MZXKQ v Minister for Immigration - [2007] FMCA 472

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZXKQ & ORS v MINISTER FOR IMMIGRATION & CITIZENSHIP & ANOR

[2007] FMCA 472

MIGRATION – Protection visa – Refugee Review Tribunal – whether jurisdictional error.

Migration Act 1958, ss.422B, 424A

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
SZEEU v Minister for Immigration & Indigenous Affairs [2006] FCAFC 2
Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244
Minister for Immigration & Multicultural Affairs Ex parte Durairajasingham (2000) 168 ALR 407
VAF v Minister for Immigration & Multicultural Affairs (2004) 205 ALR 471

Applicants:

MZXKQ, MZXKR AND MZXKS

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

MLG 800 of 2006

Judgment of:

McInnis FM

Hearing date:

14 March 2007

Delivered at:

Melbourne

Delivered on:

5 April 2007

REPRESENTATION

Pro Bono Counsel for the Applicants:

Mr A Hands

Counsel for the First Respondent:

Ms S. Burchell

Solicitors for the First Respondent:

Clayton Utz

ORDERS

The Application be dismissed.
The Applicants shall pay the First Respondent’s costs fixed in the sum of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 800 of 2006

MZXKQ, MZXKR AND MZXKS

Applicants

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

In this matter the Applicants seeks judicial review of a decision of the Refugee Tribunal (the Tribunal) dated 9 May 2006. The Tribunal affirmed a decision of a delegate of the First Respondent to refuse to grant to the Applicants protection visas.
The First Applicant (the Applicant) was born on 25 May 1962. He was born in Shanghai in the People's Republic of China (PRC). He is an ethnic Chinese and a citizen of the PRC. The Applicant is in a de facto relationship and has one child, a son. The Applicant's wife and son are the other Applicants in this application, though it is only the Applicant who makes a claim that he would face persecution of he returned to China because of his political profile and belief. Accordingly, I shall continue to refer to the Applicant when dealing with this application. The Applicant is a Buddhist and his first language in Mandarin.
The chronology of events has been accurately set out in the Applicant's contentions of fact and law and includes the following:
·The Applicant began a de facto relationship with his current partner in Shanghai and flew to Melbourne on or about 14 November 1996. The Applicant's partner is a citizen of PRC. The Applicant's son is two years old and was born in Melbourne. The Applicant's parents are deceased. They were both citizens of the PRC. The Applicant has one sibling who is a citizen of and lives in the PRC. In 1991 the Applicant was refused a passport when he first applied for one.
·The background to the PRC's refusal to grant a passport was referred to in the Applicant's evidence before the Tribunal. The Applicant claimed he participated in a pro-democracy candlelight vigil in 1991. He handed out pamphlets. At the time he was wearing glasses. Police officers and plain clothes police allegedly grabbed him and pushed him to the ground and drove his head into the ground. He claimed that his glasses broke and shards of broken glass were driven into his face and that he still bears a scar under his left eye.
·The Applicant spent three years in Singapore between 27 April 1992 and 27 June 1995. He arrived in Australia on 14 November 1996 on a subclass business (short stay) visa under a valid PRC passport. The original passport was issued on 2 July 1992. It was valid for five years. It was extended on 21 January 1997 until 31 December 1999. The Applicant holds a current PRC passport issued at the Consulate General of the PRC in Melbourne.
·The Applicant did not seek an extension of his visa after it expired and became unlawful. On 19 August 2005, the Applicant, his wife and son were located at a residence in Cheltenham during a visit by departmental officers. The Applicant was detained and subsequently released on payment of security and under a number of conditions.
·In his evidence before the Tribunal the Applicant explained that he did not apply immediately for a protection visa because he was ignorant of the law and that he feared if he did his family in China would be persecuted.
·On 22 September 2006 the Applicant lodged an application for a protection visa with the First Respondent's department. The Applicant's wife and son made claims as his family members.
·On 30 June 2000 a delegate of the First Respondent informed the Applicant and his family that the protection visas had been refused.
·On 23 December 2005 the Applicant lodged an application for review of the delegate's decision with the Tribunal.
·On 9 May 2006 the Tribunal affirmed the delegate's decision as stated earlier, to refuse to grant protection visas to the Applicants.
·On 23 June 2006 the Applicant applied to this court to review the Tribunal's decision.
The Applicant was represented by pro bono counsel and attended court with the assistance of an interpreter. At the outset it should be noted that the Applicant was granted leave to amend the name of the First Respondent by deleting the words "Multicultural Affairs" and in lieu thereof inserting the word "Citizenship". In addition the Applicant was granted leave to file and serve an Amended Application by 5 pm on 16 March 2007. The amendment was confined to the ground of review seeking to rely upon s.424A of the Migration Act 1958 (the Migration Act) and raised issues which shall be referred to later in this judgment but which were set out in some detail in the Applicant's contentions.

The Tribunal's decision

In its decision the Tribunal considered the Applicant's claims and evidence. It referred to the documentary material relied upon by the Applicant, both before the hearing and also at the hearing. In addition the Tribunal referred to what it described as post-hearing submissions. In its decision the Tribunal refers to the chronology of events set out by way of background earlier in this judgment. Reference was made, however, to the protection visa claims which the Tribunal summarised in the following terms:
“He was persecuted in China because of his political profile in the student movement in Shanghai on 4 June 1989.
He was forced to leave China in 1992 as he feared a recurrence of persecution experienced in 1989 and 1990, inflicted by the Chinese authorities.
On return from Singapore in 1995 he suffered further persecution from the authorities who monitored his activities, and had to keep on the run to avoid persecution.
In August 1996 he sought the assistance of a friend to obtain an Australian visa and departed China without approval and without coming to the notice of the authorities.
He fears he will be persecuted on return to the PRC as he has attracted adverse attention from the Chinese Communist Party (CCP) because of his political profile, his anti-communist views and his devotion to the Anti-Chinese Communist Movement. His wife and child will face persecution by the CCP due to his political involvement in China and in Singapore. His child will be deprived of the right of freedom and the right of an education.”
(Court Book p.185)
The Tribunal recited the further information provided by the Applicant at the hearing which referred to his employment in China and Singapore. Specific reference was then made to the Applicant's political activities. The Applicant claimed that he and his friends were not able to have a direct impact on the pro-democracy movement from China and decided to send money to support the movement instead whilst he was in Singapore. He claimed to have returned to China after his brother was detained by the Public Security Bureau (PSB). His brother was detained because the Applicant had been transferring money to him in China and received and distributed these funds.
The Tribunal referred to the Applicant's claim that his brother was sentenced to two years' gaol, but spent only one year in detention because he was released after the Applicant returned and negotiated his early release with the local government authorities. Reference was then made in further detail to the Applicant's claims concerning his brother and his complaints that the local authorities had unfairly convicted his brother. The Applicant claimed that he was asked to report weekly to the local PSB and that they kept watch outside his house. He then gave details of his departure to Australia.
In its decision then refers to the Applicant's employment history in Australia and otherwise explored information contained in his son's birth certificate. It is of significance that the Tribunal then proceeded to ask the Applicant what would happen to him if he returned to China. The Tribunal records the following:-
“At the hearing the applicant was asked about what would happen to him if he returned to China. He said that if he returns to China he will be persecuted because he has supported the pro-democracy movement. He was expelled from his work unit and police used physical force and hit him during a candlelight ceremony in June 1991. He still has a scar on his face from that incident. In response to the country information about the changes that have taken place in China since the pro-democracy movement in the late 1980’s, the applicant stated that he does not believe the stated view of the PRC government. The Tribunal put to the applicant that the reports consistently indicate that the PRC authorities have not treated harshly people who merely participated in demonstrations and rallies or collected money in support of the pro democracy protest activity. Reports have provided no indication that these activists are still being pursued by the authorities (see for example DFAT cable.BJ51854 of 21 September 1992; Peter Coyne ‘Dissent in China – 1993; US Country Reports on China for 2004 published February 2005). The applicant responded that the authorities do not mean what they say. He will be labelled an anti-revolutionary because of his past profile.
At the hearing the applicant was asked about his activities in Australia and his delay in lodging his lodged review application. He was asked why he only lodged his application in September 2005 following his detention as an illegal resident, having been in the country since November 1996, a period in excess of 8 years. The applicant said that he did not understand the laws and moreover his family in China would have been labelled as anti-revolutionary. The applicant was asked how he was able to travel in and out of China using a passport issued in his own name and reissued in August 2005 if he was of adverse interest to the authorities. The applicant said that when he returned to China from Singapore in 1995 the did not register for his household registration.”
(Court Book pp.186-187)
The Tribunal then proceeded to refer to a submission dated 21 March 2006 (the post-hearing submissions) (Court Book p.86) It is noted that the submissions were forwarded in the form of a statutory declaration which, it is noted, appears to be identical to another statutory declaration which it appears was provided earlier by the Applicant. The declaration is dated 16 March 2006. For some reason, which is not readily apparent, a further letter was forwarded by the Applicant's representatives on 21 March 2006, again enclosing what appears to be the same statutory declaration and, on this occasion, also enclosing country information (Court Book pp.98-176).

Post Tribunal hearing submissions

The Tribunal then in its decision relevantly states the following:
“A submission dated 21 March 2006 refers to the claims made by the applicant at the hearing and submits for the first time that he has been a political activist since his arrival in Australia. In this submission the applicant states that he has attended public activities from 1990 to 2006 in Australia; he has published articles in the Epoch Times about the Communist Party and the progress of democracy in Chine; he has attended more than 100 public events in Melbourne condemning the Communist Party in China. The articles were not published in his name and he did not disclose his identity to the editor. He referred to a list of events in which he participated during the period May 2003 to January 2006. These events included his attendance at conferences and public protests to support resolution of the Taiwan issue, Falun Gong leaders, Chinese defectors, human rights protests and withdrawal of support for China’s one-party communist system. In this submission the applicant also states for the first time that in Singapore he established a support base for dissidents of the Chinese Communist Party.
A statutory declaration dated referred to his involvement as a supporter of the June 1989 pro-democracy movement and reiterates his claims about his political activity in Australia (as set out in submission dated 21 March 2006). Attached to this submission is a copy of the US Department of State Country Reports on Human Rights Practices – 2004, published February 2005).”
(Court Book p.187)
It will be noted from the extract that the Tribunal specifically referred to the country information document entitled US Department of State Country Reports on Human Rights Practices - 2004, published February 2005.
In its findings the Tribunal, after setting out the claims referred to earlier in this judgment, then decided that whilst it accepted the Applicant was a national of the PRC, it was not satisfied that the Applicant would face a real chance of persecution in the reasonably foreseeable future for the reasons he has claimed. The Tribunal made specific adverse findings which I am satisfied have been accurately summarised in the First Respondent's contentions of fact and law as follows:
“11.Having considered the evidence as a whole, the Tribunal was not satisfied that the applicant was a person to whom Australia had protection obligations because: [CB 187-190]
(a)the Tribunal found that any involvement the applicant had in the pro-democracy movement in China was so remote that there was no real chance he would face persecution as a result; [CB 188]
(b)the Tribunal did not accept that the applicant had sought to avoid the authorities on his return to Singapore in 1995 or that he was not of adverse attention to them when he departed in 1996. The country information indicated that an individual would not have been able to obtain a passport to depart the country if that person was of serious adverse interest to the authorities. The applicant was able to obtain a passport in his own name and legally depart China, and had renewed his passport on a number of occasions, including as recently as August 2005. This demonstrated that he did not have a profile of concern nor was he of interest to the Chinese authorities; [CB 188-189]
(c)the Tribunal did not accept that he established a support base for dissidents of the CCP in Singapore; [CB 189]
(d)the Tribunal considered the post hearing submission where the applicant indicated that he had attended more than 100 public gatherings and published many articles during the period 1990 to 2006, which were all published under a pen name. The Tribunal noted that the applicant did not refer to any political activity in Australia during the hearing, despite ample opportunity to do so; [CB 189]
(e)the Tribunal did not accept that the applicant had been persecuted in the past for reasons of his political profile nor would he be persecuted in the reasonably foreseeable future; [CB 189] and
(f)the Tribunal did not reach a concluded view on the fact that the applicant had given contradictory information at the hearing about his employment since he arrived in Australia nor that he had not lodged a protection visa application until eight years after his arrival.”

The issues

The issues now raised by the Applicant, including the issue which is the subject of the Amended Application, are briefly summarised in the First Respondent's submissions as follows:
“1.Whether the Tribunal failed to take into account relevant considerations by failing to:
(a)     assess the nature of the applicant's fear of persecution if he     returned to China;
(b)     take into account the applicant's post‑hearing submissions and
(c)      consider the country information in full.
(2)Whether the Tribunal failed when dealing with the Applicant's sur place claims by failing to consider:-
(a)     the applicant's political profile in Australia and failed to make a finding on this claim and
(b)     his public activities in Australia and openness of his appearance in public in events against the CCP.”
(3)Whether the Tribunal failed to comply with the requirements of section 424A of the Migration Act, failed to accord the applicant natural justice and/or failed to consider an integer of the applicant's claim.”

Applicant's submissions

The Applicant relied upon particulars subjoined to ground 2 of the application which referred to the Tribunal failing to take account relevant considerations when assessing the Applicant's fear of persecution, failing to take into account his submissions after interview which provided details of his fear, basing its decision on United States country reports in China, failing to consider the country information in full and without consideration of the Applicant's political profile in Australia, rejecting the Applicant's claim without findings. Further the particulars appear to assert that the Tribunal failed to consider relevant information including the Applicant's public activities in Australia and openness of his appearance in public in the activities against the CCP.
As I understand the submissions for and on behalf of the Applicant, it is submitted that the Tribunal did not consider the Applicant's political profile in Australia and indeed, made no finding of fact in relation to that claim.
The public nature of his pro-democracy activities in Australia, it was argued, was not taken into account. This, it was claimed, was a breach of the requirements of the Tribunal to consider relevant information (see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 per Mason J at 39-41) (Peko-Wallsend).
The criticism made of country information appears to be criticism that the Tribunal, whilst reciting the country information report provided by the Applicant in post-hearing submissions did not otherwise deal effectively with that additional information, but rather relied upon other country information in reaching its conclusion.
In relation to the claimed noncompliance with s.424A of the Migration Act, it was submitted that the Tribunal had drawn adverse inferences from inconsistencies between the Applicant's written claims, his claims at the Tribunal hearing and his claims in subsequent submissions. It was argued that those inconsistencies may constitute "information" for the purpose of s.424A of the Migration Act if those inconsistencies were part of the reasons for the decision (see SZEEU v Minister for Immigration & Indigenous Affairs [2006] FCAFC 2). It was submitted that the inconsistencies constituted information for the purpose of s.424A of the Migration Act and the information did not fall within the exception referred to in s.424A(3). Further, it was submitted the information did form part of the reasoning which led the Tribunal to reject the Applicant's claim. Accordingly, the Tribunal did not comply with the "information and invitation" requirements of s.424A.

The Applicant further sought to argue that there had been a failure to accord the Applicant natural justice and that claim appears to arise from the failure of the Tribunal to provide the Applicant copies of the country information upon which it relied as part of its decision. It was argued that if the Applicant had access to the information, then he would have been in a position to answer the claim that the pro-democracy movement, both rank and file and officials, was not the subject of attention by the PSB and the Chinese police. It would also call evidence, it was argued, to support his claim that he publicly agitated in Australia for the pro-democracy movement.
An attempt was made to rely upon an affidavit sworn by the Applicant on 23 February 2007. However, the court directed that that affidavit be removed from the file and refused the application for the Applicant to rely upon that affidavit as it had annexed to it untranslated newspaper articles obtained after the Tribunal hearing and otherwise sought to assert facts which the Applicant could have erased at the Tribunal hearing. Other material in the affidavit included reference to what the Applicant would have done had he been given the opportunity to comment on country information relied upon by the Tribunal. I do not draw any adverse inference against the Applicant for failure to adduce any affidavit evidence concerning matters he may have raised had he been given the opportunity to challenge directly some of the country information which ultimately was relied upon by the Tribunal. Accordingly, it was appropriate in my view to refuse leave to the Applicant to rely upon the affidavit.
It was also submitted that the Tribunal committed an error by failing to consider integers of the Applicant's claim (see Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244) (Htun).
It was argued that the Tribunal made no finding of fact concerning the Applicant's political activities in Australia and accordingly, there was no factual matrix upon which the Tribunal could draw the conclusion that the Applicant only engaged in these activities to "bolster his claims". It was argued the Tribunal should have examined the integer of the Applicant's sur place claims and considered them against the Applicant's other claims. The Tribunal, it was submitted, failed to consider an integer of the Applicant's claims and accordingly there was a constructive failure to exercise jurisdiction.

First Respondent's submissions

It was submitted on behalf of the First Respondent that the Tribunal is only bound to consider Applicants' claims and not particular pieces of evidence (see Htun per Allsop J).
It was further argued that the claimed failure to take into account a relevant consideration could only succeed if the Tribunal failed to take into account a consideration that it is bound to take into account in making it's decision (see Peko-Wallsend).
The Tribunal, it was submitted, referred to the Applicant's post-hearing submission as set out in the extract from the Tribunal's decision earlier in this judgment together with reference to the attached copy of the United States Department of State Country Report. The Tribunal then proceeded to make findings on the claims contained in the post-hearing submissions. Specific reference was made to the Tribunal's findings which appear at the Court Book p.189 as follows:-
“Thirdly, the Tribunal considered the applicant’s activities outlined in submissions to it, since he lodged his application for review by the Tribunal. The applicant’s post hearing submission indicated that he had established a support base for dissidents of the CCP in Singapore. When looking at the applicant’s evidence at the hearing about his political activity in China and Singapore and the findings about his subsequent return to China, the Tribunal does not accept this claim. The applicant’s post hearing submission also indicated that he had attended more than 100 public gatherings and published many articles during the period 1990 to 2006. This evidence does not correspond to the profile that the applicant presented at the hearing or to the period that the applicant has been in Australia. The Tribunal notes that the articles he refers to were written under a pen name. Despite ample opportunity to do so at the hearing, the applicant did not refer to any political activity in Australia. When looking at the evidence about applicant’s profile and when these meetings and rallies took place and articles were allegedly written, the Tribunal does not accept that they were done on the basis of a genuine commitment to political activism. The Tribunal also notes that the articles were about Communist Party in China and not about the applicant personally. Having regard to the above findings, the Tribunal is not satisfied that the applicant has developed this heightened level of interest in political activism through his participation in these activities and the Tribunal considers that the only reason that he has participated in these activities is because he believes that it strengthens his claims. In the Tribunal’s view, the chance that the applicant would be involved in these type of political activities if he returned to China is remote. The Tribunal finds that the applicant will not participate in political activities on return because he lacks a genuine commitment to do so. In any event, as the Tribunal has concluded that the applicant has participated in these activities in order to enhance his claims to refugee status, section 91R(3) of the Act requires that the Tribunal disregard this behaviour in assessing the applicant’s claims.”
(Court Book p.189)
It was further submitted that the Tribunal referred to country information set out in its reasons for decision and that during the course of the hearing put to the Applicant for comment that the reports consistently indicate that authorities had not treated harshly people who merely participated in demonstrations and rallies or collected money in support of pro-democracy protest activity. Reference was made to the extract from the Court Book at p.186 set out earlier in this judgment. The First Respondent submitted that the failure to accept the Applicant's more favourable country information attached to the post-hearing submission is neither a failure to take into account a relevant consideration, nor a failure to deal with the claim. The Tribunal, it was submitted, is not bound to refer to every item of material relied upon by the Applicant, nor does it have to give reasons as to why it accepted or rejected individual pieces of evidence (see Minister for Immigration & Multicultural Affairs Ex parte Durairajasingham (2000) 168 ALR 407) (Durairajasingham). It was otherwise submitted that the Applicant seeks to challenge factual findings impermissibly and that there is no error in the Tribunal's decision.
It was further submitted the Tribunal took into account relevant considerations when dealing with the Applicant's sur place claims and made specific findings. It was submitted that the Tribunal's reasons specifically dealt with the essential integers of the Applicant's case, including his political activities in pro-democracy groups, attendance at public gatherings, publishing articles and political activity in Australia. So much is evident from the extract of the Tribunal's findings set out from the Court Book, p.189 above. It was noted that the Tribunal found that the Applicant's activities were not done on the basis of a genuine commitment to political activism. The articles were not about him personally and the Applicant had participated in his activities in order to strengthen his claim.
The First Respondent submitted that the Applicant is effectively seeking asking the court to examine the making of particular findings of fact upon which the Tribunal acted. The court, it was submitted, is not empowered to review the merits of the Applicant's claim. It was further submitted that there is no breach of procedural fairness. Reference was made to the operation of s.422B of the Migration Act which is claimed to be quite "an exhaustive statement of the requirements of the natural justice hearing room in relation to the matters it deals with". It was submitted that pursuant to s.424A of the Migration Act the court must give the Applicant particulars of information that would be the reason or part of the reason for affirming the decision under review. It was conceded it also explained the relevance and invited the Applicant to comment upon it. The section, however, does not apply to information not specifically about the Applicant or that the Applicant gave for the purpose of the application or that is non-disclosable (see s.424A(3)).
It was submitted the Tribunal did not reach a concluded view in relation to the Applicant's inconsistent evidence and this did not form part of the Tribunal's reasons for affirming the decision under review. Accordingly, it was not bound under s.424(1) to accord the Applicant an opportunity to comment on it or to set it out in its reasons for decision.
Reference was made to the Tribunal's decision where it specifically stated as follows:-
“The Tribunal notes that the applicant gave contradictory information at the hearing about his employment since his arrival in Australia. The Tribunal also notes the applicant's evidence that he did not lodge a protection visa application until eight years after his arrival because the Australian authorities do not publicise the success of applications. However, having regard to the above findings, the Tribunal need not reach a concluded view on this evidence.”(Emphasis added)
(Court Book pp.189-190)
It was submitted that the Tribunal in fact gave the Applicant an opportunity to give evidence in support of his application and that there was no denial of procedural fairness. The Tribunal's reasons were made on the basis of the Applicant's oral evidence provided through an interpreter at the hearing. It was submitted that that material is information provided by the Applicant for the purpose of the hearing and is not therefore subject to the operation of s.424A. Likewise a statutory declaration was information provided by the Applicant for the purpose of the Applicant. It was argued that the process of identifying gaps, defects, lack of detail or specificity in evidence or conclusions arrived at by weighing up the evidence in relation to those gaps does not constitute "information" (see VAF v Minister for Immigration & Multicultural Affairs (2004) 205 ALR 471 [at 24]) (VAF).
In relation to country information it was submitted that information was specifically put to the Applicant during the course of the hearing in relation to the PRC government's treatment of activists. Accordingly, as long as the gravamen of the critical issues was brought to the attention of the Applicant during the course of the hearing, then procedural fairness had been afforded.
The Tribunal's reasoning, it was argued, in relation to the Applicant's claims in relation to his passport and exit issues would have been obvious to the Applicant. The Applicant was on notice in relation to that issue because it had already been dealt with by the delegate from whose decision the Applicant sought review before the Tribunal. The Tribunal, it was noted, referred to a country information document entitled "CX27863" cited by the delegate and material relied on subsequently by the Tribunal. It was submitted it is a matter for the Applicant to make out his case. The issue of the passport and exit were live issues and the Tribunal was therefore not obliged to make out the case for him.

Reasoning

In my view the Tribunal in this application has considered in detail the claims made. It has specifically had regard to the nature of the Applicant’s fear of persecution if he returned to China.
Further the extracts from the Tribunal’s decision clearly indicate that it has properly considered and dealt with the post hearing submissions.
When dealing with the country information I am satisfied that the Tribunal was entitled to rely on country information referred to both by the delegate and by the Tribunal which was the subject of some discussion during the Tribunal hearing. It is not necessary for the Court to analyse in detail the transcript of the proceedings save to note that it was received as an exhibit. The transcript in general terms reveals what can only be described as an appropriate process of questioning the Applicant by the Tribunal. If the questioning becomes forceful on some occasions then does not of itself provide any basis upon which it could be argued that there has been a denial of procedural fairness.
In its decision it is submitted by the First Respondent the Tribunal appropriate referred to country information and specifically “put to the Applicant that the reports consistently indicate that the PRC authorities had not treated harshly people who merely participated in demonstrations and rallies or collected money in support of the pro democracy activity”. It was entitled to refer to those reports in the extract of the decision set out earlier in this judgment. It did so in a manner in my view free of jurisdictional error.
I accept as submitted by the First Respondent that as a matter of law the Tribunal is not bound to refer to every item of material relied upon by the Applicant nor is it required to provide reasons why it accepted or rejected individual pieces of evidence (see Durairajasingham).
When dealing with the sur place claims it is clear in my view that the Tribunal dealt with this appropriately as the extract from its decision set out earlier in this judgment reveals the Tribunal analysed and considered the Applicant’s profile both in China and for the period that the Applicant “has been in Australia”. It was entitled to consider amongst other things that articles produced were not the product of a genuine commitment to political activism. It also carefully considered whether the articles were about the CPC or the Applicant personally. It drew the conclusion that the articles were not about the Applicant personally. That conclusion along with other findings concerning the Applicant’s activities in Australia was a finding reasonably open to the Tribunal on the evidence free of error.
After hearing the evidence the Tribunal is entitled to make assessment of the Applicant’s claims and then draw an adverse conclusion of a kind similar to the one that is drawn in this case namely that the Applicant participated in the activities because “he believes that its strengthens his claims”. Again, I can see no error in that finding which was a finding clearly open to the Tribunal on the evidence.
Even if s.422B of the Migration Act did not apply to this application I am satisfied that in applying fundamental principles of procedural fairness the Tribunal in the manner in which it conducted the hearing could not lead the Court to conclude that there has been a denial of procedural fairness.
Specifically I am satisfied that information provided by the Applicant in the statutory declaration and in oral evidence before the Tribunal was information provided for the purpose of the Application and that accordingly is non-disclosable by the operation of s.424A(3). The country information was clearly not information specifically about the Applicant and is subject to the exception in s.424A(3).
In my view the Tribunal has simply undertaken a task of identifying what are described as gaps, defects, lack of detail or specificity in evidence or conclusions arrived at after weighing up the evidence in relation to those gaps. I accept the submission by the First Respondent that applying the principles of VAF this does not constitute “information”.
When dealing with the failure of the Applicant to lodge a protection visa until eight years after his arrival, it is clear that the Tribunal has specifically not relied upon that matter as part of its decision. As indicated in the extract set out above and the emphasised sentence the Tribunal decided that “need not reach a concluded view on this evidence”. Hence I can see no error in the manner in which it dealt with that material and nor do I accept that there could be any suggestion of a denial of procedural fairness and/or breach of s.424A arising out of that material.
The Tribunal otherwise dealt with passport and exit issues in a manner which clearly would have alerted the Applicant to issues which may be of concern to the Tribunal demonstrating the Applicant did not have a profile of concern and leading to a conclusion that he was not of interest to the Chinese authorities. Its reasoning process in relation to this background information has been undertaken in a manner free of jurisdictional error.

Conclusion

For the reasons given it follows therefore that the application should be dismissed with costs.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 5 April 2007