Case: SZLGP v Minister for Immigration &amp; Citizenship [2008] FCA 1198
Outcome: distinguished
appellant submitted that there was no evidentiary basis upon which the Tribunal could have decided that the appellant was not a genuine convert for the reasons that the Tribunal set out in its findings. The appellant submitted that in such circumstances jurisdictional error was established. In support of this submission the appellant relied on SZLGP v Minister for Immigration and Citizenship [2008] FCA 1198. In that case the Court quashed the Tribunal's decision on the basis that the Tribunal's determination was based on illogical or irrational findings or inferences of fact which led the Court to the conclusion that the determination of the Tribunal was "an unreasoned decision". The Court said at par [26]: "Here, the inconsistencies (or rather, omissions) in the first appellant's evidence adverted to by the Tribunal are at most minor or trivial. Further, the Tribunal's reasons disclose no legitimate articulable basis for the finding, based on those omissions, that the first appellant fabricated fundamental aspects of his refugee claims. ..." Those observations are not apposite to the Tribunal's reasoning in this case. The Tribunal formed an adverse view of the credibility of the appellant and it explained by reference to a number of particulars why it had reached that conclusion. The matters to which the Tribunal referred were not, in my view, minor or trivial. True it is that they did not bear directly upon any aspect of the appellant's conversion to, or belief in, Christianity. Nevertheless, they did provide a rational basis upon which it was open for the Tribunal to form a view as to the general credibility of the appellant's evidence. The respondent submitted that there was no proper basis for the appellant's submission that the Federal Magistrate had failed to afford the appellant procedural fairness, given that the Federal Magistrate had listened to the audio tape of the Tribunal hearing and read the transcript prepared by the appellant's representative. I am satisfied that there is no substance in the appellant's submission that the Federal Magistrate failed to afford the appellant procedural fairness. The Federal Magistrate was given the opportunity by the appellant and his representative to listen to the audio recording of the hearing before the Tribunal and to read a written transcript of that hearing in addition to their affidavit evidence as to the conduct of the hearing. The Federal Magistrate found that the transcript and the audio recording did not reveal any improper conduct on the part of the Tribunal and concluded that there would be few passages which could properly be described as a few minutes, as described by the appellant's representative, during which the Tribunal member would have had time to turn her back and not take notes in the manner described by the representative. That finding and conclusion was certainly open to the Federal Magistrate on the material before him. During the course of submissions, I was provided with the audio recording of the Tribunal hearing to which I listened, and the written transcript of the hearing which I read. On the basis of what I heard and read I am satisfied that the Federal Magistrate did not err in his reasoning, findings and conclusion referred to in pars [16] and [17] above.