SZHEV v Minister for Immigration & Anor [2008] FMCA 161 (28 March 2008)

Last Updated: 4 April 2008

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHEV v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 161

MIGRATION – Review of decision of Refugee Review Tribunal – whether jurisdictional error – whether independent country information properly considered – fact finding not the function of judicial review – whether any procedural unfairness, bad faith, or apprehended bias from loss of Departmental file.

Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5, 36, 65, 91R, 91S, 424, 474

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 NABD of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 29; (2005) 216 ALR 1 NBKT v Minister for Immigration & Multicultural Affairs [2006] FCAFC 195; (2006) 156 FCR 419 (FC) NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29; (2005) 216 ALR 1 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195; (2006) 156 FCR 419 (FC) Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 Tefonu Pty Limited v Insurance and Superannuation Commissioner [1993] FCA 412; (1993) 44 FCR 361 Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 Abebe v The Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547 Chen Xin He v Minister for Immigration and Ethnic Affairs Federal Court of Australia, RD Nicholson J, 23 November 1995, (unreported) SZHPD v Minister for Immigration & Citizenship [2007] FCA 157 Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 Re Refugee Review Tribunal; ex parte H & Anor [2001] HCA 28; (2001) 179 ALR 425 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] 168 ALR 407 NADR v Minister of Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167

Applicant:

SZHEV

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 1990 of 2007

Judgment of:

Orchiston FM

Hearing date:

5 February 2008

Date of last submission:

5 February 2008

Delivered at:

Sydney

Delivered on:

28 March 2008

REPRESENTATION

Applicant appeared in person

Solicitors for the Respondent:

DLA Phillips Fox

ORDERS

(1) The application filed on 27 June 2007 is dismissed.
(2) The Applicant pay the First Respondent’s costs fixed in the sum of $5,000 payable within five (5) months of the date of these Orders.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 1990 OF 2007

SZHEV

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Application

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth), as amended, (the Act) seeking review of the decision of the Refugee Review Tribunal (the Tribunal) signed on 18 May 2007 and notified to the applicant by letter dated 22 May 2007 which affirmed the decision of the delegate of the respondent Minister (the delegate) to refuse to grant a protection visa to the applicant.

Background

2. The applicant was born on 10 September 1964 and claims to be a national of China. She arrived in Australia on 30 December 2004 on a Chinese passport issued in her own name.
3. The applicant lodged an application for a protection visa on 28 January 2005 on the basis of her alleged political opinion, her involvement in an organization called "The Association of Love" and because she was a lesbian.
4. On 3 March 2005 the delegate refused to grant the applicant’s protection visa on the basis that the applicant was not a person to whom Australia had protection obligations under the Refugees Convention (see Legislative framework).

Legislative framework

5. Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision maker is not so satisfied then the visa application is to be refused.
6. Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (the Convention).
7. Australia has protection obligations to a refugee on Australian territory.
8. Article 1A(2) of the Convention relevantly defines a refugee as a person who:
   • owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or particular opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
9. Section 91R and s.91S of the Act refer to the persecution and membership of a particular social group when considering Article 1A(2) of the Convention.

The Tribunal proceedings

10. On 4 April 2005 the applicant applied to the Refugee Review Tribunal (the RRT) for review of the delegate’s decision. The applicant gave oral evidence at a hearing before a differently constituted Tribunal (the first Tribunal) on 22 July 2005. On 23 August 2005 the first Tribunal handed down its decision, affirming the decision under review refusing to grant the applicant a protection visa (Court Book (CB) 22-48.)
11. By way of Consent Orders dated 20 November 2006, the Federal Magistrates Court quashed the first Tribunal’s decision and remitted the matter to the RRT for review according to law (CB 50).
12. On 8 December 2006, the Tribunal sent a letter to the applicant inviting her to appear before the Tribunal on 21 February 2007 to give oral evidence and present arguments (CB 55–56).
13. On 19 December 2006 the applicant’s authorised agent provided a Response to Hearing Invitation to the Tribunal (CB 57-60).
14. The applicant attended the Tribunal hearing. On 31 May 2007 the Tribunal handed down its decision, affirming the decision under review refusing to grant the applicant a protection visa.

The applicant’s claims and evidence

15. The applicant’s claims, as summarised by the first Tribunal (CB 27–29), are as follows:
    • in 1987 the applicant formed a sexual relationship with a co-worker
    • from early 1988 they were questioned by their company’s security department and “put under a lot of pressure” and “thrown out of the company dormitory”
    • the applicant participated in the “pro-democracy movement” in 1989
    • the applicant participated in the Tiananmen Square demonstration in Beijing
    • the applicant’s family was targeted, interrogated, harassed and intimidated for their alleged participation in anti-government riots
    • the applicant is considered a “political dissident”
    • the applicant has been subjected to “brainwashing classes” and it was during such classes that she got to know other lesbians who later formed the group known as the “Association of Love”
    • the applicant has found it difficult to obtain employment due to her blemished personnel records
    • the Association of Love had regular meetings every weekend and distributed propaganda materials in which they asked for freedom, human rights and respect.

The Tribunal’s findings and reasons (CB 175-183)

16. I accept that the first respondent in its written submissions accurately summarises the Tribunal’s findings and reasons, as follows:

Actual or imputed political opinion

The Tribunal accepted that the applicant had been detained and mistreated at the time of the 1989 pro-democracy movement, due to events surrounding the death of the applicant's aunt. The Tribunal was not satisfied that the applicant was then, or subsequently, regarded as a political activist or dissident:

• the applicant provided no evidence to support this assertion, and the Tribunal accepted her claims that her participation in the pro-democracy movement was not as a leader, political activist, or organiser
• it was apparent from the applicant's evidence that the reason she was detained was to vindicate the actions taken by the authorities against the applicant's aunt and uncle, and not because of any actual or suspected involvement by the applicant in the pro-democracy movement
• the applicant provided inconsistent evidence concerning her employment record after 1989. The Tribunal did not accept her claims concerning her inability to retain employment
• the applicant did not claim to have been involved in any anti-government protests or other political activity in Australia

Having rejected the applicant's claims to be a political activist the Tribunal also rejected the claimed consequences said to have flowed from this. It found that the applicant had embellished her claims and rejected her credibility as a witness.

Claimed fear of persecution as a lesbian

Based on a letter submitted to the Tribunal by the applicant from her partner, the Tribunal accepted that the applicant was in a lesbian relationship.

The applicant claimed that she was dismissed from her employment when her lesbian relationship with her partner (who worked at the same factory) was discovered. The Tribunal was not satisfied that the essential and significant reason for the applicant's dismissal was for a Convention related reason, but considered it was because of the nature of the job itself:

• the applicant's evidence was that her partner was not dismissed from the factory until fourteen years after the incident. The Tribunal was not satisfied with the applicant's explanation, in her response to the s 424A letter, as to why the partner would receive such significantly different punishment or treatment
• the Tribunal accepted the applicant's oral evidence to the first Tribunal that her partner was retained because the factory needed her software expertise, whereas the applicant was only a welder and so she was dismissed
• further, the Tribunal had already rejected the applicant's credibility as a witness.

The Tribunal was also not satisfied that the applicant had been subjected to serious harm for a Convention reason

The Tribunal accepted the applicant's evidence that she travelled to Europe in 2004 and did not seek asylum there, and that she was legally issued with a Chinese passport which she used without difficulty. Having regard to country information concerning exit procedures, which it accepted, the Tribunal was satisfied that if the applicant was a known lesbian and this was recorded on her personal file, and she was regarded as a political dissident, she would not have been legally issued with a Chinese passport

Furthermore, the Tribunal was satisfied that, if the applicant had a well founded fear of serious harm for a Convention reason, she would have sought asylum when she travelled to Europe in 2004.

The Association of Love

The Tribunal did not accept that the Association of Love was regarded as an illegal organisation or had been targeted by authorities. It did not accept that the applicant had a well-founded fear of serious harm for a Convention reason because of her involvement with the Association:

• the applicant did not leave China for three months after she claimed to have received a warning from a friend
• the applicant left China on her own passport without difficulty
• the Tribunal was satisfied that the applicant had greatly embellished her claims concerning the nature and purpose of the Association of Love and did not accept that other members had been persecuted, or that the applicant would be persecuted on return to China
• the Tribunal accepted country information that indicated lesbians and homosexuals are not persecuted in China.

17. For these reasons, the Tribunal was satisfied that there was not a real chance that the applicant would be subjected to serious harm amounting to persecution for a Convention reason if she returns to China either now or in the foreseeable future, and found that she is not a refugee.

The proceedings before this Court

18. The applicant filed the application in this Court on 27 June 2007 setting out two grounds for review of the Tribunal’s decision.
19. The applicant appeared in person before the Court on 5 February 2008 with the assistance of a Mandarin interpreter. Ms Hooper appeared for the first respondent.

Grounds of application

20. The grounds as set out in the application are:
    • (1) There was an error of law in the Tribunal’s decision constituting a jurisdictional error.
    • (2) There was procedural error in the Tribunal’s decision constituting an absence of natural justice.

Particulars:

1. The Tribunal refused to consider, properly and fairly, significant change in China during recent years in relation to the policies of travelling to the overseas. Many of travel agencies have been encourage and supported by the government to actively organize people to travel to the overseas; and many of people applied to study in foreign countries or to visit their relatives or friends in the overseas. In such a situation, it would be not very difficult for me to obtain my passport with helps of my friend on 3 March 2004.
2. The Tribunal completely ignored the evidence that some significant leaders of 89’s pro-democracy movements, such as Mr. Dan Wang or Mr. Gang Liu who have been imprisoned by the PRC authorities after the movement, as well as some of well-known dissident such as Mr. You Cai Wang who was one of founders of China Democracy Party, were able to leave China legally on passports with their own name.
3. The Tribunal failed to consider, properly and fairly, my evidence in relation to the reason why I had to decide to return to China in May 2004 as follows:
   • Firstly, both my partner Miss Yu Zhen Li, who previously objected me to go to the overseas, and I had deeply loved each other and firmly depended on each other for 17 years from 1987 to 2004. It was really difficult for me to bear the lift without living together with her; and I did indeed feel very much depressed while I was in the overseas without her; and I did indeed miss her very much.
   • Secondly, I established “The Association of Love” (“the Association”) in the end of January 2003; and the Association had been developed gradually. As the chairman of the Association, I did indeed have my own responsibility and obligations for it; and I really intended to use this organization to strive for our basic human rights.
   • Thirdly, I have been suffered from any difficulties since the time as early as in 1988. However, it would be still very difficult for me to make my final mind to take great risks that I might lose my love Miss Li or I might be unable to survive in an alien circumstance. On the other hand, I have experienced various hardships in China, but at the time, I had my love Miss Li on whom I could firmly rely; and I had a group of friends at the Association from whom I could get strong support. Therefore, it was too hard for me to make my final mind to take great risks.
4. The Tribunal has, in fact ignored significant change of my situation since I was informed in September 2004 that the PSB suspected my involvement in the Association which had been regarded as an illegal organization. Particularly, I was subjected to interrogation by the PSB from October 2004. Therefore, I had to decide to leave the country again. Fortunately, the PSB did not have any substantive evidences at that time; and thus I was able to go to the overseas in December 2004 with helps of my friend.

5. The Tribunal has, in fact, failed to consider my evidences that not long after my departure, many members of the Association have been arrested by the police; and I have been regarded as the major founder and leader in that “antigovernment” illegal organization. My partner Miss Yu Zhen LI has been subjected to interrogations; my home has been searched by the PSB; and my personal materials, including notebooks, computer, CDs, video, and many tapes have been confiscated by the policemen. Therefore, I must be subjected to persecution by the Chinese government on my return.
6. The Tribunal has failed to consider, properly and fairly, my evidences as follows:-

• I backed to my aunt’s home on the morning of the next day (4 June 1989). I was very tired, and wanted to have a sleep. However, three policemen suddenly came to my aunt’s home, and I was taken to Xicheng Branch of Beijing Public Security Bureau (PSB)...
• On 30 June 1989, I was picked up by tow security people from my company in Tianjin and then escorted by them to back my home. Before I was allowed to leave Xicheng Branch of Beijing PSB, I had to sign every document which was required to sign...
• Obviously, I have clearly stated from the very beginning that I had been detained at Xicheng Branch of Beijing PSB during the period from 4 to 30 June 1989. However, neither the Department nor the previously constituted Tribunal has raised the issue in the past.

7. The Tribunal failed to consider, properly and fairly, my evidence as follows:
   • Firstly, I have established an organization – the Association of Love is not an organization simply for friendship or fellowship, but the one with political aims, that is, to strive for basic human rights for our lesbians or guys; and thus, it has in fact protested against the government which human rights record remained poor. That’s why the Association has been regarded as an illegal anti-government organization.
   • My claims have strongly supported by the US Human Rights Report, because There were an increased number of high-profile cases involving the monitoring, harassment, detention, arrest, and imprisonment of ... many of whom where seeking to exercise their rights under the law. As a matter of fact, what the Association did is seeking to exercise our rights under law.
   • Secondly, I have personally been subjected to political persecution since 1989’s pro-democracy movement; and
   • Thirdly, as I have claimed in my Statutory Declaration attached to my primary application either my aunt or her husband or I have obviously wrongly treated. In order to get the justice, during the period from 1990 to 2002, I have spent 12 years to appeal or sent my petitions to many government departments or agencies from Tianjin to Beijing. I have been refused many times, but I have insisted on my struggle for years.
   • Finally, lesbians normally suffer from more severely punishment, which is also supported by US Human Rights Reports – Serious social conditions that affected human rights included...discrimination against women...

8. The Tribunal has known very well that all of my files have been lost by the Department or by the Tribunal itself, but the Tribunal failed to consider that I might be placed in more dangerous situation owing to the mistake of the Department or the tribunal. My privacy and my safety must seriously be damaged.
9. In summary, I have never believed that my review application has been fairly and carefully assessed by the Tribunal.

Ground 1 of the application

21. Ground 1 is a general assertion, which without particulars, is meaningless and fails to disclose any legitimate ground for review.
22. Accordingly, Ground 1 must fail.

Ground 2 of the application

Particular 1

23. Particular 1 alleges that the Tribunal failed to consider the change in circumstances in China and the easing of restrictions on the obtaining of passports.
24. The Tribunal considered the applicant's claims on this matter, as set out in her statutory declaration of 1 May 2007 (CB 179-180). It also considered a considerable volume of country information (see CB 186-445).
25. The Tribunal put certain independent country information to the applicant in its letter of 20 April 2007 which indicated that a person in the situation claimed by the applicant would not be legally issued with a Chinese passport (CB 180). Ultimately, it accepted the independent country information over that of the applicant.
26. The Tribunal’s choice and assessment of relevant country information is a purely factual matter for it: (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]- [14]; NABD of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 29; (2005) 216 ALR 1 at [8] per Gleeson J; NBKT v Minister for Immigration & Multicultural Affairs [2006] FCAFC 195; (2006) 156 FCR 419 (FC) at [81] and [84]).
27. The Tribunal was not required to accept claims that were inconsistent with that information regarding the situation in the applicant’s country of nationality: (NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29; (2005) 216 ALR 1 at [8]; Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 at 451).
28. Further, what weight the Tribunal gave to any particular country information, is ultimately a factual matter for it: (NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195; (2006) 156 FCR 419 (FC) at [81]; Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 41 per Mason J; Tefonu Pty Limited v Insurance and Superannuation Commissioner [1993] FCA 412; (1993) 44 FCR 361 per Beazley J at [54]. As observed by the Federal Court in Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27]:
    • The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.
29. Even if there were evidence to establish that the Tribunal has made an error of fact by relying upon incorrect country information, this would not amount to an error of law, let alone jurisdictional error: NAHI v Minister for Immigration and Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]; Abebe v The Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 at [137]).
30. As summed up by the Full Federal Court in NAHI at [11]-[13]:
    • By s.424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that ...

The very function of the Tribunal was to assess the applicants’ claims, both as to their inherent credibility and as to their consistency with other information known to the Tribunal about circumstances in the applicants’ country of origin ...

It was clear from its reasons for decision that the Tribunal did rely on ‘country information’ in making its assessment of the future, and that the conclusion that it reached was open to the Tribunal on the basis of the material it used. Both the choice and the assessment of the weight of such material were matters for the Tribunal. The Court cannot substitute its own view of the material, even if it had a different view from that reached by the Tribunal ...

31. The Full Court further observed at [14]:
    • the Tribunal was not obliged to comment on every item of material before it, to the extent of saying why it rejected a particular item, or attributed less weight to it than to another item.

Particular 2

32. Particular 2 alleges that the Tribunal ignored evidence that significant leaders of the pro-democracy movement (who had been imprisoned) were able to leave China legally on passports in their own names.
33. The Tribunal gave careful consideration to evidence concerning the passport and exit procedures in China. In rejecting the applicant's claim that persons who were adversely known to the authorities could nevertheless legally obtain passports to leave China, the Tribunal relied on independent country information, (which was also included in the Tribunal’s letter to the applicant of 17 April 2007), indicating that people who were of concern to the Chinese authorities are not issued with passports or exit permits and require the approval of a person’s work unit (CB 179-180) (and see Particular 1 above).

Particular 3

34. Particular 3 alleges that the Tribunal failed to consider the applicant's evidence, (as set out in this particular), as to why she returned to China in May 2004.
35. The Tribunal expressly considered this matter (see CB 180). The Tribunal did not accept that, if the applicant's claims to have suffered persecution in China were true, she would have returned to China in May 2004, rather than seek asylum in one of the countries she visited in April and May 2004. The Tribunal stated that:
    • ...the Tribunal is satisfied that the Applicant would have sought refugee status or asylum in one of the many European countries she visited in April/May 2004 if she had a well founded fear of serious harm amounting to persecution for a Convention reason, even though this would have resulted in her being apart from Ms Li as is claimed in her statutory declaration of 1 May 2007.
36. I consider that Particular 3 is, in effect, seeking that the Court undertake a review of the merits of the Tribunal’s decision. It is no part of the function of this Court to engage in fact finding concerning the merits of an applicant’s case: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272. As observed by the Federal Court in Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547 at 558:
    • ...it is not open to the applicant to seek a review of the merits of the decision of the RRT. Parliament has determined that ordinarily the RRT is to be the final arbiter on the merits for applications for protection visas. As Brennan J said in Attorney-General (NSW) v Quin (1990) 170 CLR at 35-36:

The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in doing so the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.

37. Likewise, as observed by the Full Federal Court in NAHI v MIMIA [2004] FCAFC at [10]:
    • In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s.39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to merits of the case put to the Tribunal.
38. Merely because the applicant disagrees with the Tribunal’s factual conclusions and its ultimate conclusion does not amount to an error of law (Chen Xin He v Minister for Immigration and Ethnic Affairs FCA, RD Nicholson J, 23 November 1995, (unreported) at [24]). Furthermore, there is no error of law, let alone jurisdictional error in the Tribunal making a wrong finding of fact (Abebe v The Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 at 560 [137]).

Particular 4

39. Particular 4 alleges that the Tribunal ignored the changes in the applicant's situation since she was informed that the Public Security Bureau suspected her involvement in the Association of Love, which had been regarded as an illegal organisation.
40. The Tribunal specifically rejected the applicant's claim that the Association of Love was regarded as an illegal organisation in China or has been targeted by the Chines authorities (CB 181). The Tribunal made further findings that the applicant was not, by virtue of her connection with the Association of Love, a person of adverse interest to the Chinese authorities (CB 182).
41. I consider that the applicant is, in effect, seeking that the Court engage in impermissible merits review of the Tribunal decision (and see Particular 3 above).

Particular 5

42. Particular 5 alleges that the Tribunal failed to consider particular evidence of the applicant, including that other members of the Association had been arrested, and that the Chinese authorities had undertaken an interrogation of the applicant’s partner, a search of the applicant’s home and confiscation of some of her property.
43. The Tribunal specifically considered the applicant’s claims, as set out in this Particular, which were contained in a statutory declaration by the applicant of 1 May 2007. However, the Tribunal was not required to go further and accept uncritically any and all of those claims: Randhawa v Minister for Immigration & Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 at 451. In this case, the Tribunal, in effect, gave no weight to those claims in light of other evidence referred to in its Findings and Reasons (at CB 181).
44. As stated in regard to Particular 3 above, merely because the applicant disagrees with the Tribunal’s factual conclusions and its ultimate conclusion does not amount to an error of law.

Particular 6

45. Particular 6 alleges that the Tribunal failed to consider the applicant's evidence about events in 1989, and also asserts that the applicant's claim of being detained from 4 June to 30 June 1989 was not a new claim.
46. Contrary to the applicant’s assertion, the Tribunal considered, and in fact accepted, the applicant's clarification of her evidence regarding the events in 1989 and her detention in 1989 (CB 176).

Particular 7

47. Particular 7 alleges that the Tribunal did not consider other aspects of the applicant's evidence, as set out in this Particular.
48. I consider that each item of evidence referred to by the applicant in this Particular was specifically considered, and rejected, by the Tribunal (at CB 177, and 182).
49. For the same reasons as set out in Particular 3 above, the Tribunal's factual findings on each of these matters are not susceptible to judicial review.

Particular 8

50. Particular 8 alleges that the Tribunal did not consider that the applicant may be “placed in more dangerous situation” and that her “privacy and safety must seriously be damaged” owing to the “mistake of the Department or the tribunal” through the loss of her Departmental file.
51. I note that although the Tribunal did not have before it a copy of the Departmental file (which appeared to have been misplaced), it did have a copy of the applicant's protection visa application and accompanying statutory declaration, as well as the delegate's decision. This material was provided to the Tribunal by the applicant's agent, prior to the hearing, at the Tribunal's written request (CB 75-79).
52. It is unclear exactly what error of law the applicant is alleging in this regard. To the extent that she is alleging some sort of procedural unfairness on the part of the Tribunal, there is nothing on the face of the Tribunal decision record, and no evidence before this Court by way of the transcript of the Tribunal hearing, or otherwise, to demonstrate that the applicant complained at any point in time to the Tribunal that her application may be endangered or that she may be prejudiced in any way. Further, a fair reading of the Tribunal decision record evinces no procedural unfairness apparent on the face of the decision record through the loss of her Departmental file.
53. To the extent that the applicant could possibly be taken to be asserting some sort of bad faith on the part of the Tribunal, she has provided no proper particulars to identify the precise nature of any such allegation. Further, as stated above, the applicant has not provided the transcript of the Tribunal hearing to this Court to indicate how the loss of her file could be said to have affected the hearing before the Tribunal.
54. It is well-settled that any allegation of bad faith must be “distinctly made and clearly proved”: SZHPD v Minister for Immigration & Citizenship [2007] FCA 157 at [22]; citing Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531, [69]. This has simply not been done in the present case.
55. In order to establish bad faith the applicant would need to demonstrate that the Tribunal “acted dishonestly or arbitrarily or capriciously”: SBBS v Minister for Immigration and Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749 at [56-59]. Again, this has not been demonstrated by the applicant. There is nothing disclosed on the face of the Tribunal decision record to support any such assertion of bad faith on its part.
56. I am further satisfied that there is nothing on the face of the decision record to show that a “hypothetical fair minded lay observer who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias”, might reasonably apprehend that the Tribunal did not bring an impartial mind to the task of the decision making process: Re Refugee Review Tribunal; ex parte H & Anor [2001] HCA 28; (2001) 179 ALR 425 at [28], (and see further under ground 3 below).
57. I am satisfied therefore that no allegation of bad faith or apprehended bias can be demonstrated on the face of the Tribunal decision record. Indeed, far from demonstrating any bad faith or apprehended bias on the part of the Tribunal, the procedure adopted by the Tribunal in this case of openly acknowledging to the applicant that the file was missing; of asking the applicant to provide it with copies of the relevant missing file materials; and proceeding on those materials at the Tribunal hearing, militates against any claim of bad faith on the part of the Tribunal or that it embarked on the task required of it other than with a mind open to persuasion.

Particular 9

58. Particular 9 alleges, in summary, that the Tribunal never believed and did not fairly and carefully assess the applicant's application.
59. The Court has already dealt with these matters under Particulars 1 – 8 above. The Court further notes the foremost finding by the Tribunal that the applicant lacked credibility. The Tribunal found in this regard that:
    • the Applicant had embellished her claims for the purpose of enhancing her claim for a protection visa, and [the Tribunal] finds that she is not a credible witness (CB 177)
60. The Tribunal’s finding that the applicant was not a credible witness was a findings of fact par excellence, not open to review by this Court:
    • If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word “implausible”. The disbelief arose from the Tribunal’s view that it was inherently unlikely that the events had occurred as alleged.” (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] 168 ALR 407 at [67]).
61. Also, as the Full Federal Court observed in NADR v Minister of Immigration & Multicultural &Indigenous Affairs [2003] FCAFC 167 at [9]:
    • The finding of facts, including the making of findings of credibility, was uniquely within the jurisdiction of the Tribunal and not within the jurisdiction of the Court. It would have been in contravention of Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 for the Court to have engaged in merits review.
62. Overall, I consider that a fair reading of the Tribunal’s decision record makes it clear that the Tribunal understood the nature of, and set out a detailed and closely reasoned analysis of, the applicant's claims; explored those claims with her at the hearing; identified the determinative issues and gave her sufficient opportunity to give evidence and make submissions on those issues at the hearing; and closely noted the applicant's responses. The Tribunal further had regard to independent country evidence; and then made findings based on all the evidence and material before it.
63. I consider that its findings of fact, in particular as to the applicant’s adverse credibility, were open to it on the evidence and material before it; that it provided well-articulated and detailed reasons for rejecting the applicant’s claims; that it applied the correct law to those findings; and reached its conclusions, based on those findings, that the applicant was not a person to whom Australia has protection obligations. In these circumstances, I am satisfied that the Tribunal complied with the statutory regime in the making of its decision and performed the task required of it in accordance with law.
64. Accordingly, for the reasons stated under Particulars 1 to 9 above, Ground 2 is rejected.

Conclusion

65. The Court finds that the Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act this Court has no jurisdiction to interfere.
66. The application before this Court is dismissed.

I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Orchiston FM

Associate: Duncan Maconachie

Date: 28 March 2008