SZGYL v Minister for Immigration

Case •

[2007] FMCA 1397

•

23 August 2007

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGYL v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1397
MIGRATION – Application to review decision of Refugee Review Tribunal – interpreter not fluent in particular dialect – hearing conducted in language requested by applicant in response to hearing invitation – whether failure by Tribunal to comply with s.425 of the Migration Act 1958.
Migration Act 1958, ss.424A, 425
Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230
Minister for Immigration & Multicultural Affairs v Jia (2001) 178 ALR 421
Perera v Minister for Immigration & Multicultural Affairs [1999] FCA 507
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Re Refugee Review Tribunal; Ex parte H (2001)75 ALJR 982
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668
SYYB v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 24
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2006) 230 ALR 1
SZGYK v Minister for Immigration & Multicultural & Indigenous Affairs [2007] FMCA 446
SZGYM v Minister for Immigration & Multicultural Affairs [2007] FMCA1418
Applicant: SZGYL
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 2161 of 2005
Judgment of: Barnes FM
Hearing date: 9 August 2007
Delivered at: Sydney
Delivered on: 23 August 2007

REPRESENTATION

Applicant: In person
Counsel for the Respondents: Mr A. Izzo
Solicitors for the Respondents: Sparke Helmore

ORDERS

  1. That the application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2161 of 2005

SZGYL

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

  1. This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 19 July 2005 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa. The applicant, a citizen of the People’s Republic of China, arrived in Australia in October 2004. He applied for a protection visa. His wife and adult son each made separate applications for protection visas. The applications were refused and the applicant and his family members each sought review by the Tribunal.

  2. In his protection visa application the applicant claimed to be a member of the “Shouters” underground religious group which gathered every Sunday and that he and his wife were wanted by the local police in the PRC. He claimed that his wife was head of the branch and that their house was the place for gatherings.

  3. In connection with his Tribunal application the applicant reiterated his claim that he and his wife were wanted by local police because they were members of Shouters, an underground religious group and claimed that if caught they would be subjected to two years imprisonment.  The applicant provided a translation of a document headed “Order for Arrest” dated 12 November 2004. 

  4. In his protection visa application the applicant had indicated that the only language he spoke, read and understood was Mandarin.  In the review application he indicated that he required a Mandarin interpreter.  He did not specify a dialect.  On 13 April 2005 the Tribunal wrote to the applicant inviting him to attend a Tribunal hearing on 20 May 2005.  In a completed response to hearing invitation form the applicant indicated that he needed a Mandarin interpreter.  No dialect was specified.  Similarly his wife requested a Mandarin interpreter on the forms that she completed. 

  5. However it appears from a Tribunal file note, that in a conversation of 18 May 2005 between a Tribunal staff member and the applicant (conducted in Mandarin) in relation to whether there would be one hearing or separate hearings on different days for each member of the family, the applicant stated that they preferred a “Fuzhou” dialect interpreter to a Mandarin interpreter.  It was recorded that the applicant also said that they could go ahead with a Mandarin interpreter but that it would be with difficulty.  It was recorded that the applicant confirmed his full understanding of the contents of this telephone call. 

  6. The Tribunal wrote to the applicant on 19 May 2005 confirming that a joint hearing would be conducted on 27 May 2005 so that he, his wife and son would not be required to come to the Tribunal on different days. The Tribunal stated that “as requested” it would try to arrange a “Fukkien/Fuzhou dialect interpreter” for the hearing. On 27 May 2005 the Tribunal wrote to the applicant advising that an interpreter in “the Fuzhou dialect” had now been secured for the hearing which would now be on 9 June 2005. The applicant attended the hearing on 9 June 2005.

  7. In its reasons for decision the Tribunal recorded that an interpreter who spoke both Mandarin and the Fuzhou dialect had been provided for the Tribunal hearing. However at the commencement of the hearing the interpreter had raised concerns about the language he would use, as having spoken to the applicants, he did not feel that the Fuzhou dialect was their dialect. The Tribunal recorded that it raised with the applicants the possibility of the hearings being conducted in Mandarin (noting the references to Mandarin in each protection visa application and the request for a Mandarin interpreter in the response to hearing invitation). The Tribunal recorded that the applicant husband and wife agreed that they could conduct the hearing in Mandarin, that if they experienced any difficulty with interpreting questions could be repeated and that they were invited to raise their concerns as the hearing progressed.

  8. The Tribunal also recorded that while the applicant, his wife and son each stated that they were happy to have a joint hearing, they were informed that each was entitled to a separate and distinct hearing. They agreed with the proposal that the Tribunal would explain the hearing process with all three present, but that each would then give evidence without the presence of the others. 

  9. The Tribunal recorded that the applicant husband and wife claimed that their travel documents had been organised for them by a “snakehead”.  The applicant stated that he had come to Australia to visit his son but also that he decided to travel to Australia because he feared persecution. 

  10. The applicant told the Tribunal that he was a Christian, that he had been arrested in 2001 because of his religious beliefs and that he had been considered to be making trouble for the social order and for religion. He claimed he was detained for 32 days and then released. When asked to elaborate, he claimed that he had been involved in gatherings which involved Bible reading and promoting Bible knowledge. When asked whether this meant he was a Christian, the applicant stated that his wife was a Christian and that “he just followed her because he was very busy with his career and does not have a lot of time for religion”. The Tribunal recorded that he was not “terribly clear” about whether he was a Christian. He stated that he did not read much and did not know a lot about the Bible. When asked for details about his religious beliefs he claimed to believe in Jesus and the will of God. He told the Tribunal that while Sunday gatherings at his house were organised for Bible reading sessions he could not elaborate about what was in the Bible because he was not literate. When asked what type of Christian he considered himself to be, he stated that he believed in Jesus. He also said that his parents-in-law were Christian. He told the Tribunal he occasionally went to church in Australia. When asked again to tell the Tribunal something about his religion, he stated his brain was “not good”, he “forgets things easily” and that he became a Christian when he married his wife and that he just followed her. He claimed to have been baptised, but did not know whether he was baptised into a particular church or denomination. He had not attended any churches in China, just attended gatherings at home for some five to six years.

  11. He claimed his daughter had told him “they” were trying to arrest him.  He claimed to fear arrest because he was considered to have disturbed social order.  He belonged to the “Shout group” which he said was considered to be disorderly and to make trouble.

  12. The Tribunal recorded detailed questions and responses in relation to his claim that the authorities had unsuccessfully tried to arrest him in July/August 2004 before he came to Australia. The applicant also claimed that the arrest warrant he had provided to the Tribunal had been given to his parents who lived next door to his home in China. The Tribunal recorded that it raised concerns about this document with the applicant.

Tribunal decision

  1. In its findings and reasons the Tribunal summarised the applicant’s claims as a claim that he and his wife were Christian, that religious gatherings were organised at their home and that for those reasons the authorities in China had arrested him in the past and sought to arrest him again and that he feared arrest should he return to China.  However the Tribunal found that the applicant was not credible in respect of key aspects of his claim for protection.  Hence it concluded that he was not in genuine fear of persecution and that there was not a real chance of persecution on his return to China. 

  2. The Tribunal gave reasons for these findings.  First it could not be satisfied that the applicant was Christian given the “paucity” of the applicant’s oral evidence in respect of his religious beliefs and practices.  It had regard to his inability to provide any meaningful detail about his claimed religious convictions.  It found that he had been “evasive and equivocal”, in that he had stated variously that he was simply a Christian because his wife and her family were Christians.  The Tribunal did not accept as plausible the applicant’s claim that his inability to elaborate on his religious beliefs was for the reasons he gave: that he easily forgot things, was illiterate and was busy with his business and unable to devote time to practising his religion.  It also found that he was “vague and hesitant” in relation to his religious practices in Australia, stating that since his arrival he had attended a church “once or twice”. 

  3. Nor did the Tribunal accept that the applicant’s home had been used for religious gatherings, finding his evidence in this respect to be “vacillating and unpersuasive”. It noted that he had claimed to have participated in religious gatherings for five to six years, but that when pressed for details had stated that he was often busy at work so did not have time for the gatherings and that he forgot things and could not read.

  4. As the Tribunal did not accept the applicant’s claim about the reason the authorities sought to arrest him, it did not accept that the authorities had arrested him or sought to re-arrest him or that they would arrest him on his return to China.  It found that the applicant’s oral evidence in respect to his claim to have been arrested and detained for approximately one month to be “so nondescript as to be unreal”.  It did not accept that the applicant faced arrest on his return to China, finding that his evidence in relation to this claim lacked substance.  The Tribunal noted that while the applicant had claimed to fear arrest because he belonged to the Shouters, when asked about this group he merely stated that they were considered to be disorderly.  

  5. The Tribunal did not place weight on the claimed arrest warrant, given what it described as the “dubious details of and format” of the document.  It referred to the fact that it was issued in November 2004 (after the applicant arrived in Australia) but related to criminal activity said to have occurred in December 2002.  The Tribunal had brought to the applicant’s attention that the arrest warrant was not signed by anyone in particular.  It had noted in the hearing that it was directed to the public at large rather than being a specific request to the applicant to present himself to the court as such.

  6. The Tribunal found that “considered collectively” the points it addressed led it to reject the applicant’s claims to be a Christian (or a Shouter), that illegal religious gatherings were organised in his home and that he now feared harm from the Chinese authorities by reason of his religion.  Hence the Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason on his return to China.

This application

  1. The applicant sought review by application filed in this Court on 12 August 2005.  He relies on an amended application filed on 21 October 2005.  He filed written submissions. 

  2. The grounds relied on in the amended application for review are as follows:

    1.  The Tribunal stated at Page 9:  “The Tribunal has come to the conclusion that the Applicant is not credible in respect of the aspects of his claims for protection. Not being satisfied in respect of these aspects of her [sic] claims, which are discussed below, leads the Tribunal to conclude that the Applicant is not in genuine fear of persecution nor is there a real chance of persecution on his return to China.”

    The above statement is induced by the actual bias of the officer.  There is no evidence and materials to justify the making of the above conclusion.

    2.  The Tribunal’s satisfaction that I am not a refugee was not based upon reasoning which provided a rational or logical foundation for this belief.

    3.  The Tribunal refuse to consider our application in details because I was illiterate, and the Tribunal could not understand us and did not try to clarify more details from us.

    4. The Tribunal did not observe Migration Act 1958 properly to making the decision.

    The Tribunal did not refer to adequate particulars of the independent information.

    I will provide more documents to support my claims.

  3. This application for review was listed for hearing on 30 January 2007 at the same time as the separate applications of the applicant’s wife (see SZGYM v Minister for Immigration & Multicultural Affairs [2007] FMCA1418) and his son (SZGYK v Minister for Immigration & Multicultural & Indigenous Affairs [2007] FMCA 446). I note that the applicant’s son did not appear on that day or on the date to which his application was adjourned and his application was dismissed for non-appearance.

  4. On 30 January 2007 the applicant told the Court that while he spoke a little Mandarin he had not understood the Tribunal questioning and that he had told the Tribunal that he needed an interpreter who spoke his dialect, which he said was “Fuqing”. 

  5. In light of the issues raised by the applicant (which were also raised on behalf of his wife) and the fact that the grounds in the amended application included a complaint of bias and that the Tribunal could not understand the applicants, the hearing was adjourned until 13 March 2007. The solicitors for the first respondent were ordered to provide a copy of the tapes of the Tribunal hearing to each applicant within seven days. Orders were made requiring each applicant to file and serve any further evidence on which he or she wished to rely, including a copy of a transcript of the Tribunal hearing, on or before 6 March 2007. They did not do so.

  6. On 13 March 2007 the applicant told the Court that he had not received advice under the legal advice scheme (despite the fact that there was a letter on the court file confirming that such advice had been given).  He claimed that he had not obtained information on how to have the tapes of the Tribunal hearing transcribed until 28 February 2007 and that as it would take three weeks for such tapes to be transcribed there had not been time to do this before the hearing date.  The hearing was adjourned again.  Orders were made for the applicant to file any transcript of the Tribunal hearing by 5 April 2007.  The applicant did not file any further evidence.  It later became necessary to adjourn the hearing until 9 August 2007.  However the applicant did not file any further affidavit evidence or a transcript of the Tribunal hearing. 

  7. At the start of the hearing on 9 August 2007 the applicant told the Court from the bar table that “someone had told him” the tape recording of the Tribunal hearing which had been provided to him by the respondent’s solicitors in February 2007 (and which he had brought to court) was not his tape and that it was not his voice.  This was the first time such a concern had been brought to the attention of the Court or the respondent’s solicitors. 

  8. In order to clarify that the correct tapes had been provided to the applicants and to consider whether any further adjournment was appropriate, part of the tapes were played in open court. The first tape played (the second of two) commenced with questioning of an applicant. The applicant maintained that he was not the person being questioned. After listening to this tape for some time it emerged that the questioning followed the pattern of questioning described by the Tribunal in relation to the applicant wife. I accept that, as the applicant contended, he was not the person being questioned on this part of the tape. Rather I am satisfied that it was the applicant’s wife. From the commencement of the first tape it was clear that the hearing tapes provided to the applicants were the hearing tapes that related to the combined hearing of the applicant husband, his wife and son, all of whom were identified at the start of the hearing by name and also by file numbers that accord with the file numbers on Tribunal documents in the material before the Court. The individual hearing of the applicant commenced after the initial process was explained to all three applicants. After some time the applicant conceded that this was so and that the correct tapes had been provided to him by the respondent’s solicitors.

  9. In these circumstances I was satisfied that the applicant had had ample opportunity to obtain a transcript of the hearing had he wished to do so.  While the applicant did not specifically request a further adjournment, I formed the view that no further adjournment was warranted.  I note also that while the tapes were listened to for the purposes of ensuring that they were in fact the correct tapes, nothing on those parts of the tapes that were played in Court led either to a submission from the applicant or to the Court forming the view that it was in the interests of justice or the parties for the tapes to be listened to in their entirety or for further time to be allowed for the production of a transcript in light of the claims made by the applicant.  Those parts of the tapes played accorded with the Tribunal account of the hearings in its reasons for decision.  There was no suggestion by the applicant or by his wife that any interpretation or comprehension difficulties were raised with the Tribunal at any time by either of them. 

The interpreter issue

  1. It is convenient to consider first the argument raised by the applicant in oral submissions (albeit that it was not raised in the original application, the amended application or in the written submissions) that the interpreter used at the Tribunal hearing did not understand the applicant’s language and that he had asked for a “Fuqing” dialect interpreter and that the Tribunal had provided a “Fuzhou” interpreter.  The applicant told the court in submissions that he had not understood the interpreter but that he did not dare say so to the Tribunal. 

  2. Under s.425 of the Migration Act 1958 (Cth) the Tribunal is under an obligation to invite an applicant to appear before it “to give evidence and present argument relating to the issues arising in relation to the decision under review”. The invitation must not be a hollow shell and a failure to provide an adequate interpreter may in some circumstances mean that the Tribunal has not met its obligations in this respect (see in particular Perera v Minister for Immigration & Multicultural Affairs [1999] FCA 507 and Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230).

  1. However there is no evidentiary basis for such a claim in this case.  The evidence before the Court consisting of the Tribunal reasons for decision does not establish the applicant’s claim.  Moreover, it is apparent that, despite the fact that the applicant had in three prior documents requested a Mandarin interpreter, the Tribunal responded to a request for a “Fuzhou” dialect interpreter as recorded in the file note and as notified to the applicant in two letters before the hearing.  There is no evidence that the applicant requested a Fuqing interpreter before the Tribunal hearing. 

  2. When the Tribunal was made aware by the Fuzhou interpreter (who was also a Mandarin interpreter) that there was an issue about the dialect that the applicants spoke, the Tribunal discussed this matter with the applicants, who agreed that the hearing should be conducted in Mandarin.  There is no suggestion that either the applicant husband or wife (or their son) raised any concerns or difficulties with the Tribunal about their comprehension or ability to communicate in Mandarin or any other issue about the interpreter or conduct of the hearing (despite being invited to do so) either during the hearing or thereafter.

  3. The applicant has not established that he was “effectively prevented from giving his evidence (Perera at [38] – [41] or that he was in effect deprived of a hearing by any failure by the Tribunal to provide a competent interpreter (SYYB v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 24 at [12] per Mansfield J). There is nothing to suggest that the interpreter provided could not “effectively interpret” the applicant’s statements or the Tribunal’s statements.

  4. Nor is there any evidence of lack of comprehension or communication difficulties such as to support a claim either as to a breach of s.425 or, indeed, actual or apparent bias or any lack of procedural fairness on the part of the Tribunal, insofar as it may be intended to suggest that this was established by the Tribunal proceeding with the hearing without a Fuqing interpreter.

  5. The only claim made by the applicant is the general assertion that he had not understood the Tribunal questioning.  He had more than adequate opportunity to file further evidence, including a transcript of the Tribunal hearing, to support his claim in this respect.  He did not do so.  The claim made at the commencement of the hearing on 9 August 2007 that it was “not his voice” on the tape was not such as to persuade me that there should have been an adjournment for further information to be provided.  As indicated above, while the tape was listened to for the purposes of identifying the participants in the hearing, there was nothing in the parts of the tape listened to to indicate that the Tribunal did other than as is recorded in the Tribunal reasons for decision.  Moreover I note that the applicant does not suggest that he told the Tribunal that he was having the difficulties which he now claims that he experienced.  There is no particularisation of any manner in which that may have led him to provide incomplete or inadequate evidence, despite the fact that the Tribunal member told the applicant that if he had difficulties he was to bring it to the attention of the Tribunal. 

  6. Insofar as the conduct of the hearing is recorded in the Tribunal reasons for decision it is not established that there were any difficulties in interpretation, comprehension or communication through the Mandarin-speaking interpreter. While the “paucity”, evasion, equivocation, vagueness, hesitancy, vacillation and unpersuasiveness of the applicant’s evidence was referred to by the Tribunal, it gave specific examples of these shortcomings in his evidence in various respects. There is nothing in the material before the Court to indicate that these shortcomings were attributable to language difficulties. In that respect it is significant that while the applicant provided several explanations to the Tribunal for his inability to elaborate on his religious beliefs (that he easily forgot things, that he was illiterate, that he was busy with his business and was unable to devote time to his religion) there is no indication that his answers were unresponsive or that he raised any difficulty with communication with or through the interpreter as an explanation when the Tribunal sought information on his beliefs (or indeed when it sought explanations for other unpersuasive aspects of his claims). In particular, there is nothing in the Tribunal account of the hearing to suggest that the applicant’s responses were unresponsive in a way that might indicate a lack of comprehension or communication difficulties such that the applicant could be said not to have had a meaningful opportunity to be heard. There is no suggestion that the interpreter provided was not proficient in Mandarin – a language the applicant had claimed to speak, read and write and which had been requested by him in the response to hearing invitation.

  7. It is clear that when made aware of a difficulty with use of the “Fuzhou” dialect (the dialect apparently requested by the applicant in the telephone conversation before the hearing and that the Tribunal confirmed would be provided) the Tribunal discussed with the applicant whether the hearing could proceed with a Mandarin interpreter on the basis that he had indicted he could speak, read and write Mandarin and had requested a Mandarin interpreter in the review application and response to hearing form. The applicant agreed to this course.  He does not suggest that he sought an adjournment of the Tribunal hearing.  Indeed, nowhere in the material before the Court is there any reference to the applicant requesting a Fuqing interpreter prior to or during the Tribunal hearing.  The applicant was given the opportunity to raise any concerns with the Tribunal as the hearing progressed.  He does not claim that he did not understand this part (or indeed any particular part) of the Tribunal hearing.  Nor does he claim that he thereafter raised any concerns with the Tribunal or even that he asked the Tribunal to repeat any questions. 

  8. In all the circumstances, on the evidence before me I am not satisfied that the use of an interpreter who spoke Mandarin and Fuzhou meant that the interpretation was inadequate or that it could be said that the applicant was effectively prevented from giving evidence at the Tribunal hearing. No breach of s.425, actual or apparent bias or other jurisdictional error arising out of use of the Mandarin-speaking (rather than Fuqing dialect) interpreter is established.

Bias and no evidence issue

  1. The first ground relied on in the amended application contends that the Tribunal conclusion as to the credibility of the applicant was induced by actual bias and that there was no evidence or other materials to justify the making of such conclusion. 

  2. There is no basis on the material before the Court for these contentions.  The Tribunal did consider the applicant’s claims made in connection with the protection visa application and to it.  Findings in relation to credibility are a matter for the Tribunal (Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 67). The Tribunal findings on credibility were open to it on the material before it for the reasons that it gave, in particular the paucity and implausibility of the applicant’s evidence and explanations and his failure to provide requested details. It considered, but rejected the applicant’s claims on this basis. The Tribunal also addressed the purportedly corroborative material provided by the applicant, the document headed Order for Arrest. It was open to the Tribunal to determine not to give weight to this document based on the timing of the alleged activities, the date of the document, the absence of a signature and the general format and appearance of the document as raised with the applicant in the Tribunal hearing. It cannot be said that there was no evidence before the Tribunal to justify its conclusion in relation to credibility.

  3. Actual bias is also alleged.  As Von Doussa J stated in SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [37] “A finding of actual bias against a decision-maker is a grave condemnation of the ability of the decision-maker to discharge his or her functions with impartiality”. The allegation must be “distinctly made and clearly proved” (Minister for Immigration & Multicultural Affairs v Jia (2001) 178 ALR 421 at [69] per Gleeson CJ and Gummow J and at [127] per Kirby J). In this case there is nothing in the published reasons for decision to support a claim of bias either actual or apprehended in the sense identified by the High Court in Re Refugee Review Tribunal; Ex parte H (2001)75 ALJR 982 at [27] to [31].

  4. In this respect, as discussed above, the applicant was given the opportunity to put a transcript of the Tribunal hearing or other evidence before the Court in support of his general and unparticularised claims. He did not do so. The “issue” as to the identity of the applicant in the hearing tapes was raised for the first time at the start of the hearing on 9 August 2007. Those parts of the hearing tapes to which the Court listened clearly related to the applicant and his family and provided no support for any claim of bias on the part of the Tribunal member. The applicant has not particularised this claim beyond contending that the credibility finding was induced by bias and that there was no evidence to justify such a conclusion. There is nothing in the material before the Court to establish bias on this or any other basis. Ground 1 is not made out.

Logic issue

  1. The second ground in the amended application is an unparticularised assertion that the Tribunal’s decision was based on reasoning which did not provide a rational or logical foundation for the Tribunal’s belief.  As set out above, the Tribunal reasoning was open to it on the material before it for the reasons that it gave.  No lack of rationality or logic is established, let alone in a manner constituting jurisdictional error.  Insofar as the applicant seeks merits review, merits review is not available in this Court. 

Illiteracy issue

  1. The third ground is that the Tribunal refused to consider the application in detail because the applicant is illiterate and the Tribunal could not understand him and his wife and did not try to clarify more details from them. No evidence is adduced in respect of these assertions. There is nothing in the Tribunal reasons for decision that gives any support to such claims. It is apparent from the Tribunal account of the hearing that the applicant was given several opportunities to explain his claims and that measures were put into place at the outset to overcome any possible interpreting difficulties. The Tribunal did not simply reject the application or refuse to consider it in detail because the applicant claimed to be illiterate. The Tribunal considered the integers of the applicant’s claims. It has not been established that it was obliged to attempt to clarify matters further in the manner contended for by the applicant.

Section 424A issue

  1. Finally it is contended that the Tribunal did not observe the Migration Act 1958. In written submissions it was argued that there was a failure by the Tribunal to comply with s.424A of the Migration Act. However no particular information to which s.424A might apply is identified in the written submissions, other than a general reference to the Tribunal basing its finding on information or a lack of information contained in the applicant’s application for a visa. No breach of s.424A of the Migration Act 1958 is established.  First the applicant failed not because of information in his protection visa application or information from another source but rather because, based on his own evidence, the Tribunal did not accept the credibility of his claims. 

  2. Moreover there is no breach of s.424A by reason of the Tribunal’s decision not to place any weight on the arrest warrant, that being information given to the Tribunal for the purposes of the application for review within the exception to s.424A(1) in s.424A(3)(b). In any event, the Tribunal’s conclusion that weight should not be placed on that document is not information for the purposes of s.424A, but rather the product of the Tribunal’s subjective thought processes and appraisals (see SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2006) 230 ALR 1 at [206]). No failure to comply with s.424A or any other provision of the Migration Act is established.

  3. It was also contended that the Tribunal did not “refer to” adequate particulars of the independent information. Insofar as this is intended to suggest that such information had to be put to the applicant by the Tribunal under s.424A(1), it was not necessary for it to do so. While it did cite independent country information, this information cannot be said to be the reason or part of the reason for the decision of the Tribunal within s.424A(1) as the applicant was found not to be credible based on the paucity of his evidence. In any event, even if such information was within the scope of s.424A(1) it would fall within the s.424A(3)(a) exception.

  4. As no jurisdictional error has been established the application must be dismissed. 

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  23 August 2007

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