feigned confusion’ between the incidents when he pointed out to her the inconsistency in the answers given and said that she thought the Member was referring to an incident in 2001. The relevant passages of the transcript, reasons and submissions respectively are as follows:

Transcript Concerning 2001 and 2004 Incidents

MEMBER: You refer to a 2001 incident and a 2004 incident.

In your evidence to the Department you said that your parents left your local area when you were 15 because they feared they may be caught practising their religion in an underground church.

Though you did not mention it to the Department, you mentioned in your statutory declaration to the tribunal that that 2004 departure by your parents-please say that

Was a consequence of him being interrogated by the authorities about his involvement in the church.

INTERPRETER: Yes

MEMBER: Now you said that –everybody except you left you home area in China in 2004.

You said that you were under 18 at that time so you did not face the same risks of arrest.

INTERPRETER: I would not be arrested.

MEMBER: I must put to you that on the basis of the country information that I have seen it appears that the Chinese authorities can act in a fairly brutal manner.

I therefore may not accept that you would not be arrested if you were in fact engaged in an underground church as you claim.

INTERPRETER: There is a law in China that they cannot arrest people under 18.

MEMBER: Okay I understand what you have just said- I put to you again that it is commonly claimed and the country information I have seen appears to indicate that the Chinese authorities don’t necessarily always obey the law.

Is that all you have to say on this matter?

Yes? No?
...

MEMBER: I can easily wait a week that’s not a problem.

You know- I just- let me ask you about the 2004 incident when you say- when you now say your father was interrogated.

And that occurred at the time I understand when you were approximately 15 years of age, is that correct?

Where (sic-were) you living at home when your father was interrogated?

INTERPRETER: Yes.

MEMBER: Were you actually at the home when you father was interrogated?

INTERPRETER: After school yes.

MEMBER: Sorry was that a yes or no-

INTERPRETER: Yes.

MEMBER: Okay- I understand what you have now said is that your father was interrogated- was it by the local police or the PSB?

INTERPRETER: Local Police.

MEMBER: Was it not the local police but the neighbourhood committee? Or members from- or people from the neighbourhood committee?

INTERPRETER: Local Police.

MEMBER: Okay so the local police came to your house sometime after you had returned from school and interrogated your father. Please say that.

Were you- were you watching this take place?

Did you see the interrogation?

INTERPRETER: Yes.

MEMBER: And what did they ask your father?

INTERPRETER: They told people not to move people. People there were singing religious songs.

MEMBER: No, no, no, no, no- you said in 2001 your father- my apologies, my apologies- sorry withdraw that- there are 2 incidents that you have brought to my- there are 2 principle incidents that you have brought to the Tribunal’s attention.

One is in 2001 and one was in 2004.

Okay? Now I’m talking about the second incident that was in 2004.

Now you just said at the 2004 incident there were people singing religious songs at you home. Is that correct?

INTERPRETER: Yes and the policeman said that they had already given us many warnings – policeman asked why we were still singing religious songs.

MEMBER: So were there more than just family members in the home during the- sorry I withdraw that- were there members of the underground church at your family home- during the 2004 incident?

INTERPRETER: Yes. Church people there but not many.

MEMBER: Now in the second incident- sorry- you’ve provided one statutory declaration to the Department and one statutory declaration to the Tribunal.

And in the statutory declaration to the Department you have actually mentioned the 2001 incident when you father was caught worshipping with other undergrounds church members.

You’ve never mentioned – in your evidence to the Department you didn’t mention that you father was again caught in 2004, practicing with other church members. You just said that he feared that he might be and then left.

Sorry that is at folio 69 at of the Department file at paragraph 9. In your subsequent statutory declaration to the Tribunal you have referred to the 2004 incident... but you never said that he was caught- that you father was caught at that time with other underground church members.

You’ve now said that in fact you father was caught in 2004 by local police whilst singing religious songs with other church members.

Is embellishment a word that you can effectively translate into Chinese? If I was to say that would appear therefore that you were embellishing if not entirely fabricating aspects of your evidence- of you claims. Is that something you would be able to translate?

Okay then that’s what I want to say? It therefore may appear to me that you are embellishing if not entirely fabricating some parts of your claims.

INTERPRETER: We talk about 2001- just now?

MEMBER: No No, I actually confirmed with you that 2004 I in fact confirmed it twice that we were talking about the same thing.

Would you like to comment? I have said my view that you are embellishing if not fabricating your evidence about the 2004, the alleged 2004 incident.

Because not before today’s hearing you have said that your father was caught with other church members at that time. That is in 2004.

INTERPRETER: My father received a warning from the police and he was arrested in the name of disturbing social peace.

MEMBER: I’m not exactly sure what that means.

You said your father was detained in 2001 but never did you say that he was detained in 2004. Are you now saying that he was detained in 2004?

INTERPRETER: Not detained. I never said that he was detained.

MEMBER: Okay you used the word arrested though. Are you talking about the 2001 incident?

INTERPRETER: 2001.

MEMBER: Okay I need for you to focus on the 2004 incident. Was your father detained or arrested in 2004?

INTERPRETER: No

The Reasons

28. In relation to the questions of the 2001 and 2004 incidents, the Tribunal’s reasons and the submissions for the appellant respectively were as follows:

The 2001 and 2004 incidents:

The Tribunal’s s424A letter to the applicant included a comment that there was little detail in her written claims to the Department. She had mentioned an incident in 2001 (in the Attachment to the s424A letter I had incorrectly referred to her being 2 years old at that time – the applicant was in fact approximately 12 years old). She had also stated her family, fearing further persecution, has fled their home area in 2004, leaving the applicant with her grandmother (who apparently lived nearby). In her statutory declaration of 20 October 2007 to the Tribunal, the applicant claimed her father was ‘interrogated’ in 2004, and this was why he had fled. The applicant then explained her father had been arrested. The Tribunal twice confirmed this was in 2004. The applicant then resiled from this claim and said her father was not arrested in 2004. She claimed to have been confused.

Given the difficulty in eliciting her evidence, I was concerned there may have been problems with the interpretation. However, I was commonly able to obtain a response meaningful to the question I asked, particularly if I repeated and or rephrased my question. Except for her apparent evasiveness, there was no other reason I had to be concerned about the quality of the interpreter at the hearing. However, given my other concerns, I do not accept the quality of the interpretation sufficiently explains the adverse credibility issues discussed herein. I therefore am satisfied the applicant sought to embellish, if not entirely fabricate her relevant material claims.
...

The Submissions

The 2004 Incident

Contrary to the Court below’s finding at [60 xxii] at [86], the evidence the appellant gave at the hearing in relation to the 2001 police raid and the 2004 incident was consistent with her previous statements and significantly showed that the appellant did not say that her father was either arrested or detained in 2004. It was therefore not open to the Member to make adverse findings regarding this evidence.

At the hearing [AB 100-102] the Member put to the appellant that it appeared that she was embellishing her claims in relation to the 2001 police raid and 2004 because:

(a) She did not mention in her declaration to the Department [AB153] as she did in her Declaration to the Tribunal [AB231] that her father had been interrogated in the 2004 incident; and

(b) She did not mention until the hearing that the 2004 interrogation took place in the presence of other church members.

The appellant sought in her declaration to the Tribunal and during the hearing to provide the Tribunal with further information and detail about the 2004 incident. It is not the case that the appellant sought to introduce an entirely new claim at any stage. Indeed it is the exact purpose of the hearing to offer the appellant the opportunity to explain and elaborate on claims which the Tribunal is unable to accept in their present form.

In Alphaone [Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576] the Full Court of the Federal Court said:

Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker.

In light of the principle enounced in Abebe [Abebe v Commonwealth of Australia (1999) 197 CLR 510], that it is not for the Tribunal to make out the appellant’s case for her, it is entirely appropriate for the appellant to have sought to amplify her previous claims.

Further, it is submitted and plainly illustrated on the evidence that the Member made an error as to fact in accusing the appellant of saying her father had been arrested or detained in 2004. The transcript reveals that the appellant made the statement “[m]y father received a warning from the police and he was arrested in the name of disturbing the peace” however she neither attributes this to 2001 or 2004. The Member immediately sought clarification and the appellant confirmed that the she did not say now or previously, that her father had been detained or arrested in 2004.

Contrary to that, the Tribunal subsequently made the following mistaken and illogical factual finding:

In her statutory declaration of 20 October 2007 to the Tribunal, the appellant claimed her father was ‘interrogated’ in 2004, and this was why he had fled. The appellant then explained [at the hearing that] her father had been arrested. The Tribunal twice confirmed this was in 2004. The appellant then resiled from this claim and said her father was not arrested in 2004. She claimed to have been confused.

The Tribunal then made adverse credibility findings concerning the appellant and concluded “I am therefore satisfied that the [appellant] sought to embellish if not entirely fabricate her relevant material claims”.

29. In my view, once again, reasonable minds may differ as to the issue of whether there was genuine or feigned confusion on the part of the appellant or the basis for concluding that the confusion was feigned. But again, the fact that a different conclusion may have been open falls a long way short of jurisdictional error. In fairness to Mr Prince’s arguments, he does not contend otherwise but says that taking the ‘two errors’ cumulatively with the other features of the hearing to which he adverts and which I consider below, he contends that there was bias, apprehended bias and no substantially just hearing.

Transcript as a Whole

30. Mr Prince stressed that the content of the questioning and answering in the Tribunal needs to be considered as a whole rather than to be dissected. The response to this from Mr Mitchell was that that was the way that the Federal Magistrate was invited to look at the transcript. Having done so both on a piece by piece basis and on viewing it as a whole, her Honour was very firmly of the view that it demonstrated that the questioning and answering was conducted very properly by the Tribunal. I accept that the conduct of the hearing taken as a whole needs to be considered.
31. I informed counsel that I would, as requested, listen to the audio of the hearing as time in open court did not realistically permit that course. I should stress that the exercise of listening to the audio was not in order to see if the Tribunal reached the correct answer on the evidence before it. Rather it was in order to consider the serious submissions advanced by the appellant as to actual jurisdictional bias and illogicality of decision-making.
32. Mr Prince for the appellant put the appellant’s case on the premise that an examination of the Tribunal transcript revealed that the exchanges which occurred in the Tribunal hearing were very similar to those considered in Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425.
33. I will not repeat the entire transcript that appears in the Tribunal hearing presently under consideration as much of it is set out in detail in the decision of the learned Federal Magistrate. But it is necessary to set out some of the questioning which the High Court examined in Ex parte H in order to test the submission for the appellant that these proceedings were conducted in a similar manner. That transcript in Ex parte H is set out in some detail in the decision. Again, without citing all of it, I will refer to limited passages considered by the High Court:

[14]
...

“[The Tribunal]: Do you know what it looks like to me, Mr [H], at this stage?

[Male Prosecutor]: Yes.

[The Tribunal]: It looks like to me that you -- you applied to come to -- you sought to come to Australia for reasons of employment, that failed in April 1997 and this -- this ...

[Male Prosecutor]: No, it's not failing that.

[The Tribunal]: All the rest of this is just a fabrication to -- to fix that problem.

[Male Prosecutor]: Which ones? Which ones?

[The Tribunal]: The whole story about the -- being ...

[Male Prosecutor]: No, no, you don't understand, no.

[The Tribunal]: Well, that's how it looks to me”.

[15]
...

"Mr [H], it looks to me like this is -- this is an attempt to fix your problem of not getting a job with Qantas or Ansett?"

The male prosecutor then explained that he had applied for employment with Qantas and Ansett after experiencing police harassment when questioned about the stolen Airlanka laptop computer. This exchange then followed:

"[The Tribunal]: Well, Mr [H], if they thought you'd stolen a laptop computer in September 1996 ...

[Male Prosecutor]: Yes.

[The Tribunal]: ... my strong suspicion is that you wouldn't be sitting here.

[Male Prosecutor]: No, they couldn't prove it. My -- my company managers they didn't -- they didn't think that I -- I stole it -- I did it -- I did it. It was used by four of us, actually. So, they -- after the company security investigations we -- all we went to the police station but they didn't harass the other three, other three people.

[The Tribunal]: Well, Mr [H] ...

[Male Prosecutor]: You're thinking that I'm saying lies? Definitely thinking that I'm saying lies?

[The Tribunal]: Yes, I -- you're absolutely right, Mr [H], I do think that. Perhaps I'll hear from your wife but you're absolutely right; that's precisely what I'm thinking, Mr [H].

[Male Prosecutor]: You think that?

[The Tribunal]: Yes.

[Male Prosecutor]: Do you believing that I'm lying?

[The Tribunal]: Yes, that's precisely what I think at the moment, Mr [H].

[Male Prosecutor]: How can I make -- believe me?

[The Tribunal]: I don't know yet. Perhaps I'll hear from your wife and we'll see how it looks to me then".

[16]
...

"[The Tribunal]: Well, as far as I can see at the moment all they -- all they had reason to suspect you for is for having a couple of Tamil people stay the night -- well, stay four nights.

[Male Prosecutor]: I had to make an entry, I went to the police station at the first incident when they told us. When I go to the police station do you know what he said to me, the police officer?

[The Tribunal]: No, I don't, I wasn't there.

[Male Prosecutor]: He noted down the thing and he said ...

[The Tribunal]: This is back in March 1996?

[Male Prosecutor]: Yes, somewhere after -- just a couple of ..."

Without allowing the male prosecutor to say anything further, the Tribunal then said:

"Yes, thank you. Mr [H], I'm going to ask you to wait outside now while I hear from your wife, if that's all right."

[17]
...

"[The Tribunal]: I think -- do you know what I think? I think that -- that having been unsuccessful in coming to Australia for reasons of employment that you and your husband have decided, well, if we can't get in by getting a job with Ansett or Qantas we'll become refugees.

[Female Prosecutor]: Yes, to do what? To do ...

[The Tribunal]: Get to Australia.

[Female Prosecutor]: No, I don't think so because my husband ...

[The Tribunal]: I must say your evidence is not terribly convincing, Mrs [H], and at the moment all I can see is that the -- that the police know that your mother was Tamil -- is that what -- I don't see any basis for the police suspecting you of anything else. Indeed, if they did suspect you of anything else why wouldn't they have arrested you?"

...
[21]

"I understand what you're saying, Mr [H]. I don't find it the least bit convincing."

Shortly thereafter, the Tribunal questioned the male prosecutor about the letters he claimed to have received from the LTTE as follows:

"[The Tribunal]: Tell me, Mr [H], why would the Liberation Tigers of Tamil [Eelam] write to you and give you a letter telling you on what day two of their named comrades are going to be present at a certain location?

[Male Prosecutor]: I don't know, actually.

[The Tribunal]: Are they idiots?

[Male Prosecutor]: I'm not sure.

[The Tribunal]: Well, are they really because they're a longstanding successful terrorist organisation and you don't get to be a longstanding successful terrorist organisation by sending people letters telling them what time two of your activists are going to be present at a certain location, do you?

[Male Prosecutor]: I know that but ...

[The Tribunal]: That's just laughable, Mr [H].

[Male Prosecutor]: Yes.

[The Tribunal]: Absolutely laughable."

[22]
...

"[The Tribunal]: How many -- how common is it, Mr [H], for there to be inter-marriage between a Sinhalese and a Tamil?

[Male Prosecutor]: I don't understand you?

[The Tribunal]: How unusual is your situation; you are a Sinhalese man who has married a part Tamil -- it's not very unusual, is it?

[Male Prosecutor]: I did not quite get you?

[The Tribunal]: How unusual is your situation, Mr [H]?

[Male Prosecutor]: It's not that unusual.

[The Tribunal]: No, it isn't that unusual, is it?

[Male Prosecutor]: Yes. No, it's not that unusual.

[The Tribunal]: Yet you're telling me it's because of your situation that you are suspected of -- despite the fact that you're a Sinhalese -- that you're suspected of assisting the LTTE?

[Male Prosecutor]: Yes.

[The Tribunal]: It's nonsense, Mr [H], isn't it?

[Male Prosecutor]: I know that they suspect me; that's -- due to petitions, I know that, because of jealousies and all that, so.

[The Tribunal]: I'm here to listen to you, Mr [H], but I'm telling you quite plainly, Mr [H], that I'm unconvinced by your evidence at this point in time."

[23]
...

"You see, there's no basis whatsoever from my point of view on which I could conclude that you will be suspected of being an LTTE supporter. You're Sinhalese. There is no Sinhalese support for the LTTE. Your wife doesn't even speak Tamil."

[24]
...

"[Male Prosecutor]: If you don't believe us it's nothing else to say. The only thing that ...

[The Tribunal]: You're absolutely right, Mr [H], I don't believe you.

[Male Prosecutor]: The people around us they wanted to chase us away from that place. In [1996] they stoned us after a couple of months later -- after our marriage they stone us then that was ...

[The Tribunal]: Because they somehow guessed that your wife is part Tamil?

[Male Prosecutor]: They know that.

[The Tribunal]: They can tell just by looking at her?"

There then followed a discussion as to whether the female prosecutor was of Tamil appearance until the male prosecutor pointed out that her appearance was beside the point because people in Sri Lanka were inquisitive about people's background. The Tribunal responded:

"Even if they know she's part Tamil ... in your evidence your situation is not unusual. That's certainly my understanding, that your situation is not particularly unusual. There isn't any evidence that people in your particular circumstance face difficulties, Mr [H]."

[25]
...

"[The Tribunal]: So you keep saying but you just don't seem to be able to say anything that's the least bit convincing, do you?

[Male Prosecutor]: Than by -- stoning us ...

[The Tribunal]: Mr [H], at this point in time I don't accept that you had a single difficulty.

[Male Prosecutor]: Well, I'm sorry, sir, I have.

[The Tribunal]: Because they don't fit. They don't fit with what we know about Sri Lanka, they don't fit with your circumstance and I've heard you giving the evidence and I find you to be a most unconvincing witness.

[Male Prosecutor]: Well, [sir], I had to go through a lot ...

[The Tribunal]: Mr [H], about all I believe from you is your name and address."

[26]
...

"I've found your evidence to be most unconvincing. It's an improbable story and you've told it very badly".

There was a further short exchange in which the male prosecutor said that he and his wife were hoping to go and hide in India to escape from their problems. The Tribunal asked if there was anything else which he wished to add, to which the male prosecutor replied:

"If you don't believe us, no."

The hearing then concluded, the Tribunal's final remarks being:

"All I have is a power to make a decision on the facts that I think are true and I'm afraid to say, Mr [H], I don't think that you've told me the truth. I think that you've fabricated the story and it's most unconvincing. So that's the basis upon which I'm going to have to make a decision, Mr [H]. Good luck." (emphasis added)

34. The High Court observed that it will often be necessary for inquisitorial proceedings to test evidence on a vigorous basis and to ensure that the person is confronted with matters which bear adversely on credit. Nevertheless it went on to observe that the Tribunal had gone too far. The High Court said at [32]:

In the present case, a fair-minded lay observer or a properly informed lay person, in our view, might well infer, from the constant interruptions of the male prosecutor's evidence and the constant challenges to his truthfulness and to the plausibility of his account of events, that there was nothing he could say or do to change the tribunal's preconceived view that he had fabricated his account of the events upon which he based his application for a protection visa. In other words, a fair-minded lay observer or a properly informed lay person might well apprehend bias by the tribunal against the male prosecutor. And because the female prosecutor's application stood or fell with his, a fair-minded lay observer or a properly informed lay person might, in our view, form the same view in her case.

35. Mr Prince submitted that the transcript of the hearing is littered with examples of the Tribunal Member engaging in misleading and confusing conduct:

Most notably is the Member’s tendency to make long and complicated statements and questions and the concluding (sic) such rambles with the question “Do you understand?”. This invites a “yes or no” response to the final questions but fails to give the appellant the opportunity to respond to the many issues and questions raised throughout the monologue.

Four examples are given.

36. In her Honour’s analysis of these submissions (at [52]-[56] of her Honour’s reasons) the submissions were rejected.
37. Perhaps the most important observation to be made is that even if there were minor interruptions or some questions perhaps lengthily and inelegantly phrased, the Tribunal Member did, nevertheless, through the course of the hearing on three separate occasions invite the appellant to add anything else which she may consider to be relevant.

The Audio

38. I have considered the submissions, read the transcript, listened to the recording of the hearing and considered her Honour’s assessment which was also broken into a detailed assessment, question by question. I am unable to conclude that her Honour was incorrect in her assessment and description of the process. I accept the submission of counsel for the first respondent, Mr Mitchell, that the questioning and answering in these proceedings was completely different from the questioning and answering criticised by the High Court in Ex parte H.
39. On listening to the audio record of the Tribunal hearing, at the outset the appellant clearly sounded apprehensive (unsurprisingly). She became more assertive particularly when pressed by the Member in later questioning. That said, the Member was in my assessment generally temperate and patient. He was detailed in his explanations to the appellant as to the processes, and in his questioning to the point that he would withdraw and clarify or recommence some questions to ensure clarity. If the latter were a vice, many good counsel could be guilty of it. When that occurred there was no reason to think on any occasion, that anything but the final form of a question was put to the appellant by the interpreter although there were occasions when the Member paused and broke up his comments and questions slowly and carefully to enable translation of the content. There was no indication of the process causing any difficulty. The interpreter raised no problems. There were some requirements to answer ‘yes’ or ‘no’ questions. There was nothing oppressive about these requirements in the circumstances when this was done. For example such a requirement was used when the Member was simply summarising an earlier answer. On the other hand occasionally in relation to the giving of some answers, there were considerable pauses while the appellant gave an answer slowly. She was not pressed. The appellant appeared to be able to explain herself. I am not saying that the Member demonstrated a willingness to assist the appellant with her claim – rather he was testing the claims that she had made. To the extent he expressed scepticism about any aspect it was not, in my view, taken individually or collectively, in a manner which evinced a determination only to prove the falsity of her claims.

Illogicality

40. Mr Prince stressed that the approach of the Tribunal was illogical, on the one hand, recognising that the appellant was a child at all times prior to entry into Australia and before making her protection visa application but dismissing those issues because at the time of the hearing she was 18 years of age and of adequate maturity to prosecute her case. I accept, as one must, that the maturity to prosecute the case would not change over night with the appellant turning 18, but the important distinction on which the Tribunal focussed was that the appellant was at least an adolescent rather than a child. The Tribunal did refer to the United Nations High Commissioner for Refugees Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees (the UNHCR Handbook) (not that it was obliged to do so) and cited from the Handbook (at [215]). That passage reads:

Where a minor is no longer a child but an adolescent, it will be easier to determine refugee status as in the case of an adult, although this again will depend upon the actual degree of the adolescent’s maturity. It can be assumed that – in the absence of indications to the contrary – a person of 16 or over may be regarded as sufficiently mature to have a well-founded fear of persecution.

41. Further, the Tribunal went on to observe that while the appellant was:

now an adult, the Tribunal is mindful it is possible that allegedly important incidents to which she had referred in support of her Protection Visa application, occurred when she was a minor, and possibly at a time when she could have been shielded by relatives and or friends. ... The Tribunal is thus satisfied the applicant presents as a person with adequate “maturity” to prosecute her case. Further, the applicant provided no evidence that might have led the Tribunal to consider whether her experiences in China (or Australia) could have traumatised the applicant such that she was not able to prosecute her case before the Tribunal.

42. It is clear, in my view, that the Tribunal gave appropriate and careful consideration to the fact that the appellant had only just turned 18. I do not consider that there is illogicality in the approach which was taken by the Tribunal. Rather the Tribunal was taking a measured approach in balancing the fact that while the appellant was an adult, she had only just reached majority.
43. I turn now to consider the specific grounds of appeal with particular emphasis on the legal principles they raise.

Ground 1

44. Before the Federal Magistrate, the appellant submitted that contrary to s 420 of the Act, the Tribunal failed to conduct the hearing in accordance with the requirements of substantial justice. The appellant contended that the Tribunal had failed to enquire orally about the police raid in 2001 (that being the origin of the appellant’s fear of persecution due to her religious convictions), and had engaged in misleading and unfair conduct in the way in which it conducted its hearing.
45. Her Honour noted that s 420 of the Act is expressed to be facultative, and not restrictive, and does not create rights or a ground of review additional to those given in s 476 (Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at 628; Sun v Minister for Immigration and Ethnic Affairs [1997] FCA 324; (1997) 81 FCR 71). In Eshetu at [48]-[50], Gleeson CJ and McHugh J said:

[48] It is not an acceptable approach to statutory interpretation to negate the clear intention of the legislature by reliance on s 420 of the Migration Act. In any event, s 420, when understood in its legal and statutory context, is an inadequate foundation for an attempt to overcome the provisions of s 476(2).

[49] The relationship, or lack of it, between ss 420 and 476 was correctly explained by Lindgren J at first instance in Sun Zhan Qui v Minister for Immigration and Ethnic Affairs. The history of legislative provisions similar to s 420 was examined in Qantas Airways Ltd v Gubbins. They are intended to be facultative, not restrictive. Their purpose is to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law, and regarded as inappropriate to tribunals. The extent to which they free tribunals from obligations applicable to the courts of law may give rise to dispute in particular cases, but that is another question.

[50] Section 420 is to be understood in its statutory context. It appears in Pt 7, Div 3 of the Migration Act, which is headed "Exercise of Refugee Review Tribunal's powers". The following two sections deal with the constitution of the Tribunal. Part 7 Div 4 deals with the procedures to be adopted by the Tribunal. Part 7, Div 5 deals with similar matters. There follows Pt 8 of the Act, which includes s 476, and which provides a set of provisions which confer, and define, the Federal Court's jurisdiction to review Tribunal decisions. (footnotes omitted)

46. Her Honour found [at 63] that the Tribunal was not obliged to ask the appellant about the police raid in 2001. It was obliged to ensure that the appellant had an opportunity to say whatever she wished in support of her application. Her Honour concluded that a fair reading of the transcript of the hearing and listening to the tapes, made clear that the appellant was invited on three occasions to say whatever she wished in support of her claims. However, it was not for the Tribunal to make the appellant’s case out for her (Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 576; SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at 14-16).
47. The appellant further contended that the Tribunal engaged in misleading and unfair conduct by asking long and convoluted questions, and asking questions and making comments then withdrawing them. Her Honour observed (at [65]-[66]) that whilst a particular question by the Tribunal was long, it was interpreted every few words. The appellant’s answer was ultimately responsive and did not suggest any lack of understanding by the appellant about what she was being asked.
48. The appellant further alleged that the Tribunal unfairly required the appellant to only answer certain questions in a ‘yes/no’ format, interrupted her when she was responding, and failed to give her an opportunity to state her case. Her Honour found that the Tribunal was entitled to ask questions inviting a yes/no response and to direct the appellant’s answers to its concerns. The Tribunal put its concerns clearly to the appellant and provided her an opportunity to respond. It also put to the appellant open ended questions that gave the appellant an opportunity to say anything further she wished in support of her claims.
49. The appellant was invited to elaborate on her claims at the hearing and was asked direct questions about her beliefs and practices relevant to her claims to being a Christian and her claims relating to the persecution of members of her church. The fact that she did so in only the briefest of terms does not show that the Tribunal erred. The Tribunal was not obliged to prompt or stimulate responses from the appellant and had no general duty to inquire further: Re Minister for Immigration and Multicultural Affairs; Ex parte S154/2002 [2003] HCA 60; (2003) 77 ALJR 1909 at [54] and [85][-86]; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [1], [42] and [43]. It was for the appellant to make out her case: Abebe 197 CLR 510 at [187].
50. It was also submitted by the appellant that the Tribunal failed to give appropriate weight to the consideration that the appellant was a minor at all times in China and at all material times in Australia. Further, it was submitted that the Tribunal failed to consider the relevant provisions of the UNHCR Handbook and failed to give proper consideration and weight to the further evidence and submissions provided to the Tribunal on 5 November 2007.
51. Her Honour found that the Tribunal made clear that it considered the appellant’s age both at the time of the alleged incidents in China and at the time she was giving evidence in Australia. The Tribunal found that the appellant had sufficient maturity to prosecute her case - a finding which was open to the Tribunal on the evidence and material before it and for the reasons it gave. Her Honour also found that the UNHCR Handbook had no binding force on the Tribunal and it was not obliged to consider it or make findings in respect of it (Semunigus v Minister for Immigration & Multicultural Affairs [1999] FCA 422 at 8-9). Nevertheless, her Honour also found that a fair reading of the Tribunal decision did not support the contention that the Tribunal failed to consider the materials.
52. The appellant had further contended that the Tribunal Member interrupted the appellant, ‘was shutting down the hearing indicating that it had made up its mind’ and that it only made enquiries into facts that might discredit the appellant and not those which may support the appellant’s case. Her Honour found that the tapes of the hearing did not indicate that the Tribunal Member was aggressive, hostile or overbearing in the manner in which he asked questions. The Tribunal Member asked his questions slowly and carefully ensuring his sentences were interpreted every few words, and provided the appellant reasonable opportunities to respond.
53. The appellant also claimed that the Tribunal Member failed to give proper consideration to the significance of the 2001 incident in establishing the appellant’s well-founded fear of persecution; and failed to give proper consideration to the significance of the 2004 incident in establishing the appellant’s well-founded fear of persecution. Her Honour found the Tribunal put to the appellant its concerns about the inconsistencies in her evidence surrounding these events, and that the adverse findings made by the Tribunal were open to it on the evidence before it.
54. In the appeal before this Court, the appellant has made essentially the same submissions. I can discern no error in the approach of the Federal Magistrate.

Ground 2

55. The second ground raised by the appellant was that the Federal Magistrate erred in failing to find that the Tribunal made wrong, illogical or unreasonable findings of fact which were contrary to the evidence provided. The Federal Magistrate found that the particulars listed by the appellant were no more than a disagreement with the findings of fact made by the appellant. Her Honour also noted that, in any event, illogical reasoning does not of itself constitute an error of law or a jurisdictional error (NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235 at 29).
56. Insofar as reliance is placed on illogical or unreasonable findings of fact (in grounds 2 and 3), the appellant relies on the following submissions:

Section 75 (v) of the Constitution imposes upon the Tribunal an irreducible requirement that the review procedure is carried out according to law: see Abebe v Commonwealth (1999) 197 CLR 510 per Gummow, Hayne JJ at [170]. For the Tribunal to act in accordance with the law, its decision-making process must operate reasonably and rationally and not arbitrarily: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 per Deane J at 366-367.

The Tribunal only has the jurisdiction to make a determination under the Act where the determination is based on findings or inferences of fact that are grounded upon probative material and logical grounds: see Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 per Gummow J at [145]; Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 per Gleeson CJ, Gummow, Kirby and Hayne JJ at [34]. The purported decision of the Tribunal has no “jurisdictional” foundation as its determination was based on the errors of fact described below: see Minister for Immigration and Multicultural Affairs; Ex parte Appellant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 per Gleeson CJ at [5]-[9]; McHugh, Gummow JJ at [34], [37]; Kirby J at [116], [127]-[128].

57. The Tribunal’s findings of fact were open on the material and not vitiated by jurisdictional error. Specifically:

(a) The Tribunal’s observation that the appellant claimed that her father had been arrested in 2004 and had then resiled from that claim was open on the evidence before the Tribunal;

(b) The Tribunal’s findings as to the appellant’s religious convictions were open on the evidence before the Tribunal.

58. These findings were not perverse, in the sense of being contrary to the overwhelming weight of the material before the Tribunal: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 368; see also NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328; (2004) 214 ALR 264 at [115]; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 (at [129]). There was little before the Tribunal, other than the appellant’s assertions, that demonstrated she had been a member of an underground church in China. She had only joined a church in Australia nine months after her arrival in Australia and it was open to conclude that she showed only a vague and superficial understanding of Christianity. The fact that the Tribunal focussed on the appellant’s lack of knowledge does not indicate perversity. It merely indicates that this aspect of the appellant’s testimony weighed heavily on the Tribunal Member’s consideration.
59. Even if the Tribunal’s appraisals of the appellant’s testimony were incorrect or alternative inferences were open (which I have accepted), that does not ground jurisdictional error. Error of fact is a matter within the Tribunal’s jurisdiction and does not demonstrate jurisdictional error: see Eshetu [1999] HCA 21; 197 CLR 611 at [40], [45], [134], [137], [138], [145] and [147]; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [92]; Ex parte S20/2002 77 ALJR 1165 at [9], [36], [57] and [59].
60. In my opinion, the approach of the learned Federal Magistrate was correct. I have dealt with the general submission but on the two errors supposedly made, these would not suffice to constitute jurisdictional error. It is clear that even if the reasoning whereby the Court reached its conclusion of fact were demonstrably unsound, that would not amount to an error of law: SZJEZ v Minister for Immigration and Citizenship [2008] FCA 1741. In SZJEZ, his Honour referred to the decision of Minister for Immigration and Multicultural Affairs v Al-Miahi [2001] FCA 744; (2001) 65 ALD 141 where the Full Court stated:

A party does not establish an error of law by showing that the decision-maker inferred the existence of a particular fact by a faulty process, for example, by engaging in an illogical course of reasoning. Thus, at common law, want of logic is not synonymous with error of law.  So long as the particular inference is reasonably open, even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place. 

61. This ground has not been made out.

Ground 3

62. The third ground alleges that the Federal Magistrate erred in failing to find that the decision of the Tribunal was ‘affected by the presiding Member’s illogical and irrational findings on credibility which were not based on findings or inferences of fact supported by logical grounds’.
63. As observed by O’Loughlin J in Bains v Minister for Immigration and Multicultural Affairs [2001] FCA 403 at [17]:

it remains a fact that decisions of a court or a Tribunal about matters of credibility "are often based upon matters of impression, and an unfavourable view taken upon an otherwise minor issue may be decisive": Re Refugee Review Tribunal; ex Parte Mansour Aala [2000] HCA 57; (2000) 176 ALR 219 at 221 per Gleeson CJ. If a Tribunal has reasonably come to the conclusion that it is unable to accept an applicant's evidence and its reasoning process cannot be faulted, there is no room for this Court to intervene even though it considers that it might have come to a contrary conclusion if it had been the original decision-maker.

64. In assessing the appellant’s credibility, the Tribunal Member considered a number of factors including the appellant’s delay in making the application, the plausibility of her evidence, her apparent lack of knowledge in relation to her alleged religious convictions and as the Member concluded, fabrication concerning the 2001 and 2004 incidents. Ultimately, the Tribunal Member concluded that the appellant had ‘embellished, if not entirely fabricated, material aspects of her claim to be a refugee’. In my view, this finding was open on the evidence before the Tribunal and no irrationality can be discerned in the Tribunal’s reasoning.
65. The Tribunal’s appraisals of the appellant’s testimony were open and based on a rational appraisal of her testimony. She claimed to have been committed to her faith from the age of 15, having been raised in a Christian family at least from the age of 12. At age 18 she attended the Tribunal hearing but was unable to articulate her beliefs in anything more than generalities. The Tribunal’s appraisals were not illogical. Even if those appraisals were illogical, that of itself is not capable of constituting jurisdictional error: NACB [2003] FCAFC 235 at [29]; NATC v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 52 at [27]. In relation to the 2001 and 2004 incidents it is conceivable that another reasonable mind may have concluded that the responses did not support evasion or fabrication. But equally, the findings reached by the Tribunal were open. It was not perverse.
66. A finding may be irrational where the factual finding simply could not have been reached by any rational reasoning process.  The ground of irrationality or illogicality requires a complete absence of a logical nexus between the evidence before the decision-maker, and the findings made, or inferences of fact drawn, by the decision-maker. It is similar to the concept of ‘Wednesbury unreasonableness’ as considered in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 at 230. In SGLB [2004] HCA 32; 207 ALR 12, Gummow and Hayne JJ said at [38]:

the critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds. If the decision did display these defects, it will be no answer that the determination was reached in good faith.

67. The standard of unreasonableness connoted by the expression ‘illogical, irrational or lacking a basis in findings or inferences of fact supported on logical grounds’ is a demanding one with a high threshold, just as it is relatively undemanding for the decision-maker; Greyhound Racing Authority (NSW) v Bragg [2003] NSWCA 388 per Santow JA at [62].

Ground 4

68. The fourth ground alleges that the decision of the Tribunal was affected by bias. The Federal Magistrate found that a fair reading of the Tribunal’s decision, in the context of having listened to tapes of the hearing and having read the transcript, did not suggest the Tribunal approached its task with a mind not open to persuasion; nor that the Tribunal acted capriciously, arbitrarily or without proper credit findings and by whim or intuition (NADH [2004] FCAFC 328; 214 ALR 264).
69. In the present appeal, the appellant submitted that the Tribunal Member had a pre-determined view about the appellant and certain issues relevant to her claim. The appellant pointed to parts of the transcript which it is submitted indicates that the Tribunal Member ‘regardless of any explanation or argument given by the appellant...immediately and entirely rejects such explanations and maintains his pre-formed judgment’. The appellant alleges that the Tribunal Member had pre-formed his judgment on the following issues:

(a) the appellant’s reason for applying for a protection visa;

(b) the reason for the appellant’s delay in applying for a protection visa once having arrived in Australia;

(c) the behaviour of Chinese persons living in the Australian community;

(d) the behaviour of Chinese persons who seek the protection of Australia as refugees;

(e) the behaviour of Chinese authorities;

(f) the appellant’s truthfulness;

(g) the quality and quantity of the appellant’s religious convictions.

70. In my view, the Tribunal Member has simply put to the appellant his reservations concerning aspects of her evidence. For example, at page 14 of the transcript, the Tribunal Member states ‘I may then have difficulty accepting that you are sincerely religious in your beliefs as you claim otherwise I may have thought you may have sought to attend a church in Australia sooner than you did’. Further, he says at page 20, ‘I may not think that you know much – that you know enough about Christianity that I may be satisfied that you have any religious convictions’.
71. In Minister for Immigration and Citizenship v MZXPA [2008] FCA 185 Sundberg J commented on the function of the Tribunal in conducting a review. His Honour stated at [14]-[15]:

An informed and instructed hypothetical person would also know that the Tribunal is an inquisitorial body, and is not required uncritically to accept an applicant’s claims: Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 at 596. It is required under the Act, in performing its review function, to consider whether or not it is satisfied that an applicant meets the criteria for a protection visa. If not so satisfied, it must refuse to grant the visa. See Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at  [16]–[18]. The Tribunal is accordingly required to assess the probative value of evidence put before it by an applicant. Where the Tribunal perceives weaknesses in that evidence, it is entitled vigorously to test that evidence: Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425.

Accordingly, under the Act, the expression of a preliminary view, even on a critical matter, does not establish bias. (emphasis added)

72. There is nothing in the decision record that suggests that the Tribunal Member had a pre-existing state of mind which disabled him from undertaking or rendered him unwilling to undertake any proper evaluation of the relevant materials before him (Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [35] and [72]) or that a fair-minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal Member may not have brought an impartial mind to the resolution of the question to be decided: Ex parte H [2001] HCA 28; 179 ALR 425 at [27]. Indeed, on listening to the audio, I would conclude the opposite was the case.
73. The transcript does not show that the appellant was overborne in the manner identified in Ex parte H at [13]-[25] or that the Tribunal Member was openly hostile to the appellant in the manner identified in NADH [2004] FCAFC 328; 214 ALR 264 at [63]- [99] and [118].
74. In relation to allegations of bias, it is well established that such allegations must be distinctly made and clearly proved: Jia Legeng [2001] HCA 17; 205 CLR 507.
75. That the Tribunal confronted the appellant with matters that brought her account into question is not indicative of bias: Ex parte H at [27] and [30]. Neither do the adverse credibility findings made by the Tribunal indicate, of themselves, that the Tribunal was not open to persuasion. It was open to the Tribunal to form a view, based on a consideration of her testimony and her demeanour, that she was not credible. That does not indicate bias: Ex parte H at [34]. Further, apprehended bias must be firmly established and is not found on any sense of unease about the Tribunal’s findings: Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23; (2001) 206 CLR 128 at [90].
76. In my view, no actual or apprehended bias can be discerned on the part of the Tribunal Member.

Ground 5

77. Finally, the appellant claims that her Honour erred by applying Maddy v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 233 ALR 503 in circumstances where the Presiding Member’s comments went beyond the scope of ‘personal experiences’. The Tribunal had put to the appellant that it did not believe that she would not have asked members of her church congregation for assistance if she really was a refugee, then corrected, its language to say that it may have difficulty in believing that she did not ask. The Tribunal explained that the reason was because:

Refugee issues in Australia are extremely high profile and it’s the kind of thing – in my experience – commonly the case that church groups get involved in assisting people who claim to be refugees. And particularly if you came from a church organisation where there were members of a community who – who regularly claim refugee protection in this country.

78. Her Honour accepted the submission of the respondent that the Tribunal was entitled to rely on its own knowledge or personal experience to inform its view of relevant issues and to put such matters to the appellant at the hearing (as per Maddy and NAEH of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 927 per Branson J at 13). No error can be found in the approach taken by Her Honour in this regard.
79. Her Honour did not err in her consideration of Maddy. The Tribunal Member clearly called upon his own previous experience of applications that had come before the Tribunal when it asked some of the questions it did. This was what occurred in Maddy: see at [75] and [80]. It was open for the Tribunal Member to do so and provided the appellant with an opportunity to address the matters raised by the Member. There was no error in the Tribunal so doing and there was no error in the Court below making findings that the Member’s conduct was unexceptional.
80. In my opinion, none of the grounds is made out. Her Honour's conclusion was correct.

CONCLUSION

81. I will order:
    1. The appeal will be dismissed.
    2. The appellant is to pay the costs of the first respondent to be taxed if not agreed.
       

I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.

Associate:

Dated: 27 May 2009

Counsel for the Appellant:	S Prince
Solicitor for the Appellant:	SBA Lawyers
Counsel for the First Respondent:	J Mitchell
Solicitor for the First Respondent:	DLA Phillips Fox

Date of Hearing:	3 March 2009
Date of Judgment:	27 May 2009