SZONB v Minister for Immigration & Anor [2011] FMCA 13 (20 January 2011)

Last Updated: 3 May 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZONB v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 13

MIGRATION – Review of a decision of Refugee Review Tribunal – country information contained in Tribunal decision record does not infer that some importance is given to that evidence – previous visa applications made by the applicant was not relevant to claims to fear persecutory harm – dispositive relevance – Tribunal misstated at least a part of the correct Refugees Convention test – Tribunal’s findings were open to it – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.36, 420, 424AA, 424A, 425, 430, 476

Minister for Immigration and Citizenship v SZLFX [2009] HCA 31; [2009] HCA 31; (2009) 238 CLR 507 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 MZXBQ v Minister for Immigration and Citizenship [2008] FCA 319; (2008) 166 FCR 483 SZKLG v Minister for Immigration and Citizenship [2007] FCAFC 198; (2007) 164 FCR 578 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294; (2005) 79 ALJR 1009 SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609; (2007) 81 ALJR 1190 SZMFZ v Minister for Immigration and Citizenship [2008] FCA 1890 SZMPT v Minister for Immigration and Citizenship [2009] FCA 99 SZLPO v Minister for Immigration and Citizenship (No 2) [2009] FCAFC 60; (2009) 177 FCR 29; (2009) 255 ALR 435 SZMNP v Minister for Immigration and Citizenship [2009] FCA 596 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; [2001] HCA 30; (2001) 180 ALR 1; (2001) 75 ALJR 1105 Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559; (1997) 144 ALR 567; (1997) 71 ALJR 743 Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510; (1999) 162 ALR 1; (1999) 73 ALJR 584 VAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 59 Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140 Tickner and Others v Chapman and Others (1995) 57 FCR 451; (1995) 133 ALR 226 Minister for Immigration and Citizenship v Haneef [2007] FCAFC 203; (2007) 163 FCR 414; (2007) 243 ALR 606 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 231 ALR 592; 81 ALJR 515 SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138 Minister for Immigration and Citizenship v SZKTI [2009] HCA 30; (2009) 238 CLR 489; (2009) 258 ALR 434; (2009) 83 ALJR 1017 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27

Applicant:

SZONB

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1475 of 2010

Judgment of:

Nicholls FM

Hearing date:

30 November 2010

Date of Last Submission:

30 November 2010

Delivered at:

Sydney

Delivered on:

20 January 2011

REPRESENTATION

Counsel for the Applicant:

Ms B Tronson

Solicitors for the Applicant:

Fragomen

Counsel for the Respondents:

Mr HPT Bevan

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

(1) The application made on 5 July 2010, and amended on 6 September 2010, is dismissed.
(2) The applicant pay the first respondent’s costs set in the amount of $8,000.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 1475 of 2010

SZONB

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made on 5 July 2010, and amended on 6 September 2010, under s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 31 May 2010, which affirmed the decision of a delegate of the first respondent to refuse a protection visa to the applicant.

Background

2. The applicant is a national of the People’s Republic of China (“China”) who first arrived in Australia on 3 November 1998. He applied for a protection visa over ten years later, on 13 October 2009 (see Court Book – “CB” – CB 1 to CB 53). He was assisted by a registered migration agent (CB 9).

Claims to Protection

3. From 1987 to 1991 the applicant studied in Japan at a language school, and then at a computer college.
4. In his protection visa application, the applicant claimed that he had been involved in: “... anti-Chinese government rallies in Japan over the Tiananmen Square Massacre.” He claimed that on 5 June 1989 he: “... was involved in organising a rally of around 3000 Chinese overseas students in a rally in Shibuya [where] the Japanese press took photographs of the group and put them in the newspaper.” (CB 18.6.)
5. After the protests, the applicant claimed to have become a member of an activist network, where the group would: “... frequently meet up to organise activities to commemorate the massacre at Tiananmen Square, to oppose the Communist Party’s repression of students, and to bring the Chinese government to account.” (CB 18.7.)
6. In 1991 the applicant claimed to have assisted in organising a public speech at the New Tokyo Language School by an exiled Chinese leader who appeared to “raise awareness of the massacre”, and then a rally outside the Chinese Embassy. The applicant claimed that a Chinese Embassy employee said to the protestors that: “... no Chinese student should participate in a political event ...” (CB 18.8). The applicant took this as a threat, and although he decreased his physical presence at political activities, he continued to provide financial support to these political activities.
7. On 1 July 1991 the applicant applied unsuccessfully for refugee status in Japan (CB 22 and CB 56).
8. On 3 November 1998 the applicant first arrived in Australia (CB 72). Since this time the applicant travelled unhindered between China and Australia on two occasions, 10 November 1998 and 8 May 1999 (CB 28 to CB 29, CB 72).
9. The applicant claimed that around 1999 he was interviewed by the “local community committee” in China in regard to any political activity that he may have been involved in while overseas. The applicant said that he lied about his activities in Japan. However he suspected that the Chinese government was aware of his political activities (CB 56).
10. The applicant claimed to have felt unsafe in China and said that he paid some people involved in the “Student Movement” to arrange for him to come to Australia. The applicant said that he was given: “... a package of documents which included a ticket and the visa to come to Australia. The package included false documents relating to a business that I was purported to manage.” (CB 56.8.)

The Delegate

11. The applicant was subsequently invited to attend an interview with the Minister’s delegate on 31 December 2009 (CB 58 to CB 59). This interview was then rescheduled for 23 December 2009 (CB 60). He attended the interview.
12. The delegate was not satisfied that the applicant was a credible witness (CB 72). Nor was there any credible evidence available to corroborate the claimed events (CB 72). The delegate was willing to give the applicant the benefit of the doubt and accept that the applicant may have engaged in some of the claimed activities while he was a student in Japan (CB 72).
13. However the delegate questioned why the applicant voluntarily returned to China on two occasions after arriving in Australia if the applicant felt that he would be persecuted by Chinese authorities. The applicant said that each visit was not for political reasons (from which he intended to retire). He stated that: “... if he did not participate in any pro-democracy activities in China again, he would not face possible persecution from the authorities.” (CB 72.7.)
14. But the applicant also stated that he and his family were regularly contacted by “Tiananmen Square Protests”, and that if he were to return to China he would be asked to make public speeches about his previous political involvement, in which case “... his strong political opinion would compel him to participate in these activities and consequently, he would face harm inflicted by the Chinese authorities.” (CB 72.9.)
15. The delegate found the “applicant’s explanation very implausible and far-fetched”. Further the delegate was “... unable to accept that a
    10-year delay in his Protection visa application is consistent with that of a person who genuinely fears persecution...” (CB 73.5).
16. The delegate considered country information (CB 73 to CB 74) to reject the applicant’s claims that the treatment towards dissidents had worsened. As the applicant vocalised an intention to retire from his political activities, and did not have a political profile, the delegate was satisfied that applicant would not suffer persecution from the Chinese authorities (CB 74).
17. On 24 December 2009 the delegate refused the application (CB 63 to CB 75).
18. On 21 January 2010 the Department of Immigration and Citizenship (“the Department”) received notice that a decision record had not been included with the letter of refusal from the Department to the applicant (CB 76). On 21 January 2010, the Department sent its decision record via registered post (CB 77 to CB 90).

The Tribunal

19. The applicant applied to the Tribunal for review of the delegate’s decision on 21 January 2010 (CB 91 to CB 94). The Tribunal invited the applicant to appear before it on 11 March 2010 (CB 96). The applicant attended the hearing and gave evidence ([24] at CB 125).
20. At the hearing the Tribunal received a copy of the applicant’s passport, which it noted had expired in May 2004 ([62] at CB 133). The Tribunal did not receive any corroborative evidence from the applicant ([69] at CB 135). The Tribunal referred to evidence from a wide variety of sources ([23] at CB 122 to CB 125).
21. It is clear from the Tribunal’s decision record that it held concerns over the applicant’s reasons as to why he sought protection, noting that the applicant intended to “retire” from political activity if he were to return to China, and also the applicant’s lifestyle in Australia ([40] at CB 128 to [55] at CB 132).
22. The Tribunal did not accept that the applicant engaged in the claimed activities in Japan, including organising an exiled Chinese leader to publicly speak in Japan. This was because nine months after the claimed events the applicant departed Japan and returned to China without incident. If the applicant was “blacklisted” by the Chinese government, as was claimed, the Tribunal believed that the applicant would have been “... placed on an alert list and therefore arrested on his return to China.” ([65] at CB 134, [66] at CB 134 to CB 135 and [67] at CB 135. See also [76] at CB 137.) Consequently the Tribunal did not accept that the applicant had applied for protection in Japan in 1991 ([68] to [69] at CB 135).
23. The applicant was unable to corroborate details that he provided on his application form which related to the claim that he received money from members of the “Tiananmen Square Movement”, which the Tribunal held “... undermines the credibility of his application.” ([71] at CB 136.) In addition, the Tribunal rejected that the applicant had been, or would be, contacted by members of the “Tiananmen Square Movement” if he were to return to China ([72] at CB 136).
24. The Tribunal found the applicant at times “... to be evasive when responding to the Tribunal’s questions.” ([64] at CB 134.) Further, the Tribunal found that his voluntary return to China “... without intervention by border authorities undermines the credibility of his claims accordingly...” ([70] at CB 135).
25. The Tribunal noted in its decision record that “... the applicant claimed that the Tribunal had asked him too many questions and that this had caused him to become confused” when it asked the applicant if he wanted to provide additional information. The Tribunal rejected this notion and was satisfied that the applicant was competent to give evidence at the hearing ([80] at CB 138).

Before the Court

26. Ms B Tronson appeared for the applicant. Mr H P T Bevan appeared for the first respondent.
27. The applicant pleads five grounds by way of amended application made on 6 September 2010. In addition to the Court Book, I took into evidence the affidavit of Pam Challoner, an Administrative Assistant, which annexed a transcript of the Tribunal hearing (“T”) (no objection).
28. In response to a Notice to Produce, the Minister provided a bundle of documents which were subsequently marked as the applicant’s exhibits (“AE1” and “AE2”). The documents related to media articles in Japan, and the applicant’s Australian visa application history.

Consideration - Ground One

29. Ground one (with particulars) asserts that:
    • “The Tribunal breached s 424A of the [Migration] Act and thus made a jurisdictional error.”
      • a. In its reasons for decision, the Tribunal referred to information about a visit made to Japan by Wu’er Kaixi in 1991.
      • b. This was information which the Tribunal must have considered would be part of the reason for affirming the decision under review.
      • c. The Tribunal did not comply with s 424A of the Act in respect of that information.”
30. In its decision record, prior to setting out its account of the hearing with the applicant, the Tribunal referred to various information said to be “Evidence from other sources”. ([23] at CB 122 to CB 125.)
31. Included in this was the following involving a Chinese dissident leader, Wu’er Kaixi (CB 123.2):
    • “There were no reports found of Wu’er Kaixi making a speech at the New Tokyo Language School in Japan during 1991. Mr Wu’er Kaixi, a well-known Chinese student dissident leader who fled China and travelled the world after the Tiananmen Square events, was in Japan from the 13-18 December 1989. The purpose of his visit was to help establish a Japanese branch of the Federation for Democracy in China (FDC), a body intended to advocate against the one-party state in China. A FDC branch was formally established at the time following Kaixi’s meeting at a Tokyo hotel with approximately 200 other Chinese activists.”
    • [Footnotes omitted.]
32. Part of the applicant’s claim to fear persecutory harm if he were to return to China was that in 1991 he participated in organising for this dissident leader to speak in Japan at the New Tokyo Language School.
33. In its “Findings and Reasons” ([66] at CB 134 to CB 135) the Tribunal dealt with this claim as follows:
    • “The applicant also claimed that he participated during 1991 in organising an exiled Chinese leader named Mr. Wu’er Kaixi to speak at the New Tokyo Language School. The applicant claimed that he provided financial assistance, organised donations and the venue for the speeches and hung up the slogans for their protest activities. After the rally the protesters stormed the Chinese Embassy in Japan and he claimed the Embassy Officials told them not to believe the rumours and to obey the government and students who had engaged in such activities would be identified. The applicant claimed that he perceived the photographs that had been taken by the press were a threat and therefore he ceased his overt activities because he was certain he would be targeted by the Chinese government however he continued to support their activities by providing them with financial support. Independent country information advises that the Chinese government monitors the activities of its citizens on shore and those overseas and in particular those who engage in activities like to undermine the stability of the government. In addition leaders engaged in activities which are likely to undermine the stability of the Chinese government will be punished and will be subject to harsher treatment and longer periods in detention than those who are followers. Therefore based on the applicant’s profile which he describes in detail he would have been identified by the Chinese authorities and
      black-listed and placed on an alert list and therefore arrested on his return to China. Therefore the Tribunal does not accept the applicant’s claims.”
    • [Errors in original.]
34. The applicant’s complaint is that while the Tribunal did not make reference to this particular information in its “Findings and Reasons”, the existence of this reference to this information in its decision record meant that this information must have been “the reason or a part of the reason for affirming the delegate’s decision” (with reference to s.424A(1)(a)).
35. The applicant’s position is that the absence of any explicit reference to this information when the Tribunal came to analyse the applicant’s claims did not overcome the claim that the existence of this information (as referred to in its decision record earlier) allows an inference to be drawn that at some point the Tribunal considered, or had some opinion about, this information (with reference to Minister for Immigration and Citizenship v SZLFX [2009] HCA 31; (2009) 238 CLR 507 at 514, [24] (“SZLFX”)).
36. Ms Tronson developed this argument with reference first to SZLFX at [18], and to footnote (19) to that paragraph.
37. The first limb of this argument is that s.430(1)(d) of the Act requires the Tribunal to set out the evidence on which its findings are based. The fact that it set out this information therefore gives rise to an inference that the Tribunal at least gave some “importance” to this information.
38. The second limb of the argument is that the absence of any reference to this information in its analysis ([66] at CB 134) should be seen in light of the proposition that Tribunal decisions should not be read with an “eye finally attuned to error” (probably a reference to Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”), though no specific authority was cited). I understood this to mean that the relevant parts of the Tribunal’s decision record should be read inferentially, rather than explicitly, to make out the applicant’s argument.
39. The third limb is that what the Tribunal set out at CB 123 (see [31] above) constituted a finding that Wu’er Kaixi did not attend any speech at the New Tokyo Language School. The Tribunal’s subsequent reference (at [66]) to Wu’er Kaixi and its rejection of the applicant’s claim to have organised his speech must be seen as having “imported” in it the earlier reference to Wu’er Kaixi not having attended any speech.
40. Ms Tronson relied on two further authorities. First, MZXBQ v Minister for Immigration & Citizenship [2008] FCA 319; (2008) 166 FCR 483 (“MZXBQ”) for the proposition that Heerey J’s reasoning (at [27] to [28]) supports the argument that a “finding” that Wu’er Kaixi was not in Japan in 1991 was evidence of “dispositive relevance” to the applicant’s claims.
41. Second, SZKLG v Minister for Immigration and Citizenship [2007] FCAFC 198; (2007) 164 FCR 578 (“SZKLG”) for the proposition that the Tribunal’s “consideration” (as referred to in s.424A(1)) should be made in advance of the decision.
42. The applicant complains that s.424A(1) was engaged. Section 424A(1) is in the following terms:
    • “Subject to subsections (2A) and (3), the Tribunal must:
      • (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
      • (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
      • (c) invite the applicant to comment on or respond to it.”
43. The submission was that there is no evidence before the Court that the Tribunal wrote to the applicant pursuant to s.424A(1) (presumably with reference to SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294; (2005) 79 ALJR 1009). Nor, with reference to the transcript (“T”) of the Tribunal hearing put before the Court, was any attempt made to use the facility available to the Tribunal to discharge any obligation pursuant to s.424A by use of s.424AA. (See SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46 at [90].)
44. On this basis therefore the Tribunal fell into jurisdictional error.
45. Mr Bevan helpfully referred to a number of authorities relevant to the consideration of the applicant’s complaint. (See the respondent’s written submissions at [17] to [23].)
46. The starting point for the disposition of this complaint is the direction provided by the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609; (2007) 81 ALJR 1190 (“SZBYR”). The use of the future indicative (“would be”) in s.424A(1) requires focus on a point in time anterior to the making of the decision to determine whether there was “information” that the Tribunal: “... considers would be the reason, or a part of the reason, for affirming the decision that is under review” (SZBYR at [17]).
47. However the High Court has also endorsed the position that the Court may draw inferences from the Tribunal’s decision record as to whether the Tribunal considered any information to be part of the reason for affirming the delegate’s decision. (SZLFX. See also SZMFZ v Minister for Immigration and Citizenship [2008] FCA 1890, SZMPT v Minister for Immigration and Citizenship [2009] FCA 99, and SZLPO v Minister for Immigration and Citizenship (No 2) [2009] FCAFC 60; (2009) 177 FCR 29; (2009) 255 ALR 435.)
48. As was further explained by the Federal Court, the obligation in s.424A(1) is only engaged where the Tribunal can be seen to have formed the “opinion” that certain information would be the reason or a part of the reason for affirming the decision under review (SZKLG at [33]).
49. What is important is the subjective consideration of the Tribunal (“the Tribunal considers”) in the circumstances of each case (SZMNP v Minister for Immigration and Citizenship [2009] FCA 596 at [52] to [53] per Jacobson J).
50. This subjective consideration must have occurred at a time anterior to, and independently of, the Tribunal’s reasoning process (SZKLG at [34]).
51. It is however for the Court to determine on an objective basis, and it must be emphasised that for the purposes of this case that means amongst other things on the evidence presented, whether the Tribunal considered the information to be of “dispositive relevance”. This concept is of course linked to the Refugees Convention related claims put by the applicant before the Tribunal (MZXBQ).
52. The question therefore for the Court is whether, on an objective basis, there is evidence to show that, at some point anterior to the making of the decision, the Tribunal considered that the information at CB 123 would be the reason or a part of the reason for affirming the delegate’s decision.
53. The short answer to the applicant’s complaint is that the state of the evidence before the Court is such that I cannot draw an inference that the information at CB 123 was information that the Tribunal considered would be the reason or a part of the reason for affirming the delegate’s decision.
54. The applicant relies on MZXBQ and the relevant reasoning of Heerey J to argue that the Tribunal’s “finding” (at CB 123) that Wu’er Kaixi was not in Japan in 1991 was evidence of “dispositive relevance” to the applicant’s claim.
55. First, I have great difficulty with the submission that the mere setting out of this country information constitutes a finding made by the Tribunal. It may be evidence on which a finding could have subsequently been made, but the mere setting out of this country information plainly falls within s.430(1)(d), and not s.430(1)(c) of the Act.
56. The applicant’s argument that this information engaged s.424A(1) because it was a finding, or by itself gives rise to an inference that the Tribunal made a finding about Wu’er Kaixi, must be rejected.
57. Second, MZXBQ ultimately does not assist the applicant in the current circumstances. In MZXBQ Heerey J, in considering the matter of “dispositive relevance”, distinguished between information which in itself would undermine the applicant’s claims, which based on the reasoning in SZBYR would enliven the obligation in s.424A(1), and information that went to an applicant’s credibility which would not.
58. What is missing in the applicant’s attack now is the link between this information and what Heerey J plainly drew from the majority judgment in SZBYR at [17]: “... that a court must assess the “information” in question in terms of its dispositive relevance to the Convention claims advanced by the applicant before the Tribunal.” (MZXBQ at [27].)
59. In other words it is not sufficient just to point to certain information, as the applicant has done here. There must be some evidence from which it can be said the Tribunal subjectively engaged with that information such that it considered it to be the reason or a part of the reason for affirming the delegate’s decision.
60. There is no such evidence before the Court. That the Tribunal included such information in its decision record (but not as part of its analysis of the applicant’s claims) is not sufficient to show that at some point anterior to the making of its decision it fell within the ambit of its consideration such as to engage s.424A(1).
61. For example had some mention been made of this information, even in the barest of terms, at the Tribunal hearing then such reference could have formed the basis for the Tribunal to have been said to have considered the information. If it then failed to comply with s.424A(1) or to properly utilise the facility in s.424AA, then jurisdictional error may have been shown.
62. But there is nothing of this in the current case. The transcript reveals no such mention or reference.
63. Further, the applicant’s case also fails because there is no satisfactory explanation of how in the current circumstances the Tribunal can be said to have, or it can be inferred that it did, “... assess the “information” in question in terms of its dispositive relevance to the Convention claims advanced by the applicant before the Tribunal.”
64. Noting of course that the use of the future indicative (“would be”) in s.424A(1) means that, to the extent that regard is had to the decision record, it is not with what the Tribunal actually assessed, but what that assessment can tell the Court about whether there was some anterior point in time where the Tribunal considered such information would be at least a part of the reason for disposing of the applicant’s Convention related claims to fear persecution. That is, the relevance to such disposition.
65. The applicant’s Convention related claim to fear persecutory harm in China was that he engaged in anti-Chinese government activities while he was in Japan and that he came to the attention of the Chinese authorities and was subsequently placed on a “blacklist”.
66. These activities were the engagement in, and organisation of, protests in Japan. He specifically referred to two such events: one in 1989 and the other in 1991. In relation to the event in 1991, as part of this protest he claimed to have organised for Wu’er Kaixi to speak prior to a rally that he and others had organised (see CB 18).
67. The Tribunal dealt with these claims at [65] to [67] and [69] of its decision record (at CB 134 to CB 135). It rejected the applicant’s factual account of relevant events in China and the claim of fear of persecutory harm that was said to arise from them on the basis that the high profile that the applicant claimed for himself on the evidence that he gave to the Tribunal was such that, when viewed in light of country information available to the Tribunal as to the Chinese government’s monitoring of its citizens overseas, and in particular those who engaged in protest activities, would have meant that the applicant would indeed have been placed on a “blacklist” as he claimed, but also that he would then have been arrested on return to China.
68. The applicant’s evidence was that he voluntarily returned to China on a number of occasions and, although questioned at the border on one occasion, was allowed to enter, remain and subsequently depart at all times. The Tribunal saw this as inconsistent with the information before it as to how the Chinese authorities would act, and therefore rejected both the applicant’s factual account and his claimed fear on this basis.
69. While there was mention of Wu’er Kaixi (at [66] at CB 134) it was plainly in context of the Tribunal recounting the applicant’s claims as he had made them. As indeed it recounted in its analysis (at [63] to [79] at CB 133 to CB 137) all the other factual claims made by the applicant before proceeding to analyse them.
70. The applicant’s evidence to the Tribunal, what he gave to the Tribunal for the purposes of the review, what he gave (other than orally) to the Minister’s department in relation to the protection visa application and the country information about the Chinese authorities, is all information exempt from the obligation in s.424A(1). (See s.424A(3)(b), (ba) and (a).)
71. This latter informs, and to a great extent explains, the absence of any evidence, or even reference, or any probative basis to draw an inference that at any anterior point in time (antecedent to the making of its published reasons) the Tribunal considered that the information relating to Wu’er Kaixi was a part of the reason for affirming the delegate’s decision.
72. In submissions Mr Bevan also sought to draw comfort for the Minister’s case from the structure of the Tribunal’s decision record.
73. The country information is set out in a part of the decision record (at [23] at CB 122 to CB 125) preceding the Tribunal’s account of the hearing (at [24] at CB 125). Mr Bevan submitted that an inference can therefore be drawn that this information was available to the Tribunal prior to the hearing.
74. At the hearing the applicant himself raised the matter of Wu’er Kaixi’s visit to Japan and the rally that he was said to have participated in. (See in particular T13.2 and more generally T13 to T14.) Yet the Tribunal remained silent on the question of when Wu’er Kaixi was in Japan and whether or not he gave the speech the applicant said he did.
75. Whether the information now relied upon by the applicant was in fact before the Tribunal before the hearing, or after, does not in my view alter the fact that there is no real basis for the assertion that the Tribunal considered this information to be a part of the reason for affirming the delegate’s decision.
76. The transcript of the hearing provides no such basis. The Tribunal’s published reasons, which after all is what the applicant relies on entirely now in support of ground one, provides the basis for a contrary inference to that prayed for by the applicant. There is nothing to show that this information was of “dispositive relevance” to the applicant’s claims as advanced by him, in the sense explained by Heerey J (MZXBQ).
77. In submissions the applicant put that, with reference to [66] (at CB 134) of the Tribunal’s decision record, the Tribunal’s reasons should not be read with an eye finely attuned to error.
78. At best, I understood the submission to be that just because the Tribunal did not make any reference to the information at [66], this did not mean that it did not consider that information in the context of s.424A(1).
79. What must be noted is that what was relevantly said in Wu Shan Liang was directed to the Court, on judicial review, reading Tribunal decisions in a realistic, practical, and not unrealistic may. In that sense, therefore, it is not of assistance to the applicant now.
80. As Kirby J said in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 180 ALR 1; (2001) 75 ALJR 1105 (“Yusef”) at [118]:
    • “In the real world of administrative decision-making, [judicial review] that aim must also accept standards of performance that are achievable, not unrealistically heroic.”
81. What is left is that this submission really asks the Court to read into the Tribunal’s analysis something that is just not there.
82. Further, the applicant’s argument that he could draw comfort from SZLFX must also be rejected. The submission was in essence, that because the Tribunal made reference to the claim concerning Wu’er Kaixi in 1991, that it must have had the (Wu’er Kaixi related) country information in mind at that time, even though it did not refer to that country information. Therefore at that time the Tribunal considered that it was part of the reason for affirming the delegate’s decision.
83. In addition to the reasons already set out above in rejecting this contention, such a parallel argument was rejected by the High Court in SZLFX. While an attempt was made to distinguish the current circumstances from those in SZLFX (the reference to the footnote to [18]), the mere fact that the Tribunal included the country information in its decision record is not in my view sufficient to distinguish the applicable reasoning of the High Court and to infer on that basis alone that the Tribunal gave some “importance” to that evidence.
84. In all ground one is not made out.

Ground Two

85. In ground two the applicant again asserts a breach of s.424A. In this ground however the breach is said to be that the Tribunal considered information about a “series of business visas”, said to have been applied for by the applicant, as being a part of the reason for affirming the decision under review. Yet the Tribunal did not comply with the obligation in s.424A(1) to put this information in writing to the applicant. Nor did it properly comply at the hearing with the facility provided by s.424AA to discharge the s.424A obligation.
86. The real issue between the parties is whether s.424A(1) was engaged.
87. The applicant relies on “AE2”. The documents there contain a series of events relevant to the applicant’s immigration history as it relates to Australia. In the document marked “12” in this bundle are recorded a number of visa applications made by the applicant in 1998 to 1999 which include applications for “business” (and related) visas.
88. In its decision record (its analysis) the Tribunal said (at [79] at CB 137):
    • “The Tribunal discussed with the applicant that after his arrival in Australia he had applied for a series of business visas and that he had not applied for a protection visa and that perhaps the real reason he wanted to stay in Australia was for business purposes. The applicant responded that he has been unable to look after himself and that it was not possible for him to engage in business activities in Australia. The Tribunal does not accept the applicant’s claims.”
89. The applicant complains that, with reference again to the distinction drawn by Heerey J in MZXBQ, the Tribunal used this information not as a matter going to the applicant’s credibility, but to reject the foundation of the applicant’s claims. That is, it was in the Tribunal’s mind of “dispositive relevance” to the applicant’s claims to fear Convention related persecutory harm. The obligation in s.424A(1) was therefore enlivened.
90. I agree with Mr Bevan that the relevance of these business visa applications (whether there was one or a series was not pressed by the applicant) was not with reference to what was contained in these applications, nor even the fact that he had made such applications, but that the applicant on arrival in Australia over ten years ago (in 1998 to 1999) applied for business visas and did not apply for a protection visa.
91. At the hearing the Tribunal discussed with the applicant the matter of his ten year delay in applying for protection in Australia (see T17), and that when he arrived he applied for business visas and did not apply for a protection visa (T20).
92. Bearing in mind the relevant considerations as set out above in relation to ground one, what the Tribunal stated at [79] (at CB 137) must be read in light of what it said at [73] (at CB 136):
    • “The Tribunal questioned the applicant regarding his ten year delay in applying for a protection visa. The applicant responded that he had been waiting for an immigration amnesty to be announced. According to his evidence his family circumstances have changed. The applicant’s wife in China in seriously ill and the Tribunal finds that this is the reason he has made his application for protection. The Tribunal accepts the applicant’s claim that he was waiting for an immigration amnesty. The Tribunal finds that this evidence has no bearing on its decision to affirm the decision.”
93. I understood the applicant’s argument as to why s.424A(1) is enlivened in relation to the “business visa” applications to arise from the distinction drawn by Heerey J (MZXBQ).
94. The difficulty for the applicant is that the applicant’s claims to fear Convention related harm in China were not disposed of by, or with any relevance to, the business visa applications.
95. The Tribunal had accepted that the delay in applying for a protection visa in Australia was because the applicant was “... waiting for an immigration amnesty to be announced” ([73] at CB 136). This is the explanation provided by the applicant himself at the hearing.
96. What the Tribunal did not accept (at [79] at CB 137) was that it was not possible for him to engage in business activities in Australia because he had been unable to look after himself.
97. The fact that he had applied for a “series of business visas” after arrival in Australia instead of a protection visa was plainly not something of “dispositive relevance”.
98. The applicant’s arguments in relation to whether s.424A(1) was enlivened in this regard went no further.
99. In any event in all the circumstances as Mr Bevan correctly submitted the mere fact of the business visas and the making of the business visa applications does not of itself constitute in its terms a rejection, denial or undermining of the applicant’s claims to fear persecutory harm such that this could be understood to be “information” for the purposes of s.424A(1) (SZBYR at [17]).
100. Ground two is not made out.

Ground Three

101. Ground three asserts that the Tribunal misstated, or in the alternative misunderstood, the relevant test pursuant to s.36 of the Act.
102. This misstatement is said to be set out at [34] (at CB 126) of the Tribunal’s decision record:
     • “The Tribunal advised the applicant that to obtain a protection visa an applicant must have suffered persecution in his country or have lived in fear in his own country. The applicant responded that in Japan he and other students collectively had applied for a protection visa and that this was history. He advised Japan did not assess migrants. His financial situation was better than others and he was able to stay in Japan. He advised that two years after Tiananmen Square he participated in organising a dissident to come to Japan from Taiwan to present a speech that took place at the New Tokyo Language School and after the speech those at the rally demonstrated outside the Chinese Embassy in Japan and it was reported in newspapers.”
103. The Tribunal’s record is generally consistent with the transcript (T12.9):
     • “[MEMBER]: If you claim a protection visa, you must have suffered persecution in your country, being frightened in your country.
     • [INTERPRETER]: The question is simple it was history that caused me that I did not dare to go back, in Japan it was a collected case because Japan is not a country who accepts migrants. A lot of Chinese people and friends when they could not stay in Japan anymore they went to other countries. My case was a bit special, what I mean to say was that my financial situation was better than other people, so I was able to stay in Japan. At that time my situation, my financial situation was better than other people so two years after Tiananmen Square movement Kyshee who was the leader of the student movement, he came from he came to Taiwan, he came to Japan to give speeches from Taiwan. Our school helped to organize the speeches, organize the place, and then we went to demonstrate outside the Chinese Embassy in Japan, this was all recorded in newspaper.”
     • [Errors in the original.]
104. The applicant submits that, with reference to s.36(2)(a) of the Act and the Refugees Convention, the correct test is that a person is a refugee if they have a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion (if they were to return to their home country).
105. While a person may have suffered persecution in their country of nationality and this may be strong evidence of a well-founded fear, such evidence is not necessary in meeting the correct Convention test. A person may establish a well-founded fear of persecution with reference to a particular country, even though they may not in fact have suffered persecution there.
106. Although no authorities were cited, the applicant’s contention in this regard is correct. The focus is on what is likely to occur in the future. This can be informed by past events in the home country, but not exclusively so. (See, for example, Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 (“Chan”) and Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559; (1997) 144 ALR 567; (1997) 71 ALJR 743.)
107. Evidence of what occurred in the past, that is evidence of persecution, would give support to the claim that the fear is well-founded (Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510; (1999) 162 ALR 1; (1999) 73 ALJR 584 (“Abebe”)). However, it is the case that while events in the past, including evidence of persecution in the home country, are a sound guide to predicting whether persecution will occur in the future, but that is not always the case (Chan).
108. The critical issue is that past events in the home country are to be considered not just for the sake of what happened in the past, but as a guide as to what is likely to occur in the future (see for example VAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 59 per Wilcox, Cooper and Allsop JJ at [16]).
109. It is clear that an applicant does not have to show that persecution existed in the home country in the past to be able to demonstrate that a well-founded fear of persecution exists – see Abebe per Gummow and Hayne JJ at [192]:
     • “... No doubt, a Tribunal will often find assistance in deciding whether a person has a well-founded fear of persecution by looking at that person's prior experiences.”
110. What the Tribunal reported in its decision record as it having told the applicant ([34] at CB 126) is, on its own, plainly a misstatement of the correct and applicable test.
111. Mr Bevan submitted that what is recorded at [34] is itself not exactly what the Tribunal actually said at the hearing. The transcript reveals (at T12.8) that the Tribunal made reference to: “... being frightened in your country”.
112. The submission was that when wider regard is had to the transcript, that is to read what the Tribunal said in context of what precedes and follows it, it is clear that the Tribunal was alert to the relevant test as being one of the applicant having a well-founded fear of persecution in the applicant’s country of origin.
113. To the extent that Ms Tronson in small part suggested that the Tribunal was therefore not focussed on, or did not understand, the need for fear being linked to the home country, then I agree with Mr Bevan that the transcript reveals that the Tribunal understood at least the necessity of this link.
114. But even with this concession to the Tribunal, it is clear that the meaning of the words: “being frightened in your country” were not necessarily directed to any distinction between the applicant’s claims of activism to have occurred in Japan and not China (as suggested by Ms Tronson), but that these words were part of, and continue in the same vein the Tribunal’s statement that there was a need to have suffered persecution in the home country in the past.
115. The word “frightened” (at [103] above) is simply and plainly an emphasis of the word “persecution”.
116. This understanding is confirmed by the Tribunal’s own words in its decision record (at [34] at CB 126). Whatever interpretations may be placed on, whatever emphasises may be made to what was said at the hearing, the Tribunal’s account of the hearing, and it must be emphasised that this is the Tribunal’s own account, surely must represent sound evidence of what the Tribunal thought it meant with what it said at the hearing.
117. What the Court is left with, therefore, is that the Tribunal itself emphasised, and in a sense “clarified”, that misstatement of the relevant test.
118. Ms Tronson’s submission was that the only place in the Tribunal’s decision record where the Tribunal enunciated the relevant test as “stated in the Tribunal members own words” was at [34]. While the decision record does contain (at [6] to [16] at CB 113 to CB 114) a recitation of the correct test, this was in the usual “boilerplate” or formulaic expression seen in nearly all Tribunal decisions.
119. The argument was that, in contrast to what appears at [34], this common formulaic recitation did not suggest an “active intellectual engagement” in the articulation of the correct test. Ms Tronson relied on Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140 at [47] to [49] and the reference to Tickner and Others v Chapman and Others (1995) 57 FCR 451; (1995) 133 ALR 226.
120. In short, therefore, the only place where the Tribunal gave expression to a proper consideration of what is the correct test it misstated the test as being a backward looking test. It did not allow for a forward looking well-founded fear of persecution for a Convention reason.
121. I agree with Mr Bevan that the recitation of the correct test as a “boilerplate” should not be dismissed simply because it is expressed in terms common to many Tribunal decisions. Plainly, the reason for this is that the relevant law as to the correct test, as it applies to the central criterion of a well-founded fear, has not changed for some time. This is evident when regard is had to the age of the relevant authorities cited above in relation to the correct test (at [109] to [112] above).
122. To expect Tribunals to constantly find new ways to express well-settled legal propositions, to focus on creative and inventive drafting to express the same thing, merely to avoid charges of not having properly engaged or actively considered the correct test, is an impractical and unnecessary burden to place on the Tribunals. It would also probably offend s.420(1) of the Act.
123. The Tribunal’s recitation of the correct test therefore cannot be so lightly dismissed.
124. In any event, the applicant’s reliance on the submission of the active intellectual process in this regard is a limited application of this requirement. As Mr Bevan correctly submitted, this does not only involve an understanding of the applicable statutory criterion (s.36(2)) but an active engagement, a proper consideration, of the claims put forward by the applicant, and then a proper application of the relevant law to those claims.
125. What the Court is left with is that the Tribunal did set out the correct test. But at one point of the hearing with the applicant, and as confirmed in its account of the hearing, it misstated at least a part of the correct test.
126. The issue for the Court, however, is whether the Tribunal fell into error in the exercise of the jurisdiction conferred on it. In this regard a misstatement of the correct statutory test may lead to jurisdictional error. (See Yusef.)
127. The question now is whether the Tribunal’s misstatement actually infected the exercise of its jurisdiction.
128. Ms Tronson submitted that, given the centrality of this test to the Tribunal’s task, the misunderstanding of the test infected the way the Tribunal considered the evidence before it and infected the entire decision.
129. The Court was referred to Minister for Immigration and Citizenship v Haneef [2007] FCAFC 203; (2007) 163 FCR 414; (2007) 243 ALR 606 per Black CJ, French and Weinberg JJ at [139]:
     • “... However, having found that the Minister applied the wrong test, and that this was very much to Dr Haneef’s disadvantage, it is difficult to see how, or why, relief should have been refused in the exercise of discretion. It is certainly far from clear that it would have been futile to remit the matter for reconsideration...”
130. It is difficult to see how this assists the applicant in the current case, and in the particular circumstances of this case. As the passage quoted above makes clear, this does not stand as authority for the proposition that a misstatement of the relevant test alone, in all circumstances, will automatically lead to jurisdictional error.
131. In my respectful view, what this passage emphasises is that the Full Court found it difficult to see how, or why, relief should be refused to the “applicant” in that matter, in the exercise of the Court’s discretion, where a finding had been made by the judge at first instance that the Minister (for Immigration) had applied the wrong test. Applied, not only misstated.
132. The passage, if anything, supports Mr Bevan’s position that, even if what the Tribunal said at the hearing is to be characterised as a misstatement of the correct test, what is required for the granting of the relief sought by the applicant is that the Tribunal put that misstatement into effect in considering the applicant’s claims and determining the matter before it.
133. In other words, when regard is had to what the Tribunal actually did in this case, it did not actually apply the wrong test. It proceeded on the basis of the correct test.
134. Beyond the submission that the misstatement was so central that it infected the decision, the applicant has not explained or shown how, in the circumstances presented to the Court, this is in fact the case.
135. The applicant’s claims before the Tribunal (in 2010) to fear persecutory harm if he were to return to China were based on his claimed activities in Japan in 1989 and 1991. The transcript of the hearing and its subsequent analysis as revealed in its “Findings and Reasons” shows that the Tribunal understood that the applicant claimed to fear persecutory harm if he were to return to China essentially because of the events that had occurred in Japan and the profile this created for him, and the view that the Chinese authorities took of him such that he was “blacklisted”.
136. In spite of its earlier misstatement, after the applicant had given evidence as to the origin of his fears in the past, the Tribunal squarely asked him (T15.4):
     • “[MEMBER] ... So why can’t you go back to China now and be safe, and live in China?”
137. That the Tribunal understood that he feared harm from the Chinese authorities if he were to return is revealed (T16.8):
     • “[MEMBER] How will they know you are back in China?”
138. Further (at T17.1):
     • “[INTERPRETER] I am overseas.
     • [MEMBER] Tell me what you think will happen if you do go back to China and you do engage in these activities, what do you think will happen to you?
     • [INTERPRETER] Very Serious.
     • [MEMBER] Well tell me.”
139. Even further, the Tribunal explored with the applicant his intentions in relation to the conduct of anti-government activities if he were to return to China (see T25).
140. The Tribunal rejected the applicant’s factual account of what he said had occurred in Japan. This was reasonably open to the Tribunal on what was before it, and for which it gave reasons.
141. Ms Tronson submitted that the Tribunal may have considered the applicant’s activities in Japan simply in order to make a finding as to whether or not these events occurred, but that there was no clear link between those activities and a well-founded fear of persecution in China.
142. The totality of the transcript and the Tribunal’s ultimate analysis reveal that, notwithstanding what the Tribunal said towards the beginning of the hearing (and repeated in its account of the hearing), the conduct of the hearing and its actual consideration of the claims reveals the Tribunal applied the correct test.
143. In fact, one of the bases on which the Tribunal rejected the applicant’s factual account of claimed events in Japan is that he subsequently voluntarily returned to China twice without any “intervention” by the Chinese border authorities. The Tribunal found this undermined “the credibility of his claims” ([70] at CB 135).
144. In context, this is one example of the link between the claimed activities in Japan and the claimed fear of persecution in China. This is the example of the relevant “link” that Ms Tronson submitted did not exist.
145. Having made these findings as to the claimed factual events in Japan, and the claimed consequences for the applicant if he were to return to China, there was nothing further for the Tribunal to consider in relation to the applicant’s claims to fear persecutory harm on the basis of his political activism in Japan.
146. In all, ground three is not made out.

Ground Four

147. In ground four the applicant asserts a breach of s.425 of the Act. The applicant’s complaint derives from what was said by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 231 ALR 592; 81 ALJR 515 (“SZBEL”) and the Tribunal’s procedural fairness obligations arising from s.425 at the hearing.
148. In essence, the complaint is that the Tribunal is required at the hearing to raise the issue, or issues, arising in relation to the review. Further because of the delegate’s decision, the applicant is entitled to assume that an issue raised by that decision, and dispositive of the application, to be at issue before the Tribunal in the face of the Tribunal’s silence on it (SZBEL at [35] to [47]).
149. The applicant contends that a central part of the Tribunal’s reasons for decision (I understood this to be put in the sense that it was an “issue”) was that the applicant did not engage in any anti-Chinese government activities in Japan.
150. The delegate had accepted that the applicant had participated in certain anti-Chinese government activities in Japan (CB 72.4 and CB 72.9). In light of this, the applicant cannot be said to have been on notice as a result of the delegate’s decision that his account of his activities in Japan was an issue arising in relation to the review. On the authority of SZBEL he was entitled to assume that his participation in those activities was not in issue before the Tribunal, unless of course the Tribunal raised it at the hearing.
151. The applicant’s contention is that the Tribunal did not put the applicant’s participation in these events in issue at the hearing. Nor that his entire factual account was at issue.
152. I should just note the applicant’s submission in support of this complaint, that at the hearing the Tribunal told him it accepted some of his evidence must be rejected. There is nothing in the transcript to suggest that the Tribunal told him it accepted any part of his claimed account about events in China.
153. The applicant’s reliance now on what the Tribunal said at T29.2 (“... some of your evidence I accept...”) was plainly not directed to the claimed events in China. In context it was directed to the applicant’s conduct in Australia, some of which the Tribunal accepted. (His reason for waiting ten years to apply for protection at is at [73] (CB 136) of the Tribunal’s decision record.)
154. In any event, in submissions before the Court Ms Tronson explained the complaint, and emphasised, that while some reference was made to events in Japan at the hearing (see T20 to T21: “... you have no evidence you are a man that engaged in anti-government activities that was reported in a newspaper, that was on television. You applied for protection visa in Japan, no evidence. These were significant events and those sort of documents are documents that I think one would retain, your comments” (T21.3)), these comments were focused on there being no evidence to support his claims about these activities and his having applied for protection, rather than raising the issue of the activities themselves.
155. Further, and at best, this referred to the application for refugee status in Japan and the applicant’s activities that were reported in a newspaper and on television there. Therefore, while the Tribunal made reference to engagement in anti-government activities it did not address these with the requisite level of specificity.
156. In his application the applicant had claimed (CB 18) a number of activities:
     1. The rally of 5 June 1989;
     2. Involvement in an activist network to organise activities;
     100. The event of 1991 which Wu’er Kaixi attended; and
     4. The winding back of his activities after that, but that he continued to provide financial support to the activists.
157. Ms Tronson relied on SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138 (“SZHKA”) per Besanko J at [115] to [116] for the degree of specificity required in raising an issue in relation to the review.
158. The Minister submitted that it cannot be said, based on the delegate’s decision, that the applicant was entitled to assume that his participation in activities in Japan was not at issue.
159. The Minister’s position is that the delegate was not satisfied that the applicant was a witness of truth (CB 71.10 to CB 72.1). While he accepted the applicant participated in student protests in Japan this was only after giving the applicant the benefit of the doubt, and in the absence of credible evidence to corroborate these claims (CB 72.3 and see also CB 72.9).
160. I have some difficulty in fully accepting this part of Mr Bevan’s submission as it relates specifically to the complaint made. The complaint is that following the delegate’s decision the entirety of the applicant’s factual account was not at issue thus requiring the Tribunal to put it at issue at the hearing.
161. Whatever ambivalence the delegate may have felt about the applicant’s claims in this regard, whatever equivocation may have been expressed, whatever the delegate may have otherwise meant by “a prominent deficient profile” (CB 72.5), what remains is that the applicant would have seen that that ambiguity left his participation in student protests in Japan, albeit at some considerably lesser level, intact.
162. On the other hand, whatever equivocation may have been expressed in some small part in the delegate’s decision record, what is abundantly clear is that the delegate did not find the applicant to be a credible witness of truth. This was said to arise after: “... the applicant was extensively interviewed about his activities and lengthy time spent in both Japan and Australia and his claimed fear of persecution if he returns to China.” (CB 71.8.)
163. Any holistic reading of the delegate’s decision leaves no doubt that the overwhelming part of the applicant’s factual account of events in Japan was not accepted by the delegate, and further that even including the equivocal acceptance of one small part, that he “might have participated in some student protests” (CB 72.9), it was not such as to establish a well founded fear of persecution if he were to return to China.
164. But the answer to the applicant’s complaint however is to be found with reference to the transcript. I do agree with Mr Bevan that the exchanges set out at T14 to T16, and importantly the applicant’s responses to the Tribunal’s questions there, reveal that the applicant was put on notice that his factual account about what occurred in Japan was at issue. However, what ultimately persuades me to Mr Bevan’s position is encapsulated in the following (at T18.5):
     • “MEMBER: I am going to raise some issues with you now, that the Delegate raised in their decision and I would like your comments. The Delegate was not satisfied that your story was truthful.
     • INTERPRETER: That’s my point, history is the evidence. History is a true story so I don’t think that he or she understood the truth of the June movement. How all the students in the whole world were amazed in those countries, I don’t think that the Delegate was aware or new [sic] how it happened.”
     • [Emphasis added.]
165. Whatever equivocation the delegate may have expressed in his decision record, the Tribunal’s statement that the delegate did not accept his “story” as being truthful at least at that point plainly put the applicant on notice that his factual account of events in Japan was at issue, at least on the part of the Tribunal.
166. I do not comprehend SZBEL or SZHKA as requiring the level of detailed discussion claimed by the applicant now in the circumstances of this case.
167. As Besanko J said at [115] in SZHKA: “... issues, relevantly, are all matters not of an insubstantial nature which the Tribunal considers to be in question.”
168. Given the Tribunal’s conclusion that it rejected that the applicant engaged in any anti-Chinese government activities while he was in Japan ([78] at CB 137), the applicant’s entire factual account was plainly at issue.
169. In my view, what is set out at T14 to T16, and when also read in light of what is relevantly set out at T21 (the reference to “no evidence”) and ultimately at T18, are sufficient to discharge its procedural fairness obligation pursuant to s.425.
170. Ms Tronson sought to distinguish the current circumstances from those before the High Court in Minister for Immigration and Citizenship v SZKTI [2009] HCA 30; (2009) 238 CLR 489; (2009) 258 ALR 434; (2009) 83 ALJR 1017. She accepted that what the High Court reasoned that if the Tribunal were to raise what was described as a “general issue” then any point coming under the ambit of that “general” issue did not need to be specifically raised at the hearing.
171. The submission was that in this case the Tribunal raised specific issues, but did not raise the general issue of the applicant’s activities in Japan in toto.
172. The exchanges at T14 to T16 should properly be read as the Tribunal seeking to deal with the applicant’s activities in general (“... Let’s go to your activities in Japan around Tiananmen Square...” (T14.3), “... What activities, give me a picture?...” (T14.8), “... So Tiananmen Square happened in 1989?... You engaged in some activities then?...” (T15.10 to T16.1)). What follows at T18 serves to put his factual account (his “story”), in context the credibility of the claimed events in Japan, squarely at issue.
173. In all ground four is not made out.

Ground Five

174. In ground five the applicant complains that the Tribunal failed to make a finding on a part of the applicant’s claims. The applicant relies on NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27 at [58] for the proposition that a failure to make a finding on a claim “squarely” made reveals jurisdictional error.
175. Specifically, the applicant now identifies this failure as being in relation to events from March 1990 to 4 June 1991 in Japan. The submission was that the Tribunal addressed two events (in 1989 and 1991) ([65] to [66] at CB 134), and that time up to March 1990 when the applicant had returned to China ([67] at CB 135). But did not address the events in this intervening period.
176. I understood the claim to which the applicant now refers to be (CB 18.6):
     • “... AFTER THAT [THE RALLY IN JUNE 1989], I BECAME PART OF AN ACTIVIST NETWORK AND WE WOULD FREQUENTLY MEET UP TO ORGANISE ACTIVITIES TO COMMEMORATE THE MASSACRE AT TIANANMEN SQUARE, TO OPPOSE THE COMMUNIST PARTY’S REPRESSION OF STUDENTS, AND TO BRING THE CHINESE GOVERNMENT TO ACCOUNT.”
177. There is nothing in this extract to say that the applicant participated in, as opposed to help organise, activities. Had there been any such involvement then, given the references to the specific events in 1989 and 1991, such reference could have been made in the application, before the delegate, or at the Tribunal hearing.
178. Therefore the best that can be said is that the applicant stated in his protection visa application that he became part of an activist network that met frequently to organise activities to commemorate the massacre at Tiananmen Square.
179. The Tribunal specifically raised this with the applicant at the hearing (T14.3):
     • “MEMBER: Let’s go to your activities in Japan around Tiananmen Square.”

[In context I read “around” as meaning: “in relation to”.]

180. The applicant’s subsequent various responses can only be seen to have been made in the most general of terms. As Mr Bevan submitted, the Tribunal had before it the applicant’s evidence of two specific events, the first in 1989, the second in 1991. Taking out the time that the applicant spent in China in the intervening period, his further claimed involvement with the protest network was left only in the most general of terms. Noting also that no further documentary, or even oral evidence was put forward to enlarge on the very general statement in the protection visa application.
181. On at least a fair reading of the relevant parts of the Tribunal’s decision record, the Tribunal dealt with the applicant’s claims in the way that the applicant had put them to it.
182. The Tribunal’s opening sentence at [65] (at CB 134) encapsulates this:
     • “The applicant claimed that he had engaged in protest activities in Japan and provided the details of two events.”
183. I agree with Mr Bevan that the Tribunal’s finding that it did: “... not accept the applicant’s claims that he engaged in any anti-government activities whilst he lived in Japan” (at [65] at CB 134 – see also similar at [69] at CB 135) is inclusive of the entire period of his stay in Japan. Whatever activities he may have engaged in in this period are subsumed in these findings.
184. What must be added is that, critical to the Tribunal’s rejection of whatever activities the applicant said he engaged in in Japan, he said that these activities had brought him to the attention of the Chinese authorities. The Tribunal also found that if that had been the case he would not have been able to enter China on a number of occasions since that time (see [76] and [78] at CB 137). This latter finding also serves to deal with the rejection of the applicant’s factual account of the whole of the relevant period he was in Japan.
185. The Tribunal addressed and dealt with the applicant’s claims as they were put before it by the applicant. Ground five is not made out.

Conclusion

186. With the benefit of legal representation, the applicant has put five grounds before the Court. None are made out. The application as amended is to be dismissed.

I certify that the preceding 186186one hundred186186eighty-sixninety-fiveone hundred and eighty-six (186) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:

Date: 20 January 2011