SZGON v Minister for Immigration - [2006] FMCA 61

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGON v MINISTER FOR IMMIGRATION

[2006] FMCA 61

MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal failed to accord procedural fairness – whether Tribunal asked itself the wrong question or failed to consider applicant’s claims.

Migration Act 1958, ss.414, 422B, 424A(1) & 430(1)(c)

Commissioner for Australian Capital Territory State Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Palme (2003) 201 ALR 327
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60
VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471
M87 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 23
M87 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 148
Muin v Refugee Review Tribunal& Ors, Lie v Refugee Review Tribunal & Ors (2002) 190 ALR 601
Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57
Kioa v West (1985) 159 CLR 550
V v Minister for Immigration & Multicultural Affairs [1999] FCA 428
Paul v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 39679
Appellant A169 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 8
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24
Prahastono v Minister for Immigration & Multicultural Affairs (unreported Federal Court of Australia, 8 July 1997

Applicant:

SZGON

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG1621 of 2005

Judgment of:

Barnes FM

Hearing date:

14 October 2005

Date of Last Submission:

15 November 2005

Delivered at:

Sydney

Delivered on:

31 January 2006

REPRESENTATION

Solicitors for the Applicant:

Mr J. Mitchell

Counsel for the Respondent:

Michaela Byers, Solicitor

Solicitors for the Respondent:

Clayton Utz

ORDERS

That the application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1621 of 2005

SZGON

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Background

This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) made on 13 July 1999 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa. The review application was filed on 22 June 2005.
The applicant is a citizen of the Peoples Republic of China who arrived in Australia in May 1998 and applied for a protection visa in September 1998. On 20 October 1998 a delegate of the first respondent refused to grant the applicant a protection visa. On 23 November 1998 the applicant sought review of that decision.
At the time the applicant lodged her application for a protection visa it was accompanied by a letter from her migration agent stating that a personal statement would be submitted. No such statement was submitted and no details for the basis for her claim to be a refugee were provided. However she provided a written statement in support of her application to the Refugee Review Tribunal. She claimed to have been a senior engineer in telecommunications in China but to have been persecuted and deprived of her job and her house because she made “open, discontent statements against the Chinese government”, and exposed the corrupt practices of the officials of her work unit. She also claimed that her personal way of life was quite incompatible with the “so called socialist ethics of the Chinese Communist Party”.
She claimed that she had been discontented with the Communist government since 1978 particularly after a year she had spent in Japan doing research in 1987. In 1989 her boyfriend was shot when he participated in a protest in Beijing. In 1990 she was warned by a person from the public security department of her work unit that she was slandering the Chinese government in letters to an overseas friend and warned not to write any more letters overseas. She claimed that in 1993 she became involved with a person in a secret political organisation called the Alliance for the Reform of the Chinese Constitution (the Alliance), that she introduced friends to the group and was given some booklets to distribute. She claimed that in 1994 her home was searched by police for booklets and that she was interrogated about her contact with the people involved in the Alliance. Three days later she was asked to go to the office of the Public Security Bureau and questioned further. Two months later she was transferred from her employment with the Department of Technology to the Supplying Department. This was a less important department.
She claimed that in 1995 she made a report to her section head about an equipment import transaction which she thought involved bribery or embezzlement. She refused to co-operate in what she thought was a cover-up which put responsibility on her. She reported this to the Party Secretary of the Telecommunications Bureau. Three months later she was transferred to the Purchase Department and given simple duties, involving the purchase of welfare articles for employees. She claimed that this was persecution of her by the section head and the vice director of the Bureau (who were involved in the equipment transaction). She claimed that she went on writing reports to party committees complaining about alleged embezzlement by the section head and the vice-director and their persecution of her. She also wrote to other official organisations during 1995 to no effect.
The applicant claimed that she became ill in 1996 and was not properly compensated for the cost of treatment. She was refused sick leave when she became ill again in September 1996. She claimed that in January 1997 she was notified that her name had been “taken off the books” of the personnel department of the Telecommunications Bureau (and that she was discharged from her government employment by the Bureau) because of her statements against the Communist Party and the socialist system and because she allegedly stayed away from work without leave for two months. She claimed her house was taken back by the Telecommunications Bureau in April 1997 and that the Telecommunications Bureau refused to send her dossier to the Human Resources Exchange Centre when she applied for a new job. She obtained employment as a shop assistant but was sacked because she was not the right person to do a sales job. She had no means of survival so decided to go overseas.

The Tribunal decision

The Tribunal accepted that the applicant was disillusioned with the Chinese Communist Party (CCP) rule in China and did not like or respect the government there any more. However it found that this itself was not a ground for claiming refugee status. Nor were her claims about China’s human rights record.
The Tribunal also accepted that the applicant may have had a friend who disappeared during the course of the pro-democracy demonstrations in 1989 and may have been questioned about a relationship with a particular person in 1994. However it did not accept that she had a profile such that she would face a real chance of persecution for reasons of her political opinion or on any other Convention ground if she returned to China. The Tribunal had regard to the relatively favoured career the applicant had had on her own account until 1996, including education, overseas travel and promotion, and the absence of any conviction or detention by the PSB for any reason. The Tribunal was prepared to accept that the applicant may have been questioned in 1994 but had regard to the fact that she had stated that nothing untoward ever happened to her.
The Tribunal also had regard to the fact the applicant was given a private passport in 1996 and possessed an official passport issued in 1994 and extended in 1996 and 1998 by the relevant foreign affairs bureau. She had departed from and returned to China on several occasions and stated that she had no difficulties in obtaining her travel documents and that she left China legally in 1998. In view of independent evidence on passports and exit procedures in China the Tribunal found this suggested that the applicant was a well-regarded citizen. It found that she was not a person of adverse interest to the authorities.
The Tribunal also accepted that the applicant may have been dismissed from her job in January 1997 and asked to give up her company flat in April 1997, but was not satisfied that this occurred for a Convention-related reason. It had regard to her own evidence that she was dismissed for two reasons. One was because she took leave for several months without approval. This was not Convention related. While she also claimed she was dismissed because of her anti-government political opinions the Tribunal found that, having regard to her evidence, if her employers did discriminate against her they were motivated to do so not because of her political opinions but by a desire for revenge for her accusation that they had embezzled $US100,000. The Tribunal recognised that anti-corruption activity could be perceived as political opinion in some countries but was satisfied that this was not the situation in the present case because according to independent evidence the government encouraged and supported the reporting of corruption.
The Tribunal also found that although the applicant claimed she had been outspoken about her political opinion since 1989 she did not suffer any serious or adverse consequences from the authorities for so doing. She was never detained. She earned a relatively high salary and was given a private passport and her official passport was extended twice. The Tribunal stated that according to independent evidence she must have been given an exit permit from her work unit and the PSB to get her official passport extended in 1996 and to be issued with a private passport that year.
The Tribunal accepted that discrimination in employment could amount to persecution in some circumstances but did not accept that this was the case in the present circumstances. It found that if the applicant lost her job and flat in China it was not for a Convention-related reason and that in any event the independent evidence suggested that a person with her qualifications could find a job in the private sector.
The Tribunal did not accept the applicant’s claims that she departed from China in a manner that breached the regulations, noting the claims in her protection visa application that she departed legally and that the official passport she used to exit from China was validated by the relevant authorities in 1998, a few weeks before she came to Australia. Moreover she told the Tribunal at the hearing that she had accompanied a bona fide business delegation and intended to conduct business for the Harbin Health Appliance Company in Australia. The Tribunal also found that even if the applicant did break some law in departing from China this did not lead to a conclusion that she would be persecuted for a Convention-related reason if she returned to China, but rather that she would be subject to a law of general application relating to departures from that country.
Finally the Tribunal found generally that the genuineness of the applicant’s claim to fear persecution in China was undermined by the fact that she did not submit an application for a protection visa until three months after her arrival in Australia and did not set out the grounds for her claims to be a refugee in that application. The Tribunal noted she claimed to be unfamiliar with the law in Australia and that she did not feel well but also that she had an adviser and was competent in the English language and moreover intended to engage in business in Australia and had spent time sightseeing with the delegation after her arrival. However the Tribunal found that as the applicant did not have a well-founded fear of persecution for a Convention reason it did not have to make a finding on the issue of credibility. The Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason now or in the reasonably foreseeable future if she returned to China.
The applicant filed an application for review in this Court on 22 June 2005. She filed an amended application on 22 August 2005 and now relies on a further amended application filed in Court. The parties each made further written submissions after the hearing.

Whether the Tribunal failed to accord the applicant procedural fairness

The first ground relied upon in the further amended application is that the Tribunal failed to accord the applicant procedural fairness by not putting to her for comment particulars of information the Tribunal considered would be the reason or part of the reason for affirming the decision under review.
The first particular is that it failed to invite the applicant to comment on the proposition that she did not have such a profile that she would face a real chance of persecution for reasons of political opinion or on any other Convention ground and made a finding that in view of independent evidence on passports and exit procedures this suggested that the applicant was a well-regarded citizen and found therefore that she was not a person of adverse interest to the authorities.
The second particular is that the Tribunal failed to invite the applicant to comment on the “finding” that she was not dismissed or compelled to give up her flat for a Convention reason, was competent in English and that independent evidence indicated she could find employment in the private sector and that it made a finding that if she lost her job and flat it was not for a Convention-related reason, that she had been able to live with her parents, was relatively young, had tertiary qualifications including overseas training in communications, was fluent in Japanese and competent in English and that independent evidence suggested a person with the applicant’s qualifications could find a job in the private sector where the whereabouts of her personal file was not particularly relevant.
The written submissions prepared by the solicitor for the applicant stated this ground but made no submissions as to the basis for the contention that the Tribunal had failed to accord the applicant with procedural fairness. At the hearing the transcript of the Tribunal hearing was filed. The proposition that the Tribunal erred in failing to invite the applicant to comment on the matters referred to above was repeated but not elaborated on by the solicitor for the applicant.
Counsel for the respondent conceded (correctly) that s.422B of the Migration Act 1958 (Cth) was not applicable and that it was necessary to consider the claim that there was a lack of procedural fairness and made detailed submissions to which the solicitor for the applicant responded in post-hearing submissions. .
The first issue is whether the Tribunal erred in failing to invite the applicant to comment on the proposition that she did not have such a profile that she would face a real chance of persecution for reason of political opinion or for any other Convention reason.
In Commissioner for Australian Capital Territory State Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591 – 592 the Full Court said:
[Procedural fairness] also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.
This passage was quoted with apparent approval by Gleeson CJ, Gummow and Heydon JJ, with whom McHugh J agreed, in Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Palme (2003) 201 ALR 327 at [22]. Also see Gummow and Heydon JJ, with whom Gleeson CJ agreed, in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60 at [48] and [54]. In Applicant S154/2002 at [54] their Honours said:
The Tribunal member was not obliged to set out every detail of the reasoning process which he eventually employed for the prosecutrix’s consideration.
In this instance the matters in question are findings about the applicant’s political profile and whether she faced a real chance of persecution on that basis. There was no obligation on the Tribunal to invite the applicant to comment on its provisional views or its thought processes or conclusions. This is not a case in which it can be said that such adverse conclusions would not obviously be open on the known material. The issue of whether the applicant had a well-founded fear of persecution for a Convention ground was apparent to the applicant. The relevance of her political profile (insofar as her claim was based on the Convention ground of political opinion) was not such as to require the opportunity to comment. In any event, in the course of the Tribunal hearing the Tribunal specifically asked the applicant why she was applying to be a refugee and stated:
I am trying to establish why you might think you are a refugee, and I really don’t see any reason for you being a refugee if you say you’ve got no work in China, you’ve got no home in China and you broke the rules in coming out of China. None of those reasons have got anything to do with the Convention on refugees.
The applicant was given an opportunity to expand on her reasons for claiming to be a refugee. The Tribunal also put to her for comment independent information about the government attitude to corruption. No error is established on this basis.
While not clearly expressed in the first ground in the further amended application it appears that the applicant may also be contending that the Tribunal erred in failing to put independent evidence on passports and exit procedures in China to the applicant in the context of a finding that the applicant was not a person of adverse interest to the authorities. In supplementary submissions it was contended for the first time for the applicant that the Tribunal was under an obligation under s.424A(1)(a) of the Act to put to the applicant the “information” that the applicant was a “well-regarded citizen” and therefore not of adverse interest to the authorities. However the word “information” does not encompass the Tribunal’s subjective appraisals, thought processes or determinations (see cases cited in VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 at [24(iii)] per Finn and Stone JJ) and it has not been established by the applicant that the matters in question constituted “information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review”. Contrary to the applicant’s assertion, the Tribunal was not obliged to put its “reasons” for making the finding that the applicant was well-regarded and not of adverse interest to the authorities, either under s.424A or principles of procedural fairness.
While such “reasons” and findings about the applicant not being a person of adverse interest to the authorities did not have to be put to the applicant for comment, the question of whether the Tribunal was under an obligation to put independent country information on passports and exit procedures in China to the applicant does require some consideration.

As Kenny J stated, after a consideration of the relevant authorities, in M87 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 23 at [29] (upheld on appeal in M87 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 148):
The basic rule is that a person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with any matters relevantly adverse to his or her interests, which the decision-maker proposes to take into account. As Brennan J put it in Kioa v West, at 629, “in the ordinary case … an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made.”
However as her Honour also pointed out at [28], what the obligations of natural justice require of a decision-maker in any particular case depends not only upon the statute pursuant to which the decision is to be made (in this instance the Migration Act 1958 (Cth)) but also upon the particular circumstances of the case (see Muin v Refugee Review Tribunal& Ors, Lie v Refugee Review Tribunal & Ors (2002) 190 ALR 601 at [123] per McHugh J and [236] per Kirby J and Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at [129] and [143] per McHugh J and Kioa v West at page 611 per Brennan J). Moreover the nature and significance of the information in question affects what procedural fairness requires.
When one has regard to the particular circumstances of the case, it may be that, as McHugh J stated in Ex parte Miah at [141], exercise of the decision-maker’s power will not require that the applicant have an opportunity to comment on particular material. His Honour gave as examples of material that would not require comment by the applicant non-adverse country information, favourable or corroborative information in the public domain and information based on the circumstances already described in the application. On the other hand his Honour suggested that the exercise of the decision-maker’s power would generally require that the applicant be given an opportunity to comment on material such as new material of which the applicant may be unaware and which is or could be decisive against his or her claim, in particular where the material concerns circumstances that have changed or where the material is equivocal or contains information that the applicant could not reasonably have expected to be used in the way it was used (at [141]). In other words as Kirby J stated in Ex parte Miah at [195] “In a sense, the greater the significance of the information, the more pressing became the necessity to disclose it to the prosecutor for his submission or comment”.
It is apparent then that the question of whether there has been a breach of the rule of procedural fairness involves a consideration of all the circumstances of the particular case. Consistent with this proposition in Muin and Lie McHugh J noted at [133] that “[w]hether or not an issue is obvious is usually of fundamental importance in determining whether a person affected by the exercise of power should be given an opportunity to make submissions”.
It is helpful to consider first the claims made by the applicant, particularly as elaborated upon in the Tribunal hearing, insofar as such claims are relevant to the Tribunal’s reliance on independent evidence on passports and exit procedures. This information was referred to in the context of the Tribunal’s lack of acceptance that the applicant had a profile such that she would face a real chance of persecution for reasons of her political opinion or for any other Convention reason if she returned to China. In other words it was part of the Tribunal’s consideration of the applicant’s claims to fear persecution based on her disillusionment with the Chinese Communist Party, her lack of respect for the government, her concern about human rights in China (all of which were discussed and dismissed on grounds which had nothing to do with her departure from China), her specific claims about a friend who disappeared during the pro-democracy demonstrations in 1989 and the fact that she was questioned about her relationship with a person involved in what she claimed was a secret political organisation in September 1994. It is notable that when the issue of the applicant’s expression of political viewpoints was discussed at the Tribunal hearing the Tribunal also pointed out to the applicant that she had never been detained by authorities, that she had retained her job during the period in issue, had been promoted, had travelled overseas on an official passport issued in 1994 and that the passport had been extended twice in 1996 and 1998 without difficulties. The Tribunal also asked the applicant about claims which related to the person who was said to belong to the secret organisation. She acknowledged that she had not been arrested because there was no evidence against her and also that nothing untoward had happened to her.
The applicant confirmed that her protection visa application was true and correct. In that application she had stated that she left China legally, that she did not have difficulties obtaining a travel document such as a passport and that her travel document was valid for return to her home country. She confirmed in the Tribunal hearing that she had no trouble getting her passport but explained that she spent some money to get a company to do all these things for her and did not come out through a normal channel. She had paid a company over $US10,000. However the Tribunal questioned her further about this claim and her claim that she said that she came out legally but did not go through the proper normal procedure. The Tribunal stated:
TRIBUNAL MEMBER: I don’t understand why you are saying. It says here on your passport that you went through the airport and you got this stamp by the public security bureau?
APPLICANT: Of course, if you only look at the passport, if there is no problem with it they will put down a stamp.
She claimed that she travelled to Australia on an official passport but when asked why she had to pay the $US10,000 her response was “If I had to go through the proper procedure that is, I have to go through the Telecommunications Bureau to get the passport stamp before I could go for this passport”.
It appears that the applicant’s claim was that she would have had some difficulty in getting approval for a recommendation from her former employer, not that she had a difficulty with the public security bureau. The Tribunal then asked the applicant “But you already had this passport, this passport was issued in 1994 so why did you have to pay $10,000? Where did you get the $10,000 from?” The applicant indicated that she had handed back the passport to the Foreign Affairs Office and had asked the company which she paid to arrange her business visa using her official passport (having unsuccessfully applied for a tourist visa to visit Australia). She explained that it was easier to use the official passport because the company was organising a business delegation to Australia. She agreed that her official passport had been extended by the local Foreign Affairs Office. When asked whether this required permission from her employer the applicant informed the Tribunal of the procedure for approval for overseas travel and told it that in this case the company she had paid $10,000 to filled out a form stating she was a staff member. No permission had been sought from her former employer. She stated:
First of all your work unit has to agree to let you go overseas and then in the Foreign Affairs Bureau there is a form called Political Clearance, so you fill out the form and it will only be effective if your work unit put a seal on it. So then you hand in the form together with invitations from overseas so they can give you the passport. But this time the form was completed by the company.
The Tribunal finding that, according to independent evidence on Chinese passports and exit procedures, the applicant must have been given an exit permit from her work unit and the PSB to get her official passport extended in 1996 and to be issued with a private passport in that year is consistent with what the applicant told it about passport and exit procedures. From her further evidence to the Tribunal it appears that the company the applicant paid the money to also assist her with her application for a Sub Class 456 Business visa and that such company was also supposed to help her get a Sub Class 457 Business visa in Australia. When asked what she thought would happen to her if she had to go back to China she stated:
The first one and the most important one I don’t have a job and no house. Thirdly, when I came out this time it will be use to touch me because the whole procedure was a breach of the regulation. I think that is the main issues.
In connection with her explanation that the company she had paid in connection with her travel to Australia had assisted her to have her official passport extended, she indicated that that was preferable as the company was organising a business delegation and stated:
Right at the beginning they were thinking of applying for a new public affairs passport for me but when they went to the foreign affairs office they said well this person has already had one and it can be extended and reused.
It was in light of these claims that the Tribunal gave reasons for not being satisfied that the applicant had a profile such that she would face a real chance of persecution for reason of her political opinion. It had regard to her work history, education, overseas travel, promotion, the absence of any convictions, the fact that she was never detained and that nothing untoward happened to her after being questioned in 1994. No issue is taken with these findings, which do not depend on any independent country information. The Tribunal also had regard to the fact that the applicant was given a private passport in 1996 (which I note was after she was questioned in relation to the person associated with the Alliance in 1994) and possessed an official passport which had been issued in 1994 and extended in 1996 and 1998 by the local Foreign Affairs Bureau and that she had departed from and returned to China on several occasions and had stated that she had no difficulties in obtaining her travel documents and left China legally in 1998. The Tribunal then stated “In view of the independent evidence on passports and exit procedures in China, considered above, this suggests that the applicant was a well-regarded citizen. I find therefore that the applicant was not a person of adverse interest to the authorities.”
The information on passports and exit procedures from China, while not specifically put to the applicant, is consistent with and indeed corroborative of what the applicant said in relation to exit procedures and approval by the authorities. It is important that the applicant did not claim that she had any difficulties with the authorities. Indeed she acknowledged that her passport would be and was approved by the relevant authority. Even if she may have had a difficulty obtaining a work unit recommendation in 1998 (given that she was not then in employment and had had her employment terminated) it is clear from what she told the Tribunal about the need for a work unit to agree to let an employee go overseas that she was aware of the facts about exit procedures from China. It is also apparent that she understood the need for a political clearance. She told the Tribunal that the authorities had been willing to extend her passport.
The applicant was clearly aware of the situation in relation to passports and exit procedures from the PRC. Hence it was not necessary for this information (whether or not it could be said to be in the public domain) to be brought to her attention. She was also aware of the situation in relation to the security authority and the need for its approval. Information in relation to the PSB or other authorities and the fact that the applicant’s departure would come to the attention of the authorities did not have to be brought to her attention. There was no suggestion that she resorted to bribery or that her name was on a wanted list or that she had used a special relationship with someone in authority to achieve her objectives by unofficial means. Information which was not relevant to her circumstances did not have to be brought to attention. The information that was relevant to her circumstances was information which was consistent with what the applicant told the Tribunal as to her understanding of Chinese exit and departure procedures and was corroborative of its conclusion that she was well regarded and not of adverse interest “to the authorities” based on her history of having an official passport which was renewed and the absence of difficulties in obtaining her travel documents and her legal departure from China in 1998.
It has not been established that the Tribunal in the present case failed to give an opportunity to the applicant to deal with relevant matters adverse to her interests which it proposed to take into account or failed to give the applicant an opportunity to deal with adverse information that was credible, relevant and significant to the decision to be made (see M87 of 2003 at [36]) or otherwise denied the applicant procedural fairness as contended.
In post-hearing supplementary submissions made in response to the respondent’s submissions the applicant suggested a breach of s.424A(1)(a) in relation to this information. However the country information about passports and exit procedures is within the s.424A(3)(a) exception. No jurisdictional error is established in the manner contended by the first particular to ground 1.
The second particular under this ground is that the Tribunal failed to invite the applicant to comment on the finding that she was not dismissed or compelled to give up her flat for a Convention reason, was competent in English and that independent evidence indicated she could find employment in the private sector. Insofar as this involves a claim that the Tribunal should have invited the applicant to comment on its reasoning or conclusions, the Tribunal was under no such obligation. Nor was it obliged to invite her to comment on its finding about the absence of a Convention reason – but in fact it raised this with the applicant in the hearing.
Insofar as this particular is intended to take issue with the failure of the Tribunal to invite the applicant to comment on independent evidence suggesting a person with the applicant’s qualifications could find a job in the private sector where the whereabouts of her personal file was not particularly relevant, this information was relevant to the applicant’s claim to have lost her job and that the government (her former employee) had deprived her of her working right forever because it had refused to send her dossier to a human resources exchange centre for the use of another potential employer. However the Tribunal had already made an independent finding that if her employers did discriminate against her they were motivated to do so not because of her political opinions but by a desire for revenge as her boss was retaliating against her because she persisted in making allegations about his embezzlement of $US100,000. In other words there was no Convention nexus to this aspect of the applicant’s claims.
The Tribunal had found that the applicant was dismissed from her employment in 1997 for two reasons, namely because she took leave for several months without approval and because her employers were motivated by a desire for revenge for her accusation of embezzlement. The finding that she was not dismissed because of her political opinion and therefore that any discrimination or persecution that may have been suffered by the applicant was not for a Convention-related reason provides the context for the passage complained of in the Tribunal reasons for decision.
In this context the Tribunal reliance on information about use by employers of a personal file was not a critical or significant part of the reason why the applicant was denied a protection visa. Taken at its highest it was confirmatory of the Tribunal’s earlier but independent finding that that applicant’s dismissal and her claim of discrimination by her employers did not constitute persecution for a Convention-relation reason, in particular for her political opinion in relation to corruption. Even if her dismissal from employment and the consequential action by her employer constituted discrimination or persecution, the Tribunal’s finding that any discrimination or persecution was not for a Convention reason was based on information discussed with the applicant and was not affected by any failure to raise any of the matters referred to in this particular to ground one. Hence the information in question, including the independent country information in relation to personal files, was not relevant and significant to the decision to be made (see Brennan J in Kioa v West at 629 and Kenny J in M87 of 2003 at [29]) and did not have to be disclosed to the applicant. While procedural fairness obligations relate to the procedure adopted (not just the decision), the Tribunal had made clear to the applicant that its concern was the absence of a Convention nexus. In these circumstances it was not necessary for the particular information in question to be put to the applicant for comment.

Whether the Tribunal asked the wrong question

The next ground relied on by the applicant is that the Tribunal asked the wrong question: “… the applicant was not a person of adverse interest to the authorities” when the question should have been whether upon return to China the applicant would suffer persecution due to her political opinion and/or anti-corruption activities. However, as contended for by counsel for the respondent, there is no substance in this ground. It is not established that the Tribunal asked itself the wrong question in the manner contended. Rather the Tribunal made a finding that the applicant was not a person of adverse interest to the authorities as part of the relevant findings which led to the ultimate conclusion that it was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason now or in the reasonably foreseeable future if she returned to China. On a fair reading of the Tribunal decision it is not apparent that the Tribunal considered only whether the applicant had suffered persecution or had a well-founded fear of persecution in the past. It also turned its mind to the future for the applicant if she returned to China. In that context the relevant finding in relation to the past was one of the matters which led the Tribunal not to accept for the reasons given (including the finding about the applicant not being of adverse interest to the authorities), that she did not have a profile such that she would face a real chance of persecution for reason of her political opinion or for any other Convention reason if she returned to China.

Whether the Tribunal failed properly to consider the applicant’s claims and carry out its statutory task

This claim is that the Tribunal found:
However, having regard to her evidence, I find that if her employers did discriminate against her, they were motivated to do so not because of her political opinions but by a desire for revenge. (CB page 108)
It was suggested in the further amended application that desire for revenge was a form of persecution and that in V v Minister for Immigration & Multicultural Affairs [1999] FCA 428 the Federal Court found that “anti-corruption activity can be perceived as the Convention ground of political opinion”.
As part of the same ground it was contended that the Tribunal failed to consider the claim that the applicant was a supporter of the Alliance for the Reform of the Chinese Constitution and had been questioned about her acquaintances and activities by the Public Security Bureau and the police on a number of occasions and failed to consider whether this profile could bring her within the adverse attention of the authorities. It was also contended that the Tribunal failed to carry out the review in accordance with its statutory obligation in s.414 of the Migration Act 1958.

Again this ground was not elaborated upon in the applicant’s written submissions before the hearing or in the hearing. However in supplementary submissions in response to post-hearing submissions from the respondent, the applicant contended in relation to the first aspect of this ground that desire for revenge was a form of persecution. In V v Minister for Immigration & Multicultural Affairs [1999] FCA 428 Whitlam J stated at [39]:
A person who publicly campaigns against official corruption in the country, where such corruption is endemic and apparently tolerated by the government authorities, may well be thought to evince a political opinion “within the meaning of that phrase in the Convention definition”.
It was submitted that the applicant’s conduct and the circumstances in China satisfied this definition. It was contended that the Tribunal had misconstrued her claim and the Convention definition. Reliance was also placed on what was said by Wilcox J in V at [7] to the effect that what was in issue was the motivation of those inflicting harm and not the victim. It was submitted that “desire for revenge” satisfied the definition of persecution.
However, no jurisdictional error is established in the manner contended for by the applicant. Consistent with what was said by the Federal Court in V v Minister for Immigration & Multicultural Affairs, in this case the Tribunal found that the reporting of corruption was encouraged and supported by the government and also that, as the applicant had stated, her boss was retaliating against her because she persisted in making allegations about his embezzlement of $US100,000. Thus while it accepted that anti-corruption activity could be perceived as political opinion in some circumstances, it was not satisfied that this was the case in the particular circumstances before it. Consistent with this conclusion was its further finding that although the applicant claimed she had been outspoken about her political opinions since 1989 she had not suffered any serious or adverse consequences from the authorities for doing so.
The Tribunal addressed her claim that her employer was motivated by a desire for revenge and her claims that anti-corruption activity was political opinion for which she was persecuted and that her loss of employment amounted to persecution for a Convention reason. The Tribunal accepted that discrimination in employment could amount to persecution in some circumstances but, reading the Tribunal reasons fairly and as a whole, found that if her employers did discriminate against her they were not motivated to do so for a Convention-related reason. It has not been established that the Tribunal failed to address the integers of the claims put forward by the applicant (see Paul v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 39679 and Appellant A169 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 8 at [24] and [25]). The Tribunal’s findings in relation to these claims were open to it on the material before it. The Tribunal set out its findings on those questions of fact which it considered to be material to the decision which it made and the reasons it had for reaching that decision (see s.430(1)(c) and Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [68]). It was entitled in so doing to weigh evidence before it. It is not for the Court to determine the appropriate weight to be given to the matters which have been taken into account (Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24).
The other aspect of this ground is a contention that the Tribunal failed to consider the applicant’s claim that she was a supporter of the Alliance for the Reform of the Chinese Constitution and that she had been questioned on a number of occasions and whether this profile could bring her within the adverse attention of the authorities. In submissions in reply it was contended that the Tribunal failed to consider this claim and failed to make a finding setting out reasons and failed to speculate whether the applicant’s support for the Alliance had imputed her with an anti-government profile and brought her to the adverse attention of the Chinese authorities.
However, the Tribunal did not fail to consider the applicant’s claims in a manner constituting jurisdictional error. The Tribunal accurately summarised the applicant’s claimed association with members of the Alliance. She did not claim to be a member of the Alliance but rather that she had been given booklets and asked to distribute them to her friends. The Tribunal also noted that when asked about expressing her political viewpoints the applicant claimed she had not done so since 1989 (whereas the events in relation to the Alliance had occurred in 1993 and 1994). The Tribunal asked the applicant about her claims relating to a particular member of this organisation and she told the Tribunal that while she was questioned twice in September 1994 she was not arrested because there was no evidence against her and nothing untoward happened to her.
The Tribunal dealt with this aspect of the applicant’s claims in support of its conclusion that the applicant did not have a profile such that she would face a real chance of persecution for reasons of her political opinion or for any other ground. It dealt not only with the fact that she had claimed to have been outspoken about her political opinion since 1989 but also had regard to the fact that she had not suffered any serious or adverse consequences from the authorities and indeed had been promoted, travelled and given a private passport and an official passport which was extended twice. This occurred after the events in question. Further, in relation to the specific claims about her association with and activities for the Alliance, the Tribunal accepted that she may have been questioned in 1994 as claimed but had regard to the fact that, as she had stated, nothing untoward had ever happened to her. On the contrary she had been treated in a manner which indicated she was not of adverse interest to the authorities. In these circumstances it is not established that the Tribunal failed to address the integers of this claim.
It also appears to be contended in the applicant’s post-hearing submissions that the Tribunal closed its mind to speculation. However, as set out above, the Tribunal considered the claims that the applicant made. No jurisdictional error has been established in the manner in which it dealt with such aspect of her claims. In particular it considered but rejected her claims that her association with the Alliance and Alliance members was such as to impute her with a profile such that she would face a real chance of persecution for reason of her political opinion or for any other Convention ground.

Whether the Tribunal failed to consider that loss of employment and housing was serious harm

The final ground relied on in the further amended application is that the Tribunal failed to consider that loss of employment and housing was serious harm (Prahastono v Minister for Immigration & Multicultural Affairs (unreported Federal Court of Australia, 8 July 1997). It was claimed that the applicant’s employers were government officials and dismissed her from her job and took away her company housing in response to her anti-corruption activities against them in reporting them to higher authorities.
However, as set out above, the Tribunal dealt with these claims but found that such events were not for a Convention-related reason. Hence it was not necessary for it to consider in the manner contended whether such loss was serious harm. No jurisdictional error has been established by this ground.
As no jurisdictional error has been established the application must be dismissed. Accordingly it is not necessary to consider the delay between the time of the Tribunal decision (1999) and the application to this Court in 2005.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 31 January 2006