SZFAR v Minister for Immigration - [2006] FMCA 1166

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFAR v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1166

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91R, 91X, 420, 424, 424A, 425, 429A, 483A

NATL v Minister for Immigration [2002] FCA 1398
SAAP v Minister for Immigration [2005] HCA 24
Tin v Minister for Immigration [2000] FCA 1109

Applicant:

SZFAR

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG3241 of 2004

Judgment of:

Lloyd-Jones FM

Hearing date:

14 June 2006

Delivered at:

Sydney

Delivered on:

22 December 2006

REPRESENTATION

Counsel for the Applicant:

Mr R B Wilson

Counsel for the Respondents:

Mr J Smith

Solicitors for the Respondents:

Ms H Dejean of Australian Government Solicitor

ORDERS

The Refugee Review Tribunal is joined as the second respondent.
The name of the first respondent be amended to read ‘Minister for Immigration and Multicultural Affairs’.
The application filed on 3 November 2004 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3241 of 2004

SZFAR

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.483A of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 3 November 2004 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 14 September 2004 and handed down on 7 October 2004, affirming a decision of the delegate of the first respondent made on 11 May 2004, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks relief against the decision of the Tribunal.
The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been given the pseudonym “SZFAR”.
The applicant has not sought to join the Tribunal as a party, however, given that it is an exercise of the Tribunal’s jurisdiction that is under review, I will make the appropriate order that the Tribunal is joined as a party: SAAP v Minister for Immigration [2005] HCA 24 at [43], [91], [153] and [180].
For the purpose of this judgment, the applicant tendered and applied for the following affidavits to be admitted into evidence:
a)Affidavit of the applicant’s brother, affirmed on 10 November 2005 and filed in Court on 14 November 2005 (“first affidavit of applicant’s brother”);
b)Affidavit of Xiaojie Chen, interpreter and translator, affirmed on 24 January 2006 and filed in the Court Registry on 31 January 2006 (“affidavit of interpreter”);
c)Affidavit of the applicant’s brother, affirmed on 9 June 2006 and filed in Court on 14 June 2006 (“second affidavit of applicant’s brother”).
A Court Book (“CB”) prepared by the respondents’ solicitors was filed and served on 7 December 2004. I have marked it as Exhibit “A” and it was read into evidence.

Background

The Tribunal decision of Ms Antoinette Younes, reference N04/49238, provides the following background material. The applicant, who claims to be a citizen of the People’s Republic of China, arrived in Australia on 9 April 2002 on a Preferential Relative (Migrant) visa. This visa was cancelled when the Department determined that the applicant had provided false information. The applicant sought review of the Department’s decision and on 19 December 2003, the Migration Review Tribunal affirmed the Department’s decision. On 10 February 2004, the applicant lodged an application for a Protection (Class XA) visa with the Department under the Act. On 11 May 2004, a delegate of the Minister refused to grant a protection visa and on 2 June 2004, the applicant applied to the Tribunal for review of the delegate’s decision.(CB 252)

Applicant’s claims

The Tribunal decision contains an undated letter with an attachment sent from the applicant to the Department which sets out detailed claims that the applicant was involved in many pro-democracy activities in China, America and Australia.(CB 36-94) The letter includes information of the organisation which the applicant claims to be a member, various events which he assisted in planning and also participated, and pro-democracy activists the applicant associated with. The letter also said that in early 2004, his mother was interviewed by members of the security police in China. The police enquired about her two sons and that she should take whatever steps possible to stop their actions against the Chinese government which the police said would place them in serious trouble. If the applicant was forced to return to China, he would have to admit his guilt and be required to cooperate with the Chinese security forces, which would betray his brother, friends, colleagues and also their objectives.

Tribunal’s Findings and Reasons

The Tribunal considered all of the issues raised by the applicant and made the following findings:
In summary, the Tribunal is satisfied that the applicant has not suffered any harm attributable to a Convention reason, nor is the Tribunal satisfied that there is a real chance of such harm occurring to the applicant in the reasonably foreseeable future. The Tribunal is of the view that any political activities in which the brother may have been involved and which could potentially impute the applicant with political opinions have not caused the applicant or indeed any other member of his family any harm. The brother has returned to China on various occasions. The mother visited China early this year. No one suffered any harm despite any political activities in which the brother may have been involved. Accordingly, on the ground of potential impute of political opinion, the Tribunal is not satisfied that that there is a real chance of harm occurring to the applicant in the reasonably foreseeable future. The Tribunal is satisfied that there is no Convention-related reason as to why this applicant could not return to China.(CB 274-275)

Application for Review of the Tribunal’s Decision

On 3 November 2004, the applicant filed an application for review in this Court under s.39B of the Judiciary Act. On 6 July 2005, the applicant filed an amended application and a further amended application on 14 November 2005 which contained the following grounds:
1.That the Tribunal erred in that it did not consider that part of the Applicant’s claim whereby he alleged that he feared persecution by reason of an imputed political opinion and political association arising from the political activities and opinion of his brother Mike Zhong.
2.The Tribunal erred in that it relied upon the findings of the Migration Review Tribunal dated 19.12.03 as establishing facts, relevant to both the issue and to credit, as stated in that decision and it thereby failed:
(a)   to investigate and receive evidence in order to reach its own decision on such facts; and/or
(b)   to reach its own decision on material facts.
Particulars
The Migration Tribunal’s decision was, at the time of the decision, under appeal and the Tribunal thereby acted contrary to the rules of natural justice; its own legal obligation to hear and determine the application; and it failed to act according to the substantial justice and merits of the case.
2.1The Tribunal erred in that it gave consideration to the said decision of the Migration Review Tribunal, which has now been set aside, and it thereby:
(a)   made an erroneous finding or reached a mistaken conclusion within the principles established in Craig v South Australia (1994) 184 CLR 163 at 179;
(b) failed to act in accordance with substantial justice and the merits of the review and thereby breached s.420 Migration Act 1958.
3.The Tribunal erred in that it failed to provide the Applicant with an adequate opportunity to present all the relevant evidence that he had available and thereby acted contrary to the rules of natural justice.
Particulars
The evidence being given to the Tribunal by the Applicant’s brother at the hearing was not completed by reason of time constraints to which the Interpreter was subject. The Applicant is not fluent in English language. The Tribunal failed to adjourn the hearing to enable this evidence to be given and the opportunity given to the Applicant to lodge further written evidence from his brother was inadequate.
4.The Tribunal erred in that it failed to inform the Applicant that it questioned the impartiality of the witness Wen Long Yu (Qin Jin) and the Applicant was precluded from calling other impartial witnesses to prove his early involvement in political activities in Australia.
Particulars
The Applicant was present in the Tribunal room when the witness was giving his evidence, which was given in English, a language the Applicant does not understand. The Tribunal stated its review, to the witness, that it did not view him as an impartial witness in English. The interpreter did not translate this to the Applicant. The Applicant’s brother sought to raise this with the Tribunal when he was allowed entry but the Tribunal, through misunderstanding or otherwise, did not explain its view to the Applicant’s brother.
5.The Tribunal erred in that its finding that “it is highly unlikely that the Applicant’s wife did not tell him anything about her interview on 07 May 2004 (sic) and he only found out in June 2003…” (GB 274.7) was:
(a)     not open to it on the evidence before it; and
(b)     was speculation rather than permissible inference
and therefore was contrary to law and the Tribunal thereby failed to determine the Applicant’s claims according to substantial justice and the merits of the case, this finding being significant in determining the way in which the Tribunal determined the Applicant’s claim for refugee status.
Particulars
The Applicant’s wife was interviewed in China on 07 May 2003 in relation to her migration to Australia as the Applicant’s spouse. The Tribunal concluded that she had communicated this interview and its contents to the Applicant at the same time. There was no evidence of any such communication. This was simply speculation, and not proper inference, on the Tribunal’s part.
6.The Tribunal erred in that when determining the application of s.91R(3) of the Migration Act 1958:
(a)   it took into account an irrelevant circumstance, namely that the Applicant could have applied for a protection visa rather a Preferential Relative (Migrant) visa (GB 273.4);
(b)   that irrelevant circumstance was incorrect in fact as the Applicant applied for the Preferential Relative (Migrant) visa whilst living in China; and
(c)   it failed to take into account a relevant circumstance in that the Applicant had no need to seek a protection visa prior to the cancellation of his existing visa.
6.1The Tribunal erred in that it did not consider whether s.91R(3) of the Migration Act 1958 applied so as to exclude from its consideration the acts done by the Applicant in Australia on 04.06.03.
6.2The Tribunal erred in that it incorrectly construed s.91R(3) of the Act.
Particulars
The Tribunal only asked whether the Applicant had done the political acts in Australia for the purpose of creating a claim for refugee status. It did not determine whether the Applicant actually held the political opinions that he professed, which is what s.91R requires.
7.The Tribunal erred in that it failed to provide the Applicant a proper opportunity in which to present his case to the Tribunal and the tribunal thereby failed to act in accordance with substantial justice and the merits of the case.
Particulars
The evidence being given at the Tribunal hearing was incomplete by reason of the need for the interpreter to leave before the evidence had been given and the subsequent opportunity to present further materials in writing was inadequate by reason of its brevity and the imminent travel arrangements already made by the witness, the Applicant’s brother. This evidence was critical in fact to the Tribunal’s determination and may well have lead to the tribunal to a different conclusion.

Submissions

Mr Wilson indicated that the applicant’s appeal against the Tribunal decision is on two separate sets of grounds. The first set looks at Tribunal procedures and how it conducted its hearing, called witnesses and determined the case. The first issue that arose before the Tribunal was whether the witness who gave evidence was impartial. This was raised by the Tribunal on the basis that the witness was a close friend of the applicant’s brother. Mr Wilson questioned whether, in the circumstances, it was inadequate for the Tribunal to proceed and doing so resulted in a breach of the law. The second issue was that of the applicant’s brother, also known as Mike, who was a political activist for a considerable time and gave evidence in the course of the proceedings. However, because of time limits with the interpreting service, the brother’s evidence was limited. The applicant’s brother was given an opportunity to provide written evidence, which again was severely limited and which the applicant submits gives rise to a breach of the rules of procedural fairness. It is submitted that there simply was not enough time to prepare and submit evidence which would have been critical to the Tribunal decision, given the way in which the case was decided.
In respect of the first ground, a failure to consider a claim, Mr Smith submits in his written submissions that this was not addressed in

Mr Wilson’s written submissions. The first respondent therefore understands that this ground has been abandoned. Mr Wilson submits that the Tribunal dealt with the question of the applicant’s brother’s political activities in the following way:
The Tribunal is of the view that any political activities in which the brother: [a.k.a. Mike]…may have been involved and which could potentially impute the applicant with political opinions have not caused the applicant or indeed any other member of his family any harm. The brother has returned to China on various occasions. The mother visited China early this year. No one suffered any harm despite any political activities which the brother may have been involved.(CB 274.9-275.2)
The Tribunal then declined to impute any political opinion on the part of the Chinese authorities by reason of Mike’s political activities.

Mr Wilson argued that the Tribunal did not consider the consequences of whether it could ensure that the applicant himself had engaged in political activities in Australia.
However, Mr Smith also indicated that the Tribunal expressly dealt with and rejected the claim of imputed political opinion.(CB 274.9-275.2) In the absence of further submissions or any particulars in the original pleadings by Mr Wilson, I am satisfied that the Tribunal did address the issue that is raised in ground one of the further amended application.
Mr Wilson’s written submissions for the second ground clearly repeats the ground pleaded in the further amended application. No further written submissions were made in respect of this ground. Mr Wilson, in his oral submissions, submits that the Tribunal relied upon the decision of the Migration Review Tribunal (“the MRT”) in relation to the applicant.(CB 219-228) That complexity came about by reason of general circumstances. The applicant first came to Australia as a holder of a Preferential Relative (Migrant) (Class AY) visa based upon his brother and mother being Australian citizens. After his initial arrival in Australia on that initial visa, the applicant then applied to bring his wife and child from China. The Department then ascertained that the applicant’s Preferential Relative (Migrant) visa application had incorrectly stated that he had no children, when in fact the applicant had had a child with a person whom he had a long relationship with in China. By reason of that misinformation, his visa was cancelled. After that visa was cancelled, the applicant applied for refugee status. Consequently, there were two processes running concurrently, the protection visa application and his appeal against the Preferential Relative (Migrant) visa cancellation. The MRT reviewed the visa cancellation and upheld it on various grounds. It found that as the applicant gave false information, in the exercise of its general discretion, it declined to set aside the cancellation on humanitarian grounds.
The MRT reasons were published at the time of this Tribunal hearing. This Tribunal had a copy of that decision and took into account certain findings of the MRT. Mr Wilson submits that this Tribunal did not properly investigate the applicant’s actual circumstances itself but simply adopted the decision of another tribunal. The submission was that that approach made a fundamental error. A tribunal has a duty to hear and determine a matter, rather than simply accepting what another tribunal has said.
Mr Smith, in his written submissions, contends that the applicant asserts (without reference to the Tribunal decision) that the Tribunal relied on findings of fact made by the MRT and failed to reach its own conclusions. It is submitted that there is no basis for this assertion. The Tribunal did consider findings made by the MRT and then invited the applicant to comment on those findings.(CB 237-239) Mr Smith submits that in light of this invitation, it cannot be said that the Tribunal failed to make its own enquiries. However, the real complaint appears to be that the Tribunal did not accept the applicant’s response to the invitation.
Mr Smith submits that in addition to considering the MRT findings, this Tribunal considered all the evidence and other material before it, including the applicant’s response to those findings. On that basis, it drew its own conclusion that the applicant had provided false information about his child.(CB 270.8) There is nothing to prevent the Tribunal from considering matters which previously considered by another tribunal. The Tribunal is not bound by the rules of evidence, but once it has obtained information it considers relevant to the review, it is bound to take this into account: s.424 of the Act.
The Tribunal decision indicates that the applicant did provide a copy of the MRT decision of 19 December 2003 and numbered N03/05261. That decision dealt with the review application concerning the cancellation of the applicant’s Preferential Relative (Migrant) visa. The Tribunal member also reproduced paragraphs 19 to 21, 26 and 45 to 47 of the MRT decision.(CB 264-266) The decision then clearly set out the s.424A notice as forwarded to the applicant, which reproduced the same paragraphs and stated:
The Tribunal advised the applicant that the above information is relevant to the review as it “suggest that you may have been aware of the possible cancellation of your visa as early as 7 May 2003 when your wife was interviewed in Guangzhou”. The information also reflects adversely on your credibility.(CB 268)
The applicant responded to the s.424A notice on 9 September 2004.
The Tribunal dealt with the s.424A notice and the applicant’s response in its finding and reasons. It indicated that it believed it supplied the applicant with sufficient particulars of information for him to meaningfully comment as required by NATL v Minister for Immigration [2002] FCA 1398. The issue raised with the applicant was that the MRT decision reflects adversely on his credibility. The Tribunal indicated that it believed it had discharged its obligations under s.424A(1)(a) and (b) of the Act. A review of the Tribunal decision, in particular in the two areas identified above, indicates that the Tribunal satisfied its obligations as set out in the Act. It clearly identified the MRT decision which it considered dealt raised these points with the applicant and provided the applicant with adequate opportunity to respond. The Tribunal then clearly set out how it dealt with these issues in reaching its conclusion. Mr Wilson, in his amended application, also referred to s.420 of the Act which provides that a review of a Tribunal decision must be:
a)Fair, just, economical, informal and quick; and
b)not bound by technicalities, legal forms or rules of evidence and must act according to substantial justice and the merits of the case.
There are no oral or written submissions identifying any alleged breach of this provision, nor are there any particulars included in the pleaded grounds advancing this contention. I do not believe that this ground of review can be sustained.

In respect of ground three, Mr Wilson’s written submissions repeat the pleadings in the further amended application. In Mr Wilson’s oral submissions, he relied upon and formally read the affidavit of the applicant’s brother. Attached to that affidavit is a transcript of the MRT hearing of 20 July 2004.Mr Wilson took the Court to the transcript where the evidence of the applicant’s brother commenced:
Member: The interpreter needs to leave by 3 o’clock but I understand your English is…
Mike: No very good, but I can – I think I’d better need…
Member: I think you need the interpreter. Let’s try and see if I can finish in 15 minutes. If I can’t, I’m going to have to adjourn your evidence to a later date because the interpreter must go by 3 o’clock.
Mike: What about this thing? Can I ask you for a question first.(Annexure “A” of the affidavit of the applicant’s brother, p.45.8)
The applicant’s brother also stated:
5.At page 45 of the transcript the Tribunal said that the interpreter must leave and if we do not finish she will “adjourn” the case. This was said in English and was not interpreted into mandarin. At that time I did not understand that this would meant that my brother could have a further hearing on another day.
6.At the end of the hearing I had not said all the things I wanted to say to the Tribunal. The Tribunal said that we have to finish because the interpreter has to leave. I have read the transcript of the hearing at page 49 and listened to the tape for that page as well. The Tribunal said to me “What do you want to tell the Tribunal today?”. I said: “let me think”. The interpreter then said to me in mandarin: “hurry up, quickly”. She did not interpret this in English to the Tribunal. When the interpreter said this to me I believed that I had to stop. The Tribunal then said that I could send in a letter. Then interpreter than said to me in mandarin: “The Tribunal is worried that you will say something wrong or that she may not understand you, she will give you time to write it down”. I agreed to do this as I thought that this was my only choice. I did not know that I could have asked her to have a hearing again on another day. If I had known this I would have asked for another hearing for my brother so that I could tell my evidence to the Tribunal in person. However, I told her I was going away that day to Cairns and would not be back until the next Sunday. She told me to send her the letter by the next Monday. I did this, but I did not arrive back from Cairns until late Sunday night and I wrote the letter quickly to be able to send it to the Tribunal on the following Monday. The tribunal had told me at the hearing to not delay the case (transcript page 50). However, I am slow in writing English. I wanted tot tell her many things about what my brother had done with both me and my political colleagues.
7.There was also much to tell about my own political activities because I have been involved with the pro-democracy movement since 1986, when I was a student in China. I wanted her to understand that my brother was in danger because of me. I have not been back to China since 1998 because from that time onwards my political activities have been more public than before. This I wanted to tell the Tribunal. Also, when I went back to China before 1998 I did in fact have problems with the Chinese Government. My brother stated some details about these problems I had in his statement given to the Tribunal (at Court Book pages 152 and 153). During the hearing I started to tell the Tribunal about the problems I had when I went back to China before 1998, however the Tribunal stopped me from giving this evidence. (affidavit of the applicant’s brother)
Mr Smith in his written submissions, contends that the applicant asserts that the Tribunal’s failure to adjourn the hearing to enable the applicant’s brother to continue his evidence orally (in circumstances where the interpreter could not continue at the hearing) denied the applicant natural justice. Mr Smith submits that aside from the obligation to provide the applicant with an opportunity to give evidence and make submissions at a hearing (s.425 of the Act), there is no requirement under the Act for the Tribunal to take oral evidence from a witness. The obligation to afford procedural fairness is to give the applicant an opportunity to present his case, which the Tribunal did by giving the applicant’s brother an opportunity to give further evidence in writing: s.429A(c) of the Act. It is submitted that there is nothing in the evidence to suggest that the applicant’s brother was prevented from giving evidence. In fact, the applicant’s brother took the opportunity given to him by writing to the Tribunal on 26 July 2004.(CB 232) Mr Smith submits that in light of this, the applicant cannot be said to have been denied a full opportunity to present his case.
I acknowledge that the withdrawal of the interpreter service at the Tribunal hearing did not permit completion of the oral evidence of the last witness. However, I accept the submissions of Mr Smith that the Tribunal made alternate arrangements for the last witness to provide any further information in the form of written evidence. The witness accepted this opportunity and provided further material within the time period specified by the Tribunal. I do not believe that this ground of review can be sustained.
In respect of ground four, Mr Wilson’s written submissions repeat the further amended application. The written submissions contend that this ground raises a breach of the Tribunal’s obligation to hear and determine the application and a breach of s.424A of the Act: SAAP v Minister for Immigration.
Mr Wilson then referred the Court to the MRT hearing transcript in the affidavit the applicant’s brother. A witness, Qin Jin, is recorded as giving significant evidence about his involvement in an organisation in Australia for democracy and political freedom in the PRC. He also gave evidence of being a friend of the applicant’s brother. The Tribunal then questioned the witness about impartiality:
Member: You’re a very close friend of his brother.
A: Yes.
Member: How can I be convinced that you’re impartial, in the sense that you’re an objective person who is giving evidence independently and objectively, given your association and close friendship with the brother?
A: How?
Member: How can I be satisfied that your evidence is independent and impartial, in the sense you are giving an objective appraisal?
A: Yeah, okay.
Member: Rather than doing a favour, if I can put it that way without offending you.
A. I understand.
Member: That’s not what I’m doing.
A: Thank you very much. You are very frank to me. Yeah, how can I prove to you that my evidence – my evidence is – what is the word? Not evidence, my witness, the word is –
Member: You present evidence as an impartial witness or –
A: Yeah, this also make me – it’s very hard to explain that. Because his brother is my close friend and since his arrival we – through his brother I know the applicant and I’m very – I’m pretty satisfied with his – the same opinion with us and his determination to be involved in this movement and work together with us. (Annexure “A” of the affidavit of the applicant’s brother, p.14)
Mr Wilson submits that it is the above passage that is referred to in the body of the affidavit of the applicant’s brother:
11.I have listened to the tape of the hearing when the Tribunal questioned whether Mr Yu was a good witness. At page 14 of the transcript (second question) the Tribunal used the words “independently”, “objectively” and “impartial”. I can hear on the tape the interpreter speaking in mandarin to my brother and translating to him what the Tribunal had said. In mandarin these are words that clearly convey a meaning that evidence is biased but the interpreter did not say these words in mandarin to my brother.
The affidavit also records the applicant’s brother’s oral evidence:
Member: Yes. What do you want to ask me?
A: Okay. So I want to first, do you give the – do you actually give – endorse my witness, the evidence today, because I’m his brother. Do you endorse?
Member: I don’t understand what you’re asking me, sorry.
A: So like, Qin Jin is a close friend of mine and he gives evidence about my brother. You were thinking whether it’s –
Member: So you have discussed the evidence that the witness gave this morning with him have you?
A: No, no.
Member: But it’s very interesting that you’re asking me this question, isn’t it? What I’m going to say to you is, I will decide as much weight as I need to give to your evidence, okay? So please go ahead and tell me what you want to tell me. Actually, firstly I’m going to ask you when did you come to Australia?(Annexure “A” of the affidavit of the applicant’s brother, p.45)
Mr Wilson submits that at this stage, the issue of Qin Jin’s impartiality was not disclosed by the Tribunal. However, in the subsequent correspondence to the Tribunal this point was raised again:
Would you please clearly indicate what problem was with witness Qin Jin?
Mr Smith submits that this ground is based on the assertion that the Tribunal stated its views about impartiality to the witness, which was not translated by the interpreter. There is no evidence of this fact. The applicant’s submissions suggest that this constitutes a breach of s.424A of the Act. However, a tribunal’s view of impartiality of a witness is part of its reasoning process and does not constitute information within the meaning of s.424A(1) of the Act: Tin v Minister for Immigration [2000] FCA 1109. Accordingly, there is no obligation under s.424A(1) for the Tribunal to provide the applicant with particulars of its views of the impartiality of a witness. I do not believe that this ground can be sustained.
Mr Smith submits that the Tribunal found that it was highly unlikely that the applicant had not been told anything by his wife in relation to her Department interview of 7 May 2003.(CB 274.7) Mr Smith submits that it may be expected that communication occurs in the ordinary course of a marital relationship. This specifically so in this case because:
a)The interview was in connection with the wife’s visa application to enter Australia as the applicant’s spouse;
b)The applicant was the sponsor for the wife’s visa application;
c)There was a child of the marriage;
d)The wife was interviewed about her relationship with her husband and their child.
In light of all the circumstances, I accept that the inference drawn by the Tribunal was reasonably open to it on the material before it. There is no need for direct evidence of a specific communication between husband and wife before such an inference may be drawn. In the absence of sworn testimony from either the applicant or his wife, it is extremely unlikely that direct evidence of the communication would be available.
In respect of ground six, Mr Wilson in his written submissions, repeats the further amended application. Mr Wilson contends that the Tribunal’s key finding for the purpose of s.91R of the Act was that the applicant had engaged in political activities “for the purpose of creating a claim” and that his political activities were “not bona fides”.(CB 273.4) Mr Wilson submits that this applies an incorrect test. Section 91R(3) requires the Tribunal to consider and determine whether an applicant has engaged in activities in Australia other than for the purpose of strengthening their claim to be a refugee. This requires a determination of whether the applicant in fact holds the political opinion as professed. The finding that conduct was for the purpose of creating a claim does not determine this question; a person may well hold certain political views and, consistent with them, still perform acts for the purpose of creating a refugee claim. Mr Wilson submits that although the Tribunal found that the applicant engaged in conduct for the purpose of creating a claim, there is still the residual question required by s.91R(3) of the Act, namely, whether the applicant actually held the political beliefs he professed to hold. The Tribunal’s finding that the acts were not bona fide does not decide this question.
Section 91R(3) of the Act states:
(3) For the purposes of the application of this Act and the regulations to a particular person:
(a) in determining whether the person has a well‑founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;
disregard any conduct engaged in by the person in Australia unless:
(b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.
Mr Wilson submits that s.91R(3) can only be interpreted that there is an onus on the person conducting the forensic examination to establish a particular fact and whether the applicant’s conduct was engaged in for political purposes. Conversely, the decision-maker must establish that the conduct was engaged in for a purpose other than the enumerated purpose.
Mr Wilson submits that there is distinction between a “purpose” which falls within s.91R(3) of the Act and a “purpose” which falls outside that section. It is submitted that if a political activist (who is also a refugee applicant) enters Australia and does a political act, that person would necessarily know that the political act would strengthen his claim. He submits that s.91R(3) it is directed towards whether the applicant’s conduct is for some purpose other than as an expression of political belief.
Mr Wilson contends that the Tribunal did not ask itself the proper question with regard to “purpose”. He argues that the Tribunal simply looked at whether the applicant was committing these acts to strengthen his visa application. Mr Wilson submits that the real question the Tribunal should have asked was whether or not the person’s political acts were out of political conviction or belief.
Mr Smith, in his written submissions, states that ground six is asserted on a number of bases. The first is that the Tribunal found that the applicant could have originally applied for a protection visa rather than a Preferential Relative (Migrant) visa, which misstates the Tribunal’s findings. On 2 June 2003, the applicant was issued with a written notice of intention to cancel his Preferential Relative (Migrant) visa. On 30 July 2003, the visa was cancelled and on 19 December 2003, the MRT affirmed that decision. It was not until 10 February 2004, (almost two years after his arrival in Australia) that the applicant lodged an application for a protection visa. Mr Smith submits that the Tribunal found that if the applicant were a genuine political activist, he would not have waited two years before lodging his protection visa application.(CB 273.3) The fact that most impressed upon the Tribunal in this respect was that the applicant sought review of the cancellation decision, rather than making a refugee claim. Thus, the Tribunal did not act on the assumption that the applicant could have applied for a protection visa on his original arrival in Australia, but rather, that he had done so after being in Australia for over two years and only when his other visa was cancelled.
Mr Smith submits that the second basis for this ground is that the Tribunal should have determined whether or not the applicant in fact held a political opinion. However, there is no support for this proposition either in the Act or the authorities. There is no “residual question” required by s.91R(3) of the Act, once the Tribunal has not reached a state of satisfaction about whether or not certain conduct was engaged in in Australia “otherwise than for the purpose of strengthening the person's claim to be a refugee”. The section deals only with conduct in Australia and the Tribunal dealt with the applicant’s conduct accordingly.(CB 273.3) It is submitted that depending on the claims made, a tribunal must consider whether an applicant has a well-founded fear of persecution for reason of his or her political opinion. The Tribunal did so in this case.
Mr Smith submits the third basis for this ground appears to be that the Tribunal erred in failing to take into account the activities engaged in by the applicant in Australia on 4 July 2003. However, that ignores the Tribunal statement that “any activities which the applicant had claimed to be involved in subsequent to the 2^nd June 2003 Notice of Intention to Cancel his visa, are activities which he has engaged in for the purpose of enhancing his application for a protection visa”: CB 274.3.
I acknowledge that ground six is pleaded on a number of bases, but that in effect it raises three main issues as identified by Mr Smith. I accept Mr Smith’s analysis of this ground as correct, and agree that none of the arguments raised by the applicant can be sustained. I believe that the Tribunal has correctly considered the material and applied the correct interpretation in respect of s.91R(3) of the Act. I have considered each of the arguments raised by Mr Wilson and the counter-arguments of Mr Smith. I am satisfied that the decision-making process of the Tribunal satisfies requirements of the Act.
In respect of ground seven, Mr Wilson’s written submissions repeat the further amended application. Mr Smith submits that this ground repeats ground three and that the respondent relies on its written submissions set out in [19] above.
Ground seven also appears to repeat ground three. No new issue emerges from the pleadings in this ground and there was no expansion of the issue in oral submissions during the hearing. I am satisfied that the Act has been complied with in respect of the applicant’s brother being able to present evidence to the Tribunal. Although it may have been the preferred course to take all the evidence orally at the hearing with the assistance of an interpreter, there is no strict requirement that evidence must be obtained in this manner. The Tribunal is entitled to take evidence in the form of written submissions which it did after the services of the interpreter became unavailable. The witness in question said that his ability to converse in English may have been limited but he was still able to do so. The Tribunal was not prepared to pursue this course, preferring to receive further evidence in written form. The witness was provided with a period of time in which to prepare those submissions. Despite some inconvenience to the witness, written submissions were provided.

Conclusion

Both counsel provided the Court with detailed written submissions and extensive oral arguments in support of the issues raised in those written submissions. I thank both counsel for the preparation and presentation of the submissions. I have endeavoured to focus on the key elements of the arguments raised by the parties. I am of the view that none of the arguments of alleged jurisdictional error on the part of the decision-maker can be sustained. Consequently, the application should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate:

Date: 21 December 2006