SZFYW v Minister for Immigration
[2008] FMCA 813
•13 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFYW v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 813 |
| MIGRATION – Visa – protection (Class XA) visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – applicant a citizen of China claiming fear of persecution for reason of religious beliefs – no reviewable error. |
| Migration Act 1958 (Cth), ss.91R, 424A, 425 |
| SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 107 VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102 Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 SZBYR v Minister for Immigration & Citizenship (2008) 235 ALR 609 SZIAT v Minister for Immigration & Citizenship [2008] FCA 766 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 SBBS v Minister for Immigration & Multicultural Affairs [2002] FCAFC 361 |
| Applicant: | SZFYW |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 685 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 13 June 2008 |
| Date of Last Submission: | 13 June 2008 |
| Delivered at: | Sydney |
| Delivered on: | 13 June 2008 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondents: | Mr Bevan |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent's costs in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 685 of 2008
| SZFYW |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant is a citizen of the People's Republic of China. By his application he asks the Court to review a decision of the Refugee Review Tribunal that affirmed the decision of a delegate of the Minister for Immigration & Citizenship not to grant him a protection visa.
The Applicant claims that the Tribunal fell into error in four ways:
a)That the Tribunal's finding is significantly inconsistent, changeable and contradictory;
b)That the Tribunal's finding has included a reasonable apprehension of bias;
c)That the Tribunal failed to comply with its obligation under s.424A(1) of the Migration Act; and
d)That the Tribunal failed to comply with its obligations under s.425 of the Act.
Background
The background to this matter is that the applicant arrived in Australia on 7th July 2004. On 19th July 2004 he applied for a protection visa. He submitted a statement claiming to have been a Christian and to have joined an unofficial church in China known as Methodism. The claim includes an allegation that the church leader was detained several times since 2002 and because the Applicant was one of the main members of the church he was afraid that he would be the next victim. He claimed in the original application that the Chinese authorities were placing great pressure on the church and many underground church members were arrested.
A delegate of the Minister considered this application but rejected the application for a visa. The delegate found that the Applicant has provided no evidence to support any of his claims to have been active as a Christian in the People's Republic of China and there was no indication that he had ever experienced any difficulties as a result of his faith. The delegate found that it was reasonable to conclude that the Applicant was an ordinary participant only with no profile at all in that country.
The delegate also found that “the ability of the Applicant to obtain a passport and to depart from China legally indicated that he was of no interest to the Chinese authorities for any Convention related reason at the time of his departure.”[1]
Application for Review by the Refugee Review Tribunal
[1] See Court Book at page 40
First Tribunal Hearing
The Applicant applied to the Refugee Review Tribunal on 19th August 2004 for a review of the delegate’s decision. He prepared his application with the assistance of a migration agent. The Applicant provided a statement to the Tribunal in which he took issue with the findings of the Minister's delegate. He conceded that he had obtained a passport and departed China legally, but he did not accept that that demonstrated the authorities of the People's Republic of China had no interest in him. He went on to say:
"In my application I mentioned that our church leader whose name was Changshou Li, died years ago because of the pressure of the government. He had been put in jail several times and suffered a lot of physical and mental abuses when he was kept in custody.
…I organised the church meeting and worship frequently. And also delivered our materials to everybody. This was known in the church. But all our church members kept this secret. Now I left China, and the authority tries to find the person who was in charge the church. I told my church members that they could tell police that I was the one who organised everything for the church. This could protect the other person who is in charge of the church now. I am sure that the police has already got the information and they decide that I am the one they want. This makes me really scared. And I am sure if I were back to China, I would be sent into jail.”[2]
[2] See Court Book at page 46
The Tribunal invited the Applicant to attend a hearing to take place on 2nd December 2004. The Applicant indicated that he wished to attend the hearing however the hearing was postponed due to the fact that the Applicant was ill and a new hearing date was set on 7th December 2004.
The Applicant, however, changed his migration agent. He wrote to the Tribunal in the letter received on 31st December 2004 making serious criticisms of his migration agent and claimed that the agent had cheated and misled him. A copy of that letter can be found at pages 74 through to 76 of the Court Book.
The Applicant obtained the services of a different migration agent who arranged for the Applicant to complete a statutory declaration which was submitted to the Tribunal. A copy of that statutory declaration can be found at pages 92 through to 96 of the Court Book.
The facts set out in the statutory declaration were substantially different from that which appeared in the original submission made to the Tribunal. In the statutory declaration the Applicant set out that he had a computer shop selling computer software and hardware as well as computer components and doing computer service. He indicated that a person came to him and asked him to make copies of compact discs for the “Shouters” underground church. He claims that he did that and as a result came under adverse notice from the PSB.
The Tribunal recalled its decision and issued a fresh decision as a result of the material that the Applicant had provided. That decision was signed on 7th February 2005 and handed down on 1st March 2005. The Tribunal affirmed the decision not to grant a protection visa.
The Applicant sought judicial review of that decision from the Federal Magistrates Court and on 22nd February 2006 Driver FM made orders by consent quashing the Tribunal decision and making an order in the nature of mandamus requiring the Tribunal to review the Minister's delegate according to law.
Second Tribunal Hearing
The Tribunal wrote to the Applicant care of his new migration agent on 31st March 2006 inviting him to attend the hearing on 2nd May 2006. The Applicant attended that hearing and gave evidence. The second Tribunal signed its decision on 15th June 2006 and handed that decision down on 6th July 2006. The Tribunal affirmed the decision not to grant the Applicant a Protection (Class XA) visa. The Applicant again sought judicial review of the Tribunal decision from the Federal Magistrates Court.
On 17th October 2007 Raphael FM made orders by consent in the nature of certiorari and mandamus quashing the Tribunal's decision and requiring the Tribunal to review according to law the delegate's decision made on 21st July 2004 to refuse the protection visa.
Third Tribunal Hearing
The Tribunal wrote to the Applicant on 21st November 2007 and invited him to attend the hearing on 19th December 2007. The Applicant attended that hearing and gave evidence. He also called evidence. He asked the Tribunal to hear the evidence of a witness called Yu Shi.
The Tribunal signed its decision on 8th February 2008 and handed the decision down on 21st February 2008. The Tribunal affirmed the decision not to grant the Applicant a Protection (Class XA) visa.
The Tribunal decision record is set out on pages 178 through to 194 of the Court Book. The Tribunal set out the Applicant's claims and evidence, taking note of the Applicant's statutory declaration and noting the Applicant's evidence both to the first Tribunal and to the second Tribunal.
The Tribunal also noted the evidence given by the Applicant and by the Applicant's witness to the third Tribunal. The Tribunal asked the Applicant a number of questions about his case and asked the Applicant about a letter which had been provided from the Applicant's wife who is still in China.
The Tribunal’s Findings and Reasons
The Tribunal's findings and reasons are set out on pages 191 to 194 of the Court Book. The Tribunal accepted that the Applicant was a national of China and assessed his claims against that country. The Tribunal noted the Applicant's claims as follows:
"The applicant's claims are based on the Convention ground of political opinion. Essentially, the applicant claims that he owned a computer shop in China and he copied CDs for the Shouters, at the request of a childhood friend. The PSB came to the shop and arrested the applicant's part-time assistant and detained him for a week. A Shouter who used to deliver material to the applicant's shop was tortured and disclosed that the applicant had been copying material for the Shouters. The applicant was too frightened to return to the shop and left the country on a false passport.”[3]
[3] See Court Book at pages 191 and 192
The Tribunal accepted that the Applicant owned a computer store in China but did not accept his other claims. The Tribunal set out the various components of the claim that it did not accept:
"First, the Tribunal does not accept that the applicant copied CDs for the Shouters as the applicant has not given credible reasons for why the Shouters would have asked him to copy CDs for them.
Secondly, the Tribunal does not accept that the applicant copied CDs for the Shouters, as the applicant has not given a credible reason for why he would have agreed to do so.
Thirdly, the Tribunal does not accept that the police came to the applicant's shop and detained the applicant's part-time assistant, Mr Yu, for one week on suspicion of copying CDs for the Shouters.
Fourth, the Tribunal also does not find it credible that Mr Yu would have learned of the applicant's role in copying CDs for the Shouters during the one week that he was detained.
Fifth, the Tribunal also did not find the evidence of the witness, Shi Yu credible.”[4]
[4] See Court Book at pages 192 and 193.
The Tribunal did not accept that the Applicant had been perceived to have a political opinion opposed to the Chinese government and did not accept that he had suffered serious harm in China as a result of his political opinion or his imputed political opinion.
The Tribunal did not accept that the Applicant would be perceived, on his return, to have a political opinion opposed to the Chinese government or that he would be subject to harm upon his return for any other Convention reason if he were to return to China at that stage or in the reasonably foreseeable future.
Accordingly, the Tribunal was satisfied that the Applicant's fear of persecution was not well founded and affirmed the decision not to grant him a protection visa.
Application for Judicial Review in this Court
The Applicant commenced proceedings for judicial review of that decision in this Court by means of an application and an affidavit in support filed 20th March 2008. The Minister has filed a Response on 28th April 2008 claiming that the decision of the Second Respondent handed down on 21st February 2008 is not affected by jurisdictional error.
On 14th May 2008 the Applicant filed an amended application. In that amended application he seeks the following orders:
a)A declaration that the decision was invalid and contrary to law;
b)An order that the decision be quashed or set aside;
c)An order the matter be remitted to a differently constituted Refugee Review Tribunal to be determined in accordance with law;
d)An order for costs; and
e)Such other order as this Court sees fit.
I have explained to the Applicant that in order to make the orders that he seeks the Court must be satisfied that the Tribunal decision is affected by jurisdictional error. I am of the view that the Court does not have the power if it were to make an order in the nature of mandamus remitting the application to the Tribunal for determination according to law to make an order that the Refugee Review Tribunal be differently constituted. I am not satisfied that the Court has the power to make such an order and the Full Court of the Federal Court has taken that view in SZEPZ v Minister for Immigration and Multicultural Affairs[5].
[5] [2006] FCAFC 107
In any event the Court must be satisfied that the decision of the Tribunal is affected by jurisdictional error before any such orders can be made.
Submissions
The Applicant did not file a written outline of submissions but attended Court and made oral submissions which are in line with the particulars in his amended application. The Applicant's amended application sets out four grounds which are essentially similar to the four grounds in the original application except that some of the particulars have been expanded.
Counsel for the Minister, Mr Bevan, has filed a written outline of submissions replying to those grounds.
Ground 1 – Inconsistent findings and unwarranted assumptions
The Applicant's first ground is that the Tribunal's finding is significantly inconsistent, changeable and contradictory. He relies on the fact that the first Tribunal accepted almost all of his claims. He claims that the second Tribunal once again accepted his major claims, but he goes on to say that the third Tribunal refused to accept all of his claims and submits that the third Tribunal's finding is based on nothing apart from its unwarranted assumption.
Mr Bevan submitted that even though the first Tribunal accepted the Applicant's claims regarding copying of CDs for the Shouters the second Tribunal did not make any such positive finding. In any event, as he pointed out, those decisions were set aside by orders of the Court. Mr Bevan also submitted that the Tribunal put its concerns regarding the Applicant's claims directly to him at the end of the Applicant's evidence and did indeed notify the Applicant more than adequately of the issues arising in relation to the decision under review.
As to the Applicant's assertion that the Tribunal's findings were based on unwarranted assumptions Mr Bevan submitted that that complaint was misconceived and that the Tribunal, in setting out its doubts about the credibility of some aspects of the Applicant's evidence, was simply setting out its reasoning process concerning the evaluation of the inherent credibility or otherwise of the Applicant's evidence.
Ground 2– Reasonable Apprehension of Bias
The Applicant's second ground is that the Tribunal's finding has included a reasonable apprehension of bias. He claims in his particulars that the third Tribunal had already made its decision before the Tribunal's hearing because the Tribunal Member thought that a person like him, who was not a member of the Shouters, would not get involved in copying CDs for the Shouters. The Applicant went on to say:
"With such a strong bias, what the third Tribunal intended to do at the hearing was to pick up evidences or information according to its own taste in order to support her prejudice."
The Applicant went on to claim that the Tribunal failed to consider his evidences or information independently and impartially and properly. The Applicant claimed that the third Tribunal made its findings or decision based upon nothing apart from its own unwarranted assumptions. The Applicant then sets out at some length his views as to what the Tribunal knows or thinks or does not know.
Mr Bevan has submitted that the ground contains not only an allegation of a reasonable apprehension of bias, but a suggestion of an allegation of actual bias. However, he submitted that the Applicant had not filed any evidence to support his allegation of bias and drew the Court's attention to the fact that actual bias must be clearly proved. As he submitted, no inference of bias or pre-judgment can be drawn from the mere fact of adverse findings in the Tribunal's reasons. Mr Bevan drew the Court's attention to the decision of VFAB v Minister for Immigration and Multicultural and Indigenous Affairs[6].
[6] (2003) 131 FCR 102
Mr Bevan went on to submit that apprehended bias exists where a fair minded lay observer, informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal would apprehend that the Tribunal might not bring an impartial mind to the resolution of the question to be decided. He drew the Court's attention to the decision in Re Refugee Review Tribunal; Ex parte H[7].
[7] (2001) 179 ALR 425
In summary, Mr Bevan submitted that in the absence of both proper particulars and evidence and allegation of bias, actual or apprehended, cannot properly be sustained and there was nothing in the record of the decision to suggest that the Tribunal approached its task with anything other than an impartial mind
Ground 3 – Failure to comply with s.424A
The Applicant's third ground is that the Tribunal failed to comply with its obligation under s.424(a)(1) of the Migration Act. The basis of that ground is that:
"The Tribunal made its finding based on some pieces of information, such as the information provided by my witness, Mr Shi Yu as well as the information from my wife's letter."
The Applicant claims that the Tribunal:
i)Failed to give to him, in the way the Tribunal considered appropriate in the circumstances, particulars of the information in relation to the abovementioned Independent Country Information;
ii)Failed to ensure, as far as is reasonably practicable, that he understood why is was relevant to the review; and
iii)Failed to invite him to comment on it.
In his submissions the Applicant told the Court that if the Member had doubts about the information from his witness or from the letter from his wife then the Tribunal should have disclosed those doubts to the Applicant under the provisions of sub-section 424A(1) and given him the opportunity to make appropriate comments on them.
Mr Bevan submitted that the information which the Applicant claims should have been put to him for comment under sub-section 424A(1) was not in fact information that would enliven this obligation. Mr Bevan submitted that the letter from the Applicant's wife was provided to the Tribunal for the purpose of the application and thus falls within the exception contained in sub-section 424A(3)(b) of the Act.
As to the evidence of the Applicant's witness at the third Tribunal hearing, Mr Bevan submits that it did not contain in its terms a rejection, denial or undermining of the Applicant's claim for protection and therefore was not information for the purpose of s.424A (see SZBYR v Minister for Immigration & Citizenship[8]). Mr Bevan also submitted that the Tribunal also regarded the witness’ evidence as not credible when considered against the Applicant's evidence. Any disbelief on the part of the Tribunal arising from such inconsistencies is not information for the purpose of s.424A (see SZBYR at 616 [18]).
[8] (2008) 235 ALR 609 at 615 [17]
In oral submission Mr Bevan also drew the Court's attention to the decision of Gordon J in SZIAT v Minister for Immigration & Citizenship[9] which is a decision on appeal from the Federal Magistrates Court.
[9] [2008] FCA 766
Ground 4 – Failure to comply with s.425
The Applicant's fourth ground is that the Tribunal failed to comply with its obligations under s.425 of the Act and he complains:
"Like the second Tribunal, the third Tribunal failed to create me a fair chance to present my arguments relating to the issues arising in relation to the decision under review, because the third Tribunal failed to indicate to me what the issue was clearly and properly."
Mr Bevan submitted that the Applicant's assertion that the Tribunal failed to comply with the section by not indicating to him what the issue was clearly and properly cannot be made out. The issue which was determinative in the Tribunal's decision to affirm the Minister's delegate's decision was whether the Applicant copied CDs for the Shouters and it was submitted that the Applicant was clearly notified as to the importance of that issue and the Applicant was provide by the Tribunal with several opportunities to give evidence and present arguments in that regard. Therefore, the Tribunal complied with its obligations under s.425 of the Migration Act as explained by the High Court of Australia in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs[10].
[10] (2006) 228 CLR 152
Considerations
The applicant in reply asked the Court to explain a couple of matters raised by counsel for the Minister in his oral submissions and I endeavoured to explain those.
Ground 1
Turning now to the four grounds. The Applicant has told the Court that his first ground, relating to the inconsistency of the Tribunal's decision is that the Tribunal has in fact made three decisions on his application for a protection visa. The Tribunal has of course been differently constituted each time. However, it is not a proposition that on a subsequent hearing of the Refugee Review Tribunal after the Court has set aside an earlier Tribunal decision that the subsequent Tribunal is bound by the findings of the earlier Tribunal. There have been two previous hearings and in each case the Tribunal decision has been set aside by an order of the Court.
The decisions that have been set aside do not act in some way to bind the Tribunal differently constituted on a further hearing. It is also the fact that the two previous Tribunal hearings did not, as the Applicant claims, accept all of his claims. True it is that on the first Tribunal decision the Tribunal accepted some of the Applicant's claims.
"The Tribunal accepted the applicant's claim that he has attracted the adverse interest of the authorities in China. It accepts his claim that his business was confiscated and his house was searched because he was implicated in copying CDs for the Shouters.”[11]
[11] See Court Book at page 119.
The second Tribunal did not accept that at all. In the findings and reasons of the second Tribunal the Tribunal accepted that the Applicant ran a computer shop, but said:
"The Tribunal is not impressed by the quality and consistency of the Applicant's evidence about helping Shouters to mass-produce materials in his shop. There is a great incongruity in the details supposedly discussed between the Applicant and his Shouter friend. The Applicant gave inconsistent and implausible evidence as to his commitment to religious freedom in the PRC. The Tribunal was left unable to accept that the Applicant would have taken such risks with his business. The Tribunal does not accept as credible this account of a rural Shouter church leader moving his copying operations to the Applicant's shop."[12]
[12] See Court Book at page 155
It can clearly be seen that those two Tribunal findings are not alike. They are almost diametrically opposed to each other. In any event, the two Tribunal decisions were set aside. The Applicant got what he asked for, which was a further hearing. He attended that hearing, he gave evidence and the Tribunal did not accept the Applicant's claims. The Tribunal was not bound by the findings of either the earlier Tribunals.
Ground 1 must fail.
Ground 2
The second ground is that the Tribunal's finding has included a reasonable apprehension of bias. It is well established that bias or bad faith is a serious allegation and it must be strictly alleged and strictly proved. The Full Court of the Federal Court has dealt with this matter on several occasions in decisions such as SBBS v Minister for Immigration & Multicultural Affairs[13]. It is rare and exceptional for a finding of bias and bad faith to be made purely on the reasons for decision. As counsel for the Respondent Minister submitted, the mere fact of adverse findings in the Tribunal's reasons does not lead to an inference of bias or pre-judgment. (See VFAB v Minister for Immigration & Multicultural & Indigenous Affairs (supra) ).
[13] [2002] FCAFC 361
Certainly the Tribunal in the hearing challenged some of the Applicant's statements. That is a part of the Tribunal's inquisitorial function. It is not the case that a Tribunal Member must sit there quietly in the hearing and accept everything that the Applicant says without challenging it. The Tribunal is entitled, and in fact obliged, to put to the Applicant challenges to his evidence, especially if the Tribunal rejects the Applicant's case. An applicant cannot complain that the Tribunal asks him or her questions about his or her case, and claim that that constitutes bias. There is no evidence of bias. Bias has not been proven, whether it is actual bias or apprehended bias.
Ground 2 must fail.
Ground 3
The third ground relates to a claim of a breach of s.424A(1) of the Migration Act. The ground as put in the amended application has been modified, or perhaps supplemented, by a ground put by the Applicant in his submission to the Court today. I will deal with all aspects of the ground.
The ground as it appears in the amended application is that the Tribunal failed to comply with sub-section 424A(1) by not putting to the Applicant in the way required by sub-section 424A(1) two pieces of information:
i)Information from the Applicant's wife's letter; and
ii)Information from the evidence of his witness.
There is no doubt that the Applicant's wife's letter is a piece of information which was information that the Applicant gave for the purpose of the application for review. It is the Applicant's own information and it was provided to the Tribunal for the purpose of the Tribunal's review of the delegate's decision. As such, it comes squarely within the exception set out in sub-section 424A(3)(b) of the Migration Act which says, relevantly:
“Section 424A - Information and invitation given in writing by Tribunal
(3) This section does not apply to information:
(b) that the applicant gave for the purpose of the application for review.”
How then does the Court deal with the information that came from the Applicant's witness who gave evidence during the third Tribunal hearing? Counsel for the Minister has submitted that the evidence of the witness did not contain in its terms a rejection, denial or undermining of the Applicant's claim for protection and as such it was not information for the purpose of s.424A and relies on SZBYR. He further submitted that the Tribunal found the witnesses evidence not to be credible when it was considered against the Applicant's evidence. The Tribunal's disbelief is not information for the purpose of s.424A. (See SZBYR at [18]).
In my mind there is no controversy about that. But in any event I have had my attention drawn to the decision of Gordon J in SZIAT. This very question was argued before her Honour on appeal which of course was an appeal from a decision of Nicholls FM of this Court. It goes without saying that a decision on appeal from the Federal Magistrates Court is binding on the Federal Magistrates Court and quite clearly I am obliged to follow it.
It is helpful to consider the reasons of Gordon J in SZIAT:
“[36] The appellant submitted that the Tribunal failed to comply with its obligations in respect of additional information pursuant to s.424A in two ways: first, the Tribunal used information given by the appellant’s brother to make adverse findings against the appellant and, secondly, that the appellant gave information to the department of the first respondent as to the number of Falun Gong banners she hung in public places. This was later found by the Tribunal to be inconsistent with later claims. Only the first issue was pursued on appeal to this Court.
[37] Before the Federal Magistrate, the appellant submitted that this information was used by the Tribunal as "part of the reason for affirming the decision under review" and that in both circumstances, the Tribunal failed to put this information to the appellant in compliance with s.424A(1) and (2).
[38] I can identify no error in the reasons for decision of the Federal Magistrate. The testimony of the appellant’s brother did not constitute a "rejection, denial or undermining" of the appellant’s claims to be a person to whom Australia owed protection obligations and therefore was not information that formed part of the reason for decision: SZBYR 235 ALR 609 at [17]. The inconsistencies between the brother’s testimony and the testimony of the appellant was not information and therefore not subject to s.424A(1): SZBYR 235 ALR 609 at [18].
[39] Further, the evidence of the appellant’s brother was called on by the appellant. It was information given by the appellant for the purpose of her application for review and is therefore excluded information: s 424A(3)(b) of the Act (see also VBAM of 2002 v Minister for Immigration and Multicultural Affairs [2003] FCA 504 at [44] and SZAQI v Minister for Immigration and Multicultural Affairs [2006] FCA 1653 at [24].”
In my view, with respect, the decision in SZIAT clearly sums up both reasons as to why the evidence of the appellant's witness in SZIAT and the evidence of the Applicant's witness in the decision under review before me, is not caught by sub-section 424A(1) of the Migration Act. It is not information and not subject to s.424A(1) and in any event it is included under sub-section 424A(3)(b).
However, the Applicant claimed that the Tribunal's doubts about the evidence of his witness and about the letter from his wife should have been put to him by the Tribunal. The answer to that is quite clear. The Tribunal's doubts about evidence is not information. It is a thought process. As a thought process it is not information caught by sub-section 424A(1) and was not, therefore, required to have been put to the Applicant in the way required by the section. Accordingly, ground 3 must fail.
Ground 4
The fourth ground relates to the Applicant's claim that the Tribunal failed to comply with its obligation under s.425 of the Act by failing to give the Applicant a fair chance to present his arguments relating to the issues arising in relation to the decision under review because the Tribunal failed to indicate to the Applicant what the issues were. In my view this ground has not been made out either.
Conclusion
The first Tribunal accepted the Applicant's claims about copying CDs for the Shouters. The second Tribunal comprehensively rejected the Applicant's claims. At the hearing before the Third Tribunal in the decision under review it is clear that the Tribunal questioned the Applicant in some detail about that claim. The Tribunal said:
"The Tribunal asked the applicant why he would do something as risky as copying CDs for Shouters. The applicant stated that he had done this as he is lucky that he can live in a peaceful, brand new era and people should not be put in prison for their religious or political opinions. The Tribunal asked the applicant how copying material for the Shouters help promote the applicant's beliefs. The applicant stated that when he assisted the Shouters by copying the CDs he did not think that what he was doing would be a help but he saw many friends pursuing religion and he thought there was nothing wrong with this. The Tribunal asked the applicant what he thought would happen if he was caught and the applicant stated that he thought he would be sentenced."[14]
[14] See Court Book at page 188
The Tribunal went on to ask the Applicant questions about why the Shouters had asked him to copy those CDs.
"The Tribunal asked the applicant why the Shouters had used him and why they had not copied CDs on a computer in a person's private home. The applicant stated that he does not know why they could not have performed this task in a private home but perhaps they thought that they would attract more attention as they were already known to the PSB. The Tribunal put to the applicant that it does not understand why the Shouters would ask him to do something at his business that could be done secretly in a private home by one of their own members. The applicant stated that perhaps the PSB were already monitoring the Shouters. The Tribunal put to the applicant that there are thousands of Shouters so why not use one of their own members, and it would also seem that they did not need a specialised business to burn CDs. The applicant stated that members of the Shouters never do this themselves. They had previously used another shop to do it for them and that shop had been closed down."[15]
[15] See Court Book at page 189
Quite clearly the Tribunal had put the issues fairly and squarely to the Applicant and the Applicant was able to provide his answers. I am not satisfied that the Applicant was not aware of what the issues were. The Tribunal invited the Applicant to attend the hearing, and he attended. He gave evidence with the assistance of an interpreter and there are no complaints about the ability of the interpreter at the hearing to interpret for him. The Tribunal put the issues to the Applicant and gave him the opportunity to answer. I am not satisfied that the Tribunal failed to comply with its obligations under s.425 of the Act.
All four of the Applicant's grounds in his amended application must fail. I am mindful of the fact that the Applicant is not legally represented. I have read through the Tribunal's decision. It does not, to my mind, disclose any arguable case for jurisdictional error. The Applicant's amended application contains elements of submission. In ground 2 in particular the Applicant questions the Tribunal's knowledge and thoughts, saying:
"However, does the Tribunal know that I am not an animal but a human being with my own political views or political beliefs? Does the Tribunal know that there must be a person, even today, in China to risk his or her life to fight against the Communist dictatorship no matter what would happen to him or hers?"
This ground, and similar matters that were referred to in the ground, are, of course, no more than a challenge to the Tribunal's factual findings. It is what is known as merits review and merits review is not open to a Court conducting judicial review of a decision of an administrative decision maker.
What all of this means is that the Tribunal decision is not affected by any jurisdictional error. In the absence of jurisdictional error the Tribunal decision is a privative clause decision as defined by sub-section 474(2) of the Migration Act. Under s.474 of the Migration Act a privative clause decision is final and conclusive. It is not subject to orders in the nature of certiorari or mandamus as the Applicant seeks.
It follows therefore that the application must be dismissed.
Costs
There is an application for costs on behalf of the First Respondent Minister. The amount sought is $5,000.00 and I am satisfied that that is an appropriate amount. This is a case that has unfortunately had more than its fair share of Court events. There was a First Court Date on 14th April 2008 and a hearing date on 28th May 2008. Due to the unavailability of the Federal Magistrate who was to hear the case the application was adjourned until 3rd June 2008 for mention, and on that day I listed it for Final Hearing today. I am satisfied that the amount of $5,000.00 is an appropriate figure. I am satisfied that this is, in any event, an appropriate matter for an order for costs because the Applicant has been unsuccessful in his claim.
I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 19 June 2008
7
1