SZEDJ v Minister for Immigration

[2005] FMCA 1022

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEDJ v MINISTER FOR IMMIGRATION [2005] FMCA 1022

MIGRATION – Refugee – persecution on the Convention basis of political opinion and religious belief – information to be put to the applicant – Tribunal’s adverse thought processes – credibility – authenticity of documents – document examination.

Migration Act 1958, ss.424A(1), 36(2), 430, 422B, 424A(1)(3)

Tin v Minister for Immigration & Multicultural & Indigenous Affairs [2000] FCA 1109
Re Refugee Review Tribunal; Ex Parte Aala [2000] 204 CLR 82
WAFV of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 240
Nader v Minister for Immigration and Multicultural Affairs [2000] FCA 908
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte S20/2002 (2003) 198 ALR 59
NAMW & Ors v Minister for Immigration & Multicultural  Indigenous Affairs [2004] FMCA 36

Applicant: SZEDJ

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 2475 of 2004

Judgment of: Nicholls FM

Hearing date: 8 February 2005

Date of Last Submission: 4 February 2005

Delivered at:  Sydney

Delivered on: 5 August 2005

REPRESENTATION

Counsel for the Applicant: NIL

Solicitors for the Applicant: NIL

Counsel for the Respondent: Mr. A. Markus

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. Application dismissed.

2. Applicant to pay respondent’s costs set in the amount of $6000, pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2475 of 2004

SZEDJ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This is an application filed in this Court on 6 August 2004 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 21 June 2004 and handed down on 14 July 2004 to affirm the decision of the delegate of the respondent Minister made on 25 October 2002 to refuse a protection visa to the applicant.

2. The applicant is a citizen of the Peoples Republic of China who arrived in Australia on 15 September 2002 and was admitted under a temporary business visa valid for one month. He lodged an application for a protection visa to the respondent's Department on 10 October 2002. On 25 October 2002 a delegate of the respondent Minister refused to grant a protection visa. On 26 November 2002 the applicant applied for review of that decision. 

3. The applicant’s claims were before the Tribunal by way of his application for a protection visa (copied at Court Book 1 to CB 27) and a statement submitted to the Tribunal subsequent to the application for review which was received by the Tribunal on 10 June 2003 and is copied at CB 59 to CB 62. The applicant also attended a hearing before the Tribunal, and the Tribunal's account of that hearing is at CB 94.8 to CB 98.3. The applicant claimed persecution on the Convention basis of political opinion and religious belief. He claimed that in 1989 he attended meetings and gave public speeches regarding Chinese government policies on religion, freedom and democracy, and from 1989 to 1992 he was questioned by authorities and forced to make “confessions”. The applicant also claimed to have been born into a Christian family, to have practiced that faith in China, to have attended Baptist church services in Australia and that he had suffered discrimination and harm in China because of his association with an “unofficial” church. He claimed to have been detained for 6 years, suffered job loss, to have been apprehended, questioned, subsequently detained and physically mistreated because of his religious practice.

4. The applicant's application to this Court filed on 6 August 2004 alleges:

   1)That the Tribunal had not explained to the applicant the reasons as to why it was likely to refuse his application and that the applicant was therefore deprived of the chance of explaining himself in more detail.

   2)That the Tribunal did not accept the applicant's evidence and that the Tribunal was therefore biased towards the applicant.

   The applicant filed an amended application on 13 October 2004 which provides some particularity to these general claims. In any event, at the hearing before me, the applicant sought to file a further amended application and leave was granted for him to do so. I noted that the further amended application was prepared after the applicant had consulted, and been given advice by, a lawyer on the panel of the Courts Legal Advice Scheme. The further amended application asserts one ground:

   “That the RRT decision was affected by jurisdictional error”

   and is particularised by:

   “(a) The RRT accepted that the applicant was Christian who attended the Baptist Christian Church in Sydney. The applicant claimed that he had not been able to satisfactorily practice his faith within the state registered Christian Church when he was in China. The RRT failed to exercise its jurisdiction as it failed to make any findings about whether Baptist Christians could generally practice their faith within the state registered Christian Church in China

   (b) The RRT failed to exercise its jurisdiction as it failed to make any finding as to whether the applicant would be persecuted if he attempted to practice his Baptist Christianity in an unregistered church in China"

5. At the hearing before me the applicant summarised his complaints as:

   1)That there were a number of mistakes in the Tribunal's decision. The Tribunal should have informed the applicant about the information relating to the refusal and that the Tribunal should have made sure that the applicant understood this, and that the applicant should have been offered an opportunity to comment on this information. This appeared to be a complaint that the Tribunal had not complied with s.424A of the Act as the form of the applicant's complaint appeared to follow the matters set out in s.424A(1).

   2)That the Tribunal failed to give him an opportunity to comment. Despite my prompting, the applicant was unable to provide any real detail as to what he meant by this, but it appeared that the applicant's real complaint was that he was not given an opportunity to comment on the Tribunal’s adverse findings. For example, the applicant complained that he had been involved in religious activities in China, and that he had been detained as a result but his complaint was that the Tribunal did not believe that he had been sentenced to detention because of his religious activities.

   3)That the Tribunal was biased against him. This appeared to be based on the applicant's assertion that the Tribunal did not believe what he had put to it. In particular the applicant said that it was not acceptable to him that the Tribunal found that there had been contradiction between what he had put in the application form for a protection visa, and what he had subsequently said to the Tribunal in relation to whether he had been sentenced as a result of a criminal conviction.

   4)That the Tribunal did not properly investigate the “genuineness” of the documents that he provided in support of his claims.

   The applicant also submitted with his further amended application, a document addressed to the Court, which said:

   “Please refer to the tape of the interview between me and RRT and give the one more chance to explain my case at the following points:

   1)The details about the six years when I was detained.

   2)The no criminal record at the B form, and the important arguing points with RRT.

   3)The authenticity of the documents, and the conclusion made by RRT at this point.

   4)The statement about the persecution I suffered in China.”

6. The Tribunal's “Findings and Reasons” in its decision record are set out at Court Book 114.5 to CB 121. The Tribunal clearly had difficulty with the applicant's credibility. In particular it found that:

   1)There were significant inconsistencies between what he presented in his application for a protection visa, his application to the Tribunal for a review, his statutory declaration of 10 June (actually declared on 8 June 2003 and submitted to the Tribunal on 10 June 2003- see CB 59 to CB 62), and oral evidence that he gave to the Tribunal on 22 October 2003 (CB 115.8). One example of the Tribunal’s concern in this regard was that in his primary application he made no mention of any conviction, or that he had been aware of any investigation into his affairs. The first mention of being detained for five years between 1970 and 1976 appeared in his declaration of 10 June 2003. Further, that it is within this statement that mention is made of the “Qingdao Independent Christian Church” which he claimed to be the “basis of his major claim” in relation to persecution for religious grounds. The Tribunal also noted that the oral evidence before it, raised for the first time, a number of extra incidents involving detention, torture and physical mistreatment and the claim that he had lost his job following his detention.

   2)The Tribunal found it inexplicable, that matters such as the above, which were of great importance, were not included in that primary application, or more specifically in the review application. The Tribunal did not find the explanation of a change of advisers as being of itself sufficient to explain such omissions (CB 116.3).

   3)The Tribunal acknowledged that there was no onus of proof on the applicant but nonetheless that none of the experiences that he cited were supported by any corroborative evidence in circumstances where it could reasonably be expected to be available. (CB 116.4)

   4)The Tribunal, which had the benefit of hearing from the applicant, noted that the answers to questions generally were characterised by attempts to modify his claims to “suit and to add more and more incidents of claimed serious harm”. The Tribunal noted that the applicant showed “considerable flexibility” in his answers and was particularly adept in remembering events of persecution, serious harm or threats to him and to fill in key gaps in dates (CB 116.5).

   The Tribunal found that generally the applicant's evidence before it amounted to mere assertion, and while being sensitive to the difficulties asylum seekers face, that the applicant was unable to substantiate any of his claims

7. Specifically in relation to the applicant's claims based on his political opinion, the Tribunal noted at CB 117.5 that the relevant events claimed by the applicant fell into two categories. First, those which the Tribunal characterised as “old claims” being that the applicant’s family suffered during the Cultural Revolution and during the pro-democracy suppression of 1989. The Tribunal found that those experiences were not significant enough to persuade the applicant to seek refuge until his departure from China many years later and that on the evidence before it, that is, the inconsistencies in the claims, the Tribunal did not accept those old claims. Second, in relation to more recent events, the applicant claimed to have attended meetings and to have given at least five public speeches, relating to commemorations of the events in Tiananmen Square in 1989, to urge for changes in government policies on freedom of religion and democracy. The Tribunal noted he was unable to provide any supporting evidence of this, and did not provide any details such as location, or attendance and did not report action against him by others or by the authorities. Based on its findings on the applicant's credibility and on independent evidence that showed that the absence of such follow-up and police interest is not credible, the Tribunal concluded that it did not accept the truth of those or any other of the applicant’s politically based claims. (CB 117.9)

8. In relation to his claims concerning religion, the Tribunal accepted that the applicant was born into a Christian family and that he may have practiced that faith at some time. It also accepted that he had attended Baptist services while in Australia (CB 118.2). However, the Tribunal found that the applicant's account showed that his practice of Christianity in China was at best “desultory” and found that the claimed history of his religious observance was not of someone committed to Christianity since childhood. In relation to his more recent claims of religious activities, and in relation to the unofficial church which he claimed that he had joined, the Tribunal found that the applicant's knowledge of his claim to faith was superficial, and certainly not to the level to be expected of someone who claimed to be a leader and speaker on religious freedom, or even as a committed rank and file practitioner (CB 118.5). Based on the information provided by the applicant the Tribunal did not accept that he was active in his practice of the Christian religion in China in either the official or the unofficial church, other than in a desultory way or that he exercised any leadership or missionary role as he had claimed. In relation to the applicant’s claimed detention from 1970 to 1976 for religious reasons, and the claimed job loss which followed, the Tribunal commented that there were contradictions in the applicant's various accounts, that the claimed detention was not mentioned in his application for review, and that the Tribunal had before it independent information to the effect that the length of sentence that he claimed to have suffered was twice the legal maximum for that offence. The Tribunal did not accept that he had been sentenced or that he had lost his job as a consequence based on these reasons, and based on its earlier finding in relation to the applicant's credibility (CB 118.8). Further, and the Tribunal gave reasons, it was unable to accept on the evidence before it that the church that the applicant claimed that he had joined in fact existed, and that the Tribunal consequently did not accept any of the claims which he said flowed from that association namely, that he had been questioned, detained and mistreated (CB 119.5). The Tribunal found that the applicant did not have a well founded fear of persecution should he return to China. It is clear that this conclusion was based on the Tribunal's finding that the applicant was not a credible witness, that it rejected many of his specific claims in relation to the Convention grounds of political opinion and religion. Nor did the Tribunal accept the applicant's claims about travel difficulties and exit difficulties from China (CB 120.2). The Tribunal also considered the impact of his attending a local Baptist church since arriving in Australia and found that there was no evidence before it that he had engaged in activities in Australia of a political or religious character which would bring him to the adverse attention of the Chinese authorities. This was coupled with the finding that there was nothing before the Tribunal to suggest that he had been active in his faith before leaving China, to similarly arouse the adverse attention of the Chinese authorities. As a result, the applicant had not satisfied the Tribunal that he had a well founded fear of persecution (CB 120.9).

9. The applicant's first complaint in the further amended application is that having accepted that the applicant was a Christian who attended the Baptist Christian Church in Sydney, the Tribunal should have then proceeded to make findings about whether Baptist Christians could genuinely practice their faith within the state registered Christian Church in China. The applicant at the hearing before me did not present any further argument in support of this ground. However, this ground, as submitted by Mr. Markus who appeared for the respondent, misunderstands and misinterprets the Tribunal's decision and findings. It is a misrepresentation to say that the Tribunal accepted that the applicant was a Christian. In fact the Tribunal specifically found that the applicant was not active in his practice of the Christian religion in China, either in the official or unofficial church other than in a desultory way, or that he suffered any of the harm claimed as a result of his claims to have been a practising Christian. The applicant's claim as stated in the further amended application, that he had not been able to satisfactorily practice his faith within the state registered Christian Church when he was in China was specifically dealt with by the Tribunal and rejected (CB 118). The acceptance by the Tribunal that he had attended some Baptist church services in Australia does not, in these circumstances, detract from the critical findings which were open to the Tribunal on the material before it and for which it gave reasons. This includes the reasons relating to the applicant's credibility. Further the Tribunal at CB 120.8 specifically noted that the applicant had attended a local Baptist church in Australia and addressed the issue, now complained of by way of the further amended application, in that it found that there was nothing before it of a religious, or for that matter political character, which would bring him to the adverse attention of Chinese authorities should he return. The Tribunal further found there was nothing before it to suggest, that after having found the applicant not to be so active in his faith before leaving China to arouse the adverse attention of the authorities, that the applicant would become so active should he returned to his country (CB 120.8). There is nothing before me to show that the factual findings by the Tribunal in relation to the issues of credibility, political opinion and religion were not open to the Tribunal to make. Further it is clear that once it had found that there was nothing before it to show that the applicant would become so active should he return to his country. The Tribunal did address the relevant issue arising out of the applicant's claimed circumstances as to whether he would come to any adverse attention by the Chinese authorities should he return to China and found against the applicant. In these circumstances there was no need for the Tribunal to specifically go on and make any findings about whether Baptist Christians could genuinely practice their faith within the state registered Christian Church in China. Nor for essentially the same reason is there any failure by the Tribunal to exercise its jurisdiction by having failed to make any finding as to whether the applicant would be persecuted if he attempted to practice his Baptist Christianity in an unregistered Church in China. The Tribunal clearly, for the reasons that it gave, found that there was nothing before the Tribunal to suggest that the applicant would become active in the practice of his religion in any capacity were he to return to China in a way that would bring him to the attention of the authorities. This ground is not made out.

10. As to the applicant's complaints at the hearing before me based on his earlier applications, the applicant's first complaint is that the Tribunal made a number of mistakes in that the Tribunal did not tell the applicant about the “relevant regulations”, that the applicant should have been informed about information that related to the refusal by the Tribunal, and the applicant should have been given an opportunity to comment. There are a number of relevant elements to this general claim.

11. Understandably, although I note that the applicant did have the benefit of assistance from registered migration agents during the course of the conduct of his application before the Tribunal, and in particular, that one of his migration advisers attended the hearing with the Tribunal, the applicant does not appreciate the statutory regime within which the Tribunal is required to operate. Section 65 the Migration Act relevantly requires that the decision maker, and in this case the Tribunal, must be satisfied that the relevant criteria for the visa applied for have been met. If the decision maker is not so satisfied then the decision maker is to refuse to grant the visa. While the criteria relevant to a protection visa are set out in the Regulations to the Act, s.36(2) of the Act also sets out a criterion for a protection visa, and that is that the applicant is a person in respect of whom the decision maker is satisfied that Australia has a protection obligation under the Refugees Convention. Clearly, there is no burden of proof on the applicant. However, there is some onus on an applicant to make out the case before the decision maker and in that sense it is necessary for an applicant to provide information and evidence to satisfy the Tribunal that they meet the relevant criteria. While the Tribunal has obligations to ensure that an applicant understands the case against them and is not caught unawares, unless there are circumstances requiring it, the Tribunal does not have to provide advice to the applicant about regulatory requirements. I can see nothing in this regard, in the way the Tribunal approached its task, to show that the Tribunal did not understand the statutory context within which it was required to operate. I further note that at CB 116.4 the Tribunal specifically stated that there was no onus of proof on the applicant and that the Tribunal was sensitive to the difficulties asylum seekers faced in being able to substantiate all of their claims. Further, it noted that it was mindful of the need to give the benefit of the doubt to those who appear as credible applicants. It is clear that in the case before me the Tribunal, for the reasons that it gave which as I said earlier were open to it on the material before it, was unable to reach the necessary level of satisfaction to enable it to say that the applicant was entitled to a protection visa.

1. To the extent that the applicant's complaint can now be seen to be a complaint that the Tribunal's thought processes, that is, its intended adverse findings, were not put to the applicant prior to a decision being made, there is of course no obligation on the Tribunal to put to an applicant adverse thought processes which are obviously open to it on the known material supplied by or known to the applicant. In the case of Tin v Minister for Immigration & Multicultural & Indigenous Affairs [2000] FCA 1109 Sackville J said:

   “It follows that a subjective determination by the tribunal that the applicant’s account is or may not be credible does not enliven the obligation imposed by s424A(1). Thus, even if the tribunal had not alerted the applicant to the possibility that her evidence might not be accepted at face value, its failure to do so would not have contravened s424A(1).”

   Further, McHugh J. in Re RRT; Ex Parte Aala [2000] 204 CLR 82 at [101] said:

   “One of the fundamental rules of the fair hearing doctrine is that a decision maker should not make an adverse finding relevant to a person's rights interests or legitimate expectations unless the decision maker has warned that person of the risk of that finding being made or unless the  risk necessary incurs in the issues to be decided. It is a corollary of the warning rule that a person who might be affected by the finding should also be given the opportunity to adduce evidence or make submissions rebutting the potential adverse finding.”

   The Tribunal did draw to the applicant’s attention the significant differences between his various accounts (CB 95.8), and further, put details of some of these significant differences to the applicant. At CB 96.1 the Tribunal specifically records that it asked the applicant to comment. In the circumstances it would have been obvious as to the purpose of doing so. The Tribunal records the applicant's subsequent answer.

2. At CB 96.3 the Tribunal reports that it sought the applicant's comment in relation to his claim that he had been detained for a 6 year period in the 1970s. The Tribunal specifically recorded that it said to the applicant that his answer did not reflect well on his credibility.

3. The Tribunal then records its canvassing with the applicant his claims arising out of his claimed religious faith, and the 1970 to 1976 detention and claimed political activity. The Tribunal records at CB 97.9 that it observed that little if any of the applicant’s claims before it now were included in the material previously put before the Tribunal and that this might raise credibility doubts or the capacity of the Tribunal to accept what he was saying. The applicant was specifically asked if he had any supporting evidence of the claimed arrest, detentions, releases and other related incidents. The Tribunal records that he did not. The applicant therefore at the hearing before the Tribunal was put on notice as to the Tribunal's concerns as to the credibility of the applicant and particularly in the context of the two areas of religion and political opinion and was also put on notice that the applicant's claims lacked any supporting evidence. In this regard, the Tribunal notes at CB 98.3 that the applicant responded in relation to the absence of corroborating evidence that given time he would try to provide supporting evidence.

4. After the hearing before the Tribunal the applicant in fact did provide to the Tribunal, on 12 November 2003, a statutory declaration (CB 70 to CB 71) annexing three documents, with English translations, which are reproduced at CB 72 to CB 77, which purport to be from local police and security authorities in Qingdao City. The first two state that the applicant was summoned to appear before the police for interrogation on two occasions in 2002, and the third document which purports to be an announcement that the applicant is the head of the Qingdao City Independent Christian Church, and had been notified publicly on 20 October 2002 that because of his religious beliefs and his illegal religious activities that he should surrender himself to police. By letter dated 18 February 2004, copied at CB 78 to CB 79, the Tribunal wrote to the applicant providing information that the documents had been referred to the respondent’s Department, and in particular to the Document Examination Section, and that as a result of its examination and consultation with the Australian Embassy in China, the conclusion was that all three documents were fraudulent. The letter advised the applicant that this was information that was relevant to its decision because it went to the applicant's credibility. The applicant responded by letter copied at CB 80 to CB 81. The Tribunal's decision record at CB 101.9 to CB 103.9 records this action and makes a specific reference to the fact that the Tribunal wrote to the applicant pursuant to s.424A of the Act. The Tribunal also records at CB 116.7 to CB 117.5 how it dealt with the documents supplied by the applicant and with the information it obtained from the Document Examination Section. The Tribunal commented that it had some difficulty with the matters asserted in the documents as they related to the claims as made by the applicant. It also noted that the three documents were found to be fraudulent by the appropriate expert authority and noted the applicant's response when provided with an opportunity to comment.

5. To the extent that the applicant's complaint now is that there was some failure by the Tribunal in relation to the matters set out in s.424A of the Act, it is clear that in relation to the information obtained about these three documents the Tribunal clearly had an obligation to provide this information to the applicant and to explain to the applicant why it was relevant to the decision to be made and to provide the applicant with an opportunity to comment. On the material before me the Tribunal appears to have fulfilled these requirements.

6. However, one aspect that I should note is related to whether the Tribunal was required to provide the actual report from the Document Examination Section to the applicant for comment. In WAFV of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 240 a Full Federal Court agreed with the judge at first instance that the failure by a Tribunal to supply the applicant with the actual tape on which a linguistic analysis of the applicant was based, and later relied upon in rejecting his main claims, was a breach of procedural fairness as insufficient information was available to allow the applicant to respond in a meaningful way. The Court in that case considered as inadequate the fact that excerpts from the linguistic report were provided to the applicant and considered that the Tribunal should have provided a copy of the full report, and a copy of the tape upon which the report was based. See also the case of Nader v Minister for Immigration and Multicultural Affairs [2000] FCA 908. In that case Hill J. of the Federal Court held that, although information had been provided to the applicant in accordance with the obligations imposed under s.424A of the Act, the statutory requirements were not satisfied. As the Tribunal failed to provide further available particulars of that information to the applicant, he was denied the opportunity to meet the adverse consequences of that information. Hill J states, at [60] that:

   “…the question of what is required by way of particulars will fall to be resolved by reference to the nature of the information the Tribunal has received.”

   There are two reasons why I do not regard any failure by the Tribunal to provide the full report for comment as amounting to an error on the part of the Tribunal. First, the critical issue that the documents were regarded as fraudulent by the “appropriate expert authority” was put in writing to the applicant. In looking at the report (CB 222 to CB 223), essentially the reason that the documents were regarded as fraudulent was based on information that the Document Examination Section stated it received from the “overseas post” which advised that items one to three, that is the three relevant documents, are fraudulent. The Document Examination Section by itself appears not to have been able to have reached a conclusive view on its examination of the documents because it said that it held no information or specimens relating to items one to three, although it noted some features apparent on the face of the documents. Presumably these are specimens that were known to be authentic against which the documents could be compared. It was the information from the overseas post that led to its endorsement that the documents were fraudulent. In this regard, the Tribunal put to the applicant the only critical information that was available to it, namely the conclusion that all three documents were fraudulent, that the Document Examination Section had conducted its own examination and had consulted with the Australian Embassy in China. In these circumstances, it was sufficient for the Tribunal to have put the applicant on notice of the critical and relevant information that it held and that was, that the documents were considered to be fraudulent by the “expert authorities”. The applicant complains that it was difficult to comment without further detailed information. But it is difficult to see how the actual report would have further assisted the applicant. The report contains descriptions of some features of the documents. These features were apparent by observation, and were not drawn from any special or expert process of analysis. The critical issue was the conclusion that the documents were fraudulent, and were judged to be so by the respondent’s Document Examination Section and after their consultation with the Australian Embassy in China. The applicant was given this critical information known to the Tribunal, and it was always open to the applicant, who it must be remembered had engaged a migration adviser to assist with the application before the Tribunal, to have provided further information on the provenance of the documents or even to have submitted an independent expert analysis of the documents.

7. But even if I am wrong in taking this view, it is clear that the Tribunal's ultimate attitude in relation to these three documents is encapsuled in its statement at CB 117.4:

   “In the event the Tribunal's findings on credibility which follow led it to place no weight on these documents."

   In Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte S20/2002 (2003) 198 ALR 59 (“S20”) and in particular per their Honours McHugh and Gummow at page 70 [49] which in relation to the Tribunal’s approach to corroborative evidence and credibility said:

   “In a dispute adjudicated by adversarial procedures, it is not unknown for a party’s credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party. If the critical passage in the reasons of the tribunal be read as indicated above, the tribunal is reasoning that, because the appellant cannot be believed, it cannot be satisfied with the alleged corroboration. The appellant’s argument in this court then has to be that it was irrational for the tribunal to decide that the appellant had lied without, at that earlier stage, weighing the alleged corroborative evidence by the witness in question. That may be a preferable method of going about the task presented by s 430 of the Act. But it is not irrational to focus first upon the case as it was put by the appellant.”

   At CB 117.4 the Tribunal says:

   “In the event the Tribunal's findings on credibility which follow led it to place no weight on those documents"

8. It is clear therefore that in the case before me that the Tribunal placed no weight on the documents provided by the applicant in the context of its other findings on credibility in relation to the applicant claims. A plain reading of the Tribunal’s decision shows that it did not make a finding that the documents were fraudulent. It noted that they had been found to be fraudulent by the expert authority. It placed no weight on these documents because of its findings on the applicants credibility arising out of other issues. While S20 was concerned with procedural fairness obligations in putting adverse information obtained in relation to corroborative evidence provided by the applicant, in the case before me in that regard the Tribunal did put the critical information to the applicant in writing pursuant to s.424A(1) of the Act (and in this regard I note that this decision was made after the introduction of s.422B of the Act). It is clear that in the case before me that the corroborative evidence proffered by the applicant was considered as of no weight because the well had been well and truly poisoned beyond redemption. In this context, even if some criticism could be levelled at the Tribunal for failing to put the actual report from the document examiner to the applicant, then any such a failure would not appear to have been capable of affecting the Tribunal's finding on credibility which was made independent of the matters raised by the three documents. In relation to other adverse country information on which the Tribunal relied there is nothing before me to show that any of this material did not fall within the exception provided for in s.424A(3)(a), the meaning of which has been explained in a number of Full Federal Court decisions NAMW & Ors v Minister for Immigration & Multicultural  Indigenous Affairs [2004] FMCA 36.

9. In a document attached to his further amended application the applicant made reference to the tape of the interview conducted with the Tribunal and sought from the Court “one more chance” to explain his case, presumably before the Tribunal, in relation to a number of points. The applicant, despite having had the benefit of some legal advice did not tender the tape of the hearing before the Tribunal to the Court, although it appears that he may have had access to the tape or was in possession of the tape he did not bring it to the Court to tender. But far more importantly he was unable to provide any satisfactory reason as to the usefulness of the Court obtaining and listening to a tape of the hearing that the Tribunal conducted with him. The reasons as provided appeared to amount to no more than a complaint about the findings of the Tribunal, or that he should now be provided with a further opportunity to provide further details or explain matters in relation to which the Tribunal made adverse findings. The applicant's complaint about the Tribunal finding inconsistencies in his various accounts and submissions was blamed on his then migration adviser. There was nothing in what the applicant put to the Court in this regard to show that a tape of the hearing conducted by the Tribunal would assist his case before the Court. The applicant's one specific claim now, that the Court should listen to the tape of the hearing, and that the tape would show that the applicant told the Tribunal that the explanation for the omission of details of his claim in his earlier accounts was as a result of the failure on the part of the migration agent to properly record his claims. In this regard, I note that in its account of the applicant’s evidence at the hearing before it at CB 96.2, the Tribunal reports that it provided the applicant with the opportunity to comment on a number of significant differences between his various accounts. The applicant is reported as saying that he had changed his migration adviser, that he had told his first adviser of all the matters that were put in subsequent submissions but that as he spoke no English, he relied on what the adviser had put in the various documents. The Tribunal is reported as commenting that the applicant had signed the application, and was responsible for its contents and that in the context of having confirmed that the information that was given in his various applications and supporting statements was correct, that if there were events of importance that were omitted that he should have required amendments to be made. If the applicant's request now is that the Court should listen to the tape to ascertain that the applicant had provided to the Tribunal the explanation that the omission of information in his various documents was due to his migration agent's failure, then this is a matter that clearly was put to him at the hearing, and which the Tribunal took into account. In those circumstances, I can see no need for the Court to intervene and listen to the tape of the hearing now simply to confirm a matter that was clearly dealt with by the Tribunal.

10. Specifically, the applicant sought the Court to intervene to allow him one more chance to explain his case in relation to the following points:

    1)To provide details about the six years when he claimed he was detained. The applicant was unable, and did not provide to the Court, an explanation for how this would have assisted him. He gave no specificity or real idea as to what these further details may be. In relation to this period, the Tribunal dealt with this in the context of the applicant's claim that he had been imprisoned from 1970 to 1976 as a result of his practice of Christianity. It is clear that the Tribunal did raise this issue at the hearing with the applicant (see CB 97.3) where the Tribunal says it asked questions about the claimed 1970 to 1976 detention. There is nothing in what the applicant has said to me at the hearing before me to suggest that that the Tribunal did not in fact ask him questions about this claimed detention and provide an opportunity for comment. His complaint in this regard appears to be that there were further details that he wished to put and is seeking now an opportunity to put those details before the Tribunal again. But he did not say what these details were. In this regard I note that the applicant was unable to explain how the tape of the hearing would assist him and further note that the applicant attended the hearing at the Tribunal accompanied by his adviser who made submissions on his behalf, and who could have made further submissions on behalf of the applicant following the hearing if the applicant felt that there was further detail that he should have provided and was able to do so.

    2)In relation to the applicant’s complaint that he wants another chance to explain the issue of his not mentioning his criminal record in the application for a protection visa, and his requiring a chance to explain the important points to the Tribunal in this regard, the relevance to the Tribunal decision was that his claim to have been detained as a result of his religious activities was first raised in his statement submitted to the Tribunal on 10 June 2003, and that in subsequent oral evidence before the Tribunal he raised for the first time a number of extra incidents involving detention, torture and physical mistreatment. Before me, in relation to this point, the applicant said that he did not think that he had made a mistake in omitting to mention that he had been convicted and detained in his original statement because as the detention was as a result of his religious activities he did not see this as a criminal matter and therefore did not need to raise it at that early stage. But it is clear that the Tribunal put this issue to the applicant at the hearing before it and gave him an opportunity to comment (CB 96.3). The applicant is reported as replying that he had been mistaken in his original omission, and that what he was now saying it was true. It is clear that the applicant was provided with an opportunity by the Tribunal to explain his later mentioning of claims that he had omitted in earlier accounts. In these circumstances I cannot see how listening to the tape of the hearing now would assist the applicant. Clearly he is asserting that the Tribunal did not raise this issue with him, but that he wants another chance to explain.

    3)In relation to the authenticity of the documents from the authorities in China and the conclusion made by the Tribunal I have already dealt with this point. The applicant has not said how the tape of the hearing would assist here.

    4)The applicant did not provide any further explanation as to what was meant by point 4 in the submission attached to the further amended application, and the claim that he wanted a further opportunity to explain the statement about persecution that he had suffered in China. I took this therefore to be a request that he wants another opportunity to argue his claims before a Tribunal.

1. It is clear that the Tribunal formed an adverse view of the applicant's credibility. The Tribunal dealt with each of the applicant's claims as put by the applicant, provided him with an opportunity to comment on matters which the Tribunal considered adverse to his claims including providing him an opportunity in writing to comment on adverse information that the Tribunal had in relation to corroborating material that he had provided to the Tribunal subsequent to the hearing before it. The Tribunal gave reasons for its adverse credibility findings and these findings were open to it on the material before it. The Tribunal was not satisfied that the applicant was a person to whom Australia owed protection obligations. The applicant has not been able to show jurisdictional error on the part of the Tribunal, nor can I see any such error in how the Tribunal has approached its task and made its decision. Accordingly this application is dismissed.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  Sybilla Waring-Lambert

Date:  5 August 2005