SZEAQ v Minister for Immigration
[2005] FMCA 1394
•26 September 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEAQ & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1394 |
| MIGRATION – Refugee – Convention claims based on political opinion – credibility – natural justice – s.424A – Tribunal’s regard to the original protection visa application – no reviewable error. |
| Migration Act 1958, ss.424A, 424A(1), 424A(2), 424A(3)(b), 441A Federal Magistrate Court Rules 2001, r. 21.02(2)(a) |
| NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 Minister for Immigration and Ethnic Affairs v Al Shamry (2001) 110 FCR 27 M55v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 SZDMJ vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1034 NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744 SZBNK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 998 SZERV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1221 VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 SZDQL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 769 |
| Applicant: | SZEAQ & ANOR |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2298 of 2004 |
| Judgment of: | Nicholls FM |
| Hearing date: | 20 September 2005 |
| Date of Last Submission: | 16 September 2005 |
| Delivered at: | Sydney |
| Delivered on: | 26 September 2005 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Ms. K. Morgan |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The Refugee Review Tribunal be joined as the second respondent in these proceedings.
The application is dismissed.
The applicant to pay the first respondent’s costs set in the fixed amount of $5000, pursuant to rule 21.02(2)(a) of the Federal Magistrate Court Rules 2001.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2298 of 2004
| SZEAQ & ANOR |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed in this Court on 21 July 2004 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 31 May 2004 and notified to the applicants by letter dated 23 June 2004 to affirm the decision of a delegate of the respondent Minister made on 15 December 2003 to refuse protection visas to the applicants. The Tribunal is joined as the second respondent in this matter.
The applicants are husband and wife, and are both nationals of the People's Republic of China (“PRC”). The applicant wife arrived in Australia on 8 December 1999. The applicant husband arrived on
13 February 2002. Both applicants lodged an application for protection visas on 11 December 2003 (Court Book 1 to CB 27), supported by a statement by the applicant husband (CB 42 to CB 48). Only the applicant husband made claims pursuant to the Refugee's Convention. The applicant wife was included in the application as part of his family unit. She did not have any claims in her own right. On 19 January 2004 the applicants applied to the Tribunal for review of the first respondent’s delegate’s decision. The application is reproduced at CB 62 to CB 65, with a statement attached which is reproduced at CB 66 to CB 70. The Tribunal conducted a hearing with both applicants on
20 April 2004 and both applicants gave evidence with the assistance of an interpreter. The applicants were given a further opportunity to make written submissions in relation to potentially adverse positions put to them at the hearing, and the applicant husband responded by submission dated 27 April 2004 (CB 85 to CB 86).The applicant husband's claims to fear persecution in the People's Republic of China centred on his political opinion and in particular his claimed activities with retrenched workers demands for certain rights in the PRC. The important aspects of his claims were:
1)He was a manager of a chemical company. By August 2000 he began developing a view that China should have a legal system to protect basic human rights of unemployed people in order to maintain their basic living standards. In particular this interest and opinion arose out of his being approached for assistance in relation to a student teacher at a local university and that this led him to approaching a contact in the National Security Bureau to arrange, with the police, the release from detention of a young student (CB 44).
2)On 22 September 2000 he and two others formed a small group which was called: ‘Research Centre of Unemployed Problem’ that sought to develop a draft law in relation to the protection of the unemployed, and that this came to the attention of the PRC authorities (CB 45.9).
3)In mid 2001 protests and demonstrations were held in the applicant’s city and other cities in his province. This, in part, followed the incitement of unemployed people by his research group to send petitions to the government, including the central government, asking for respect and protection of their basic human rights (CB 46 to CB 47).
4)Following a demonstration in Harbin city in November 2001, that involved more than 20,000 unemployed people, one of the applicant husband's associates was arrested and sent to a detention centre which led to the applicant husband’s realisation that he needed to accelerate his arrangements to go overseas in case something similar happened to him (CB 47.5).
5)From December 2001 to January 2002 he was subjected to investigation by the authorities (PSB and NSB) and by local police. However he was not detained (CB 47.7).
6)In March 2002, following the applicant husband’s arrival in Australia in February 2002, the applicant husband's second associate was arrested and the “Research Centre” was destroyed and more than 20 other members were also arrested (CB 48.2).
The Tribunal's decision record is reproduced at CB 105 to CB 128. The Tribunal’s “Findings and Reasons” reveal that the Tribunal:
1)Did not accept that the applicant husband was ever involved with retrenched workers demands in the PRC or an organisation leading demonstrations in and around the applicants’ province (CB 124.6). The Tribunal came to this view:
a)Partly on the basis that the applicant husband's claims were either inconsistent with, or had no support from, any information in independent country reports (CB 124.7).
b)As there was a lack of corroborating evidence in circumstances where one would reasonably expect to find “plenty” of such evidence (CB 125.2).
c)As the applicant husband had provided contradictory evidence. In his original claims he stated that he worked for the chemical company as a manager (an employee), and then subsequently claimed that he was the owner of the company (CB 125.8). Further, that he had provided inconsistent evidence about the November 2001 demonstration (CB 125.9) and that he had provided inconsistent evidence as to his state of mind, at the time he left China, about his appraisal of the danger he faced at that time (CB 126).
d)Further, the Tribunal found that there were discrepancies between the evidence given at the hearing before it by the applicant husband and the applicant wife (CB 127).
2)Ultimately, the Tribunal found that the applicants had invented the story of activism on behalf of retrenched workers (CB 127.8), and that this was supported by evidence of the application history in their case. The Tribunal noted that their previous attempt, motivated by commercial interests, to seek a business related visa to remain in Australia had failed, and concluded that the applicants’ real motivation for applying for a protection visa in Australia was not related to a genuine need for protection. The Tribunal was not satisfied that the applicants faced a real chance of Convention related persecution (CB 127.9).
By way of amended application filed on 16 December 2004 the applicants assert two grounds: error of law and absence of natural justice. The particulars of these grounds reveal the following complaints by the applicants:
1)The applicant husband was treated unfairly during the hearing before the Tribunal, and that the Tribunal failed to offer him a fair opportunity to explain his claims, to clarify important issues, or to comment on negative information which was eventually used by the Tribunal to confirm the refusal decision of the respondent's Department.
2)The Tribunal failed to consider the applicant husband's claims made in a submission following the hearing, that the Tribunal's conduct of the proceedings, and the Tribunal's conduct at the hearing, prevented the applicant husband from fully providing the evidence in support of his claims.
3)The Tribunal had a strong bias towards the applicant husband’s claims and a strong bias in relation to “the actual situation in China”.
4)The Tribunal failed to comply with its obligations under s.424 of the Migration Act 1958 (“the Act”) in failing to provide the applicant husband with complete information and failed to ensure he fully and completely understood the information on which the Tribunal relied.
5)The Tribunal deprived the applicant husband of his right to give complete oral evidence at the hearing and to comment on that information on which the Tribunal relied.
6)The Tribunal failed to provide the applicant with information by one of the methods specified in s.441A of the Act.
The applicant husband appeared unrepresented at the hearing before me. He was assisted by an interpreter in the Mandarin language. The applicant wife did not appear. The applicant husband submitted that he would represent her. I note relevantly that the applicants accessed the Court’s Legal Advice Scheme, and on 9 December 2004 were provided with advice by a lawyer on the panel of that scheme. At the hearing the applicant husband stated:
1)At the hearing with him the Tribunal did not “understand” the visa in his passport.
2)That the Tribunal did not allow the applicant husband to speak at the hearing it conducted with him.
3)That the Tribunal still went ahead and made a decision even after he had submitted what he described as his “written protest”.
4)That the Tribunal did not consider the documents that he had submitted to the Tribunal.
The applicants’ complaint about what occurred at the hearing that the Tribunal conducted with them (complaints 1, 2, 3 and 5 as set out in paragraph 5 above and with reference to what the applicant husband said at the hearing before me) is unsupported by any evidence. The applicants have not provided a transcript of the proceedings before the Tribunal. At the hearing before me the applicant husband made reference to the audio tape of the hearing before the Tribunal. However, no such audio tape has been put into evidence before the Court. In this regard I note that the application to the Court was made on 21 July in 2004 and the applicants attended at the first Court date in this matter on 21 October 2004 where they signed short minutes of order which subsequently became orders of the Court. Relevantly “order 2” provided for the applicants to file and serve any affidavit containing additional evidence relied upon, including a transcript of a Tribunal hearing, by 16 December 2004. While I appreciate the applicants were unrepresented before me as I have already noted they have had the benefit of some legal advice. The applicants accessed the Court's Legal Advice Scheme and consulted and a lawyer on the panel of that scheme on 9 December 2004, and with the assistance of an interpreter in the Mandarin language advice was given to them on that date. While the Court appreciates the difficulties that applicants from non-English-speaking backgrounds face in conducting legal proceedings, it is clear that the applicants have had the opportunity, following the Court specifically directing them to the filing of affidavits including any transcript of the Tribunal hearing, to seek legal advice as to how this could be done. Nor in making reference to it did the applicant husband seek to tender any such audio tape at the hearing before me. Further, and critically, it is clear from the material before me that the Tribunal provided the applicants with an opportunity, following the hearing that it conducted, to make additional submissions. As it states in its decision record at CB 123.9, it allowed them to respond further to potentially adverse positions put to them at the hearing. The applicant husband's written submission is at CB 85 to CB 86. The applicant husband who was assisted by a migration adviser in the application before the Tribunal and who was present at the hearing with the Tribunal (CB 74), did not address any of the specifics of the potentially adverse issues raised by the Tribunal, but made general claims that he was interrupted by the Tribunal and that the Tribunal tried to strictly control the hearing and restrict him from providing complete oral evidence in support of his claims. Beyond a reference to the claim that the Tribunal was confused about the applicant’s visa as contained in his passport, neither in the letter to the Tribunal, nor even now, does the applicant point to any specific issue or matter which he says he was prevented from putting or explaining to the Tribunal. Even at the stage of the hearing before me the applicant put forward no matters specifically, other than the issue relating to his visa with which I will deal below, to show exactly what he was prevented from putting to the Tribunal or how the Tribunal’s alleged behaviour prevented him from having a fair hearing. The Tribunal's account in its decision record of what occurred at the hearing before it is set out at CB 117.5 to CB 122.9 and remains unchallenged before me by any evidence to support the applicants’ assertions. Further, in relation to the applicants’ claim that the Tribunal failed to consider, and “totally ignored”, the material submitted after the hearing:
1)To the extent that this is a reference to the submission at CB 85 to CB 86, this is dealt with by the Tribunal at CB 123.9 to CB 124.3. The Tribunal noted that it was confident it did ask clear questions at the hearing and made well known to the applicants what issues were of concern. It also noted that it provided the applicants with an opportunity “to add material and clarify things”. The Tribunal recorded that it allowed the applicants a week for further submissions to respond to potentially adverse positions put to them at the hearing with the Tribunal. It also noted (CB 123.9) that the applicants sought to accuse the Tribunal of applying pressure and asking confused questions, but did not address any of the potentially adverse positions put to the applicants.
2)At the hearing before me the applicant husband confirmed that the complaint that the Tribunal ignored the material provided to it by the applicants, also referred to material which is reproduced at CB 87 to CB 100. This is for the most part downloaded lists of items from the Internet. The remainder of this material generally appears to cover issues such as poverty and the poor urban unemployed in China. It is very general, and does not address the issues for which the additional time to make submissions was provided. I also note that some of the information does not relate to China. For the rest, it is general background information. The Tribunal’s choice and assessment of country information on which it relies and gives weight is a factual matter for it: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] to [14]. Further there is nothing to show how this material relates specifically to the applicants’ claims.
3)The allegations relating to bias on the part of the Tribunal, both towards the applicants claims, and towards the “actual situation in China” is also not supported by any evidence before me and does not meet the requisite test. For the applicants’ benefit I should set out that, allegations of bias, whether actual bias, or the apprehension of bias, are very serious and must be supported by evidence. When such allegations are made by an applicant it implies that the Tribunal member by their attitude and conduct can be shown to have preset in their mind the ultimate outcome in the matter. Allegations of actual bias carry with it an onus that it must be distinctly made and clearly proved. Actual bias requires evidence of “prejudgement” by the decision-maker in the sense that he/she is “so committed to a conclusion already formed as to be incapable of alteration or of being persuaded differently, whatever evidence or argument may be presented.” (Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17, [69], [71]-[72], [127]). The real question is whether the mind of the decision maker is open to persuasion. The applicant would need to present evidence of more that just the conclusion reached by the Tribunal to support this claim. Further, to the extent that the applicants may also seek to rely on alleged apprehension of bias this must be reasonable to succeed. The standards of reasonableness are determined by reference to the apprehension of “a fair-minded lay observer or a properly informed lay person” observing the Tribunal processes. (Re Refugee Review Tribunal Ex parte H [2001] HCA 28, [27]-[32]). On what is before me I can see no basis for review of the Tribunal’s decision on the basis of actual or apprehended bias.
I read the applicants’ claim in relation to the Tribunal’s failure to comply with s.424 and s.441A as being a reference to s.424A of the Act. This is clear when the application recites the failure of the Tribunal to provide complete information to the applicant husband and its alleged failure to ensure that he fully and completely understood the information that would be used in its decision. Further, there is nothing before me to show that the Tribunal sought any further information or that the applicants claimed there was information which it should have sought pursuant to s.424 or otherwise. The Tribunal referred to a number of different sources of information to make findings and reach its conclusions:
a)The applicants’ protection visa applications.
b)The applicants’ application to the Tribunal and accompanying statement.
c)The applicants’ oral evidence given to the Tribunal during the hearing before it.
d)Independent country information.
In the context of s.424A of the Act:
1)In relation to information provided by the applicants in their application to the Tribunal, and during the course of the hearing to the Tribunal, and in other written submissions made to the Tribunal, this information was clearly provided to the Tribunal for the purposes of the application to the Tribunal and comes within the exception provided for in s.424A(3)(b) from the requirement for the Tribunal to give this information to the applicants pursuant to s.424A(1), in the manner set out in s.424A(2) and s.441 for comment. I also note that in relation to the information provided by each of the applicants at the hearing this is not a situation, as seen by the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24, as the information provided by both applicants at the hearing before the Tribunal in the case before me, can be distinguished from the situation in SAAP where the information in that case was provided by the applicant mother’s eldest daughter at a hearing before the Tribunal who was not an applicant before the Tribunal. It is clear that in the case before me, both applicants gave evidence and information at the hearing before the Tribunal to support the one application to the Tribunal to which they were both parties.
2)In relation to independent country information on which the Tribunal relied, this was not specifically about the applicants and clearly was excluded from the requirement in s.424A(1), by the operation of s.424A(3)(a): Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264.
3)In relation to the information in the applicants’ visa application, on the authority of the Full Federal Court decision in Minister for Immigration and Ethnic Affairs v Al Shamry (2001) 110 FCR 27 information provided in a protection visa application to the first respondent's Department is not information provided to the Tribunal for the purposes of the application to the Tribunal. When seen in the context of the Tribunal relying on any such information in the making of its decision, and following the majority decision of the High Court in SAAP, any such information would need to be put to an applicant pursuant to s.424A(1) in the manner set out in s.424A(2). Effectively it must be put to the applicant in writing.
Ms. Morgan for the respondents submitted before me that the applicants’ evidence in their protection visa application, to the extent that the Tribunal may have relied on this information in the making of its decision, was provided for the purposes of their application to the Tribunal and falls within the exception provided for in s.424A(3)(b). The submission was that in the applicants’ submission to the Tribunal at CB 66 to CB 70, the applicants relied on their claims to the Minister’s Department, and the submission was critical of the delegate’s findings in relation to those claims, was a situation where there was little doubt that the applicants intended the Tribunal should look at these claims, and thereby clearly they republished to the Tribunal the original claims made to the Minister’s Department. She relied and referred me to:
· M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 at [25]:
“That is the not the end of the matter. By means of the written submission of his counsel to the Tribunal, the appellant relied expressly on the terms of his protection visa application. He informed the Tribunal that the detail of the claims was set out in the protection visa application and his earlier statements. He thereby invited reference to the copy passport, which was attached to the application form. There can be little doubt that the appellant intended that the Tribunal should look at this material. In my view, he thereby provided the passport, and the information to be derived from it, to the Tribunal for the purpose of the application for review. This was sufficient for the appellant to have been taken to give the information contained in the copy passport to the Tribunal for the purpose of his application for review, and therefore for that information to fall within s 424A(3)(b) of the Migration Act. This provision operated to exclude the copy passport from the Tribunal’s obligations pursuant to s 424A(1) and (2).”
·SZDMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1034 at [5] and [6]:
“In a well-constructed argument, counsel for the respondent put forward various bases upon which it could be said that the Tribunal did not breach s 424A. I need not set them all out as, in my opinion, one of them is decisive. The appellant’s application for review to the Tribunal incorporated a statement in the form of a statutory declaration by the appellant. That declaration consisted of a critical examination of the reasons given for the decision by the Delegate of the Minister to refuse the appellant’s application for a visa. In the course of that declaration the appellant referred several times to the claims that he had originally made and which were the subject of the Delegate’s decision. Those claims were those set out in the statutory declaration provided with and incorporated in the original application and to which the Tribunal made reference.
In my opinion, the appellant clearly republished the original claims to the Tribunal and relied upon them for the purposes of the review by the Tribunal. It follows that all such information was given by the appellant to the Tribunal for the purpose of the application even if ‘application’ is limited to the original application and so falls within the exception in s 424A(3)(b). Therefore, the obligations imposed by s 424A do not apply to that information. In other words, the case is within the reasoning of M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 rather than NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744. (See also SZBNK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 998.)”
·SZERV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1221 at [11]:
“Whether or not this intuitive reaction is correct, it seems to me that the argument in this case must fail for two reasons. Firstly, in SZEKY v The Minister 2005 FCA 1138 at [21] to [24], Lindgren J held that where a decision is based upon inconsistency between an earlier statement and a later statement, it is that inconsistency, and not the statements, upon which the decision is based. That view seems to me, with respect, to be correct. Secondly, in the present case, the Tribunal requested the applicant to interpret his original visa application statement. He identified his signature at the bottom of the relevant page and agreed that the statement contained his claim, and explained his reasons for fearing return to China. His attendance at the Tribunal hearing and his responses to questioning were for the purpose of the application to the Tribunal. All of that information, therefore, became information provided by him to the Tribunal for the purpose of the application. I am told that this view was taken by Madgwick J in SZFKL v The Minister (2005) FCA 931, but that Jacobson J took a different view in NAZY v The Minister (2005) FCA 744. I find myself in respectful disagreement with the view taken by Jacobson J. I see no substance in this line of argument. In any event, it can hardly be appropriate for a court, on appeal, to formulate a grounds of appeal and then invite the appellant to adopt it. It would be particularly difficult if the court were then to continue to hear the appeal. Questions might also arise as to costs if the argument were unsuccessful. It is not necessary to consider the matter further.”
In the case before me the Tribunal's conclusion turned on the applicant husband's credibility and the credibility of his claims. The Tribunal found at CB 124.5 that it did not accept that the applicant husband was ever involved with retrenched workers demands in the PRC, let alone with an organisation leading such demonstrations in and around the applicants’ province. The Tribunal said that it came to this view on the following:
1)On the basis that the applicant husband's claims either not sitting with, or having no support from, independent country reporting. This finding does not rely on the information in the applicants’ protection visa application, but rather turns on the “lack of corroborating evidence in circumstances where one could reasonably expect to find plenty” (CB 125.2), and the Tribunal's finding that “it is left with an unsupported account involving a number of outlandish elements” (CB 125.4).
2)The Tribunal found that the applicant husband had provided contradictory evidence. The Tribunal looked at the applicant husband’s passport and original claims, where it was stated that he “worked for” the chemical company and was an “employee” and said that this would not stop him being one of the “managers,” but found that this was in contradiction to other evidence that he was the “owner” of the company (CB125.7). In the absence of any republishing of the claims to the Tribunal this could be a finding based on information given in the application for a protection visa (subject of course to the issue as to whether the matter arising from the protection visa application was so integral to the reasons for rejecting the claim that it was required to be put to the applicant: see SZDQL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 769 at [55] and VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [33].
3)The Tribunal found that the applicant husband provided inconsistent evidence about the November 2001 demonstration and this was tied to his explanation at the hearing about an apparent total lack of independent reporting of the demonstration (CB 125.9). Again this does not fall into the category of information given in the application for a protection visa.
4)The Tribunal found that the applicant husband provided inconsistent evidence as to his state of mind at the time he left the PRC. The Tribunal referred to written claims made to the first respondent's Department. It also looked at subsequent explanations provided at the hearing to make the finding of inconsistent evidence (CB 126.2). (This is similar as to what was noted at paragraph 11 point 2 above).
5)The Tribunal relied at CB 126.4 on the evidence given by the applicant husband throughout the hearing before it as to the reasons that he came to Australia. It found that he came to Australia for the purpose of residence based on a business proposition and not for any protection reason. This was supported by what the Tribunal found to be his “poor explanation” for delaying his visa application. This is drawn from information provided at the hearing before it.
6)The Tribunal's finding that it was not satisfied that the applicant husband was ever sincerely interested in the rights of retrenched workers was again based on the applicant husband's presentation at the hearing before the Tribunal. It described as “poor and inconsistent” his responses to questions about what efforts he undertook after arriving in Australia to continue supporting and publicising the plight of his comrades back in the PRC (CB 126.6).
7)The Tribunal found problems with the evidence of the applicant wife at the hearing before it. The Tribunal reported that at one stage she claimed to know nothing about the details of her husband’s problems in the PRC, and at another point in the hearing she put forward a crucial detail regarding the authorities having frozen the assets of his company. The Tribunal stated that it could take the view that the applicant wife was telling the truth, but that this would lead to the finding that the story that the applicant husband told was false (CB 127.4). This also relied on information provided at the hearing before the Tribunal.
8)The discrepancy as found by the Tribunal between the evidence of the applicant husband and that of the applicant wife was evidence provided by both parties at the hearing before the Tribunal in support of the application for review. The Tribunal found the various accounts about the freezing of the company’s assets was a serious discrepancy, and led the Tribunal to the conclusion that the two applicants had concocted this story but had failed to “square” their respective positions (CB 127.8).
The applicant husband’s claims to the first respondent's Department were particularly set out in an attached statutory declaration to his application reproduced at CB 42 to CB 48. The applicant’s reasons for making the application to Tribunal, and in particular the answer to the question in the application to the Tribunal as to:
“Please tell us why you consider yourself to be a refugee?"
is answered by:
“Please refer to my statement.”
The statement is reproduced at CB 66 to CB 70. The statement is clearly critical of the decision record provided by the Minister’s delegate to explain the reasons for the decision to refuse a protection visa. In particular, the applicant husband takes issue with the delegate's treatment of his claims, particularly in relation to the test of harm or mistreatment feared by the applicant and whether it involves serious harm and whether the persecution claimed involves systematic and discriminatory conduct. The applicant husband also made specific reference to some of the details of his claims and clearly chose to answer the question as to why he considered himself to be a refugee, that is the question posed by the Tribunal, with specific reference to the claims made to the respondent's Department, and with a critique of the delegate's failure to find that those claims amounted to persecution for a Convention reason which in the applicant husband’s view made him a refugee. This clear engaging with the delegate's decision, and the specific reference to key claims, leads me to the view that there was little doubt that the applicants intended the Tribunal to look at claims made to the delegate, and thereby republished the original claims.
I accept Ms. Morgan’s submissions in this regard.Further, and specifically in relation to the two pieces of information identified at paragraph 11 point 2, and 11 point 4 above:
1)To the extent of that the Tribunal relied on the statement in the applicant husband's passport that he was an employee of the chemical company (and not an owner), at the hearing before me the applicant husband stated (in the context of making the complaint that the Tribunal did not understand and could not properly read his visa) that he had given his passport to the Tribunal at the hearing before it, and further volunteered that the Tribunal made photocopies of his passport. In this regard therefore, the Tribunal's reliance on the inconsistency between the applicants employment status as stated in his passport compared with what he said at the hearing before the Tribunal, was all information that was provided to the Tribunal for the purposes of the review before it. I should I also note that the applicant husband’s reference to the Tribunal not being able to “understand his visa” is unsupported by any evidence of what occurred at the hearing before the Tribunal. But in nay event, does not appear to have any direct relevance to the Tribunal’s decision. The reference to the applicants’ motives in first pursuing an application for a business related visa on arrival in Australia does not appear to be dependant on any misreading of any visa in the applicant husband’s passport. Nor, even if the Tribunal did not “understand” any such visa does this alone, in all the circumstances of the case, show lack of competence on the part of the Tribunal in carrying out its task.
2)At CB 126.2 the Tribunal makes reference to the applicant husband’s written claims to the respondent's Department where he said that he knew that he had to flee China following the November 2001 demonstration to avoid arrest. The Tribunal then recounts the applicant’s explanation for the lack of corroborating evidence and it said that it did not consider his problems to be “so bad” in February 2002. The Tribunal’s conclusion was that a person who had lived the events as claimed would not have had such an inconsistent view of his predicament. In relation to these claims as to the applicant stating earlier that he knew he had to flee China following the events of November 2001, the applicant husband clearly repeated these claims in his statement to the Tribunal at CB 66 to CB 70. The applicant husband specifically stated at CB 68 that he would be arrested and sentenced to many years imprisonment arising from his political opinions and then at CB 69.1, with greater relevance says (clearly in the context of the event surrounding November 2001 and subsequent events) that the “Research Centre” came to the specific attention of the PRC authorities, the whole centre was destroyed by the PSB and NSB, and more than 20 members have been arrested. He then said:
“I therefore have become the target of the PSB and NSB since then, I am still safe because I have stayed in Australia since February 2002.”
It was precisely this claim when compared to his later claim that things were “not so bad” in February 2002, that the Tribunal found to be the inconsistent view of his predicament.
The applicants were clearly on notice, having made the application for review to the Tribunal, that on the material before it Tribunal was not able to make a decision in their favour and invited them to attend a hearing to support their claims. The applicants attended the hearing before the Tribunal and despite some opportunity to do so, have not provided any evidence to contradict the Tribunal's account of what occurred at the hearing. Clearly the Tribunal’s view of the credibility of the applicant husband and the credibility of his claims was a critical factor in the Tribunal’s affirming of the delegate's decision to refuse a protection visa to the applicants. For the reasons set out above I can see no jurisdictional error in the Tribunal's decision. This is a privative clause decision. The application is dismissed.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: Sybilla Waring-Lambert
Date: 26 September 2005
1