SZEQM v Minister for Immigration
[2006] FMCA 195
•15 February 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEQM v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 195 |
| MIGRATION – Review of decision by Refugee Review Tribunal – refusal to grant protection visa – s.425 – s.424A – independent country information – information in protection visa application given by applicant to tribunal. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 424; 425; 474; 483 |
| SZEKY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1138 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572 QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 SZBNQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1033 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 SZDQL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 769 SZDMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1034 |
| Applicant: | SZEQM |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG3246 of 2004 |
| Judgment of: | Emmett FM |
| Hearing date: | 6 February 2006 |
| Date of Last Submission: | 6 February 2006 |
| Delivered at: | Sydney |
| Delivered on: | 15 February 2006 |
REPRESENTATION
| The Applicant appearing on her own behalf |
| Solicitors for the Respondent: | Mr A. Cox |
ORDERS
That the Applicant be granted leave to add as a Second Respondent nunc pro tunc the Refugee Review Tribunal.
That the Refugee Review Tribunal be joined as Second Respondent.
The applications before this Court are dismissed.
That the Applicant pay the First Respondent’s costs in an amount of $4500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3246 of 2004
| SZEQM |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and s.483 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 30 September 2004 to affirm the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Delegate”) not to grant a protection visa to the Applicant.
The Applicant is a 48 year old woman who claims to be a citizen of the Peoples Republic of China (“PRC”).
The Applicant arrived in Australia on 18 February 2004, having departed the PRC via Huanggang Airport on a passport issued in her own name.
On 5 April 2004, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.
The Applicant claimed that she was persecuted in the PRC by reason of assistance she rendered to Falun Gong members.
On 14 April 2004, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia owes protection obligations under the Refugee Convention.
On 18 May 2004, the Applicant filed an application for review before the Tribunal. On 3 September 2004 the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 3 November 2004, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
The Tribunal proceeding
The Tribunal had before it the Department’s file, including the application for a protection visa and the Delegate’s decision record.
The Applicant attended the hearing on 12 August 2004 and gave oral evidence in support of her claims.
The Applicant claimed that she is a national of the PRC.
The Applicant claimed that she had to leave the PRC as she was being persecuted by Chinese authorities for reason of her political opinion and actions against the Chinese government.
The Applicant described these actions taken against the government as referring to an incident on or about 6 September 2003 when she assisted 3 Falun Gong practitioners at the request of her friend, Ms A, by giving them a room at the hotel. The Applicant claimed that, whilst she was aware that the 3 persons were in trouble and using forged identification cards, it was not until the next day that she discovered that they were Falun Gong practitioners being sought by the Public Security Bureau (“PSB”).
The Applicant stated that whilst she was not a Falun Gong practitioner herself, she felt compelled to help them because she “could not tolerate miserable and inhuman persecution on those Falun Gong practitioners by the PRC authorities.”
The Applicant referred to an incident when one of her husband’s relatives, Ms W, was tortured to death by the PSB for her involvement in Falun Gong. She claimed that it was on the basis of this incident that she “hated” the PSB and formed “political opions against the PRC authorities” that compelled her to assist the Falun Gong practitioners.
The Applicant claimed that the 3 Falun Gong practitioners stayed at the hotel for 3 days and then left using train tickets obtained by the Applicant through one of her friends who was a tourism guide.
Between September and November 2003, the Applicant claimed that she assisted Ms A to transport 12 Falun Gong practitioners from the north to south of the PRC by arranging accommodation at the hotel and obtaining train tickets. She claimed that this assistance occurred on
6 September 2003, 27 September 2003, 18 October 2003, 1 November 2003 and 22 November 2003.
The Applicant claimed that she had to stop assisting Ms A in December 2003 after police officers came to the hotel chasing Falun Gong practitioners and ordered the hotel to provide details of recent guests. She claimed that during this time all employees working between September and November 2003 were subjected to interrogation by the PSB.
Although the Applicant claimed that the PSB would not trace her assistance, as the Falun Gong practitioners she assisted had used fake identification to check in, she felt that she was in danger if they did discover the truth and so asked her friend Mr Z to arrange a visa for her to travel to Australia.
The Applicant claimed that on 5 January 2004 the PSB completed their investigation at the hotel checking the records and questioning employees.
The Applicant claimed that in early February 2004 she became in danger again after one of the Falun Gong practitioners she assisted was arrested and he confessed to the PSB that someone assisted him in Kaifeng City. Following the confession, Ms A was arrested on
15 February 2004 at which time the Applicant immediately escaped to Hong Kong on 17 February 2004 and left for Australia. Just prior to leaving Hong Kong for Australia, the Applicant claimed that she contacted her husband on the phone who informed her that the police had gone to her home in the PRC to arrest her.
The Tribunal asked the Applicant about her residential address in the PRC to which the Applicant replied that she lived in the Songdu hotel dormitory from 1999 until her departure and in Xi Xi Square prior to that. The Tribunal pointed out that this differed from her application for a protection visa in which she stated that she lived at Songdu Hotel from 1994. The Applicant replied, in a manner in which the Tribunal noted as “vague”, that she was officially registered at that address but she actually resided in a unit bought by her son in 1999. However, the Tribunal noted that when asked about where she resided, the Applicant replied that she resided at Songdu Hotel between 1999 and 2004.
The Applicant claimed that she purchased her ticket to Australia one week prior to departing.
The Applicant claimed that her husband and son are the only ones who know where she is and the PSB were visiting her house everyday.
When questioned by the Tribunal as to the whereabouts of one of her husband’s relatives, whom she claimed is a Falun Gong practitioner, the Applicant stated that she did not know where she was because she did not ask her husband those questions. Further, when asked the name of the relative, the Applicant stated that she did not know. The Tribunal noted that this was inconsistent with her claims in her application for a protection visa where she mentioned the relative by name and stated that she had been tortured to death. The Tribunal noted that the Applicant became “evasive [and] extremely vague” when explaining the discrepancies between her oral evidence and her statutory declaration in support of her application for a protection visa. When shown the passage in her statutory declaration where she identified the relative the Applicant stated that she did not understand that the Tribunal was asking her about that relative.
When the Tribunal asked the Applicant about Mr Z it noted that the Applicant replied that he was the manager at Songdu Hotel. The Tribunal noted that this was inconsistent with the Applicant’s statutory declaration which stated that Mr Z was a tourist guide. The Tribunal noted that the Applicant became evasive and stated that as the manager of the hotel, which itself contained travel agents, Mr Z was capable of organising visas.
The Tribunal noted that the Applicant also provided inconsistent oral evidence in relation to the assistance she claimed to have provided to Falun Gong practitioners at the request of Ms A. The Tribunal noted that the Applicant changed her answer several times, alternating between 1994, 1998 and 1999. The Applicant replied that, whilst she remembered the dates when drafting her statutory declaration 6 months ago, she could not remember the dates now. The Tribunal pointed out to the Applicant that her statutory declaration was made only 4 months ago and noted that the Applicant “became extremely agitated, raising her voice and adopted an aggressive tone. She stated that the manner in which she is being questioned is similar to the way the Chinese authorities question people.”
The Tribunal further noted the inconsistencies in the Applicant’s evidence in respect of Ms A. During oral questioning, the Applicant stated that Ms A continued to work at the hotel and was not in fact arrested as she claimed in her statutory declaration. The Applicant stated that her statutory declaration was a mistake.
When asked by the Tribunal why it had taken six weeks to apply for protection once in Australia, the Applicant stated that she only decided to apply for protection once she called home and found out that the situation was serious.
The Tribunal found the Applicant to be a witness of little credibility or truthfulness. In coming to this conclusion the Tribunal had regard to:
a)The inconsistencies between her oral evidence and statutory declaration in respect to when and how many times she assisted Falun Gong practitioners. The Tribunal noted that whereas her statutory declaration contained specific and exact details her oral evidence was “vague, evasive, inconsistent and unconvincing”.
b)The inconsistencies between the Applicant’s oral evidence and statutory declaration in respect of Mr Z. The Tribunal did not accept as satisfactory the Applicant’s explanation that as a hotel manager he could also get visas. Accordingly, the Tribunal found the Applicant’s evidence in respect of Mr Z assisting her to obtain a visa as fabricated.
c)The inability of the Applicant to name the relative of her husband who she claimed in her statutory declaration had been tortured for being as a Falun Gong practitioner, when she provided specific identification in her statutory declaration. The Tribunal found the Applicant’s explanation that she did not understand the Tribunal to be referring to the relative mentioned in her statutory declaration to be implausible, given the repeated explanations of the inconsistencies that were identified to her by the Tribunal. Accordingly, the Tribunal found her evidence in this regard untruthful and unreliable.
d)The claim in the Applicant’s statutory declaration that Ms A was arrested was resiled from by the Applicant at the hearing. The Tribunal found that the contradictions in her account of Ms A to be evidence undermining the Applicant’s credibility.
e)The Tribunal noted that the Applicant provided no evidence to corroborate or support her claims. The Tribunal found, that given the severity of the claimed offences and level of interest in the Applicant by the authorities, it could reasonably be expected that there would be a summons or warrant to support her claims. The Tribunal further found that, given the Applicant’s husband continued to reside in their home in the PRC and their son is a police officer, any summons issued after the Applicant’s departure could reasonably be expected to have come to her attention through her family.
f)The Tribunal found that the Applicant had “a propensity to exaggerate and tailor her evidence in a manner which achieves her own purpose”. This finding led the Tribunal to conclude that the Applicant was of low credibility and does not accept that she was ever associated with or assisted Falun Gong practitioners. Further, the Tribunal did not accept that she was wanted by the authorities for assisting Falun Gong practitioners.
g)The Tribunal found that if she were under threat of persecution she would have left the PRC immediately upon being granted her visa and noted waited six weeks before departing the PRC.
h)The fact that the Applicant waited six weeks before applying for protection. The Tribunal found that if the Applicant was suspected of the offences she claimed and had a genuine fear of persecution then she would have applied for refugee status immediately.
Ultimately, the Tribunal concluded that the Applicant’s claims are untruthful and did not accept any of the Applicant’s evidence. Accordingly, the Tribunal affirmed the decision of the Delegate not to grant a protection visa to the Applicant.
The proceeding in this court
The Applicant appeared before this Court unrepresented but with the assistance of an interpreter.
Pursuant to Orders made on 12 November 2004, the Applicant filed an amended application on 4 April 2005 (“Amended Application”). The Applicant seeks review on grounds set out as follows:
“1. There was an error of law in the Tribunal’s decision constituting a jurisdictional error
2. There was procedural error in the Tribunal’s decision constituting an absence of natural justice.
Particulars
·I have found, according to the Migration Act 1958 (“Act”), that-:
Section 425. Tribunal must invite applicant to appear
…
The Tribunal failed to comply with its obligations under s.425 of the Act, because the Tribunal failed to arrange a fair hearing for me.
During the hearing, the Tribunal neither allowed me to completely and clearly explain my fear of being persecuted on my return nor gave me any chances to clarify my claims in relation to my application.
·I have found, according to the Act, that-:
Section 424A. Applicant must be given certain information
…
·The Tribunal failed to provide me complete independent country information at any time during its processing, neither before the hearing nor during the hearing. It has made it impossible for me to have a fair chance to make my comment on the independent country information, which has been used by the Tribunal as the main reasons to affirm the refusal decision of Immigration Departments of Multicultural and Indigenous Affairs (“the DIMIA”).
·The Tribunal failed to comply with its obligations under Section 424A of the Act, including-:
oThe Tribunal failed to provide me complete independent country information, which has been used as the reason, for affirming the unfair decision of the DIMIA. The Tribunal failed to explain to me, clearly and thoroughly, the information, he used in his decision, later on, will directly relating to my review application for DIMIA’s decision.
The Tribunal failed to ensure that I fully and completely understand the information that he would be used in his decision before and during the Tribunal. Particularly, the Tribunal failed to provide me the information by one of methods specified in Section 441A of the Act”.
It would appear that the Applicant relies on a claim in her amended application of a denial of natural justice by the Tribunal. In understand the Applicant to found this claims on 3 particulars:
a)A breach of s.425 in that the Tribunal “failed to arrange a fair hearing”.
b)The Tribunal did not allow the Applicant to “completely and clearly explain” her fear of being persecuted on her return nor gave her “any chances to clarify” her claims in relation to her application.
c)The Tribunal was in breach of s.424A of the Act in that it failed to provide the Applicant with “complete independent country information” to which the Tribunal had regard prior to the hearing or during the hearing. In its breach of s.424A the Tribunal failed to ensure that the Applicant understood how the independent country information would be used.
I shall deal with each of those headings below.
a) A breach of s.425 in that the Tribunal “failed to arrange a fair hearing”
Relevantly, s.425 of the Act obliges the Tribunal to invite the Applicant to appear at a hearing before it (s.425(1)).
On 27 May 2004, the Tribunal wrote to the Applicant at the mailing address identified by her in her application for review to the Tribunal received on 18 May 2004. The Tribunal also sent the invitation to the Applicant’s home address and the address on the Applicant’s authorised recipient as identified on the application for review.
The letter notified the Applicant that the Tribunal had considered the material before it in relation to her application but was unable to make a decision in her favour on that information alone. The Applicant was also invited, inter alia, to send any further documents or written arguments that she wished the Tribunal to consider.
On 17 June 2004, the Tribunal received a response to the hearing invitation signed by the Applicant indicating she did wish to attend a hearing and required a Chinese Mandarin interpreter.
On 21 June 2004, the Tribunal notified the Applicant that the hearing on 22 June 2004 would not be able to go ahead “due to circumstances beyond our control”.
On 9 July 2004, the Tribunal again wrote to the Applicant at the addresses identified above inviting her to attend a hearing at the Tribunal on 12 August 2004.
The Applicant appeared before the Tribunal on 12 August 2004 and gave oral evidence.
In the circumstances, it is clear that the Tribunal complied with its obligations under s.425 of the Act. Moreover, the Applicant appeared at a hearing before the Tribunal and gave oral evidence.
Accordingly, this particular is rejected.
b) The Tribunal did not allow the Applicant to “completely and clearly explain” her fear of being persecuted on her return nor gave her “any chances to clarify” her claims in relation to her application
The Applicant did not tender a transcript of the Tribunal proceeding. However, the Applicant made submissions from the bar table that she was frightened at the Tribunal hearing because the Tribunal Member was “mean” to her during the hearing as a result of which her mind was “not very clear” and she did not know what she said.
The Tribunal, in its decision, set out comprehensively the claims made by the Applicant both to the Delegate and to the Tribunal. The Tribunal sets out in some detail the matters that it explored with the Applicant, particularly its concerns about the differences between what the Applicant said in her statutory declaration and her oral evidence and its other concerns with her claims. There is no s.424 issue arising out of the Tribunal’s conduct in this respect and the reasons for this are addressed below in paragraphs 65 to 73.
The Tribunal noted that it asked the Applicant what she knew about Falun Gong to which she responded, “there was nothing wrong with Falun Gong, they are human beings like her”.
The Tribunal identified independent country information to which it had regard with some particularity. The Tribunal, in the Findings and Reasons section of its decision, acknowledged the “difficulty of proof faced by applicants for refugee status” and noted that there maybe “statements that are not susceptible of proof.” The Tribunal noted that “a liberal attitude on the part of the decision maker is called for in assessing refugee status.”
The Tribunal then distilled the Applicant’s case as:
“essentially that as an employee of a hotel in Kaifeng City and at the behest of a colleague she assisted fugitive Falun Gong practitioners by allowing them to stay at the hotel and made arrangements for them to travel to other parts of China. She claims that her role was discovered when a captured practitioner confessed to having stayed at the hotel. She fears punishment by the Chinese authorities if she were to return to China.”
The Tribunal stated that the Applicant did not impress it as a “credible and truthful witness”. The Tribunal then proceeded to provide the reasons that led it to that conclusion. The Tribunal concluded that it could not be satisfied of any part or all of the Applicant’s account and therefore did not accept any of it. The Tribunal noted that it did not accept that the Applicant was ever involved or associated with Falun Gong practitioners, that she had assisted Falun Gong practitioners by accommodating them at a hotel and shielded them from authorities, that she had made travel arrangements for fugitive Falun Gong practitioners and that she, herself, is wanted by the authorities for those reasons.
The Tribunal, in the Findings and Reasons section of its decision, sought to identify with particularity the reasons it found the Applicant to be an untruthful witness. The Tribunal noted that it found the Applicant to be “vague, evasive, inconsistent and unconvincing.” The Tribunal noted that “the shifts and inconsistencies in the applicant’s evidence regarding this central aspect of her claims castes significant doubt on their veracity and whether the events described had actually taken place.” The Tribunal identified the exchange it had with the Applicant as relating to her inability to remember how it was she assisted Falun Gong practitioners in 1994, 1996 or 1998 and that the dates she had provided to her migration agent were “not serious”, although the last occasion she claimed to have assisted Falun Gong practitioners in November 2003 was serious. The Tribunal noted that she also changed that date several times. The Tribunal then noted that, in 1994, 1996 and 1998, Falun Gong was not considered an outlawed organisation in the PRC and its adherents were not being persecuted and therefore there would have been no reason for Falun Gong members to ask for the Applicant’s assistance.
The Tribunal also noted that it found unsatisfactory her explanation as to other persons being a liaisons guide in a travel agency. The Tribunal also noted that it found her evidence evasive and unreliable in respect of a claim that one of her husband’s relatives is a Falun Gong practitioner whose name she could not remember at the hearing although she had provided details in her statutory declaration that this person had been tortured to death. The Tribunal noted that it clearly and continually explained the contradiction between her statutory declaration and her oral evidence in relation to this claim. The Tribunal noted that it regarded her answer as “evasive”.
The Tribunal noted that the Applicant provided no corroborative evidence in relation to her claims, including her claim that she was of interest to the authorities. It noted that it was reasonable in light of the Applicant’s claims to be of interest to the authorities that they would have issued a warrant or summons against her if indeed she was of such interest. The Tribunal noted that the Applicant’s husband continued to live in the matrimonial home which was owned by the Applicant and that her son is a policeman with the courts. The Tribunal found that, in her oral evidence, the Applicant showed a propensity to exaggerate and tailor her evidence in a manner which achieves her own objectives. Again, the Tribunal noted the “significant inconsistencies, shifts and changes in the applicant’s evidence, her unwillingness to commit to dates and events central to her claims, her own admission that she had not been “serious” about certain dates and events she had relayed to her adviser when preparing her written claims and resiling from key aspects of her claims as outlined in her statutory declaration.”
The findings of the Tribunal are findings as to the credibility of the Applicant which, generally speaking, is a matter entirely for the Tribunal (SZEKY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1138 at [15], Lindgren J).
There is nothing on the face of the Tribunal decision that would support the Applicant’s complaint that the Tribunal did not allow her to completely and clearly explain her fear or to clarify her claims. The complaint is otherwise unparticularised.
Despite being taken by me specifically to this particular of her claim and invited to make submissions in support, the Applicant only restated that she was “very frightened” at the Tribunal hearing. However, I note that the Tribunal stated that, at the hearing, the Applicant raised her voice and “adopted an aggressive tone” stating that the Tribunal was questioning her in a manner similar to Chinese authorities. That would not ordinarily be conduct consistent with someone frightened or intimidated by an inquisitive process, such as the Tribunal hearing. Neither the tapes nor transcript were tendered by the Applicant in support of those claims.
In the circumstances, I consider that the Tribunal allowed the Applicant to “completely and clearly explain” her fear of being persecuted if she were to return to the PRC and it gave her every opportunity to clarify her claims in relation to her application. This particular has been made out.
Accordingly, this particular is rejected.
c) The Tribunal was in breach of s.424A of the Act in that it failed to provide the Applicant with “complete independent country information” to which the Tribunal had regard prior to the hearing or during the hearing. In breach of s.424A the Tribunal failed to ensure that the Applicant understood how the independent country information would be used
The Applicant complained that the Tribunal failed to provide her with the independent country information, as a result of which she was not given a “fair chance” to comment upon it. Further, the Applicant complains that the Tribunal failed to explain to her clearly and thoroughly the information to which it had regard in its decision and to satisfy itself that the Applicant fully understood such information.
Relevantly, pursuant to s.424A(1), the Tribunal is obliged to provide the Applicant, in writing (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 at [77]), with particulars of any information that the Tribunal considers would be the reason or part of the reason of affirming the decision under review.
Section 424A(3)(b) states that s.424A(1) does not apply to information that is not specifically about the Applicant or another person and is just about a class of persons of which the Applicant or another person is a member.
The Applicant does not particularise the information she claims was relied upon by the Tribunal and to which, she contends, s.424A applies, beyond her assertion of “independent country information”.
It is well recognised that there is no obligation upon the Tribunal to provide an applicant prior to the hearing with the independent country information to which it has regard, as long as it is not material specifically about the applicant (Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572 at 139; QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 at [26]; SZBNQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1033 at [16]). There is nothing in independent country information disclosed by the Tribunal in its decision that would appear to be about the Applicant. Moreover, it is a matter for the Tribunal the weight it gives to such independent country information (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFA 10 at [11]).
In any event, the Tribunal did not rely on independent country information in rejecting the Applicant’s claims.
Accordingly, this ground is rejected.
Submissions by the First Respondent
Although not raised by the Applicant, given she was unrepresented before this Court, the First Respondent addressed the Court on whether or not there had been a breach of s.424A by the Tribunal in relation to the way it dealt with the inconsistencies it found in the differences between the Applicant’s claims made in her application for a protection visa and the claims made by the Applicant in her application for review by the Tribunal. Section 424A(1) required the Tribunal to give to the Applicant in writing any information that was the reason or part of the reason for affirming the decision under review (SZDQL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 769 Sackville J at [55]). Section 422B of the Act is applicable and relevantly states that Part 7 Division 4 of the Act, of which s.424A is included, is an exhaustive statement of the natural justice hearing rule.
The First Respondent made two submissions in respect of this issue:
a)First, that the Applicant gave the Tribunal the claims she made in support of her application for a protection visa for the purposes of the review application before the Tribunal, and, for those reason, it is not “information” caught by s.424A.
b)Secondly that, based on the reasoning in VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 (“VAF”), the inconsistencies upon which the Tribunal based its adverse findings of the credibility of the Applicant was not “information” for the purposes of s.424A.
The First Respondent relied on these submissions in the alternative and submitted that, if this Court was satisfied in respect of the first submission, it was unnecessary to consider the second submission on this issue.
(i) In relation to the first submission, the First Respondent referred to the Tribunal decision where the Tribunal stated:
“The applicant stated that she was assisted by her agent in the preparation of her application for a protection visa and her statutory declaration. In relation to the latter she said that she had written her statement in her own language which was then translated into English by her agent. She was asked if her agent had read back the statement to her. She replied yes. She was asked if there was any information in the statement which she wished to change. She replied no.”
The First Respondent also referred the Court to the Applicant’s statutory declaration provided in support of the review application in which she stated:
“I do not think that the decision maker has carefully assessed my application; and particularly, the decision maker does not consider my claims as follows:-“
The statutory declaration then proceeded to identify various claims made in identical terms to those made in her statutory declaration lodged in support of her application for a protection visa.
In the circumstances, the First Respondent submits that the Applicant has republished those claims and that it follows that all such information was given by the Applicant to the Tribunal for the purposes of her application for review. (SZDMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1034 (“SZDMJ”) at [6]). In SZDMJ Gyles J noted that in that case:
“The appellant’s application for review to the tribunal incorporated a statement in the form of a statutory declaration by the appellant. That declaration consisted of a critical examination of the reasons given for the decision by the Delegate of the Minister to refuse the appellant’s application for a visa. In the course of that declaration the appellant referred several times to the claims he had originally made and which were the subject of the Delegate’s decision. Those claims were those set out in the statutory declaration provided with and incorporated in the original application and to which the tribunal made reference.”
Those facts would appear to be on all fours with the case before this Court. Gyles J duly found that the appellant in SZDMJ had, by that conduct, “clearly republished the original claims to the tribunal and relied upon them for the purposes of the review by the tribunal.” Gyles J found, in those circumstances, such information fell within the exception of s.424A(3)(b) and that therefore the obligations imposed by s.424A do not apply to that information.
I consider, that by her conduct in both adopting the veracity of the claims that she made in her application for a protection visa at the outset of the Tribunal hearing and by incorporating those claims into her statutory declaration in support of her review application, that the Applicant gave the information that she provided to the Delegate in support of her application for a protection visa, to the Tribunal for its review application.
For those reasons, the information upon which the Tribunal had regard in its findings arising out of the inconsistencies of that information and the claims made in the review application by the Applicant, was information given by the Applicant to the Tribunal and therefore did not attract the obligations of s.424A(1). The Tribunal was entitled, in the circumstances, to have regard to the differences in the Applicant’s claims in her protection visa application and her review application. Having put its concerns squarely to the Applicant in relation to the inconsistencies identified by the Tribunal, it was open to the Tribunal to make the adverse credibility findings that it made about the Applicant.
In the circumstances, there was no failure by the Tribunal to comply with the obligations of s.424A. Accordingly, there is no need to consider the second submission referred to in paragraph 66(b) above.
Conclusion
The decision of the Tribunal is not affected by jurisdictional error.
Accordingly, the Tribunal’s decision is a privative clause decision and, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
Accordingly, the applications before this Court are dismissed with costs.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S Riddle
Date: 15 February 2006
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