SZEPI v Minister for Immigration

[2006] FMCA 153

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEPI v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 153

MIGRATION – Refugee – applicant provided with a fair hearing – no bias or apprehension of bias – no lack of good faith on the part of the Tribunal – Tribunal made reference to inconsistencies between the evidence provided by the applicant at the hearing before it and information contained in the application for a protection visa – this information should have been put to the applicant in writing – Tribunal’s noting of these inconsistencies were not integral to the Tribunal's decision – Tribunal's decision stood on two separate and independent bases – applicant republished his protection visa application claims – no jurisdictional error – application dismissed.

Migration Act 1958, ss.422B, 424, 424A, 424A(1), 424A(2), 424A(3)(a), 441A

Minister for Immigration & Multicultural & Indigenous Affairs v Jia [2001] HCA 17
Re Refugee Review Tribunal Ex parte H [2001] HCA 28
NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241
NAHT of 2000 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1049
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
QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92
VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123
VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965
SZDXC vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1306
MZWPK vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1256
VCAD vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 1
Al Shamry v Minister for Immigration & Multicultural Affairs [2000] FCA 1679
SZEKY vMinister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1138
SZFKL vMinister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 931
SZERV v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1221

Applicant: SZEPI

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3128 of 2004

Judgment of: Nicholls FM

Hearing date: 03 November 2005

Date of Last Submission: 31 October 2005

Delivered at: Sydney

Delivered on: 23 February 2006

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Ms. T. Wong

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The Refugee Review Tribunal be joined as the second respondent in these proceedings.

2. The application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3128 of 2004

SZEPI

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT

1. This is an application filed in this Court on 20 October 2004 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 25 August 2004 and handed down on
   21 September 2004, to affirm the decision of a delegate of the respondent Minister made on 6 February 2004 to refuse a protection visa to the applicant. The Tribunal is joined as the second respondent in these proceedings. 

2. The applicant is a national of the People's Republic of China who arrived in Australia on 7 December 2003 and lodged an application for a protection visa on 7 January 2004. The applicant's claims are set out in his application for a protection visa reproduced at Court Book (“CB”) 1 to CB 28, and in particular in a declaration at CB 25 to CB 28, in his application for review (CB 42 to CB 45), and in an attached statement at CB 46 to CB 50. The applicant’s claims at the hearing before the Tribunal on 23 August 2004 are set out in the Tribunal's decision record together with the other claims made by the applicant. The Tribunal's decision record is at CB 83 to CB 95 and its account of what occurred at the hearing before it is at CB 89.8 to CB 92.2. Further and relevantly, the Tribunal wrote to the applicant by letter dated
   21 April 2004 pursuant to s.424A of the Migration Act 1958 (“the Act”) (CB 53 to CB 54), and the applicant's response is reproduced at CB 57 with annexures to CB 66.

3. Essentially the applicant claimed to fear persecution in China because of his political opinion. The applicant claimed to have been employed as a public official in the Price Administration Bureau in his home city in China. He claimed to have attended a political study class for public officials sometime in 2003 and during one of the classes expressed an opinion promoting a system of multiparty democracy in China as one means to “destroy” or reduce corruption. He claimed that in June to July 2003 he was subjected to investigation by the PRC authorities, and in particular the local Public Security Bureau (PSB), and the National Security Bureau (NSB). He claimed that this brought him under considerable, and in particular, mental pressure. He claimed also to have formed a political organisation with three others which spread its political opinions in the applicant's local area mainly by distributing pamphlets. He claimed further that in November 2003 he attended another one-week political class and again announced his political views on a multiparty system in China, and that this again brought him to the attention of the authorities and that he was again investigated by the PRC authorities. He claimed to have left China following this because he had become involved in an active and widely spread political organisation spreading dissident opinions. He stated that after he left, three colleagues were arrested by the authorities in China. He feared he would be subjected to persecution on return because “his organisation” had been classified as an “anti-government organisation”, that his political opinions were not tolerated, that he had already come to the special attention of the PRC authorities, and that all members of “his organisation”, except for him, had been arrested. He further claimed that his parents had been subjected to questions by the PSB in China since his departure, and that his home had been searched by the police.

4. The Tribunal's “Findings and Reasons” are set out in its decision record reproduced at CB 92.3 to CB 95.6. The Tribunal found that the applicant had travelled to Australia on a “falsified passport” under a different name (CB 92.4). The Tribunal accepted that if the applicant had feared arrest he could well have feared that he would be unable either to obtain a passport in his real name or use it to leave China. However, the Tribunal found that even if it did accept that the applicant was motivated by fear it was not satisfied that the applicant provided a credible explanation as to why he did not reveal his true identity after his arrival in Australia (CB 92.8). The Tribunal noted the scale and consistency of the applicant's misrepresentations in this regard, and also noted that the explanation relied on by the applicant, that he did not know anything about Australia or Australians, was countered by the fact that throughout the relevant period he had access to his agent’s professional advice (CB 93.1 to CB 93.3). The Tribunal concluded in this regard that the applicant's lack of truthfulness in this area raised serious doubts about the truth of his other claims (CB 93.8).

5. The Tribunal further found that its doubts as to the credibility of the applicant's account was reinforced by inconsistencies between his written claims in his protection and review applications and his oral evidence to the Tribunal. This was in relation to his claims relating to dates and details of his education and work history (CB 93.9 to CB 94.2). In relation to his political activities in China, the Tribunal was not satisfied that the applicant had provided a credible account. The Tribunal looked at the applicant's claims relating to his attendance at political education classes and the investigation for two months by police and other PRC officials on two occasions. The Tribunal found that the applicant provided no details about the nature of these investigations (CB 94.5), and that when the Tribunal invited him to explain what had happened, he was unable to supply any further detail beyond saying that the authorities investigated why he was in favour of a democratic opposition party (CB 94.5). The Tribunal also made reference to its question at the hearing that it conducted with the applicant, as to how it had been possible for him to retain his mid-level government position after he expressed his political opinion on two occasions, and had been investigated on suspicion of contact with the illegal political organisation. It was not satisfied that if he had been investigated at such length, and on such a serious matter, that he would be unable to provide any details of such an obviously significant and worrying event in his life (CB 94.6). Nor was the Tribunal satisfied as to the applicant's credibility of his claim that he was able to continue in his government position after the first incident in May 2003, and following a subsequent two-month investigation (CB 94.7). Again the Tribunal found (CB 94.8) that although the applicant claimed that the investigation following the November 2003 political education class was part of the reason he was forced to flee China, there was no indication in the applicant’s evidence that this incident had affected his government position in any way by the time he left China in early December 2003 (CB 94.9). The Tribunal’s doubts about the applicant’s political activities were reinforced by his account of the opposition political organisation he claimed to have formed with his friends. The Tribunal noted that despite a number of invitations from the Tribunal to provide any credible evidence about his own role in the organisation's activities, the applicant was unable to do so beyond the most elementary level (CB 95.1).

6. The summary of the Tribunal's analysis at CB 95.3 clearly shows that the applicant’s misrepresentation of his identity after he arrived in Australia, for which he provided no credible explanation, raised strong doubts as to the credibility of his claims concerning his reasons for fearing persecution in China, and that these doubts were reinforced by inconsistencies in his claims, and his failure to provide a credible account of his claimed political activities, or the investigations he says they attracted. In all, the Tribunal was not satisfied that the applicant had ever expressed political opinions in favour of democratic reform in China, or had ever been investigated because of this reason. Nor was it satisfied that the applicant had ever belonged to an opposition political organisation or that he had ever been targeted by Chinese authorities. For these reasons the Tribunal was not satisfied there was a real chance he would face serious harm amounting to persecution for a Convention reason if he went back China. It was not satisfied that the applicant was a person to whom Australia owed protection obligations under the Refugees Convention.

7. The applicant, with some reference to particulars, puts forward two grounds of review in his application to this Court. He claims error of law and procedural error in the Tribunal's decision constituting a denial of natural justice. In effect, the applicant's complaints can be seen as:

   1)That the Tribunal failed to provide the applicant with a fair hearing.

   2) That the Tribunal failed to comply with its obligations under s.424 of the Act. (I read this in context to be a complaint concerning s.424A of the Act).

8. The applicant appeared unrepresented before me. I note relevantly from the Court’s file that he did access the Court’s Legal Advice Scheme and was provided advice on 4 February 2005 by a lawyer on the panel of that scheme. The applicant was assisted by an interpreter in the Mandarin language. At the hearing before me Ms. Wong appeared for the respondents. At the hearing the applicant complained that the Tribunal was biased against him, and that was demonstrated in the Tribunal’s reliance in its decision record on the fact that the applicant had not revealed his true identity. The applicant complained that the Tribunal based its decision on his credibility, that is, the lack of credibility, and that this was derived from the issue of his identity. He further claimed that China is a country without “true freedom and democracy” and that he could not tell the authorities his true identity otherwise he could not have fled from China. The applicant further claimed that he was justified or vindicated (he did not use these exact words, but this is the meaning that I understood) in maintaining his position in not revealing his “true identity” to the Tribunal as he was not sure that the Tribunal could keep it “a secret”, and that this is shown by the fact that his file was “mixed up” with somebody else’s file. The applicant stated:

   “That means if I told my true identity in the beginning when I just arrived in Australia then some matters like people can mix up our documents will happen and my identity will be disclosed to the public.”

   It became clear during the course of the hearing that the applicant, and the panel adviser appointed pursuant to the Court’s Legal Advice Scheme to provide him with advice, were originally sent a court book that contained details relating to another person. It emerged that the original Court Book that was sent to the applicant, and the first panel adviser, did indeed contain material relating to another person. Ms. Wong tendered, and I subsequently marked as Respondent’s Exhibit (“RE” 1), a letter dated 25 October 2005 from the respondent’s solicitors to the applicant, advising the applicant that due to “a printing error” the court book that he had received contained documents which were not relevant to his proceedings and enclosed a supplementary court book filed in Court on 25 October 2005 containing all relevant documents to his proceedings (I should note that this court book was not marked as a supplementary court book and was the only court book in the Court’s file at the time of the hearing before me). The respondent’s solicitors also sought advice from the applicant as to whether he intended to request an adjournment of the hearing that had been scheduled before me.

9. I note the following that:

   1)The applicant made no request for any adjournment in the hearing of his matter before the Court.

   2)There is clearly some doubt about the legal advice provided by the panel lawyer on the Court’s Legal Advice Scheme as this advice would have been based on material not relevant to the applicant. On this basis I made directions that the Court registry was to obtain the services of a different panel adviser and to facilitate a consultation between the applicant and this second adviser as quickly as possible. I gave the applicant a week from the date of consultation to make written submissions to the Court, on any relevant matters, in light of this advice. I ensured that the applicant understood the process that I had put in place.

   3)The applicant did receive such advice following a consultation on 9 December 2005, but to date no further submissions have been received from the applicant.

   4)I have referred the situation concerning the first panel adviser to the relevant persons in the Court’s registry for their consideration. 

10. In looking at the applicant's complaint as to the “mix up of documents” and how it may go to the issue of showing error on the part of the Tribunal, the following complaints may be discerned from what he said:

    1)The “mix up” of documents prepared for the Court Book supported his contention that he was “justified” in being wary and not disclosing his real identity before the Tribunal.

    2)Bias on the part of the Tribunal as shown by how it dealt with the identity issue.

11. It is clear that any “mix up of documents” did not occur before the Tribunal. The “mix up” occurred subsequent to the Tribunal's decision, in fact subsequent to the applicant making his application to this Court. The documents relating to another matter that were “mixed up” were provided, by error, in the Court Book prepared pursuant to orders made at the first Court date in this matter for the purposes of the litigation before me. There was no “mix up” before the Tribunal. Further, the Tribunal had no role in the preparation of the Court Book such that it could be said to have any role, let alone responsibility, for the error that occurred. The “mix up” should not have happened. But it in no way shows error in the Tribunal’s decision, or even for that matter, explain the applicant’s actions before the Tribunal which clearly predated the “mix up”.

12. The applicant's complaint that the Tribunal was biased in that it made the findings relating to his credibility arising out of the issue of his identity, cannot be sustained on the material before me. The relevant test for bias, of course, is that allegations of bias, whether actual bias, or the apprehension of bias, are dependent on an understanding that these 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. An allegation of actual bias carries 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 more that just the conclusion reached by the Tribunal to support this claim. Allegations of alleged apprehension of bias 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]). The applicant's reliance on the Tribunal's decision record to show bias is in the circumstances before me clearly insufficient to make out this allegation. Nor does any mistake on the part of the Minister’s solicitors or those preparing the Court Book before this Court now go to show, in any way, bias on the part of the Tribunal in the making of its decision.

13. Further, nor does any mix up now show any other error on the part of the Tribunal. Clearly the issue of the applicant's identity was a relevant issue before the Tribunal, and was a factor leading to the Tribunal's ultimate decision. In its decision record at CB 93.7 the Tribunal stated:

    “The Tribunal finds that the applicant's lack of truthfulness in this area (applicant's identity) raises serious doubts about the truth of his other claims.”

    The applicant complains now that the reason he continued to make false claims about his true identity after reaching Australia was that he was fearful that because of “mix ups” his identity would be disclosed to the public. The Tribunal's decision record, which remains unchallenged by any other evidence to the contrary before me, reveals that this identity issue and the applicant’s actions in this regard were discussed at the hearing the Tribunal conducted with the applicant (CB 90.4 to CB 90.10). In its decision record the Tribunal clearly deals with the explanations provided by the applicant as to why he had continued to make false claims, and how these misrepresentations as to his identity, together with other inconsistencies in his claims, led to the Tribunal's adverse credibility finding against the applicant.

1. The Tribunal decision record and its “Findings and Reasons” at CB 92.5 to CB 93.8 covers this situation. The Tribunal accepted (CB 92.7) that a falsified passport would offer the applicant a way out of his difficulties, as it accepted that if the applicant had indeed feared arrest he could well fear that he would be unable to either obtain a passport in his real name, or use it to leave China. But the Tribunal found (CB 92.8) that even if it did accept that the applicant was motivated by fear of arrest, it was not satisfied that the applicant had provided a credible explanation as to why he did not reveal his true identity, and other basic facts about himself when he arrived in Australia and sought Australia's protection. It noted:

   a)That when the Tribunal asked the applicant why he had continued to make false claims after reaching Australia he had said he did not know anything about Australia or Australians. The Tribunal did not accept this explanation (CB 93.1).

   b)The Tribunal noted that the applicant had had access to his agent’s professional advice, and nor did it accept that the applicant was unaware that the information contained in his applications were untrue. It found that given the scale and consistency of the misrepresentations it did not accept the applicant's alternative suggestion that some mistake must have been made in the process (CB 93.3).

   c)The Tribunal also noted that the applicant had told the Tribunal that he was afraid to reveal his true identity because he feared pursuit by the Chinese authorities. The Tribunal was not satisfied that this claim was credible (CB 93.4).

   d)It also noted that in his statutory declaration of 16 May 2000 the applicant claimed another reason for not revealing his real identity was that he was protecting his friend who had arranged the falsified passport for him. Again the Tribunal did not accept this claim and did not find it credible (CB 93.6).

   e)The Tribunal did not accept the applicant's explanations as to why he misrepresented his true identity after his arrival in Australia. It noted that it was 5 months after his arrival, and only after a letter from the Tribunal citing evidence of photo substitution in his passport, that the applicant admitted the truth (CB 93.8).

2. In dealing with all of this the Tribunal plainly addressed a number of explanations provided by the applicant. None of these explanations contained anything that resembles the applicant's explanation put forward now that he was fearful of his identity being publicly revealed due to a “mix up”. There is nothing before me to show that the applicant ever put this explanation to the Tribunal, even in circumstances where a number of other explanations were put forward. Clearly the applicant had a number of opportunities before the Tribunal, either at the hearing, or by way of declaration or submission, to have put forward this particular explanation and I note that he did not do so. The fact that he has put it forward now, subsequent to the Tribunal decision, does not affect the Tribunal's findings and approach, which clearly dealt with the situation that was presented to it, and in respect of which opportunities were given to the applicant to provide explanations. This complaint does not succeed.

3. The applicant’s first complaint in his written application is that the Tribunal failed to give him any fair chance to make his claims at the hearing conducted by the Tribunal. He claims to have been “interrupted” many times, and that the Tribunal did not give sufficient time to the interpreter to complete the interpretation. Further, he claims the Tribunal treated him “rudely”, which led him to have doubts as to whether or not the Tribunal really wanted to consider his application “fairly” and “carefully”. He also claimed that the Tribunal tried to mislead him so as to “search” for the reason to refuse his application. This claim again could possibly be seen also as a complaint that the Tribunal was biased, or acted in a way where the apprehension of bias could be said to arise.

4. In this regard the application to this Court was made on the 20 October 2004. The applicant attended at the first Court date on 3 November 2004, and was assisted by an interpreter in the Mandarin language. On that date he signed short minutes of order, that subsequently by consent became orders of the Court, which included:

   “2.The applicant file and serve any affidavit containing additional evidence relied upon including transcript of the Tribunal hearing by 4 February 2005.”

   The applicant has had notice of the opportunity to prepare and file a transcript of what occurred at the hearing with the Tribunal. In the absence of any evidence to the contrary, or any evidence to support the applicant’s assertions now, the applicant on the material before me cannot make out his complaint that the Tribunal did not provide a fair hearing or that the Tribunal was biased, (including apprehended bias) in its approach to making its decision in this case: NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 at [21]. Nor has the applicant taken the opportunity to put forward any written submissions on this point even with the benefit of legal advice now (on this occasion with the version of the Court Book devoid of material not relevant to the applicant).

5. Further, as Ms. Wong submits, the only evidence before the Court of the conduct of the Tribunal is its letters to the applicant, and its decision to refuse the applicant a protection visa and there can be no claim of a lack of good faith on the part of the Tribunal where the only evidence demonstrates the Tribunal has made “an honest and genuine attempt to undertake the task required by the of legislation”: NAHT of 2000 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1049 at [36] per Beaumont J.

6. The applicant also claims the Tribunal failed to comply with its obligations pursuant to (as I understood it) s.424A of the Act. The applicant's specific complaint is that the Tribunal failed to:

   1)Provide the applicant “complete” independent country information which was used in its reasoning.

   2)Explain to the applicant the information used in the decision.

   3)Ensure that the applicant fully, and completely, understood the information used in the decision.

   4)Provide the applicant with information by one of the methods specified in s.441A of the Migration Act.

7. I agree with Ms. Wong’s submission that there are three categories of information referred to in the Tribunal's decision record which potentially could be subject to obligations pursuant to s.424A of the Act:

   1)The independent country information relied upon by the Tribunal in reaching its ultimate decision.

   2)Information referred to by the Tribunal in making its findings in relation to the applicant's identity, and his “misrepresentation” of his true identity after arrival in Australia.

   3)Information from the applicant's application for a protection visa used to demonstrate inconsistencies between that application and evidence given at the hearing before the Tribunal.

8. In relation to independent country information relied on by the Tribunal, it is not apparent that the Tribunal relied upon any independent country information other than that set out in its letter sent to the applicant pursuant to s.424A of the Act (CB 53 to CB 54). This was information that the Tribunal obtained from the Australian Consulate-General in Shanghai relating to allegations involving a number of people who entered Australia, and whose passports were then used subsequently by others using a false identity to enter Australia. The Tribunal clearly provided this information to the applicant in writing, and clearly explained to the applicant the relevance of this information to his application in that it had been alleged to the Tribunal that he was one of the people who had entered Australia using a passport in which his photograph had been substituted for that of the original passport holder. To the extent that any such information was personal to the applicant, then this was clearly put to the applicant in the manner required by the relevant legislation, that is, pursuant to s.424A(1), and in writing, as essentially required by s.424A(2) of the Act, as held by the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 (“SAAP”). The letter was sent to the applicant's migration adviser in compliance with the applicant's direction in his application to the Tribunal (CB 43), and a copy was sent to the applicant at the mailing address which he had provided to the Tribunal (CB 42). To the extent that other aspects of this information were not specifically about the applicant, then I accept Ms. Wong’s submission about the application of s.422B of the Act to the circumstances of the case before me, and that these aspects of the information would be excluded from the requirement to be specifically put to the applicant pursuant to s.424A(1) by the operation of s.424A(3)(a): Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 and QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92.

9. In this regard also, information referred to by the Tribunal in reaching its conclusion set at CB 92 to CB 93 that the applicant “misrepresented” his true identity (the second category of information), was information that was the subject of the letter sent to the applicant pursuant to s.424A of the Act. As set out above, this letter was sent to the applicant’s authorised recipient for correspondence, with a copy sent to the applicant. In any event I note that the applicant responded to this letter by way of his Statutory Declaration declared on 16 May 2004 that he provided to the Tribunal (CB 57 to CB 58). Paragraph 1 of that Declaration specifically states:

   “I have considered the information and evidences provided by the Refugee Review Tribunal on 21^st April 2004, in relation to my claims for a Protection Visa (866).”

   In all these circumstances the applicant cannot complain now that the Tribunal failed to provide him with this information, or that it failed to explain the relevance of this information to the decision that it ultimately made.

10. The third category of information to which the Tribunal's decision makes reference was to compare information contained in the applicant's application for a protection visa with information given by the applicant in writing to the Tribunal, and with evidence provided during the hearing before the Tribunal. Relevantly, at CB 93.9 the Tribunal makes reference to two sets of inconsistencies:

    1)Evidence in the application for a protection visa that the applicant received 14 years of formal education in Suzhou City (in China) culminating in a university degree in 1982, and compares this with oral evidence given to the Tribunal that he received only seven or eight years of formal education, obtained in a different city.

    2)Evidence in the application for a protection visa that the applicant was employed at the “Price Bureau of Suzhou City” (from May 1983 to November 2003) with evidence that he gave the Tribunal at the hearing before it, that he had only worked in this position “for a few months”.

    On their face these circumstances could provide the basis of concern in light of the dicta of the Full Federal Court in Al Shamry v Minister for Immigration & Multicultural Affairs [2000] FCA 1679 (“Al Shamry”) about the meaning of “application” and what constitutes information given to the Tribunal for the purposes of the application before it as opposed to information given in the protection visa application. When seen in light of the High Court decision in SAAP such information may be required to be put to an applicant, essentially in writing.

11. Ms. Wong referred me to VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123 at [33] per Stone and Finn JJ., who provided the following guidance regarding the interpretation of s.424A of the Act:

    “It commonly is the case that the detail and complexity of the case advanced by a visa applicant, and the information that is given and garnered for the purposes of considering it, results in the Tribunal being confronted with issues that may be of varying importance, relevance and centrality both to the decision to be taken and to the reasoning that in the event sustains that decision. While the reasoning process may advert to, and express views on, such issues, all will not necessarily constitute part of the reason for the Tribunal’s decision. Tribunals, no less than courts, engage in their own species of dicta often enough for reasons related to haste and pressure in composition. When a Tribunal’s reasons are to be evaluated for s 424A(1) purposes, the Court as a matter of judgment is required to isolate what were the integral parts of the reasons for the Tribunal’s decision.”

    Further I also note the relevant principle as stated in VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 at [33] per North J:

    “As referred to earlier in these reasons, there were four independent bases for the decision of the Tribunal in this application. There was no challenge to the second basis of the Tribunal’s decision and I have rejected the challenges to two of the other bases. SAAP does not stand for the proposition that if there be a breach of s 424A in relation to one ground upon which a decision is made, and there exists one or more other grounds upon which the decision is not or cannot be impeached, the decision nonetheless falls. SAAP was itself a case in which the only ground relied upon was a ground on which jurisdictional error was established. There was therefore no other basis upon which the decision in that case could be upheld. In the present case there are three other bases upon which the decision may be supported.”

    This was followed and applied by Hely J., in SZDXC vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1306 [12] and [17] and Heery J., in MZWPK vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1256 at [13] and cited with approval by one member of a Full Court in VCAD vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 1 at [22]. The critical issue therefore, given that the Tribunal may have breached the requirement of s.424A (as understood in the context of SAAP) in relation to one ground upon which the decision was made, is whether there is one or more other grounds on which the decision was based, which cannot, or are not, impeached. That is, whether there was another separate basis, or bases, upon which the decision may be supported. It is clear that the Tribunal in the case before me did make a reference to inconsistencies between the evidence provided by the applicant at the hearing before it, and information contained in the application for a protection visa. The affect of the majority decision in SAAP and the dicta of the Full Court in Al Shamry, is that potentially this information should have been put to the applicant in writing pursuant to s.424A(2) of the Act. However, I accept Ms. Wong's submissions that the Tribunal’s noting of these inconsistencies above would not be considered integral to the Tribunal's decision. She submitted that the passage that refers to these inconsistencies is brief in comparison to the Tribunal's other key conclusions. However, it is not so much the brevity of the reference that I find persuasive, but that it is clear that the Tribunal's decision did stand on two separate and independent bases that are independent of the references in relation to these inconsistencies.

12. In relation to the issue of credibility, the Tribunal had already come to a clear finding at CB 93.8 about the applicant’s truthfulness before it looked at the inconsistencies:

    “The Tribunal finds that the applicant's lack of truthfulness in this area raises serious doubts about the truth of his other claims.”

    While the Tribunal expressed doubts about some of the applicant’s other claims, in the context of an adverse credibility finding, it had no doubt about the applicant’s lack of truthfulness arising from the area of his continuing to make false claims about his identity after arriving in Australia. It was clear that the issues relating to the applicant's identity and the applicant's failure to adequately explain, in the Tribunal's view, why he had continued to make false claims after he had reached Australia, and the Tribunal's failure to accept the applicant's explanations, was not dependent on any subsequent finding of inconsistencies (as set out in paragraph 23 above) in the applicant's claims relating to his education and employment. Further, it is quite clear that on a plain reading of the Tribunal's decision record, and the Tribunal itself says this at CB 93.9, that the doubts as to the credibility of the applicant’s account are “reinforced” by these other inconsistencies. Clearly the finding of “untruthfulness” and the doubts that this cast on other aspects of the claims were not primarily, or eventually, dependent upon these inconsistencies.

13. At the hearing before me Ms. Wong, with reference to this third category of information added to her written submissions, a reference to the decision of Lindgren J., in SZEKY vMinister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1138 (“SZEKY”). She submitted that there was yet another reason as to why s.424A of the Act does not apply to the inconsistencies noted in the passage of the Tribunal's decision at CB 93.8 to CB 94.3, and that was with reference to paragraph 23 of the decision in SZEKY at [23]:

    “The present case is not one in which the Tribunal relied upon the information stated in the visa application in the sense of accepting it. Far from accepting that, as the appellant there alleged, he requested a transfer to escape an environment repugnant to his conscience, the Tribunal member either accepted the evidence given by the appellant on the hearing or, at least, noted the inconsistency between the two accounts without preferring one or the other.”

    Ms. Wong’s submission was that the following passage in the Tribunal's decision record mirrors this situation:

“There is no independent evidence before the Tribunal to support either version of the claims and the Tribunal is unable to be satisfied as to which version may be true [that is, the versions found in the primary visa application and the version put to the Tribunal]. Given that one version at least must be untrue the Tribunal finds that the discrepancies cast further doubts on the credibility of the applicant’s other claims.” (CB 94.3)

1. I accept Ms. Wong’s submission in this regard in that in referring to the “inconsistency” the Tribunal has not made a clear finding in relation to accepting one particular version over the other. Critical to the Tribunal's approach is that it is not so much which version is correct, but that one version, given the contradictions between the two versions, must be untrue. In these circumstance the Tribunal cannot be satisfied as to which version this may be. It is the discrepancy, that is, the inconsistency itself that casts further doubt on the credibility of the applicant’s other claims, and it is not in the sense that the Tribunal has relied on the inconsistency to make a clear finding by preferring one account over the other. I note that his Honour's decision in SZEKY was on appeal from this Court, and I agree with Ms. Wong that it is directly applicable to the circumstances before me.

2. Further however, the Tribunal's rejection of the applicant's claims in relation to his political activities, which were of course the central basis of his claim to fear harm and persecution in China, were clearly rejected on the basis that the applicant did not provide details about the nature of the investigations that he claimed had occurred, and that when he was invited to explain what had happened he was unable to supply any further details beyond a “mere” statement that the authorities investigated his proposing of a democratic opposition party. Further, the Tribunal clearly found that it was not satisfied as to the applicant's claims in this regard, and consequently his credibility as it arose from this set of circumstances, given that he was able to continue in his government position after the first incident which he claimed occurred in May 2003, and following a subsequent two-month investigation. Further, it stated that its doubts about the applicant's political activities were reinforced by the applicant’s account of the opposition political organisation he had claimed to have formed with friends, given that at the hearing before it he was unable, despite a number of invitations from the Tribunal, to provide any credible evidence about his own role in the organisation's activities. It is clear that it was the misrepresentation of his identity which gave rise to doubts about the credibility of his other claims. But it was the failure of the applicant to provide a credible account of his claimed political activities, or the investigations that he claimed followed these activities, that were the integral parts of the Tribunal's decision. I accept Ms. Wong's submission that in these circumstances the inconsistencies referred to by the Tribunal between the applicant's claims in his protection visa application and his claims at the hearing were only seen by the Tribunal as reinforcing its findings, and were not the actual basis of its findings in this regard.

1. In the alternative Ms. Wong submitted that the applicant had in any event republished his protection visa claims to the Tribunal (CB 90), and that therefore it was not a requirement that the claims, and the inconsistencies which subsequently arose, be put to the applicant for his comment. The respondent relies on SZFKL vMinister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 931, SZERV v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1221 and SZEKY. I note in particular and relevantly in SZERV 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 SZFKL at [7] and [8]:

   “[7] Counsel for the Minister felt it appropriate to consider the correctness of the Federal Magistrate’s decision in the light of the recent decision of the High Court in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24. As Counsel points out, in this case the Tribunal’s finding relied on inconsistencies between the written claims submitted with the visa application and the appellant’s evidence at the Tribunal hearing. However, these inconsistencies were brought to the appellant’s attention during the Tribunal hearing and he confirmed to the Tribunal member that he was satisfied of the accuracy of the information in his visa application and the supporting statement. Thus, all relevant information relied on by the Tribunal, as distinct from its reasoning processes, which did not involve reference to other factual material of substance, appears to be information that the appellant gave to the Tribunal for the purpose of the application to the Tribunal. That is to say, s 424A of the Act would not apply because any possible information falls within the purview of subs (3)(b) as being information ‘that the applicant gave for the purpose of the application.

   [8] This submission appears to me to be correct.”

2. In the case before me, the Tribunal's decision record of what occurred at the hearing with the applicant, which remains unchallenged by any contrary evidence by the applicant before me now, shows that the Tribunal specifically asked the applicant at the hearing about the personal data provided in the protection visa application, and the process or means by which it had been provided. The applicant was given the opportunity to address this information and the Tribunal made reference at the hearing before it to the accuracy of the information provided by the applicant in his protection visa application. It also made specific reference to the applicant's personal details, educational achievements, and employment history. In other words the Tribunal’s reference in its “Findings and Reasons” to the inconsistencies in the applicant’s claims in this regard were brought to the applicant’s attention at the hearing. The applicant was put on notice as to the inconsistencies in the two versions and was given the opportunity to comment. The Tribunal clearly did not prefer one version over the other but focussed on the inconsistency. In all these circumstances therefore, I accept the submissions made by Ms. Wong in this regard. The applicant's second ground of review should for all the reasons above be rejected.

3. The Tribunal clearly considered the applicant's claims as put by the applicant, including those put at a hearing before the Tribunal. The Tribunal's account of what occurred at the hearing as set out in its decision record is unchallenged by anything put by the applicant before me by way of other evidence. It is clear the Tribunal had concerns about the applicant's credibility, and the truth of his claims arising from these issues relating to the applicant's identity on arrival in Australia, and his continuing to make false statements after reaching Australia. But the Tribunal separately found that the applicant had not provided sufficient details about the claimed events which gave rise to his fear of persecution in China, and that when he was invited by the Tribunal to provide further details, and explanation, he was not able to do so to a level so as to satisfy the Tribunal that he was a person to whom Australia owed protection obligations. In all the circumstances before me, I can see no jurisdictional error in the Tribunal’s decision. The application is dismissed.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Nicholls FM.

Associate: Wagma Aziza

Date: 23 February 2006