SZOOJ v Minister for Immigration & Anor [2011] FMCA 56 (7 February 2011)

Federal Magistrates Court of Australia

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SZOOJ v Minister for Immigration & Anor [2011] FMCA 56 (7 February 2011)

Last Updated: 9 February 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOOJ v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 56

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) Visa – no reviewable error – application dismissed. The Applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and was given the pseudonym SZOOJ.

Migration Act 1958 (Cth), ss.91R(3), 424, 425

Kopalapillai v Minister for Immigration & Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547 Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 168 ALR 407 Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6 NAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 354 NAMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 983 NARE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1248 Re Refugee Review Tribunal, Re; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 SZCOS v Minister for Immigration and Citizenship [2008] FCA 570 SZDFO v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1192 SZMSF v Minister for Immigration and Citizenship [2010] FCA 585 SZMWQ v Minister for Immigration and Citizenship [2010] FCAFC 97

Applicant:

SZOOJ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1729 of 2010

Judgment of:

Lloyd-Jones FM

Hearing date:

10 November 2010

Date of Last Submission:

10 November 2010

Delivered at:

Sydney

Delivered on:

7 February 2011

REPRESENTATION

The Applicant:

Applicant appeared in person with the assistance of a Mandarin interpreter

Counsel for the Respondents:

M. P. Cleary

Solicitors for the Respondents:

Ms D. Attard of the Australian Government Solicitor

ORDERS

(1) The Application filed on 11 August 2010 is dismissed.
(2) The Applicant is to pay the First Respondent’s costs and disbursements, of and incidental to the Application.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 1729 of 2010

SZOOJ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

1. In accordance with the orders made on 7 September 2010, the solicitors representing the Minister were required to file in Court, and forward copies to the Applicant and his panel advisor, a folder containing all of the relevant documents which may be relevant to the hearing. This order was complied with and the volume is identified as the Court Book (“CB”) and is marked Exhibit “A”.

Background

2. The information contained in the Applicant’s protection visa application indicates that he is a male born in August 1971 and is from Gangtou Town, Fuqing City, Fujian, China. He states that he speaks Mandarin and Fuqing. He states that he went to school in Luhua Village, Gangtou, Fujian until 1988. He then worked as a farmer until 1998 and then in a tyre repair shop in Wangqiao in Yujing, Yingtan, Jiangxi until December 2004. For the period January 2005 to July 2007 he states that he worked in the transport sector and then from January 2008 to June 2009 as a construction labourer. The Applicant married in May 1995 and has one teenage daughter. He identifies his parents and four siblings of whom are in China.
3. The Applicant arrived in Australia on 28 October 2009 and on 16 December 2009 he lodged an application for a Protection (Class XA) visa. In his protection visa application, the Applicant claimed to fear persecution from the Chinese authorities because of his:
   1. Christian beliefs and an active role in the underground church in China; and
   2. imputed political opinion as a result of his involvement in a conflict with Fujin officials.

Details of the Applicant’s refugee claims are set out at para.23 of the Tribunal decision record (CB 135-137). On 16 March 2010 a delegate of the Minister decided not to grant the Applicant a protection visa (CB 52). The delegate found that the Applicant did not have a genuine fear of harm and there was not a real chance of persecution (CB 69).

Review in the Tribunal

4. The Applicant applied to the Refugee Review Tribunal (“the Tribunal”) on 12 April 2010 for review of the delegate’s decision. The Tribunal Decision, RRT case number 1002584 by Tribunal member James Silver dated 15 July 2010, is a decision subject to judicial review before this Court. The Applicant attended an oral hearing before the Tribunal on 19 May 2010. He gave evidence and presented argument at the hearing. His representative, Mr Huang of Pricilla International Co. Pty Ltd, was also present. An accredited interpreter in Mandarin and English assisted the Applicant at the hearing (CB 139).
5. On 24 May 2010 the Tribunal sent the Applicant a s.424A letter inviting his comments and responses in writing to various matters that were detailed in the letter (CB 122 – 125). By letter dated 7 July 2010 the Applicant’s agent responded to the Tribunal’s s.424A letter (CB 126 – 129). On 15 July 2010 the Tribunal handed down its decision affirming the delegate’s decision to refuse the Applicant a protection visa.

Tribunal decision

6. In setting out the following material I have quoted directly from the written submissions prepared by Mr Cleary, counsel for the Respondent and I have not made further direct attribution as this would make the summary unwieldy. The information is provided to assist in the understanding of the nature of the present Application and not to establish any evidentiary point.
7. The Tribunal’s decision turned on the credibility finding made by the Tribunal that the Applicant was not a credible witness (CB 150). After an extensive discussion of the Applicant’s evidence regarding his identity and entry into Australia, the Tribunal member found (CB 150 at [82]) that the Applicant was not a credible witness because he had given false evidence about his entry into Australia and possibly about his identity. This conclusion was based on the following:
   1. that it wasn’t plausible that the Applicant had travelled by boat from China to Indonesia and then to the Northern Territory of Australia without making any relevant observations about the journey;
   2. the Applicant’s description of his journey appeared rehearsed;
   100. the Applicant’s reluctance to divulge information about the journey reflected adversely on his credit;
   4. whilst the Tribunal accepted that Reverend Ling believed the Applicant’s account of his journey, she only had a limited knowledge of the journey due to her reluctance to enquire further for reasons of delicacy;
   5. the Applicant demonstrated comprehension of English added to doubts about the Applicant’s claim that he only recently arrived in Australia and had no prior exposure to English; and
   6. the Applicant did not know anyone in Australia (e.g. a fellow churchgoer) who might be able to confirm his place of origin or details of his arrival, together with the evasive answer of questions about whether he might know such a person.

For these reasons, the Tribunal found that there were strong doubts about all of the Applicant’s claims and evidence.

8. The Tribunal also doubted the Applicant’s claim to have converted to Christianity in 2008, and to have recently arrived in Australia after fleeing persecution for this reason from China (CB 150 – 151). This conclusion was based on the following:
   1. the accepted view that the Applicant had attended Reverend Ling’s church in December 2009 but did not accept that the Applicant had recently arrived in Australia from China. It did not share Reverend Ling’s conclusion that his knowledge of Christianity must be acquired in China;
   2. while the Tribunal accepted the Applicant had some knowledge of Christianity, the Tribunal was unimpressed by the Applicant’s vague evidence as to what differences he observed between his practice in China and in Australia;
   100. there were inconsistencies in the evidence given by the Applicant about the content of his Christian practice in Fujian and whether his family or immediate associates were Christian.
9. The Tribunal also rejected a number of documents that were provided by the Applicant as corroborative of his claims (CB 151 – 152). The Tribunal made the finding that it placed no weight on the documents provided for the following reasons:
   1. the Applicant’s scant knowledge of the documents and details of his wife’s dispatch;
   2. the high level of document fraud in China;
   100. the apparent similarity of numerals in handwriting on two of the documents; and
   4. the Tribunal’s extensive concern about the Applicant’s credibility as a whole.
10. In light of the adverse credibility finding the Tribunal found that the Applicant’s attendance at Church in Australia had not been for any reason other than to strengthen his claim and thus disregarded it under s.91R(3) of the Act. In light of the adverse credibility findings the Tribunal also rejected the claimed conflict with XXL, a nephew of a PSB member, noted in any event there was no convention reason for alleged harm resulting from this claim. The Tribunal found that it was not satisfied that the Applicant had a well founded fear of any convention related persecution (CB 153). The Tribunal member affirmed the delegate’s decision.

Grounds of review

11. The Application filed on 11 August 2010 contained the following grounds of review:
    1. The Tribunal had made significant mistakes while considering my review application.

Particularly

• I did indeed suffer from huge mental and psychological pressure that my interview with the delegate at the department or at the hearing before the Tribunal. I am certainly unable to provide any medical certificate or document to support it unless I could bring a doctor or psychologist to attend the department interview or the Tribunal’s hearing with me.
• On one hand, the Tribunal has in fact accepted I am from the People’s Republic of China (PRC) based on my Chinese ID card. However, on the other hand the Tribunal stated in his decision that the Tribunal was unable to find with confidence that I was [SZOOJ] because the Tribunal rejected my account to have arrived in Australia as an unauthorised boat arrival on 28 October 2009 without any travel documents.
• At the Tribunal hearing, I have in fact tried my best to provide a detailed explanation about my trip to Australia by boat. The only matter, which I have been unable to detail, is about the others who had been in the boat together with me. However, as I have claimed after the Tribunal’s hearing, it is actually a rule accepted through common practice that people like me, who have been smuggled overseas, should not ask questions about the others but just follow the “snakehead”. Furthermore, the Tribunal has never ever given me any chance to explain how I came to know what is and is not ‘common practice’, in such matters. It is definitely not true that I am able to give many of the details about my journey to Australia. The Tribunal made such complete incorrect finding only for the reason that he thought that I have not provided evidence according to his taste.
• At the Tribunal hearing, the Tribunal told me that he might make enquiries as to whether Australian authorities had documented or assessed my claim route and mode of transport, for an individual PRC passenger, as a possible means of entry into Australia. But, eventually the Tribunal did nothing about it. Obviously, the Tribunal made his completely incorrect finding based on his unwarranted assumption.
• The Tribunal said that he had taken into account Rev. Ling’s evidence and the Tribunal has in fact accepted that my witness Rev. Ling is a reliable witness. However, on the other hand, the Tribunal refused to accept Rev. Ling’s evidence actually with an excuse that Rev. Ling did not know me but trust me simply. The issue is that Rev. Ling and I have stayed at the same church regularly every week for more than half a year since October 2009; and the Tribunal only met me once at the Tribunal hearing. In such a situation, who should know me better?
• At the Tribunal hearing, I did not speak any English; and I was unable to talk with the Tribunal in English and had to need assistance from an interpreter. I might nod my head subconsciously while the Tribunal asked some questions but there is no evidence showing that I am able to understand any English. Particularly, without saying even one word in English, how was the Tribunal able to find my demonstrated comprehension of English?
• I have repeatedly indicated either to the department or to the Tribunal that I do not have any families or relatives in Australia. Particularly, I am a person who has escaped from China and entered into Australia illegally. In such a particular situation, how am I able to find anyone able to confirm my background? My witness, Rev. Ling is the best witness, but the Tribunal even refused to consider her evidence properly and fairly; then it is possible for the Tribunal to consider other evidence?

12. At the First Court Date directions hearing the Applicant expressed a desire to participate in the Pilot RRT Legal Advice Scheme (NSW) and the scheme coordinator was advised of this request and a panel advisor was allocated. The Applicant was also granted leave to file an Amended Application giving complete particulars of each ground of review relied upon by Wednesday 27 October 2010 together with any affidavit material in support of his Application. The Applicant was also required to file and serve in the Registry a short written outline of submissions and a list of authorities 14 days prior to the hearing. The Applicant has not availed himself of this opportunity and has not filed either an Amended Application or submissions.

Applicant’s submissions

13. The Applicant confirmed that he had not filed an Amended Application or submissions and when invited to make any oral submissions he stated via the interpreter that during the Tribunal hearing he was not given a fair opportunity. He indicated he was under great mental and psychological pressure during the hearing. He indicated that he had prepared some written notes which were read to the Court via the interpreter.
    • The RRT expressed that RRT accepted the fact that I’m a citizen of People’s Republic of China according to my Chinese Identity ID. Later on, RRT did not accept my Chinese ID. Since RRT refused to accept my Chinese identity, why RRT dealt with my application on the basis of my Chinese background? How can RRT make a fair judgment when RRT can’t even decide my true identity?
    • On the basis of RRT refusal regarding my application, was that I gave oral evidence during the hearing, especially regarding the issue how I boarded a boat to travel to Australia, which is completely a mistake so is obviously evidence which proves RRT held bias against my claims. The fact is either in written documents or the evidence given during the hearing and I have explained in great detail regarding how I came to Australia.
    • Only one aspect that I was not able to say was those who travel together with me on the boat, so actually this is a common sense. Anyone who tried to smuggle in will not ask the snakehead or other travel companions about the details. The only thing to do is to follow the snakehead. In addition, RRT did not provide the opportunity to me for me to explain why it is a common sense. During the RRT hearing, the member expressed the Tribunal would get in touch with the relevant organisations in order to confirm the route that I travel to come to Australia. However, the fact is RRT did not do so. Obviously, the RRT made up its mind according to his or her opinion completely, which was bias and made the judgment on my application without any basis, which is completely unfair.
    • On the other side, the RRT believe the evidence provided by the pastor was credible. On other hand, the Tribunal refused to accept the evidence given by the pastor. Since I attended RRT hearing in October 2009, I have been in contact with the pastor for more than six months. However, RRT member only saw me once. It is obvious who knows me more. There is another piece of evidence to prove that RRT held biased against me. During the RRT hearing, I did not even speak one word in English – sorry one sentence. The communication between the member and I went through the interpreter. Under such circumstances, Your Honour I don’t know how RRT came up with the judgment that I knew English very well. If this is not bias, what it could be?
    • RRT refused my claim on the basis that I was not able to provide the evidence regarding my family and friends. However, I had told RRT clearly that I did not have any family members in Australia. Besides the church followers, I do no know anyone else. The most credible witness from the Church is the pastor. However, RRT did not believe the evidence given by the pastor. Or if that’s the case, how could RRT believe other people?

Consideration

14. Mr Cleary of counsel prepared detailed written submissions supported by relevant authorities. This was supported by supplementary oral submissions during the hearing.
15. The Applicant relies on the single ground of review being:
    • The Tribunal has made significant mistakes while considering my review application.

This is supported by seven separate particulars and each of them is addressed as follows:

Particular 1

16. The Applicant asserts that he was suffering huge mental and psychological pressure when he appeared before the delegate of the Minister and subsequently at the Tribunal hearing. This is addressed by the Tribunal member under the heading “Findings and Reasons” at paras.71 and 72.
    • 71. The Applicant wrote in his post-hearing submission that at both the Department interview and the Tribunal hearing, he felt under ‘huge mental and psychological pressure’. The Tribunal has received no supporting medical or other evidence to substantiate this. As noted in the Tribunal’s summary of evidence, the Applicant was a little nervous at the start of the hearing, but he gained in confidence during the course of the discussion. Some of his oral evidence was hesitant or vague. Furthermore, he mentioned on several occasions that he suffers emotional fallout from his claimed experiences – for instance, he claimed that this explained his reluctance to mix in large crowds at busier Christian churches in Sydney. The Tribunal notes also Rev. Ling’s questions, out of respect for what the Applicant may have gone through and his consequent need for space. In other words, she implies that, having accepted the Applicant’s account of his past, she also accepts that he may be under some stress.
    • 72. The Tribunal appreciates that an Applicant for a protection visa may be initially nervous, and it takes this into account when assessing his evidence. However, the Tribunal observed nothing to suggest that the Applicant suffers any condition that impaired his ability to give evidence. Furthermore, the Tribunal places very limited weight on the Applicant’s assertions (about feeling under psychological pressure or having reactions that may be linked with any past experiences) as evidence of the truthfulness or otherwise of his refugee claims. (CB 147 – 148)
17. The Tribunal member noted that he had taken into account the Applicant’s nervousness at the onset of the hearing and found that he had observed nothing to suggest the Applicant’s ability to give evidence was impaired. The Tribunal member placed very little weight on the assertion made by the Applicant regarding his mental health as there had been no independent evidence tendered on this issue.
18. I note that during the Tribunal hearing the Applicant’s migration agent, Mr Harry Huang of Pricilla International Pty Ltd was present. Mr Huang is a registered migration agent and regularly represents clients in the filing, preparation and presentation of his client’s protection visa applications before the Tribunal. There is nothing in the decision record to indicate that Mr Huang made any comment or request to the Tribunal member concerning his client’s mental condition and any inability to proceed with the hearing.
19. At end of the Applicant’s evidence which is recorded above, I asked the Applicant via the interpreter whether there was any issue in respect to the Applicant being Chinese. The Applicant indicated that there was not. I enquired whether the only issue that the Applicant was complaining about was that of his identity. The Applicant confirmed this. I enquired whether the Applicant’s agent was present during the Tribunal hearing and this was confirmed. I enquired whether there was any request to adjourn the hearing and the Applicant indicated that there was one such request. I enquired whether the adjournment was granted and this was confirmed.
20. I enquired whether there was only one request for an adjournment and this was confirmed. In the circumstances, the Applicant is represented by a qualified migration agent who is familiar with proceedings before the Tribunal and in the knowledge of the procedures to follow in circumstances where his client has a health issue which needs to be drawn to the Tribunal’s attention and appropriate procedural steps taken to handle the matter. There is nothing in the decision record or in the form of affidavit evidence indicating that these issues arose before the Tribunal. In the absence of medical evidence it was open to the Tribunal to reject his post hearing submissions containing the assertion by the Applicant that he was suffering a mental condition that made him unable to give evidence: Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126. The onus is on the Applicant to establish that he is unfit to participate in the hearing following an invitation to attend a hearing under s.425: NAMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 983 and SZMSF v Minister for Immigration and Citizenship [2010] FCA 585 per Flick J at [17] – [21]
    • [17] Notwithstanding any uncertainty as to the extent of the obligation imposed by s 425(1), the onus nevertheless remains upon a claimant to establish that he is unfit to participate in the hearing following the giving of the “invitation” guaranteed by s 425: NAMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 983 at [69], 76 ALD 56 at 71 per Branson J. As noted by Her Honour, difficult questions may arise as to what is actually embraced by a finding as to “fitness”. The conclusion reached was expressed as follows:
      • [58] I do not consider it wise to attempt to formulate an exhaustive test of “fitness” to take part in a tribunal hearing. It seems likely that no single standard of fitness will be appropriate for all cases. Fitness in the relevant sense will, in my view, require to be assessed having regard to the particular circumstances of each case including the intended purpose of the hearing before the tribunal and the support and assistance available to the Applicant.
      • Difficult questions may also arise where a claimant may nevertheless be “fit” to participate in a hearing before the Tribunal but where his physical and emotional condition is nevertheless a matter to be taken into account by the Tribunal, particularly when assessing credibility: eg, WAJR v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 106 ; [2004] FCA 106; 204 ALR 624 per French J.
    • [18] Where a claimant is “unfit” to participate effectively in a hearing before the Tribunal, it may be that the Tribunal should adjourn or postpone the hearing until a later date: Applicant S296 of 2003 v Minister for Immigration and Multicultural Affairs [2006] FCA 1166. But, as Gyles J there noted, “[t]here will be circumstances where the incapacity of an Applicant is such that the review by the Tribunal simply must take place without the benefit of oral evidence or oral contribution from the Applicant”: [2006] FCA 1166 at [6]. His Honour was not there called upon to illustrate the “circumstances” which could lead to such a conclusion.
    • [19] A failure on the part of a Tribunal to give a claimant “a reasonable opportunity to present evidence and argument” has, in the past, had the consequence that the Tribunal “did not reach a decision after considering evidence and argument” and the further consequence that “the Tribunal did not conduct a review as required by the Act”. In this instance, the decision was held “not [to be] a ‘decision on review’ for the purposes of ... the Act”: Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 at [43], [2002] HCA 11; 209 CLR 597 at 612 per Gaudron and Gummow JJ.
    • [20] Whatever may be the extent to which SCAR is authority for any proposition extending beyond the “invitation” to which s 425 refers being a “meaningful” invitation, and extending also to the nature of any hearing before the Tribunal, s 425 does not require a Tribunal to press a claimant to call evidence as to whatever “psychological problems” he may seek to rely upon: SZNVW (above). Keane CJ there concluded:
      • [20] In my respectful opinion, s 425 of the Act did not require the Tribunal to press the respondent to call further evidence of his psychological problems or to expand his arguments relating to the ramifications of his problems for any aspect of the case he sought to present. Nothing in this court’s decision in SCAR supports the contrary view, and in the recent decision of Gilmour J in SZMSA v Minister for Immigration and Citizenship [2010] FCA 345, especially at [20]–[25], the contention that an Applicant’s psychological difficulties were such as to deprive him of the “meaningful opportunity” required by s 425 of the Act was rejected, correctly in my respectful opinion, on the footing that the Applicant’s condition was not shown to be such as to deny him the capacity to give an account of his experiences, to present argument in support of his claims, to understand and to respond to questions put to him.
    • The Chief Justice thereafter referred to ss 414, 420, 422B and 424 of the Migration Act 1958 (Cth) and continued:
      • [22] None of these provisions of the Act affords support for the view that the Tribunal is duty-bound to press an Applicant to call further evidence on an issue or to seek an adjournment of the hearing to enable him to do so, or to seek out such evidence itself. In those cases where the Applicant is not disabled by his psychological deficits from giving evidence and presenting arguments, the hearing required by s 425 of the Act is not nullified by a mere failure by an Applicant to present his case in the best possible light.
    • His Honour summarised the views expressed in other cases as follows:
      • [35] In summary to this point, there is nothing in the text of s 425, or in the statutory context in which it appears, or in the authoritative judicial exegesis of s 425, to suggest that it was the intention of the legislature that the Tribunal should take upon itself the role of ensuring that all possibly arguable lines of argument which might be available to an Applicant in any given case are pursued to the Applicant’s best advantage.
    • Emmett J expressed agreement with the reasons of the Chief Justice: [2010] FCAFC 41 at [49].
    • [21] But before any conclusion can be reached that a claimant has been deprived of any opportunity guaranteed by s 425, there must necessarily be a factual basis advanced by the claimant or on his behalf as to the condition sought to be relied upon. In the absence of such evidence, the claim will fail: eg, SZKPB v Minister for Immigration and Citizenship [2009] FCA 147. See also: SZMSA v Minister for Immigration and Citizenship [2010] FCA 345.
21. The Applicant provided no evidence to the Tribunal or this Court in support of his alleged mental condition, nor did his registered migration agent who should be familiar with what procedures to adopt in these circumstances, and the nature of the evidence that would be required to be put forth to the Tribunal or this Court.
22. Mr Cleary brought to the Court’s attention the issue of competency and the authority in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 where the High Court addressed this issue. Their Honours Gummow and Hayne with (Gleeson CJ and Callinan J agreeing) at [45] stated:
    • [45] The third alleged error presupposes that there is some competency requirement as to the satisfaction of which the tribunal must be convinced before an Applicant can take part or continue to take part in proceedings before the tribunal. This assumption is without foundation. The Act does not provide for any such competency requirement, analogous, for example, to that of fitness to plead.19 Section 420(2)(a) of the Act expressly provides that the tribunal is not bound by the rules of evidence.20 The phrase “the rules of evidence” is taken to include both the common law rules of evidence and the Evidence Act 1995 (Cth).21 The only requirements that could be described as competency requirements are that an application for review by the tribunal can only be made by a non-citizen who is the subject of the primary decision (by the minister’s delegate)22 and who is physically present in the migration zone when the application for review is made.23 The Act permits an application for a protection visa to be made by any person who is in Australia and who is not a citizen of Australia.24 That is not to deny that the rules of procedural fairness may, in particular circumstances arising in individual cases before the tribunal, require some special steps or procedure to be followed. But there was no denial of procedural fairness in the present case.
23. I am satisfied that this ground of review cannot be sustained.

Particular 2

24. The Applicant challenges the findings that on the one hand he was accepted as a citizen of the Peoples’ Republic of China, but on the other hand, had difficulties accepting his identity. In para.73 of the decision record, the Tribunal states:
    • [73] The Tribunal rejects the Applicant’s account to have arrived in Australia as an unauthorised boat arrival on 28 October 2009, without any travel documents (see paragraphs 74-80 below). The Tribunal finds that the Applicant has given untruthful information about the means by which he arrived in Australia or while he has been here, and his personal circumstances as a whole. As a consequence, the Tribunal has comprehensive concerns about his credibility as a witness. Furthermore, wile it accepts for the purposes of this decision that his identity is [SZOOJ] as claimed, it does so with reservations. As it does not accept the Applicant’s account of his undocumented arrival in Australia in October 2009, the Tribunal is unable to find with confidence that he is [SZOOJ] and that he has never used any other identities (genuine or false) for the purpose of entry into Australia or possibly other visa applications.
    • ...
    • [81] All the above concerns lead the Tribunal to reject the Applicant’s claim that he arrived in Australia in late October 2009. The Tribunal is unable to make a definitive finding with respect to the Applicant’s identity. Taking into account the PRC identity documents that he has provided, the Tribunal considers it possible though far from certain that he is [SZOOJ], and proceeds on the basis that this may be his true identity. However, the Tribunal considers it also possible that the Applicant has used a different identity and that he has recently adopted this identity as a means of securing permanent residency in Australia. (CB 149-150)
25. I accept Mr Cleary’s written submissions that this challenge is in essence a challenge to a factual finding made by the Tribunal member regarding the Applicant’s identity. At the commencement of the Tribunal’s findings and reasons, in consideration of the Applicant’s claim for convention based persecution, the member stated that he was prepared to accept for the purposes of the decision that the Applicant was a citizen of the People’s Republic of China (CB 147 at [70]). He made this finding so that he could proceed to assess the claim against a country, namely China, as it was required to do under the Act. When I asked the Applicant whether there was any issue about him being assessed as originating from China, he confirmed that there was no issue.
26. Later in the findings and reasons, the issue of the Applicant’s identity (and his credibility as a witness) the Tribunal made a finding that in acceptance of his identity, as claimed, was done with some reservation. This was because it did not accept the Applicant’s account of his undocumented arrival in Australia in 2009, and that it was unable to find that the Applicant had not used other identities for the purpose of entering into Australia for possible other visa applications. These factual findings were open to the Tribunal member. The Applicant is not entitled a merits review of factual findings under the Act by this Court. Consequently, this ground cannot be sustained.

Particular 3

27. The Applicant denies that he was unable to give meaningful details in respect to his journey to Australia by boat. However, he acknowledges that he deliberately did not seek explanation or details from his fellow travellers or the ‘snakehead’ who was running the smuggling operation. He claims the Tribunal denied him the opportunity to explain how he became aware of this practice of not communicating with the smugglers or his fellow passengers.
28. The Tribunal reasons are set out in paras.76 and 77 of its decision which states:
    • [76] However, there were other aspects of the Applicants account that the Tribunal found highly problematic and that lead it to conclude that his evidence is unreliable. The Applicant’s description of the journey appeared rehearsed. The Tribunal’s efforts to elicit more precise information yielded very little. The Tribunal has taken into account the Applicant’s explanation for this – that he knew not to ask the people smugglers for details and that, even if he had them, he would be scared to reveal them. In his post hearing correspondence, the Applicant gave a slightly different explanation: ‘it is actually a rule accepted through common practice that the people like me, who had been smuggled overseas, should not ask questions about the others but just follow the ‘snakehead’. He did not give details of how he came to know what is and is not ‘common practice’ in such matters.
    • [77] The Tribunal accepts that, in some cases, a person who has entered Australia as an unauthorised boat arrival (or otherwise as the client of people smugglers) might me reluctant or feel unable to disclose details of a journey and those who facilitated it. However, in this case, the Applicant was also unable to give any meaningful information about what he personally experienced or observed during the claimed voyage. In the Tribunal’s view, this amounts to strong evidence that he did not in fact enter Australia in late October 2009, by the claimed route.
29. This particular is not a challenge as to whether the Tribunal committed some form of jurisdictional error, but rather is a challenge to the factual findings of the Tribunal. This form of challenge is not subject to judicial review by this Court and cannot be sustained.

Particular 4

30. The Applicant asserts that the Tribunal breached an obligation it had to make enquiries as to whether Australian authorities had documents or assessed [the Applicant’s] claimed route and mode of transport, for an individual PRC passenger as a possible means of entry into Australia. However, the Tribunal has no general or specific statutory obligation under the Migration Act to make enquiries on behalf of Applicants. Rather, the duty imposed on the Tribunal by the Act is a duty to review: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25].
31. In SZIAI at [25] the High Court held that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. The majority explained this by saying that, it may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. In other words, the failure to make an obvious enquiry may lead the Tribunal to commit a jurisdictional error in some way. The mere assertion of a failure to make an enquiry by itself is not a ground for alleging jurisdictional error. In the matter before this Court the Applicant does not allege more than a mere failure to make an enquiry.
32. The finding that the Tribunal disbelieved the Applicant’s claim about how and when he came to Australia was a factual finding based on materials provided to the Tribunal. It was a finding that was open to the Tribunal to make. There was no failure to exercise this jurisdiction by the Tribunal in making that finding. The alleged failure to enquire did not lead to any jurisdictional error of the kind referred to by the High Court in SZIAI. There was no failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the Tribunal’s decision was infected by jurisdictional error (SZIAI at [26]). I accept the above submissions and agree with Mr Cleary that this ground cannot be sustained and should be rejected.

Particular 5

33. The Applicant challenges the findings made by the Tribunal regarding the evidence of Reverend Ling. The Reverend’s evidence at para.57 states:
    • [57] Rev. Ling said that she met the Applicant in December 2009, when he came to the church. She said that some brothers and sisters had given the Applicant brochures at a railway station. In response to the Tribunal’s questions, she said that she believed that the Applicant was already a devout Christian when he first arrived at the church, and she found him to be genuine and sincere. The Tribunal asked Rev. Ling what she knew about the Applicant’s family, his experiences in China and his journey to Australia. She reiterated the contents of her statement, but said that she had not enquired further about the Applicant’s personal circumstances or his journey to Australia. She preferred to give him time to open up, at his own pace. In response to the Tribunal’s question as to whether she knew about the Applicant’s family, and whether they were Christian, Rev. Ling said that she believes that he has a wife and family, and has worked to help them. She did not know whether the Applicant was born Christian or became one later, but commented that he has been baptized and now takes Holy Communion.
34. In the findings and reasons at para.91 the Tribunal makes the following observation:
    • [91] The Tribunal accepts that the Applicant presented at the Chinese Methodist Church in Carlton in December 2009, that he impressed Rev. Ling when he spoke to her, and that he now goes to church in Parramatta. However, given its adverse view of his credibility and its findings above that the Applicant engaged in the conduct in Australia otherwise than for the purpose of strengthening his claim to be a refugee. The Tribunal is therefore required to disregard this conduct, pursuant to s.91R(3) of the Act.
35. I accept the submission by Mr Cleary that the Tribunal accepted the evidence of Reverend Ling was truthful, but observed that, by her own evidence, she did not know the Applicant well and made a point of not pressing the Applicant for illicit details of his past. The Tribunal found that Reverend Ling’s evidence was of limited value. There can be no basis for jurisdictional error in challenging a factual finding that was open to the Tribunal on the material before it. In these circumstances, this claim cannot be sustained and should be rejected.

Particular 6

36. The Applicant challenges the Tribunal’s findings in para.79 of the decision which states:
    • [79] The Tribunal finds further evidence for this in its observation at the hearing that the Applicant understood much of its statements in English, even before the interpreter started to render them in Mandarin. This was particularly marked when the Tribunal raised this concern with the Applicant in Englished, and he signalled that this was wrong even before the interpretation had begun. At the beginning of the hearing, he stated clearly that he had exposure only to Mandarin Chinese. The Tribunal has considered the Applicant’s evidence that he had caught only the gist of what the Tribunal was saying, and that he may have quickly acquired English skills in the (claimed) 7 months between his arrival in Australia and the Tribunal hearing. However, the Applicant’s demonstrated comprehension of English and his involuntary reactions to the Tribunal’s statements, while by no means definitive, add to the Tribunal’s concerns that he did not arrive in Australia in late October 2009, as claimed, with no prior exposure to English.
37. The finding in the above paragraph is a credit finding based on the Tribunal’s observation of the Applicant’s demeanour while he was giving evidence to the Tribunal. Such findings are a factual finding and a matter for the Tribunal in par excellence: Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 168 ALR 407 at 67. When the Tribunal makes a credit finding it is entitled to have regard to and base findings on the Applicant’s demeanour while giving evidence: Re Refugee Review Tribunal, Re; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 at 34. Particularly, as the Federal Court has held, where the Tribunal finds as to an Applicant’s credibility not made on demeanour alone: SZCOS v Minister for Immigration and Citizenship [2008] FCA 570 at 18.
    • [18] The Tribunal was entitled to have regard to and base findings on the appellant’s demeanour while giving evidence (Re Refugee Review Tribunal, Re; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 at [34]; W148/00 A v Minister for Immigration & Multicultural Affairs [2001] FCA 679; (2001) 185 ALR 703 at [64]). However, in assessing the appellant’s credibility, the Tribunal’s findings were not made on demeanour alone. The Tribunal assessed the appellant’s claims and made findings on credibility that it explained; based on its observation of the appellant, the way he presented his claims, the lack of consistency that it discerned in the claims made and what it found to be implausible. Those were findings of fact for the Tribunal.
38. The finding made in para.79 was open to the Tribunal member who observed the Applicant giving evidence. However, it was only one of a number of factors that weighed in the Tribunal’s assessment of the credibility of the Applicant’s claims as to the date and the manner of his arrival in Australia. Other factors were:
    1. the Applicant’s description of his journey from China appeared rehearsed;
    2. the Applicant’s inability to give any meaningful information about what he had personally experienced or observed during the claimed voyage; and
    100. his evasiveness in answering questions about his claimed voyage to Australia.

Particular 7

39. The Applicant challenges the finding of the Tribunal as to whether the Applicant could or was willing to suggest possible witnesses in Australia who knew the Applicant and who might corroborate his claimed arrival details. This was addressed by the Tribunal in para.80 of the decision record which states:
    • [80] The Tribunal explored with the Applicant whether any of his contacts in Australia might be able to confirm his place of origin or the timing of his arrival in Australia. This yielded no meaningful information, except the telephone number of a person who, the Applicant added, actually did not know the Applicant’s place of origin. The Tribunal accepts that a person who is a recently arrived refugee Applicant, without documents, might have few contacts and be circumspect in discussing his circumstances with others. It therefore does not place too much weight on this factor, in isolation. However, the Applicant showed no real interest in thinking through whether a work colleague, fellow churchgoer or other person might be able to confirm his background. While by no means decisive, the Applicant’s evasive responses at the hearing add to the Tribunal’s concern that he has been untruthful about his entry into Australia.
40. This is not a proper basis for asserting jurisdictional error as it seeks to challenge factual findings and the reasoning process of the Tribunal regarding the credibility of the Applicant’s claims. Again, a further request for a merits review which is not permissible. The Tribunal itself acknowledges that someone who has newly arrived would have a limited circle of acquaintances and it did not place much weight on his failure to present a witness on the issue. However, the Tribunal found that the Applicant was evasive and showed no real interest in thinking through whether a work colleague or fellow churchgoer or some other person might be able to confirm his background. It was his evasive responses that added to the Tribunal’s concern about the Applicant’s truthfulness about his entry into Australia. The factual findings and the reasoning process that led to the conclusion regarding his claimed entry into Australia, was open to the Tribunal on the material placed before it. Consequently, this claim cannot be sustained and should be dismissed.

The issue of a merits review

41. A substantial part of the Applicant’s claim is requesting the Court to enter into a merits review which is not available: Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6 per Brennan CJ, Toohey, McHugh and Gummow JJ at [31] where their Honours stated:
    • ...Any court reviewing a decision upon refugee status must be aware of turning the review of the reasons of the decision maker on proper principles into a reconsideration of the merits of the decision.
42. A merits review is an assessment of the appropriateness of the decision as distinct from a judicial review which focuses on lawfulness of the earlier decision. A judicial review asks whether a decision maker was authorised to do what he did under the prevailing law, not whether the actual decision was the best decision that could have been made in the circumstances. A merits review provides a complete rehearsal of all the issues relevant to the application whereas a merits review provides a complete rehearsal of all the issues relevant to the application. The reviewing body considers the relevant material as well as any new evidence. The reviewing body makes a decision about the merits of the application unfettered by any earlier decision, or reasons of the decision maker for the earlier decision.
43. Mark Aronson, Bruce Dwyer and Matthew Groves, Judicial Review of Administrative Action, 4th Ed. 2009 at [1.100] p.15 focus on this distinction and the difficulties that can be experienced with the distinction.
    • [1.100] Judicial review has always been more comfortable with review for errors of process, than for errors of substance. Its core review grounds are about process. That was the point of Brennan J’s much quoted statement in Attorney-General (NSW) v Quinn (1990) 170 CLR 1 at 35 – 36, that the job of judicial review was to enforce the legal limits to the exercise of power. It was not to cure administrative injustice or error, although if a court’s decision were to have that effect, then “so be it”. His Honour acknowledged that it can be difficult to distinguish between merits and legality, particularly in the case of review for Wednesbury unreasonableness. The distinction could hold, however, if reasonableness requirements were imputed to legislative intent, and if review for unreasonableness was limited to extreme cases.
44. The majority of the particulars relied upon by the Applicant in this Application focus on the issue of the merits of the Tribunal decision. As has been explained on numerous occasions and particularly by his Honour Allsop J in SZDFO v Minister for Immigration Multicultural and Indigenous Affairs [2004] FCA 1192 and NARE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1248 and by the Full Court in NAAH v Minister for Immigration [2002] FCAFC 354, the court cannot engage in a merits review. More recently, in SZMWQ v Minister for Immigration and Citizenship [2010] FCAFC 97 their Honours Rares, Besanko and Flick JJ confirmed that this court cannot engage in a merits review.
45. The substantial finding of the Tribunal relates to the Applicant’s credibility. In the findings and reasons of the decision record the member states:
    • 82. The Tribunal, having found that the Applicant has given false evidence about his entry into Australia and possibly about his identity, considers that he is not a credible witness. This casts strong doubts on all of his claims and evidence.
    • ...
    • [86] The Tribunal’s extensive concerns about the Applicant’s credibility as a whole, as well as its view that at least some point in the past he had used false documents and a false identity in Australia, reinforce the Tribunal’s doubts about the credibility of these documents. Taking into account all of these concerns, the Tribunal considers the Applicant’s credibility so damaged that it places no weight on any of the documents that he relies on to support his refugee claim.
    • [87] Based on the Applicant’s inconsistent evidence about the practice of Christianity in his immediate environment, including his family, and given the serious adverse credibility findings about his arrival in Australia, the Tribunal rejects his claim to have practiced Christianity in China at all.
46. The Tribunal’s adverse credibility finding, and consequent rejection of the Applicant’s claims, is a matter for the Tribunal par excellence: Minister for Immigration & Multicultural Affairs, Re; Ex Parte Durairajasingham (supra) per McHugh J at 67, where his Honour states:
    • ... a finding on credibility which is the function of the primary decision-maker par excellence. 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.
47. I am satisfied that the Tribunal finding in this respect was open to it, on rational grounds, on the material before it and discloses no error in its treatment of the Applicant’s credibility: Kopalapillai v Minister for Immigration & Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547. The Tribunal’s reasons for a decision, which is the only evidence before the Court, indicate the concerns it had about aspects of the Applicant’s evidence which it raised with him during the hearing and subsequently in a s.424A letter. The Applicant was unsuccessful because of the view the Tribunal took of the facts and, in particular, it’s finding that he was not credible.

Conclusion

48. The Applicant appeared in this Court as a self-represented litigant with the assistance of a Mandarin interpreter. I am satisfied that the ground of review pleaded in the Application cannot be sustained. Neither is it apparent that any other ground of review exists which suggests that the Tribunal member has made a jurisdictional error in its decision to reject the Applicant’s Application for a protection visa. The Applicant’s claim should be dismissed.
49. I am satisfied that an order for costs should be made in this matter. I order that the Applicant pay the First Respondent’s costs and disbursements, of and incidental to the Application.

I certify that the preceding 49Error! Style not defined.!Syntax Error, !Error! Style not defined.Error! Style not defined.!Syntax Error, !forty-nineforty-nine (49) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM

Date: 7 February 2011