NBIF v Minister for Immigration

[2005] FMCA 1305

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NBIF & ANOR v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1305

MIGRATION – Refugee – fear of persecution for political and religious reasons– bias – whether adequate levels of interpretation – provision of adverse information – s.424A – no reviewable error – application dismissed.

Migration Act 1958, ss.91R(1)(a), 425, 424A(1), 424A(2), 424A(3)(b), 417

Federal Magistrates Court Rules 2001, rr.21.02(2)(a), 15.27(2), 15.27(3)

Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759
MINH v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 304
R v Windridge; Ex parte Pacific Coal Pty Ltd [1992] 2 Qd R 180
Thai v Deputy Commissioner of Taxation (Cth) (1994) 34 ALD 132
Beckner v Minister for Immigration, Local Government and Ethnic Affairs (1991) 30 FCR 49
Rettke v Comcare (unreported, Federal Court, Full Court, 26 October 1994)
Dobbie v Department of Social Security (unreported, Federal Court, Full Court, No 303 of 1995, 7 April 1995)
Stead v State Government Insurance Commission (1986) 161 CLR 141
Kuczynski v The Queen (1994) 72 A Crim R 568
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24
Al Shamry v Minister for Immigration & Multicultural Affairs [2000] FCA 1679
SZDQL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 769
Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396
VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17

Applicant: NBIF & ANOR

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2400 of 2004

Judgment of: Nicholls FM

Hearing date: 16 May 2005

Date of Last Submission: 11 August 2005

Delivered at: Sydney

Delivered on: 16 November 2005

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Ms. R Francois

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The Refugee Review Tribunal be joined as the second respondent in these proceedings.

2. The application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2400 of 2004

NBIF & ANOR

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application filed in the Federal Court of Australia on 9 July 2004 seeking review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 24 June 2004 to affirm the decision of a delegate of the respondent Minister made on 19 June 1999 to refuse a protection visa to the applicants. The first named male applicant was notified of the Tribunal's decision by letter dated 25 June 2004 and was asked to advise the second named female applicant about the contents of that letter. This matter was transferred to this Court on 2 August 2004 by order of Justice Moore of the Federal Court.

2. The applicants are citizens of the People’s Republic of China. They arrived in Australia on 9 May 1999 and lodged an application for a protection visa with the respondent's Department on 26 May 1999. On 19 June 1999 a delegate of the respondent Minister refused to grant them protection visas and on 17 July 2000 the applicants applied for review of that decision with the Tribunal. The applicants, who at one time claimed to be husband and wife, although this appears not to be the case, both claimed they left China as a result of a conflict that arose out of, in particular, the male applicant’s (hereinafter referred to “the first applicant”) employment in a construction company and a contractual dispute in which the first applicant played some role, involving that company and another company. They claimed that their employment was terminated, they subsequently suffered persecution by the Courts and that they could not get other employment. Both applicants claimed that they left China as it had become “illegal” for them to work as the relevant “Department of Building and Development” had informed all construction companies that they had been “blacklisted”. The applicants claimed that if they returned to China that they would be detained and treated as traitors.

3. In the originating application filed on 9 July 2004 in the Federal Court, the applicants claimed that:

   “The MRT (it is clear that they are referring to the Refugee Review Tribunal) erred in failing into relevant consideration and refusing to hear what the applicants have to say about their case.”

   The application is not particularised.

4. At the first Court date in this matter on 21 July 2004, the first named applicant appeared in person. He was not assisted by an interpreter although the Court record shows that a member of the Court staff assisted. The Court record noted that the first applicant was in “Immigration detention” and also noted “the other applicant’s whereabouts are unknown and did not appear”. On 10 November 2004 the first named applicant filed an amended application. Other than minor differences the complaint remained as in the originating application:

   “That the RRT erred in failing to take into relevant consideration and refusing to hear what the applicants had to say about their case.”

5. Both the applicants appeared at the hearing before me on 31 January 2005 and the first applicant, in particular, made lengthy submissions. The time allocated for the hearing was insufficient and a second full hearing was conducted on 16 May 2005. The applicants were not legally represented. I note however from the Court file that the applicants were referred to a lawyer on the panel of the Court’s Legal Advice Scheme and that following a consultation (at least with the first applicant) advice was given on 15 October 2004, 23 October 2004 and 1 February 2005. At the hearing before me the applicants were assisted by an interpreter in the Mandarin language. Ms. Francois of Counsel appeared for the respondent. At the second hearing before me the applicants made further claims about what they said occurred at the hearing before the Tribunal which necessitated my giving them further time to file any evidence in support of those claims. The applicants subsequently did file some material. In all, for the applicants, in addition to the application and amended application, I have before me:

   1)The affidavit of the second applicant affirmed on 9 July 2004 (attaching a copy of the Tribunal’s decision – wrongly referred to as “MRT’)

   2)The affidavit, with annexures, affirmed on 10 November 2004 by the second applicant. The annexures appear to be submissions largely drafted by the first applicant and relate to the various complaints made about the Tribunal’s decision. Further, the annexures contain material which the applicants claim that the Tribunal denied them an opportunity to put before the Tribunal. Some of this material is described by the first applicant as “my speech”.

   3)Two hand written documents sent to the Court by the first applicant on 11 November 2004 and 19 November 2004. The first document sought transfer of earlier submitted documents from the Federal Court File to the Federal Magistrates Court file. I treated the second document as written submissions on behalf of the applicants.

   4)A hand written document handed up at the hearing before me on 31 January 2005. This was partly in relation to matters contained in the Court Book and in response to the respondent's outline of submissions.

   5)Further submissions filed in Court on 16 May 2005.

   6)An affidavit affirmed by the second applicant on 27 May 2005, with annexures that appear to be submissions drafted by the first applicant.

   7)A bundle of documents sent by the first applicant to the Court registry on 11 August 2005.

   8)Submissions filed by the applicants on 11 August 2005.

6. For the respondent I have:

   1)A Court Book (“CB”) filed by the respondent on 16 August 2004.

   2)A Supplementary Court Book (“SCB”) filed on 25 January 2005.

   3)Respondent’s outline of submissions and list of authorities filed on 27 January 2005.

   4)Respondent’s further submissions filed 11 August 2005.

   5)The affidavit of Bridie Catherine Rushton, a solicitor in the employ of the respondent’s solicitors, sworn on 10 August 2005, annexing a copy of a letter sent to the first applicant confirming the respondent’s submissions in relation to the applicants’ complaints that the Tribunal’s hearing tapes had been modified.

   6)A transcript of the hearings before the Tribunal on 4 June 2004 and 10 June 2004 tendered by the respondent on 16 May 2005 and marked “Respondent’s Exhibit 1” (“RE1”).

7. From the large amount of material provided by the applicants and from the lengthy submissions made at the two hearings before me, the following complaints can be distilled:

   1)That the first applicant was not permitted by the Tribunal at the hearings before it to fully put his claims.

   2)That the Tribunal, in the words of the applicants, “falsely described major mistakes”.

   3)That the tape of the hearings before the Tribunal was “revised” and “edited”.

   4)That the Tribunal and the interpreter collaborated and changed the content of the applicants’ claims during the conduct of the hearings with the applicants.

8. To a considerable extent, the applicants’ complaints revolve around what they claim to be serious errors by the Tribunal during the conduct of the hearings before it. Given the seriousness of the matters alleged, I explained to the applicants at the hearings before me, the need to provide evidence to support their claims, and the difference between making statements to a Court, and providing evidence which can be relied on by a Court. Given the seriousness of the complaints and the fact that I had unrepresented applicants before me, I provided additional time to the applicants, following the second hearing before me, to provide any such evidence in an acceptable form, and to make any further submissions that they wished in this regard. I relevantly note that the applicants were given the opportunity to access the Court’s Legal Advice Scheme in this regard for a second time. I also asked the Court registry to send information to the applicants about the preparation of affidavits that could be filed in Court. I note that this advice was sent to the applicants on 24 May 2005, and according to their wishes this was sent to the first applicant. Further, I also note from the affidavit of Bridie Catherine Rushton and the annexed letter, that following the second hearing before me the respondent’s solicitors wrote to the first applicant (the applicants wanted all correspondence to be sent to him) and confirmed submissions made by Ms. Francois that:

   “…the evidence required to establish that the RRT hearing tapes had been tampered with or modified and that the interpreter at the RRT hearing had not correctly interpreted what was said is as follows:

   a)An affidavit from a person with some expertise in recording devices who has inspected the hearing tapes and can confirm that the tapes have been modified or tampered with; and

   b)An affidavit from a properly qualified interpreter in the Mandarin and English languages who has listened to the tapes and who can confirm that the interpreter did not properly interpret what was said by the applicants and set out what in fact was said by the applicants.” 

9. The applicants arrived in Australia on 9 May 1999. From the information in the material before me, the applicants’ application for protection visas was refused by a delegate of the respondent Minister on 16 July 1999, and on 17 July 2000 by another Tribunal, constituted by another member, affirmed the decision not to grant protection visas. The applicants participated in the “Muin/Lie class action”, and then came before the Federal Court in another subsequent application filed on 19 December 2003. That Tribunal decision, that is, the first Tribunal decision, was quashed by consent and the matter was remitted to the Tribunal on 29 March 2004 for consideration. The applicants are now before me following the decision by the “second” Tribunal, (to which I will hereinafter refer to as “the Tribunal”), to affirm the decision to refuse protection visas to the applicants. The proceedings before the Tribunal are set out in the respondent’s outline of submissions filed on 27 January 2005, at paragraph 2. I agree with these submissions as an accurate description reflecting what is contained in the material before me, and adopt them for the purposes of this Judgement [References to relevant Court Book and Supplementary Court Book pages have been added]:

   “2.1 On 16 July 1999 the applicants lodged their application to the RRT for a review of the delegate’s decision. That application attached:

   a)a handwritten letter dated 14 July 1999 from Mr Danny Price, a Mormon Church Missionary. Mr Price had previously certified that he had translated the information in the protection visa application from and to the applicants [CB 7 and CB 11]. In the letter, Mr. Price now claimed that the applicants lodge the application “without knowing what was inside”[CB 46]; and

   b)an undated handwritten letter purportedly signed and written by the applicants in which they claimed that they did not understand the “significance” of the protection visa application forms [CB 53 to CB 81] and that the missionaries who assisted them must not have understood what they said.

   2.2 Notably the applicants did not explain, or disclaim, the contents of their letter of 9 June 1999. [Wherein they had provided further details of their claims to the respondent’s Department- SCB 1 to SCB 4]

   2.3 On 18 August 1999 the applicants filed a further 27 pages of submissions and evidence. In summary, that document added the following further details to their claims [CB 53 to CB 81]:

   a)the applicants caused offence to important persons in Hong Kong in relation to their handling of technical safety issues on the “Beijing Henderson Centre” project and those persons threatened to use the Chinese government to punish them [CB 55];

   b)the disputes escalated and the applicants’ company went on strike in relation to the applicants’ safety concerns [CB 56];

   c)a “work team” composed by the Construction Department of China and the Construction Committee of Beijing became involved in the dispute and attempted mediation but in reality “rebuked” the applicants and “commanded” them to admit their “mistakes”. However the applicants refused to do so [CB 56 to CB 57];

   d)in September 1997 the male applicant was investigated by the Public Security Bureau because of his actions in relation to the strike, his sister's escape from China and his father having been shot by the Communist Party [CB 58];

   e)in October 1997 the applicants were fired and told that first there would be civil proceedings in relation to the dispute and then “penal” proceedings [CB 59];

   f)the applicants lost the civil proceedings because the Court “took bribes and bent the law” forcing them to leave their “home district” and they also experienced some harassment by unidentified person [CB 59];

   g)the male applicant's pager purportedly still contained threatening messages in relation to appearing in Court and that the Court would “seal off” his home [CB 69].

   2.4 In that 27 page document, the applicants also explained that they could not find work in the private sector in Beijing because all construction work was government controlled [CB 63] and that they had survived on their savings and assistance from friends [CB 64 to CB 65]. Notably in that document and the letter which accompanied the application to the RRT for review, the male applicant continued to refer to the female applicant as his wife [CB 48 and CB 62].

   2.5 After the applicants received and reviewed copies of the original protection visa applications, they filed a further 18 pages of submissions and evidence on 20 September 1999 [CB 82 to CB 100]. They claim the contents of the original application were “imagined” by the missionaries and some answers “recklessly fabricated” [CB 85]. However those submissions did not explain the contents of their letter of 9 June 1999 nor which aspects of the original application were false and continued to refer to the female applicant as the male applicant's wife.

   2.6 The applicants filed a further 71 pages of submissions and evidence on 10 January 2000 [CB 101 to CB 175]. In summary, this document:

   a)provided a more detailed account of the male applicant's meeting of the Public Security Bureau on 10 September 1997 [CB 102 to CB 106];

   b)gave more detail of  the termination of their employment by their company and subsequent involvement in the civil action for damages which the Hong Kong company brought against their company [CB 106 to CB 108];

   c)explained that their lawyers did not attend the civil trial and that the applicants conducted it in person and why they considered the process unfair and biased [CB 108 to CB 113];

   d)explained that they have attempted to appeal the decision but the company revoked the appeal [CB 116];

   e)claimed that they “married” on 9 February 1998 and provided more detail of their attempts to obtain work and their suffering [CB 118 to CB 120];

   f)attached documents from the civil proceedings, including the judgement and a translation which indicated that the basis upon which the applicants’ company lost was that the Court considered that their company had contacted with the plaintiff Hong Kong company to perform the work according to the plaintiff's “Renovation Regulations” and thus the “State Standard” relied upon by the applicants to justify their actions was not relevant [CB 138 to CB 139];

   g)set out a passionate denunciation of the errors in the judgement [CB 157 to CB 175].

   2.7 The applicants filed one further letter dated 19 June 2000 [CB 176 to CB 181] and attached some documents from their tour group itinerary.

   2.8 The RRT also had before it the 26 page s.417 letter the male applicant wrote to the Minister in July 2003 [SCB 5 to SCB 31]. Notably in that letter, the male applicant:

   a)said he could expose his elder sister (who had assisted him to come to Australia) as a swindler and that such assistance would mean DIMIA would give them Australian status [SCB 6];

   b)complained about his Australian lawyers and his sister [SCB 9 to SCB 11] who he refers to throughout as the “deceiver” [SCB 22];

   c)set out details of his claims again; and

   d)claimed he could not return to China because of his practice of Falun Gong [SCB 29 to SCB 30].

   2.9 On 11 May 2004 the RRT wrote to the applicants and informed them that it was not able to make a favourable decision on the material before it and invited them to attend a hearing on 4 June 2004 [CB 187 to CB 188]. The applicants attended the hearing on 4 June 2004 and gave evidence. That hearing was part-heard and on 4 June 2004 and the RRT notified the applicants of the further hearing date on 10 June 2004 [CB 195]. The applicant also attended the hearing on 10 June 2004. On 25 June 2004 the RRT handed down its decision affirming the decision of the delegate to refuse the applicant a protection visa.” [CB 198 to CB 221].

10. The Tribunal's account in its decision record of the applicants’ claims is set out at CB 202.6 to CB 214.8. In particular, the Tribunal's account of what occurred at the hearings both on 4 June 2004 and 10 June 2004 is at CB 206.8 to CB 214.8. The Tribunal's “Findings and Reasons” are set out at CB 214.9 to CB 220.5. The Tribunal was not satisfied that the applicants had a well founded fear of persecution for a Convention reason if they were to return to China in the reasonably foreseeable future. This conclusion was reached on the basis of the following findings:

    1)The Tribunal was satisfied on the basis of the available information before it that both applicants had received assistance in completing the application forms to the respondent Minister’s Department (CB 215.5).

    2)However, the Tribunal, with reasons, did not accept that the applicants did not know the contents of the forms (CB 215.6). Further, in relation to this issue, the Tribunal found that the first applicant gave inconsistent evidence and did not accept his explanation as to the reason for the inconsistency (CB 215.8).

    3)The Tribunal found that although the applicants had received assistance in completing the forms it could not accept that the forms had been completed without the applicants’ instruction or knowledge of what information had been provided (CB 215.9).

    4)The Tribunal found that both applicants gave inconsistent information in relation to whether they were married, or not married, and further noted the first applicant's explanation that his sister had told him that it was better to say that the applicants were husband and wife (CB 216.3).

    5)The Tribunal also noted that its adverse conclusion as to the applicants’ credibility was further supported by the first applicant’s claims in a letter to the then Minister for Immigration, Multicultural and Indigenous Affairs, that he was a member of “Falun Gong”, and his subsequent statement that he had been told that this was the type of claim that was regarded as persecution. It noted its view that the applicants had “no reluctance whatsoever to even intentionally want to mislead the Minister” (CB 216.5).

    6)Notwithstanding these credibility concerns, the Tribunal did accept the applicants had been involved in conflict that arose between the applicants, in particular the first applicant, his employer company and an “important person from a Hong Kong company”. As a result, the Tribunal accepted as being plausible that the applicants’ employment was terminated (CB 217.7). However, the Tribunal rejected the claim that this occurred for political reasons. It found that there was no Convention nexus between the harm feared and a ground articulated in the Refugees Convention. In its decision record at CB 218 the Tribunal sets out its understanding of the relevant law in this regard, and found at CB 218, having regard to s.91R(1)(a) of the Migration Act 1958 (“the Act”), that while it accepted that there may have been some political element involved, it was not the essential and significant reason for the persecution. It further found that the applicants had lost their job for reasons arising from the technical issues of contention in relation to the building which was the subject of their work, and that the applicants also lost their jobs because they had been involved in a conflict which, on the basis of documents provided by the applicants themselves, had resulted in massive financial losses to their employer.

    7)The Tribunal also did not accept that the applicants were persecuted by the Courts in China and because of the credibility concerns which the Tribunal had formed in relation to the applicants, gave no weight to the evidence that the applicants had put before the Tribunal in relation to messages which they said were left on the first applicant’s pager (CB 219.7).

    8)The Tribunal, having regard to the credibility concerns, and the fact that it could not accept that there was an essential and significant political element to the conflict which the applicants said had occurred, was not satisfied that the first applicant had been visited by PSB security officers who had come to threaten him. It found this was a fabricated claim (CB 218.9). While it accepted that, following the work related dispute and subsequent court case, the applicants might have had difficulty in finding work, that whatever the reason, it was not essentially and significantly politically motivated (CB 219.4).

    9)The Tribunal also looked at the first applicant’s claims about his family's history of persecution and noted that the first applicant had spoken of incidents that occurred in 1950, 1966 and 1977, and found while it was plausible that these incidents occurred, that it was not satisfied that such isolated incidents constituted serious harm as contemplated by the Migration Act or that they could give rise to a well founded fear, or even, given the time that had passed, a subjective fear (CB 219.9).

1. In their application to the Court the applicants claimed that the Tribunal refused to hear what the applicants had to say about their case. At the hearing before me, the applicants gave some particularity to this general claim by submitting that the first applicant had, after receiving the letter from the Tribunal inviting them to a hearing, and understanding that this was important to their case, prepared a submission and oral argument and wanted 1 ½ hours to present his “speech”. He claimed that he tried to explain to the Tribunal all the things that he had been going through and wanted to make full use of the chance at the hearing that was being offered to him. The claim was that the Tribunal did not allow him to give this 1 ½ hour presentation at either of the two hearings that it conducted with the applicants. The applicants’ complaint in this regard could be seen as an assertion that the Tribunal denied the applicants procedural fairness in not allowing the first applicant to fully present his case. As he put to me at the hearing before me, he wanted to make full use of the chance that he had been given and was “talking about the lack of fairness” by the Tribunal. He claimed that the Tribunal “spoke” about matters that were not relevant to his case, wasted time and then told him to compress the 1 ½ hour speech to 15 minutes. Then at the second hearing, when he expected that he would be given another chance, he was again not given the opportunities to fully present his speech. The first applicant challenged the respondent’s written submissions at page 13 of those submissions, where the respondent submits “there can be no suggestion that the applicants were denied the opportunity to make relevant submissions or put forward further relevant evidence.”

2. In the material put forward to the Court by the applicants (as annexures to the affidavit of the second applicant, filed on 27 May 2005), and in particular in the material drafted by the first applicant, the complaint appears to derive from the Tribunal's information letter sent to the applicants on 4 May 2004 (reproduced at CB 183 to CB 184). This letter provides information about the hearing before the Tribunal and why it is important. The first applicant in particular, focused on the wording in the Tribunal's letter at CB 183.8 as emphasising the importance of: “the advice of what you tell the member at the hearing.” The letter states:

   “What is a hearing and why is it important?

   A hearing is your opportunity to give the Tribunal evidence to support your application. Evidence can include:

   ·What you tell the member at the hearing…”

   The first applicant submitted this does not suggest the format of answer or reply, but that it creates the expectation that he would be afforded the opportunity to make a presentation to the Tribunal. The first applicant also points to the Transcript (T) of the hearing of 4 June 2004 before the Tribunal, provided by the respondent:

   1)In particular T23 line 5 where the Tribunal is reported as saying:

   “AY [Tribunal member]: Mr [first applicant], I'm listening to you but I'm not under any obligation to let you tell me irrelevant information. I have to conduct this hearing in a timely manner, we have two officers waiting outside- if I let you tell me a lot of information that may not be relevant to your case I'm wasting my time.”

   2)Further the first applicant also points to T44 and T45 of that Transcript and submits that the Tribunal promised a second hearing and promised to give him an opportunity to “say my 1 ½ hours speech.” He relies, in particular, on the Tribunal statement:

   “AY: I want you to feel that you have been given the proper opportunity to say what you really want to say.”

3. In the circumstances of this case the Tribunal was under a statutory obligation to invite the applicants to appear before it and to allow them to give evidence and present arguments (s.425 of the Act). In this statutory context, the failure to provide an applicant with an opportunity to present their case may give rise to a breach of the common law rules of procedural fairness. In Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759 at 31 the Court said that the hearing invitation must not be “an empty shell or a hollow gesture.” It is quite clear that applicants must be given the opportunity to put all their claims to the Tribunal, and that they are not discouraged by the Tribunal from presenting information on critical claims. They must not be misled by any reference or misrepresentation that they will have a further opportunity to present claims or make submissions. In the circumstances of the case before me, it is quite clear that the first applicant in particular claims to have formed a view, after receiving the Tribunal's letter of 4 May 2004, that he would be able to “tell” the Tribunal whatever it was that he wanted to say. The applicants now submit that they saw the first applicant’s pre-prepared 1 ½ hour presentation as being the opportunity to fully present their case. It is quite understandable that applicants from a non English-speaking background, and from a different cultural context from that found in Australia, who are seeking refugee recognition in Australia, would have misapprehensions about the opportunity to fully present their case.

4. This is particularly so where such applicants have come from highly authoritarian regimes, where government instrumentalities including the equivalent Court or Tribunal system could present such difficulties. While the Tribunal should approach their dealings with such applicants with sensitivity and some understanding this misapprehension however, must be viewed in the context of applicants presenting  material relevant and significant to the Tribunal’s task of determining refugee status. In the inquisitorial process employed by the Tribunal, it is part of the Tribunal’s task to balance the applicant’s capacity and preference for how they want to put their claims and information, with the need to ensure that a reasonable opportunity has been afforded to the applicants to put forward all matters of significance and relevance to their claims. In this regard, Ms. Francois for the respondent, in written submissions, referred me to Luu v MIMA (1998) 86 FCR 304 at 314-315. I took this to be a reference to MINH v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 304 where Weinberg J at 314-315 said:

   “The duty to act fairly, in the sense of according procedural fairness, may of course be breached if a party is not given a reasonable opportunity to make relevant submissions, to give evidence and to call witnesses in support. See generally R v Windridge; Ex parte Pacific Coal Pty Ltd [1992] 2 Qd R 180 at 191 per Thomas J (with whom Demack and Mackenzie JJ agreed); Thai v Deputy Commissioner of Taxation (Cth) (1994) 34 ALD 132 at 150-151 (Full Federal Court); Beckner v Minister for Immigration, Local Government and Ethnic Affairs (1991) 30 FCR 49 at 53 per Davies J; Rettke v Comcare (unreported, Federal Court, Full Court, 26 October 1994) and Dobbie v Department of Social Security (unreported, Federal Court, Full Court, No 303 of 1995, 7 April 1995).

   At the same time, however, the opportunity to make relevant submissions, to give evidence, and to call witnesses in support which must be afforded will always be qualified by a requirement that the material and arguments sought to be presented must be sufficiently relevant and significant to warrant being received.

   A court may refuse to grant relief based upon a suggested denial of procedural fairness if it may safely be concluded that the completion of the submissions which were cut off could have made no difference to the outcome: see Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145-146. The fact that a party has not been permitted to call a witness will not be sufficient to establish a denial of procedural fairness if there is nothing to suggest that the witness's testimony could have been relevant: see Kuczynski v The Queen (1994) 72 A Crim R 568 at 576 and at 591.”

5. The first applicant’s “speech”, which he claims he was “forbidden” by the Tribunal from presenting, is set out at pages 31 to 63 of the annexures to the second applicant's affidavit affirmed on 10 November 2004. There is nothing before me to show that this speech was in fact the exact speech that the first applicant intended to make to the Tribunal. But even putting that aside and looking at the material put forward now by the applicants:

   1)I can see nothing of substance in the “speech” that was not dealt with by the Tribunal at the two hearings before it, and that was not already, in some part, contained in the information before the Tribunal. The Tribunal was clearly faced by applicants who had a very strong view about how their claims were to be presented. But equally the Tribunal is entitled to direct the nature of the proceedings before it, so long as it does not deny the applicants, in a real sense, the opportunity of putting forward their claims and evidence, and does not mislead the applicants in this regard. In the circumstances before me, it is clear the applicants had every opportunity prior to the hearings (which they utilised) to put forward whatever written material they wished. They were then given the opportunity at two lengthy hearings to make submissions to further support their claims. From the Transcript provided, it appears that the total time taken by the two hearings before the Tribunal was nearly six hours (5 hours and 54 minutes).

   2)The Tribunal clearly provided the applicants with an opportunity after the first hearing to make whatever written submissions they wanted to make. The applicants complain now that the first applicant could not make written submissions because of difficulties with the English language and translation. This must be seen in the context of the lengthy written submissions put before the Tribunal prior to the first hearing, but far more in the context, that during nearly six hours of hearing time it is clear that the first applicant was allowed to give full and complete answers to questions. The matters covered in his “speech”, which he has put forward now to the Court, were in substance covered by the Tribunal in the material before it, and at the hearings before it.

   3)The Tribunal was clearly entitled to seek to impose some order and structure to the proceedings. It noted, at T23 of the first hearing before it, that after two and a half hours the first applicant indicated that he had “important new information” to put to the Tribunal. While the Tribunal noted that he had had ample time to put these matters, it nonetheless said that the hearing was not yet finished, and indeed provided the further opportunity of a second hearing before it which lasted over two hours.

   4)It is clear that part of the first applicant’s presentation as set out now in the annexure to the affidavit of 10 November 2004 was focused on historical events relating to his family, and on particular events occurring in 1950 and 1996. It is clear that this is reported in the Tribunal's record of the hearing of 10 June 2004 at CB 213.8 to CB 214.6. In the circumstances, the Tribunal was entitled not to accept those matters as being of particular relevance to the current claims put forward as they related to the fear of persecution which arose out of his being the manager of a company that had come into conflict with another company and the authorities. I can see nothing else of relevance contained in the “speech” put forward now that was not put before the Tribunal in one way or another. Nor significantly, have the applicants now pointed to any issue which they were prevented from putting to the Tribunal. The mere fact that the applicant was not allowed to make his “speech” of 1 ½ hours on its own, in the circumstances of this case, is not sufficient to show that there has been a denial of procedural fairness.

   5)Nor can I see, in any event, that the Tribunal mislead the applicant in this regard. The Tribunal’s letter of 4 May 2004, when seen in the context of the inquisitorial process adopted by the Tribunal, is clearly intended to advise that what is said by an applicant at the hearing is evidence and that the hearing is one opportunity to give the Tribunal evidence to support the application. While it could be said that the word “you tell” when taken literally by a non-English speaking applicant from a different culture may have led to some misunderstanding that the applicant could make a “speech”, the applicants were clearly disabused of any misunderstanding in this regard by the Tribunal at the first hearing it conducted. Further, if the applicant is now claiming that he had an expectation of making a speech, and that he had timed this to be of 1 ½ hours duration, then the speech would have been ready at the time of the first hearing before the Tribunal.  In these circumstances it is difficult to accept that the applicants could not have given this prepared speech to the Tribunal in the time between the two hearings, or even at the second hearing.

   6)The Tribunal had clearly put to the first applicant in particular, that the conduct of the hearing before it was something to be managed by the Tribunal and that there was a necessity to focus on relevant questions. It would have been clear to the applicants by the time that they attended the second hearing that the conduct of hearings followed the pattern of question and answer. If the applicants wished to put their material in a particular format, then clearly the “speech” which has been presented now could have been presented to the Tribunal in the time intervening between the two hearings or even subsequently. The second hearing was held on 10 June 2004 and the Tribunal’s decision was not, made until 24 June 2004.

   7)Further, an examination of the Transcript of the concluding parts of the second hearing does not show any complaint by the applicants that there was a further “speech” of 1 ½ hours, or indeed anything further that they wish to put to the Tribunal. At T23:

   “AY: Now I don’t need to know any more, is there anything else you would like to tell me both of you please.

   Applicant: I want to give you one more example.

   AY: Okay.

   Applicant: A while ago there was a uni student who was working in [not transcribed]. He was detained by police because he did not carry an ID with him. He was detained in the detention centre and after that he was beaten to death.

   AY: Now Mr [Applicant], I did say earlier that I’m aware that there are human rights issues in China, I’ve never denied that.

   Applicant: So your telling me about the uni student is plausible.

   AY: But how does that help you?

   Applicant: That was another kind of persecution.”

   The Transcript shows that the first applicant was given the opportunity to give his “one more example”. Further, the second applicant was given an opportunity at the end of the second hearing to say anything further. The second applicant proceeded to return to the discussion about the two American missionaries (who had assisted the applicants in the lodging of their protection visa application) and the Tribunal indicated to the second applicant that:

   “AY: American missionaries we have covered all of that.”

   8)In any even the applicants’ complaint now that there was insufficient time between the two hearings to present “additional material” appears from what they have put to the Court to be focused on some other unidentified documents which required the services of a qualified translator. Clearly this does not apply to the speech which is the first applicant’s own narrative of his claims. Nor has the first applicant now identified in the material put to the Court, exactly what other documents, that required translation, he wished to put to the Tribunal.

   In all the circumstances, I cannot see that the applicants were denied the opportunity to put forward their case, nor have they pointed to any issues that were not raised before the Tribunal. On this basis this complaint is not made out.

6. The applicants also complain by way of the annexure to the affidavit filed by the second applicant and sworn on 27 May 2005, that the tapes of the hearing before the Tribunal, which resulted in the Transcript of the hearing, were modified and that “undoubtedly” some contents were deleted. The applicants claim that the contents that were “lost” from the hearing of 4 June 2004 were the parts of the hearing where the Tribunal member allegedly “maliciously insulted” the applicants. The first applicant claims that he has a “profound” memory, and gives examples, of what he claims was deleted. In particular, he claims that short commands (as he describes them) by the Tribunal were made. For example: “you don't roar” was used on more than “30 occasions” and all these references had disappeared from the tapes both in Chinese and English. The first applicant also claims that there are traces of these deletions in the Transcript of the hearing of 4 June 2004 and that these are at the parts of the Transcript where the applicant says that he wants to say something, and the Tribunal does not allow him to do so. Further, the first applicant alleges that not only were words deleted from the tapes, but that the tapes were “amended”. When these claims were raised at the hearing before me, I emphasised to the applicants that allegations of this nature were serious and had to be supported by evidence. I gave as an example that it was open to the applicants to provide evidence by way of a Transcript of the hearing being annexed to an affidavit which could be relied on by the Court to support the claims that they were making. It was in this context that the respondent’s Counsel provided a Transcript of the hearing. The applicants now, by way of the affidavit and annexures of 27 May 2005, are asserting that notwithstanding the Transcript of the hearing provided, the tapes were modified in what could only be understood, as Ms. François has subsequently submitted, as a conspiracy between the Tribunal and the interpreter to rerecord and modify the tapes of the hearings to produce the version of the tapes on which the Transcript was based of which the applicants now complain. I should note that the applicants complain that there was a gap of some 12 days between the second hearing before the Tribunal and when they were given the tapes, and allege that the modification occurred during this time.

7. I noted from the respondent’s further submissions in this regard in relation to the evidence filed by the applicants on 27 May 2005:

   1)The affidavit sworn on 27 May 2005 is clearly sworn by the second applicant and states that her declaration in the annexure is true to the best of her knowledge and belief. The annexure however, appears to have been written by the first applicant. The reference to “my words changed not intact” at page three of the annexure clearly in context, refer to the words of the first and not the second applicant. At page 11, the reference to “I was bamboozled, I tried to explain” again in context refers to the first applicant as the speaker and author of the document. The annexure has other similar examples to support the new view that the annexure was drafted by the first applicant.

   2)The annexure amongst other matters asserts that the interpreter at the Tribunal hearing did not accurately translate what was said and that certain parts of the hearing had been selectively deleted and amended in the hearing tapes.

   I agree with Ms. Francois, that insofar as the affidavit purports to contain evidence, it is not admissible as evidence in the proceedings before me:

   1)The annexure contains the unsworn allegations of the first applicant and the second applicant is not in a position to give evidence that the first applicant is honestly and accurately recalling his own memories.

   2)When the second applicant appeared before me she required the services of an interpreter in the Mandarin language to translate for her the conduct of the proceedings both from, and into, English. There is no indication that the oath contained in the affidavit and the contents of the annexure were translated to her as required pursuant to rule 15.27(2) or (3) of the Federal Magistrates Court Rules 2001.

   3)On its face the affidavit sworn by the second applicant is clearly and demonstrably false as she refers to “my declaration” in the Annexure “A”. The annexure is clearly written by the first applicant which further supports the view that the affidavit was not properly translated for the second applicant.

   4)I accept the respondent’s submissions that allegations about the accuracy of the translation during the hearing and the tampering with the hearing tapes are properly matters for expert evidence and neither of the applicants, even if the affidavit had been sworn by the first applicant, are objective, or importantly, qualified interpreters or possess any relevant technical qualifications to support the allegation that the audio recording of the hearing had been altered or otherwise tampered with. If they do, then no such evidence has been put before me.

   5)The need for such expert evidence was clearly explained to the applicants at the hearing before me on 16 May 2005 and confirmed by letter (see Annexure “A” to the affidavit of Bridie Catherine Rushton sworn on 10 August 2005) to the first applicant (this was the preferred method of communication with the applicants as the second applicant was reluctant to provide a contact address). Further, in this regard, the Court arranged for the lawyer on the panel of the Court's Legal Advice Scheme, who had initially provided advice to the applicants, to provide further advice in relation to the presentation of evidence and the preparation of affidavits.

1. Taking note of the general concerns above and the matters relevantly asserted in the affidavit of the second applicant of 27 May 2005 and its annexures, which clearly have been drafted by the first applicant, I note in particular that the applicants were provided with an explanation of the need for expert evidence to support allegations of this type. This was at the hearing before me and confirmed by letter from the respondents which contained specific notice that the evidence required to establish that the Tribunal hearing tapes had been tampered with, or modified, and that the interpreter at the hearing had not correctly interpreted what was said, would require an affidavit from a person with some expertise in recording devices who has inspected the hearing tapes and can confirm that the tapes have been modified or tampered with, and an affidavit from a properly qualified interpreter in the Mandarin/English languages who has listened to the tapes and who can confirm that the interpreter did not properly interpret what was said by the applicants and set out (to the extent possible) what, in fact, was said by the applicants. The applicants have not provided any such evidence. The material in the annexures to the affidavit of the second applicant, in all the circumstances above, do not rise above mere allegations, and at best can only be regarded as submissions on behalf of the applicants (I will refer to them as “submissions” below). In relation to the allegation of tampering and modification, there is no admissible evidence before the Court on which the Court could rely on to make out this allegation. The first applicant may indeed have a good memory as he asserts, but this falls far short of establishing the very serious claim that the Tribunal and the interpreter conspired and changed the contents of the tapes. I should also note that the applicants also complain that the tapes of the hearing of 4 June 2004 were tampered with and set out mathematical calculations at pages 38 and 39 of the annexure to show that the tape has “run short of 11 minutes.” Again, no expert evidence, or indeed no admissible evidence of any such tampering has been put before the Court. In relation to the first applicant’s claims of examples that he provides at page 22 of his “submissions”, (I will deal with the Falun Gong issue and the issue of who prepared the application forms separately), but as to the remainder, the examples given to support that there were differences in relation to the translation, do not appear, as Ms. François submits, to be substantial. Nor do the examples given at pages 33 to 37 provide any difference of substance in what the applicant claims to have really occurred compared with what has otherwise been presented to the Court.

2. As I have already indicated, the Tribunal formed an adverse view of the applicants’ credibility and made a number of findings that went to this issue. It is clear from the written material that the applicants have provided to the Court, and from what the applicants said at the hearings before me, that they are greatly agitated and take great issue with the findings on credibility made by the Tribunal. The applicants strongly asserted at the hearings before me that the Tribunal decision was based on the credibility finding made according to three major issues in relation to which the Tribunal had no evidence, and in the first applicant's words “came from thin air”:

   1)The first issue is in relation to the filling of the forms for the application for a protection visa that were lodged with the Minister’s Department. Before me at the hearing the first applicant claimed that at the hearing before the Tribunal the Tribunal had already concluded that the application to the Minister’s Department was not written by an English-speaking person but had been written by the first applicant. In his written submissions (Annexure “A” of the second applicant’s affidavit) at page 40 to page 44, the first applicant makes reference to the alteration of the tapes, (an issue with which I have already dealt). The submissions also refer to the complaint that the Tribunal found that “they” (the applicants) had completed the forms, in circumstances where they had clearly put to the Tribunal that the forms had been completed by an American missionary who assisted them, and that they did not know what was contained in these forms. In part the applicants’ complaint is a misunderstanding of the actual finding made by the Tribunal. At CB 215.4 the Tribunal clearly found that the applicants had received assistance in completing the forms. Further, it accepted as being plausible that those who assisted the applicants were American missionaries. The Tribunal’s critical finding however, was that it did not accept that the applicants did not know of the contents of the forms. The Tribunal gives reasons for coming to this conclusion. In the written submissions now (pages 41 and 42) the first applicant seeks to argue that the reasons given by the Tribunal were all “lies” and that in fact the Tribunal “refuted herself” and that this can be shown by reference to the Transcript of the hearing before the Tribunal of 4 June 2004 which shows the Tribunal saying at T9 and then at T10:

   “But I thought the missionary workers took it away and filled it in without anybody knowing what they put in”;

   “I thought you told me they just took it away from you. Now you are telling me you were telling them what you wanted them to say.”

   It is clear in the context of the Tribunal's discussion with the first applicant on this point, at that part of the Transcript (T9 and T10), that the Tribunal was seeking to clarify with the first applicant as to how the forms were filled out and lodged. It is clear that the use of the words “I thought” on the part of the Tribunal is an attempt to put to the first applicant the Tribunal's understanding of what was before it, and to draw an explanation from the first applicant. I cannot see that these examples support the applicants’ claims that the Tribunal was not entitled to draw the conclusions that it did from what was put before it. Further, the applicants claim in this regard also, that the Transcript of the hearing was inaccurate in that certain answers were not properly translated and that there were omissions. Again, this is unsupported by any admissible evidence and does not rise above mere allegation. Critically the Tribunal found, and in this it agreed with the applicants, that they had received assistance in filling out the forms, but did not accept for reasons that were open to it on the material that was then before it, that the applicants did not know of the contents of the forms (CB 215.5).

   2)The second issue going to credibility, and the second subject of complaint, is that the Tribunal was “not aware” that when the applicants were in China that they had been persecuted, and further that they had a temporary marriage ceremony, and did not go through the “legal proceedings” of marriage. The applicants both gave evidence to the Tribunal that they were not legally married. In their application to the Minister’s Department the application forms indicated that they were married. It is clear that in relation to this issue the Tribunal, at CB 216.2, found that the applicants’ oral evidence at the hearing before it was inconsistent with information provided in the protection visa application form lodged with the Minister’s Department. The Tribunal noted information provided to the respondent’s Department, and that this information was inconsistent with information given by the applicants at the hearing before it, in reaching the conclusion on the applicants’ credibility. The majority of the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 (“SAAP”) held that any breach of s.424A(2) of the Act constitutes jurisdictional error to the extent that that section (inter alia) requires information that must be put to an applicant, pursuant to s.424A(1), be put in writing and that a failure by the Tribunal to do so cannot be procedurally fair even where the Tribunal has clearly raised the information with an applicant during the hearing and invited the applicant’s comments upon that information at the hearing. On the authority of the Full Federal Court decision in Al Shamry v Minister for Immigration & Multicultural Affairs [2000] FCA 1679, the information referred to by the Tribunal, that being the information contained in the application form lodged with the respondent’s Department, does not fall within the exemption to s.424A(1) as set out in s.424A(3)(b) (I will deal with this below). While the Tribunal in the case before me stated that it was particularly concerned that incorrect information had been knowingly provided to the Australian authorities (CB 216.3) its concern about the applicants’ credibility was also based on the first applicant’s explanation that his sister had asked the American missionaries to fill out the form stating they were married. The Tribunal found the first applicant’s statement made to it at the hearing before it was “a clear admissions that they had intentionally made untruthful statements” (CB 216.3).

   3)The third ground upon which the Tribunal's based its adverse credibility finding is that in a letter to the then Minister for Immigration and Multicultural and Indigenous Affairs dated
   28 July 2003, the applicants claim to have been Falun Gong practitioners, and the first applicant claimed that he and another person “controlled all affairs of a Falun Gong Station” (CB 216.5). The Tribunal used this to illustrate that such a claim which was denied by the first applicant at the hearing before it and not pressed as a basis on which he feared persecution, illustrated the fact that such a claim was not made because it was genuine, but simply that it was done at some other persons suggestion. The Tribunal was of the view that the applicants had very little respect for the process (of seeking refugee protection) and appeared to have no reluctance whatsoever to intentionally mislead. Ms. François for the respondent made subsequent submissions on behalf of the respondent, filed on 11 August 2005, and specifically addressed the issue of the s.417 letter and whether, in light of the High Courts decision in SAAP, the letter and the view taken of its contents by the Tribunal, was an integral part of the reason for affirming the decision. The subsequent submission did not specifically address the issue of the information contained in the application for a protection visa in relation to the applicants’ legal status of marriage and the inconsistency with this information and what the Tribunal said was put at the hearing before it. The legal issue however, is similar.

3. In any event in relation to the SAAP issue Ms. François referred me to Sackville J., in SZDQL v  Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 769 “SZDQL” as to the process by which the Court is to determine the Tribunal's reasons for affirming a decision under review the purpose of the application of s.424A(1), and in particular she referred to paragraph 55:

   “[55] The following propositions relevant to this issue appear to be established by the authorities:

   1. In assessing whether information is the reason, or a part of the reason, for the RRT’s decision, the question is to be judged retrospectively, in the light of the RRT’s reasons. This is so notwithstanding that s 424A(1) addresses the matter prospectively: Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 (‘Paul’), at [94] per Allsop J (with whom Heerey J agreed); VAF, at [29].

   
   2. Section 424A(1) requires identification of the reason for affirming the decision under review. In one sense, the reason is usually the RRT’s lack of satisfaction that the applicant has a well-founded fear of persecution for a Convention reason. However, some ‘unbundling’ of the immediate reason for the decision is required for the purposes of s 424A(1): Paul, at [99]; VAF, at [31].

   
   3. The fact that the RRT acknowledges in its reasons that the information has some relevance to its determination does not necessarily mean that the information forms ‘a part of the reason’ for the decision: VAF, at [30]. Nor is it ordinarily enough that the information has some ‘general adverse relevance’: Paul, at [94].

   
   4. The approach that should be taken is that set out in VAF, at [33]:

   ‘It commonly is the case that the detail and complexity of the case advanced by a visa applicant, and the information that is given and garnered for the purposes of considering it, results in the tribunal being confronted with issues that may be of varying importance, relevance and centrality both to the decision to be taken and to the reasoning that in the event sustains that decision. While the reasoning process may advert to, and express views on, such issues, all will not necessarily constitute part of the reason for the tribunal’s decision. Tribunals, no less than courts, engage in their own species of dicta often enough for reasons related to haste and pressure in composition. When a tribunal’s reasons are to be evaluated for s 424A(1) purposes, the court as a matter of judgment is required to isolate what were the integral parts of the reasons for the tribunal’s decision. That task, necessarily, is an interpretative one. In some instances the differentiation of the integral and the inessential may be by no means easy – and made the more so by less than explicit indications in the reasons themselves as to what the tribunal itself considered to be integral’.

   The above passage was approved by the Full Court in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158, at [51]-[54].

   
   5. If the information, considered in the context of the RRT’s reasoning process and the aggregate of its findings, is ‘relatively minor and unimportant in the scheme of things’ (VAF, at [4]), it is not likely to be a part of the reason for the decision. A useful test is whether the information was:

   ‘so integral to the reasoning process rejecting the [applicant’s] claim as to require as a matter of fairness that the [applicant] be told that information (cf s 424A(1)(a)) and why it was relevant to the review (cf s 424A(1)(b))’: VAF, at [41]; VUAX, at [53]-[54].”

4. Ms. François's submission, in light of the above, is that central to the applicants’ claims, in amongst the great volume of material that the applicants put before the Tribunal, was that each applicant claimed persecution for political reasons stemming from conflict arising out of a construction project dispute during the course of their employment which led to their loss of employment, persecution by the Court in China, and an inability to obtain further work. I note also that the first applicant made claims of persecution during the Cultural Revolution and referred to incidents between 1950 and 1997. The Tribunal clearly dealt with these claims at CB 219.8 and found that while it was plausible that these incidents had occurred, it was not satisfied that such isolated incidents constituted serious harm as contemplated by the Act, or that they gave rise to well founded fear of persecution or indeed a subjective fear, given the passage of time. Clearly the Tribunal had in mind the relevant test for persecution as set out in Article 1A(2) of the Refugees Convention, and as qualified by s.91R of the Act.

5. The Tribunal dealt specifically with the conflict that arose out of the applicants’ employment situation in its “Findings and Reasons” at CB 217.4 to CB 218.8. Other claims arose out of this conflict and I will deal with those below. In looking at this conflict it is clear that the Tribunal specifically referred to its serious doubts about the applicants’ credibility at CB 217.7 (as outlined above), but then went on to say that in spite of this, it accepts as plausible that as a result of the conflict the applicants’ employment was terminated. The Tribunal’s critical finding was that the employment termination did not occur for political reasons. The Tribunal clearly understood that a Convention reason, or reasons, must constitute at least the essential and significant reason or reasons for the persecution. While it accepted that the work dispute and the applicants’ subsequent loss of employment may have had a political element, it did not accept that this was the essential and significant reason for the persecution (CB 218.3). The Tribunal gave reasons for this as set out at CB 218.5. It found that on the basis of documents provided by the applicants themselves to the Tribunal, the applicants’ actions in contentions over technical issues resulted in massive financial losses to their employer, and that this was more than likely the reason that they lost their jobs. The Tribunal, although it had doubts about the authenticity of these documents, nevertheless accepted that the documents did provide evidence of the contract between the two companies (one of which employed the applicants) and that the real reason, or rather the essential reason, for the applicants loss of employment was not due to any political element but to the fact that they had caused massive financial losses to their employer (CB 218.5). It is clear that this key finding in relation to the applicants’ claim to have suffered harm in the form of loss of employment was not based on any adverse credibility finding arising out of the issue of the applicants’ marital status or the claims in the request to the former Minister pursuant to s.417 of the Act. The finding was that any political element in this particular claim relating to, and arising out of, the employment dispute was not the essential and significant reason for the harm suffered as required by the relevant statutory provision.

6. In relation to one matter that flows out of this work dispute, that is, the applicants’ claim that they had been persecuted by the Courts in China, the Tribunal's consideration of this claim can be found at CB 219.5 to CB 219.8. The applicants claimed to have been persecuted by the Court but the Tribunal found that the Court had not persecuted the applicants as the copy of the Court’s judgement, as provided by the applicants themselves to support their claim, was very clearly only a verdict in favour of the Hong Kong Company against the company which employed the applicants. Clearly, as the respondent submits, the applicants’ translation of the Court’s judgement (set out at CB 138 to CB 139) shows that the Court found that the applicants’ employer company had contracted with the Hong Kong company, which had subsequently sued it for damages, to provide a different technical standard to the one that the applicants thought should apply. This was the difference between the “decorative standard” and the “State standard”. The Tribunal's finding was that the claim that this constituted persecution, in the Convention sense, was baseless (CB 219.6). From the information provided by the applicants themselves, this finding was clearly open to the Tribunal to make. A commercial dispute between two companies leading to a verdict in favour of one company against the company which employed the applicants, with some damages being awarded to the “winning” company, clearly on its own does not constitute persecution by the Courts in relation to the two applicants.

7. The Tribunal did rely on its credibility concerns to give no weight to the copies of the “messages” on the first applicant’s pager (CB 70 to CB 71) as purporting to authenticate and reflect genuine messages, and which purported to state that the applicant was required in Court, and that the Court was “going to seal off your home” (CB 69). I accept Ms. Francois’s submission that those messages were not corroborative of the applicants’ claims. The translation of the pager messages is reproduced at CB 69. The respondent argues that the Court proceedings in 1997 which the applicants described, did not involve them personally as litigants. There is nothing to show that any further proceedings had been commenced against the applicants, after the applicants had left their respective spouses and moved to the countryside in early 1998. The messages are dated August and November 1998. If the messages did relate to any subsequent proceedings, then the messages appeared to indicate an attempt to notify the applicants of those proceedings. But all of this is speculation. The critical issue in relation to the Tribunal's finding in this regard is that the Court action could not be seen to constitute persecution of the applicants. The copies of the pager messages, whether reflecting genuine messages or not, is irrelevant, particularly in the absence of anything else to show any subsequent proceedings against the applicants themselves, as opposed to their former employer.

1. The Tribunal also looked at the first applicant’s claims that PSB (Security Officers) came to threaten him. The Tribunal's findings in this regard are set out at CB 218.9. The Tribunal said that it was satisfied that this was a fabricated claim and in part, this was related to the Tribunal's credibility concerns. But the critical issue in regard to this finding is that the Tribunal clearly looked at the claims of the first applicant that he was interviewed by the PSB. The Tribunal’s report on its discussion with the applicant about this point at the hearing before it with the first applicant is reproduced at CB 208.8. The Transcript of the hearing of 4 June 2004 before the Tribunal shows this discussion at T16.1 to T17.5 concerning the claimed incident with the PSB:

   “Applicant: 10 September the police officer from PSB came to me once.

   AY: Where were you when they came to you?

   Applicant: It is in the morning I was at the door of the company. On the way to work.

   AY: What did they say to you?

   Applicant: My personal feeling is they were cooperating with them trying to find some name of offence for me. But in regard to the technical issue they can’t find any offence. So they intimidated  me. Say something like I have a my family is not very good and I shouldn’t affect or try to influence the return of Hong Kong. Its just a threat.

   AY: Did they hard you in any way?

   Applicant: No physical. No that’s they just shut you in a room if you don’t give proper answer. So then and only until night they let me go.

   AY: So are you saying you were detained on 10^th of September 97?

   Applicant: So its not detaining but just they call me in just to ask me questions and I’m they didn’t like my answer they left but kept me in a room and wouldn’t let me make phone calls.

   AY: They kept you in a room at your workplace did they?

   Applicant: They no I think it a PSB station.

   AY: But I thought you said they came to your workplace?

   Applicant: No to the local police station.

   AY: You said earlier that the PSB came to you on your way to work?

   Applicant: Yes at the door of my work unit. The secretary was with two police officers in plain clothes. They say that I come the PSB want to have a word with you. I said show your card why you want to have a talk with me. The secretary said the party company is aware of it just go with them.

   AY: Did they detain you or not Mr [Applicant] is my question to you.

   Applicant: No.

   AY: OK. You were not harmed you were not arrested, you were not detained, is that correct?

   Applicant: That’s right.

   AY: What did you mean earlier, they kept you in a room then…

   Applicant: In a questioning room in the police station is a small room. Questioning room.

   AY: Please, please slow down.

   Applicant: If they don’t like your answer or your answer is no good, they just left and locked the room.

   AY: But I thought you were still in your office or did they ask you to go with them to the police station, is that what you are saying?

   Applicant: I follow them to the police station. They drove a car- they put me in the car. On the first floor there are many rooms. One of the rooms. I don’t know what the room is for.

   AY: If they kept you in a room why do you say you weren’t detained because that’s what detained means.

   Applicant: But they said they have the right to keep someone for 24 hours to question.

   AY: But what were they questioning you about?

   Applicant: They want me to think what I have done recently I was like in a club.

   AY: Can I just say Mr. [Applicant] I have great difficulties with what you are saying to me.

   AY: I have concerns about your credibility. I don’t know if you are telling the truth.

   Applicant: Of course the truth.

   AY: Yes, that’s what you acclaim but it is up to me to determine whether it is or not and I need to let you know that I have great difficulties with your credibility.”

   The Tribunal noted that he was visited by the PSB officials at his work and followed them to the local PSB station. He was kept in a room, and he was questioned about what he had done during a strike on a major construction project. He did not think that he was being detained, and he was not harmed. He was released that evening. It is clear the Tribunal’s credibility concerns on this issue flowed from what the first applicant himself had said to the Tribunal at the hearing before it. The Transcript at this point clearly shows the Tribunal putting to the applicant its “great difficulties” with what he was saying, its concerns about his credibility and its doubts about whether he was telling the truth are not linked to any credibility concerns arising from the “marital status” issue or the “s.417” issue, but the Tribunal’s difficulties in accepting what the first applicant was saying in relation specifically to the events surrounding and involved in the claimed incident with the PSB officers. But in any event the critical element in looking at the Tribunal's decision record as a whole is that the Tribunal found that while it was plausible that there may have been some political element involved, it was not the essential and significant reason for the persecution claimed. Having found this, clearly any findings as to the applicants’ credibility arising out of the “marriage status” or the “s.417” issues, is not the significant factor. The Tribunal's views of the applicants’ credibility generally did not affect the finding that the significant and essential reason was not for political reasons. But in any event and clearly in relation to the alleged PSB incident, the Tribunal’s credibility concerns flowed from what the first applicant said on this issue at the hearing with the Tribunal. This would put any such information (to the extent that it was not the adverse thought processes of the Tribunal) within the exception provided for in s.424A(3)(b). The Tribunal did not make any credibility finding which in turn was based on any information obtained from a third party.

2. In relation to the applicants’ claims of difficulty in trying to find work after the incident arising out of the employment with their construction company, this was considered by the Tribunal at CB 219.2. While the Tribunal accepted as plausible that the applicants may have had difficulty in finding work, the Tribunal found that it could not accept that any difficulty in the applicants finding work was essentially and significantly politically motivated. As Sackville J. said in SZDQL at [55]:

   “…In some instances the differentiation of the integral and the inessential may be by no means easy – and made the more so by less than explicit indications in the reasons themselves as to what the tribunal itself considered to be integral.”

   In the case before me it is clear that the Tribunal did have serious concerns about the applicants’ claims of refugee status and it clearly stated this at CB 220.1. But what the Court must focus on, is that in all the great amount of material presented by the applicants, the one essential feature, the central part of the claims to fear persecution, was based on and arose out of the dispute at their place of employment with the construction company, and the subsequent litigation in the Courts between the applicants’ employer company and the company from Hong Kong. The claims of the visit from the PSB, of persecution by the Courts and of the difficulty obtaining employment after they had been dismissed were all variously seen as arising out of the central employment dispute. The “political element” to the extent that any existed, was not the essential and significant reason for the harm claimed. The applicants’ complaints before the Court do not really attack this central finding by the Tribunal. The applicants’ current criticisms of the Tribunal, the interpreter, the process employed by the Tribunal, the Tribunal's apparent non-acceptance of the applicants’ explanations relating to how they came to make the application for a protection visa and how they presented their marital status are all issues that do not directly go to, or are affected by the central finding in relation to the core of their claims. When seen in this light, the integral part of the Tribunal's decision stood alone, and with the authorities in mind, as expressed by Sackville J., in SZDQL, this was the integral factor upon which the Tribunal's decision turned. On that basis s.424A(1) of the Act did not apply to “the matter contained or arising from the s.417 letter”, and to what the applicants had or had not said in their protection visa application to the Minister’s Department. These matters did not ultimately form part of, or go to, the Tribunal's integral reasons for affirming the decision under review.

3. I have carefully considered the applicants’ claims as contained in the material filed on 11 August 2005 and the material prepared by the first applicant and put before the Court as an annexure to the affidavit of the second applicant of 27 May 2005 and also contained in an affidavit of 10 November 2004, in light of the applicants claim now that the Tribunal failed to understand their claims before it, and failed to investigate their claims. To the extent that this material sets out the applicants’ claims relating to the situation in China and to their part in the dispute involving the company which formerly employed them, these matters all seek to argue that the Tribunal made the wrong decision and in this sense appear to seek impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259). Further, while the applicants’ claim that the Tribunal failed to properly investigate their claims, I can see no such failure, or obligation on the part of the Tribunal in this regard. Clearly, while the Tribunal has investigative power pursuant to s.424 of the Act, it is not required to exercise that power and in any event there is nothing in all of the material before me to show any request on the part of the applicants for the Tribunal to specifically further investigate any of their core claims. Further, and in this regard I agreed with the submissions made by Ms François, it is not apparent that the alleged evidence about the “authorities” (Court) “conspiracy” to persecute the applicants would be readily available to the Tribunal, even if it had sought to further investigate this claim. These complaints also do not succeed. The second applicant did provide the Tribunal with contact numbers for the “leader” of the “two American missionaries” (see T30 of the second hearing before the Tribunal). She clearly wanted the Tribunal to contact this person and the American missionary “if you want to know more”, presumably about the circumstances surrounding the preparation of the protection visa application forms. The Tribunal made no promise to do so, nor in the circumstances can I see reason for the Tribunal to do so. The “leader” did not play any part in the preparation of the forms and the Tribunal already had the letter from the “American missionary”. But in any event, as I have set out above, the Tribunal’s finding in relation to the core claim - the employment dispute and what allegedly arose from it - did not rely on the issue of the preparation of the application forms.

4. As I have set out above, the applicants’ material also makes serious allegations of some sort of conspiracy to modify the tapes of the hearing before the Tribunal and I have already dealt with this specific issue above. But in relation to the broader allegation of actual bias on the part of the Tribunal, relying on these allegations to show such bias, I note again the attempts to put the applicants on notice, that serious allegations of this type need to be supported by admissible and reliable evidence before they could be made out. In this regard generally, I note again that the applicants were given the opportunity to access the Court’s Legal Advice Scheme. They claimed some difficulty in accessing the nominated panel lawyer. I appreciate the difficulties faced by applicants from a non English-speaking background and for this reason provided the applicants with the additional opportunity to which I have already referred, to provide evidence. In formulating my Judgement and considering this matter I can only proceed on the evidence that is put before me. In this regard I agree with the subsequent submissions made by Ms. François (and I note the applicants complained about the explanations by the respondent's solicitors for the delay in making these submissions, but nothing of substance turns on this) that there are a number of the difficulties with this “evidence” to which I have already referred at paragraphs 17 and 18 of this Judgment. But even putting aside the issues of the admissibility of the applicants’ “evidence”, the lack of expert evidence, the lack of objectivity and lack of technical qualifications by the applicants and that the example given of the claimed inaccuracies of translation do not reveal any matters of substance, and looking at the allegations on their face, the matters put forward do not establish any element relevant to the test for actual bias. This of course is whether the mind of the decision maker was open to persuasion (Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17). In inviting the applicants to a hearing before it, by letter dated 11 May 2004, the Tribunal certainly expressed a view that it was unable to make a decision in their favour on the information that had been provided by the applicants. There is nothing in what the applicants now allege to show that the Tribunal was closed to any alternative view in relation to the applicants’ claims. Indeed the Transcript of the hearings shows the Tribunal questioning the applicants at length about various aspects of their claims, and that it give them every opportunity to respond.

5. Further, the applicants’ claim now that the conduct of the Tribunal can be described as what was perceived to be “malicious interrogation” and “forbidding the speech”. The first applicant complains that the hearing became an inquisition and that the Tribunal insisted that he answer “yes” or “no” in reply to questions and was, in the words of the first applicant, “malevolent”. He further claimed that she [the Tribunal member] “lied and laid traps” for them. It is clear that the first applicant, in particular, was not comfortable with the inquisitorial system as employed by the Tribunal. Secondly, it is also clear that the applicants took some offence at the Tribunal’s raising with them, at the hearing, questions that went to their credibility. In reading the Transcript of the hearings before the Tribunal, and bearing in mind the applicants’ suggested variations as put forward in the material that they have put before the Court, I cannot see that the Tribunal acted improperly or acted in such a way that would indicate bias. The Tribunal was clearly entitled to put questions to the applicants, and to seek to clarify the claims that they made. So long as the Tribunal provided an opportunity for the applicants to properly respond, and it itself then pursued and considered in an appropriate manner the issues raised by the applicants then there is no error on the part of the Tribunal. This is how, in my view, the Tribunal has proceeded. In those parts of the Transcript where the Tribunal seeks to focus, particularly the first applicant, on relevant issues, the first applicant has interpreted this as him not being allowed to fully put his case. I cannot see that the Tribunal was not entitled to try and focus the applicants on those issues which were relevant to their claims. Further, in regard to the applicants’ complaint now that the Tribunal member trapped the first applicant in particular, because she “harboured malicious for him” it is clear that the Tribunal was entitled to test the credibility of some of the matters put forward by the applicant. Such findings, where relevant, are indeed within the proper function of the Tribunal. There is nothing before me to show that the Tribunal acted improperly in the way that it sought to test these issues with the applicants. The applicants’ complaint that they were “trapped” is not sustained on the material before me. I cannot see that any allegation of bias on the part of the Tribunal can be made out on what has been put before me, including and in particular in the context of the Transcript of the hearings before me. This complaint does not succeed.

6. The applicants’ claims to protection in Australia clearly revolved around, and arose out of, a claimed dispute with their former employer, as to the relevant standards to be applied in work pursuant to a contract with a Hong Kong company. This escalated into civil proceedings involving the two companies. The applicants lost their employment because of their role in this. The consequential claims of PSB interest, difficulty of obtaining other employment and “persecution” by the Chinese Courts were all fully considered by the Tribunal. On the material before me the applicants had every opportunity to put forward their claims before the Tribunal, both by way of written submission, and in two very long hearings before the Tribunal. No error on the part of the Tribunal can be made out in the way that it dealt with these applicants. Nor can I see any error in how the Tribunal dealt with the central claim as it related to the fear of harm of persecution for a Convention reason. I can see no jurisdictional error in the Tribunal’s decision. Accordingly this application is dismissed.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  Sybilla Waring-Lambert

Date: 14 November 2005