SZHUO v Minister for Immigration
[2007] FMCA 1688
•12 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHUO v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1688 |
| MIGRATION – Review of Refugee Review Tribunal decision – where Tribunal did not accept applicant was a witness of truth – whether Tribunal brought an independent mind to the consideration of the evidence – whether rational basis for Tribunal’s conclusions – whether contravention of s.425 Migration Act 1958 – whether breach of s.424A Migration Act – whether Tribunal should have made finding in relation to authenticity of signature on business visa application – whether Tribunal should have made further enquiries regarding authenticity of signature – whether Tribunal should have provided document to applicant – whether requirements for grant of visa a question of fact or law – whether requirements for grant of visa constituted ‘information’ pursuant to s.424A Migration Act. |
| Migration Act 1958, ss.424A, 425 Migration Regulations1994, Sch 2 cl.456 |
| NAJO v Minister for Immigration [2004] FCA 356 Re RRT; Ex parte H (2001) 179 ALR 425 NADH v Minister for Immigration [2004] FCAFC 328 NAVK v Minister for Immigration [2005] FCAFC 124 Dranichnikov v Minister for Immigration [2003] HCA 26 NABE v Minister for Immigration (No.2) [2004] FCAFC 263 Re Minister for Immigration; Ex parte Durairajasingham [2000] HCA 1 VJAD v Minister for Immigration [2004] FCA 469 NAQS v Minister for Immigration [2003] FCA 1137 Prasad v Minister for Immigration (1985) 65 ALR 549 VCAK/2002 v Minister for Immigration [2004] FCA 459 Hope v Bathurst City Council [1980] HCA 16 Paduano v Minister for Immigration [2005] FCA 211 NBKT v Minister for Immigration [2006] FCAFC 195 VAF v Minister for Immigration (2004) 206 ALR 471 Minister for Immigration v NAMW (2004) 140 FCR 572 |
| Applicant: | SZHUO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG3636 of 2005 |
| Judgment of: | Raphael FM |
| Hearing date: | 9 August 2007 |
| Date of last submission: | 6 September 2007 |
| Delivered at: | Sydney |
| Delivered on: | 12 October 2007 |
REPRESENTATION
| Applicant in person |
| Counsel for the Respondent: | Mr J. Smith |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $7,000.00.
The name of the First Respondent be amended to “Minister for Immigration and Citizenship”.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3636 of 2005
| SZHUO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of the People’s Republic of China. She arrived in Australia on 12 December 2004 as the holder of a Subclass 456 Business Visa valid until 12 March 2005. On 14 January 2005 she lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 31 March 2005 a delegate of the Minister refused to grant a protection visa and on 5 May 2005 the applicant applied for review of that decision. On 8 August 2005 the applicant attended a hearing before the Tribunal. On 16 August 2005 she provided certain additional information to the Tribunal. On 16 September 2005 the Tribunal wrote to the applicant a letter pursuant to s.424A Migration Act 1958 (“the Act”) which was responded to by the applicant on 27 September 2005. On 13 October 2005 the Tribunal determined to affirm the decision not to grant the protection visa and it handed that decision down on 8 November 2005.
The grounds upon which the applicant claimed to be a person to whom Australia owed protection obligations arose out of her association with two dissidents who were members of the Party of Democracy of China. One of those dissidents was arrested by the PSB and the other told the applicant that the PSB knew about her and suggested that she flee the country. The applicant provided the Department with a statutory declaration [CB24-27]. In it she told how she had for many years run her own photo studio in a town in the Fujian Province. She had one staff member. She told of how she was antipathetic to the current regime in China because of its dictatorial tendencies and because of corruption. She took no part in any dissidents’ activities until after her assistant left her and was replaced by a couple from another province who were recommended to her by a neighbour. She agreed to take them on, on one person’s salary and, because they had nowhere to live, allowed them to sleep in the studio. In March 2004 she returned to her studio one evening to find the couple utilising her computer and making propaganda material favouring democracy. They told her that they were dissidents and followers of Mr Yun Liang Xiao. They had taken part in demonstrations in support of Mr Xiao, and after he was arrested had to escape from their home town. The applicant was sympathetic to their cause and allowed them to continue to use her studio and provided them with some assistance. In May 2004 the male of the couple went to Beijing with another democracy advocate to support an appeal. After about September 2004 the applicant lost contact with the male dissident and so the female dissident decided to go to another city where she had a close friend who knew him. The applicant claimed that after the female dissident left she began to be worried about her own safety [CB27]:
“In the late part of November 2004, Ms Z suddenly came back to my home town. She told me that both Mr C and Mr L had been arrested by the PSB, and we were in great dangers. She suggested me to leave the country as soon as possible, and she then left for X city. She told me that she tried to go to Taiwan.
I departed from China on 11th December 2004. Soon after that, I have been informed that many policemen went to my photo studio, which has been thoroughly searched and sealed by the PSB later on. My families, even including my neighbours, have been subjected to investigation by the PSB. I have become the target of the PSB since then owing to my political activities against the government.”
The delegate considered the application and determined that he could not accept that the applicant had a well-founded fear of persecution because of her ability to leave China on a passport issued in her own name when the Chinese authorities did thorough checking before they allowed anyone to leave the country and would have picked her up if she was truly a wanted dissident. In her application to the Tribunal the applicant said [CB80]:
“It is apparently that I was able to leave my country on the passport using my own name because I was not discovered at that time. However, I cannot return to China TODAY due to significant changes in my situation after my leaving.”
At the hearing before the Tribunal the applicant told the member her story about the photographic studio and the introduction of the two dissidents at [CB82]:
“When the Tribunal put to the applicant the implausibility of the PSB waiting a month to pursue her and continuing to run her business, she stated that Beijing is a bit city and where she lives is a small town. The PSB needed time to check. She was able to leave China despite the PSB’s interest in her because she comes from a small town. The woman had returned late in November 2004 and told her that the man had been caught by the PSB and might confess and reveal the names. As he is a member of the Chinese Democracy Party he is not that weak to confess.
When asked when her involvement was revealed to the PSB she stated she is not sure, the PSB came and closed the shop. The PSB asked questions.”
Later the Tribunal noted that the applicant had told it that the PSB had come to her studio on 24 December 2004 which was a sign that she had been exposed and would therefore become a target of the PSB. She said she had left China before that had happened, on 11 December 2004.
On 16 September 2005 the Tribunal sent the applicant a s.424A letter. This advised the applicant that the Tribunal had seen her application for a business visa, which indicated that she was the manager and shareholder of a dress shop from March 2001 and that her husband, son, father, mother and brother all resided with her at an address in F city. The application indicated that she had come to Australia to attend an investment fact-finding mission in South Australia and that her employer [named] was responsible for sending her to Australia as part of the delegation:
“This information is relevant as it indicates you were not working in your father’s photographic shop and therefore you could not have been involved with the production of pro-democracy pamphlets and that you did not flee persecution but came to Australia as part of a business delegation.”
The applicant responded by way of a statutory declaration dated 27 September 2005 [CB67-68]. In the statutory declaration she affirmed that she had started to seek a way of going overseas in October 2004 because she was worried about her own safety at that time. Because she did not know how to arrange for an overseas trip she retained a friend to introduce her to an agent. The agent had told her that the photo studio was too small to support her application for a business visa and she needed to find a bigger company. The applicant asked the friend to help her but he was unable to do so, so she went back to the agent and paid more money in order to find an appropriate sponsor. The agent found the sponsor in the dress shop referred to but did not give much more detail. The applicant confirmed in the declaration that she was not in any way involved with the dress shop. She did not know the person who was named as her employer and she did not sign the application. In this regard, she stated [CB68]:
“In my memory, I have never ever signed on any documents in relation to the business visa application organized by “XL”. Therefore, the signature on the business visa application is definitely not mine. Please check it carefully, and sent me a copy of the documents in relation to the business visa application, so that I could verify it by myself.”
In its findings and reasons the Tribunal indicated that it did not accept the applicant as a witness of truth and thought that her alleged involvement with members of the Democracy Party was implausible. Although it accepted that the production of pro-democracy pamphlets was a high-risk activity, the Tribunal did not accept that the applicant was involved in the production of pamphlets. The reasons given for this finding were that [CB87]:
“… the applicant provided inconsistent evidence to the Tribunal. She told the Tribunal, at hearing, that in November 2004 Ms Z had returned to her shop and informed her that Mr C had told the authorities about her involvement in pro-democracy activities. As a consequence she had to fear for her life and flee China. When the implausibility of a wanted person in China having the opportunity to prepare for their departure, whilst continuing to run their business until their departure, was put to the applicant she resiled from that claim. She then stated that Mr C may confess and reveal the names. In her statutory declaration of 16 August 2005 she stated that the PSB arrived at her studio in December 2004 (after her departure to Australia) and this was a signal that Mr C and his associate had exposed her activities. I place weight on this inconsistency. Her variation in her evidence, made after the implausibility was explained to her, is an invention to overcome the implausibility of working and remaining at her home whilst being wanted by the PSB. It does not ring true.”
The Tribunal further indicated that it did not accept the applicant as a credible witness because she was unable to give it any description of the pamphlets that she had allegedly assisted in producing. Finally the Tribunal dealt with the business visa application at [CB87]-[88]:
“In response to a 424a letter advising her about her business visa, she claimed that the information provided in her business visa was false and the information was provided by a XL, a person “specially for managing people to go overseas” who told her that her photo studio was too small to support her to obtain a visa. As she could not afford to pay extra money she had to agree for XL to find a company for her and he found a dress company. She denies signing that business visa application.
I reject her explanation … Referring to her statutory declaration of 27 September 2005, I would expect that a person “specially for managing people to go overseas” would be aware of the requirements for the visa submitted, especially as the visa applied for did not require an applicant to show that their business was of a particular size. I do not accept that the applicant’s business visa was issued in the circumstances described. I am satisfied the applicant was employed in the clothing industry in PRC.”
The applicant’s grounds for submitting that the Tribunal had fallen into jurisdictional error centred round the finding of implausibility that she would remain in China after one of her associates had been caught and confessed and the findings in relation to the business visa application. The applicant argued that the Tribunal had not brought an independent mind to the consideration of her evidence, that it had breached s.425 of the Act and that it had also breached s.424A of the Act. In regard to the claim that the Tribunal did not bring an independent mind to the consideration of the evidence, the applicant sets out an extract on [T-35] of the Transcript:
“TRIBUNAL: So Mr C, when was he caught?
A: About September.
T:So he was caught in September and he confessed.
A:At the very beginning I did not think he confessed but he was forced to do that under pressure.
T:When did you find out that he confessed?
A:In November Ms J came to tell me.
T:So in November she told you that he had confessed and that he had said, and he told the authorities of your involvement. So why did you come to Australia?
The applicant points out that the statement that Mr C was caught in September and confessed came from the Tribunal, as was the statement that he had confessed and that he had said and told the authorities. But the applicant did not, in that submission, note that at [T-33] there was the following exchange between herself and the Tribunal:
“TRIBUNAL: Why did the PSB want you?
A:Because the PSB thought that I was one of
the person in organisation who anti-government.T:I’m sorry, I don’t understand that. It doesn’t make sense. How would the PSB know that you had anything to do with these people?
A:Because ….. was caught and he confessed that he revealed where he produced those leaflets and where he lived during last year.
Given that the confession had been introduced by the applicant prior to the exchange found at [T-35], the Tribunal’s assumption that he confessed when he was caught in September is not an unreasonable one, and more particularly, it does not go against the evidence. If the Tribunal was incorrect in its assumption the applicant could have put it right. The applicant in her submissions makes much of what she had said in her written statements but ignores her own oral one given to the Tribunal.
The applicant submits that this exchange indicates that the Tribunal did not “bring an independent mind to consider [her] evidences (sic)”. But mere skepticism as to the credibility of the applicant’s claims and a vigorous testing of them does not equate to an apprehension of bias: NAJO v Minister for Immigration [2004] FCA 356 at [24] per Moore J, and there is no suggestion in the transcript that the applicant was overborne or intimidated: Re RRT; Ex parte H (2001) 179 ALR 425. In NADH v Minister for Immigration [2004] FCAFC 328 at [115] Allsop J (with whom Moore and Tamberlin JJ agreed) stated at [12]:
“The existence in any given case of arbitrary unreasoned conclusions made without a scintilla of evidence may lay a foundation for an argument that the decision-maker moulded his or her fact finding to reach a particular result. Such may also lay the foundation for argument that the decision reached was capricious, arbitrary, made according to humour or private opinion rather than reason and justice, or that it was unreasonable” (authorities omitted).
As the transcript indicates, there was a rational basis for the Tribunal’s assertion that the applicant’s evidence contained inconsistencies. This is not a case where it could be suggested that “fact-finding has been conduced in a manner which can be described as …. in substantial respects unreasonable, and mere assertion lacking rational or reasoned foundation, at times and plainly and ex facie wrong and as selective of material going one way”: NADH at [115] per Allsop J.
The s.425 issue, as found in the applicant’s written submissions, argues that the Tribunal failed to provide her with a genuine opportunity to present oral argument in support of her claims. She supports this by a rehearsal of the matters discussed above in relation to the evidence about Mr C confessing. It is my opinion that the Tribunal did give the applicant every opportunity to clarify when it was that Mr C confessed. It was the applicant who brought up the question of confession at [T-33] and the hearing was the opportunity that the applicant had to put the position correctly. So far as the Tribunal was concerned, there was no issue to inform the applicant about. It made an assumption which it put to the applicant and which the applicant did not deny. The Tribunal noted that after the hearing the applicant had written to it saying that she had not been exposed prior to her departure from China [CB64]. This “evidence” is clearly inconsistent with what is contained in the transcripts and therefore there was a rational basis for the Tribunal to find that she had changed her evidence and to discount her credibility for that reason.
The s.424A complaints made by the applicant arose out of the business visa application issue. There are two aspects of this complaint. The first is that the Tribunal did not give the applicant a copy of the business visa application even though she had requested it. The second is that the Tribunal acted on “information” concerning the size of business necessary for a successful business visa application and did not provide the applicant with a s.424A letter in relation thereto. The Tribunal did not make a specific finding about the fact that the applicant did not sign the business visa application and did not check, as she had requested, the signature on the application to see whether it was hers or not. Neither did the Tribunal provide her with a copy of the business visa application.
The Applicant in her submissions of 6 September 2007 states that the failure of the Tribunal to provide the applicant with a copy of the business visa application as requested was a breach of s.424A in that:
“… the ‘signature’ must be one of the most important ‘particulars’ of the information. Failure to provide me copy of documents in relation to the business visa application meant that the Tribunal failed to provide me particulars of the information. So, the Tribunal must breach s.424A of the Act.”
But, as the Respondents submit, the Tribunal did not dispute that the applicant did not sign the visa application: “[w]hat was relevant to its decision was the explanation given by the applicant in response to the s.424A letter, namely, the involvement of a specialist agent and the claim that he had suggested the use of a different business”. This can be seen at [CB87]-[88] in the paragraph extracted at [6] of these reasons. The Tribunal rejected her entire explanation as to why a different business was listed on the business visa application. Thus the signature was not information that would be the ‘reason for decision’.
It was not necessary that a finding be made specifically in relation to the authenticity of the signature on the business visa application. This is not a situation where the Tribunal has failed to make a finding on a clearly articulated claim such as in NAVK v Minister for Immigration [2005] FCAFC 124 at [29] per Nicholson and Edmonds JJ (with whom Conti J agreed); see also Dranichnikov at [95], NABE v Minister for Immigration (No.2) [2004] FCAFC 263. Here, the Tribunal clearly made a finding in relation to the claim relating to the business visa application. A finding does not need to be made with regard to every piece of evidence before the Tribunal. In Re Minister for Immigration; Ex parte Durairajasingham [2000] HCA 1, McHugh J said:
“64 There is some authority in the Full Court of the Federal Court for the proposition that s 430(1) requires the reasons of the Tribunal to refer to evidence contrary to findings of the Tribunal: Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24 at 31; Logenthiran v Minister for Immigration and Multicultural Affairs [1998] 1691 FCA; Thevendram v Minister for Immigration and Multicultural Affairs [1999] FCA 182. However the contrary view was taken by differently constituted Full Courts in Ahmed v Minister for Immigration and Multicultural Affairs [1999] FCA 811, Addo v Minister for Immigration and Multicultural Affairs [1999] FCA 940 and Sivaram v Minister for Immigration and Multicultural Affairs [1999] FCA 1740. In Addo, the Court said at [24] and [31]:
"Section 430(1) does not impose an obligation to do anything more than to refer to the evidence on which the findings of fact are based. Section 430 does not require a decision-maker to give reasons for rejecting evidence inconsistent with the findings made. Accordingly, there was no failure to comply with s 430(1) of the Act.
...
It is not necessary, in order to comply with s 430(1), for the Tribunal to give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any finding which it made.”
In my opinion, this passage correctly sets out the effect of s 430(1)(c) and (d). However, the obligation to set out "the reasons for the decision" (s 430(1)(b)) will often require the Tribunal to state whether it has rejected or failed to accept evidence going to a material issue in the proceedings. Whenever rejection of evidence is one of the reasons for the decision, the Tribunal must set that out as one of its reasons. But that said, it is not necessary for the Tribunal to give a line-by-line refutation of the evidence for the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the Tribunal” (emphasis added).
Similarly, in VJAD v Minister for Immigration [2004] FCA 469 Kenny J stated:
“[28] As the Full Court said in Pollacks v Minister for Immigration and Multicultural and Indigenous Affairs (2001) 195 ALR 73 at [35]:
“The selection of what are material facts and what is the evidence, or other material, which is relied on for making those findings is a matter for the Tribunal in its consideration of the circumstances surrounding the application.”
The Court added at [39]:
“It is not necessary that there should be an in depth discussion or evaluation or indeed a detailed catalogue of every piece of evidence on the basis of which the findings or the material questions of fact were made.””
The weight to be given to a particular piece of evidence is a matter for the Tribunal: NAQS v Minister for Immigration [2003] FCA 1137 at [45]. In that case Hill J said:
“[39] While it can be said that failure on part of the Tribunal to take any account at all of relevant material might constitute jurisdictional error, one has to be careful to distinguish that from matters of fact finding. It is open to the Tribunal to accept or reject evidence before it. It is neither bound to give reasons for its rejection nor indeed to refer to the material it rejects.”
I am not satisfied that there was an obligation on the Tribunal to make further enquiries regarding the signature on the business visa application or to provide the applicant with the document as requested. This is not a case that meets the narrow parameters outlined by Wilcox J in Prasad v Minister for Immigration (1985) 65 ALR 549, where his Honour enunciated at 169-170 that:
“ … in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it.”
The signature on the business visa application was not ‘centrally relevant’ to the process of decision-making. Even if the Tribunal had checked the signature of the applicant and provided the document to the applicant, the Tribunal could still have made the same finding; i.e. that it rejected the applicant’s story in relation to the business visa application.
A similar situation, though with slightly dissimilar facts, arose in VCAK/2002 v Minister for Immigration [2004] FCA 459. In that case the Tribunal made a finding that documents provided by the applicant were not genuine without making further inquiries as to the authenticity of the documents. Crennan J held that in the circumstances of the case it was not necessary for the Tribunal to make those further inquiries:
“[30] The Tribunal’s finding that the documents were not genuine was no more than a step in the reasoning process which did not affect its exercise of power. Crucially, the Tribunal had reached its conclusions on the basis that even if the documents were genuine and persuasive the passage of time and lack of harm to the appellant since 1993 constituted evidence contradicting the documents. It was for that reason that Barnes FM found, correctly in my view, that any failure to further check the authenticity of the documents was not material as it could not have affected the Tribunal’s exercise of power: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 353; Craig v State of South Australia (1995) 184 CLR 163 at 179. No practical unfairness arises in these circumstances and accordingly no jurisdictional error arises.”
At [CB87]-[88] the Tribunal found that the visa applied for did not require the applicant to show that the business was of a particular size and that “the person”, if he did run a company “specially for helping people to go overseas” should have known this. The Tribunal rejected the applicant’s claims (inter alia) on this basis. In order to decide whether or not this constitutes “information” for the purposes of s.424A there are a number of matters to be considered. The first is whether the requirements for the grant of a business visa is a question of fact or law. Whether there exist any business size requirements for the grant of a visa is a question of construction of the provisions of the Migration Act and the Migration Regulations. This is a question of law: see Hope v Bathurst City Council [1980] HCA 16 per Mason J.
In Paduano v Minister for Immigration [2005] FCA 211 Crennan J opined:
“[31] … In interpreting a statute or delegated legislation the object of the court is to ascertain the legislative intention as ‘expressed by the words used’: Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 304. Whilst the construction of a statute is a matter of law, the ordinary or natural meaning of an ordinary English word is generally a question of fact: Hope v Bathurst City Council (1980) 144 CLR 1 at 8; Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 396; Re Minister for Immigration and Multicultural Affairs and Ors; Ex parte Cohen (2001) 177 ALR 473 at 481 … In the final analysis a court must determine the intention of the legislature and the applicability of ordinary words to specific facts by reference to the meaning of the language and purpose of a particular instrument.”
…
[51] To err in the construction of statutory criteria for the grant of a visa is to err in law: NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 6. To err in the construction of an expression in delegated legislation, which forms part of the criteria for the grant of a visa, is equally to err in law.”
If the finding was a finding of law, was it correct? Copies of the applicant’s passport extracted at [CB29] indicate that the applicant arrived in Australia on a Temporary Business Visa (Class UC, Subclass 456), granted on 23 November 2004. The Migration Regulations1994 (“the Regulations”) outline the requirements for a Subclass 456 visa in Schedule 2 clause 456. Clause 456 of Schedule 2, which outlines the criteria for the granting of a Subclass 456 visa, contains terms which, as at 1 September 2004 (incorporating the last set of amendments before the visa was granted on 23 November 2004) are identical to the current provisions (with the exception of the addition of clauses 456.223 and 456.329, irrelevant for the purposes of this case as they relate to whether the Minister is satisfied that the applicant is the holder of a valid passport). Neither the Regulations as at 1 September 2004 nor clause 456 in its present form indicate any visa requirements in relation to business size.
Even though the Tribunal’s assertion was one of law and was a correct one it is still necessary to consider whether that constitutes “information” that should have been provided to the applicant in the manner required under s.424A. The meaning of “information” was canvassed in NBKT v Minister for Immigration [2006] FCAFC 195 per Young J (with whom Gyles and Stone JJ agreed) at [29]:
“The meaning of ‘information’ was considered in the context of s 424A(1) by Allsop J in SZEEU at 259-260 [204]-[205]:
‘The assessment whether the Tribunal has complied with s 424A(1) requires close attention to the reasons of the Tribunal, because it is the information that the Tribunal considers relevant that must be assessed in order to see whether, prior to the decision being made, it would be the reason or a part of the reason for affirming the decision.
Information is that of which one is told or apprised; it is knowledge communicated concerning some particular fact, subject or event: The Complete Oxford English Dictionary (2nd Ed 1991). In this context, the word has been taken as referring to knowledge of relevant facts or circumstances communicated to, or received by, the Tribunal: Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 at [3], approved in VAF at [24] or knowledge which has come to, or has been gained by, the Tribunal: Paul at [95].’”’
In VAF v Minister for Immigration (2004) 206 ALR 471 at [24] Finn and Stone JJ commented:
“… the word ‘information’ in s.424A(1) has the same meaning as in s.424: Win v Minister for Immigration and Multicultural Affairs (2001) 105 FCR 212 at 218 [20]; and in this setting it refers to knowledge of relevant facts or circumstances communicated to or received by the tribunal: Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1679 at [3]; irrespective of whether it is reliable or has a sound factual basis: Win, at 217-8 [19]-[22].” (emphasis added)
The relevant clauses that relate to the requirements for a business visa could not be viewed as “knowledge of relevant facts or circumstances”. Neither are they “knowledge communicated”. Their existence and application is a question of law, and cannot constitue ‘information’.
In any event, the ‘information’ would fall within the exception outlined in s.424A(3)(a), i.e. information “that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member”. In Minister for Immigration v NAMW (2004) 140 FCR 572 Merkel and Hely JJ held that the second part of s.424A(3)(a) (i.e. “and is just about a class of persons of which the applicant or other person is a member”) was “not another criterion to be met” and that it was “designed to underline the specificity required by precluding any argument that reference to a class could be taken as a reference to all individuals” (at [139]), holding that country information fell within the s.424A(3)(a) exception. Thus, the fact that the regulations are not “just about a class of persons” would not prevent the ‘information’ from falling within s.424A(3)(a).
The applicant’s submissions constitute an attack on the credibility findings of the Tribunal. The Tribunal had come to the conclusion that the applicant was not a witness of truth: [CB87]. A finding on credibility, as McHugh J stated in Durairajasingham at [67], “is the function of the primary decision maker par excellence.”
At [67], McHugh J continued:
“If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word "implausible". The disbelief arose from the Tribunal's view that it was inherently unlikely that the events had occurred as alleged.”
The applicant’s credibility was clearly an issue, as the Tribunal indicated in its findings and reasons [CB84]:
“I accept that an aspiring refugee, in order to obtain a visa to Australia may have to engage in a degree of deception. The making of false assertions does raise issues of credibility.”
Though the word “implausible” was not specifically used in relation to the claim regarding the business visa, it is clear that the Tribunal did not believe the applicant, based on its finding that it would expect ‘a person “specially for managing people to go overseas would be aware of the requirements for the visa submitted”’: [CB88].
In all the circumstances I am unable to find that the Tribunal fell into jurisdictional error in the manner in which it reached its decision in this case. The application is dismissed. The applicant shall pay the First Respondent’s costs which I assess in the sum of $5,000.00.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 12 October 2007
2
23
2