SZCEG v Minister for Immigration - [2006] FMCA 352

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCEG & ANOR v MINISTER FOR IMMIGRATION

[2006] FMCA 352

MIGRATION – Application to review decision of Refugee Review Tribunal – whether failure to comply with procedures – whether error of law – whether failure to consider the applicants claim.

Migration Act 1958, ss.36, 91R, 424A

Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12
VCAK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 459
SZATG v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1595
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162
Minister for Immigration & Multicultural & Indigenous Affairs v Al Shamry (2001) 110 FCR 27
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2
Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244
NAPU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 193
Dranichnikovv Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389
Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 467
SZAKF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1719
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 133 ALR 58
Applicant M164/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 16
VHAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 80 ALD 559
VNAA v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 136 FCR 407
Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572
QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92
NAOL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 243
MZWHI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1046
Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547
SAAK v Minister for Immigration & Multicultural Affairs (2002) 121 FCR 185
SZAKF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1719
Kamal v Minister for Immigration & Multicultural Affairs [2002] FCA 818

Applicants:

SZCEG & ANOR

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG2752 of 2003

Judgment of:

Barnes FM

Hearing date:

14 February 2006

Date of Last Submission:

21 February 2006

Delivered at:

Sydney

Delivered on:

24 March 2006

REPRESENTATION

Solicitors for the Applicant:

In person

Counsel for the Respondent:

Ms S. Sibtain

Solicitors for the Respondent:

Clayton Utz

ORDERS

That the Refugee Review Tribunal be joined as second respondent to the proceedings.
That the application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2752 of 2003

SZCEG & ANOR

Applicants

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application seeking review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 20 November 2003 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa.
The applicant is a citizen of China who arrived in Australia in September 1998, having spent the previous three months in the Philippines. The second applicant is the daughter of the applicant but did not make specific claims in her own right. For convenience the first applicant is referred to as the applicant hereafter.
On 22 August 2002 the applicant lodged an application for a protection visa. The application was refused and she sought review by the Tribunal by application lodged on 19 November 2002.
The applicant claimed to fear persecution in China for reason of her political opinion. In a statement attached to her protection visa application she claimed that from November 1986 she had been employed as an accountant by the Shanghai Federation of Trade Unions (SFTU), an organisation under the supervision of a Chinese government department. She claimed that she began to consider being an activist of the workers movement in 1989 but did not express her views openly. She began to attend public speeches and read propaganda material. In 1992, after changes in government policies, she and others drafted a petition for reform of the SFTU which about 30 staff members signed and which she submitted to the leader of the SFTU in 1993. She claimed that shortly afterwards she was questioned by the political department of the SFTU and warned not to have dissident opinions against the government, forced to withdraw her petition and make a confession. She claimed that she was given an “administrative punishment” of one year of labour reform at the Shanghai Dafu Rubber Factory from February 1993 to January 1994. She was allowed to return to the SFTU in February 1994 but warned not to express any dissident opinions.
The applicant claimed that in 1995 she uncovered fraud and corruption by co-workers which she reported to the deputy chairman of the SFTU. She claimed that she was questioned and warned not to get involved and threatened with punishment if she did so. She claimed that she then discovered the involvement of the deputy chairman in misappropriation and that before she could report the matter further she was detained in a basement by co-workers for three months and forced to give up her investigation of her co-workers’ crimes. During this time she was physically and mentally mistreated and not allowed contact with her family or outsiders. She signed a statement in which she promised not to investigate their crimes further and she was released on that basis. She claimed that after her release she returned to the previous department in which she had been employed but was given different and more difficult responsibilities. She claimed she hated her employment due to the corruption.
She claimed that in June 1996 she and a former worker from the Shanghai Dafu Rubber Factory decided to establish an independent organisation to fight for workers rights called the Spring of Workers. They distributed leaflets about the need for independent unions. In May 1997 associates set up an independent union. The applicant claimed that after the arrest of one of these associates in October 1997 she was arrested owing to her special relationship with this person. She claimed that she was also dismissed by the SFTU in October 1997 because of her suspected participation. She claimed that in the following four month period she was questioned many times and forced to confess her involvement with an organisation called The Preparation Committee of Shanghai Free Union (with which in fact she had never been involved). She claimed that she was subject to physical and mental mistreatment but that the government could not find any evidence regarding her involvement in the organisation. With the help of her sister she was eventually released in February 1998. In May 1998 another associate involved in setting up the free union organisation was arrested. With the help of her sister, the applicant left China for the Philippines on 17 June 1998.
The applicant claimed that the associate who had been arrested in May 1998 confessed, that the government then discovered her own activities in the Spring of Workers and that the district branch of the Public Security Bureau (PSB) issued a Permit of Detention for her Interrogation on 30 July 1998. She claimed that the authorities also discovered her sister had assisted her to leave the PRC for the Philippines. Her sister was arrested. According to the applicant the authorities planned to take her back to China from the Philippines so she escaped to Australia.
She claimed that the PRC authorities thought that she was a political criminal at large and therefore regarded her sister as a scapegoat and sentenced her to six years imprisonment. She claimed that the authorities had appointed a particular firm of solicitors to represent her sister, although she did not discover the name of the solicitors and where her sister was imprisoned until March 2002. When she wrote to the solicitors for help they indicated that they did not want to get involved in the case again.
The applicant claimed that when she arrived in Australia she had wished to seek protection immediately but her family and friends did not agree, mainly hoping to save her sister. She claimed that after receiving a response from the solicitors in China she had decided to apply for protection as it was impossible for her to return to China.
The applicant provided a document dated March 22 2002 with a certified translation. The document is headed with the name (but no address or other contact details) of a firm of solicitors said to have acted for the applicant’s sister. It is addressed to the applicant and responds to questions from the applicant. This letter stated that the firm had been appointed to act for the applicant’s sister, that the matter was a political case and not simply an economic one, so that it was not unusual to lose the case, that the applicant’s sister was currently imprisoned at a specified prison (her photograph was attached), that her case had been finalised and that it was not convenient for the firm to get involved in the case again.
Also provided was a translation of a document dated 30 July 1998 and headed Shanghai Public Security Bureau which is described as a Permit of Detention for Interrogation and certifies that detectives had been sent to detain the applicant, and a document headed Shanghai Federation of Trade Unions dated October 21, 1997 addressed to the applicant and families stating that the SFTU had decided to dismiss the applicant from that date because she had been suspected of participating in planning The Preparation Committee of Shanghai Free Union.
The protection visa application was refused. The applicant sought review by the Tribunal. In the review application she stated: “Please see my statement attached to the primary application with the DIMIA”. She provided a further detailed written submission dated 16 November 2002 to the Tribunal in which she repeated her claim to fear persecution due to her political opinion, claiming that such political opinions had come to the attention of the government. The applicant took issue with several aspects of the decision of the delegate of the first respondent and addressed a number of matters that had been of concern to the delegate, including the fact that the applicant held a Chinese passport issued in 1994 which was renewed in Australia and the fact that her daughter (who was born in November 1993) had returned to China in December 1999 for a month. The applicant claimed that she had allowed her daughter to return because it was her daughter’s grandfather’s dying wish for her to attend his funeral, that she herself renewed her passport solely to allow her daughter to obtain a visa, that she did not return owing to her fear of persecution and that as she had come to Australia via the Philippines the officers who renewed her passport in Sydney were unlikely to be aware of any adverse information. She addressed aspects of the independent country information, took issue with the decision-maker’s knowledge about the situation in China and provided further clarification of aspects of her claims.

Tribunal decision

The Tribunal reasons for decision record the applicant’s written claims and matters discussed at the Tribunal hearing. There is no other evidence of the conduct of the Tribunal hearing before the Court. In particular, the Tribunal recorded that it discussed the applicant’s claims that she had undergone reform through labour between February 1993 and March 1994 and that she had been given an “administrative punishment”. The Tribunal noted that in the Tribunal hearing the interpreter confirmed that the applicant had used a particular term: “laodong gaizao”. The Tribunal stated that it had put to the applicant that reform through labour was not an administrative punishment, but rather was the term for people sent to prisons or labour camps after being sentenced judicially. It recorded that the applicant repeated that the punishment she had been given was reform through labour but also confirmed that she had continued to reside in Shanghai for the period of this punishment and worked in a factory there. She also confirmed that she had given birth to her daughter during this time, in November 1993. It recorded her claim that this kind of reform through labour was different from reform through imprisonment and that there was no judicial involvement, that it had been ordered by her work unit.
The Tribunal referred to a discussion it had with the applicant in relation to whether there was a distinction between “laodong gaizao” and “laogai” as the applicant claimed. The Tribunal reasons for decision state that the Tribunal member put to the applicant that, according to independent information, these concepts were one and the same and that the distinction was between reform through labour (laodong gaizao or laogai) and re-education through labour (laodong jiaoyang or laojiao). The applicant is said to have reiterated that laodong gaizao and laogai were different, but conceded that even with re-education through labour you could not go home, you had to stay in the re-education camp. She told the Tribunal that, because she had been an office worker, what she had undergone was a punishment because it was a heavy labour job.
The Tribunal recorded that other aspects of the applicant’s claims and Tribunal concerns with aspects of her evidence were also discussed in the course of the hearing.
In the findings and reasons part of its decision the Tribunal had regard to the fact that the applicant’s evidence was confused and contradictory. It referred to her claim that she underwent reform through labour, rejected any suggestion that there was any misunderstanding about what the applicant was claiming and found that it was clear from the applicant’s evidence that she had continued to reside in Shanghai rather than being placed in a reform through labour camp or re-education camp. This was found to be inconsistent with her claim that she underwent reform through labour (laodong gaizao) between February 1993 and March 1994.
It found that the applicant’s evidence, that there was no point reporting the claimed corruption of her superiors to the Discipline Commission, cast doubt on her claim that she had intended to report such corruption to the Discipline Commission in the first place.
The Tribunal also had regard to the fact that although the applicant claimed that after her October 1997 arrest she had confessed that she had been involved in The Preparatory Committee of the Shanghai Free Union, she was let go with a warning notwithstanding this confession. While the applicant had said that they did not have substantial evidence against her, the Tribunal expressed the view (as it had put to the applicant) that it would have thought that her confession would have been sufficient evidence whether or not made under duress.
The Tribunal noted the applicant’s claim that she was allowed to leave China travelling on a passport in her own name because she was not a wanted dissident. However it found that her claim that since her departure her sister had been sentenced to six years in prison for harbouring her could not be correct if the applicant was not wanted at the time she left.
The Tribunal found that the applicant had given it an inconsistent account as to how she obtained her passport (claiming first that her sister helped her to get her passport but then conceding this was not so when it was noted that her passport had been issued in 1994) and also about obtaining her visa and the involvement of her sister in her departure. She had first stated that her sister helped her to get a visa, then said it had been easy to get a visa and that her sister had put out money to help her, but that she did not know exactly what her sister had done. The Tribunal also found that the applicant gave inconsistent evidence as to why she left the Philippines and why she had delayed applying for a protection visa after her arrival in Australia and instead applied for a business visa.
Finally the Tribunal had regard to the applicant’s evidence in relation to her application to renew her Chinese passport in 1999. It found that she gave inconsistent and unconvincing evidence as to the circumstances of her application for the renewal of her passport at the Chinese Consulate in Sydney and whether she was of interest to the Chinese authorities.
The Tribunal found that, having regard to the contradictions in the applicant’s evidence, it did not accept that she was telling the truth about her past experiences in China or her reasons for leaving China. It did not accept that she underwent reform through labour (laodong gaizao), that she had obtained proof of corruption of her superiors that she intended to expose or that she was detained at her place of work for three months from November 1995. It had regard to the fact that the reasons the applicant gave for not pursuing her complaint or not complaining to anyone about her claimed illegal detention would have applied equally to her claimed intention of reporting the corruption of her superiors in the first place before she claimed she had been illegally detained.
The Tribunal went on to find that, for the reasons given, it did not accept that the applicant was arrested in October 1997 and detained for four months. It did not accept that she would have been released with a warning if, as she claimed, she had been forced to confess to being involved in The Preparatory Committee of the Shanghai Free Union. Nor did the Tribunal accept that the applicant’s sister paid a large sum of money to help her to escape from Shanghai, noting the applicant’s own evidence that she was not a wanted dissident when she left China. For the same reason it did not accept that the applicant’s sister had been sentenced to six years in prison for harbouring her or helping her to escape from Shanghai.
The Tribunal addressed the documents which the applicant produced in purported corroboration of her claims. It stated that it had put country information about the ease of buying or forging official documents in China to the applicant for comment. It noted her comments that the PSB document could not be forged because her family had seen that it had a red seal on it. However it concluded that, having regard to the view it had formed of the applicant’s credibility, it preferred the advice of the Australian Department of Foreign Affairs and Trade to her evidence to the extent of any inconsistency. It did not accept that the “official documents” she had produced were genuine.
Nor did the Tribunal accept that the applicant fled from the Philippines to Australia in September 1998 because she was afraid she might be extradited to China or because she was afraid that plainclothes police might force her to return from the Philippines. It considered her conduct in renewing her passport at the Chinese Consulate in Sydney in August 1999 and her delay in applying for a protection visa to be inconsistent with her claimed fear at the time she arrived in Australia.
Having regard to the view the Tribunal formed of the applicant’s credibility, it did not accept that she was a political dissident nor that she was involved in dissident activities in China. In particular it did not accept her claims about involvement in forming the organisation called the Spring of Workers or Workers Spring, or that persons she associated with established a Preparatory Committee called Shanghai Free Union. It did not accept that the applicant genuinely held a subjective fear of being persecuted for reason of her real or imputed political opinion if she returned to China. The Tribunal did not accept that the applicant would be involved in dissident activities if she returned to China and did not accept that there was a real chance that she would be persecuted for reasons of her real or imputed political opinion if she returned to China now or in the reasonably foreseeable future. As the applicant’s daughter’s application was dependent on the claims of her mother, neither the applicant nor her daughter satisfied the criteria for a protection visa.

This application

The applicant sought review by application filed in this Court on

15 December 2003. She now relies on an amended application filed on 29 July 2004. The amended application relies on three grounds followed by 13 particulars.
It is claimed generally that there was an error of law in the Tribunal decision constituting jurisdictional error, that there was “procedural error in the Tribunal’s decision constituting an absence of natural justice” and that the Tribunal failed to carefully and fairly consider the applicant’s claims based on procedures and criteria described in the Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (UNHCR Handbook).

Section 424A

First, the applicant contended, without particularisation, that the Tribunal failed to give her “complete information” used as the reason for affirming the delegate’s decision, to explain it to her and to ensure that she understood it before, during and after the hearing and that it failed to give her the information in the manner provided for in s.424A of the Migration Act 1958 (C’th) (the Act) (and see s.441A). It appears that this is a general contention that the Tribunal failed to comply with s.424A.
Section 424A(1) applies to “particulars of any information that is the reason, or part of the reason, for affirming the decision that is under review”. No specific information is identified by the applicant as giving rise to the s.424A(1) obligation. Insofar as issue may be taken under s.424A with the Tribunal’s reliance on information given by the applicant to the Department, no breach is apparent in this instance because in the written submission provided by the applicant to the Tribunal on 16 November 2002 she specifically asked the Tribunal to see the statement attached to her protection visa application (in which she made claims and in which the documents she submitted were described, footnoted and attached). Hence such information was given by the applicant to the Tribunal for the purposes of the application within s.424A(3)(b). (See SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162, Minister for Immigration & Multicultural & Indigenous Affairs v Al Shamry (2001) 110 FCR 27 and SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2).
The independent country information relied on by the Tribunal is within the s.424A(3)(a) exemption. In particular, information about the treatment of persons subject to re-education through labour and reform through labour punishments and also the independent information in relation to applicants obtaining forged official documents in China is within s.424A(3)(a). (See VHAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 80 ALD 559; VNAA v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 136 FCR 407; and Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572 and QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 at [8] – [30] per Lander J with whom Dowsett and Hely JJ agreed). No breach of s.424A is established.

Conduct of the hearing

Insofar as the applicant intends to take issue with the conduct of the Tribunal hearing, the evidentiary basis for such a claim is not established. I note that the Tribunal reasons for decision, the only evidence before the Court of what occurred in the hearing, indicate that the Tribunal in fact raised with the applicant each of the matters of concern that it relied upon, including the genuineness of documents. In the absence of a transcript of the Tribunal hearing, no lack of procedural fairness or other jurisdictional error in relation to the conduct of the hearing or the extent to which the Tribunal put matters to the applicant for comment is established on the evidence before the Court (whatever the effect of s.422B of the Act). Other aspects of the claim of a denial of natural justice are discussed below.

Whether failure to take into account relevant considerations

It was next contended that the Tribunal “failed to consider a number of relevant matters according to the actual situation” in China and that the Tribunal was “obviously short of basic, but very common, knowledge about the PRC”. The applicant took issue with the Tribunal’s understanding of the concept of reform through labour (laodong gaizao). The applicant contended that there were two types of reform through labour, one being the term used for those sent to prisons or labour camps after being sentenced judicially and the other for dissidents punished to do hard manual labour. It appears that the applicant’s contention is that the Tribunal did not know or misunderstood the nature of the punishments inflicted in the PRC and hence misunderstood the punishment that she claimed she had undergone in 1993 to 1994 . She took issue with the Tribunal finding that it did not accept that she underwent reform through labour at the Shanghai Dafu Rubber Factory at that time.
However the Tribunal reasons for decision do not reveal a jurisdictional error whether consisting of misunderstanding of the applicant’s claims, failure to consider the situation in China or aspects of the applicant’s claims or otherwise. It is clear from the Tribunal reasons for decision that the Tribunal raised with the applicant in the course of the Tribunal hearing her claim (confirmed with the interpreter) that she underwent a punishment which she described as laodong gaizao. It also understood that she claimed that she had been given an administrative punishment. The Tribunal’s account of what occurred in the hearing indicates that the applicant and the Tribunal differed over whether there was a distinction between laodong gaizao and laogai which the Tribunal considered was the abbreviated term for laodong gaizao based on independent country information cited. The applicant’s complaint is that the Tribunal failed to understand that there are two types of reform through labour – one a judicial sentence to a prison or labour camp and one a punishment by the authorities involving hard manual labour.
In the findings and reasons part of decision the Tribunal set out the country information which distinguished administrative re-education through labour and reform through labour to which people were sentenced judicially. It dealt with this aspect of the applicant’s claims as follows:
In the present case the Applicant’s evidence is confused and contradictory. She claims that she underwent reform through labour (laodong gaizao) between February 1993 and March 1994 even though she continued to reside in Shanghai throughout this period. She claims that this was an administrative punishment but, as I put to her, reform through labour (laodong gaizao or laogai for short) is the term used for people who have been sent to prisons or labour camps after being sentenced judicially. Re-education through labour (laodong jiaoyang or laojiano) is an administrative punishment but, as the Applicant conceded, even with laodong jiaoyang or re-education through labour she would have had to stay in a re-education camp (Human Right Watch, Dangerous Meditation – China’s Campaign Against Falungong, January 2002, Appendix I: Re-education Through Labour in China). The Applicant’s representative said that concepts like laogai and laojiao were very difficult to explain and that he did not think the explanations in Australian publications were clear enough. He said that the situation the Applicant had experienced, going to a factory to work, was very difficult to interpret into English. However I specifically checked with the interpreter that the Applicant was using the term laodong gaizao. I do not accept that there was any misunderstanding about what the Applicant was claiming. The terms used are well understood by those monitoring human rights violations in China and it is clear that the Applicant’s evidence that she continued to reside in Shanghai rather than being placed in a reform through labour camp or re-education camp is inconsistent with her evidence that she underwent reform through labour (laodong gaizao) between February 1993 and March 1994.
It is clear from these findings that the Tribunal was at pains to clarify any misunderstanding about what the applicant was claiming. It did not accept that there was any misunderstanding. In any event, the Tribunal’s concern about the applicant’s evidence was that while she claimed she had undergone a form of administrative punishment, she nonetheless gave evidence that she continued to reside in Shanghai rather than being placed in a camp. Critically (whatever the correct term for the claimed punishment), the Tribunal found this evidence was inconsistent with the applicant’s evidence that she underwent reform through labour (laodong gaizao) between 1993 and 1994. This is apparent from the Tribunal’s reference to the fact that the applicant conceded that even with the administrative punishment of laodong jiaoyang she would have had to stay in a re-education camp. Thus it is clear that the Tribunal considered the applicant’s claims in relation to her alleged punishment, her understanding of the concepts being used and satisfied itself at the hearing that it understood the applicant’s claim about the punishment she said she had experienced. On the evidence before it, it was entitled to reject the applicant’s assertions about her reform through labour or administrative punishment as inconsistent with the fact that she continued to reside in Shanghai.
The fact that the applicant asserts that there are in fact two types of reform through labour does not establish that the Tribunal fell into jurisdictional error. No documentary evidence to support this claim was put before the Tribunal. Moreover, even if the Tribunal did make a factual error about Chinese language terms, as counsel for the respondent contended, what was relevant to its determination was that the applicant had continued to live in Shanghai through her claimed administrative punishment. The findings that it made were open to the Tribunal on the material before it, in particular the cited report which distinguished these concepts in the manner adopted by the Tribunal. The issue was raised with the applicant and she had the opportunity to comment. No jurisdictional error is established on this basis.
The next ground is that the Tribunal failed to consider a number of important “documentary evidences” provided by the applicant in support of her claims. In particular the applicant claimed that the Tribunal failed to consider the documents she provided to the Department being the document relating to her dismissal issued by the SFTU, the PSB Permit of Detention for Interrogation, the Shanghai solicitor’s letter and an attached photograph said to be of her sister in prison.
I note first that the applicant took issue with the fact that the bundle of relevant documents compiled by the solicitors for the respondent contained only translations of these documents and omitted the photograph of her sister. At the commencement of the hearing counsel for the first respondent tendered the other documents provided to the Department as found on the Departmental file, consisting of two Chinese-character documents certified to be true copies of the original, a copy of another document and a copy of a photograph also certified to be a true copy of the original.
The applicant’s contention is that the Tribunal did not consider this evidence. The evidence was before the Tribunal, which recorded in its reasons for decision that it was given the Departmental file. It was drawn to the attention of the Tribunal by the applicant’s written submission to the Tribunal. In setting out the applicant’s evidence the Tribunal recorded that the applicant produced documents in support of her claims, in particular a copy of what purported to be a notice dismissing her, a copy of a purported PSB Permit of Detention for Interrogation dated 30 July 1998 and a copy of what purported to be a letter dated 22 March 2002 from solicitors in Shanghai relating to her sister’s trial and imprisonment. There is no express reference to the photograph of her sister, but the document purporting to be the letter from the Shanghai solicitors is said to attach that photograph to the letter. It is apparent from its reasons for decision that the Tribunal clearly understood the applicant’s claims that her sister had been imprisoned and that she had received information from the solicitors relating to her sister’s trial and imprisonment.
It is the case that a Tribunal will fall into jurisdictional error if it fails to address and deal with how the claim was put to it or to consider the claims and their component integers in the sense considered in Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 and NAPU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 193 (see Dranichnikovv Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389).
However it is not necessary for the Tribunal to address in the findings and reasons part of its decision every item of evidence before it. In this instance there is nothing to suggest that the Tribunal did not understand and consider the full extent of the applicant’s claims. While setting out claims will not suffice if the Tribunal does not go on to deal with all the integers of the applicant’s claims, in this instance it did so. It rejected the claims for which these documents were provided as corroboration.
The initial claims about the applicant’s sister were that she had somehow helped obtain the applicant’s release in February 1998, that she had put out a large sum of money to help the applicant escape Shanghai and that she had been arrested because she assisted the applicant to leave China and sentenced to six years imprisonment as a scapegoat because the authorities thought the applicant was a political criminal at large. At the hearing the applicant told the Tribunal that her sister’s offence was harbouring. However the Tribunal rejected the applicant’s claim that she was arrested in October 1997 and detained for four months. Rejection of this claim involved rejection of the claim that her sister had somehow helped obtain her release. The applicant conceded that she was not wanted by the authorities at the time she left China. On this basis the Tribunal’s finding that it rejected the claim that her sister had been sentenced to imprisonment for harbouring the applicant or for helping her to escape from Shanghai was open to it on the material before it.
The Tribunal considered but rejected the genuineness of the documents produced in purported corroboration of the applicant’s claims. It did so in the context of having rejected her underlying claims to have been a political dissident or involved in dissident activities in China, including her claimed involvement in forming the “Spring of Workers” (which she claimed the authorities had discovered in mid 1998) and the claim about involvement of associates in a Preparatory Committee for a Shanghai Free Union. It rejected these claims based on the confusion and contradictions in the applicant’s claims. It then recorded that “with regard to the documents the applicant had produced” country information had been put to her to the effect that any official document could be bought or forged in China. The Tribunal considered her response, which was that the PSB document could not be forged because her family had told her that when the solicitors for her sister had shown it to them they had seen it had a red seal on it. However the Tribunal concluded that having regard to the view it had formed of the applicant’s credibility, it preferred the advice of DFAT to her evidence to the extent of any inconsistencies. It did not accept that the “official documents” she had produced were genuine.
It was open to the Tribunal to reject the credibility of the applicant’s claims on the material before it for the reasons it gave (Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 467 at [67] and see SZAKF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1719 at [26]). No jurisdictional error is demonstrated in the Tribunal’s subsequent rejection of proffered corroborative evidence. (See Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 133 ALR 58 at [49] per McHugh and Gummow JJ). Moreover, the Tribunal recorded that it put to the applicant its concerns about the genuineness of the documents based on independent country information and addressed her reported response.
The findings adequately addressed the documentary evidence provided by the applicant. Indeed, even if it could be said that the solicitor’s letter and photograph of the applicant’s sister were not “official documents” and thus were not expressly addressed by the finding about “official documents”, the Tribunal did not reject the claim that the applicant’s sister was imprisoned (which is what the letter and photograph address) but rather the claim that the sister was imprisoned for the reasons claimed by the applicant, in particular that her sister had been “sentenced to six years in prison for harbouring [the applicant] or helping her to escape from Shanghai”.
No jurisdictional error is established in the manner contended in this particular.

Whether Tribunal under obligation to make inquiries

The next contention is that the Tribunal failed to seek ‘direct evidences’ in relation to the application. This was said to be a contention that the Tribunal could and should have obtained evidence from the firm of Shanghai solicitors named on the letter in relation to the applicant’s sister’s trial and imprisonment. However there is nothing in the material before the Court to indicate that the Tribunal undertook to make such inquiries or that the circumstances are otherwise such that the Tribunal was under such an obligation. In contrast to the situation considered in Applicant M164/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 16 per Lee and Tamberlin JJ, the authenticity of the solicitor’s letter was not critical to determining whether the applicant’s claims were to be accepted – as indicated above what was critical in relation to the findings about the applicant’s sister was that the Tribunal rejected her claimed involvement in obtaining the applicant’s release from detention (which the Tribunal did not accept had occurred), that she had put out a large sum of money to help the applicant to escape (given that at that time the applicant was not wanted) and that she had been sentenced and imprisoned “for harbouring [the applicant] or helping her to escape from Shanghai”. Even if the solicitor’s letter was shown to be genuine (assuming the solicitors – whose address does not appear on the certified translation – could be contacted) it would not establish that the sister had been imprisoned for helping the applicant.
This is not a case in which the failure of the Tribunal to make further inquiry points to a conclusion that the Tribunal denied the applicant the conduct of a fair hearing. The Tribunal did not simply conclude that the applicant’s story was not credible because parts of her claims were ‘implausible’ (cf Applicant M164/2002 at) [44] per Lee J). The Tribunal did not rely on mere suspicion. Nor were the inconsistencies relied on simply differences in recollections about events which occurred some time ago (cf Applicant M164/2002 at [49]). There is no implied finding that the applicant constructed an elaborate fraud before she left China such that there might be said to be a public interest in an inquiry into the provenance of documents submitted. The material before the Court and the circumstances are not such as to render the need for a further inquiry “obvious” (Applicant M164/2002 at [76]). Contrary to the situation in M164/2002 (at [89]), in this case the Tribunal had, before it considered the documents, already determined on proper grounds that the substantive claims of the applicant were dishonestly made. Thus “any documentary material that purported to corroborate those claims necessarily bore the same stamp” (ibid), although in fact the Tribunal also took into account independent country information that any official documents could be bought or forged in China. No lack of procedural fairness has been established. In any event, s.422B of the Act is applicable. No breach of a provision of the Act or other jurisdictional error is established on this basis.

Whether Tribunal failed to consider claims

The next contention in the amended application is that the Tribunal failed to carefully consider the applicant’s claims. The first aspect of this particular is that the Tribunal failed to consider the applicant’s claim that the sufferings of her sister were mainly for the reason that the Chinese authorities thought that the applicant was a “political criminal at large” and that they thus regarded her sister as a scapegoat and eventually sentenced her to six years imprisonment. The amended application repeats a part of the applicant’s claims set out in the statement attached to the protection visa application as follows:
As a matter of fact, my sister Ms. […] never ever got involved in my political activities. What she did just was using her contacts in helping out of the detention centre and going to the overseas. For the reason that authorities did not have any substantial evidences against me at that time (My involvement in the “Spring of Workers” was discovered at the time when the PSB issued the Permit of Detention for Interrogation on 30 July 1998), it was possible for my sister Ms. […] to help me. It was a very common practice in China, In point of fact, my sister should not be severely punished. However, the PRC authorities thought that I was a political criminal at large, and thus regarded my sister as a scapegoat. My sister was eventually sentenced to 6-year imprisonment.
However the Tribunal did consider these claims and no jurisdictional error is established in the manner contended. As set out above, it rejected the applicant’s claims that she was a political dissident or involved in dissident activities in China which underlaid her claims that her sister helped her to get out of detention and to go overseas and that she was regarded as a scapegoat because the authorities thought that the applicant was a political criminal at large. The Tribunal found that the fact that the applicant was allowed to leave China on her own passport because she was not a wanted dissident was inconsistent with her claim that since her departure her sister had been sentenced to six years imprisonment for harbouring her or helping her to escape. The Tribunal’s rejection of the applicant’s claims of political involvement and detention led to rejection of her claim that her political dissidence was discovered after she left China and the claimed reason for imprisonment of her sister “as a scapegoat” or otherwise as claimed.
The next aspect of the contention that the Tribunal failed to carefully consider the applicant’s claims, is a claim that it failed to consider the applicant’s explanation for not applying for a protection visa after arriving in Australia (because her family and friends wanted to save her sister) or the fact that she applied for a protection visa after receiving the letter from the Shanghai solicitors. However the Tribunal rejected the applicant’s claims about her political involvement and her sister’s imprisonment as a “scapegoat” or because she harboured or assisted the applicant. Hence it was not necessary for it to go on to address expressly the applicant’s claim that she did not apply for a protection visa immediately because her family and friends wished to get her sister released or the fact that her application was after receipt of the solicitor’s letter as contended. The Tribunal did consider the applicant’s delay in applying for a protection visa and found it inconsistent with her claimed fear at the time she arrived in Australia. The Tribunal considered the relevance of her failure to apply for refugee status when she arrived in Australia in the context of her claims that she had fled the Philippines for Australia either because she feared the Chinese authorities wanted to extradite her from the Philippines (as she initially said) or because she was afraid they would send plainclothes police to grab her from the Philippines (as she subsequently said). Despite these claims she did not apply for refugee status but applied for a business visa. The Tribunal recorded the reasons that she gave for this, including the wish to get her sister released and a claim that she was victim of bad advice from a law firm (although she was not able to find the person concerned and had not done anything about this alleged claim.) However the Tribunal found that the fact that the applicant also applied to the Chinese Consulate in Sydney to renew her passport in August 1999 suggested that she did not fear the Chinese authorities finding out where she was at that time. The Tribunal findings in relation to these aspects of the applicant’s claims were open to it on the material before it. It did not fail to address the applicant’s contentions in relation to her failure to apply for a protection visa and the claims about her sister in a manner constituting jurisdictional error. Insofar as the applicant seeks merits review, such review is not available in this Court.

Section 91R

The next particular is that the Tribunal failed to assess the applicant’s claims according to s.91R(1) and (2) of the Migration Act 1958. It appears that the applicant’s contention is that the harm that she claimed to have experienced and to fear constituted serious harm within ss.91R(1) and 91R(2) consisting of a threat to life or liberty and subjection to significant physical harassment.
However, as set out above, the Tribunal rejected the credibility of the applicant’s claims that she was a political dissident or involved in dissident activities in China as claimed and more generally that she was telling the truth about her past experiences in China or her reasons for leaving China. The Tribunal rejected the applicant’s claim that persons with whom she was associated established a Preparatory Committee for a Shanghai Free Union. It did not accept her claims about punishment in 1993, 1995 or 1997 that she was arrested and detained for alleged involvement with a free union organisation or that her sister had been sentenced to six years in prison for harbouring her or helping her to escape from Shanghai. In this context it did not accept the official documents she had produced were genuine (including the PSB Permit of Detention and the letter from the Shanghai Federation of Trade Unions stating that it had been decided to dismiss the applicant because she had been suspected of participating in the Preparatory Committee of Shanghai Free Union.).
The Tribunal findings in relation to credibility were open to it on the material before it. The Tribunal understood the applicant’s claims about past hard manual labour, mistreatment, dismissal because she had been detained, detention and the issue of a permit by the PSB but rejected these claims. As it did not accept the applicant’s claims or the claimed Convention basis of political opinion, it was not necessary for the Tribunal to address expressly whether the applicant’s claimed mistreatment constituted serious harm or whether her claimed loss of employment in October 1997 constituted serious harm within s.91R(2)(f). In other words, because the Tribunal rejected the credibility of the underlying claims, it was not necessary for it to consider whether the events complained of by the applicant would constitute serious harm had it been accepted that any such events had occurred as a consequence of her claimed activities or the authorities’ view of her as a dissident.

Tribunal procedures and findings

In six of the particulars to the grounds of review the applicant refers to extracts from the UNHCR handbook and takes issue with the Tribunal procedures and decision.
The Tribunal’s obligation was to apply the criteria for the grant of a protection visa as set out in the Migration Act 1958 and Regulations. Section 36(2) of the Migration Act 1958 includes as a criterion for a protection visa that the applicant is a person to whom the Minister (or Tribunal) is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. It is apparent from the Tribunal reasons for decision that it understood and assessed the applicant’s claims against the applicable criteria.
First it is contended that the Tribunal “failed to demonstrate its necessary knowledge and experience and such an understanding”. This particular is not related to a particular aspect of the Tribunal procedures or findings, but refers to an extract from the UNHCR Handbook relating to the vulnerability of an applicant for refugee status in an alien environment submitting a claim, often in a language not his own. If this is intended to raise a concern about the manner in which the Tribunal hearing was conducted, there is no evidence before the Court other than the Tribunal reasons for decision and the response to hearing invitation form which indicates that the applicant required a Mandarin interpreter. There is no suggestion that such an interpreter was not provided. Insofar as the applicant takes issue with the Tribunal understanding of Mandarin terms that matter is discussed above. If the applicant seeks merits review, such review is not available in this Court. Further there is no obligation on a Tribunal to ‘demonstrate’ knowledge, experience and understanding as contended. The weight to be given by the Tribunal to independent country information is a matter for the Tribunal and no jurisdictional error is demonstrated in the manner contended. The Tribunal dealt with all the relevant evidence and claims and came to a conclusion open to it on the material before it.
It is also contended that the Tribunal failed to use all the means at its disposal to produce the necessary evidence in support of the application and failed to demonstrate that there “are good reasons to the contrary”. Taking the latter of these contentions first, the applicant relies on the principle that if an applicant’s account appears credible he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt. However, in this instance the Tribunal found that the applicant’s account was not credible.
As to the other aspect of this contention, there was no obligation on the Tribunal in this instance to make its own inquiries, particularly as it appears that the visa applicant was given the opportunity to put all that she wished before it (see Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12). While the Tribunal has the power to make inquiries to obtain information and require investigations, such powers are permissive and not mandatory (see VCAK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 459 at [27] per Crennan J).

As discussed above in relation to the solicitor’s letter, the Tribunal was not under a duty in the circumstances of this case to inquire into matters such as the authenticity of the documents produced by the applicant (see SZATG v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1595 at [22] per Hely J and VCAK at [27] and cf Applicant M164/2002). Further, even if, contrary to my view this was a situation in which, absent s.422B of the Act, the Tribunal had denied the applicant procedural fairness in failing to make inquiries about the documents she provided.(see Applicant M164/2002), Section 422B is applicable to this application and it has not been established that any of the provisions of the Migration Act 1958 have been breached or that there is otherwise a jurisdictional error.
The next contention is that the Tribunal failed to consider the applicant’s statements in the context of the relevant background situation and failed to demonstrate its sound knowledge of conditions in her country of origin. This contention takes issue with the Tribunal’s treatment of the independent country information. It does not establish a jurisdictional error, but seeks merits review.
It is also contended that the Tribunal failed to consider the “fact” that the applicant’s sister, who was said to be in the same situation as the applicant, had been arrested and sentenced by the Chinese government. It was submitted that this must show that the applicant’s fear that sooner or later she would become a victim of persecution was well founded. The Tribunal did have regard to the claims that the applicant made in relation to her sister, but rejected them for reasons that it gave which were open to it on the material before it. In particular, having rejected the underlying claims about the applicant’s claims of involvement in politically dissident activities and her claims of mistreatment, detention and arrest, the Tribunal also rejected the claim that her sister provided a large sum of money to help her to escape from Shanghai. It had regard to the applicant’s own evidence that she was not a wanted dissident when she left China and did not accept that her sister had been sentenced to six years in prison for the reasons claimed, that is, harbouring the applicant or helping her to escape from Shanghai. The applicant’s contention seeks merits review.
The next contention is that the Tribunal failed to consider the fact that the mere possession of a valid national passport was no bar to the applicant’s application because her passport was obtained surreptitiously. It is not entirely clear what is meant by this contention. The Tribunal did not rely on the applicant’s possession of a valid national passport as such. There was no issue about the fact that the applicant travelled to Australia on a valid Chinese passport issued in 1994 and valid until 2004. In rejecting the applicant’s credibility the Tribunal did have regard to inconsistencies in the applicant’s claims at the hearing in relation to obtaining her passport. It recorded that the applicant had claimed that her sister helped her to escape from Shanghai and initially said that her sister had helped her to obtain her passport, but that after the Tribunal noted that her passport was issued in 1994, conceded that her sister had not helped her to get her passport. The applicant then said her sister had helped her to get her visa for the Philippines, but the Tribunal found further inconsistencies in her subsequent evidence that it had in fact been easy to get a visa for the Philippines. No jurisdictional error is apparent in the Tribunal’s consideration of the applicant’s possession of a valid passport at the time of her travel to Australia.
Insofar as this contention is intended to take issue with the fact that the applicant applied to the Chinese Consulate in Sydney to renew her passport in August 1999, again the Tribunal did not proceed on the basis that mere possession of a valid national passport was a bar to her application. Rather it had regard to this evidence as an indication that the applicant did not fear the Chinese authorities finding out where she was at that time. It found that her reasons given for obtaining the passport (for her daughter to go back to China for the funeral of the applicant’s father-in-law) to be unclear given that the daughter travelled on her own passport. It considered inconsistencies in the applicant’s evidence about her profile and the interests of Chinese authorities in her. It found the applicant’s conduct in renewing her passport at the Chinese Consulate in Sydney in August 1999 and her delay in applying for a protection visa to be inconsistent with her claimed fear at the time she arrived in Australia. No jurisdictional error is demonstrated in the manner contended by this ground.
Finally it was contended in the amended application that the Tribunal failed to give weight to the fact that various sufferings and experiences of the applicant in China if taken together must produce a strong effect on her mind that could reasonably justify her claim to a well-founded fear of persecution on cumulative grounds. However the Tribunal considered the various claims made by the applicant, but having rejected the truth of these claims and the credibility of the applicant, it did not accept that she was a political dissident or involved in dissident activities in China as claimed or that she had experienced the consequences claimed to have followed from such involvement. Hence it did not accept that the applicant genuinely held a subjective fear of being persecuted for reason of her real or imputed political opinion if she returned to China. This ground takes issue with the rejection of the applicant’s claims about her experiences and seeks merits review. No jurisdictional error is demonstrated as contended.

Credibility

After the hearing, counsel for the respondent provided a list of authorities. In response the applicant filed a written submission submitting that the Tribunal did not apply a proper test to determine her credibility and that this, combined with its failure to examine the documentary evidence said to be essential to assessing her credibility, constituted a jurisdictional error. The applicant reiterated that the Tribunal had erred in refusing to accept her credibility because it ignored the question of why no protection visa was lodged initially, lacked fundamental knowledge about China, made unwarranted assumptions and could not itself provide any direct documentary evidence against her claims, refused to consider her claims properly and fairly and disregarded her evidence because it did not fit its hypothesis.
These general claims, which reiterate aspects of the grounds in the further amended application, do not establish jurisdictional error. It is well established that “a finding on credibility … is the function of the … decision-maker par excellence”: Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J. (Also see NAOL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 243). As Merkel J stated in MZWHI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1046 at [5] while not invulnerable to review “such findings are difficult to overcome particularly where the Tribunal provided a rational basis for not accepting the [applicant’s] claims and relied upon matters that were logically probative of the issues it was determining: See Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 at 552 and 559”.
In this case, contrary to the applicant’s submissions, the Tribunal did provide a rational basis for rejecting her credibility and not accepting her claims based on the confusion and contradictions in her evidence which it described and on independent country information. It exercised the necessary care in considering credibility and inconsistencies in the applicant’s account (SAAK v Minister for Immigration & Multicultural Affairs (2002) 121 FCR 185 at 190). It was, however, “a matter for the RRT to assess whether the inconsistencies which it identified were significant and satisfactorily explained” (SZAKF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1719 at [26] per Hely J). Further, findings of fact are matters for the Tribunal. It is not for this Court “to form its own view as to whether it would have given the inconsistencies the significance attributed to them by the Tribunal”. (Kamal v Minister for Immigration & Multicultural Affairs [2002] FCA 818 at [36] per Mansfield J). The Tribunal’s findings were open to it on the material before it. No error is demonstrated in the conclusions based on those findings.
As no jurisdictional error has been established on any of the bases contended for by the applicant the application must be dismissed.

I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: