SZDUC v Minister for Immigration
[2005] FMCA 632
•17 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDUC v MINISTER FOR IMMIGRATION | [2005] FMCA 632 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no jurisdictional error – application dismissed. |
Migration Act 1958 (Cth), ss.91X, 422B, 424(3)(b), 424A, 424A(1), 424A(2)(a), 424A(3)(a), 441A, 474
Judiciary Act 1903 (Cth), s.39B
Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth),
Sch 1, Item 7(5)
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 [2003] HCA 1
Craig v South Australia (1995) 184 CLR 163
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26
Re Minister for Immigration; Ex parte Applicant S154/2002 (2003) 201 ALR 437
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Limited (1994) 49 FCR 576
Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57
VCAK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 459
WAGJ of 2002 v Minister for Immigration & Multicultural Affairs [2002] FCAFC 277
W389/01A v Minister for Immigration & Multicultural Affairs (2002) 125 FCR 407
Applicant NAHV of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 129 FCR 214
VHAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 82
Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264
R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598
Yo Han Chung v University of Sydney & Ors [2002] FCA 186
Applicant: | SZDUC |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 1747 of 2004 |
| Delivered on: | 17 May 2005 |
| Delivered at: | Sydney |
| Hearing date: | 7 April 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of an interpreter.
| Counsel for the Respondent: | Mr J A C Potts |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1747 of 2004
| SZDUC |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
This is an application for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 2 April 2004 and handed down on 29 April 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 13 November 2003 to refuse to grant the applicant a protection visa.
Background
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “SZDUC”.
The applicant, who claims to be a citizen of the People’s Republic of China, arrived in Australia on 17 September 2003. On 30 October 2003 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act. On 13 November 2003 the delegate refused to grant a protection visa and on 2 December 2003 the applicant applied to the Tribunal for a review of the delegate’s decision.
In her submission to the Department, the applicant stated she was born in May 1981 and had lived in Guanban Village, Guanban Town, Lianjiang, Fujian Province from 1993 to June 2003 (Court Book p.12) (“CB). She stated that her parents and two brothers remained in China. The applicant claimed to be a member of the underground Roman Catholic Church in China to which she had been introduced by a work colleague who had taken her to the underground church for the first time in September 2000. She claimed that she had joined a small sub group of the church and was baptised on 25 December 2000. From September 2000 to December 2001 the applicant claimed she attended the church leader’s house on most weekends and also used her job as a sales representative to distribute religious material around Fujian Province. The applicant stated that these materials were provided by a “secret friend” who had received them from overseas (CB pp.26-27).
The applicant stated that in late December 2001 the Public Security Bureau (“the PSB”) detained the applicant, the group leader and four others. She stated that her involvement in the church was not exposed to the PSB but she was investigated because of her relationship with the other members of the church. The applicant claimed she was questioned by the PSB on five occasions between December 2001 to January 2002 but said nothing about the church. The applicant stated that the church leaders were sentenced to periods of three to five years of reform through labour and as her employer did not want trouble with the PSB they dismissed her (CB p.27).
In April 2002 the applicant claimed she joined a group which was directly controlled by the “top of the Roman Catholic underground church”. The group was a “special group” which edited, manufactured, printed and distributed religious promotional material to all the underground Roman Catholic groups in Fujian (CB p.27). From May 2002 the applicant claimed she became a conduit for the distribution of materials that were being received from overseas to various groups within the underground church (CB p.28).
The applicant stated that in June 2003 the church group was broken up during a number of raids by the authorities. The applicant claimed she then went into hiding because her name had been placed on a Government black list. Because she could not leave the country through legal means, the applicant claimed she was able to use a false name and passport issued in Taiwan to come to Australia (CB p.28).
The Tribunal’s findings and reasons
The Tribunal reviewed the claims and evidence put before it, considered certain independent country information (CB pp.100-106) and then made a number of findings. The Tribunal accepted that the applicant was a citizen of the People’s Republic of China (CB p.109). It also accepted the applicant’s written and oral claims were internally consistent, and that there was a great deal of evidence from various sources indicating that the underground church was not tolerated uniformly across China, and that there had been various crackdowns on it. The Tribunal also had regard to the fact that the applicant was readily able to answer questions about Catholic beliefs. However, the Tribunal did not consider the applicant’s claim to have been a religious activist or to have been wanted by the People’s Republic of China because she was perceived to be one, to have been plausible (CB p.110). The Tribunal gave the following five reasons why it found the applicant’s claims implausible:
a)The applicant’s claim to have been a dedicated religious activist was not consistent with her actions after arriving in Australia, as her visits to church were not frequent, and she was unaware that Mass was conducted in her own language on Sundays, which was the day on which she claimed to attend church (CB p.110);
b)Despite there being many religious activities in Sydney which welcomed, and were intended for Chinese Catholics, the applicant told the Tribunal that she had not participated in any religious activities other than going to church services. The Tribunal found that the applicant’s contact with the Catholic Church in Australia was so slight as to cast serious doubt on her claim to be a committed Catholic and to have been active as such in China (CB p.110);
c)There was no reference to any of the incidents which the applicant claimed had occurred in relation to members of her underground church in the independent material, despite the fact that such incidents were serious (CB pp.100-111);
d)The applicant was unable to provide material that the Tribunal could check independently - she was unable to remember the name of the Hong Kong priest who baptised her; unable to provide contact details for the sources of the religious material in Hong Kong which she had claimed to have distributed; and had not submitted any evidence apart from her own assertions that she was a member of a religious group in China (CB p111); and
e)The applicant was unable to provide the full name of any underground Catholic Bishop in her home province of Fujian; did not know the names of any who had been imprisoned; and was able only to give the surname of one she claimed was not in prison. Having regard to her claimed involvement with Catholics in Fujian, the Tribunal considered it very difficult to believe that the applicant would not have been well aware of the identities of the church leaders who had been arrested (CB p.111).
Whilst the Tribunal accepted that the applicant left China on a passport issued to a national of Taiwan, it said that it did not follow that she did so because she considered herself to be at risk of arrest in China for the reasons she had given. Having regard to independent country information about the use of Taiwanese passports, the Tribunal was not prepared to infer from the fact that the applicant departed using such a passport that she was on a blacklist in China for a Convention reason (CB pp.111-112). The Tribunal was not satisfied that the use of such a passport would result in the applicant being imputed with any political opinion through using such a passport, and found that the chance that she would be was remote (CB p.112).
The Tribunal was thus not satisfied that the applicant was an adherent of the underground Catholic Church in China, or would be suspected of holding a dissident political opinion if she returned to China. As a result she did not have a well-founded fear of a Convention related persecution in relation to China (CB p.112).
Application for review of the Tribunal’s decision
On 7 June 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth) containing the following grounds:
“I do not think that Ms Philippa McIntosh, the Member of the Refugee Review Tribunal (“the Tribunal member”), has complied with her obligations under Section 424 of the Migration Act 1958 (“the Act”).
Particulars
·The Tribunal Member has, in fact, accepted that my written and oral claims have been internally consistent; and she has, obviously no doubt about my credibilities.
·The Tribunal Member has, in fact, accepted that there is a great deal of evidence from various sources indicating that underground church is not tolerated uniformly across China, and that there have been crackdowns on it – largely against its Bishops, but also against nuns, priests and in some cases lay people.
·The Tribunal Member, obviously, cannot deny the fact that I am a member of the Roman Catholic underground church in China.
·The Tribunal Member failed to clearly and completely indicate to me her opinions or incorrect understanding about my religious activities since I arrived in Australia. In other words, the Tribunal Member failed to explain to me, clearly and thoroughly, the information about my religious activities in Australia, which she used in her decision later on, will directly relating to my review application for DIMIA’s decision. I therefore did not have a fair opportunity to comment the negative information or to provide further documentary or oral evidences in support of my claims.
·The Tribunal Member, obviously, failed to consider documentary evidences provided by Fr Bonaventure Chung Tung OFM, Priest-in-charge of The Chinese Catholic Pastoral Centre; and particularly the Tribunal Member failed to seek further written or oral evidences from Fr Bonaventure Chung Tung OFM who should be the best person to prove my religious activities since I arrived in Australia.
·The Tribunal Member, obviously, ignored the facts that I could not find relevant independent information or record directly regarding to my claims, mainly because that the up-to-date record in most of sources are around 2001 or 2002, except one which was around July 2003.
·The Tribunal Member failed to provide me the information by one Section 424A. Applicant must be given certain information by one of the methods specified in section 441A of the Act.
·The Tribunal Member, in fact, failed to provide me complete Independent Country Information (ICI) or relevant documents before, during and after the hearing. The Tribunal Member has, in fact, failed to provide me a chance to consider and comment the ICI documents.
·In conclusion, I have never ever believed that the Tribunal Member has made a fair decision on my application.”
The law
The present application is affected by the privative clause contained in s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia (“S157/2002”) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (“S134/2002”), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: S157/2002 at [76] and S134/2002 at [15].
An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal’s power: Craig v South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs.
Applicant’s submissions
The applicant appeared at a directions hearing before Registrar McIllhatton on 15 September 2004 and consented to Short Minutes of Order which required the applicant to file any further evidence to be relied upon by 14 October 2004 and written submissions fourteen working days prior to the final hearing. The applicant indicated that she had not filed any documents since the original application and was intending to rely upon that document and wished to make oral submissions in support of those grounds.
The applicant indicated through the interpreter that she wished to raise a number of points. The applicant prefaced each point with a number but that number was not necessarily sequential and the numbers did not appear to form a full chronology. The numbers used by the applicant did not refer to the points listed in the application in a manner that could be recognised. I have referred to the relevant submission in my Reasons below.
Respondent’s submissions
Mr J A C Potts of Counsel, appearing for the respondent, filed written submissions prior to the hearing, which contained the following contentions:
Ground 1 – Failure to comply with s.424
a)Presumably this ground was intended to refer to s.424A of the Act. It was a ground which only had meaning in light of the particulars provided in the application, which have been referred to above as separate grounds of review.
b)Section 422B of the Act applies in this case, as the application for review to the Tribunal was made on 2 December 2003: see Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth), Sch 1, Item 7(5).
Ground 2 – Failure to indicate incorrect opinions about religious activities in Australia
a)The information that the Tribunal member relied upon relating to the applicant’s religious activities in Australia was information that had come from the applicant herself. It was therefore information to which s.424(3)(b) of the Act applied. There was no obligation to disclose such information to the applicant under s.424A(1).
b)Section 424A(1) imposed an obligation on the Tribunal to give the applicant information which would be the reason or part of the reason for an adverse decision. Part 7 of Div 4 of the Act therefore dealt with the provision of adverse information to an applicant. Section 422B therefore provides that s.424A is the exclusive source of the obligation to put such information to an applicant.
c)In any event, the Tribunal was not obliged to expose its reasoning process or subjective determinations for comment to the person affected: Re Minister for Immigration; Ex parte Applicant S154/2002 (“Applicant S154/2002”) at [54]; Commissioner for Australian Capital Territory Revenue v Alphaone Pty Limited (“Alphaone”) at 591. Neither was the Tribunal required by the rules of procedural fairness to give the applicant a running commentary on her prospects of success so that there is a full warning of all possible reasons for failure: Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (“Miah”) at [31]. The issue which the Tribunal determined was quite clearly a matter in dispute because it was the essence of what the Tribunal had to decide.
d)There was no breach of s.424A in this case and the ground of review should be rejected.
Ground 3 – Failure to consider documentary evidence and to seek further evidence
a)The Tribunal plainly had regard to the letter submitted from Fr Bonaventure Chung Tung OFM (CB p.69). The Tribunal referred expressly to the letter in its reasons (CB pp.102-103). This aspect of the third ground is without substance and should be rejected.
b)The second aspect of this ground was that the Tribunal failed to seek further evidence. The Tribunal was under no obligation to do so. It was for the applicant to place such material as was necessary to persuade the Tribunal of her claims before the Tribunal. The Tribunal was under no obligation to verify or investigate the applicant’s claims. The Tribunal has no duty to investigate, nor any duty to consider utilising such permissive statutory powers as it had which might enable it to investigate: s.427(1)(d)); VCAK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs at [27]; WAGJ of 2002 v Minister for Immigration & Multicultural Affairs at [21], [24]-[25]; W389/01A v Minister for Immigration & Multicultural Affairs at [74]-[78]. This aspect of the third ground of review should be rejected.
Ground 4 – Tribunal ignored facts
a)The applicant complained that the Tribunal ignored the fact that the applicant could not find relevant independent information or records directly relating to her claims. This is an allegation without factual foundation. Rather than ignore the fact that the applicant was unable to find such information, the Tribunal relied upon the absence of such information in its reasons and cannot be said to have ignored the absence of such material. Therefore, this ground of review should be rejected.
Ground 5 – failure to comply with ss.424A and 441A
a)The applicant did not identify any information to which s.424A applied. However, even if there were a breach of s.424A(2)(a) as alleged, because of a failure to provide information by one of the methods specified in s.441A, that would not constitute a jurisdictional error unless the applicant also demonstrated that there had been a denial of natural justice in relation to the information which should have been supplied by one of the methods specified in s.441A: Applicant NAHV of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs; VHAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs. The applicant had not shown that such circumstances arose in this case.
Ground 6 – failure to provide complete independent country information.
a)The independent country information relied upon was not specifically about the applicant, or another person. It was therefore information to which s.424A(1) did not apply, because of the exception created by s.424A(3)(a): Minister for Immigration & Multicultural & Indigenous Affairs v NAMW.
No reviewable error
a)The Tribunal’s decision does not otherwise disclose any reviewable error. The applicant has not demonstrated any error that would lead to the conclusion that the Tribunal failed to exercise or exceeded its jurisdiction, or that it breached any of the Hickman provisos: R v Hickman; Ex parte Fox and Clinton. The applicant has not therefore demonstrated any entitlement to relief.
Reasons
The applicant addressed the Court by way of the Mandarin interpreter and made every effort to address each of the grounds contained within her original application. Unfortunately, there was a tendency for the applicant to switch between the grounds in less than a logical sequence. It appeared the applicant was working through the decision in the Court Book with no particular reference to the individual pleadings. The respondent elected to respond to each of the pleadings in the same sequence as they appeared in the applicant’s original application, indicating that he relied on the written submissions with supporting remarks in regard to any issue raised by the applicant in her oral submissions. I accepted this as the appropriate and most convenient way to address the original pleadings together with the detailed oral submissions made by the applicant.
I accepted the respondent Counsel’s contentions in respect of Ground 1 in that the provisions of s.424A of the Act were relevant to Grounds 2 and 6 and were addressed under those headings. As the applicant did not arrive in Australia until September 2003, any of the subsequent proceedings were subject to the provisions of s.422B of the Act which came into effect on 4 July 2002. Part 7, Division 4 of the Act is now an exhaustive statement of the natural justice hearing rule and a number of the provisions of the Act which are raised in the applicant’s subsequent grounds are clearly subject to that part of the Act.
The second ground focused on the applicant’s religious activities since her arrival in Australia and the Tribunal member’s failure to provide certain information to the applicant or to explain the reasoning process that may ultimately lead to an adverse outcome for the applicant.
I accepted the respondent Counsel’s submission in regard to the operation of s.424(3)(b) of the Act in that it applies to the material provided by the applicant in respect of her religious observance and activities since arriving in Australia. This material was provided by the applicant’s migration agent (CB pp.64-94) in response to a letter from the Tribunal dated 12 February 2004. Further, the applicant attended the Tribunal hearing on 17 March 2004 and gave oral evidence which included information on this issue. The operation of s.424A(1) requires the Tribunal to provide the applicant with any adverse information which may impact upon the decision making process of the Tribunal to produce an adverse outcome for the applicant. The Tribunal is obliged to provide that information to the applicant to prevent any claim of ambush by denying the applicant the opportunity to address and respond to the adverse content. This provision is not applicable to material sourced from the applicant because the applicant would be familiar with the content of the material.
Despite this provision of the Act referred to by the applicant in her pleadings and oral presentation, I believe the real issue was the applicant’s complaint that the Tribunal did not convey or explain to her during the oral hearing its decision making process and the fact that it may have drawn adverse conclusions from the material that the Tribunal was considering which had been supplied by the applicant. Clearly the Tribunal is under no such obligations to convey its reasoning process during the hearing or prior to the release of its final decision.
In Applicant S154/2002 it was stated at [54]:
“The explanations which the prosecutrix gave for her conduct were not accepted by the Tribunal Member, and this course was open despite the one factual error which he made as to the presence of the prosecutrix’s husband during the first hearing. The Tribunal Member was not obliged to set out every detail of the reasoning process which he eventually employed for the prosecutrix’s consideration.”
In Alphaone it was stated at [28]:
“It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material - Dixon v. Commonwealth (1981) 61 ALR 173 at 179. However, as Lord Diplock said in F Hoffman-La Roche and Co. A.G. v. Secretary of State for Trade and Industry (1975) AC 295 at 369:
‘ … the rules of natural justice do not require the decisionmaker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If that were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would be abolished.’
A person likely to be affected by an administrative decision to which requirements of procedural fairness apply can support his or her case by appropriate information but cannot complain if it is not accepted. On the other hand, if information on some factor personal to that person is obtained from some other source and is likely to have an effect upon the outcome, he or she should be given the opportunity of dealing with it - Kioa v. West (supra) at 587 (Mason J), 628 (Brennan J). Within the bounds of rationality a decision-maker is generally not obliged to invite comment on the evaluation of the subject's case - Sinnathamby v. Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502 at 506 (Fox J), 513 (Neaves J). In Ansett Transport Industries Ltd v. Minister for Aviation (1987) 72 ALR 469 at 499, Lockhart J expressly agreed with the observations of Fox J in Sinnathamby on this point. See also Geroudis v. Minister for Immigration Local Government and Ethnic Affairs (1990) 19 ALD 755 at 756-7 (French J) and Somaghi v. Minister for Immigration, Local Government, and Ethnic Affairs (supra) at 103 (Keely J), 119 (Gummow J).
In Ex parte Miah it was stated at [31]:
“In considering the scheme of legislation relating to the exercise of a particular kind of power, it is necessary to pay regard to the practical context in which the decision-maker must consider whether to exercise the power. This may be of particular importance where, as here, the complaint is of a failure by the decision-maker to communicate something to an affected person before a decision is made. It is the potential for a decision to affect rights, interests, or legitimate expectations, that attracts the requirement of procedural fairness. But decisions of that character are made in varying contexts. Here we are concerned with a decision to be made following a formal application. The nature, and extent, of communication between applicant and decision-maker that is in contemplation, in such a general context, will vary. At one extreme, an application may be made to a judicial decision-maker, in a context in which curial standards of procedural fairness will apply to the fullest extent. Even in such a case, fairness does not require a judicial officer to make a running commentary upon an applicant’s prospects of success, so that there is a forewarning of all possible reasons for failure. Most administrative decisions are made in circumstances where a much less formal and extensive form of communication than that which occurs in a court is contemplated. In many cases, it is not contemplated that the applicant will either see, or hear anything from, the decision-maker before the decision is made.”
Although the applicant’s complaint was not clearly articulated it was to be assumed that she was complaining that the Tribunal, during its decision making process, must have reached the conclusion that material, marshalled and supplied on the applicant’s behalf by her migration agent, was causing the Tribunal member to form an adverse view in respect of her religious activism while in Australia. As the authorities above clearly demonstrate the decision maker was under no obligation to disclose that information to her prior to its final decision. An essential element of the applicant’s claim was her adherence to the Roman Catholic faith and her role as a church activist in China. In the written information provided on her behalf and the oral evidence she gave during the hearing, the applicant indicated she only attended church eight times in six months and although she attended the same church she was unaware the church held Masses in Mandarin on a routine basis. At whatever stage of the decision making process the Tribunal member formed an adverse view of this information; the Tribunal member was under no obligation to convey this to the applicant.
The third ground of review claimed that the Tribunal failed to consider documentary evidence placed before it on behalf of the applicant and further failed to approach the source of that documentation to make further enquiry. The document in question was the letter from Fr Bonaventure Chung Tung OFM (CB p.69). I accepted the respondent Counsel’s submission that the letter was referred to in the Tribunal’s decision (CB pp.102-103). The applicant made a detailed and emotional oral submission in respect of the Tribunal’s failure to contact Fr Tung.
The fourth ground which, for convenience, Mr Potts had labelled “Tribunal ignored facts”, addressed the Tribunal’s finding that the incidences submitted by the applicant in support of her claim could not be independently verified by reference to media reports from organisations monitoring human rights in China, with fourteen of these incidents involving the treatment of underground Catholics in China. The applicant argued that the published sources were old; being reports of events in 2000 and 2001 and did not contain more recent reports. The Tribunal member indicated that there were numerous organisations undertaking this role and nominated just one as an example. The Tribunal did not ignore this inconsistency but referred to it in its decision and took this inconsistency to be one of the reasons for not considering the applicant’s claim to be plausible.
The fifth ground of review claimed that the Tribunal failed to comply with s.424A and s.424A(1) of the Act. I accepted the respondent Counsel’s submissions and authority in respect of this ground.
The pleading which appeared under the seventh dot point in the grounds of review was a bald statement without particularisation or any reference to the material for which the claim was made. Rather than being considered in isolation it was more appropriate for this issue to be grouped with ground 6, as identified in Mr Potts’ submissions. As an isolated statement it was a totally ineffective ground because of the complete absence of any indication to what the applicant was trying to establish. The better view, and that adopted by Mr Potts, was that the statement was relevant to the next issue raised concerning the independent country advice.
The sixth ground of review claimed that the Tribunal failed to provide complete independent country information. Again, I accepted the submissions of the respondent Counsel as the country information contained in the Tribunal’s decision was general information regarding the operation of the Catholic Church in China generally and references to a web site containing a schedule of Masses held in Mandarin at various Sydney Churches. The various references to the operation of the Catholic Church in China referred to issues such as the number of followers of various religions and the population of China generally and more particularly the material contained in the publications of the Cardinal Kung Foundation and details of various incidents within the Foundation that occurred in the calendar years of 2002 and 2003. None of the material specifically related to the applicant and was more correctly identified as material that fell within the exception covered by s.424A(3)(a).
In respect of the oral submissions made by the applicant from the bar table in support of her application I believe each one of the issues has been addressed using the grounds that have been set out in the respondent Counsel’s submissions. In the case of a self represented litigant this Court must independently consider whether an arguable case based on the material could be made out: Yo Han Chung v University of Sydney & Ors. The material before the Court was contained in the Court Book, in the grounds of the original application and in oral submissions made by the applicant from the bar table in support of her application. On a fair reading of the Tribunal’s decision and the other material before me, no ground of review was disclosed that could be sustained to identify a jurisdictional error.
Conclusion
For the reasons set out above, I have not been able to identify any jurisdictional error made by the Tribunal in its published decision.
I believe that the substantive application should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 17 May 2005
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