SZCES v Minister for Immigration
[2007] FMCA 1375
•20 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCES v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1375 |
| MIGRATION – Review of Refugee Review Tribunal decision– refusal of a Protection (Class XA) visa – no reviewable error– application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.91X, 424A, 426, 476 Federal Magistrates Court Rules 2001 (Cth), rr.44.11(c), 44.12 |
| A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 56 Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 Minister for Immigration and Multicultural Affairsv Yusuf (2001) 206 CLR 323 Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 STBB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1587 SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 150 FCR 214 SZEBX v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1197 VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 |
| Applicant: | SZCES |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2306 of 2006 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 12 June 2007 |
| Delivered at: | Sydney |
| Delivered on: | 20 July 2007 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person with the assistance of a Mandarin interpreter |
| Counsel for the First Respondent: | Mr M P Cleary |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The name of the first respondent be amended to read ‘Minister for Immigration & Citizenship’.
The application filed on 18 August 2006 is dismissed.
The applicant is to pay the first respondent's costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2306 of 2006
| SZCES |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REGUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act1958 (Cth) (“the Act) and has been given the pseudonym “SZCES”.
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth), invoking s.476 of the Act, filed in the Sydney Registry of the Federal Magistrates Court of Australia on
18 August 2006 for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal"). The Tribunal decision was made on 10 July 2006 and mailed to the applicant’s agent on 20 July 2006, affirming a decision of a delegate of the first respondent made on
3 September 2002, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal.
The applicant seeks an order that the respondents show cause why a remedy should not be granted in the exercise of the Court's jurisdiction under s.476 of the Act. Pursuant to r.44.11(c) of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”), I dispensed with a hearing under r.44.12 and set the matter down for final hearing.
A Court Book (“CB”) prepared by the first respondent's solicitors was filed and served on 3 October 2006. I have marked it Exhibit “A” and it was read into evidence.
Background
The Tribunal decision of A Mullin, reference N0653414, provides the following background information:
The Applicant, who claims to be a citizen of The People’s Republic of China, arrived in Australia on 29 December 2001 and applied to the Department of Immigration and Multicultural Affairs for a Protection (Class XA) visa on 9 January 2002. The delegate decided to refuse to grant the visa on 3 September 2002 and notified the Applicant of the decision and his review rights by letter dated 3 September 2002 and posted on 3 September 2002. The Applicant applied to the Tribunal on 28 March 2006 for review of the delegate’s decision and on 30 October 2003 the Tribunal, differently constituted, affirmed the delegate’s decision. The applicant sought judicial review of the Tribunal’s decision and on 6 March 2006 the Federal Magistrate’s Court, by consent, ordered that the Tribunal’s decision be set aside and that the matter be remitted to the Tribunal for determination according to law.(CB 189)
A summary of the applicant's claims are contained in the first respondent’s written submissions prepared by Mr Cleary, and I adopt paras.10 to 12 of those submissions:
10. The applicant claims religious persecution by reason of his membership of an underground Christian church, which is persecuted by the PRC.
11. The applicant claims: (CB-25 and 198-1999-)
· he is a key member of an underground church in PRC who has been persecuted for his activities.
· He was baptised in 1996 and from then onwards become involved in church activities, and attended church almost every weekend.
· From mid 1998 he took charge of the Bible study group in his underground church.
· He was questioned on at least 4 occasions and was detained for 15 days.
· He was threatened that if he did not cease his illegal religious activities he would have trouble.
· In 1999 he set up another underground church with his friend, and was arrested by the PSB during a ‘Government launched attack on underground churches’.
· He was detained for 6 months, and after his release set up another religious organization – setting up small bible group, which he later converted into an underground church.
· In November 2001 police surrounded his group in a small village and he secretly escaped. Over 30 participants were arrested.
· He changed his name and other personal details and escaped from China
12. When asked what would happen if he returned to PRC he said he, and perhaps his whole family, would be arrested.
A summary of the Tribunal’s findings are also contained in the submissions prepared by Mr Cleary and I adopt paras.13 to 15 of those submissions:
13. The Tribunal reviewed at length the claims and evidence. Firstly, it reviewed the applicable law in unobjectionable terms. It then set out the claims and evidence and the independent country information. Finally it set out its findings and reasons
14. The Tribunal found that the applicant did not have a well-founded fear of persecution for a Convention reason and was not someone to whom Australia had protection obligations under the Convention. The tribunal rejected the application for asylum on the following grounds:
· The Tribunal was not satisfied as to the truth of the applicant’s asserted religious activities in China. The Tribunal based on its decision on a rejection of the applicant’s credibility. There were 3 reasons for this finding:
i. His evidence of his religious activities was vague, generalised and uninformative.
ii. His evidence was not plausible – so far as his evidence of proselytising in his restaurant was concerned.
iii. His knowledge of the Christian religion was not consistent with his claims that he has been a Christian for 10 years.
· The Tribunal was not satisfied that the applicant has ever suffered harm for his involvement in the underground church, including a rejection of the claims he was arrested, detained and mistreated.
· The Tribunal was not satisfied there was a real chance of the applicant suffering future harm for religious reasons.
15. For these reasons the Tribunal found the applicant was not a refugee and affirmed the delegate’s decision.
Application for Review of the Tribunal’s Decision
On 18 August 2006, the applicant filed an application for review under s.39B of the Judiciary Act. In accordance with an order made at the first court date, the applicant was granted leave to file an amended application. On 9 November 2006, the applicant filed an amended application which contained the following grounds:
1. The Presiding Member, Mr. Andrew Mullin, of the Tribunal (“the Presiding Member”) failed to consider my claim and evidences properly and fairly; and made a mistake in relation to an important finding of fact;
Particulars
a. .In support of my review application, I have provided following documentary evidences from two witnesses:-
- The first witness, who is in China, was the member of Long Tian Christian Family Church; and he gave the evidence in support of my religious activities and special leading role played in the church; and he was arrested and jailed for three years; and the other leader is still in jail right now;
- The second witness, who is also in China, was the Director of the Long Tian Christian Family Church; and he gave detailed evidence also in support of my religious activities and special leading role played in the church;
b. Both of two of above-mentioned witnesses have provided copy of Chinese ID Card, in which their residential address had been shown; and contact telephone numbers.
c. I have further provided a letter provided by the Minister of the Padstow Chinese Congregational Church in support of my religious activities in Australia.
d. Especially, a friend of mine in Australia has personally attended the hearing to give oral evidence in support of my claims.
e. To my surprise, the Presiding Member would rather ignore above-mentioned objective evidences which should, apparently, be very important than make a finding simply based on his subjective judgment; and I, particularly, could not accept why the Presiding Member refused to directly contact two witnesses in China and the Minister of the church in Australia, which must be easy for him to get the first-hand evidences.
f. The only explanation for all of them is that the Presiding Member has NEVER ever genuinely intended to consider my claims, properly and fairly; and his actual job is seeking some of reasons or picking up some of inconsistencies solely for the purpose to deny my right for seeking a protection in Australia.
g. As a qualified Tribunal member, the Presiding Member should understand that:-
190. It should be recalled that an applicant for refugee status is normally in a particularly vulnerable situation. He finds himself in an alien environment and may experience serious difficulties, technical and psychological, in submitting his case to the authorities of a foreign country, often in a language not his own. His application should therefore be examined within the framework of specially established procedures by qualified personnel having the necessary knowledge and experience, and an understanding of an applicant’s particular difficulties and needs.
198. A person who, because of his experiences, was in fear of the authorities in his own country may still feel apprehensive vis-à-vis any authority. He may therefore be afraid to speak freely and give a full and accurate account of his case.
199. While an initial interview should normally suffice to bring an applicant’s story to light, it may be necessary for the examiner to clarify any apparent inconsistencies and to resolve any contradictions in a further interview, and to find an explanation for any misrepresentation or concealment of material facts. Untrue statements by themselves are not a reason for refusal of refugee status and it is the examiner’s responsibility to evaluate such statements in the light of all the circumstances of the case.
h. Although the Presiding Member may not be bounded by UNHCR Handbook, he should have basic knowledge that I am in a particularly vulnerable situation; and I have been in an alien environment; and I must experience serious difficulties, technical and Psychological, in submitting my case in a language not my own. The Presiding Member should also understand that I, because of my experiences in China, must be in fear of the authorities in my own country, and must still feel apprehensive vis-à-vis any authority. In such a situation, it might not be easy for me to clearly explain those particular religious terms.
i. Furthermore, the Presiding Member has completely ignored important issues from UNHCR Handbook as follows:
“196. It is a general legal principle that the burden of proof lies on the person submitting the claim. Often, however, an applicant may not be able to support his statements by documentary or other proof, and cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule. In most cases a person fleeing from persecution will have arrived with the barest necessities and very frequently even without personal documents. Thus while the burden of proof in principle rests on the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner. Indeed, in some cases, it may be for the examiner to use all the means at his disposal to produce the necessary evidence in support of the application. Even such independent research may not, however, always be successful and there may also be statements that are not susceptible of proof. In such cases, if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt.”
“203. After the applicant has made a genuine effort to substantiate his story there may still be a lack of evidence for some of his statements. As explained above (paragraph 196), it is hardly possible for a refugee to “prove” every part of his case and, indeed, if this were a requirement the majority of refugee would not be recognized. It is therefore frequently necessary to give the applicant the benefit of the doubt.”
j. As a matter of fact, I have indeed made a genuine effort to substantiate my claims, including evidences from two witnesses in China, one witness from Australia; and the evidence from the Minister of the Australian church. It is, apparently, that there are no good reasons to the contrary in the Presiding Member’s decision. In such a situation, I should be given the benefit of the doubt.
k. I understood that the court would only take responsible for a judicial review but not merit review. However, If the Presiding Member wrongly exercised her rights; if the Presiding Member intentionally sought the reasons or picked up inconsistencies solely for the purpose to deny my right for seeking a protection; and if the Presiding Member made finding on purpose, must be the evidence that there is an error of law in the Tribunal’s decision constituting a jurisdictional error.
2. The Presiding Member failed to comply with its obligations under s.424A(1) of the Act.
Particulars:
a. Guided by the Act, I have found that:-
Section 424A. Applicant must be given certain information
424A.(1) Subject to subsection (3), the Tribunal must:
(a) give the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c) invite the applicant to comment on it.
b. As a matter of fact, the information that the Presiding Member understood or issues arising from the Presiding Member regarding to evidences from two witnesses in China, one witness in Australia, as well as the Minister of the church in Australia, is particularly important to my review application. However, I have found that the Presiding Member:-
- failed to give to me, in the way that the Tribunal considers appropriate in the circumstances, particulars of the information that the Presiding Member understood or issues arising from the Presiding Member regarding to evidences from two witnesses in China, one witness in Australia, as well as the Minister of the church in Australia;
- failed to ensure, as far as is reasonably practicable, that I understand why it is relevant to the review; and
- failed to invite me to comment on it.
c. It is apparently that the Tribunal failed to comply with its obligations unde s.424A(1) of the Act, while the Tribunal consider those pieces of information as main reasons for affirming the decision that is under review.
3. The Presiding Member failed to comply with its obligations under s.425 of the Act.
Particulars
a. Subjected to s.425 of the Act, I have found that:-
Section 425. Tribunal must invite applicant to appear
425. (1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 424C(1) or (2) applies to the applicant.
b. In my case, I do not think that the Presiding Member has genuinely given me a fair chance to give evidence in support of my claims, because I was frequently interrupted, misunderstood, and also given strong pressure.
c. I do not think that the Presiding Member has honestly given me a fair chance to present my arguments relating to the issues in relation to the decision under review, because the Presiding Member failed to indicate me what the issue was actually.
4. Moreover, I never ever believed that the Presiding Member has well considered following independent country information; and he has, intentionally, ignored relevant important issues in them:-
- US State Department’s Country Reports on Human Rights Practices – 2004;
- US Department of State Country Reports on Human Rights Practices for 2003.
5. Also, the Presiding Member has completely ignored the evidence that I have spent many years in Australia, and I have practiced my religious, freely and independently, in such a democratic country. It is possible for me to change my way to practice my religion; and it is impossible for me to tolerate those religious practices under the Communist dictatorship.
6. In summary, I have never believed that my review applicant has been fairly and carefully assessed by the Tribunal.
Submissions and Reasons
The applicant was a self-represented litigant who appeared with the assistance of a Mandarin interpreter. The applicant confirmed that he had filed an amended application. However, he had not complied with the orders made at the directions hearing when this matter was set down for final hearing. When invited to make oral submissions in support of his application, the applicant made lengthy submissions. The submissions largely repeated the material in the amended application and his original claim. The applicant read from comprehensive notes in his own language which were translated by the interpreter. It was difficult to determine whether some of the errors, particularly the misquoting of the Act, were because of misinterpretation or were incorrectly recorded in the notes. However, the applicant did raise a new argument that was not specifically addressed in the amended application, and I will return to this when dealing with the relevant grounds of review.
The applicant’s first ground asserts that the Tribunal did not consider his claims properly and fairly. The first ground is supported by ten particulars, some of which incorporate extracts from the UNHCR Handbook. Mr Cleary contends that particulars (a) to (d), (f), (g), (j) and (k) seek impermissible merits review of the Tribunal decision and should be rejected. Mr Cleary referred to the decision in A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 56 at [11] per French, Lindgren and Stone JJ:
11 In addition, the first appellant referred the Court to material, which was embodied in his submissions, to demonstrate that the Tribunal's prognosis or prediction of the risk he would face if returned to India, was flawed. This was material which was not before the Tribunal at the hearing. It was meant to demonstrate that events which had occurred subsequently were indicative of the risk he would face which had not been anticipated by the Tribunal when it spoke of what he would face in the "foreseeable future". Again, the function of the Court is not to re-open the hearing or to receive new evidence going to the merits. It is concerned with the question of errors of law or procedure as set out in the various grounds of review identified in s 476 of the Migration Act as it stood prior to the amendments.
The applicant in these proceedings is represented by Ms Priscilla Yu of Priscilla International Co. Pty Ltd. The amended application filed on
9 November 2006 is typical of documents prepared by that organisation and demonstrates a misunderstanding of the requirements for judicial review of a Tribunal decision. The approach used is to plead a ground in broad general terms, claiming that the Tribunal failed to consider claims and evidence properly and then extensively particularises that claim by re-stating and elaborating the initial claim. With particular reference to the letter submitted by the minister of the Padstow Chinese Congregational Church, the Tribunal made several references to this issue:
I put to the Applicant that the letter he had submitted from the Minister of Padstow Chinese Congregational Church referred to him as [SZCES]. He said when he first went to the church he was asked for his passport. He filled out a form there and used the name on his passport. I put to him that the Minister appeared to know him only as [SZCES]. The Applicant said the Minister does not know his real name but all the other members of the congregation do. I asked the Applicant if he had ever spoken to the Minister. The Applicant said he sometimes takes people to the church gatherings. Sometimes when he left the church the Minister would by speaking to other people. Sometimes they would greet each other and talk about Bibles. I put to him that it was difficult to understand why the Minister would not know his real name. The Applicant said he had not mentioned it to the Minister and he sometimes used the name of [SZCES].(CB 119)
Then after further discussion of the applicant’s understanding of Christianity, the Tribunal decision states:
Asked about his attendance at the church in Padstow the Applicant said he generally went every Sunday and sometimes picked people up to take them there. Asked what happens in the church he said they sing songs and honour God, the Minister explains the Bible and cake was distributed. Asked about the latter component he said it took place at the end of the gathering. The cake was distributed among the members on silver plates and commemorated Jesus’ body and blood.(CB 197)
Under the sub-heading “Further documentation” the Tribunal decision records:
A letter said to have been written by the Minister of the Padstow Chinese Congregational Church, dated 13 June 2006. The writer states that [SZCES] ‘has been regularly worshipping’ in the church.(CB 199)
Under the heading “Findings and Reasons” the Tribunal dealt with this evidence as follows:
I accept that the evidence of the witness and the letter from the Minister of the Padstow Chinese Congregational Church indicate that the Applicant has had some contact with organised religion in Australia. However, given the Applicant’s very limited knowledge of the Christian religion which he demonstrated at the hearing I am not satisfied that has been worshipping regularly at the Padstow church for the last three years, as claimed by the witness, or that he is a regular worshipper there as claimed in the Minister’s letter. I place little weight on this evidence. For the same reason I place little weight on the two letters said to have been brought back to Australia by the witness, testifying to the Applicant’s religious involvement in China. I am not satisfied that any contact the Applicant may have had with organised religion in Australia indicates that he is a Christian.(CB 201)
Without dealing with each issue raised by the applicant under the first ground, it is apparent from the decision that the Tribunal considered them and decided how much weight each piece of evidence should carry. I accept the submission of Mr Cleary that the applicant is attempting to re-ventilate issues which have been adequately dealt with by the Tribunal in its decision.
Mr Cleary submits with respect to particular (e) that there is no duty or obligation for the Tribunal to contact witnesses and he relies on s.426 of the Act:
426 Applicant may request Refugee Review Tribunal to call witnesses
(1) In the notice under section 425A, the Tribunal must notify the applicant:
(a) that he or she is invited to appear before the Tribunal to give evidence, and
(b) of the effect of subsection (2) of this section.
(2) The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice.
(3) If the Tribunal is notified by an applicant under subsection (2), the Tribunal must have regard to the applicant’s wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant’s notice.
The obligation on a Tribunal to contact witnesses was considered in STBB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1587 at [57]-[59] per Lander J. This Tribunal dealt with the issue of witnesses and clearly stated the reason why it placed little weight on the evidence.
Mr Cleary submits in respect of particulars (h) and (i), that the Tribunal is only bound to have regard to matters relevant to the exercise of its statutory function: Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at [39]; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [69] and [73]. Further, that there is no statutory direction in the Act that the Tribunal is to have regard to evidence such as extracts from the UNHCR Handbook the applicant referred to. It is submitted that the extracts relied on by the applicant were not part of his claim before the Tribunal: VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117.
In the second ground, the applicant asserts that the Tribunal breached s.424A(1) of the Act by failing to provide “information”, being evidence from two witnesses in China and two in Australia (one being the minister of the Padstow church). Mr Cleary contends that the two witness statements from China were information that the applicant provided to the Tribunal for the purpose of the review application. In the circumstances, the Tribunal was exempt from an obligation under s.424A(1) by reason of s.424A(3)(b): SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 150 FCR 214. Similarly, the letter from the Padstow church minister is in the same category as the two witness statements from China. No obligation under s.424A arises in relation to that letter.
Justice Moore said in SZEEU at [4]:
4 The operation of s 424A arose for consideration in Al Shamry in the following circumstances, as described by Ryan and Conti JJ in their joint judgment ("the joint judgment")…
5 In their joint judgment, Ryan and Conti JJ identified, relevantly to these appeals, the issue for determination in the following terms (at [17]):
Counsel for the Minister accepted that a failure to observe the procedure laid down by s 424A is a reviewable error under s 476(1)(a). It was also accepted that where there is information of the kind described in s 424A(1)(a) particulars of that information must be given to the applicant for the purpose of obtaining his or her comments. However, it was said that the information constituted by the airport interview came within the exception created by s 424A(3)(b) in respect of information given by the applicant for the purpose of the application. "Application" in that context, was said to mean "all information given by the applicant to officials in the Department (including that provided to the Tribunal) for the purpose of determining whether to grant a protection visa to the applicant."… [Emphasis added]
The Tribunal decision states:
The Applicant submitted a number of documents at the hearing:
· …
· …
· A statement from a person dated 22 May 2006. The writer states that he joined the Long Tian Christian Family Church in June 2001 and that he knew Brother [SZCES] an organizer of the church.
· A statement from a second person, also dated 22 May 2006. The writer describes himself as one of the Directors of the Long Tian Christian Family Church. He states that Brother [SZCES] joined the chruch in 1996 and was baptized, through the introduction of Brother Lin Shu Heng.
· A letter said to have been written by the Minister of the Padstow Chinese Congregational Church, dated 13 June 2006. The writer states that [SZCES] ‘has been regularly worshipping’ in the church.(CB 198-199)
These three documents clearly fall within the exeption under s.424A(3)(b) as described in SZEEU at [4].
In respect of the oral evidence provided by the witness at the Tribunal hearing, no s.424A obligation arose because:
i)the Tribunal’s findings regarding the witness was not adverse to the applicant because it accepted that “the evidence of a witness and the letter from the Minister of the Padstow Chinese Congregational Church indicate[s] that the applicant has had some contact with organised religion in Australia” (CB 201);
ii)the Tribunal placed little weight on the witness’ evidence that the applicant worshiped regularly in Australia for the past three years because of the applicant’s “very limited knowledge of the Christian religion which he demonstrated at the hearing”.(CB 201) Accordingly, this would not constituted “information”, but rather the Tribunal’s thought processes and the evaluation of the evidence generally.
I refer to SZEBX v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1197 at [21]-[22] per Allsop J, which lends support to Mr Cleary’s submissions:
21 I refer to my reasons in SZECF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1200 which I do not repeat.
22 There was no breach of s 424A here. The earlier written material in the appellant’s visa application was "information" but it was not the reason or part of the reason for the decision. The appellant’s evidence to the Tribunal was substantially rejected because of the evaluation of what he was telling the Tribunal at the hearing. Within that hearing process the Tribunal referred to the visa application and its contents. But that information provided only part of the context, or framework, of the questioning. The reason for affirming the decision under review was the rejection of the oral evidence of the appellant largely in answer to that questioning. It cannot rightly be said that the background information for the questioning was the reason or part of the reason for that decision.
In the circumstances, the second ground cannot suceed.
The third ground of the amended application asserts a breach of s.425 of the Act. Mr Cleary contends that in the absence of a transcript of the Tribunal hearing, it is not possible to assess whether the hearing was a “fair” hearing.
I accept the submission made by Mr Cleary that, in the absence of a transcript of the Tribunal hearing, the only material available to assess the procedures adopted during the hearing is what appears on the face of the Tribunal record. The invitation issued by the Tribunal is in the usual form, setting out an invitation to appear and any additional material and witnesses the applicant may bring to the hearing.(CB 169-170) That invitation was accepted by letter from Priscilla International Co. Pty Ltd together with a response to the hearing invitation.(CB 171-172) The response to the invitation included a number of documents in support of the application. The Tribunal decision shows that the applicant appeared before the Tribunal on 15 June 2006 to give evidence and was assisted by a Mandarin interpreter on that date. Although the applicant was represented by a registered migration agent, the agent was not in attendance at the hearing. The Tribunal decision then sets, out in considerable detail, all of the material considered by it and a description of the discussion that occurred during the hearing. It is not apparent from reading its description that anything unusual occurred. Further, in the absence of any clear particularisation of alleged errors by the Tribunal in relation to the conduct of the hearing, it is not possible to identify any error. Consequently, this ground cannot be sustained.
The fourth ground of review asserts the Tribunal ignored important issues, in particular, the independent country information. Mr Cleary submits that this ground should be rejected for the following reasons:
i)The Tribunal did not rely upon independent country information as part of its reasons for affirming the decision of the delegate, nor was it obliged to do so under the Act: Yusuf at [69] and [73].
ii)The applicant did not put any of the independent country information as part of his claims, despite being given the opportunity to comment on certain information on 12 March 2002. The information was therefore not information the Tribunal was bound to take into account in carrying out its statutory function. The Tribunal was not obliged to consider matters that not raised by the applicant as part of his claims: Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 at [42].
I agree with the submissions made by Mr Cleary as it is apparent from a reading of the decision that the Tribunal did not rely on country information, and that the decision would not have been influenced by such information. This ground cannot be sustained.
Contrary to the applicant’s claims, the Tribunal paid particular attention to his practice of Christianity in Australia. I am satisfied that this ground cannot be sustained.
The fifth ground of the amended application asserts that the Tribunal ignored evidence of his practice of Christianity in Australia. Mr Cleary argues that the Tribunal quite clearly took into consideration such evidence given at the hearing.(CB 178.3, 197.6, 199.4) In affirming the delegate’s decision, the Tribunal was not satisfied by the claims made by the applicant about his practice of Christianity in Australia.(CB 201.3) It concluded that the applicant had minimal contact with organised religion in Australia.
The sixth ground of the amended application does not assert or identify any jurisdictional error and requires no further consideration.
When the applicant was invited to respond to Mr Cleary’s submissions, he effectively repeated what was contained in the amended application and his written and oral submissions. The applicant complained that the Tribunal did not check that his evidence was true and failed to contact his witnesses. I am satisfied that both of these issues have been adequately addressed in the written and oral submissions of Mr Cleary. It appeared that the applicant relied on notes prepared by a third party. It was also apparent that he did not have a clear understanding of the submissions he was making. He addressed the Court with some confidence and spoke with a determination similar to that of other applicants who were assisted by this same migration agent. Unfortunately, this application does not identify any jurisdictional error, nor do the submissions directly relate to the contents of the Tribunal decision.
Conclusion
I am satisfied that none of the grounds contained in the amended application can be sustained and consequently the application should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the first respondent's costs and disbursements of and incidental to this application.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Associate:
Date: 13 August 2007
0
10
3