FEDERAL CIRCUIT COURT OF AUSTRALIA
WZATD & ANOR v MINISTER FOR IMMIGRATION & ANOR	[2014] FCCA 611	

Catchwords: 
MIGRATION – Judicial review – Refugee Review Tribunal – Chinese de facto partners – whether female partner has well-founded fear of persecution – political opinion – actions of authorities and local government in China –compulsory acquisition of business and property – fish store and fish farm – whether failure to properly consider claim or integer of claim – benefit of doubt on claim where proof difficult – whether claim to be assessed on basis that possibly true – whether serious harm – whether real risk of significant harm – whether correct test applied to determine whether real risk of significant harm – whether unfair hearing – whether bias – whether jurisdictional error.	

Legislation:
Constitution (Cth), s.75(v)
Evidence Act 1995 (Cth), s.60(1)
Migration Act 1958 (Cth), ss.5(1), 36(2)(a), (2)(aa) and (2A), 91R(2)(a), 474, 476	

Ahamed v Minister for Immigration & Anor [2010] FMCA 566
Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 221 CLR 1; [2004] HCA 62 
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184
Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26
Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802
Minister for Immigration & Citizenship v SZNPG & Anor (2010) 115 ALD 303; [2010] FCAFC 51
Minister for Immigration & Citizenship v SZNVW & Anor (2010) 183 FCR 575; [2010] FCAFC 41
Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
Minister for Immigration & Multicultural Affairs v Rajalingam & Ors (1999) 93 FCR 220; [1999] FCA 719
MZXIV v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2006] FMCA 1454
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241
Plaintiff M61/2010E & Anor v Commonwealth of Australia & Ors (2010) 243 CLR 319; [2010] HCA 41
Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 124 ALR 265
Re Refugee Review Tribunal & Anor; Ex parte H & Anor (2001) 179 ALR 425; [2001] HCA 28 
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1
SAAZ v Minister for Immigration & Multicultural Affairs [2002] FCA 791 
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668
Singh v Minister for Immigration & Anor [2012] FMCA 707
SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195
SZGJY v Minister for Immigration & Multicultural Affairs [2007] FCA 380 
SZRRY v Minister for Immigration & Anor [2013] FMCA 189 
SZSGA v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCA 774
SZSHK v Minister for Immigration & Border Protection & Anor (2013) 138 ALD 26; [2013] FCAFC 125
SZJAO v Minister for Immigration & Anor [2007] FMCA 1102
VFAB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 102; [2003] FCA 872 
WABC of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 286	

First Applicant:	WZATD	

Second Applicant:	WZATE	

First Respondent:	Minister for Immigration & Border Protection	

Second Respondent:	Refugee Review Tribunal	

File Number:	PEG 211 of 2013	

Judgment of:	Judge Antoni Lucev	

Hearing date:	26 March 2014	

Date of Last Submission:	26 March 2014	

Delivered at:	Perth	

Delivered on:	28 May 2014	

REPRESENTATION
For the First Applicant:	In person	

For the Second Applicant:	In person	

Counsel for the First Respondent:	Mr B Dube	

Solicitors for the First Respondent:	Sparke Helmore	

For the Second Respondent:	Submitting appearance, save as to costs.	

ORDERS
(1)	That the application be dismissed.

(1)	
FEDERAL CIRCUIT COURT 
OF AUSTRALIA 
AT Perth	
PEG 211 of 2013
WZATD	
First Applicant

WZATe	
Second Applicant

And

Minister for Immigration & Border Protection	
First Respondent
Refugee Review Tribunal	
Second Respondent

REASONS FOR JUDGMENT
Introduction
1.	The first and second applicants seek judicial review under s.476 of the Migration Act 1958 (Cth) of a decision of the second respondent, the Refugee Review Tribunal. The Tribunal affirmed a decision of a delegate of the first respondent, the Minister for Immigration & Border Protection, to refuse to grant a Protection (Class XA) visa to each of the Applicants.
Applicants’ claims
2.	The Primary Applicant and Dependent Applicant are de facto partners and citizens of China. The Primary Applicant arrived in Australia on 7 December 2007 on a student visa and lodged a Protection Visa application on 7 October 2011. Only the Primary Applicant made refugee claims. The Dependent Applicant applied for a Protection Visa as a member of the Primary Applicant’s family unit.
3.	In relation to events in China, the Primary Applicant claimed, in a personal statement attached to her application for a Protection Visa:
a)	that in July 2007 the Primary Applicant and her father were arrested, detained and charged after complaining about the decision of the local government to acquire her parents’ fish store without adequate compensation, and that both the Primary Applicant and her father were beaten by other prisoners at the behest of the police whilst detained for 3 days and 15 days respectively;
b)	that the Primary Applicant’s family were unable to seek further compensation through the petition system or the courts because lawyers were unwilling to assist them to take action against the local government;
c)	that in June 2011 the Primary Applicant’s parents visited the provincial government, which irritated the local government, which then ceased the operation of the Primary Applicant’s parents’ fish farm leaving them with no income;
d)	to fear harm from the local government and Chinese authorities because of her and her parents’ political opinions namely, opposition to the local government’s decision to compulsorily acquire her parents’ businesses without adequate compensation; and
e)	that the Primary Applicant’s parents continued to protest the decisions to high levels of government.
4.	In relation to events in Australia, the Primary Applicant’s Personal Statement claims that:
a)	she met her boyfriend, the Dependent Applicant, in Australia;
b)	in April 2011 she found that she was pregnant; and
c)	up until that time, that is April 2011, she did not know that she could apply for refugee status until one of her friends told her that she satisfied the requirements for refugee status because she had a well-founded fear of persecution if she returned to China.
5.	On 24 January 2012 the Primary Applicant gave birth to a son, of whom the Dependant Applicant is the father.
The Delegate’s Decision
6.	The Delegate’s Decision made on 23 March 2012 was to refuse to grant each of the Applicants a Protection Visa.
Tribunal proceedings and Tribunal Decision
Application for review and invitation to Tribunal hearing
7.	On 16 April 2012 the Primary Applicant lodged with the Tribunal an application for review of the Delegate’s Decision. On 19 June 2012, the Applicants were invited to attend a hearing scheduled for 20 July 2012 to give evidence and present arguments relating to the issues under review.
Tribunal hearing
8.	On 20 July 2012, the Applicants attended the hearing in person and were assisted by a Mandarin interpreter. The hearing was adjourned. 
9.	The Primary Applicant made further claims at the Tribunal hearing on 20 July 2012 that:
a)	her father was injured whilst in detention;
b)	her liberty was restricted by police after her release from detention and she would be forced to attend re-education classes if she returned to China;
c)	“She [the Primary Applicant] grew up in an environment where males are favoured over females, this will happen to her child [the First Child] too”; and
d)	she would be unable to pay the social compensation fee for household registration or raise the Child because she lacked the capacity to earn a living.
10.	On 23 July 2012 the Applicants were invited to attend a resumed hearing scheduled for 6 August 2012. The Applicants attended the resumed hearing in person and were again assisted by a Mandarin interpreter. At the resumed Tribunal hearing on 6 August 2012, the Primary Applicant claimed that the police made her sign an agreement allowing her to go to Australia if she did not disclose information about what had happened to her family.
Tribunal Decision
11.	The Tribunal Decision was made on 8 August 2013.
12.	In its “Consideration of Claims and Evidence” the Tribunal:
a)	accepted that applicants for refugee status faced particular problems of proof, and that if the Tribunal makes an adverse finding, but an adverse finding without confidence, it must proceed to assess the claim on the basis that it might possibly be true, but that the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant, nor to have rebutting evidence available to it before it can make a particular factual finding;
b)	was mindful that both applicants had a vocational level of education, and of the problems caused by evidence being received in a language other than the first language of the Applicants and through an interpreter, and of the differences in nuance which might arise;
c)	did not accept the Primary Applicant’s explanations for identified inconsistencies in her evidence, and found that her protection claims had changed throughout her application;
d)	found that the Primary Applicant was not a credible witness and had fabricated her claims for protection; 
e)	in support of comprehensive adverse credibility findings, identified a number of difficulties and deficiencies in the Primary Applicant’s evidence, finding for example, that:
i)	the Primary Applicant’s responses to questions at both hearings were “vague” and “evasive”; 
ii)	there were “substantial and material” inconsistencies, variations and other anomalies in the Primary Applicant’s written evidence, evidence provided to the Delegate, oral evidence at the Tribunal hearings and evidence provided in support of her Student Visa application;
f)	took issue with the Primary Applicant’s evidence at the Tribunal hearings that she had difficulties obtaining her passport, as this was inconsistent with evidence that she was detained on 17 July 2007 but that her passport had been issued three months previously in April 2007. The Tribunal found this was “strong evidence” that the Primary Applicant had fabricated her claims;
g)	noted that the Primary Applicant’s evidence about her Student Visa application:
	… changed from she prepared the application itself with documents she confirmed were correct, to she and her father prepared it, to she only helped at the beginning [and] her father did everything at the end, to all she did was go one time to the police station, to the application was prepared by an agent using fraudulently prepared documents.
h)	rejected an explanation given by the Primary Applicant that her father prepared the fraudulent documents out of fear that she would face further persecution, and did so because of her evidence that she began applying or indeed did apply for the Student Visa prior to her “detention”, and the Tribunal considered that inconsistency to be further evidence that the Primary Applicant fabricated her claims;
i)	in relation to a claim that the Primary Applicant had to go to the police station as part of her Student Visa application to prepare her resume with her fingerprints, considered her evidence to be implausible. The Tribunal noted that the Primary Applicant’s evidence was inconsistent as to her going to the police station in June 2007 before her detention in July 2007, and that the Primary Applicant:
	… made up answers less and less plausible in response to the Tribunal’s questions in an unsuccessful attempt to explain earlier implausibilities and those attempted explanations are inconsistent … with her [evidence] given at her earlier hearing. She attempted to explain how the police knew she was applying for a student visa by making the new claim that she had been followed and her freedom restricted. She then further tried to explain the new claim by stating that she went to an office of the Department of Immigration in her home town, but no such office exists. … She then sought to resile from that evidence stating that it was not an Australian government office. That her visiting any office is inconsistent with her earlier evidence and she only attended the police station once as part of her student visa application. The Tribunal considers the inconsistencies and implausibilities in her evidence are because she has fabricated her claims.
j)	in relation to the alleged agreement that the Primary Applicant was forced to sign by the Police, asked whether or not the Police could simply have prevented her from leaving, and the Primary Applicant said that they could not prevent her from departing China, to which the Tribunal noted that the Chinese authorities could prevent her from leaving China by cancelling her passport. The Primary Applicant’s response to this was to say that “she had nothing further to say and the Tribunal did not believe her”, and the Tribunal went on to find that the Primary Applicant’s evidence concerning her entering into the agreement was implausible and further evidence that she had fabricated her claims;
k)	noted that the Primary Applicant gave inconsistent reasons for applying for the Student Visa, ranging, initially, from the fact that she wanted to study overseas to obtain a better future, to a fear of the Chinese government which she said did not put the interests of the people first, and also because she had been detained for three days. The latter was only mentioned after the Primary Applicant had been asked three times for her reason for applying for the Student Visa, and the Tribunal came to the view, based on her first mentioned answer that she was seeking a better future as a reason for departing China, that that was the genuine intention for her departing China for Australia rather than fear of detention by, or fear of, the Chinese government;
l)	noted various inconsistencies in letters written by the Primary Applicant to the local Chinese authorities, and also noted that no harm had come to her brother, and considered that to be further evidence that the Primary Applicant did not face a risk of harm if she returned to China and as further evidence that she had fabricated her claims, and also noted certain implausibilities that it said existed in relation to her internet searches in relation to her parents’ protests on Chinese websites;
m)	noted inconsistencies that it said existed in relation to the reporting by the Primary Applicant of injuries said to have been sustained by the Primary Applicant’s father whilst in detention in China, and considered the inconsistencies to be another example of the Primary Applicant fabricating her claim;
n)	placed no weight on the Dependent Applicant’s evidence because he was not an “eyewitness” to the claimed events;
o)	found that the Primary Applicant’s “significant delay” in lodging a Protection Visa application after arriving in Australia in December 2007 indicated that she did not genuinely fear persecution in China, and was not persuaded by the Primary Applicant’s explanation for the delay, namely that as the holder of a Student Visa she was unaware that she could apply for refugee status, and that she did not seek advice because she was not working and could not afford to pay a migration agent for assistance. That explanation prompted the Tribunal to inquire as to why the Primary Applicant had money to pay a migration agent in August 2011 at a time when she had said her parents had no income following the seizure of the fish farm, to which the Primary Applicant said “she did not think about it”. The Tribunal was not persuaded by her explanation as to a lack of knowledge about applying for a Protection Visa, and noted that her evidence about being unable to pay a migration agent was contradictory to her earlier evidence, and found that it further supported its findings that she had fabricated her claims;
p)	noted that no documentation was provided as to the Primary Applicant’s parents owning any property, or of any notices relating to compulsory acquisition or compensation in relation to that property, or of the Primary Applicant’s parents’ complaints concerning the acquisition of their property;
q)	did not give weight to any of the documents the Primary Applicant provided in support of her claims on the basis of:
i)	her admission that her “father arranged for the agent to create those document because he [the father] wanted the “Primary [A]pplicant] to get the student visa to be safe”, and that fraudulent documents had therefore been provided in support of her Student Visa application; and
ii)	accepted Independent Country Information which indicated that document fraud was prevalent in China, and whilst accepting the existence of the “detention notice” referred to in the Delegate’s Decision (but not sighted by the Tribunal) it did not give the “detention notice” weight because of the prevalence of document fraud in China; and
r)	in light of its adverse credibility findings, did not accept the Primary Applicant’s various claims and found that the Primary Applicant had fabricated her claims to have suffered past harm, and did not accept on the “limited evidence” before it that she would be of interest to the Chinese authorities for the claimed reasons, and was therefore not satisfied that she faced a real chance of serious harm in the foreseeable future if she returned to China, and therefore did not have a well-founded fear of persecution for any Convention reason, either now or in the reasonably foreseeable future, if she were returned to China.
13.	The Tribunal noted that the First Child was not included in the Protection Visa application, but nevertheless considered whether the Primary Applicant would suffer harm because of the claims relating to the First Child. The Tribunal found, on the basis of accepted ICI, that payment of a social compensation fee (in this case for a child born out of wedlock) occurred under a law of general application designed to achieve an appropriate and adapted legitimate state purpose. The Tribunal rejected the Primary Applicant’s claim that she would be unable to pay the fee, and did so because she was not a credible witness, finding that she had “greatly exaggerated” her inability to pay the fee. The Tribunal further found that payment of the fee would not cause the Primary Applicant undue hardship, and it was “reasonable” to obtain household registration for the First Child. The Tribunal also relied on ICI that indicated the Primary Applicant would pay a lower fee as she could obtain registration as a rural householder and would be able to pay in instalments. The Tribunal did not accept on the available evidence that the Applicants would not receive financial support from their families, and found that the Dependent Applicant would be able to work whilst the Primary Applicant cared for the First Child.
14.	The Tribunal found that:
a)	the Primary Applicant’s claims to fear persecution because males were favoured over females in her hometown lacked particulars, and was not satisfied that the claimed harm amounted to persecution; and
b)	the Primary Applicant’s evidence that her parents arranged for her to study overseas undermined her claim.
15.	For the above reasons, the Tribunal was not satisfied that the Primary Applicant had a well-founded fear of persecution for any Convention reason if she returned to China.
16.	In relation to complementary protection findings, the Tribunal was not satisfied that the payment of the social registration fee amounted to significant harm “for the same reasons” that it found that the claim did not amount to persecution, namely that:
a)	it was applied under a “law of general application”;
b)	the Primary Applicant had exaggerated her inability to pay the fee; and
c)	it would not cause the Primary Applicant undue hardship.
17.	The Tribunal was also not satisfied that the Primary Applicant would suffer significant harm because in her home town males were favoured, because the Primary Applicant “provided only vague detail of this claim”.
18.	The Tribunal found that there were no substantial grounds for believing that as a necessary and foreseeable consequence of the Applicants being removed from Australia to China that there was a real risk that the Applicants would suffer significant harm.
19.	The Tribunal was not satisfied that overall there were substantial grounds for believing that the Primary Applicant faced a real risk of significant harm as defined in s.5(1) of the Migration Act.
Application for judicial review
20.	The Applicants filed an application for judicial review in this Court on 30 August 2013. A Registrar of the Court made orders and directions on 2 October 2013 permitting the Applicants to file and serve an amended application or any affidavit evidence by 20 November 2013, and written submissions 14 days prior to the hearing. No amended application, affidavits or submissions were filed.
21.	At the hearing of the judicial review application the Primary Applicant made submissions that:
a)	her parents were very poor farmers and received unfair treatment at the hands of the Chinese authorities and she was very sad about that, and she is unable to assist them; and
b)	she now has significant links to Australia because she has two children who were born here (a child being born subsequently to the First Child), and she does not want the children and herself to be uprooted and go back to China.
22.	Asked to address the grounds of the application for judicial review the Primary Applicant said that:
a)	her parents had had their land taken off them and had not been adequately reimbursed, and she did not think that the Tribunal considered that matter; and
b)	her parents were repressed by the Chinese authorities, and therefore the Primary Applicant wanted the Court to let her children and her family stay in Australia, because she was very scared of going back to China and of the things that happened to her parents happening to her also.
23.	The Dependent Applicant made a submission about the pressure that the Primary Applicant was under at the time of the Tribunal hearing, and said that it was quite a long hearing, going for about four or five hours, and notwithstanding that breaks were given, it was difficult for the Primary Applicant and she was under significant pressure, and that it could have been mental pressure. The Dependent Applicant said that it was baseless to assert that the Primary Applicant was deliberately trying to deceive the Tribunal.
24.	Apart from the submission made with respect to the Tribunal allegedly not considering the fact that the Primary Applicant’s parents had had their land taken off them and not been adequately reimbursed, none of the Primary Applicant’s submissions went to the grounds of the application for judicial review. The Dependent Applicant did make submissions with respect to the issue of the pressure that the Primary Applicant was allegedly under at the Tribunal hearing. In that regard, it is worth noting that the Tribunal hearing lasted no longer than two and half hours, and if the time for which the Mandarin interpreter was utilised is indicative of the length of the Tribunal hearing (which it must be given that the Applicants required an interpreter) the hearing was one hour and nineteen minutes long, and possibly slightly shorter given that it appears that the interpreter started at 3.05pm, but the hearing itself commenced at 3.15pm.
25.	The other noteworthy matter is that the Applicants now have two children, but at the time of the Tribunal hearing only the First Child had been born. The Court observes that the First Child is a male according to the evidence before the Tribunal. The Court further observes that it is not apparent that the Tribunal realised this in assessing the Applicants submissions, and particularly those submissions which argued that the Primary Applicant claimed to fear persecution because males were favoured over females in her home town, and that she was concerned that this would “happen to her child too”. Although that claim was rejected, if the First Child is a male (which is the only conclusion open on the evidence before the Tribunal) then the submission was hopeless as it related to the First Child. There is no evidence as to the sex of the Second Child, but that is irrelevant for present purposes given that the Second Child appears to have been born after the Tribunal Decision which is under review.
26.	The application for judicial review contains five grounds of review. Each ground is set out and dealt with separately hereunder.
Ground 1
27.	Ground 1 is as follows:
	1.	Australia is a party to the Refugees Convention and has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. In my case, I am in fear of being persecuted by the Chinese government, outside my home country and unwilling to return to it, which makes me qualified as a refugee by Article 1A(2). Both the Tribunal and the Department ignored my refugee status (Decision Record, para.43).
28.	The Applicants claim that the Tribunal and the Department ignored the Primary Applicant’s refugee status. Whether the Department ignored the Primary Applicant’s status is irrelevant as the Court is tasked with reviewing the Tribunal Decision not the Delegate’s Decision.
29.	Insofar as this ground of review asserts that the Tribunal ignored the Primary Applicant’s refugee status that claim might be interpreted as a failure to consider an integer of the claim or a misunderstanding of, and failure to deal with the case presented to, the Tribunal thereby founding an error of the kind referred to in Dranichnikov v Minister for Immigration & Multicultural Affairs or Htun v Minister for Immigration & Multicultural Affairs.
30.	In Dranichnikov the High Court found error founding relief under s.75(v) of the Constitution in circumstances where:
a)	the Refugee Review Tribunal misunderstood, and failed to deal with, the case presented to it, by reason of Mr Dranichnikov being a member of a special group, not just of Russian business people, but of Russian business people involved in public protest against state sanctioned corruption and violence;
b)	the failure to respond to a substantial, clearly articulated argument relying upon established facts was a failure to accord natural justice; and
c)	a failure to respond to a substantial, clearly articulated argument relying upon established facts was also a constructive failure to exercise jurisdiction.
31.	The High Court said that failures of the type identified above entitled a court exercising jurisdiction under s.75(v) of the Constitution to consider exercising the discretion to grant relief.
32.	In Htun the Federal Court observed, in the context of claims made with respect to an application for a protection visa, that:
	To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on.
33.	Even where a claim is not necessarily articulated expressly in oral submissions at a hearing before the decision-maker, the “clarity of … expression of … fear in … [an] application for review and the existence of objective material put forward … to support … [a claim]” means that there is an extant claim.
34.	What is required of the decision-maker was described in practical terms by the then Federal Magistrates Court in MZXIV v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) as the decision-maker “embark[ing] on the process of actually fixing its mind upon the applicant’s claims” and of “a specific consideration of the claim”.
35.	The failure to expressly deal with a claim must also be considered in the context of what was said by the Full Court of the Federal Court in Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs, namely that:
	The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
36.	Assuming a Dranichnikov or Htun type claim has been made in this case it cannot succeed. The Tribunal set out and explained its understanding of each of the claims made by the Applicants. Having thus identified each of the claims, the Tribunal then considered each claim. This included the claims specifically referred to at hearing in relation to acquisition of, and compensation for, the parents’ property and businesses. The Tribunal found that the property and businesses were not compulsorily acquired by the Chinese authorities. The Tribunal did so comprehensively and in considerable detail in its “Consideration of Claims and Evidence” which are summarised above, and in which it rejected the factual foundations for the claims made by the Primary Applicant because of its findings concerning the Primary Applicant’s credibility. Taken together with the Tribunal’s findings as to the Primary Applicant’s credibility (as to which see the discussion in relation to ground 2 below), it cannot be said that the Tribunal did not fix its mind upon or consider the Primary Applicant’s claims.
37.	For the above reasons ground 1 has not been made out.
Ground 2
38.	Ground 2 is as follows:
	2.	The Tribunal must first make findings of fact on the claims the applicant has made, when determining whether the applicant is entitled to protection under s. 36(2)(a) or (aa) of the Migration Act. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. Because of the complex situation that my family was persecuted and controlled by the Chinese authority, I have difficulties of proof for refugee status, ie. The process of my passport application. Accordingly, The benefit of the doubt should be given to me but the Tribunal failed to do it (Decision Record, para.22a, 22b).
39.	The Applicants are undoubtedly correct to argue that an applicant ought to be afforded the benefit of the doubt as to evidentiary inconsistencies where they are “generally credible”. The difficulty for that assertion by the Applicants in this matter is that the Tribunal determined, in decisive and emphatic terms, that the Primary Applicant was not credible and that the claims made by the Primary Applicant were in fact fabricated.
40.	The Tribunal was under no obligation to uncritically accept all or any of the allegations made by the Primary Applicant. The Tribunal’s conclusion that the Primary Applicant was not credible and had fabricated her claims were findings of fact that were open to it on the available material for the reasons given by the Tribunal, particularly so where the Primary Applicant admitted that false documentation was submitted in support of her Student Visa application, and where her evidence was otherwise found by the Tribunal to be riddled with inconsistencies. Factual findings as to credibility are exclusively for the Tribunal to make. Similarly, the Tribunal’s choice and assessment of ICI which it relied upon was a factual matter for it to determine. The Court cannot review the merits of the Tribunal Decision.
41.	In the above circumstances, the Tribunal did not err by not giving the Primary Applicant the benefit of the doubt in relation to her evidence. In the Tribunal’s view there was clearly no such doubt to give.
42.	The fact that, as persons applying for refugee status, the Applicants had “difficulties of proof” was a matter expressly recognised in the Tribunal Decision. The Tribunal cannot be said to have been ignorant of, or to have ignored, the difficulties of proof that might have faced the Applicants. That the Tribunal was otherwise mindful of the issue is evident from a later reference in the Tribunal Decision to the Applicants not being obliged to provide any evidence of the property owned by the Primary Applicant’s parents and the compulsory acquisition of that property by the Chinese authorities.
43.	In the circumstances, no error arises by reason of any issues associated with the Tribunal’s consideration of any “difficulties of proof” which might have affected the Applicants.
44.	For the above reasons ground 2 has not been made out.
Ground 3
45.	Ground 3 is as follows:
	3.	The Tribunal made unfair decision in my case. If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam 1999) 93 FCR 220). Although the Chinese government did not stop me from the airport, it does not mean the government has no interest on me (Decision Records, para.22d). Neither did the Tribunal nor I have any clue about the detailed mode of operation to persecute people by the Chinese government.
46.	The Tribunal’s findings demonstrate that it had no real doubt about its findings as to the past and possible future persecution of the applicant. The findings by the Tribunal, which were, as indicated above, open on the evidence, were decisive and emphatic, and founded on an adverse view of the Primary Applicant’s credibility. The Tribunal in this case arrived at an “evaluative conclusion” based on the information before it. That is not a state of uncertainty, but a certain conclusion, based on the information put before the Tribunal. Thus, this was not a case where the Tribunal was required, in considering whether the applicant had a well-founded fear of persecution for a Convention reason, to consider whether its findings or conclusions might be wrong.
47.	For the above reasons ground 3 has not been made out.
Ground 4
48.	Ground 4 is as follows:
	4.	The Tribunal ignored the persecution I fear, which involves serious harm to me. The serious harm is reflected from the persecution suffered by my family, because of the protesting activities. This serious harm matches the criteria in Subsection 91i(2) that “a threat to the person’s life or liberty”. Thus, the Tribunal failed to make proper decision in the testing of real risk of significant harm.
49.	The claim that the Tribunal “ignored the persecution” cannot be made out. As set out above in relation to ground 1 the Tribunal considered, comprehensively and in detail, each claim made by the Primary Applicant, but rejected them based on its findings as to the credibility of the Primary Applicant. In particular, the “serious harm … from the persecution suffered by my family, because of the protesting activities” referred to in ground 4 was:
a)	specifically set out by the Tribunal as to the claims made with respect to:
i)	letters written by the Primary Applicant for her parents which were sent to the authorities concerning compensation for land acquisition;
ii)	the Primary Applicant’s father’s petitioning of local government;
iii)	the possibility of the Primary Applicant suffering harm because of her parents’ protesting; and
iv)	assistance by the Primary Applicant to her parents with respect to research undertaken concerning her parents’ protests to higher levels of government;
b)	the subject of information put by the Tribunal to the Primary Applicant, in the form of ICI, regarding the existence of land disputes in China; and
c)	a claim rejected by the Tribunal in relation to whether the Primary Applicant is likely to suffer serious harm in the foreseeable future for a Convention reason if returned to China, in relation to which the Tribunal found that because the Primary Applicant was not a credible witness, the Tribunal rejected the claim that she would be a person of interest to the Chinese authorities “due to her or her parents’ political opinion of opposition to the local authorities decision to compulsory [sic] acquire without adequate compensation her parents’ businesses” and the applicant did not therefore have a well-founded fear of persecution for any Convention reason now, or in the reasonably foreseeable future if returned to China.
50.	In summarising its reasons for rejecting the Primary Applicant’s Convention related claims the Tribunal found that:
a)	the property and businesses of the Primary Applicant’s family were not compulsorily acquired; and
b)	the Primary Applicant did not face a real chance of persecution by the Chinese police or any other Chinese government authorities because of her or her family’s political opinion, or for any other Convention reason.
51.	The above matters relate to claims for Convention reasons under s.36(2)(a) of the Migration Act, and for the reasons set out above, those claims are not made out in relation to ground 4.
52.	It is however arguable that ground 4 goes beyond a claim with respect to alleged well-founded fear of persecution for a Convention reason. The last sentence of ground 4 speaks of a real risk of significant harm, and although arguably inextricably intertwined with the Convention reasons by the use of “Thus” at the commencement of the sentence, it otherwise uses the language of the complementary protection provisions in s.36(2)(aa) of the Migration Act which provides that a criterion for the grant of a visa is that the Minister be “satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm”.
53.	Ground 4 therefore arguably raises a complementary protection claim by alleging that a proper decision was not made in relation to the testing of a real risk of significant harm by the Tribunal. The phrase “significant harm” is defined in s.36(2)A of the Migration Act as follows:
	A non-citizen will suffer significant harm if:
	                     (a)  the non-citizen will be arbitrarily deprived of his or her life; or
	                     (b)  the death penalty will be carried out on the non-citizen; or
	                     (c)  the non-citizen will be subjected to torture; or
	                     (d)  the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
	                     (e)  the non-citizen will be subjected to degrading treatment or punishment.
54.	The application of the complementary protection provisions was considered by the Tribunal. The Tribunal’s consideration of these matters under the heading “Real risk of significant harm” is relatively short, as follows:
	39.	The Tribunal has also considered the application of s.36(2)(aa) to the first named applicant’s circumstances. In making its findings the Tribunal has considered the Complementary Protection Guidelines as required by Ministerial Direction No.56, made under s.499 of the Act. The Tribunal notes the explanation of the ‘risk threshold’ in the Complementary Protection Guidelines, however, in considering s.36(2)(aa) it has proceeded on the basis that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable in the context of assessment of the Refugee Convention definition following the Full Federal Court decision in MIAC v SZQRB [2013] FCAFC 33.
	40.	The Tribunal has found above it is not satisfied the paying the social registration fee to obtain a household registration for their child amounts to persecution. For the same reasons, that payment of the fee is a law of general application, the applicants have exaggerated their inability to pay the fee and that amount of the fee and the ability to pay in instalments mean it will not cause them undue hardship, the Tribunal too is not satisfied payment of the social compensation fee amounts to any of the forms of significant harm as defined in s.5(1).
	41.	In relation to the first named applicant’s further claim she will suffer significant harm because boys are favoured over girls in her hometown and that because this happened to her, it will happen to her child. The Tribunal has found above it is not satisfied the harm claimed amounts to persecution. For the same reason that the first named applicant provided only vague detail of this claim, the Tribunal is not satisfied what the first named applicant fears is any of the forms of significant harm as defined in s.5(1).
	42.	On the basis of the Tribunal’s findings set out above, the Tribunal considers there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to China there is a real risk any of the applicants will suffer significant harm, in the form of: arbitrary depravation of life; the death penalty being carried out; torture; cruel or inhuman treatment or punishment, or degrading treatment or punishment. Therefore the applicants not meet the requirements of s.36(2)(aa).
55.	The correct test has been applied, that is whether there is a real risk of significant harm. Further, as the Full Court of the Federal Court observed in SZSHK:
	We can understand that a claim under the Refugees Convention may fail because, on the facts, harm was suffered but not for a Refugees Convention reason. However, where there is a finding that no harm as claimed was suffered, that finding is relevant to a complementary protection claim, that is, to whether the minister has substantial grounds for believing there is a real risk of significant harm for the purposes of s 36(2)(aa) of the [Migration] Act.
and the Full Court of the Federal Court further notes that:
	In the present case, the assessor specifically addressed the complementary protection claim by reference to the language of the statute and made findings of fact which led to the conclusion that she did not accept the appellant’s claim.
56.	In SZSGA v Minister for Immigration, Multicultural Affairs & Citizenship the Federal Court rejected a contention that a complementary protection claim was bound up in Convention related thinking where the Tribunal specifically addressed the complementary protection claim by reference to the language of the Migration Act and by reference to its particular findings of fact, and:
a)	found that the complementary protection claim could not survive the findings of fact otherwise made; and
b)	rejected a submission that the Tribunal did not apply a real risk or significant harm test or tests because of the references to those tests in the three paragraphs in which the Tribunal had considered the complementary protection claim.
57.	The Tribunal is entitled to rely on its factual findings in relation to Convention reasons to found its conclusions with respect to whether or not there is a real risk of significant harm for the purposes of the complementary protection provisions, where the same or essentially the same factual matters are in contest.
58.	In this case the Tribunal has specifically addressed the complementary protection claim by reference to the language of the statute, that is, a real risk of significant harm, and has made findings of fact which led to the conclusion that the Tribunal did not accept the Applicants’ claims, primarily those of the Primary Applicant in this case. Reliance on its earlier factual findings concerning the Applicants’ Convention related claims was not in error where the same, or essentially the same, factual matters were in contest. As previously set out, findings of fact are matters for the Tribunal, as are matters of credibility leading to findings of fact, and in this regard the findings made by the Tribunal are, for reasons explained above, not erroneous, and are therefore not reviewable by this Court. In the circumstances, therefore, there is no error arising from the Tribunal’s treatment of the complementary protection provisions in relation to the Applicants.
59.	For the above reasons ground 4 has not been made out.
Ground 5
60.	Ground 5 is as follows:
	5.	I am mental weak, the judge continuely interrupted my mind and asked me questions again and again, which made me to be under much pressure. Under such pressure, I said things I did not mean. Moreover, I need to look after my child, though my husband could help, the crying of the child always interrupted my thoughts.
61.	The applicant did not particularise what “things” she said to the Tribunal that she “did not mean”. The Tribunal was entitled to test the Primary Applicant’s claims, and where credibility was in issue, the Tribunal was entitled to test the evidence presented. There is nothing in the Tribunal Decision record which indicates that anything untoward or unusual occurred or that the Tribunal exerted any form of pressure during the hearing process. There is no transcript of the Tribunal Hearing in evidence. In the absence of a transcript the record of proceedings set out in the Tribunal Decision must be considered to be accurate.
62.	There was no medical evidence, indeed no evidence at all, that the Primary Applicant was suffering from any medical or psychological condition that made her susceptible to pressure, and no evidence filed as to what occurred in the Tribunal hearing. As noted above, orders were made which allowed for the Applicants to file further affidavit evidence, and no evidence relevant to this issue (such as a medical report or audio recording of the Tribunal hearing) was filed by the Applicants. The Dependent Applicant did make a submission that he thought that the Primary Applicant was under pressure in the Tribunal hearing, but it was preceded by the erroneous assertion that the Tribunal hearing lasted for four to five hours, when it lasted for no more than two and half hours at most, and may have been as short as one hour and nine minutes. The Dependent Applicant also conceded in his submissions that there were breaks during the Tribunal hearing. The Dependent Applicant’s submissions are not evidence, and in an important respect not accurate, and the Court is not in a position to adopt them or give them any weight. In any event, the fact that the Primary Applicant felt under pressure does not mean, and it has not been demonstrated in this case, that the Tribunal erred in any way, or that the Tribunal Decision was affected by jurisdictional error. Likewise, the assertion that the First Child was crying during the Tribunal hearing does not mean that the Tribunal Decision was affected by jurisdictional error, particularly where there is no evidence of the event or its effect, if any.
63.	To the extent that ground 5 might be said to be a claim of bias, actual or apprehended, there is no substance to such a claim. No inference of bias or prejudgment can be drawn from the mere fact of adverse findings in the Tribunal Decision.
64.	Actual bias can be said to exist where a decision-maker had a pre-existing state of mind which disabled him from undertaking, or rendered him unwilling to undertake, a proper evaluation of the material relevant to the decision to be made. The Applicants have made no attempt to comply with the requirement that an allegation of actual bias be firmly and distinctly made and clearly proven. Ordinarily a party would need to show some conduct on the part of the decision-maker, apart from the decision-maker’s expression of the decision-maker’s reasons, which would indicate that the decision-maker was guilty of pre-judgment or was in any way biased.
65.	The test for apprehended bias in relation to curial proceedings is well-settled. The test is whether a fair-minded lay observer might reasonably apprehend that the Judge might not bring an impartial mind to the resolution of the question to be decided. This rule may be expressed differently when applied to administrative proceedings, in order to take account of the nature of the decision-maker and its proceedings:
	… 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
and:
	Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person 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. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof.
66.	The evidence before the Court does not provide any support for the claim that the Tribunal approached the matter in a biased manner or with a closed mind or did not conduct its review in good faith or did so otherwise unfairly. It cannot be said that the Tribunal did not take a fresh look at the Primary Applicant’s claims or that it prejudged those claims, or that the findings that the Tribunal made were not open to it for the reasons it gave. In those circumstances the hypothetical fair-minded lay observer would find no apprehension of bias on the part of the Tribunal.
67.	In the circumstances no case of bias, or any other form of unfairness is made out. Ground 5 has not been made out.
Conclusions and orders
68.	None of the grounds of review have been made out. There is no jurisdictional error in the Tribunal Decision, and it is a privative clause decision within the meaning of s.474 of the Migration Act. The application must therefore be dismissed, and there will be an order accordingly.
69.	The Court will hear the parties as to costs.
I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev

Associate:  

Date: 28 May 2014