MZAEM v Minister for Immigration

[2015] FCCA 2322

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAEM v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2322

Catchwords:
MIGRATION – Refugee Review Tribunal – protection visa – no jurisdictional error established.

Legislation:
Migration Act 1958 ss.98, 351, 422B, 424A, 425

Cases cited:
SZJGO v Minister for Immigration (2006) FCA 393

Applicant: MZAEM

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: MLG 987 of 2014

Judgment of: Judge Riley

Hearing date: 14 August 2015

Date of last submission: 14 August 2015

Delivered at: Melbourne

Delivered on: 14 August 2015

REPRESENTATION

Counsel for the applicant: The applicant appeared in person

Solicitors for the applicant: The applicant was not represented

Solicitor Advocate for the first respondent   Ned Rogers

Solicitors for the first respondent: Australian Government Solicitor

Counsel for the second respondent: No appearance

Solicitors for the second  respondent: Australian Government Solicitor

ORDERS

1. The application filed on 26 May 2014 and amended on 6 February 2015 be dismissed.

2. The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $6,825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 987 of 2014

MZAEM

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from the transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”).  The applicant is a citizen of China.  She was born on 23 December 1963.  She arrived in Australia on 24 January 2002.  At that point, she had a subclass 560 student visa.  That visa expired on 10 May 2002.  The applicant was then granted a subclass 573 student visa, which expired on 15 March 2003.  Before that visa expired, the applicant applied for another subclass 573 student visa.  That visa was granted on 7 May 2003 and expired on 22 August 2004.  On 19 August 2003, the applicant applied for an occupational trainee subclass 442 visa.  That application was refused on 25 August 2003.  As stated, the applicant’s last student visa expired on 22 August 2004. 

2. The applicant remained in Australia without a substantive visa. In October 2008, the department advised the applicant that there had been a legal error in the notification of the decision to refuse her application for the subclass 442 occupational trainee visa.  The department advised that the applicant had continued to hold a bridging visa that ran with her application for the subclass 442 visa. 

3. The applicant applied to the Migration Review Tribunal on

   
   

   23 October 2008 for review of the decision to refuse the subclass 442 visa.  In November 2008, the applicant applied for and was granted a Chinese passport, valid for 10 years.  On 30 April 2010, the Migration Review Tribunal affirmed the department’s decision refusing the application for the subclass 442 visa. 

4. On 26 May 2010, the applicant sought ministerial intervention under s.351 of the Migration Act 1958 (“the Act”). That request was declined on 2 May 2011. On 19 May 2011, the applicant sought ministerial intervention again. On 10 June 2011, the Minister declined that request. The applicant made two further requests for ministerial intervention. They were declined on 24 August 2011 and 8 September 2011.

5. On 2 June 2011, the applicant was granted a bridging visa on the basis that she was making arrangements to depart Australia.  The applicant was granted further bridging visas, one of which expired on 30 July 2011.  On 9 August 2011, the applicant told an officer of the Immigration Department that she had no intention of regularising her immigration status in Australia.  On 14 November 2011, immigration officials detained the applicant.  On 23 November 2011, while she was in detention, the applicant applied for the protection visa the subject of this application. The applicant was released from detention on 6 March 2012 when she was granted a further bridging visa.  She continues to live in Australia on the basis of that bridging visa. 

6. While she was in detention, the applicant  was examined by the Commonwealth Medical Officer, who found that she had hepatitis B. 

7. The applicant’s protection visa application was considered by a delegate of the Minister.  The delegate did not accept that the applicant’s claims to face persecution were credible.  The delegate’s reasons were based on the length of time between the applicant’s arrival in Australia in 2002 and her lodging of the protection visa application in November 2011, as well as her willingness to provide false information to the department and the Minister on a number of occasions.

8. The audio recording of the interview with the delegate was referred to by the Tribunal at paragraph 27 of its reasons for decision. The Tribunal recorded that, during the interview with the delegate, the applicant stated that she had provided false employment details in support of her student visa applications, her application for an occupational trainee visa and in requests she made to the Minister for intervention under s.351 of the Act.

9. The applicant sought review of the delegate’s decision by the Refugee Review Tribunal.  The Tribunal conducted a hearing on 26 March 2012.  At that hearing, the applicant was represented by a migration agent and was assisted by a Mandarin interpreter.  The applicant provided post-hearing written submissions to the Tribunal.  The Tribunal sent a letter to the applicant on 3 April 2012 under

   
   

   s.424A of the Act. The applicant’s representative responded, providing submissions and additional documents. On 2 May 2012, the Tribunal sent the applicant another letter under s.424A of the Act. The applicant’s agent responded to that request on 9 May 2012 with written submissions.

10. The Tribunal did not accept the applicant’s claims as credible.  The Tribunal noted numerous inconsistencies in the evidence that the applicant had given to the department and the Tribunal.  The Tribunal affirmed the delegate’s decision.  The applicant sought judicial review.  The matter was remitted to the Tribunal for rehearing by consent.  The Tribunal was reconstituted to another member, who made the decision the subject of this application.

11. The applicant had assistance from a lawyer with the Refugee and Immigration Legal Service.  The lawyer raised concerns about whether the protection visa application had been validly lodged.  The issue concerned whether the applicant had signed the application form.  The application to the Tribunal, as reconstituted, also was supported by a statutory declaration made by the applicant.  A summary of that is set out in the Tribunal’s reasons for decision at paragraph 56 which was as follows:

    56.Also provided with the written submission was a statutory declaration made by the applicant on 30 April 2013 (T1, folios 104 – 108), completed with the assistance of a Mandarin interpreter.  In that statutory declaration, the applicant:

    a.  reiterates her personal history, including that she and her family were sent to live in a labour camp in 1973 because her maternal grandmother’s sister was a politician in Taiwan, that she trained and then worked as a nurse between 1978 and June 1982, started studying to be a teacher in 1985 and joined the CCP while she was at Teacher’s College; 

    b.  reiterates her claims of being sexually harassed and mistreated by her supervisor while working at the Ministry of Organisation for the GYC Committee of the CCP; 

    c.  states that it was around this time she began to feel disillusioned with the CCP, that her uncle who lived in the USA agreed to sponsor her to study there and she was told she needed to improve her English to study the USA and so left her job to study English;

    d.  states that she heard about protests planned for 4 June 1989, joined those protests in Sichuan, carrying posters and yelling slogans and later discovered she was shown on the news participating in those protests;

    e.  states she was arrested by police at the American Consulate in Sichuan;

    f.   states her mother told her she and her husband were charged with insider trading, bribery and selling state secrets but that these charges were completely fabricated and she believes that Mr Jia arranged for her to be arrested and imprisoned;

    g.  states that she suffered a lot during her time in prison, was forced to do tiring work which caused her heart and lung problems and continues to suffer from neck and back pain as a result;

    h.  state she is uncertain about the outcome of the charges against her but knows that she was convicted of the charges, then successfully appealed that conviction and was released from prison in 1992;

    i.   states that she and her husband decided to divorce for the sake of their son because of Mr Jia’s vendetta against them;

    j.   states that after she was released from prison she was expelled from her job and kept being laid off because of her criminal record;

    k.  states that her uncle who was going to sponsor her to the USA died in 1995;

    l.   states that in 2000 she began studying for an MBA so that she could transfer her studies to Australia and that she only enrolled in the course so she could leave China;

    m. states that she was told she needed to have a passport to travel to Australia and that the “Mayor” arranged a new passport for her using identity documents that recorded her date of birth as 23 December 1963 because her previous passport, recording her personal details correctly, was confiscated when she was arrested;

    n.  states that after arriving in Australia she answered an advertisement in a newspaper from a migration agent, who said he would sponsor her for a 442 visa and did not tell her that she would not qualify for that visa;

    o.  states that the student visa was still valid when the 442 visa application was refused, that she then began working in aged care and was one day called to her manager’s office where she was told that her visa was “invalid” but also told by the department offices there that she could appeal the decision to refuse the 442 visa;

    p.  states that after the MRT affirmed the department’s decision to refuse the 442 visa, another migration agent advised her to make a request to the minister for intervention and she had four requests refused;

    q.  states that after she was detained in November 2011, she met the first representative who prepared the visa application for her;

    r.   states she fears she will be persecuted if she returns to China because:

    i.   Mr Jia will continue his vendetta against her;

    ii. she will be re-entering China on a false passport and, if this is discovered, she will be sent to jail, her “real history” discovered and the Chinese government will see her as a criminal who left the country without permission despite the fact her conviction was overturned;

    iii.         she will be harmed by the Chinese government because she was accused of crimes against the government despite eventually being found not guilty;

    iv. she left the CCP and has not lived in China for a very long time and so will be considered to be a spy or having an anti-government political opinion;

    v.  she will not be able to survive in China as she will not be able to get a job under her real name and date of birth as a result of her conviction being listed on her criminal record and because she is not a member of the CCP.

12. The applicant also provided to the Tribunal a copy of the complaint made by the applicant to the Migration Agents Registration Authority on 30 April 2013.  That application was supported by a statutory declaration made by the applicant. The content of that statutory declaration was set out by the Tribunal at paragraph 57 of its reasons for decision which was as follows:

    57.The applicant also provided with the written submission a copy of a complaint made to the Office of the Migration Agents Registration Authority by the applicant dated 30 April 2013 (T1, folios 99 – 103) against the first representative stating that she paid the first representative AU$7500 by credit in instalments and that she hoped to receive an apology and have the first representative disciplined.  Attached to the complaint was another statutory declaration made by the applicant on 30 April 2013 (T1, folios 95 – 98) with the assistance of a Mandarin interpreter, in which she makes a number of claims about the first representative providing her with poor immigration advice and in which she also relevantly states as follows:

    a.  The applicant believes she was manipulated by the first representative when she was in a vulnerable situation.  When the first representative came to visit her in detention she told him about her involvement in the 4 June 1989 protests and that one of her superiors and the CCP had been sexually assaulting her for several years before that.

    b.  The first representative told her that the visa application had to be lodged by the next day after their meeting.  He told her that she could apply for a protection visa or a visa based on marriage.  She wanted to apply for protection because she believed she is a refugee. 

    c.  The first representative gave her the visa application forms and told her that the visa application had been lodged.  She had not signed the forms but she saw that someone else had signed them.  The first representative told her to memorise the answers that were written on the forms so she could give the same answers during the interview with the delegate.  She told him that she did not want to lie about her case.

    d.  The applicant read the forms and noticed several mistakes, including that there was no reference to her having been involved in the 4 June 1989 protests.  She told the first representative about this but he told her not to worry because it was too complicated.  He said that her case was strong based upon her sexual harassment claims and that it would be too complicated to add anything else. 

    e.  The applicant asked the first representative to change the mistakes and he told her to write the amendments in Mandarin on the forms and that he would then translate them and give the new forms to the department.

    f.   The applicant has been shown the signature pages on the visa application forms.  She believes some of the signatures are clearly not hers and that the first representative forged some of those signatures without her consent or instructions.

13. The Tribunal, as reconstituted, conducted a hearing.  The applicant was assisted by her legal adviser at that hearing.  The Tribunal summarised the applicant’s claims at paragraphs 59 to 81 of its reasons for decision, which are as follows:

    59.The applicant provided the following evidence at the first hearing before me, in response to my questions. 

    60.She is the oldest of five children and that her parents are still alive.  Her parents and siblings continue to reside in China.  She has not been in contact with her siblings for many years.  One brother is self-employed in advertising and another brother works at a court in Guang Yang.  She has relatives who live overseas: her mother’s maternal aunt lives in Taiwan and a child of that aunt lives in the USA.  She has another cousin living in the USA and another cousin of her mother also lives in Taiwan.

    61.When she was 15 years old she was sent to live in a rural area because her parents had trouble during the Cultural Revolution. After working in the country for two years, she went to be an apprentice in a factory. She did that for three years. While working at the factory she studied to be a nurse and went to the nursing school in Mianyang. She studied at the nursing school there for two years and then worked for one year at a public hospital. She lived at the nursing school and in the hospital while studying and working there. After working in the hospital for a year she began working in the administration of the health bureau. She married and went to live with her husband. She met her husband because his maternal aunt was her acupuncture teacher while she was at nursing school. She worked in the health bureau for two or three years and then began studying at a teacher’s college. She graduated from the teachers’ college in her late 20s. She lived at the school while she was studying there and her husband and son would visit her each fortnight. Her husband worked for a construction bank. Their mothers looked after their son.

    62.She did well academically at the teachers’ college so she joined the CCP. She went to work for the city committee in GYC. Initially she was in charge of internal affairs, distributing food for employees. She did that for a few months. Her husband's father was a leader in the city commission and he pulled strings to get her that job. Her husband continued to work in the construction bank. She worked for the city committee for approximately a year until October 1988. She then moved to the city committee office in Zhuhai.

    63.She was in Zhuhai until approximately May 1989 when she went to Chengdu. She travelled between Zhuhai and Sichuan once because she needed to do some work for the government and to get a visa and passport so she could go to the USA. She applied for the passport in January 1989 in Sichuan. She was back there for a week or so.

    64.She was detained in Chengdu in October 1989 and held for more than six months. She was released because she was sick. Her husband was detained in the same prison and released one or two months after her. After their release her husband went to live with his parents and she went back to their home in GYC. She then went to Chengdu. She received treatment because she had been forced to do labour work while in prison. She also began studying English in Chengdu. While she was in Chengdu she was waiting for a lawyer to help with her case. She was there for a few months. Her mother paid for her English studies.

    65.She had to report to the police once a month after she was released from prison but this stopped when the case was ended. She moved to Chengdu after the case was ended.

    66.The applicant then provided me with the court verdict.  I asked her if it was a genuine document.  She stated it was not.  She stated that the lawyer had told her it was the best result she could get.  She stated it was sent to her home address.

    67.In relation to the time she spent in prison, the applicant stated that she was released from detention after seven or eight months and then sent to another prison for about six months. She was then released from prison after that. She left GYC a month after she received the verdict in the post. She had divorced her husband before she received the verdict. She confirmed the arrangements for the divorce were as set out in the divorce certificate she had provided to the department (referred to at [25 e] above). She stated that she received the verdict after she and her husband obtained the divorce certificate. She stated they were both out of prison by the time she got the divorce certificate.

    68.In relation to her plans to travel to the USA, the applicant explained that she planned to apply for a visa to the USA in 1993 and for this she obtained an identity card which had a fake date of birth on it. It was issued 31 December 1993. She stated that she got the household registration recording the fake date of birth at the same time. She acknowledged these documents (being those referred to at [25 g] above) were false and were used to apply for the visa to the USA.

    69.When she was staying in Chengdu from late 1992 she lived in university accommodation. She studied for approximately two years. She sat and passed a TOEFL exam. This was by late 1995 or early 1996. Then her uncle in the USA died so she could no longer apply for a visa to the USA.

    70.After that she went to live in the suburbs of Chengdu. She lived in a room in a farmer's house. She had a few jobs. She worked as a journalist for a news company. It was a privately owned magazine called “Private Enterprise". It was published in China. She worked there for a few months as a journalist and editor. She interviewed entrepreneurs. After that she began working selling clothes on the street. She used savings from when she had worked at the magazine to start this business. It was dangerous work because the council workers did not give permission to sell clothes on the street so she would have to hide from them. She did this for a few months. She moved around from house-to-house because she felt unsafe. After this she worked in a chicken feed factory.

    71.She also wrote articles as a freelancer and sent them to the news companies. She was paid a little bit when the articles were published. She wrote articles anonymously, about society and about finance. She wrote about her thoughts on doing business and the economy. She stated these articles were published in the Chengdu business newspaper, the Private Enterprise magazine and another magazine called the Chengdu Hua Xi newspaper. She had these articles published anonymously because she didn't want anyone to know it was her writing. She thought they would not publish the articles if they knew it was her because she had worked at the magazine in the past but had stopped working there. She stated that if a person is employed for more than a few months then you are checked against the national network. She stated this happened after she had been working at Private Enterprise magazine for a few months. I asked her what the magazine company found out about her. She stated that she was not told. I asked her how she would get paid if she sent the articles anonymously. She stated there was a system by which you could be paid through the post without the person paying knowing who you are.

    72.The applicant was granted a student visa to come to Australia in December 2001 and arrived in Australia in January 2002. She acknowledged that she provide fake documents with the student visa application saying that she worked in a hotel, when she hadn't.

    73.Between 2000 and 2001 she studied at a trade institute which had an agreement with Latrobe University. She completed half the qualification at the trade institute and half at Latrobe University. She studied at the trade institute for two years while living in the dormitory of a factory. She was not working there at the time. Her mother paid for the two years of study, using money she had saved when the applicant and her other children had given her as New Year's Eve presents.

    74.I asked her whether she provided any other false information with the student visa application. She stated that she lied about her age. She stated that the passport was not fake but that it did not have the correct date of birth recorded in it. I asked her whether she provided any the other false information with the student visa application. She stated that the academic documents were genuine. I asked her whether she had to provide any evidence of financial capacity. She said that she didn't think so. Then she said she had to show she had an annual salary of 80,000 RMB. She stated she had also stated on the form that she was married because the school had told her not to say she was single.

    75.The applicant studied an MBA at Latrobe for one year and completed her MBA in May 2003. She applied to study law but was not allowed to because her English was not good enough. She studied English for six months at the Latrobe University Language Centre. She could not pay for any more studies after studying English for six months. She later obtained an aged care certificate and also a real estate agent certificate. She has been working in aged care since 2003 but had to stop when she was detained in 2011.

    76.The applicant acknowledged that she applied for a second student visa which was granted and expired in August 2004. She also applied for a 442 visa. She said an agent told her she should apply for this. It was refused after six months, before her student visa expired. I asked if she applied for any other sort of visa before her student visa expired. She stated that she did not. I asked if this meant she thought she didn't have a visa after August 2004. She acknowledged she did not do anything else about her immigration status after August 2004, because she had been told she could not apply for any other kind of visa.

    77.In 2008, the applicant appealed the 442 visa refusal to the MRT and was told she could go to a hearing. The applicant understood the reason the 442 visa was refused was because she had the wrong type of visa. After she was refused by the MRT another agent told her to make requests to the Minister. She was told by the agent this was the only thing she could do. She was told she had a good case because she had been here a long time and had an MBA. I asked if she had ever said that she was willing to return to China in the ministerial intervention requests. She stated that she could not remember saying that.

    78.I asked the applicant if she obtained another Chinese passport. She stated that in 2008 the department came to see and told her that her passport had expired. They told her that if she wanted to appeal the 442 visa refusal, she needed another passport.

    79.The applicant was detained in November 2011. After she lodged a protection visa application she applied for a bridging visa. The application was refused because she had no money. She could not remember what she said at the bridging visa hearing. She was detained about three months after her last bridging visa expired.

    80.The applicant made four requests to the Minister. The agent helped her with two of them. She received answers saying that the minister would not consider new information. She couldn't remember when she got the answer to the last request but she remembered it was a quick response.

    81.I asked the applicant about the visa application forms. She stated that the agent made a lot of mistakes. She agreed it was her signature at D1, folio 58 and D1, folio 61 and that it was her handwriting on the Part C lodged 22 December 2011. She confirmed that she knew she had applied for a protection visa and that she wanted her protection claims assessed by the department. She acknowledged she was interviewed by the delegate. She said that everything she said to the delegate was the truth. She said that everything she had said to the RRT before was the true. She stated that all the documents and information she provided were true and genuine.

1. Following the hearing, the applicant’s lawyer wrote to the Tribunal.  Amongst other things, the applicant said in that submission that the applicant no longer relied on material put forward to the department or the Tribunal, as previously constituted, and only relied upon the statutory declarations made on 30 April 2013, the submissions from the representative dated 30 April 2013, the evidence provided by the applicant at the hearing on 6 May 2013, legal submissions made by the first representative at the hearing on 6 May 2013, and the current submissions.  The applicant also provided, with that submission, some further documents. 

2. The Tribunal, as reconstituted, conducted a second hearing.  The Tribunal set out a summary of that hearing at paragraphs 85 to 123 of its reasons for decision, which are as follows:

   85.At the resumed hearing, the applicant showed me her previous Chinese passport, which she used to travel to Australia, a certified copy of which is at T1, folios 175 – 190.  The passport records the applicant’s date of birth as 23 December 1963.  It was issued on 18 July 2001 and expired on 17 July 2006.  It records the applicant as holding an identity card with the number of the card referred to at [25 g] above.

   86.The applicant provided the following evidence at the resumed hearing in response to my questions.

   87.I summarised the applicant’s claims as set out at [83 b] above and asked her if this was an accurate summary of her claims. She stated that it was.

   88.In relation to her suffering Hepatitis B, the applicant stated she was too scared to seek treatment in China because of discrimination. I put to her that, even based on the information provided in the submission from the representative, the country information suggests discrimination faced by people who suffer hepatitis B does not amount to serious or significant harm. She stated she would not be able to get a job. I put to her that the country information suggests she would receive treatment for hepatitis B in China.

   89.I asked the applicant if there is anyone in particular who will seek to harm if she returns to China. She named Mr Jia and his associates. She said Mr Jia is a leader of the CCP and very influential, that he was the leader of the human resources department in the ministry and that after that he was the head of a court although he may be retired now.

   90.I asked the applicant why Mr Jia would want to harm her. She replied that it was because she and her former husband complained about him. I asked the applicant why they had made a complaint about Mr Jia. She replied it was because Mr Jia had abused his power and sexually assaulted her. I asked the applicant when she worked for Mr Jia. She replied that he was the leader of a Ministry in GYC and a CCP leader. She stated that he had sexually assaulted her for a long time. She provided the following further evidence in response to my questions about her treatment by Mr Jia.

   91.She was a clerk in the Ministry and was responsible for finance and for writing articles. There were 10 to 20 people in the area where she worked. They worked on one story of a building that was five or six storeys. She saw Mr Jia every day. Not long after she started working there he asked her for a favour: to fix his doona cover. He lived close by so she went over to his house to fix his doona cover and while she was fixing his doona, he hugged her from behind. He told her she would regret it if she didn't do what he asked. He forced her to have sex. He regularly asked her to sew up his doona for him. He would come into her office to ask. He would ask in front of other people. He knew where she lived.

   92.Her husband was living in another area at the time. He would come back on the weekends. Mr Jia would make her have sex with him at lunchtime. Eventually she got pregnant. She had many bad dreams and cried a lot. This was when she told her husband. Her son was with her at the time but he had a nanny. He was at kindergarten when Mr Jia would come round to her house during the day. There was no pattern. It was whenever he felt like it. He also assaulted the wife of his driver.

   93.She could not remember how long after she started working there that she fell pregnant. She had an abortion. She told her husband after she had the abortion. She was very weak but couldn't take the days off she needed. Her husband came back on weekends and saw that she was weak and disturbed and was crying all night. She sought a transfer to work elsewhere before she told her husband. Her husband couldn't understand why she wanted to leave GYC. She had applied for the transfer to work in Zhuhai to set up a branch of the GYC Economic Enterprise there.

   94.She spoke to the Mayor of GYC. He was an elderly man. He was married but had no children and was very religious. She told him what had happened to her. He stated she should talk to Mr Zhang Hua Guo about taking a position at the Zhuhai GYC Economic Enterprises branch because he was in charge of that branch. I asked the applicant how long it was between when she applied for the job and when she went there. She stated it was not long at all. She stated it took a few weeks - maybe a month or two - from when she applied and when it was approved.

   95.I asked her if, after she had made the application, she told her husband what Mr Jia had been doing. She confirmed that she did – because her husband did not know why she wanted to leave her job. I asked her if she told Mr Jia about the abortion. She stated that she did. She said that when she was pregnant she then refused to have anything else to do with him. He said to her that he wanted to see her belly rise. She told him she had to abort the pregnancy because of the one child policy – and because she didn’t want her husband to find out about what had happened. I asked her if Mr Jia continued to force himself on her after the abortion. She said that he did, whenever her husband was away. She said he prevented her husband from getting a promotion. Her husband wanted to be transferred to GYC to be closer to the applicant but Mr Jia prevented this.

   96.When she told her husband about what happened he cried and said he wanted to kill Mr Jia. She told him not to do anything but just hide it. He was very angry and wrote a complaint letter to the local disciplinary committee of the CCP. I asked what he wrote in the letter. She stated that she didn't see it. She told him not to do anything but he wrote it in secret. I asked how she knew he wrote it. She said he wrote many times. I asked if he did this without telling her. She said that he told her after it had happened. I asked her when he first wrote a letter. She said it was after she went to Zhuhai. I asked her when he told her he had written letters to the disciplinary committee. She said it was after they were both in prison. I asked her why he had not told her earlier. She said it was because she had told him not to do anything. She said Mr Jia had called her and told her that her husband was making complaints and told her he must stop or he, Mr Jia, would have her husband killed. I asked her when Mr Jia told her that. She stated that she was called by him when she was in Zhuhai.

   97.I asked her if she ever saw Mr Jia after she went to Zhuhai. She stated that she did not. She stated that he often rang her in Zhuhai. I asked her whether she told her husband about what Mr Jia had said to her. She said that she told her husband not to make complaints and that he promised to stop. I asked if she meant that he said he would stop writing letters but then kept writing letters. She agreed with this. I asked whether she spoke with him about writing letters while she was working in Zhuhai. She said she did. I put to her that earlier she said that she had first spoken with her husband about the letters he had been writing after they were both in prison. She stated that she remembered Mr Jia had told her about the complaints her husband was making when she was in Zhuhai. She stated that they were not in the same place when they are in prison and that her husband’s mother had visited her and told her about what he had been doing and that she had told his mother to tell him to stop writing letters.

   98.She confirmed that she was in Zhuhai until May 1989 when she contacted her uncle about getting help to go to the USA. I asked her why she was not safe in Zhuhai. She said it was because Mr Jia called her and asked her to go back. She said that other people had been told about what had happened between her and Mr Jia and they bullied her. She met other people in Zhuhai. She stated that they stole things from her and sexually assaulted her. I asked her who sexually assaulted her. She referred to Mr Zhang Hua Guo. She said there was also someone called Xong Zhuan and a person with the surname Wong. She stated it was because she had offended Mr Jia. I asked her if she told her husband about these things happening to her. She said she didn't because she was too scared. She said one time her husband came to visit her in Zhuhai with her son and a man tried to hit her husband with an iron stick. She said that he accused her husband of trying to enter the premises without permission, even though he knew who her husband was.

   99.I asked the applicant about the Mr Wong she had referred to. She stated that she had been in Zhuhai for two months when he was sent to replace her. She stated that she needed to stamp an official document to get the position but that he was sent to replace her with the official paperwork. I asked how long she stayed in Zhuhai after that. She said she couldn't stay, which was why she returned in May 1989.

   100.I asked her whether she had ever seen any of the men who had assaulted her, including Mr Jia, since May 1989. She stated that she hadn't because she had hid from them. She stated she had no mobile phone but she did have a pager and that they would page her. She stated that Mr Jia did and so did Mr Zhang Hua Guo and the others. She stated they would page her often because they were trying to find her. 

   101.I asked what she feared they would do if they found her. She said that these men were trying to please Mr Jia to get benefits from him. She stated that she feared being sexually assaulted or bullied by them. I asked her if these men did anything to her husband between the time when she left Zhuhai and when she was arrested. She stated that she didn't know. She said she was shocked to find out her husband had been put in prison as well.

   102.I summarised the court verdict for her. I noted that it stated that she and her husband had been convicted of accepting bribes, that he was sentenced to 6 years in prison and that she was sentenced to 3 years with a four year suspended sentence. I read to her the paragraph in the court verdict (see T1, folio 121) about what was confiscated from her and her husband. She said the charges were different but that they did take things from her.

   103.I asked her whether her husband and a Mr Zhang had been sent to Zhuhai to purchase gold and jewellery in March 1989. She said the purchase of gold happened. She said that she remembered that during dinner her husband said the bank had had an informal meeting because many branches of the bank didn't have enough customers and so they needed to solve this problem.

   104.I summarised the part of the court verdict that set out what she and her husband were found to have done by taking commissions (see T1, folios 120 – 119). She stated that she didn't get any money. She stated she was just trying to help her husband and a colleague. I asked if they receive any commissions. She stated that she didn't. She stated that the bank offered her money but that she didn't take it. I put to her that the verdict, which set aside an original conviction on bribery charges, was that she and her husband had not committed crimes because there were economic benefits to the bank and society from what they had done and that the commissions they had received were legal, which is why they were found not guilty. She repeated that she didn't take any money. She stated that her uncle wrote a letter to the court and that was why the court found in her favour because they were very sensitive about letters from people in America. I asked her if her husband received a commission from the bank or anyone else. She stated he was a good man but not adventurous and that he had not received money from anyone. I asked if he had arranged a scheme by which the gold and jewellery were distributed to the branches of the bank. She stated that his boss had sent them to do these things and that she had given information to help them to do the things his boss had asked them to do.

   105.I put to her that it seemed unusual for her to arrange for these things to happen with her husband if she wanted to get away from Zhuhai because she was the victim of sexual assaults. She stated it was not that unusual. She stated that it was just part of his job to go to companies and negotiate with other people and that she just gave him some contacts.

   106.I asked whether she was charged with anything else when she was arrested. She stated that there were many things they were charged with as an excuse to put them in prison. She stated they were framed because Mr Jia wants to take revenge and also because she had been involved in the “6 April” movement.

   107.I asked her how she had been involved in the “6 April” movement. She stated that she had attended demonstrations while she was studying English at university. I asked how many demonstrations she attended. She stated that she attended one very big demonstration during which students set fire to shops. I asked her if she ever did anything else. She stated that she spoke about it in private to other people but that that was the only public activity she had been involved in. She stated she often spoke about corruption in the CCP. I asked her whether she ever publicly expressed her views other than by attending the protest. She stated that when she was working for the Ministry of Organisation she would say these things during meetings. She stated she was young and making suggestions but that after she went to prison she found that the things she was concerned about were true. I asked her if, between when she was in Zhuhai and when she went to prison, the only thing she did was attend the one “6 April” demonstration. She stated this was correct. She stated there were many other students involved and they were on television. She stated that the Mayor of the GYC said that he had seen her on television and told her off, saying, “How could you be so stupid?” and that it was very dangerous. She said that she had a megaphone and shouted at the demonstration. I asked her why, if she'd been identified on television, she had not been picked up within a few days of the protest. She stated it was because she was in hiding. I asked if she was at university up until the time she went to the consulate and was arrested. She stated that she was. I put to her that that was not being in hiding. She stated that the authorities didn't know she was there. She said unlike in Beijing the authorities did not try to crack down on the protest straight away.

   108.I put to her that if she had been identified as having been involved in the protest she would have been charged and convicted with an offence when she was taken to prison and that the court verdict did not include a charge or conviction of the sort. She stated the court verdict was an excuse. I put to her there was no reference in the court verdict to having been charged in any way in relation to protests or being of any interest in relation to protests. She stated that it was political so they wouldn't put this in the court verdict. I asked her why, if the authorities wanted to punish her because of her involvement with protests, they would allow the court verdict to be written and her to be acquitted. She stated that she was let off because she had help from a lawyer and because her uncle wrote a letter and that because of the conflict between China and the USA she was allowed out. She said this happened often. She said that if they want to give you trouble they say you have financial issues.

   109.I put to her that if they thought she had been involved in protests they would have charged her and convicted her because of that. She repeated that the protests had been in a small city not like in Beijing. I put it to her that I found it difficult to accept that the government would pretend she was involved in bribery when she was actually wanted for involvement in protests. She stated that they could do that.

   110.I stated that I put significant weight on the fact that the court document did not conclude any reference to political protest. She stated it was because the protests had not happened in Beijing and she was not one of the organisers. I asked her if this meant that she was of no interest to the government because of their involvement with the protests. She stated she was of interest because of Mr Jia.

   111.I asked her if she had been released in prison in April or July 1990. She said it was probably October. I asked her if she reported to the police once a month up until the time she received the court verdict. She stated that she could not remember. She stated that she didn't get a job or her furniture back. I asked if she had any contact with Mr Jia or any of the other men who she claimed had assaulted her between the time she was released from prison and when she came to Australia. She stated that she went to Chengdu but they would ask her mother where she was and that she got calls on her pager. I asked how she knew the calls on her pager were from Mr Jia. She said she occasionally responded to the calls to find out who was calling. I asked the applicant when the last time it was that Mr Jia attempted to contact her was. She said she could not remember but sometimes it was others acting on his behalf.

   112.I asked the applicant if, since she had come to Australia, she had ever publicly expressed her political beliefs about the CCP. She stated that she had, often, during conversations with other people. I asked if she ever spoken publicly attended demonstrations or written articles. She said she had not because she was very busy and because her mother told her not to speak publicly and not to attend gatherings because of her family in China.

   113.I asked the applicant if the reason she came to Australia was to get away from Mr Jia and to get away from the Chinese government. She agreed, stating that she feared she could be taken back to prison whenever they wanted to send her there.

   114.I asked the applicant why she feared being imprisoned if that had not happened during the ten years she was in China after her release from prison. She replied that she had been in hiding and didn't have a job. I asked her why she took a job with a business magazine if she was in hiding. She replied that the magazine sacked her and that she had needed to feed herself to survive. She said that she hadn’t been on television and that she used another name on the by line for the articles she wrote.

   115.I asked the applicant why, if she left China because she feared being harmed, there was such a long time between when she came to Australia and when she sought protection. She replied that because her uncle died she couldn't go to the USA. I suggested to the applicant it was hard to believe that she feared harm in China when she was in Australia for so long and had so many dealings with the department, while receiving immigration advice, but did not apply for protection. She replied that protection visas were never mentioned by her agents. I suggested to her that it may have been that she never told her agents about fearing harm in China because she didn’t actually fear harm there and that was why they did not advise her about protection visas. She replied that she had told everyone at every agency about her fears.

   116.I advised the applicant I had serious concerns about her credibility, in part based on inconsistencies between what she was telling me and other information I had, which I would put to her in writing after the hearing. The applicant stated that she couldn’t say anything about her fears in China because she didn’t want to talk about the sexual assaults she had suffered and because her mother said she shouldn’t say anything bad about CCP. I suggested to the applicant that it was common knowledge that the Tiananmen Square protests led to many Chinese citizens being allowed to remain in Australia and that I found it very hard to believe that a Chinese person in Australia and in contact with the Chinese community would not know they could seek advice about being allowed to remain here because of involvement and the Tiananmen Square protests, if not for other reasons.

   117.I advised the applicant that I regard the court verdict documents to be genuine, that I accept that she was found not guilty but also that she and her husband spent time in prison and in a labour camp. I advised the applicant that my assessment of the country information about convictions indicated that those convicted for politically related crimes may continue to face a risk of harm but that in her case she appears to have been charged with corruption rather than political offences and that, in any event, she was found not guilty. The applicant replied that the paperwork doesn't reflect what happened. She stated that they find any excuse to put you in an undesirable position. She stated that her mother called her uncle who wrote a letter to the court and that because of the conflict between China and USA, she was released.

   118.I advised the applicant that my assessment of the country information in relation to ex-prisoners suggested they may face monitoring, harassment and denial of access to employment but that this may not amount to serious harm. I put to her that she was in any event only sentenced to a suspended sentence and that on her evidence the authorities were willing to release her before she received a verdict. I also noted the reports that it was prisoners who had serious criminal records involving serious physical assault who had problems.

   119.I also advised the applicant that my assessment of the relevant country information suggested that having a profile as a failed asylum seeker, returnee, having spent a long time in a Western country, having had family members held in labour camps during the cultural revolution or having relatives living in the USA and Taiwan did not appear to lead to being imputed with having an anti-government political opinion or being identified as a spy or a terrorist in a way that would lead to a risk of harm as a result.

   120.In relation to the applicant having used a fraudulently obtained passport, I put to the applicant that even if I accepted there was a possibility the applicant would be prosecuted for misuse of a Chinese passport, any conviction and sentence would be under a law of general application which, on the country information before me, did not appear to be discriminatorily applied. I also advised her I would have to consider whether there was a real chance she would actually be detained even if she was charged with or convicted of passport offences.

   121.I put to the applicant that I may decide that she had been sexually assaulted in the past but that she was no longer of any interest to the Chinese authorities or anyone else as a result. She responded that she may still be hurt because her reputation was ruined. She said she would be seen to be dirty person and so could be assaulted whenever anyone wanted.

   122.The representative submitted that in assessing the risk of the applicant being detained on her return to China, her particular vulnerability should be taken into account. I asked the applicant what she thought the effect of prison would be on her. She said it wouldn’t be just the 10 days – she would be imprisoned for the rest of her life.

   123.I asked the applicant if any members of her family face difficulties in China after she left because of her profile. She said she was not in touch with them and they don't contact her. I asked if she was in contact with her ex-husband. She stated that she was not.

1. On 3 July 2013, after the second hearing before the reconstituted Tribunal, the Tribunal sent the applicant a letter under s.424A of the Act. The Tribunal asked for a response by 17 July 2013. The letter noted that the applicant had not stated, during her many dealings with the department, the Migration Review Tribunal and the Minister, that she feared being harmed in any way if she were to return to China, other than by her family not welcoming her and by being isolated in China. The s.424A letter also noted that the applicant had admitted that she had provided false information in support of visa applications and requests for ministerial intervention on several occasions. The applicant sought further time to respond to the s.424A letter. That time was granted. The agent provided a response on 19 July 2013.

2. On 1 August 2013, the applicant provided further written submissions.  The submission referred, among other things, to the applicant wishing to meet a psychologist.  On 7 October 2013, the Tribunal asked the applicant’s lawyer whether the report from a psychologist would be provided.  The representative sent the Tribunal a report from a psychologist later on 7 October 2013.  The Tribunal summarised that report at paragraph 132 of its reasons for decision, which is as follows:

   Later on 7 October 2013, the tribunal received a letter from the offices of the representative, enclosed with which was a report from a counsellor and psychotherapist (T2, folios 269 – 270), who is currently studying psychology, which can be relevantly summarised as follows:

   a.The counsellor met with the applicant once on 6 August 2013 and read the statutory declaration referred to at [56] above. She also states that she read a statutory declaration dated 1 August 2011 but it is unclear to which document she is referring.

   b.The counsellor is of the opinion the applicant has presented with symptoms that are consistent with those of a victim or survivor of a traumatic sexual assault, reporting hypervigilance, panic attacks and anxiety, depression, fear, anger, confusion, nightmares, flashbacks and sleeplessness.

   c.The applicant stated to the counsellor that she did not want to think about what had happened to her in China because of her shame.  The applicant narrated her sexual assaults history to the counsellor and was emotionally distressed while doing so.

   d.The counsellor is of the opinion the applicant will not be able to “successfully function” if she returns to Sichuan province and would be unable to live in another province given her vulnerability and susceptibility to further psychological breakdown.

   e.The applicant reported to the counsellor having nightmares about men in uniform chasing her and there being no where for her to hide.

3. The Tribunal made its decision on 2 May 2014. The Tribunal concluded that the protection application was validly lodged.  The Tribunal noted that the applicant had said that she had signed the relevant part C and part B of the visa application.  The applicant also said to the Tribunal, as reconstituted, that it was her handwriting on part C of the version of the forms that were provided to the department on 22 December 2011. 

4. The Tribunal concluded that the applicant had signed and was aware of the content of the version of the forms that was provided to the department on 22 December 2011.  The Tribunal accepted that the applicant was not aware of the contents of the visa application forms lodged on 23 November 2011 and had not signed them.  However, the Tribunal considered that the applicant had lodged a valid application for a protection visa on 22 December 2011. 

5. The Tribunal noted that the delegate interviewed the applicant on 4 January 2012.  That was after parts B and C, signed by the applicant, had been lodged with the department on 22 December 2011.  The delegate’s decision was made on 17 February 2012.  In the circumstances, the Tribunal concluded that the delegate considered the visa application which was validly lodged on 22 December 2011.

6. The Tribunal accepted that the applicant was a citizen of China.  The Tribunal noted that the applicant feared harm from Mr Jia and set out the reasons advanced by the applicant for that at paragraph 140 of its reasons for decision in the following terms:

   The applicant fears harm at the hands of Mr Jia, his current and former associates and supporters, the Chinese government and security forces, members of the CCP and members of the Chinese community generally because:

   a.  the applicant was the victim of prolonged sexual abuse at the hands of Mr Jia and she refused to continue a sexual relationship with him;

   b.  her husband complained to the Chinese authorities and the CCP about Mr Jia’s conduct;

   c.  the applicant was charged with a number of criminal offences, including prostitution and treason because Mr Jia wanted to punish her;

   d.  the applicant and her husband were initially convicted of but then acquitted of corruption related criminal offences;

   e.  the applicant and her husband spent several months in prison after being charged with and convicted of criminal offences;

   f.   the applicant resigned from the CCP;

   g.  the applicant participated in a protest at the time of the Tiananmen Square protest;

   h.  the applicant has family members who live outside China, in Taiwan and the USA;

   i.   the applicant has spent over a decade living in Australia;

   j.   the applicant obtained a Chinese passport using false identity documents and travelled on that passport to Australia; and

   k.  the applicant has contracted hepatitis B.

7. The Tribunal accepted that the applicant worked for the GYC Municipal Commission from 1987.  The Tribunal also accepted that Mr Jia had a position in the CCP in GYC.  The Tribunal otherwise said it had substantial doubts about the credibility of the applicant’s claims.  The Tribunal said it gave significant weight to the length of time between the applicant arriving in Australia and lodging her protection visa application.  The Tribunal also gave significant weight to the fact that the applicant lodged a number of visa applications and made several requests for ministerial intervention rather than seeking protection, and in making those applications made no reference to fearing harm in China except for feeling isolated or facing disapproval from her family.

8. The Tribunal rejected the applicant’s claim that she had participated in anti-government protests in 1989 because she had not claimed that earlier.  The Tribunal accepted that a person who had suffered prolonged sexual abuse may show great reluctance in revealing what had happened:   However, the Tribunal did not accept the applicant’s explanations.  The Tribunal noted the applicant’s claim that she did not know that she could apply for protection in Australia.  However, the Tribunal rejected that claim as implausible. 

9. In relation to the psychologist’s report, the Tribunal noted that the counsellor had only had one session with the applicant.  The Tribunal noted that the counsellor stated that the applicant had recounted her sexual history.  However, the Tribunal noted that there was no indication in the report whether the history, as recounted to the counsellor, was consistent with the history given by the applicant to the Tribunal as originally constituted or as reconstituted.

10. The Tribunal accepted that the applicant was suffering from

    
    

    post-traumatic stress disorder. However, the Tribunal considered that the counsellor’s report should be given little weight in assessing whether the applicant had been the victim of sexual abuse as she claimed.  The Tribunal did not accept that the applicant had been the victim of sexual abuse at the hands of Mr Jia or anyone else.  The Tribunal considered that the post-traumatic stress disorder the applicant suffered was more likely to be the result of the time the applicant had spent in prison. 

11. The Tribunal accepted that the applicant had been imprisoned in China.  The Tribunal gave considerable weight to a document that the applicant provided.  It showed that the applicant and her husband had been convicted in 1992 for bribery offences but that the convictions were overturned later that year.  The Tribunal did not accept that the conviction and subsequent acquittal resulted in the applicant facing a real chance of suffering serious or significant harm. 

12. In other respects, the Tribunal did not accept that the applicant was a witness of truth.  The Tribunal considered whether the applicant faced harm on the grounds of her actual or imputed political opinion but concluded that the applicant did not face persecution or significant harm on those bases.  The Tribunal also considered whether the applicant faced serious or significant harm by reason of her membership of various particular social groups. However, the Tribunal concluded that the applicant did not face serious or significant harm for any of those reasons. 

13. The Tribunal accepted that the applicant may face a degree of societal discrimination, particularly in the form of access to government employment, because of the time she spent in prison and because she suffers from hepatitis B.  However, the Tribunal did not accept that these matters would rise to the level of serious or significant harm.  The Tribunal noted that the applicant had used a fraudulently obtained genuine passport.  However, the Tribunal did not accept that there was a real risk that the applicant would suffer serious or significant harm as a result.

14. The Tribunal considered that there was not a real risk that the applicant would suffer arbitrary arrest, detention, imprisonment, physical assault or torture for any reason.  The Tribunal did not accept that the applicant faced a real chance of persecution on any ground or a real risk of serious or significant harm for any reason.

15. The applicant has filed an amended application in this court.  The grounds of application are as follows: 

    1. In determining that the applicant is not entitled to the grant of a protection visa, the Tribunal exceeded its jurisdiction or committed a jurisdictional error.

    2.  The decision of the Tribunal was affected by Legal error.

16. The application then gives certain particulars.  The first particular is that:

    The Tribunal has misapplied a Legal test, or failed to comply with the statutory procedure.  The Tribunal reviewed the application invalid for a protection (subclass 866) visa. 

17. The applicant acknowledged to the Tribunal that after her protection visa was initially lodged on 23 November 2011, she had subsequently signed a further part C of the protection visa application form along with a further part B, and they were lodged on 22 December 2011.  She told the Tribunal that she was aware of the content of those forms and that a protection visa application had been lodged on her behalf. 

18. There may have been some initial non-compliance with the requirements of the form.  But that does not mean that there was a failure to substantially comply with the requirements of the form.  It seems to me that the Tribunal correctly decided that the application was validly lodged on 22 December 2011.  In this context, I refer to the decision of the Federal Court in SZJGO v Minister for Immigration (2006) FCA 393 at [12] and [16] which are as follows:

    12.It was sufficient that the application recorded the Convention basis of the appellant’s claim to be a refugee. In my opinion, the fact that the application was not signed by the appellant, his residential address was incorrect and that the details provided of his claims were not authorised do not prevent “substantial compliance” from being achieved. The migration agent’s name and address were completed and correct (s494D of the Act). It was a false application but it was, in formal terms, a valid application (NAWZ at [16]-[18]).

    …

    16.The appellant authorised and caused his migration agent to fill in the visa application form on his behalf.  While he did not specifically authorise the inclusion of incorrect or incomplete information, as in NAWZ, s 98 applies. Section 98 does not require a covert purpose to mislead. The Federal Magistrate was not in error in finding that, in the circumstances, the visa application was valid.

19. Moreover, s.98 of the Act provides that:

    A non-citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

20. The next particular relied on by the applicant is that:

    The Tribunal has a prejudice against the applicant. 

21. There is nothing before the court, in the Tribunal’s reasons or otherwise, that supports that claim.  The applicant told the court today that someone had manipulated the Tribunal and that the Tribunal did not want to believe her.  The applicant did not identify anyone who she claimed had manipulated the Tribunal.  The applicant seems to have suggested that because the Tribunal did not accept the truth of what she eventually claimed, that the process was therefore unfair.  However, the Tribunal is entitled to form a view of the applicant’s credibility, and an adverse view does not mean that the Tribunal is prejudiced. 

22. The applicant has also filed written submissions.  They deal, at page

    
    

    4 particularly, with the allegation that the Tribunal was prejudiced.  The submissions seem to largely be based on the fact that the Tribunal did not accept the applicant’s claims. However, as stated, it is open to the Tribunal to reject an applicant’s claims on the grounds of credibility.  It does not seem to me that the applicant has identified anything that would amount to the Tribunal being prejudiced against her.  The Tribunal’s reasons appear to me to be careful and exhaustive.  They do not appear to me to be consistent with the Tribunal being prejudiced against the applicant.

23. The third point in the applicant’s particulars is that:

    The Tribunal failed to hold a hearing or allow the applicant to present oral evidence. 

24. That is patently not true.  The Tribunal, as reconstituted, conducted two oral hearings and allowed the applicant to present oral evidence at length. 

25. The next point raised by the applicant in the particulars in the amended application is that:

    The Tribunal failed to consider the fact and evidence presented. 

26. That is also clearly not true.  The Tribunal considered the facts and evidence presented at some length.  The Tribunal rejected the applicant’s claims for reasons which it gave.  It appears to me that the Tribunal’s conclusions were open to it.

27. The next point in the particulars to the applicant’s amended application is that:

    The Tribunal failed to comply with the requirements of s.425 of the Migration Act 1958.

28. The applicant has not identified any particular respect in which the Tribunal failed to comply with s.425 of the Act. I have been unable to detect any.

29. The next and final point in the particulars to the applicant’s amended application is that:

    The Tribunal failed to comply with rules of natural justice and contravened s.422B of the Migration Act 1958.

30. The applicant has not explained how the Tribunal is said to have failed to comply with the rules of natural justice. The Tribunal, as reconstituted, sent the applicant two letters under s.424A of the Act. The Tribunal also raised significant matters with the applicant during the two oral hearings. I am unable to detect any breach of the rules of natural justice in this case.

31. The applicant said in her written submissions and also in her oral submissions before the court today that she was represented before the first Tribunal by a migration agent by the name of Michael Huang. The applicant said that the Tribunal, as reconstituted, had erred by taking into account the decision of the tribunal, as originally constituted,  which had been infected by the mistakes made by Mr Huang.  The applicant relied on paragraph 50 of the Tribunal’s reasons as evidence of that.  Paragraph 50 is as follows:

    The previous tribunal did not accept the applicant’s claims as credible. The previous tribunal identified a number of inconsistencies between information the applicant had provided to the department and the previous tribunal, both in writing and orally. The previous tribunal did not accept the applicant’s explanations for those inconsistencies and gave significant weight to the length of time between when the applicant arrived in Australia and when she first made her protection claims. As a result, the previous tribunal did not accept that the applicant had been imprisoned in China, had been the victim of sexual harassment and assault in the ways that she claimed or faced any risk of suffering serious or significant harm if she were to return to China.

32. As can be seen, the Tribunal as originally constituted did not accept that the applicant had been imprisoned in China whereas the Tribunal as reconstituted. Consequently, it is clear that the second Tribunal applied its own mind to the facts of the case.  Moreover, it was open to the Tribunal to look at the whole history of the matter.  I am unable to detect any error made by the Tribunal in relation to the involvement of Mr Huang.  The Tribunal, as reconstituted, did not receive any submissions from Mr Huang. 

33. By the time of the second Tribunal hearing, the applicant was assisted by the Refugee and Immigration Law Centre.  They clarified in written submissions the material that the applicant relied upon and the Tribunal was well aware of that.  The Tribunal conducted two hearings and thereby gave the applicant an opportunity to correct any errors caused by the former representative. 

34. The applicant in oral submissions also said that the Tribunal had not taken into account the documents at supplementary court book pages 25 to 36.  She said these documents were provided by her agent at the second hearing.  She said they consisted of authorised translations.  She said that the Tribunal relied on translations of the relevant documents that Mr Huang had provided.  She said that Mr Huang’s translations were full of errors. 

35. The documents at supplementary court books 35 and 36 are reproduced at court book 85 and 86.  They appear to be identical. However, in any event, the documents relate to the question of the applicant’s conviction and acquittal.  The Tribunal accepted that the applicant had been convicted and acquitted, so it is difficult to understand what the relevance of the additional documents is to any jurisdictional error that might have been made by the Tribunal. 

36. The relevance of the other documents at supplementary court book pages 25 to 34 was not explained to the court. It was not clear that they were before the Tribunal. Consequently, it is difficult to see how the Tribunal could have made a jurisdictional error in not referring to them. In any event, the Tribunal is not obliged to refer to every piece of evidence an applicant relies on. I am unable to see how the documents at supplementary court book pages 25 to 34 are indicative of jurisdictional error.

37. The applicant also said that Mr Huang had friends in the Tribunal. However, it is unclear how that might have led to a jurisdictional error on the part of the Tribunal. 

38. All in all, I am not persuaded that there is any jurisdictional error in the Tribunal’s decision or decision making process. Therefore, the application must be dismissed.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate: 

Date: 26 August 2015