FEDERAL COURT OF AUSTRALIA

SZLJC v Minister for Immigration and Citizenship [2008] FCA 1361

Migration Act 1958 (Cth)

WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 188

Nader v Minister for Immigration and Multicultural Affairs (2000) 101 FCR 352; [2000] FCA 908

SZKOB v Minister for Immigration and Citizenship [2007] FCA 1949

Re Refugee Review Tribunal; Ex Parte H (2001) 75 ALJR 982; [2001] HCA 28

SZBEL v Minister for Immigration and Multicultural Affairs (2006) 228 CLR 152; [2006] HCA 63

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17

SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1

Abebe v The Commonwealth (1999) 197 CLR 510; [1999] HCA 14

Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547

Re Refugee Review Tribunal; Ex Parte Aala (2000) 204 CLR 82

NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR

Avesta v Minister for Immigration & Multicultural Affairs [2002] FCAFC 121

NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328

SZLJC v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1058 of 2008

REEVES J

4 SEPTEMBER 2008

DARWIN

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

INTRODUCTION

1                     This is an appeal against a judgment of Federal Magistrate Lloyd-Jones delivered on 20 June 2008, which dismissed an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’). The Tribunal’s decision was handed down on 28 August 2007 and affirmed a decision of a delegate of the first respondent to refuse to grant a protection visa to the appellant.

BACKGROUND – SUMMARY OF FACTS

2                     The appellant is a citizen of the People’s Republic of China (‘China’) who arrived in Australia on a transit visa on 7 February 2007. Two days later, on 9 February 2007, the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship (‘the Department’). A delegate of the first respondent refused that application on 16 April 2007.  The appellant then applied to the Tribunal for a review of that decision on 17 May 2007.

3                     The appellant filed a letter (or declaration) with her protection visa application which set out the basis of her claims to fear persecution due to her membership of an underground Christian church in China. In short, the appellant claimed that her persecution commenced following, but independently of, a Public Security Bureau (‘PSB’) investigation in relation to an accident at a construction site. The injured workers had been denied compensation and the appellant, an accountant at the insurance company involved, informed the workers (indirectly) that this was due to the construction company bribing officials. The appellant was subsequently transferred to another department in the insurance company, though this action does not appear to form part of her claims of persecution.

4                     The appellant went on to claim that she had subsequently joined an underground church, after being ‘deeply moved’ by the courage and faith of one of the now disabled construction workers, Mr Lin (a leader of the church). She stated that members of her underground church (the Chnag Tang Street Gong Li Church) were arrested by the PSB in connection with a sermon they organised in a village, and charged with ‘anti-government’ activities. The appellant claimed that in September 2006, she and other members of the underground church were detained and interrogated for one month, while Mr Lin was detained indefinitely.  The appellant claimed that she and her friend, Ms Shi, then drafted and distributed an anonymous petition for his release, which lead to the arrest of her friend (allegedly after she had rung her mother from a public phone while they were in hiding). The appellant claims that she then fled China to avoid arrest.  A more detailed description of the appellant’s claims is set out in the Federal Magistrate’s decision (see [1] – [6] of [2008] FMCA 797).

5                     The appellant attended a hearing before the Tribunal on 11 July 2007.  The appellant adopted the information in her letter at that hearing, but revised the length of her detention from one month to two months.  In its Decision Record, the Tribunal records the appellant saying that “if she were to go back she would be arrested because the authorities consider her to have participated in anti-government religious activities, such as participating in their religious group, organising a youth group, preaching, organising Bible study classes and distributing religious publicity material”.  The appellant submitted two photographs to the Tribunal, one of which was taken outside a police station in China.  She stated these photographs were not taken to bolster her protection claims, but rather for her to use in suing the Chinese government if she was arrested again. She also submitted a letter, purportedly from her last employer, dismissing her ‘for her participation in illegal religious activities’, and another letter to substantiate her church attendance in Australia.

6                     In its deliberations, the Tribunal also considered a tape recording of an earlier interview the appellant had participated in with the Department (‘the Departmental interview’). The Tribunal sent the appellant an ‘Invitation to Comment’ letter on 12 July 2007, regarding inconsistencies it perceived between the evidence she had given at the hearing before it and the information she had given in the Departmental interview.  The appellant subsequently provided a response to this letter, in the form of a statutory declaration which the Tribunal duly considered in its Decision Record.

THE TRIBUNAL’S DECISION

7                     The Tribunal’s Decision Record notes that the appellant “did not impress the Tribunal as a reliable, credible and truthful witness”. The Tribunal went on to reject her claims on this basis. It identified at least six subject areas where it considered the information the appellant gave in the Departmental interview and the evidence she gave to the Tribunal to be inconsistent.  They included: her address in China; the staffing arrangements where she worked; the details of her baptism; and the details of the drafting and distribution of the petition seeking Mr Lin’s release.  These inconsistencies (among other things) led the Tribunal to the conclusion that she was not a credible and truthful witness.  The Tribunal also “found many aspects of the [appellant’s] oral evidence [before it] to lack plausibility”, including her explanation of the reasons for her own arrest and detention, and her explanation for her friend’s almost instantaneous apprehension after using a public phone. The Tribunal determined that the appellant had a “propensity to fabricate claims and tailor and shift her evidence in a manner which achieves her own purpose”.

8                     The Tribunal did not attach any weight to the two photographs or the dismissal letter submitted by the appellant, because of “the fundamental lack of credibility within the [appellant’s] evidence”, and cited WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 188 at [52] in support.

9                     Although it held that the appellant had demonstrated some knowledge of Christianity and some church attendance in Australia, the Tribunal disregarded this conduct in reliance upon s 91R of the Migration Act 1958 (Cth) (‘the Act’).  The Tribunal concluded that “given the [appellant’s] lack of credibility, the Tribunal is not satisfied that the [appellant] is a genuine Christian”.  In its conclusion, the Tribunal rejected each aspect of her claims one by one and found that it did not accept that she had faced harm in the past, nor that there was a real chance that she would face harm in the future.  Accordingly, it affirmed the delegate’s decision.

THE FEDERAL MAGISTRATE’S DECISION

10                  The appellant filed an application for judicial review in the Federal Magistrates Court on 25 September 2007 which set out two grounds of review and twelve paragraphs of particulars (as set out in the Federal Magistrate’s decision: see [2008] FMCA 797 at [12]). The grounds of review were as follows:

·                    There was an error of law in the Tribunal’s decision constituting a jurisdictional error;

·                    There was procedural error in the Tribunal’s decision constituting an absence of natural justice.

11                  The appellant also filed written submissions dated 5 May 2008, which alleged that she had been denied a fair opportunity (partly through a failure to provide her with a tape or transcript of the Departmental interview), that the Tribunal had made “completely incorrect” findings and that the Tribunal had operated on “assumption” and exhibited apprehended bias.

12                  The appellant attended a hearing before Federal Magistrate Lloyd-Jones on 13 May 2008. His Honour’s reasons record that the appellant did not take an opportunity to receive legal advice, nor to amend her application, and that her written submissions “do not directly relate to the grounds of review in her initial application”. His Honour considered the appellant’s oral submissions went to new grounds not mentioned in either of her application or her written submissions (see [13] of his Honour’s reasons).  His Honour recorded that the appellant also made oral claims at the hearing that:

1.                  The Tribunal unfairly took into account differences in the addresses supplied by the appellant, in relation to her credibility (discussed at [14]-[18] of his Honour’s reasons) and otherwise assessed her credibility wrongly (discussed at [44]-[45] of his Honour’s reasons) ;

2.                  The Tribunal failed to provide the appellant with a copy of the hearing tape or transcript (discussed at [19]-[22] of his Honour’s reasons);

3.                  The evidence of the appellant was mistranslated (discussed at [23]-[25] and [41]-[43] of his Honour’s reasons);

4.                  The Tribunal made its finding mostly based on assumptions (discussed at [35]-[40] of his Honour’s reasons); and

5.                  The Tribunal failed to comply with s 424A (discussed at [20] and [29] of his Honour’s reasons).  

13                  The Federal Magistrate made findings on each of these points. In relation to the appellant’s different address/es, his Honour found that the explanation given by the appellant for recording different addresses was not relevant because the Tribunal “was simply not persuaded by her explanation”. His Honour therefore found this was a credibility finding open to the Tribunal to make. His Honour also found that the ten particulars the appellant put forward, in alleging that her credibility had been assessed incorrectly, were nothing more than an attempt at impermissible merits review.

14                  His Honour held that there was no obligation on the Tribunal to provide the appellant with a transcript of the Departmental interview because s 424A of the Act requires only that the Tribunal provide the appellant with particulars of the information that may be the reason or part of the reason for its decision; and not any document referrable to those particulars. His Honour relied upon Nader v Minister for Immigration and Multicultural Affairs (2000) 101 FCR 352; [2000] FCA 908 (‘Nader’) and SZKOB v Minister for Immigration and Citizenship [2007] FCA 1949 in support.  Accordingly, his Honour was satisfied that the Tribunal had complied with its obligations in this regard by providing particulars of the relevant information in the transcript of the Departmental interview.

15                  His Honour held that no jurisdictional error was present in the Tribunal’s treatment of the appellant’s evidence in relation to the production and distribution of the petition, nor in its decision not to attribute any weight to the photographs the appellant submitted to it.

16                  The Federal Magistrate was also satisfied that the Tribunal had taken into account all of the evidence provided by the appellant and that there was no evidence to support an allegation of interpretation problems, nor any allegation of bias (within the test set out in Re Refugee Review Tribunal; Ex Parte H (2001) 75 ALJR 982; [2001] HCA 28). His Honour concluded that “the Tribunal based its findings on the [appellant’s] credibility after complying with the provisions of the Act to adequately bring these issues to her attention” and dismissed the application for want of jurisdictional error.  

GROUNDS OF THE PRESENT APPEAL

17                  The notice of appeal filed in this Court on 11 July 2008 raised the following grounds (with particulars):

1.                  The learned Federal Magistrates erred in making an incorrect finding about whether or not the Tribunal should have provided me with a copy of the transcript or tape of the interview by the Department.

2.                  The learned Federal Magistrates erred in not finding that the Tribunal’s decision has included apprehended bias.

3.                  In summary, I do not think that my application for judicial review has been considered by the learned Federal Magistrates properly or fairly.

THE CONTENTIONS

18                  At the hearing of the appeal before me on 26 August 2008, the appellant appeared in person, unrepresented, but assisted by an interpreter.  Mr Mantziaris appeared for the first respondent.

19                  In her oral submissions, the appellant essentially repeated the particulars included with her notice of appeal, namely: her allegation that the Tribunal should have provided her with a copy of the tape or a transcript of the Departmental interview; her concern that interpretation problems had occurred at the Departmental interview; her claim that the transcript of the Departmental interview had been unfairly used against her; and her allegation that the Tribunal had demonstrated bias by not independently and fairly assessing her claim, but rather siding with the Department by assuming that the tape and transcript of the Departmental interview were absolutely correct.

20                  The appellant also complained about the Tribunal’s treatment of her evidence in relation to the period Mr Lin spent in hospital and its treatment of the photograph of her in front of a police station in China.  She concluded by submitting the Tribunal had made many mistakes in its decision and all of these had been ignored by the Federal Magistrate.

21                  The first respondent had earlier filed an outline of written submissions.  In summary, that outline set out the following submissions:

·                    S 424A of the Act does not require the Tribunal to provide a copy of the document which forms the “reason, or a part of the reason” for the Tribunal’s decision; it only requires the Tribunal to provide particulars of any information that answers that description: SZKOB v Minister for Immigration and Citizenship [2007] FCA 1949 at [13] – [14].

·                    The Tribunal complied with its obligations under s 425, as interpreted by the High Court in SZBEL v Minister for Immigration and Multicultural Affairs (2006) 228 CLR 152; [2006] HCA 63, by putting to her in writing (in its letter dated 12 July 2007) the particulars of the inconsistencies it considered existed between the information she gave at the Departmental interview and the evidence she provided to the Tribunal. 

·                    Any person asserting actual bias on the part of the Tribunal carries a heavy onus. The allegation must be distinctly made and clearly proved: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17.  In this case the appellant had not filed any evidence to support her allegation of bias and there was no basis upon which that allegation could be proven.

·                    The Federal Magistrate conducted a clear and comprehensive review of all of the grounds raised by the appellant, both written and oral.  There was no error of law amounting to jurisdictional error in the Federal Magistrate’s reasons for decision. 

22                  In his oral submissions, Mr Mantziaris submitted that the Tribunal’s decision turned upon its finding that the appellant was not a credible witness and this was a matter peculiarly within the fact finding jurisdiction of the Tribunal.  He took me to various parts of the appeal book to demonstrate that the Tribunal had provided the appellant with particulars of the requisite information, in writing, in accordance with its obligations under s 424A of the Act, that the appellant had responded to the Tribunal’s letter containing those particulars and that the Tribunal had then assessed that response and come to its conclusions based on all that material.  He submitted that these findings were within the fact finding jurisdiction of the Tribunal and did not involve any error, let alone jurisdictional error.

CONSIDERATION

23                  The appellant has essentially raised two grounds of appeal in relation to the Federal Magistrate’s decision and the Tribunal’s decision before that.  They are that the Federal Magistrate failed to detect errors on the part of the Tribunal in not providing her with a copy of the transcript or tape of the Departmental interview and in demonstrating apprehended bias and not dealing with her case properly or fairly.

24                  As to the first ground of appeal, I agree with the Federal Magistrate’s conclusions (see [14] above) and Mr Mantziaris’ submissions (see first dot point at [21]) that s 424A(1) of the Act only requires the Tribunal to provide particulars of any information that forms the reason, or a part of the reason for the Tribunal’s decision and it does not require it to provide any document that is referable to those particulars.  So much is clear from what Justice Hill said in Nader at [59], with which I respectfully agree, as follows:

‘There is little doubt that s 424A is part of the procedure which the Tribunal is bound to follow in conducting its review.  So much is made clear, if that were necessary, by the explanatory memorandum circulated when the Migration Legislation Amendment Bill (No 1) 1998 (Cth) (which, when enacted, inserted the section into the Act) was introduced into Parliament.  As I said in Naing v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 336 at 342 [32] and [33], s 424A is enlivened when the Tribunal forms the view that there is information that is relevant to the review and the information is or may be adverse to the applicant.  There could be no obligation upon the Tribunal to produce to Mr Nader the letter, apparently from a gym owner, or perhaps an attendee of a gym, for the obligation under  s 424A is an obligation to give particulars, not an obligation to produce documents.’ [emphasis added]

25                  The second ground of appeal raises an allegation of apprehended bias on the part of the Tribunal.  The particulars the appellant provided in support of this ground of appeal are as follows:

‘To my understanding, the Tribunal’s act should be independent and impartial.  In other words, the Tribunal should stand in the middle between me and the Department.

However, as I have mentioned above, the Tribunal has definitely not stood in the middle; instead, it has stood on the side of the Department, because it has made a finding, based on its unwarranted assumption, that the interpreter at the Departmental interview was deemed to make no mistakes and the delegate was deemed to make no misstates at the Departmental interview.

Furthermore, it is no doubt that my evidences given at the hearing before the Tribunal has been distorted or misstated.  It is the evidence that at the Tribunal’s hearing, I never said: “Mr Lin was not in hospital for one month.”  What I said was “Mr Lin was in hospital for one month; but around 20 September 2004, having approved by his doctor, Mr Lin came to my company”.

And, it is no doubt that the Tribunal made its finding mostly based on its assumption.  As a matter of fact, it was definitely impossible that the photograph submitted by me was to be “designed to strengthen my claims against my protection visa application”.  It was extremely dangerous to take such a photo in front of the police station, because it has strictly restricted and banned to take any photo in front of the police station without any permission.  I would be arrested immediately should I have been found to do so.  So, it is definitely impossible for me to take such a great risk to take the photo simply for my refugee application.  As a matter of fact, I took this photo solely for the purpose to have an evidence to sue those cruel and inhuman police in the future.

26                  In my view, these particulars can be distilled down to the following complaints:

(a)                The Tribunal sided with the Department because it assumed the interpreter present at the Departmental interview made no mistakes.

(b)               The Tribunal distorted or misstated the appellant’s evidence about Mr Lin’s stay in hospital.

(c)                The Tribunal wrongly concluded that the photograph the appellant submitted was “designed to strengthen my claims against my protection visa application”, because it was extremely dangerous for her to take that photograph in the circumstances.

27                  With the exclusion of the issue in relation to the authorship, production and distribution of the petition or pamphlets seeking Mr Lin’s release (see [26] to [29] of  his Honour’s reasons in [2008] FMCA 797), these complaints appear to be the same as those the appellant raised before the Federal Magistrate in support of her allegation that there was a mistranslation of the statements she made in the Departmental interview (see [22] to [34] and [41] to [43] of his Honour’s reasons).

28                  Conversely, in support of the similar allegation of bias that was apparently raised in the appellant’s submissions before the Federal Magistrate (see [13] of his Honour’s reasons) - so far as I can see, there is no express allegation of bias contained in the grounds of judicial review - the appellant relied upon two different aspects of the Tribunal’s decision.  First, she complained about the Tribunal’s failure to properly consider and assess her evidence about the staffing arrangements at the Taikang Company (see [35] to [38] of his Honour’s reasons).  And, secondly, she complained the Tribunal was unfair in not investigating why differing accounts were given (see [39] to [40] of his Honour’s reasons) - presumably this is a reference to the inconsistencies between the statements the appellant made in the Departmental interview and her evidence before the Tribunal.  As I have noted above (at [16]), the Federal Magistrate rejected both these complaints and the allegation of bias upon which they are based, applying the test set out in Re Refugee Review Tribunal; Ex Parte H (2001) 75 ALJR 982; [2001] HCA 28 . Perhaps that is why the appellant has sought to rely upon different complaints in support of her allegation of bias before this Court.

29                  There is no objection to this change of position by the first respondent so I will proceed to deal with the appellant’s current complaints. In doing so, I consider it necessary to keep firmly in mind how these complaints correlate to the matters the appellant has to establish to succeed on the second ground of appeal, that is, her allegation of bias.  In Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 (‘Jia’), Justice Hayne described what is meant by bias in this context, in the following terms (at [183]):

‘To examine those questions it is necessary to consider more closely what is meant by “bias” and “apprehension of bias”.  “Bias” is used to indicate some preponderating disposition or tendency, a “propensity; predisposition towards; predilection; prejudice” (158).  It may be occasioned by interest in the outcome, by affection or enmity, or, as was said to be the case here, by prejudgment.  Whatever its cause, the result that is asserted or feared is a deviation from the true course of decision-making, for bias is “any thing which turns a man to a particular course, or gives the direction to his measures” (159).  This matter concerns only bias by prejudgment and I confine my reasons to that subject.  The questions that may be presented by an allegation of bias for other reasons do not arise and are not considered.’

30                  As I have already noted above, in Jia, three judges of the High Court also made it clear that an allegation of bias, such as this, must be distinctly made and clearly proved: at [69] per Gleeson CJ and Gummow J and at [127] per Kirby J.

31                  When one considers the current complaints particularised by the appellant in support of this ground of appeal, it is difficult to conclude that the appellant has distinctly alleged the conduct on the part of the Tribunal that she says gives rise to the alleged bias.  On the most generous interpretation of the complaints distilled from her particulars (above), the appellant appears to be alleging that the Tribunal took sides with, or had a favourable predisposition towards, the Department and therefore did not fairly deal with her evidence and claims.  Viewed in this way, she appears to be alleging both bias and a lack of procedural fairness.  This interaction between bias and procedural fairness was described by the High Court in Re Refugee Review Tribunal; Ex Parte H (2001) 75 ALJR 982; [2001] HCA 28 at [5] as follows:

‘It was held in Re Refugee Review Tribunal; Ex Parte Aala that administrative decisions may be reviewed in this Court for failure to observe the rules of natural justice.  Further, it was accepted in Minister for Immigration and Multicultural Affairs v Jia that such a failure would extend to cases in which apprehended bias is established.  However, the rule with respect o apprehended bias, as it has developed in relation to the judicial process, is not based solely on the concept of natural justice.  Its development is also referable to the need to maintain confidence in the judicial process.  Thus, the rule as to apprehended bias, when applied outside the judicial system, must take account of the different nature of the body or tribunal whose decision is in issue and the different character of its proceedings.  Moreover – and on this the parties are in substantial agreement – regard must be had to the statutory provisions, if any, applicable to the proceedings in question, the nature of the inquiries to be made and the particular subject matter with which the decision is concerned.’

32                  Assuming this generous interpretation accurately defines the appellant’s allegation of bias in ground two, it is then necessary to consider whether she has clearly proved it.  In this task, she starts with a significant handicap because she has adduced no evidence and must therefore rely solely on the Tribunal’s Decision Record: see SBBF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358 (‘SBBF’) at [16].  Dealing in turn with the complaints I have distilled from her particulars of ground two, first, I do not consider there is any evidence that the Tribunal took sides with the Department or demonstrated a favourable predisposition towards it, either by assuming that the interpretation made of the Departmental interview contained no mistakes, as alleged, or in any way. 

33                  What the Tribunal did quite properly and fairly was: 

(a)                It obtained a translated transcript of the appellant’s Departmental interview. 

(b)               It then identified from that transcript various statements the appellant had made that it considered may be the reason or a part of the reason for it to affirm the decision of the delegate. 

(c)                It then set out the particulars of those statements in its letter to the appellant dated 12 July 2007, including its views as to the inconsistencies that appeared to exist between them and her evidence before it and how it considered those matters may be relevant to its review of the delegate’s decision.  In doing so it was clearly complying with its statutory obligations under s 424A. 

(d)               It then received and assessed the appellant’s response to that letter in which she set out, among other things, her explanations for the inconsistencies it had raised. 

(e)                Finally, it set out in quite some detail in its Decision Record why it rejected the appellant’s explanations and thereby concluded that she was not a reliable, credible and truthful witness. 

34                  In my view, this course of conduct was entirely consistent with the Tribunal’s review role as defined in the Act and does not constitute evidence of some favourable predisposition to the Department.

35                  As to the complaint the Tribunal did not fairly deal with her evidence and claims, this appears to relate to the Tribunal’s treatment of the inconsistencies (or at least some of them) that were detailed in the Tribunal’s letter dated 12 July 2007.  In his decision, the Federal Magistrate has set out a summary of these inconsistencies, and other matters, as follows (at [11] of his Honour’s reasons):

(a)        Inconsistencies with the applicant’s address in China.

(b)       Inconsistencies about staffing arrangements at Taikang and when she stopped working for the organisation.

(c)        Differing accounts of the applicant’s baptism.

(d)       Changes in the applicant’s evidence regarding the number of people arrested at the protest.

(e)        Failure to mention her parents’ Christian beliefs and their opposition to her activities.

(f)        Inconsistencies concerning the drafting publication and the distribution of the pamphlets.

(g)        Implausible aspects of her oral evidence concerning her priest’s escape from arrest, the reasons behind her arrest, detention and how the Shanghai police were able to arrest Ms Shi so quickly.

(h)        Her propensity to fabricate claims and tailor and shift her evidence to achieve her own purpose.

(i)         The determination that photographs and documents the applicant submitted carried no weight. 

36                  As I have noted above (at [12] to [16]), the Federal Magistrate reviewed the Tribunal’s assessment of these matters and numerous other matters raised by the appellant in her written and oral submissions before him and concluded that the Tribunal had based its conclusions on the evidence and had therefore made its adverse credibility findings about the appellant within its fact finding jurisdiction.  In the process, his Honour noted that the complaint the appellant made before him (which is the same as the appellant’s complaint (b) (above) before this Court), about the inconsistency relating to Mr Lin’s stay in hospital, did not form a part of the Tribunal’s ‘Findings and Reasons’ for reaching the adverse credibility finding against the appellant (see [25] of his Honour’s reasons).  As to the Tribunal’s rejection of the photograph (which is the same as complaint (e) (above) before this Court), the Federal Magistrate concluded that the relative weight the Tribunal assigned to any piece of evidence was a matter for it alone and was not a matter that was subject to “re-evaluation” in an application for judicial review (see [34]).  In my view, the Federal Magistrate was quite correct in reaching these conclusions.  It follows that I consider there is no merit in the appellant’s complaint that the Tribunal did not fairly deal with the evidence and claims.

37                  There can be no doubt that the task of making findings of fact, including findings as to credibility and weight to be given to the various items of evidence before it, falls squarely within the fact finding jurisdiction of the Tribunal: see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1 at [67] per McHugh J; Abebe v The Commonwealth  (1999) 197 CLR 510 at 197; [1999] HCA 14 and Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 552 and 559 per O’Connor, Branson and Marshall JJ.  For this reason, there is a general unwillingness of courts conducting judicial review of this kind to go behind such findings of credibility: see Re Refugee Review Tribunal; Ex Parte Aala (2000) 204 CLR 82 at [4] per Gleeson CJ; [111] – [112] per McHugh J; and [131] per Kirby J; and NAIS v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 470 at [68] per Kirby J.  Thus, even if I were to have reservations about the significance of some of the inconsistencies the Tribunal relied upon to make its adverse creditability finding against the appellant, namely the appellant’s address; the staffing arrangements at the Taikang Company; when she stopped work at the Taikang Company; the number of people arrested at the protest in October 2004; and the drafting, publication and distribution of the petition to have Mr Lin released, provided that the adverse credibility finding was open to the Tribunal on the evidence, as I believe it was (see above), it is not the role of this Court on appeal to set it aside: see Avesta v Minister for Immigration & Multicultural Affairs [2002] FCAFC 121 at [13] – [15]. 

38                  Moreover, even if the Tribunal were wrong in this finding, that error, without more, would not amount to jurisdictional error: see Avesta at [19].  The additional factor necessary for such an error to amount to jurisdictional error, has been variously identified in Full Court decisions as: the Tribunal’s conclusion being inherently improbable or perverse (see Avesta above at [15] cf illogical or unsound reasoning in SBBF (below)), or the Tribunal placing an onus on the appellant to establish that she was truthful, or the Tribunal failing to determine the appellant’s application on the totality of the evidence and the other material available to it (see Kopalapillai above at 555 – 556); or the Tribunal conducting the hearing in an overbearing or intimidating manner (see Re Refugee Review Tribunal; Ex Parte H (2001) 179 ALR 425 at [31]; [2001] HCA 28 at [31] per Gleeson CJ, Gaudron and Gummow JJ and NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 at [115] per Allsop J).  Without one or more of these sorts of additional factors, there is a wide range of errors the Tribunal can make without the error constituting a jurisdictional error, as the Full Court explained in SBBF as follows (at [15]):

‘However, in our judgment those matters cannot result in the appellant’s present appeal succeeding.  Even if it be established that the Tribunal misapplied the law by determining whether the appellant had a well-founded fear of persecution for a Convention reason on the balance of probabilities rather than in the way explained by the High Court in the cases referred to, it is within its jurisdiction to have made such an error:  NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 (Black CJ, Beaumont and von Doussa JJ, Wilcox and French JJ dissenting).  Moreover, even if the Tribunal in reaching its decision reached an illogical conclusion in the way explained above, such an error  also is within the Tribunal’s jurisdiction.  In NAAV, the majority explained that s 474(1) of the Act expanded the jurisdiction of the Tribunal so that it no longer commits jurisdictional error by wrongly identifying or applying the applicable law or by asking itself the wrong question, or by making findings of fact or conclusions of fact in an illogical or erroneous way.  Indeed, even absent s 474(1) of the Act, the Tribunal does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis, or because it adopts unsound or questionable reasoning:  see e.g. per Kenny J in Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at [146].’

Indeed, the Full Court went on to explain that in practical terms a decision of the Tribunal may only be set aside by this Court if it does not represent “an honest attempt to deal with the subject matter provided to the Tribunal and to act pursuant to the powers of the Tribunal”: see SAAF at [16].

39                  In my view, in this appeal, there is no evidence of any of the sorts of additional factors described above; nor is there any evidence that the Tribunal has not made an honest attempt to discharge its functions in accordance with the provisions of the Act, such that any error made by the Tribunal in reaching its adverse credibility finding (if such an error existed) could amount to a jurisdictional error, so that this Court could, or should intervene.   

40                  For these reasons, I do not consider the appellant has clearly proved that the Tribunal displayed apprehended bias as alleged in ground two.  It follows that I do not consider that the Federal Magistrate erred in rejecting the similar allegation made before him.

CONCLUSION

41                  For all these reasons, I therefore order that this appeal be dismissed.  I will hear the parties on the question of costs.

Associate:

Dated:         4 September 2008