Case: NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 ; (2004) 214 ALR 264
Outcome: cited
When asked to elaborate upon this ground in oral submissions, the Appellant replied, "no comment". Again though, out of considerations of fairness and humanity, it seems to me that with an appellant whose primary language is not English and for whom these processes must seem quite strange, it seems to be preferable to consider this ground on its merits, rather than to treat it in light of the oral submission made as having been abandoned. One finds in the Federal Magistrate's decision at para 17 what in my respectful opinion is an apt summary of principle pertinent to this ground of appeal as given by Moore, Tamberlin and Allsop JJ in NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 ; (2004) 214 ALR 264 at para 115: By and large fact finding is a task within jurisdiction, though factual error is not necessarily mutually exclusive of jurisdictional error Re Minister for Immigration and Multicultural Affairs ex parte Applicant S20 of 2002 198 ALR 9 where fact finding has been conducted in a manner which can be described as here as in substantial respects unreasoned and mere assertion lacking rational or reasoned foundation at times is plainly and ex facie wrong and is selective of material going one way. These conclusions may found a conclusion that the posited fair-minded observer might or indeed would, reasonably apprehend that the conclusions had been reached with a mind not open to persuasion and unable or unwilling to evaluate all the material fairly. How else the fair-minded observer might ask can one explain the largely unreasoned rejection of documents as vague when they plainly were not and it's not saying the appellants were Catholics when expressly or impliedly they did. And how else does one explain not dealing with answers which revealed an apparently detailed knowledge of the Christian religion and the Christian faith when a conclusion is drawn that persons are not Christian based on weighing some answers to questions of less than central importance. The answers to these questions might be that the tribunal lacked an appreciation of the need to weigh all the material. If that were the case, it would itself support a conclusion of jurisdictional error. The answer might also be the lack of an ability or willingness to deal with the material before it with a mind open to persuasion barely evaluating all the material. 14 One sees in the Tribunal's reasons a very comprehensive rehearsal indeed of the basis upon which the Appellant sought a protection visa and of the various statements which he had made both to the department and later to the Tribunal. Having so done, under the heading "Findings and Reasons", one finds in the Tribunal's reasons what seems to me, as it seemed to the Federal Magistrate, a logical and reasoned analysis of the ramifications of particular inconsistencies there detailed by the Tribunal. That analysis culminates in the following paragraphs in the Tribunal's reasons which capture not only the bases of the Appellant's claim for a protection visa but also why the Tribunal concludes that the claim lacks a factual foundation: [83] On the above evidence and for the above reasons, the Tribunal finds that the applicant is not a truthful witness and his statements, both to the Department and the Tribunal, lack credibility. Also for the above reasons, and as the Tribunal has found that the applicant is not credible, the Tribunal also finds that the applicant: was not a member of an underground church, was not involved with Mr Lin in religious activities, was not involved with a Mr Lin, who was or was claimed to be Taiwanese spy by Chinese authorities, did not provide "waste paper" with government stamps to Mr Lin, was not warned by Chinese authorities to not go to bible study meetings, was not advised by Chinese authorities to attend "big church", was not arrested in August 2006, his shop was not searched and closed by police at the end of October 2006, and he did not go into hiding at the end of 2006. 15 Having made these findings, the Tribunal then found: [84] Although the applicant has knowledge of Christianity and may be a Christian, the Tribunal finds that he would not be persecuted in the reasonable foreseeable future if he returns to the Peoples Republic of China for his religious or imputed religious beliefs, as the Tribunal is not satisfied that the applicant is a member of an underground church. Further, for similar reasons, the Tribunal finds that the applicant would not be persecuted in the reasonably foreseeable future if he returned to the Peoples Republic of China, his opinion or imputed political opinion, as the Tribunal is not satisfied that the applicant was involved with Mr Lin, who was or was claimed to be a Taiwanese spy by Chinese authorities or he provided "waste paper" with government stamps to Mr Lin. 18 In SZKLK v Minister For Immigration [2008] FCA 1125 , I had occasion to review various authorities touching upon the administrative law error ground of bias. I shall not repeat what is there stated. One way in which a claim for bias might be made out, in a way which intersects with unreasonableness, is that stated in the passage which I have quoted from in NADH of 2001 . That basis is not made out here. The conclusions reached by the Tribunal are objectively able to be seen as referable to logical consequences of credibility findings reasonably open to the Tribunal. There is not a scintilla of evidence which would support a conclusion of actual bias on the part of the Tribunal. However one approaches the case, the result is nothing more than a consequence of conclusions the Tribunal reached in light of inconsistencies that it found. That result is undoubtedly disappointing to the Appellant, but again, I remind myself that it is no part of my role to descend into the merits of whether the claim should be accepted. There is no error, in my opinion, in the Federal Magistrates rejection of ground 3.