Mzyep v Minister for Immigration - [2009] FMCA 1295

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYEP v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 1295

MIGRATION – Application to review decision of Refugee Review Tribunal – whether the Tribunal erred in not accepting the applicant’s claims or denied her procedural fairness – whether invitation under s.424(2) of the Migration Act – whether actions of the Department gave rise to a sur place claim.

MigrationAct 1958 (Cth) ss.91R, 424, 424A, 425

Abebe v The Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14
Minister for Immigration and Citizenship v SZKTI and Another (2009) 238 CLR 489; [2009] HCA 30
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405; [2000] HCA 1
Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63
SZDTZ v Minister for Immigration and Citizenship [2007] FCA 1824
SZLPO and Others v Minister for Immigration and Citizenship and Another (No 1) (2009) 177 FCR 1; [2009] FCAFC 51
VSAF

Applicant:

MZYEP

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG639 of 2009

Judgment of:

Barnes FM

Hearing dates:

9 November & 11 December 2009

Delivered at:

Sydney

Delivered on:

11 December 2009

REPRESENTATION

Applicant:

In person

Solicitors for the Respondent:

DLA Phillips Fox

ORDERS

The application be dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $7,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

MLG639 of 2009

MZYEP

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Refugee Review Tribunal dated 30 April 2009 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of the People’s Republic of China, arrived in Australia in October 2007 and applied for a protection visa. She claimed to fear persecution in China on the basis of her Christianity and participation in the underground church. She claimed that in February 2002, while distributing printed religious material, she had been detained by Public Security Bureau (PSB) officers for 15 days. She claimed that thereafter the PSB visited her home regularly and that fearing further harassment she moved from Fujian province to another province in April 2004. She claimed that while visiting her husband and children in July 2006 she held a local family church gathering at her home that was discovered by police officers who searched the house, seized an amount of religious materials and again detained her for 15 days. She claimed that she was interrogated and tortured while detained and that she was released after confessing and signing a statement that she would not be involved with family church activities in the future.
The applicant claimed that she came to Australia to visit her son (who was here on a student visa) in October 2007 and that since her arrival in Australia she had been attending church regularly. In support of her application the applicant provided photocopies of Chinese documents purporting to be PSB detention notices and release certificates from 2002 and 2006 and English translations.
The applicant participated in an interview conducted by the Departmental delegate. After her application was refused by the delegate on 14 November 2008 she sought review by the Tribunal on 1 December 2008. She provided a statement in support of her claims which, among other things, took issue with the decision of the delegate. She provided the Tribunal with a number of other documents in support of her claims, including extracts from other decisions of the Tribunal in relation to applicants with similar claims.
The applicant attended a Tribunal hearing. The only evidence before the court of what occurred in the Tribunal hearing is the Tribunal reasons for decision. The Tribunal wrote to the applicant under s.424A of the MigrationAct 1958 (Cth) inviting her to comment on a number of matters. She replied in writing.
In its reasons for decision the Tribunal set out the applicant’s claims as made at various times. It summarised the applicant’s claim as a claim to fear persecution in China on the basis of her religion as a member of the Local Church in Fujian Province, that she had been subjected to past harassment and abuse from villagers of other religious faiths (including Buddhism) for preaching her faith and that on two occasions she had been arrested, detained and mistreated by the authorities. The Tribunal recorded that the applicant claimed that she would continue to be an active and committed member of the Local Church in the future, having joined such a church in Australia and that she feared persecution from the Chinese authorities.
While expressing “some doubt about the applicant’s claims to be a long-standing Christian and member of the Local Church”, based on her knowledge of Christianity and responses to Tribunal questions about Christianity, the Tribunal gave her “the benefit of the doubt” and “proceeded on the basis that the applicant was a follower of the Local Church in China”. It was also satisfied that the applicant had attended the Local Church in Melbourne otherwise then for the purpose of strengthening her claim to be a refugee and hence did not disregard this conduct under s.91R(3) of the Act.
However based on all the evidence, including matters discussed in the reasons for decision that were said “cast doubt on the applicant’s general credibility”, while the Tribunal accepted that the applicant was “a long-standing member of the Local Church in the local area of Fuqing City” where she had lived in Fujian Province, it found that this had been “at a low level” and that the applicant was “not a leader within the Local Church, but merely an ordinary member or follower”. It did not accept her claim that she had been involved in proselytising activities for the Local Church in China in the past or that she had a commitment to do so in the future.
The Tribunal had regard to the applicant’s evidence about her profile and her limited role within the Local Church in China. It referred to the fact that while she claimed she had assisted elders with copying the scriptures, preparing and distributing flyers and general preaching of the gospel and bible in Fujian province, she had also stated that she did not engage in similar activities or in proselytising the Local Church in the period she claimed she lived in another province. The Tribunal found that this tended to reinforce the view that the applicant was “a low-level or ordinary member of the Local Church in China” and that it also “undermine[d] the credibility of her claim to have a continuing strong interest in engaging in proselytising activities for the Local Church in China” if she returned.
Having regard to the applicant’s evidence, the fact that she did not claim to be an elder or leader and independent information, the Tribunal did not consider the hosting of a Local Church gathering at the applicant’s home would have raised her profile to “something more than that of an ordinary follower of the Local Church.”
The Tribunal also noted that, notwithstanding the claim that the applicant’s family had been involved with the Local Church since her birth in 1966, there was “little in the evidence” to indicate that her family had been subjected to religious harassment by the authorities. It found that “the overall thrust of the evidence” was that the applicant’s involvement as a member of the Local Church in China “was very much at the local level in and around Fuqing City in Fujian province.”
The Tribunal also considered the applicant’s claims to have been harassed and abused by other villagers while preaching her faith and to have been arrested and detained on two occasions by the authorities due to her activities as a member of the Local Church and the evidence provided in support of such claims. However it found that there were a number of aspects of the evidence that detracted from both the documentary evidence and the overall credibility of the applicant’s claims about past persecution.
The Tribunal addressed the photocopied PSB detention and release certificates provided by the applicant to the Department with her protection visa application in November 2007. The applicant claimed to the Tribunal that she had given the original documents to her migration agent who had placed them on her file. She claimed that the agent also told her that the Department had taken her file in March 2008 (as discussed further below). However the Tribunal found that this explanation did not address the issue of why original documents relating to the applicant’s claimed detention and release had not been provided to the Department so that they could be authenticated. It found that the fact that neither the applicant nor her representative had “volunteered” these documents to the Department for this purpose undermined the weight to be assigned to such documentary evidence. The Tribunal also observed that there were several other aspects to the evidence that detracted from its reliability.
The Tribunal first addressed the relevance of what it described elsewhere in its reasons as the “Alleged Fraudulent Documentation Issue”. This issue arose from the fact that the Departmental delegate had sought the applicant’s comment on the similarity of her claims to those of over 90 other applicants with the same migration agent. Those applications had also involved the provision to the Department of identical PSB detention and release documents relating to administrative detention for periods of 15 days on two separate occasions. Such documents were said not to be routinely submitted by applicants who were not represented by the agent in question.
The Tribunal recorded that the agent had advised it (in another matter) that a number of his files, many containing clients’ original documents, had been seized by the Internal Investigation Unit of the Department in March 2008.
In addition, prior to the review application by this applicant, the Department had advised the Tribunal about matters associated with the investigation of the agent (including the fact that blank PSB certificates had been located at the agent’s premises). The Department had also advised the Tribunal that a sample “PSB” document from the agent’s premises was similar in format to other non-authenticated documents examined and that it was probable that all had been produced on the same paper.
In December 2008 the Tribunal had sought additional information from the Department relevant to the applicant’s review. The Department advised that unspecified original documents relating to the applicant had been seized from her agent’s file in March 2008 together with 88 other applicants’ files containing documents of a similar nature. The Department also advised that it had sent “a sample of documents seized” to the relevant PSB through the Australian Consulate in Guangzhou and that it had been advised that the format of the documents sent to the PSB for comment (which included detention and release certificates) was inconsistent with the format of PSB documents (which had changed in 2002).
In its reason for decision the Tribunal observed that whether or not the applicant’s representative was guilty of any criminal offence in relation to potential documentary fraud was a matter for the Australian Federal Police and the courts and that these matters had been “excluded from its consideration of the issues relevant to this review application.”
The Tribunal noted that according to Departmental advice the documents submitted by the applicant regarding her detention in Fuqing on two occasions were similar to documents the Department had seized in March 2008 from her agent’s office in respect of approximately 88 other protection visa applicants, although it also observed that the Departmental report “did not state conclusively that the applicant’s detention documents were fraudulent”. However the Tribunal took into account that the two release certificates she had submitted were not hand-signed in accordance with advice DFAT had provided to the Tribunal in 2007 in relation to the format of such documents and the fact that while in response to a s.424A letter the applicant suggested that her discharge certificate was hand-signed, in fact neither copy was hand-signed.
The Tribunal also had regard to independent country information about the “disproportionate level of fraud” encountered in visa applications from applicants originating from Fujian province. It took into account the applicant’s suggestion that it was possible that PSB officers had used old versions of the forms and also her expressed puzzlement regarding the format of her documents. However the Tribunal considered that “the fact that the applicant’s documents [did] not conform to the advice DFAT ha[d] provided on this matter, together with the information about the prevalence of fraud in Fujian province” cast doubt on the genuineness of the applicant’s documents. The Tribunal did not accept the applicant’s reasons for the discrepancies in her documentary evidence, preferring the advice from DFAT as that of an independent and reliable source. Nor did the Tribunal accept the agent’s explanations regarding the blank PSB documents found on his office computer by the Department.
Accordingly, as the Tribunal found that as the evidence before it cast doubt upon the authenticity of the applicant’s arrest warrants and certificates of discharge from February 2002 and July 2006, it gave that evidence less weight in its assessment of the credibility of her claims.
The Tribunal went on to find that for a number of reasons it did not accept the applicant’s claims that she was arrested and detained for 15 days on each occasion in 2002 and in 2006. It had regard to the fact that while the applicant claimed to have been arrested in 2002 with a thousand gospel flyers in her possession, she had not claimed to have been issued with any documentation from the PSB regarding confiscation of this material and the fact that she claimed that she had been released without any criminal charge. The Tribunal found it implausible that while the applicant claimed that the Local Church was a banned organisation, that its meeting were illegal and that it was considered an anti-government organisation, she had also claimed not to have been charged with any criminal offence despite the fact that the authorities had seized gospel flyers that would have been firm evidence of her involvement in illegal church activities and disruption of the public order (had the authorities been targeting the applicant as a member of the Local Church as claimed).
The Tribunal did not accept that the applicant was distributing gospel flyers and that she had 1,000 flyers in her possession when she was arrested in 2002. Hence it did not accept her consequential claims that she was interrogated and assaulted for failing to answer questions about the leaders and organisation of the Local Church or that she was held in detention for 15 days and then released without a criminal charge but with a warning to cease her illegal religious activities as a follower of the Local Church.
It also referred to other inconsistencies in the applicant’s oral evidence about the first claimed period of detention and what occurred thereafter, including the delay in her move to another part of China and whether the reasons for her move were economic or to escape persecution. The Tribunal did not accept that the applicant made this move to escape persecution arising from her beliefs and practices as a member of the Local Church in Fujian province.
Nor, having regard to what the Tribunal considered to be significant inconsistencies and implausibilities in the applicant’s evidence which it detailed, did the Tribunal accept that the applicant organised a Local Church gathering at her home in July 2006 or that she generally did so because she was actively practising her religious beliefs as a follower of the Local Church. It did not accept that she was arrested and detained in 2006 after the police interrupted such a gathering. The Tribunal found that on her evidence the applicant’s practice of her religious beliefs was not curtailed due to any threat of persecution, but reflected the fact that her level of commitment did not compel her to do more than undertake low-level activities of an ordinary member of the church in the years she lived away from her home. It found that this also undermined the credibility of her claim that she was so committed that she risked persecution by hosting a large gathering in July 2006. The Tribunal also found the applicant’s evidence about to the extent to which she had discussed her protection visa claims with others in Australia detracted from the credibility of her claims of persecution in China. Hence the Tribunal did not accept that the applicant held a Local Church gathering at her home which resulted in her arrest and detention in July 2006 or the consequential claims about mistreatment and the reasons for her return to the other province in 2006.
In light of a number of other inconsistencies in the evidence of the applicant in relation to her ability to depart China notwithstanding her claims to be of interest to the authorities and also to independent country information from DFAT, the Tribunal did not accept that the applicant needed to bribe authorities to obtain a passport as claimed or that she was a person of interest to the authorities. It found that she was able to lawfully depart China without incident because she was not of any particular interest to the authorities.
After indicating that it had no regard to the delegate’s findings in relation to the applicant’s religious activities in China, the Tribunal addressed in some detail the similarities of the applicant’s protection visa claims to those of other applicants in assessing her credibility. It observed that the application had been refused by the delegate in part because the applicant’s claims were found to be very similar, and in some respects identical, to those made by over 90 other applicants who had also lodged protection visa applications since September 2007 through the same representative. The Tribunal stated that while it had taken into account the possibility that the applicant’s and others claims had been fabricated, it also recognised that it was “plausible that individuals, who came from similar backgrounds, or who have similar personal attributes, and who are the target of persecution … by the same agents, are likely to recount similar experiences of persecution. Hence it found that the mere fact of similarities need not prevent a finding that the claims were credible. The Tribunal also took into account that even within a group of manufactured claims, it was conceivable that there would be individuals who made genuine claims of persecution for Convention-related reasons. As it observed, the task of the Tribunal was “to assess whether or not the claims of the applicant currently before it are genuine.
The Tribunal referred to the fact that it had only been constituted with a limited number of the protection visa applications from others among the 90 protection visa applicants in question. It considered that it was inappropriate to find that the delegate’s conclusions on this matter were decisive or that the similarities of the applicant’s application to those of other applicants was decisive. Nonetheless, the Tribunal considered that the information about the similarity of claims was one of many relevant considerations in assessing the application.

The Tribunal had regard to the applicant’s claims that she had not copied her claims, that no one else had copied from her and that, apart from her cousin, her representative and one other person, she had not discussed her experiences in China with other members of the Local Church in Melbourne or met any of the agent’s other clients who had claimed to attend the same church. However the Tribunal also had regard to the fact that in her s.424A response the applicant contradicted her evidence at the Tribunal hearing by stating that she had noticed that much of her statement was “common knowledge” amongst members of the Local Church in Melbourne who were “fully aware of it”.
The Tribunal referred to the fact that a large number of the protection visa applicants in issue had made similar claims of comparable patterns of detention and release for 15 days on two separate occasions and had provided similar detention and release documents. It referred specifically to the similarity of paragraph five of the applicant’s written statement (relating to the applicant’s proselytising activities and harassment she claimed to have encountered from Buddhists in Fujian) with a paragraph in the application of another applicant who had used the same representative. The Tribunal considered that this was “not a paragraph that relate[d] to the general treatment of followers of the Local Church”, but rather that it related “specifically to the applicant’s supposed personal experiences in China”. While it took into account the applicant’s explanation that members of the Local Church in Fujian Province with similar experiences could be expected to make similar claims, it considered it “implausible” that a paragraph that formed “one of the integers of the applicant’s claims to be a refugee, would be identical to that of another client” of the same representative “on the basis of coincidence”, particularly where the applicant claimed that she “recounted her personal experiences in her statement, without significant change from her representative, and without reference to the statements of other clients” of the representative whom she claimed not to have met at the church she attended weekly. The Tribunal did not consider her explanation to be plausible and did not accept that the applicant’s account in her statement of 6 November 2007 reflected her own story and that it had not been substantially altered by her representative or copied by or from others. It gave this matter weight in assessment of the applicant’s general credibility and in considering her claims to be a refugee.
The Tribunal did not accept that the applicant proselytised in local villages as claimed or that she was subjected to harassment and discrimination from villagers who were primarily Buddhist, having regard to the similarity of these claims with the claims of another applicant, serious doubts about the authenticity of the applicant’s documentation, inconsistencies and the absence of detail in the claims and also in light of independent country information.
Before addressing the independent country information, the Tribunal addressed the applicant’s claim that it should follow other Departmental or Tribunal decisions in which applicants with similar claims had been found to be refugees. It observed that it was required to assess the facts and evidence in each case before it and to determine whether the particular applicant was entitled to the visa sought. The Tribunal also stated that it now had the benefit of additional country information which had not been before it at the time of a particular earlier decision to which the applicant had referred, which highlighted the “paucity of information that would support the applicant’s claims of regular and ongoing harassment, detention and persecution of followers of the Local Church in Fujian province into the reasonably foreseeable future.” Hence the Tribunal did not accept that it should follow its earlier decision or other Tribunal decisions without assessing the claims and evidence before it in the applicant’s case.
The Tribunal found that it preferred the current country information before it and gave that evidence greater weight in its consideration of the issues for a number of reasons, which it discussed. The Tribunal did not accept that because some applicants had been successful in their protection visa application claims in Australia it should disregard country information regarding the extent to which members of the Local Church had been subjected to adverse treatment by the Chinese authorities in the last six or seven years. Based on this information it did not accept that “ordinary, low-level followers of the Local Church in Fujian province had been, and [were] subject to persecution for a Convention-related reason.”
The Tribunal also addressed the possible claim that the applicant suffered persecution as a member of a particular social group, being her Christian family and/or members of the Local Church in or around Fuqing City. However given its findings about the applicant’s past claims and her evidence that her spouse and her eldest son had not been harassed, the Tribunal did not accept that the applicant’s mother-in-law was physically assaulted for failing to inform the authorities where the applicant had moved as claimed, or that other members of her family had been targeted by the authorities because of their membership of and participation in the Local Church. The Tribunal did not accept that the applicant had been targeted by the authorities as a member of a particular social group being her Christian family or that she faced a real chance of persecution for reasons of her membership of her family or for reasons of her membership of a particular social group as an ordinary low-level member of the Local Church in Fujian province.
The Tribunal then considered whether the applicant had a well-founded fear of persecution in the future. It summarised its findings in relation to her claims of past persecution for her religious beliefs. In considering whether the applicant had been subject to past persecution as a follower of the Local Church in China the Tribunal recorded that it took into account matters such as the extent to which the documentary evidence she had provided in support of her claims of past arrest and detention did not conform to advice received from DFAT in relation to the authenticity of such documents, discrepancies in the applicant’s claims in writing, orally and in response to the s.424A letter; other discrepancies in the evidence; the extent to which the applicant’s claims were generally similar to a large number of other applicants as well as the presence of a paragraph in her statement that was identical to that of another applicant. The Tribunal also had regard to independent country information. On all the evidence before it, it did not accept the applicant’s claim that she was not free to worship and that she was persecuted in the past for her religious belief and activities in China. It did not accept her claim that, given her profile as an ordinary member of the Local Church in Fuqing, she was unable to worship or that she was harassed, arrested and detained in 2002 and 2006, or harassed thereafter as claimed. Nor did the Tribunal accept that after the applicant moved to another part of China she refrained from proselytising because she was fearful of any threat of persecution, finding that she did not proselytise during that time because she did not have a greater commitment to her religious beliefs and practices beyond reading her bible, listening to tapes and singing hymns. The Tribunal did not accept the applicant’s claims that she needed to pay a bribe to obtain a travel document or that she was a person of interest to authorities when she departed China.
On the basis of all the information before it the Tribunal found that the applicant had not suffered past persecution or serious harm for reasons of her religious beliefs or practice as a member of the Local Church in China.
The Tribunal took into account that the applicant had been attending the Local Church in Melbourne on a regular basis and claimed that she would remain with the Local Church if she returned to China. It accepted that the applicant would seek to practise her faith if she returned to China, but on the basis of her evidence and country information before it, found that the applicant did not have a profile that would result in her facing a real chance of persecution now or in the reasonably foreseeable future due to her religious beliefs or practices as an ordinary follower and member of the Local Church in Fujian Province. It did not accept that Fuqing City or Fujian province were places in China where the applicant faced a real chance of persecution as an ordinary member or follower of the Local Church by the Chinese authorities or agents.
Hence the Tribunal did not accept that the applicant faced a real chance of persecution for a Convention-related reason now or in the reasonably foreseeable future if she returned to China. It affirmed the decision not to grant her a protection visa.
The applicant sought review of the Tribunal decision by application filed in this court on 29 May 2009. The application contains generally expressed and unparticularised grounds.
The first ground is as follows:
I am not good at speaking. I just told the goodness of God to others. I did not preach. RRT member thought I preach, I am Christian, I do not lie, I guarantee with my dignity. I do not understand why you (sic) concluded that I am a dishonest person, I am deeply offended.
Insofar as the applicant takes issue with the Tribunal’s factual findings or seeks merits review, it is not the function of this court to conduct merits review and this ground does not establish jurisdictional error. The Tribunal findings were open to it on the material before it, for the reasons which it gave. In that respect I note that credibility findings are a matter for the Tribunal par excellence (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405; [2000] HCA 1).
The second ground is as follows:
I was not considered fairly by RRT. They low assess my risk to go back to China. I will put in jail if I attend House church gathering.
In addition to seeking impermissible merits review, this ground may be seen as raising a contention of a lack of procedural fairness. The Tribunal was bound to conduct its review in accordance with the requirements of Division 4 of Part 7 of the Migration Act. However it has not been established and nor is it apparent that the Tribunal failed to comply with any of these obligations.
As the first respondent submitted, insofar as the Tribunal requested that information be provided by DFAT specifically for the purpose of the review it conducted in relation to this applicant (and was not referring generally to DFAT advice provided previously), such a request for information from DFAT would not constitute a request under s.424(2) of the Act. Nor would the request for information made to the Department in December 2008 in relation to whether documents for the applicant were seized from her representative’s premises and the outcome of examination of the documents be within s.424(2) and hence subject to the s.424(3) requirements.
The High Court made clear in Minister for Immigration and Citizenship v SZKTI and Another (2009) 238 CLR 489; [2009] HCA 30 at [45] that there is a significant distinction between the Tribunal’s power to get information under s.424(1) of the Act and a s.424(2) invitation and that “[t]he general power to “get” information and the specific power to “invite” in writing the giving of additional information are capable of co-existing without the latter being repugnant to the former” (at [46]). More specifically, as confirmed in SZLPO and Others v Minister for Immigration and Citizenship and Another (No 1) (2009) 177 FCR 1; [2009] FCAFC 51, requests by the Tribunal for the provision of information from DFAT or other government departments (such as occurred in this case) are not requests for information under s.424(2) for the reason that such an agency is not a natural person and hence not a “person” for the purposes of s.424(2).
Nor is it apparent on the material before the court that the Tribunal failed to comply with its obligations under ss.424A or 425 of the Act. Rather, it appears from the Tribunal account of what occurred in the Tribunal hearing that it raised certain matters with the applicant but that she sought the opportunity to respond in writing. Thereafter the Tribunal in fact wrote to the applicant under s.424A of the Act putting to her a number of matters of concern for comment. The applicant responded in writing and her response was taken into account. It has not been established that the Tribunal failed to put to the applicant information within s.424A(1) of the Act or that the Tribunal failed to comply with s.425 of the Act in relation to it obligation to put dispositive matters to the applicant for comment in the hearing (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63).
As indicated, while the applicant took issue with the Tribunal’s findings in relation to her credibility, findings in that respect are a matter for the Tribunal and the Tribunal’s findings were open to it on the material before it for the reasons that it gave.
In oral submissions the applicant contended that the Tribunal’s findings were a result of speculation and were unfair and that the Tribunal did not have the evidence to prove that her claims were not true. However such a submission misconceives the role of the Tribunal. As Gummow and Hayne JJ stated in Abebe v The Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14 at [187]:
The want of procedural fairness was said to lie in the Tribunal not putting to the applicant any suggestion that her story of detention and rape was untrue. Framed in this way, the submission may, perhaps, assume that proceedings before the Tribunal are adversarial rather than inquisitorial or that in some way the Tribunal is in the position of a contradictor of a case being made by the applicant. Such assumptions, if made, would be wrong. The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.
I also note for the sake of completeness that neither actual nor apprehended bias is made out (see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 and Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28).
The applicant also took issue with what might be described as the logic of the Tribunal decision, referring to the fact that just because the Tribunal did not see any reports from Fujian province suggesting that people in her Church were experiencing persecution, this did not mean that persecution was not occurring there. However this contention does not establish jurisdictional error of the kind considered in SZDTZ v Minister for Immigration and Citizenship [2007] FCA 1824 (at [17] – [30]) or otherwise. The applicant’s disagreement with the Tribunal’s conclusions in essence seeks merits review. The Tribunal is not required to have rebutting evidence before it to fail to be satisfied of the claims made by an applicant (see Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [17]).
The applicant also took issue with the fact that others who were said to have similar claims to her, had been successful in obtaining protection visas. This contention was considered by the Tribunal, which properly described its role and also took into account more recent country information in considering whether or not it was satisfied that the applicant had a well-founded fear or persecution. In any event, no jurisdictional error is established arising out of fact that others with similar claims to the applicant may have been successful in their protection visa applications.
The applicant referred to the fact that she had a reference from someone at her church in Melbourne and contended that the Tribunal did not consider her evidence seriously. However the Tribunal accepted that the applicant attended the Local Church in Melbourne and did not disregard such conduct under s.91R(3) of the Act. It took into account her claims about what she would do in the future in China, but did not accept that as a low-level member of the Local Church she would have a well-founded fear of persecution in China. It is clear that the Tribunal did not fail to consider this aspect of the applicant’s claims.
The applicant then contended that what the Tribunal had done in trying to verify her documentary evidence had meant that she had become a refugee. She claimed that the Tribunal had told her in the course of the hearing that the Department had sent “her” documents to the PSB in Fujian province for verification. She claimed that on this basis the PSB would know that she was in Australia.
Notwithstanding that this claim was raised for the first time at the hearing and that there is nothing in the Tribunals’ account of the hearing or in its reasons for decision to support such a claim, the applicant was given a further opportunity to file evidence such as a transcript of the Tribunal hearing in relation to the part of the hearing in which she claimed that this particular exchange took place. I made orders that she file and serve any transcript of the part of the Tribunal hearing in which the Tribunal discussed the documents sent to the PSB and gave the first respondent an opportunity to file and serve evidence in reply and material from the Tribunal file in relation to this issue. In the alternative I ordered that if the applicant did not file a transcript of the Tribunal hearing she had the leave of the court to file and serve written submissions on or before 30 November 2009 identifying the place or position on the compact disc of the Tribunal hearing that she wished to rely on at the adjourned hearing. I adjourned the hearing until today to give the applicant the opportunity to put this matter before the court and, if necessary, to listen to the recording of the Tribunal hearing.
However the applicant was not present when the matter came before the court for the adjourned hearing today. Moreover there is no evidence that the applicant has filed and served any material whatsoever since the hearing on 9 November 2009. The solicitor for the first respondent confirmed that nothing had been served on the first respondent.
In the absence of such material and in the absence of the applicant today there is no evidence to substantiate her oral allegation that it was possible that documents identifying her (either as an asylum seeker or as a person engaged in illegal activities) were sent to the PSB in China. As set out above, the Tribunal had information before it in response to its request to the Department for information in relation to whether the documents for the applicant were seized and as to the outcome of any examination of the documents seized. On 7 December 2009 the Department advised the Tribunal that original documents for the applicant had been seized by the Department in March 2008 found in a file marked with her name together with 88 other protection visa applicant’s files containing documents of a similar nature. The Department went on to advise that a “sample” of documents seized in the 3E Search Warrant had been sent to the PSB in China via the consulate in Guangzhou. The reply from Fujian FAO was said to be as follows:
With comparison of the detainment notice, list of article and document detainment and release certificate that provided by your consulate general, the format of these documents are inconsistent with the Public Security Bureau documents, which were revised in 2002.

However there is nothing in this information to indicate that the sample of documents included documents relating specifically to the applicant. When the Tribunal wrote to the applicant under s.424A of the Act after the Tribunal hearing (at which the applicant now alleges that the Tribunal stated that “her” documents were sent to China) it stated that, as set out above, the Department had advised that a “sample” of the documents seized were sent to the PSB in China and that this information was relevant because the documents relating to the other applicants were highly similar in format to the copies the applicant had submitted in support of her protection visa claims. Moreover, in its reasons for decision the Tribunal considered in some detail whether or not the applicant’s documents were fraudulent, but observed that the Departmental report did not state conclusively that the applicant’s detention documents were fraudulent. It then went on to consider the fact that the documents were not hand-signed in accordance with advice as to the format of such documents, as well as independent country information about the disproportionate level of fraud in applications from the applicant’s province. This was said to cast doubt on the genuineness of the applicant’s documents and on that basis the Tribunal gave them less weight in its assessment of the credibility of her claims. There is nothing in the Tribunal reasons for decision, including its account of the Tribunal hearing, to support the applicant’s claim that the Tribunal told her that “her” documents had been sent to China.
This was a serious allegation and for that reason I gave the applicant an opportunity to put further evidence before the court, including evidence in the form of the tape of the Tribunal hearing, in order to allow that issue to be ventilated. She has not done so and this claim is not made out.
As the applicant did not file any further evidence, the first respondent did not file and serve any evidence in reply or material from the Tribunal file in relation to this issue. I am told from the bar table that the solicitor for the first respondent was instructed that the documents sent to the authorities in China for authentication were generic documents and not documents relating specifically to the applicant, although there is no evidence to this effect before the court. My attention was drawn to the fact that the court book contains a Departmental record of interview with the applicant’s migration agent in relation to blank Chinese language documents found in his office which are apparently in the form of notices of detention and arrest. It was suggested that generic documents of this nature that were sent for authentication and that this was consistent with the Departmental letter to the Tribunal, the Tribunal s.424A letter and the Tribunal reasons for decision, in particular the fact that its reasoning in relation to the applicant’s documents was not based on advice or the view that her documents were fraudulent.
Given the absence of the applicant today, I am of the view that the first respondent should not be required to file further evidence on this issue to “meet” a claim which is apparently not pursued by the applicant. In the absence of evidence to substantiate the allegation by the applicant in relation to what occurred at the Tribunal hearing, no jurisdictional error has been established in this respect.
As no jurisdictional error has been established, the application must be dismissed.

RECORDED NOT TRANSCRIBED

The applicant has been unsuccessful and the respondent seeks costs in the sum of $8,900. I consider that it is appropriate that an amount above the scale should be awarded. An amount of the nature sought may have been appropriate had there had been a need to respond to written submissions or (perhaps) if the applicant had attended today with a transcript or hearing tapes. However, while I acknowledge that some additional enquiries were necessary, because the applicant did not file anything after the hearing, no material was filed by the first respondent. Doing the best I can on the material before me I consider that an appropriate amount is $7,000, in light of the particular complexity and issues raised in this matter and the need for two hearings.

I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 22 December 2009