SZHXC v Minister for Immigration
[2006] FMCA 468
•27 April 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHXC v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 468 |
| MIGRATION – Review of decision by Refugee Review Tribunal – refusal to grant protection visa – Applicant alleges Tribunal erred in failing to have regard to the applicant’s documentary evidence as corroborative of her claims in circumstances where the Tribunal had not made comprehensive findings of dishonesty in respect of the applicant’s evidence – sur place claim of conversion to Christianity – applicant alleges Tribunal erred in failing to comply with requirements of s.424A(1) of the Act. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91R(3); 91S; 424A; 424A(1); 424A(3)(b); 474; 483 |
| WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74 Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 Applicant M164/2002 v Minister for Immigration & Multicultural Affairs [2006] FCAFC 16 SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744 Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123 |
| Applicant: | SZHXC |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG3754 of 2005 |
| Judgment of: | Emmett FM |
| Hearing date: | 29 March 2006 |
| Date of last submission: | 29 March 2006 |
| Delivered at: | Sydney |
| Delivered on: | 27 April 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr I. Archibald |
| Solicitors for the Applicant: | Ms M. Byers, Michaela Byers Solicitors |
| Counsel for the Respondent: | Miss R. M. Henderson |
| Solicitors for the Respondent: | Mr B. Cramer, Blake Dawson Waldron |
ORDERS
The application before this Court is dismissed.
That the applicant pay the First Respondent’s costs in an amount of $5000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3754 of 2005
| SZHXC |
Applicant
And
| MINISTER FROM IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(As Corrected)
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and s.483 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 30 November 2005 to affirm the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Delegate”) not to grant a protection visa to the applicant.
The applicant is a 24 year old female who claims to be a citizen of the People’s Republic of China (“the PRC”) and of Buddhist faith (“the Applicant”).
The Applicant claims that prior to arriving in Australia she was employed as a Pharmacist Assistant.
The Applicant arrived in Australia on 19 February 2004 on a false Portuguese passport.
On 4 March 2004, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.
The Applicant claimed that she feared persecution by the Family Planning Authorities (“the FPA”) in the PRC by reason of the fact that she was living with her boyfriend and had refused to undertake forced contraceptive measures. As a result, the Applicant claimed that if she returned to the PRC she will be imprisoned, fined and forced to undertake the contraceptive operation.
On 22 March 2004, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
On 25 March 2004, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. On 2 June 2004, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 27 October 2004, this Court by consent ordered that the Tribunal decision be set aside and remitted the matter to the Tribunal for decision according to law.
On 18 January 2005, the Tribunal again affirmed the decision of the Delegate not to grant a protection visa.
On 11 April 2005, this Court by consent ordered that the Tribunal decision be set aside and remitted the matter to the Tribunal for decision according to law.
On 12 and 29 July 2005, the Tribunal re-heard the matter. On
30 November 2005, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 20 December 2005, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision dated 30 November 2005.
Legislative framework
Section 65(1) of the Act authorises the decision maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Australia owes protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
Tribunal proceeding
The Tribunal had before it the Department’s file, including the protection visa application and the Delegate’s decision record. The Tribunal also referred to material referred to in the Delegate’s decision. The Tribunal also had before it the Applicant’s application to the Tribunal and material and evidence in support of her application.
The Applicant appeared before the Tribunal on 12 July 2005 and gave oral evidence with the assistance of a Mandarin interpreter. However, when the Applicant alleged she could not continue with the hearing because she was ill, the matter was adjourned to 29 July 2005.
On 29 July 2005, the Applicant attended the resumed hearing and gave oral evidence. The Applicant’s adviser also made submissions on her behalf.
At the Tribunal hearing the Applicant claimed that she left the PRC because the FPA were threatening to forcibly sterilise her after they discovered that she was living with her boyfriend. The Applicant claimed that her employment was terminated and her reputation damaged as a result of the actions of the FPA.
The Applicant claimed that if she were to return to the PRC she would be persecuted because the FPA are still looking for her to sterilise her. The Applicant also claimed that she would be punished for leaving the country illegally if she were to return.
Further, since arriving in Australia, the Applicant claimed to have converted to Christianity and that she will be persecuted because of her religious beliefs if she were to return to the PRC and practise her Christianity. The Applicant claimed that she would not be able to gain employment or marry because of the actions of the FPA. The Applicant claimed the FPA have “harassed/harmed/threatened her family members and continue to do so and also have harmed her boyfriend’s mother.”
The Tribunal accepted that the Applicant is a PRC national and that she is unmarried.
The Tribunal found that there was no plausible evidence before it that the Applicant had suffered persecution in the PRC for any Convention related reason.
The Tribunal found that Applicant engaged in Christian activities in Australia solely to strengthen her claim to be a refugee.
The Tribunal did not accept the Applicant as a witness of truth and, for those reasons, did not accept as corroborative of her claims various documents claimed by the Applicant to have been obtained from the PRC and provided to the Tribunal in support of her claims.
Having considered the evidence before it, the Tribunal concluded that there was not a real chance that the Applicant would suffer persecution for a Convention reason were she to return to the PRC. The Tribunal was not satisfied that the Applicant has a well founded fear of persecution in the PRC within the meaning of the Convention and is therefore not a person to whom Australia has protection obligations.
Hearing before this Court
The Applicant was represented before this Court by Mr Archibald of counsel. Mr Archibald sought leave to rely on an amended application that was not available to the Court until after 5.30pm on the day of the hearing. However, by consent, the argument proceeded on the grounds identified in that document (“the Amended Application”) and leave was granted to file the Amended Application in Court.
The grounds are set out as follows:
“That the decision of the Refugee Review Tribunal (“the Tribunal) was affected by jurisdictional error:
Ground 1(formerly ground 2)
The Tribunal failed to consider all the evidence provided by the applicant thereby making a jurisdictional error. The Tribunal did not make a finding that the Applicant was dishonest or acted fraudulently and is under a duty to consider the corroborative documentation provided by the applicant (See WAIJ v MIMIA (2004) FCAFC 74 at 22)
Particulars
1. Given that the Tribunal did not accept the applicant as a credible witness, it did not accept the documents obtained from China by the applicants to provide evidence of her claims, including various letters from relatives in China, reports and notices, provide reliable evidence of the facts contained in those documents (at page 27)
Ground 2 (formerly ground 4)
The Tribunal failed to comply with s.424A of Migration Act 1958 and as a result thereof failed to accord the applicant procedural fairness:
Particulars
a. The Tribunal relied critically on:
1. some Notes allegedly taken at an interview with the Applicant at Sydney Airport on 22 February 2004 to find against the applicant on credibility
1i the answer given by the applicant to question 32 in the Application for a protection visa and
1ii the letter from refugee Advice and Casework service to the delegate of the first respondent of 17 March 2004
B The Tribunal failed to comply with section 424A in relation to the said material.”
Ground 1
At the heart of this ground, is the Applicant’s submission that the Tribunal erred in failing to have regard to the Applicant’s documentary evidence as corroborative of her claims in circumstances where the Tribunal had not made comprehensive findings of dishonesty in respect of the Applicant’s evidence.
In order to consider this ground, I first have regard in some detail to the claims made by the Applicant before the Tribunal and the Tribunal’s findings in respect of those claims, including its reasons. I shall then consider the Tribunal’s findings in respect of the Applicant’s documents provided to the Tribunal as purportedly corroborative of her claims.
The Tribunal noted that the Applicant admitted lying to the Delegate in respect of her claim of having left the PRC legally on a Chinese passport and having travelled to Thailand 3 to 4 years prior to coming to Australia. The Tribunal noted that the Applicant stated that she had never travelled to Thailand and that she left the PRC on a false passport when she came to Australia because she could not get a passport in her country because of her situation with the FPA.
The Tribunal noted her explanation for lying was that she had been told to repeat the details in her false Chinese passport of travel to Thailand and that she “got used to repeating those details.” The Tribunal noted that it did not accept this explanation was plausible “given that the applicant entered Australia on a false Portuguese passport which did not contain such details and that it was not until after DIMIA had refused the application for protection visa, on 5 May 2004, prior to her first Tribunal hearing on 18 May 2004, that the applicant’s adviser wrote to the Tribunal and advised that the applicant had made a mistake in answering question 32 in Form C of her protection visa application. It was then stated that the Applicant did not travel outside the PRC to Thailand in 2000 as she had stated in her application for protection visa but had included that detail as it was in the false passport that she used on her travel to Australia.”
The Tribunal did not accept as true the Applicant’s evidence that she left the PRC illegally to come to Australia on a false passport because of her situation with the FPA. The Tribunal concluded that “this claim was invented by the applicant to assist her application for a protection visa in Australia.”
Because it did not accept that the Applicant left her country illegally, the Tribunal found that the Applicant would not be “harassed/harmed/threatened by authorities in her country if she returns there because she left her country illegally.”
That is a finding of fact that was open to the Tribunal on the evidence and material before it and for which it gave reasons. It is therefore not a finding with which this Court could interfere.
The Tribunal then considered the Applicant’s claim that she could not return to the PRC because of her fear of persecution as a Christian following her conversion in Australia to Christianity. The Tribunal accepted that the Applicant had attended church and been involved in Christian activities in Australia since she has been in detention. The Tribunal did not accept the Applicant’s explanation that she did not make such a claim at an earlier time “because she did not know she could do so.”
The Tribunal had regard to s.91R(3) of the Act in considering whether the Applicant’s conduct in her conversion to Christianity in Australia was otherwise than for the purpose of strengthening her claim to be a refugee. However the Tribunal found, after considering all the evidence before it, particularly the Applicant’s evidence that she was not religious before coming to Australia and that she first decided to make a claim to be a refugee based on her religion when she was interviewed at Villawood by her solicitor just before the Tribunal hearing on 9 July 2005, “that the applicant engaged in Christian activities and practise solely to strengthen her claim to be a refugee.”
On the evidence before it, the Tribunal was not satisfied that the Applicant’s conversion to Christianity was otherwise than for the purpose of strengthening her claim to be a refugee. Further, the Tribunal did not accept that the Applicant would practise Christianity in the PRC were she to return.
Those are findings of fact that were open to the Tribunal on the evidence and material before it and for which it provided reasons. Accordingly, they are not findings with which this Court can interfere.
Because it found the Applicant to be an untruthful witness, the Tribunal rejected the Applicant’s claims of fear of forcible sterilisation or harm by the FPA; that the FPA were looking for her in the PRC for that purpose or to “otherwise harm or torture her”; that the FPA would prevent her getting future employment or prevent her from being able to marry; that she was moving from place to place to avoid the FPA prior to leaving the PRC; that her employment in the PRC was terminated because of her “situation involving FP [family planning] officials”; that FPA said she had a child; that the FPA have injured her boyfriend’s mother.
The Tribunal rejected the Applicant’s claim that FPA damaged her house in her village and continue to question and harass her family, in circumstances where the Applicant’s parents moved from the village about 3 years ago and that the Applicant has not lived there since February 2002 when she moved away for work.
I now turn to the Tribunal’s consideration of the Applicant’s documents provided by her to the Tribunal as purportedly corroborative of her claims.
The Tribunal identified in detail the documents relied upon by the Applicant in the Claims and Evidence section of its decision.
The Tribunal noted that, because it did not accept the Applicant as a credible witness, it did not accept that documents provided by the Applicant from the PRC were “reliable evidence of the facts contained in those documents.”
The Tribunal noted that the documents, claimed by the Applicant to be from the Family Planning Office dated 17 June 2003 seeking to insert an IUD and a letter dated 17 June 2003 which the Applicant claimed was from her employer dismissing her because the FPA notified them that she was “illegally cohabiting with her boyfriend”, were produced after her application for protection was refused by the Delegate.
Moreover, in the Claims and Evidence section of its decision, the Tribunal noted that Applicant’s evidence that the FPA letter dated
17 June 2003 was given by the FPA to her boyfriend’s family who were asked to give it to the Applicant. The Tribunal noted that it asked the Applicant how the FPA knew she was living at her boyfriend’s house, to which she responded that “the issue was reported”. The Tribunal noted that she then said that she and her boyfriend had given the boyfriend’s address when they went to the marriage registry, where the Applicant stated they were told the boyfriend was too young to marry.
The Tribunal noted that the Applicant stated that she received the letter of termination, also dated 17 June 2003, from the manager of the company where she worked until that time. The Tribunal noted that the Applicant did not know why the letter had no letterhead or company contact details, that, whilst the Applicant had no other documents from the company, she claimed to have received other notices and correspondence from the company that looked the same as the letter dated 17 June 2003.
The Tribunal noted that “given the importance of these documents to her claim the Tribunal does not accept that they were only produced on 11 May 2004, just prior to the first Tribunal hearing on 18 May 2004 because she did not realise she had to produce them and that it was only after she talked to her solicitor that she realised she needed to get the documents. The applicant gave evidence to this Tribunal that her application for protection visa was prepared with the assistance of an adviser.”
The Tribunal also noted that photographs of some damage to a wooden structure did not provide reliable evidence that the structure was that of the Applicant’s family home, nor that the damage was done by the FPA.
The Tribunal concluded that “there is no evidence before the Tribunal that the Applicant will be harmed by authorities in China because she has been out of her country since leaving there in 2004 or because authorities will think she has spoken out against the birth control laws in China.”
Counsel for the Applicant submitted that unless an applicant’s credibility had been “poisoned beyond redemption” and the applicant’s claims discredited by comprehensive findings of dishonesty or untruthfulness, a tribunal was bound to have regard to documents provided by an applicant as purportedly corroborative of the claims made. (WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74 at [27] (“WAIJ”); Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [49] (“Applicant S20”)).
Whilst Counsel for the Applicant acknowledged that there were adverse credibility findings in the Tribunal decision, he contended that her claims had not been discredited by comprehensive findings of dishonesty or untruthfulness. Counsel for the Applicant submitted that, in the absence of such findings, the Tribunal was bound to have regard to the Applicant’s purportedly corroborative documents before attempting to reach a conclusion on her credibility as to the substance of her claims.
The Applicant also relied on Applicant M164/2002 v Minister for Immigration & Multicultural Affairs [2006] FCAFC 16 (“Applicant M164”) at paragraphs [49] and [88]-[91] of the decision of Lee J. In that case, the court found that whilst inconsistencies in accounts of events between an appellant and her husband may point to a dishonest account, in the absence of other material able to support that conclusion, it is an unsatisfactory foundation for a finding that the whole of the applicant’s claims are untruthful. The Court concluded that the Tribunal failed to accord the appellant the fair procedure required by the Act where there was no material before the Tribunal to allow it to find that the appellants documents had been fabricated other than the Tribunal’s assertion that they were not genuine. The court noted that the Tribunal “did not identify in any respect how the documents could be so characterised” (Applicant M164 at [89]). Mr Archibald referred the Court to the words of Lee J in Applicant M164, as follows:
“89…This was not a case where the Tribunal, on proper grounds, had already determined that the substantive claims of the appellant were dishonestly made and, therefore, any documentary material that purported to corroborate those claims necessarily bore the same stamp. If an applicant’s claims are palpably fanciful, or important elements thereof are shown to be false, those circumstances will permit the Tribunal to disregard other material presented by the applicant in support of those claims. (See: Abebe v The Commonwealth (1999) 197 CLR 510 per Gleeson CJ, McHugh J at paragraph [84]-[85]).
90. However, serious findings of forgery, fraud or perjury cannot be based on a superficial examination of relevant events and materials, particularly where the conclusion reflects no more than a suspicion held by the Tribunal, and where that suspicion remains untested by reasonable use of powers available to the Tribunal to have further enquiries made in exercise of the Tribunal inquisitorial function.
91. If the Tribunal fails to carry out a review proceeding that accords with practical requirements of fairness, it conducts a proceeding, and make a determination, that is not authorised by the Act. That is to say the Tribunal does not have “jurisdiction” or authority to purport to make such a decision and the decision will be subject to judicial review by issue of constitutional writs. (See: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 per Gleeson CJ at [5]-[9]; McHugh, Gummow JJ at [34]-[37]; Kirby J at [116], [127]-)128], [138]). “
The Applicant submits that the adverse findings made by the Tribunal about the Applicant’s credibility arise solely from the Tribunal’s concern about her entry into Australia on an illegal passport and her untrue claim to have travelled to Thailand on such a passport. The Applicant submits that there are a cascading set of findings based fundamentally on that finding of dishonesty. The Applicant submits that, in those circumstances, there have not been comprehensive findings of dishonesty or untruthfulness.
The First Respondent through her Counsel, Ms Henderson, submits that the facts of the case before this Court are distinguishable from those in Applicant M164 in that there was no inconsistency of accounts in respect of claims. Rather, in the case before this Court, it was the Applicant’s own evidence and the Tribunal’s findings that her explanations were implausible or fabricated that led the Tribunal to find that she was not a witness of truth.
The First Respondent submits that these adverse credit findings by the Tribunal were open to it and were comprehensive findings of dishonesty or untruthfulness such that it was open to the Tribunal to reject material corroborative of the Applicant’s claims.
The Tribunal made it clear that it was the Applicant’s explanation for her lies to the Delegate, in respect of her passport entry into Australia and travel in Thailand, that led to the Tribunal’s rejection of the Applicant’s evidence that she left her country illegally. In arriving at that conclusion, the Tribunal did not accept as plausible her explanation that she perpetuated her lies because she became used to repeating them in circumstances where she did not resile from them until after her application had been refused by the Delegate.
Accordingly, it was the timing of her explanation and what it perceived to be the weakness of her excuse in repeating her false details that caused the Tribunal to reject her claim that she would be “harassed/harmed/threatened” by the FPA if she were to return to the PRC.
The Tribunal regarded her evidence as so unacceptable on the point that it noted that it considered her claim of fear of threats from the FPA because she left the PRC illegally as “invented by the Applicant to assist her application for a protection visa in Australia.” Such a finding is plainly a finding of dishonesty and untruthfulness.
In relation to the sur place claim, the Tribunal rejected the Applicant’s claims of conversion to Christianity having arrived in Australia, on the basis of the Applicant’s evidence (see above at paras. 39 to 42). The Tribunal noted particularly that it had regard to documents and references from members of the Christian church attended by the Applicant who wrote in support of her conversion. It was the Applicant’s own evidence in respect of her sur place claim that was insufficient to satisfy the Tribunal to the standard required that her conversion was otherwise than to strengthen her refugee claim. However, such a finding is not a finding of positive invention of a claim of conversion to Christianity. The Tribunal merely noted that it was not satisfied, on the evidence before it, that the Applicant’s conversion to Christianity was otherwise than for the purpose of strengthening her claim to be a refugee, in which case her claim of persecution, were she to return to the PRC, based on the Convention ground of religion must be refused (s.91R(3) of the Act).
Because the Tribunal did not regard the Applicant as a credible witness, it did not rely on facts stated in documents claimed to have been obtained from the PRC by the Applicant as evidence of her claims. Again, the Tribunal provides reasons of its concerns about the reliability of the facts stated in those documents where they were produced on 11 May 2004, just one week prior to the first Tribunal hearing. The Tribunal had difficulties with the Applicant’s explanation that she did not realise she had to produce them and it was only after she spoke with her solicitor that she stated that she realised she needed to get the documents. The Tribunal particularly noted that the Applicant had given evidence that her application for protection visa was prepared with the assistance of an adviser.
The Tribunal also expressed particular concerns about some of the documents. It noted that photographs of some damage to a wooden structure were not reliable evidence that the structure was Applicant’s family home, nor that the damage was done by the FPA. The Tribunal explored with the Applicant its concerns about the letters dated 17 June 2003 from the FPA and her employer (see paras. 46 to 53 above). The other documents were letters in support from members of the Applicant’s family, the weight of which was a matter for the Tribunal.
Certainly the relevant principles are that the Tribunal is required to consider the Applicant’s corroborative documentary material in the course of its reasoning and conclusions and that it is only in circumstances where the Applicant’s credibility has been “poisoned beyond redemption” (Applicant S20” at [49]) that the Tribunal can ignore such material.
However, in the circumstances in this case, the Tribunal clearly had regard to the documents provided by the Applicant and simply was not persuaded that any of the documents or their contents were reliable as being corroborative of her claims. Those are findings that were open to the Tribunal on the evidence and material before it and for which it provided reasons which, in the circumstances, were not illogical or irrational.
Accordingly, this ground is rejected.
Ground 2 – s.424A
The Applicant submits that there are 3 pieces of information to which the Tribunal had regard in making adverse findings about the Applicant’s evidence and which are caught by the requirements of s.424A(1) of the Act. Those are:
i)The Applicant’s answer at her airport interview, being as follows:
“Q: Did you use that Chinese passport to travel previously?
A: Yes, I got it 3 or four years ago to Thailand.”
ii)A letter dated, 17 March 2004, from the Refugee Advise and Casework Service to Ms Kathy Gabriel, Onshore Protection NSW, relevantly, as follows:
“The information given at the airport interview regarding when the Applicant received the Portuguese passport is correct…The Applicant [obtained] a PRC passport…at the airport from which she departed…The information she provided at the airport interview as to when she obtained the passport was not correct. At the time of the airport interview she was very scared and nervous. She had previously been told by someone else to state that she had a Chinese passport for some years but this is not the case. As far as the Applicant is aware her departure from the PRC was unlawful in that she believes her passport was irregularly obtained.’
iii)Applicant’s answer to question 32 in the protection visa application:
Question:
“32. Did you ever travel outside your home country or country of residence before your current journey to Australia?”
The Applicant answered that yes in 2000 she left China and went to Thailand for a few days.
The First Respondent submits that the short answer to this claim is that all this information was provided by the Applicant to the Tribunal for the purposes of her review application.
In relation (i) above, on 5 May 2004, the Applicant’s adviser wrote to the Tribunal advising that the Applicant had made a mistake in answering question 32 in Form C of her protection visa application in a letter from Refugee Advise Casework Services dated 5 May 2004, which says as follows:
“Our client also instructs us that there is a mistake in the Protection Visa application. Her answer to question 32 in From C is not correct. She has not travelled outside of China before apart from her current trip to Australia. She was confused during the preparation of the application and gave details about a trip to Thailand in 2000 because these details were in the false passport she used on her travel to Australia. She instructs us that she has never in fact traveled to Thailand.”
In relation to (i), (ii) and (iii), in a submission to the Tribunal, dated 19 August 2005, the Applicant sated the following:
“14. I understand now that the Tribunal is worried that I am not telling the Truth. I have no more proof to give than what I have already given. About the passports I used to come to Australia, I do not have any evidence to prove that the Chinese passport was not genuine because it was taken away from me. But I want to say that if I had a genuine Chinese passport to exit China, why would the people who brought me to Australia give me a false Portuguese passport to come into Australia? The only reason the Chinese authorities allowed me to leave China was because the man I was with did something or said something to the officer at the exit counter. If I had my own passport, my mum would not have need to ask her friend for help with passports. Instead we could have somehow made a visa application and maybe I could have come to Australia with a real visa. If I had my own Chinese passport, I would have used it to come into Australia because I understand that way I would have had a chance to live in the community.
15. What I want to say is, if I had my own passport and travelled to Thailand on it, I would have tried to come to Australia in a different way. The Thai stamp in the Chinese passport was arranged by the people who helped me come to Australia. I am sorry that I gave the wrong information to the Department of Immigration at the airport interview and the first application for protection. I felt forced to do that because the person who helped me told me to say that. And I was not aware until after I was refused by the department of Immigration, that I really needed documents to prove my case as well. I saw a paper after that, I think it was from the Tribunal, that asked if I had any documents to support my claims that I should provide them.”
It is clear that the material referred to above discloses all of the information, being the untruthful evidence given by her to the Delegate and her explanations for those untruths, that the Applicant submits was information that the Tribunal was required to provide to her in writing prior to the hearing. If an applicant refers to information for the purposes of their review by putting it forward ‘in chief, the assumption being that by doing so the applicant is aware of the information’ (NAZY at 37), then that information is not caught by s.424A(1) of the Act by virtue of s.424A(3)(b) of the Act (NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744 at [36]-[37]; SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 (“SZEEU”) at [20]).
There was no information that was a part of the Tribunal’s reasons for affirming the decision under review that was not provided by the Applicant for the purposes of the review. “Information” does not encompass the Tribunal’s subjective appraisals, thought processes or determinations. (SZEEU at [206]; Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 at [54]; Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at 428; VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123 at [24]). The Tribunal was not bound to disclose its reasoning process in respect of its evaluation of the Applicant’s evidence.
In the circumstances, the Applicant gave the information referred to in (i), (ii) and (iii) above to the Tribunal for the purposes of her review application. Consequently, the information is excluded from the requirements of s.424A(1) of the Act by virtue of s.424A(3)(b) of the Act.
Accordingly, this ground is rejected.
Conclusion
There being no jurisdictional error, the Tribunal’s decision is a privative clause decision and, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
Accordingly, the application before this Court is dismissed with costs.
I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: A D’Addona
Date: 26 April 2006
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