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SZNMD & Anor v Minister for Immigration & Anor [2009] FMCA 889 (14 September 2009)

Last Updated: 15 September 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNMD & ANOR v MINISTER FOR IMMIGRATION & ANOR

MIGRATION – Review of decision of Refugee Review Tribunal – applicants seeking impermissible merits review – Tribunal considered all claims and integers – findings open to Tribunal on what was before it – Tribunal complied with s.425 – Tribunal put information to applicants pursuant to s.424A – information fell within exceptions contained in s.424A(3) – delegate’s decision not reviewable by the Court – no evidence of fraud by migration agent – no jurisdictional error – application dismissed.


SZHTI & Anor v Minister for Immigration & Anor [2006] FMCA 41
SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 702
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225
NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Randhawa v Minister for Immigration and Ethnic Affairs [1994] FCA 1253; [1994] FCA 1253; (1994) 52 FCR 437
Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at 578
Re Ruddock & Anor; Ex parte Applicant 154/2002 (2003) 201 ALR 437; [2003] HCA 60
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1
WAJS v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 139
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; [2000] HCA 1; 74 ALJR 405
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547
W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703; [2001] FCA 679
Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61
SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62
SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35
Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162; [2005] HCA 24
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26

First Applicant:

Second Applicant:
SZNMD

SZNPZ

First Respondent:
MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:
REFUGEE REVIEW TRIBUNAL

File Number:
SYG 893 of 2009

Judgment of:
Nicholls FM

Hearing date:
13 July 2009

Date of Last Submission:
27 August 2009

Delivered at:
Sydney

Delivered on:
14 September 2009

REPRESENTATION

Appearing for the Applicants:
In person

Solicitors for the Applicants:
Nil

Counsel for the Respondents:
Ms Mitchelmore

Solicitors for the Respondents:
Sparke Helmore

ORDERS

(1) The application made on 17 April 2009 is dismissed.
(2) The applicants pay the first respondent’s costs set in the amount of $5,865.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 893 of 2009

SZNMD

First Applicant


SZNPZ
Second Applicant


And


MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent


REASONS FOR JUDGMENT

  1. This is an application made under the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 8 January 2009, which affirmed the decision of a delegate of the first respondent to refuse protection visas to the applicants.

Background

  1. The applicants are husband and wife, who are nationals of the People’s Republic of China (“China”). They arrived in Australia on 3 August 2007, and applied for protection visas on 15 August 2007. (See Court Book – “CB” at CB 1 to CB 37.) The applicant husband (“the applicant”) made claims to be a refugee in his own right. The applicant wife applied as a member of his family unit, and did not make her own claims to be a refugee (CB 25).

Applicant’s Claims to Protection

  1. The applicant’s claims were set out in a statement, bearing Chinese characters, which included English translations underneath each paragraph. (See CB 31 to CB 37.)
  2. The applicant’s claims to protection in Australia were said to derive from his involvement in his local family church, which was an “unregistered church” (Christian) in China. The applicant claimed that the Chinese authorities did not recognise local family churches, including the one in which he was involved.
  3. He claimed that in June 2003, and August 2006, officers from the Fuqing Public Security Bureau (“PSB”) arrested and detained him, along with other worshippers from his church. On both occasions, he claimed, he was detained for fifteen days. After his release from detention on the second occasion, he was visited by PSB offices at his home on a regular basis and questioned. In spite of this, he persisted with his church activities. The applicant’s wife’s sister (who is a permanent resident of Australia) invited the applicants to visit her in Australia and they departed China in August 2007.
  4. In support of his application, the applicant provided four certificates said to be from the PSB, relating to the occasions of his detention and subsequent release (CB 38 to CB 41).
  5. During the process of the application for a protection visa, the applicant nominated a “Mr Pei Ling Zheng” as a person authorised to act for him and to receive communications on his behalf (CB 30).

The Delegate

  1. By letter dated 28 March 2008 (CB 44 to CB 45), and sent to the applicant’s representative, as his authorised recipient, the delegate sought the applicant’s comments in relation to the following:
    1. That:
      • “The claims made by [the applicant] are very similar, and in some respects identical, to those made by over 90 other clients that have appointed you as their authorised recipient. These claims are also similar or identical to many other clients which you have previously represented or assisted.”

(The letter goes on to provide particulars.) It also notes that:

“The extent of the similarity of the claims is considered improbable and casts doubts on the credibility of [the applicant’s] claims.”
  1. That:
  2. That:
  3. The letter also raised concerns that a search of available country information failed to find any record of the arrest and detention of Christians in Fujian province in recent years, and that this was said to be a matter which cast further doubt on the applicant’s claims.

9. The applicant responded by letter dated 14 April 2008 (CB 46 to CB 47). The delegate rejected the application for protection visas (CB 49 to CB 66). The delegate found that she had “serious concerns about the credibility of the applicant and the veracity of the claims that he has made” (CB 63.1). The delegate gave reasons for this, which arose from the matters upon which the delegate had given notice to the applicant in writing. The delegate also relied on available country information (CB 63 to CB 64).

  1. The delegate did not accept the applicant’s factual basis for his claims to have been persecuted in the past, and did not accept that there was a real chance that he would be persecuted in the future if he were to return to China. The application was therefore refused in relation to the applicant. In relation to the applicant wife, the delegate found that she did not meet the requisite criterion for the grant of a protection visa because she was not married to a person who had been granted a protection visa, and she had not made claims in her own right (CB 66).

The Tribunal

  1. The applicant applied for review on 1 September 2008 (CB 67 to CB 70). The applicants were again represented by Pei Ling Zheng, now described as being from “Century Migration & Translating Service Australia”. The address is the same address as that provided by Pei Ling Zheng to the Minister’s department. In an attached statement (CB 71) the adviser states that he had assisted the applicant with the English translation of the statement attached to his protection visa application, and sought to amend a “small error in the translation of the statement”.
  2. The applicants also provided copies of a number of previous Tribunal decisions relating to persons from China who had claimed persecution on religious grounds, and in respect of whom various Tribunal members had made favourable decisions (CB 78 to CB 108).
  3. By letter dated 8 September 2008, the applicants were invited to attend a hearing scheduled for 14 October 2008 (CB 112). This was subsequently rescheduled to 21 October 2008 at the request of the applicants’ adviser to suit his convenience (CB 116). The applicants attended the hearing on that date, as did their representative (CB 119).
  4. Following the hearing, by letter dated 18 November 2008, the Tribunal wrote to the applicants, seeking comments on information which it said would be (subject to any comments or response from the applicants) the reason, or part of the reason, for affirming the decision under review (CB 130 to CB 135).
  5. The particulars were said to be:
    1. Information obtained from the Australian Department of Foreign Affairs and Trade (“DFAT”), and from an academic at the University of Melbourne, to the effect that the discharge certificates provided by the applicant in relation to the claimed incidents of detention in China did not comply with known standards in relation to such certificates.
    2. A report from the relevant document examination area of the Minister’s department, which was to the effect that the documents did not contain the security features normally found in secure commercially produced paper, and that the documents were printed using desktop printers. Both this, and item 1, were said to cast doubt on the applicant’s claims, particularly in light of his insistence at the hearing that the documents were genuine.
    3. Advice received from the Minister’s department to the effect that during a joint investigation between the department and the Australian Federal Police, in relation to the applicants’ agent, certain “blank Chinese certificates” were found on his computer, which could again “cast doubt” on the authenticity of the documents provided by the applicant. The Tribunal specifically raised with the applicant that this also may cause the Tribunal to doubt his credibility generally, given that he had maintained at the hearing that the documents were in fact genuine, and specifically that the Tribunal may doubt the credibility of his factual claim in relation to his claimed religious beliefs, practices, and activities, and whether he faced a real chance of persecution in China in the foreseeable future for any Convention reason.
    4. Country information available to the Tribunal that the Fujian province, unlike some other Chinese provinces, had adopted a liberal attitude towards local churches and that there was little in the available country information to indicate that persons with the profile of the applicants before the Tribunal were targeted and subjected to serious harm.
    5. Inconsistent evidence in relation to his employment that the applicant had given in his application form for a protection visa, and that which he had given at the hearing before the Tribunal.
    6. Information that the applicant gave in his protection visa application, which was to the effect that he had not previously held a passport to the one which he used to travel to Australia, as compared to information found upon a closer examination of the passport, which indicated that it replaced an earlier passport. The Tribunal also informed the applicant that this information may show that he had not been candid about his personal history, including about whether he had travelled out of China in the past, and may also cause the Tribunal to doubt his credibility generally, and in particular, to doubt the truth of his specific factual claims as to what had occurred in China.
    7. The statement lodged with his protection visa application was “identical to paragraphs which appear in statements of other applicants.” The Tribunal noted, first, that this would tend to suggest that the applicant had copied these paragraphs, and that it cast doubt on the credibility of his evidence given at the hearing that the statement was a record of his own words, and that any similarity with other applicants was because they had similar experiences in Fujian. Second, that if the Tribunal were to find that the statement had been partly copied from other statements, and that it did not reflect the applicant’s own words, it may be less inclined to accept other claims made in his statement, including that he was a practising Christian, and that he had a well-founded fear of persecution on this basis.
  6. The applicant responded to the Tribunal by letter received by the Tribunal on 5 December 2008 (CB 143 to CB 145).
  7. The Tribunal affirmed the delegate’s decision. The Tribunal rejected the applicant’s claims because it made adverse findings about his credibility:
  8. Specifically, the Tribunal found:
    1. In relation to the applicant’s occupation in China ([65] to [73]), that his evidence to the Tribunal (that he had been working exclusively for the local church between 2002 and 2007) was inconsistent with the statement that he had made in support of his application for a visitor’s visa, in which he had stated that he was the manager of a restaurant, and that it was also inconsistent with what was relevantly in his application for a protection visa. The Tribunal rejected the applicant’s explanations advanced for this inconsistency. It was therefore not satisfied that he had been a church worker since 2002. (See, in particular, [73] at CB 175.)
    2. In relation to the applicant’s passport, the Tribunal did not accept his explanation as to why he had said in his protection visa application that he had not previously been granted a passport, when the passport on which the applicant travelled to Australia, indicated to the contrary. The Tribunal did not accept that the applicant could have made a mistake when he answered the question in the negative. The Tribunal reasoned that the applicant had instead sought to conceal the fact that he had previously been issued with a passport, as the issue of two passports tended to diminish, or undermine, his claim to have been persecuted by the authorities ([74] to [76] at CB 175).
    3. In relation to the applicant’s account of his claimed persecution, the Tribunal found this to be implausible and difficult to reconcile. The Tribunal found it difficult to reconcile the applicant’s evidence that he was arrested and detained in July 2003, that he then had to exercise extreme caution, and that after his second period of detention PSB officers visited his house regularly for questioning, with his evidence that he was able to undertake church work three times a week without any action being taken against him in the period between July 2003 and August 2006, or the period after his release from the second occasion of detention. The Tribunal found his evidence to be improbable in this regard, particularly in relation to his release from the second occasion of detention. The Tribunal gave reasons (particularly at [81]) for reaching this conclusion, and noted that this finding: “diminishes his credibility as a witness on the subject of his activities in the church and the persecution he claims to have suffered and generally.”
    4. The Tribunal also noted that the claims made by the applicant are similar, and in some respects identical, to claims made by other applicants. The Tribunal noted that the use of “standard paragraphs on generic topics” did not diminish the applicant’s credibility, but that his credibility was diminished when he insisted that all the paragraphs were his own words ([82] at CB 176).
    5. The Tribunal found at [83]:
      • “The cumulative effect of these concerns has left the Tribunal unsatisfied of the truth of the applicant’s claims including his claim to be a Christian, to have been persecuted for being a Christian and to fear persecution as a Christian.”
    6. The Tribunal noted a number of deficiencies in relation to the detention documents provided by the applicant to the delegate, the report of the Document Examination Unit, other relevant information, the form and content of the custody related documents, the information from DFAT, and the information from the university academic ([84] to [90]), but it ultimately decided to affirm the delegate’s decision “independently of the custody related documents”. (See [91] and as it relates to what it set out at [83].)
  9. In all, therefore, the Tribunal affirmed the delegate’s decision because it found that it could not be satisfied that the applicant had a well-founded fear of persecution because of its rejection of the basis of the applicant’s factual account in relation to what he said had occurred in China for the reasons that it set out at paragraphs 65 to 83 in its decision record.
  10. To the extent that the applicant claimed to have practiced Christianity in Australia, the Tribunal disregarded such conduct pursuant to s.91R(3) of the Act.
  11. The Tribunal also affirmed the delegate’s decision in relation to the applicant wife on the basis that she could not meet the relevant alternative criterion in s.36(2)(b). That is, that she was not a member of the family unit of a person who had been granted a protection visa.

The Application to the Court

  1. The application to the Court sets out the following grounds:

Before the Court

  1. When the applicant appeared at the first Court date in this matter on 20 May 2009, it was noted that he resided in Melbourne. The applicant insisted that his matter be heard in Sydney because he said that he “trusted the system in Sydney”, and that it was “fair”. The applicant also applied to participate in the Court’s RRT Legal Advice Scheme.
  2. When the matter came on for final hearing the applicant appeared in person. He was assisted by an interpreter in the Mandarin language. The applicant wife did not appear. The applicant stated that she was content for him to represent their interests before the Court. Ms A Mitchelmore appeared for the first respondent. Written submissions were also filed on behalf of first respondent.
  3. The applicant sought an adjournment on the basis that the panel lawyer who had been appointed to provide advice had not been able to listen to the audio recording of the hearing before the Tribunal, and had therefore been unable to provide advice to him.
  4. Ms Mitchelmore opposed the adjournment. She submitted that the mere fact that the panel lawyer had not had an opportunity to listen to an audio tape of the Tribunal hearing is not a sufficient reason to grant an adjournment. She relied on SZHTI & Anor v Minister for Immigration & Anor [2006] FMCA 41, and on appeal SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 702 per Giles J (“SZHTI”). See, in particular, [4]:
  5. In the circumstances of the current case, it appears that the applicant had received some advice, albeit incomplete advice. Consistent with what was said in SZHTI, I refused the request for an adjournment. The hearing continued. But orders were made giving the applicant the opportunity to file and serve any further evidence by way of the transcript of the Tribunal hearing, and for the applicants to file and serve any written submissions. Leave was granted to the first respondent to subsequently file and serve any evidence in response, and to file and serve any further submissions in reply.
  6. Following the hearing, a document headed “Amended Application” was received from the applicants. (Although, I note that in the body of the document, the applicants referred to the document as being in the nature of “submissions”.) The “submissions” raise four issues. It is not apparent as to whether they are meant to be particulars to the grounds of the application, or additional grounds, and will therefore be dealt with separately below.

Consideration

Ground One

  1. Ground one in the application asserts that the applicant cannot go back to China because he would be persecuted by the Chinese government.
  2. As Ms Mitchelmore submitted, this ground does not assert jurisdictional error on the part of the Tribunal, but rather seeks that this Court engage in impermissible merits review of the findings and ultimate conclusion the Tribunal (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259).

Ground Two

  1. The second ground asserts that jurisdictional error has been made. At best, this appears to be particularised by the assertion that the Tribunal considered the case “unfairely” [sic] and doubted his claims “without substantive evidence”.
  2. The relevant statutory scheme (ss.65 and 36(2) of the Act) requires the Tribunal to reach a requisite level of satisfaction as to the criterion set out, relevantly, in s.36(2). That is, effectively, that the applicant meets the definition of “refugee” as set out in the UN Refugees Convention, such that in these circumstances a protection visa must be granted (SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15] to [16], NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 at [4] to [5], Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73).
  3. In doing this, the Tribunal is not required to uncritically accept any, or all, of the applicant’s claims. Nor is it required to find evidence to “disprove” an applicant’s claims (Randhawa v Minister for Immigration and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 at 451).
  4. Further, as has often been said, the proceedings before the Tribunal are not adversarial – they are inquisitorial. Ultimately, it was for the applicant to put forward any evidence or material that he wished the Tribunal to take into account in support of his claims. It was for the Tribunal to decide whether the claims were made out. (See Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at 578 ([187]) per Gummow and Hayne JJ and Re Ruddock & Anor; Ex parte Applicant 154/2002 (2003) 201 ALR 437; [2003] HCA 60 at [57] per Gummow and Heydon JJ.)
  5. It is the case that the Tribunal must consider all claims made by an applicant and each integer of those claims (Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184, NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1.)
  6. But it is also the case that the Tribunal is not required to make out an applicant’s case. Nor does the Tribunal need to have such evidence before it, whether substantive or otherwise, that positively undermines the applicant’s claims in order to reject them as implausible (WAJS v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 139 at [17] per Wilcox, Marshall and Jacobson JJ).
  7. In reviewing the delegate’s decision, the task of the Tribunal is to consider all claims, and all aspects of those claims, made by an applicant, to give the applicant the opportunity, in the appropriate circumstances, to be heard at a hearing, and to evaluate such claims, evidence, and information as it has before it. On the material before the Court in the current case, the Tribunal complied with these requirements, and made findings that were open to it on the material before it. The Tribunal’s findings as to the adverse credibility of the applicant, and in the presentation of his claims, was a finding of fact made within jurisdiction (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; 74 ALJR 405).
  8. If it is simply that the applicants are aggrieved by the outcome of the Tribunal’s review, then this amounts to a request for impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).
  9. This Court does not have jurisdiction to determine whether the Tribunal’s decision was “fair”. The Tribunal is required to provide fairness in the procedures that it employs and applies. But as to the outcome, it is, as the High Court said in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [25], the case that procedural fairness requires a “fair hearing not a fair outcome” (with reference also to Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35 to 36 per Brennan J).
  10. On what is before the Court the Tribunal’s findings were findings of fact made within jurisdiction. These were findings of fact “par excellence” (Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405 at [67], per McHugh J). The Tribunal gave cogent reasons for its findings which were open to it on what was before it (Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547 at 558 to 559, W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703; [2001] FCA 679 at [64] to [69] per Tamberlin and Nicholson JJ).
  11. I cannot see that the Tribunal has fallen into error as appears to be asserted in ground two.

Grounds Two and Three

  1. The complaint in ground two that the Tribunal considered the applicant’s case “unfairely” must also be read in conjunction with ground three, which asserts a denial of procedural fairness.
  2. This is a case to which s.422B of the Act applies. This provides that Division 4 of Part 7 is taken to be an exhaustive statement of the natural justice hearing rule in relation to the matters that it deals with (absent bias) (Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 at [59] to [67], SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [8], SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35 at [48], and Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83).
  3. The applicant provides no particulars whatsoever as to why he says that he was denied procedural fairness, or why it is that the Tribunal acted unfairly.
  4. On the material before the Court, it is quite clear that the applicants were invited to attend a hearing. On the only evidence available to the Court (that is, the Tribunal’s own account of what occurred) it is quite clear that the Tribunal’s rejection of the applicant’s factual account of what he said had occurred in China – the determinative issue that disposed of the review – was a live issue during the course of the hearing. The Tribunal put a number of its concerns to the applicant at the hearing in this regard, complying with the procedural fairness requirements in relation to s.425, as set out by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63. (See, in particular, at [30], [31], [39] to [41], [43], [45], [53] to [58], and in relation to the applicant wife, see in particular, [50].)
  5. Following the hearing, the Tribunal wrote to the applicants, inviting them to comment on certain information, which it said would be the reason, or part of the reason, for affirming the decision under review. Clearly, the letter was sent pursuant to s.424A of the Act. The fact that it was sent after the hearing does not reveal jurisdictional error (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162; [2005] HCA 24 at [71], [154] and [202]. See also SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 at [13]).
  6. Further, I note that some of the items of information fell within the exceptions contained in s.424A(3) from the obligations set out in s.424A(1). For example, the general country information relied on by the Tribunal, being non in personam information, falls within the exception contained in s.424A(3)(a). Further, information provided by the applicant for the purposes of the review similarly falls within the exception contained in s.424A(3)(b), as does written information provided by the applicant in connection with his protection visa application (s.424A(3)(ba)).
  7. In any event, there is no error in the Tribunal writing to the applicants, seeking their comments on information that would otherwise not be subject to the obligation of s.424A(1).
  8. In the current case the Tribunal was required to put certain information to the applicant pursuant to s.424A(1) – in particular, information in his visitor visa application, which was not provided in connection to the protection visa application, and information in relation to other protection visa applications held by the Tribunal, which were said to contain “identical” paragraphs.
  9. In all, however, I cannot see that the applicant has been denied procedural fairness, or that the Tribunal treated, and considered, his case unfairly. The applicant was clearly on notice as to the determinative issues and relevant information, in relation to which the Tribunal took an adverse view as to his claims to fear persecution in China. Ultimately, as the High Court said, the Tribunal’s obligation in relation to procedural fairness requires a “fair hearing, not a fair outcome” (SZBEL – see [25]). In all, ground three (and to the extent that fairness is raised in ground two) does not assist the applicants now.

The Applicant’s Written “Submissions”

  1. The first issue raised in the applicant’s subsequent “submissions” complains about what is said to be the delegate’s, and the Tribunal’s, refusal of the respective applications on the basis of the view that the “custody related documents” provided by the applicant were false. The applicants claim that the evidence relied on by both the delegate and the Tribunal was incomplete, and that there was bias.
  2. To the extent that the applicants seek to complain about the delegate’s decision, this is a “primary decision”, as defined in s.476 of the Act. That is, it is reviewable under Part 7 of the Act, and in fact, has been so reviewed. This Court, therefore, has no jurisdiction in relation to that decision.
  3. In relation to the Tribunal, the applicant’s submission misrepresents what the Tribunal has actually done in the current case. The Tribunal did not refuse the application (that is, affirm the decision under review) on the basis of the ease with which one may obtain falsified documents in China, or that the applicant’s documents were said to be different from the usual form of such documents.
  4. Any plain reading of the Tribunal’s decision record reveals that the Tribunal decided to affirm the delegate’s decision “independently of the custody related documents”. (See [91] at CB 179.) That is, that the reason for affirming the decision under review was the adverse view that the Tribunal took of the credibility of the applicant’s claims, with the cumulative effect of its concerns, leaving it unsatisfied as to the truth of the applicant’s claims in relation to him being a Christian, and in relation to what was said to have occurred in China. (See, in particular, [83], and [64] to [82].)
  5. This complaint does not assist the applicants in showing jurisdictional error on the part of the Tribunal.
  6. Item two in the submissions relates to the inconsistency found by the Tribunal in the applicant’s evidence as to his occupation in China. To the extent that the applicant now seeks to provide an explanation for such an inconsistency, this Court is unable to substitute its own factual findings for those of the Tribunal.
  7. The applicant was given the opportunity to explain this inconsistency at the hearing. (See [65] to [67].) Further, this matter was specifically raised by the Tribunal with the applicant in its subsequent letter to him. (See item 6 at CB 132, and item 7 at CB 133.)
  8. The applicant has already provided his explanation, both at the hearing, and in his response to the Tribunal’s letter. (See CB 144.)
  9. That the Tribunal did not find the applicant’s explanations to be persuasive, and found that the applicant had made inconsistent statements in relation to his relevant employment, are findings of fact made by the Tribunal within the exercise of its jurisdiction, and for which the Tribunal gave considered reasons. This complaint does not assist the applicants.
  10. Item 3 in the applicants’ submissions seeks to explain the inconsistency in the applicant’s evidence about whether he had been issued with a passport by the Chinese authorities previously to the one which he used to travel to Australia. The applicant seeks to explain that he had told his migration agent that he had been granted a passport in the past but that the agent did not “mention” this in the application for the protection visa.
  11. This, again, is an attempt now to challenge the factual findings made by the Tribunal. This issue was raised at the hearing by the Tribunal (see [52]), and the applicant was given the opportunity to explain the inconsistency, both at the hearing, and subsequently in response to the Tribunal’s letter. (See item 8 in the Tribunal’s letter at CB 133, and the applicant’s response at CB 145.) In his written response the applicant states:
  12. The applicant now seeks to assert that this was an inexplicable mistake made by his agent, not made by him.
  13. Whatever the applicant may seek to submit now, he was given the opportunity to address this apparent inconsistency, and it was clearly open to the Tribunal, on what was before it, not to accept his explanation provided at the time. (See [74] to [76] at CB 175.) This complaint also does not assist the applicants now.
  14. By way of item 4 in the applicant’s submission, the assertion is made that the applicants’ migration agent was involved in “severe fraud”. The applicants point to similar claims made by other applicants, who had also engaged this migration agent. The applicants now seek to submit that it was because of the fraud of the migration agent that led to the “reduction” of the credibility of his claims.
  15. This allegation, of course, in light of what the High Court said in SZFDE v Minister for Immigration [2007] HCA 35; (2007) 81 ALJR 1401, if proven, could give rise to jurisdictional error on the part of the Tribunal, in that its processes may have been vitiated by fraud on the part of the migration agent.
  16. The difficulty for the applicants now is that no evidence whatsoever has been provided to this Court of any fraud on the part of the migration agent. This allegation is raised for the first time by way of these submissions. It must be remembered that the applicants were given time, following the final hearing in this matter, to file any evidence, as well as submissions, after being provided with the opportunity to obtain further legal advice from the lawyer on the panel of the Court’s legal advice scheme. The applicants were given four weeks for this purpose.
  17. No evidence whatsoever has been provided to this Court in support of this allegation. I can only agree with Ms Mitchelmore’s subsequent submissions that, not only is this allegation made for the first time at this late time, and is it unsupported by evidence, but there is no evidence of such nature before the Court, as might provide a basis for the Court to be satisfied that the requisite standard applicable to allegations of fraud could be proved on that basis.
  18. It must also be noted, from the material before the Court, that while the Tribunal was plainly concerned with the similarity between the applicant’s written claims, and other claims made in other applications by applicants with the same migration agent, this alone does not amount to evidence of fraud on behalf of the migration agent. For example, it is possible (as the Tribunal itself allowed) that the agent may have “used standard paragraphs on generic topics” ([82] at CB 176). The mere similarity, and even the use of (in some respects) identical words, does not of itself establish fraud, given that there are other possible and plausible explanations for the use of common words appropriately across a number of similar applications.
  19. Significantly, however, what the applicant now appears to have also overlooked is that when this issue was raised with him squarely at the hearing with the Tribunal, he gave evidence, under oath, to the Tribunal (CB 119 and [30] to [32] of the Tribunal’s decision record) to the effect that: “He confirmed that everything in his statement was his words and he did not take any part of it from anyone else ... He maintained that all the words in his statement were all his own words.” Further, by his response to the Tribunal’s letter of 1 December 2008, the applicant said relevantly (CB 171):
  20. It was the applicant’s insistence that the similar and identical words were his own that led the Tribunal to, in part, doubt his credibility – not the fact of any similarity. (See [82] at CB 176.)
  21. It must be said that it is of some concern that the applicant, despite having had the opportunity to obtain legal advice, now makes a submission that contradicts evidence that he gave under oath to the Tribunal.
  22. In any event, this complaint does not assist the applicants now because it is unsupported by any evidence of fraud by the applicants’ migration agent, despite opportunity by the applicant to put such evidence before the Court.

Conclusion

  1. For the applicants to succeed before this Court, the Court would need to discern jurisdictional error (at least) on the part of the Tribunal. No such error is evident, either by way of the grounds in the application, nor the issues raised by the applicants in subsequent submissions, nor otherwise. For this reason, the application is dismissed.

I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Nicholls FM


Associate: C Darcy


Date: 14 September 2009

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