SZIEX v Minister for Immigration - [2007] FMCA 958

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIEX v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 958

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the application before the Refugee Review Tribunal was a valid application – whether it was open to the Refugee Review Tribunal to find that the applicant made an earlier protection visa application in a false name – whether the Refugee Review Tribunal was obliged to investigate pursuant to s.427(1)(d) of the Migration Act 1958 (Cth) the applicant’s claim of having made an earlier protection visa application in a false name – whether the Refugee Review Tribunal was obliged to consider s.91R(3) of the Migration Act 1958 (Cth).

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 47(3); 65(1); 91R; 91R(3); 91S; 424A(1); 424A(3); 427(1)(d); 474; pt.8 div.2
Freedom of Information Act 1982 (Cth)

WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 27
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Applicant:

SZIEX

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG267 of 2006

Judgment of:

Emmett FM

Hearing dates:

21 & 30 May 2007

Date of last submission:

30 May 2007

Delivered at:

Sydney

Delivered on:

22 June 2007

REPRESENTATION

Applicant appearing on her own behalf

Solicitors for the Respondent:

Mr L. Leerdam, DLA Phillips Fox
Mr T. Quinn, DLA Phillips Fox

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG267 of 2006

SZIEX

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated

14 December 2006 and handed down on 5 January 2006 (“the Tribunal”).
The Applicant was born on 14 March 1964 and claims to be from the People’s Republic of China and of Han ethnicity and Christian faith (“the Applicant”).
The Applicant arrived in Australia on 12 April 1998 having departed from Hong Kong on a passport issued in another person’s name and purchased by her.
On 26 May 2005, 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, following her detention at Villawood.
In her protection visa application, the Applicant claimed that she feared persecution by the PRC officials and police. She claimed that she had become a Christian in 1985 after priests from Taiwan established a mission in her hometown. She claimed her father, also a Christian, had been detained for that reason on two separate occasions, once during the Cultural Revolution for many years and once in 1990. The Applicant claimed that in 1990 she was detained a few days after her father.
The Applicant claimed that after 1992 the police, who had previously been sympathetic to the underground Christian group, received a new police chief who was much harsher and she was required to report to police regularly and she and other Christians were forced to meet and worship in secret.
The Applicant claimed she left the PRC after leaving her home town following a report to police that she had been collecting money for a fellow Christian who was ill and she purchased a passport to do this because she was under investigation from PRC authorities at the time and feared persecution by PRC officials.
The Applicant also claimed that she had made an earlier application for a protection visa on 9 May 1998 in Sydney. However, she was unable to provide any further details about that application. The Applicant’s protection visa application, filed on 26 May 2005, contained the name of the Applicant and also the false name, Shu Mei Min, being the name on the passport on which she entered Australia. In her protection visa application, dated 26 May 2005, the Applicant stated that she did not have her passport because it was held by the Department. The Applicant also nominated a migration agent in the protection visa application, dated 26 May 2005, whose consent is noted on that form.
On 30 May 2005, following receipt by the Department of the Applicant’s protection visa application, a request was faxed from Onshore Protection to the property officer at Villawood Detention Centre requesting a copy of the Applicant’s passport and any identification papers held for the Applicant.
The property officer at Villawood Detention Centre responded on

30 May 2005 that “GSL” did not have any travel documents for the Applicant, although a “Chinese Notarial Certificate” had been taken from the Applicant by a Department officer on 10 May 2005
On 3 June 2005, the supervisor of the Detention Coordination Unit Onshore Protection NSW sent a memorandum to “Refs Help Onshore” in the following terms:
“Can I please seek your opinion on the following case:
·    Above client claims to have arrived in A/A on 12/04/1998 travelling on Travel Document no P143358575, (visa UC 456) under the name MING Shu Mei according to ICSE MR.
·    Client was detained on 14/04/05 under the name [Applicant’s name]
·    Agent claims that applicant handed her travel document used to enter A/A and identity certificate to DIMIA when she was detained. Inquiries with VIDC failed to locate any of those 2 documents
·    Applied for PV on 26/05/05 using the name [Applicant’s name]
·    Agent claims that applicant lodged a PV application on 08/05/1998 in the name of [Applicant’s name] and received a registered mail from DIMIA after 1-2 weeks from lodgement.
·    Australia Post refused to give her the letter because she did not have a photo ID in that name.
·    Extensive search in ICSE failed to find any record of that PV application.
Can you please advise urgently if the application received on 26/05/05 is a valid application.”
A response to that memorandum was sent on 6 June 2005 from the Manager, Team 2 Onshore Protection NSW in the following terms:
“Judy Bedford, myself, Michael McElroy, and your own staff have all searched ICSE and TRIM for records of this claimed PV application. Our searches have proved unsuccessful. On this basis, according to advice below, we can accept the current application as valid. Pls go ahead.”
A further memorandum was sent on 6 June 2005 to the Supervisor Detention Coordination Unit Onshore Protection NSW from the Refs Help Onshore in the following terms:
“If you are satisfied that there are no records to indicate that the applicant has previously lodged an application for a protection visa which has been refused, then the applicant would not be s48A barred and therefore the application of 26.5.05 can be accepted as valid.
Please advise the Helpdesk should you require further assistance.”
On 6 June 2005, the Department sent a letter to the Applicant care of the Immigration Detention Centre at Villawood acknowledging receipt of her protection visa application.
On 30 June 2005, the Department refused the Applicant a protection visa. In its decision record the Department acknowledged that the Applicant had claimed that she left the PRC on a passport in the name of Shu Mei Min and came to Australia and that she made an application for protection but never heard anything and was later told by the Department there was no record of that application. The Delegate found that at the time of the Applicant’s entry into Australia she was the holder of a visa that was not granted in her own name and on a passport not issued in her own name. For that reason the Tribunal stated that the Applicant was unable to meet the requirement of sub-cl.866.212(3) for the grant of a Subclass 866 (Protection) visa.
On 29 July 2005, the Applicant lodged an application for review with the Tribunal. The Applicant stated in the application for review that she had entered Australia in the name of Shu Mei Ming and that her passport number was not available.
On 9 September 2005, the Applicant was invited by the Tribunal to come to a hearing on 11 October 2005. The Applicant responded indicating that she wished to attend that hearing.
On 19 September 2005, the Applicant’s adviser made a request to the Tribunal under the Freedom of Information Act 1982 (Cth) for access to documents, being “All the documents held by the RRT including the DIMIA file.” (“FOI”).
On 4 October 2005, the Tribunal responded to that request and provided the following documents:
“Folios 1 to 50 on the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA file CLF2005/43778).
Folios 1 to 14 on Tribunal file N05/51818, file cover and 6 pages of screen copies from the Tribunal’s computerised Case Management System.”
On 7 October 2005, the Applicant’s adviser, wrote to the Tribunal in the following terms:
“Dear Registrar,
RRT file number: N05/51818 – [Applicant]
We note that this matter is set down for hearing on 11 October 2005.
On 5 October 2005, pursuant to our FOI request, we received from the RRT, the following:
· Folios 1 to 50 of DIMIA file CLF2005/43778; and
· Folios 1 to 14 of the Tribunal file N05/51818, file cover and 6 pages of screen copies from the Tribunal’s computerized Case Management System.
Folios 20, 21 and 23 of DIMIA file CLF2005/43778 show that DIMIA officer, Angela Santos tried to locate the applicant’s travel documents by requesting “a copy of the passport and any identification papers that you might hold…” from The Property Officer at VIDC on 26 May 2005 and 30 May 2005.
Folio 23 contains a signed handwritten response dated 26 May 2006 from “VIDF (sic) Prop dept” (sic), that, “No documents currently held in Property, however there was a ‘PRC Notarial Cert #22818’ taken out on the 10/5/05 by Zammit (DIMIA)”. We cannot identify the name of the writer of this response from the signature.
Folio 21 contains a handwritten response from Linda Abraham, dated 30 May 2005 stating that no travel documents are held but that, “A Chinese Notarial Certificate was taken by DIMIA officer S. Zammit on the 10/5/05”.
The applicant has provided us with two Property Receipts issued by DIMIA indicating that:-
1. On 29 April 2005 DIMIA officer, Sundari Kurnimi received from the applicant a “1x Chinese Notarial Certificate under the above name [Applicant]’.
2. On 11 May 2005 DIMIA officer, T. Dee received from the applicant “1 PRC passport in name of “Ming Shumei”. 110101460419052 identity no: exp: 2002/08/28 143358575 P/chn”.
We enclose certified copies of the two Property Receipts issued by DIMIA dated 29 April 2005 and 11 May 2005.
We believe that the inability to locate the applicant’s documents raises serious issues.
The whereabouts of the passport under the nae of Ming Shu Mei may throw some light on the applicant’s claims, in particular, whether a previous protection visa had been lodged.
Taken at face value the email from Sue Taylor, Manager, Team 2, Onshore Protection NSW to Ziad Madani, Supervisor, Detention Coordination Unit, Onshore protection NSW, dated 06/06/05 at 10.02AM, regarding the search in ICSE and TRIM by, herself, Judy Bedford, Michael McElroy “…and your own staff…” for “…records of this claimed PV application…” which failed to locate any records appears to have been a comprehensive search. However, in light of the above, this search was either flawed in some way or not as comprehensive as first appears. This situation highlights our concerns regarding DIMIA’s ability to locate the applicant’s records.
The applicant insists that she lodged a protection visa in May 1998 and if it is the case it would mean that the current application is invalid and the RRT does not have jurisdiction to review. Additionally, the previous application might be affected by the decisions in Srey and/or VEAN.
In the circumstances, we request the RRT to postpone the hearing and investigate the failure of DIMIA to locate the applicant’s records and to retrieve the entire DIMIA file relating to [Applicant] and Ming Shumei. Alternatively, we ask the RRT to postpone the hearing to allow the applicant to make an application under FOI to DIMIA for her entire file/s.”
Attached to that letter were copies of property receipts in respect of the Chinese Notarial Certificate and a passport in the name of Ming Shu Mei said to have been collected at the Villawood Detention Centre. The Chinese Notarial Certificate is said to have been received on 29 April 2005 and the passport received on 11 May 2005.
On 10 October 2005, the Applicant’s advisor was informed that the hearing would proceed as scheduled on 11 October 2005 however, the advisor’s letter dated 7 October 2005 would be taken into account.

The Tribunal review

The Applicant attended a hearing before the Tribunal at which she provided a signed statement dated 10 October 2005. In that statement she said the following:
“27. Some time in early May 1998 I approached an agent Ms Liang (or Leung) of 406-407, 661-663 George Street, Haymarket. With her help, I lodged a protection visa application on about 8 May 1998 under the name [Applicant’s name].
28. I lodged that application at the DIMIA office at 191 Hay Street, Haymarket.
29. About a week after I lodged the application I received a letter from DIMIA.
30. I then went back to see Ms Liang and she said it was a letter acknowledging my protection visa application.
31. About a month after that I received a notice from the post office in Harris Park informing me to claim a registered mail.
32. I went to the post office to claim that letter but the post office refused to deliver it to me because I did not have any photo-identity showing my true name [Applicant’s name].
33. I tried to claim that letter some time later but I was told that the letter had been returned to sender.
34. I then asked Ms Liang to write to DIMIA informing it that I was unable to claim its registered mail.
35. I did not hear anything from Ms Liang.
36. I waited till the end of 2000 and then approached Mr Thomas Liu of Shine Business Consultant Centre who promised to investigate. I paid Mr Liu a total of $1,200 on two occasions.
37. I have not heard from Thomas Liu since then and I understand that he is no longer allowed to practice.”
In support of her assertion of having filed a prior protection visa application the Applicant provided a letter from the Rector of St Paul’s Anglican Church, Kogarah dated 7 October 2007. The letter stated the following:
“I wish to confirm that [Applicant] did produce a duplicate copy of her application and the letter with the content of her reason to apply when she was with us at the Rockdale Anglican Church, about three years ago.”
On 1 November 2005, the Applicant’s adviser wrote to the Tribunal following the hearing on 11 October 2005 stating, inter alia, as follows:
“At the conclusion of the hearing the Member undertook to write to us setting out what further information is required and a time limit for the information to be provided. The member also indicated that is necessary a further hearing will be scheduled.”
The letter then attached two further letters in support of the Applicant’s substantive claims.
On 1 November 2005, the District Registrar of the Tribunal wrote to the Applicant’s adviser in the following terms:
“During the hearing conducted by the Tribunal on 11 October 2005 the Tribunal Member indicated that she would ask the Department to advise on the location of two documents given to Departmental officers whilst your client was held in detention. Please find enclosed copy of the letterl (sic) sent to the Department seeking that information.
The Tribunal Member considers that the information in those documents does not effect the decision in this matter however she has sought this information on behalf of your client as agreed at hearing. Please advise if you have any further queries.”
The documents attached to that letter disclose that inquiries were made about the location of those documents. Thereafter on 25 November 2005, the Applicant’s adviser sent a further submission to the Tribunal enclosing independent country information.
In its decision the Tribunal stated that it had before it the Department’s file, including the protection visa application and the Delegate’s decision record. The Tribunal stated that it also had regard to material referred to in the Delegate’s decision and other material available from a range of sources.
The Tribunal identified with particularity the claims made by the Applicant in her protection visa application. The Tribunal then recounted with particularity the oral evidence given by the Applicant at the hearing.
The Tribunal dealt with the Applicant’s allegation of a previous protection visa application. The Tribunal explored with the Applicant her claim of lodging an earlier protection visa application and put to her that the Tribunal found it difficult to accept she would not keep a record of something as important as a protection visa application. The Tribunal noted the Applicant’s response that she was fearful but had little knowledge of the system. After exploring the issue with both the Applicant and her adviser, the Tribunal found that the current application was the only valid application made for a protection visa.
The Applicant gave oral evidence before the Tribunal in which the Applicant expanded upon her written claims and answered questions with regard her practice of Christianity both in China and Australia.
Following the hearing, the Applicant’s adviser provided further material and post hearing submissions.
The claims made by the Applicant to the Tribunal and the Tribunal’s decision is accurately summarised by the First Respondent’s solicitor’s written submissions as follows:
“5. The applicant provided the following documents in relation to her RRT application:
5.1A statement provided in her original protection visa application to the Department.
5.2 A statement provided with her RRT application.
5.3A letter from the applicant’s agent, dated 7 October 2005, requesting an adjournment of the RRT hearing and enclosing copies of two property receipts.
5.4A written statement of claims provided at the RRT hearing.
5.5A letter from Rev Mee Ping Lau, the rector at St Paul’s Anglican Church Kogarah, provided at the RRT hearing.
5.6A letter from the applicant’s agent, dated 1 November 2005 enclosing a translated letter from the Church member of Nan Shan Church.
5.7A final written statement of claims from the applicant’s agent dated 25 November 2005, enclosing copies of country information.
6. The claims made before the RRT were in some respects inconsistent with those in the applicant’s PVA. In the written statement provided at the RRT hearing, the applicant said:
‘I now understand that the information submitted by my previous agent was not entirely correct.’
7. The RRT noted this, and said that it had not made any adverse finding based on the inconsistencies with the PVA. It considered, appropriately, that the applicant’s claims were those in the written statement to the RRT and in her oral evidence at the RRT hearing.
8. The applicant claimed to fear persecution from Chinese authorities because of her Christian religion.
8.1She claimed that she started to have contact with Christian people when she was about 8-10 years old. When she was 14, she started working in a machinery factory. It was at about this time that she was baptised and became Christian.
8.2The prayers, gospel studies and religious gatherings were conducted in private, because the local government did not approve of Christian gatherings other than government organised ones.
8.3The applicant continued with the Christian gatherings, despite disapproval from her parents, while she learnt to be a dressmaker, started her own business, and had children. In August 1997, her group invited a teacher from Taiwan. The applicant was one of five members who assisted him in his preaching activities. The preacher stayed in her village for one week, and then they heard the local government was altered and looking for him. The applicant assisted to hide him and helped him escape back to Taiwan.
8.4The local government summoned the five of them. The applicant then escaped to Heilongjiang (north-east China). She had since heard that three of the five were arrested and later sent to prison.
8.5The applicant stayed in Heilongjiang until April 1998 when she met someone who organised an escape to Australia for her. She went to Shenzhen and crossed the border to Hong Kong with a Cambodian passport. She was then given a PRC passport in another name that she used to travel to Australia. She had since heard from her parents that the three people who were arrested in 1998 had been sentenced to 12 years in prison. She was afraid that if she returned to China, the authorities would pursue her and imprison her because of her involvement with the Taiwanese preacher in 1998.
10 The RRT affirmed the decision of the delegate, finding that the applicant’s claims did not give rise to protection obligations. It drew conclusions about the credibility of the applicant’s claims, finding that:
10.1The applicant’s knowledge of Christianity was superficial and at times confused. Her level of knowledge was not consistent with a person who had been a committed Christian all her adult life. The RRT therefore concluded that the applicant was not a member of a Christian group and had not been baptised as claimed.
10.2As a result of this finding, the RRT also concluded that the applicant had not assisted any Taiwanese preacher to hide from and escape officials.
10.3In support of this conclusion, the RRT found that if the Chinese authorities had a serious adverse interest in the applicant in 1997, she would not have been summoned by letter for questioning and would not have evaded questioning by moving to another area in China.
10.4The applicant was evasive and uncomfortable when giving evidence about her escape from questioning and relocation, and the evidence on this lacked detail and coherence.
10.5The RRT considered the letter from the Chinese church, but did not give it any weight, finding that there was nothing to verify the identity or residence of the authors.
10.6The RRT accepted that the applicant had used a false passport and visa to enter Australia, but did not accept that this was to evade Chinese authorities seeking the applicant in relation to Christian activities. As a result of this finding, the RRT concluded that it was not necessary to locate the missing passport before making its decision.
10.7The RRT accepted that the applicant had attended a number of Christian churches while in Sydney, but continued to have doubts as to whether the applicant was a genuine Christian. However, as a matter of caution it went on to consider the applicant’s situation as a Christian if she returned to China.
10.7.1The RRT considered country information in relation to the freedom to worship at official churches, and to be involved in bible study groups. Considering the applicant’s evidence of her Christian practice in Australia, the RRT concluded that the applicant would be free to worship as she wished within these environments.
10.8The RRT also considered the fact that the applicant had delayed so long after her arrival in Australia before applying for a protection visa.
10.8.1In relation to her claim to have lodged an application in 1998, the RRT did not believe the applicant. This was because there was no documentary evidence of such an application, even from the applicant’s own records, and because the applicant had done nothing to enquire about the outcome of the application.
10.8.2The RRT concluded that even if it was incorrect on this point, the applicant’s lack of action in following up the outcome of her application was not consistent with a genuine fear of persecution.”

The proceeding before this Court

The Applicant was unrepresented before this Court although had the assistance of an interpreter.
The Applicant confirmed that she relied on an amended application filed on 12 May 2006 which identified the following grounds:
“Ground 1: The Second Respondent failed to perform its duties under section 427(1)(d) of the Migration Act 1984. This failure amounts to a jurisdictional error.
Ground 2: The Second Respondent misconstrued the law in relation to what amounts to a valid protection visa application. It failed to consider the evidence provided by the applicant and erroneously relied on the fact that the Department had accepted the application and determined that the application was valid. This error of law amounts to a jurisdictional error.
Ground 3: The RRT, in determining whether the applicant is a Christian, embarked on a task in which it is not an expert. The member determined the issue by reference to the applicant’s lack of knowledge of various Christian denominations and their significance. This amounts to a jurisdictional error.
Ground 4: The Second Respondent made a number of mistakes in its factual finding or had an indifferent attitude to those facts which taken collectively indicates that it had a closed mind and/or was biased. This amounts to a jurisdictional error.
Ground 5: The Second Respondent took into account irrelevant material which was prohibited by law according to section 91R of the Migration Act. This amounts to a jurisdictional error.
Ground 6: The Second Respondent failed to discharge its duties in accordance with section 424A of the Migration Act. The duties are imperative as decided by the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 (18 May 2005).”
Each of the grounds was read to the Applicant an she was invited to make whatever submissions she wished in support of those grounds or in support of her application generally, Apart from disagreeing with the findings and conclusions made by the Tribunal and asserting that she had made an earlier protection visa application, the Applicant had no meaningful submissions to make.

Ground 1 – “The Second Respondent failed to perform its duties under section 427(1)(d) of the Migration Act 1984. This failure amounts to a jurisdictional error”

This ground was supported by particulars that relevantly contended that the Department had failed to undertake investigations pursuant to its power under s.427(1)(d) of the Act as to the whereabouts of the Applicant’s passport. The particulars to ground 1 stated that there was clear evidence that a Department officer had taken possession of the Applicant’s passport. The particulars to ground 1 also contended that the passport may reveal if the Applicant had been granted a bridging visa which might suggest she had in fact lodged an earlier protection visa application.
Section 427(1)(d) of the Act states that:
“(1) For the purpose of the review of a decision, the Tribunal may:
(d) require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination.”
There is no requirement imposed by s.427(1)(d) of the Act on the Tribunal to investigate matters, unless its failure to do so is driven by a lack of good faith (WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 27 at [25] –[26]).
In the case before this Court, the Tribunal had before it the Department’s file that disclosed the investigations and inquiries made by it in relation to the Applicant’s allegation of making an earlier protection visa application (see above in these Reasons). The Tribunal itself also made inquiries in relation to the whereabouts of the Applicant’s passport and any other travel documents. As a result of its inquiries the Tribunal provided a bundle of documents to the Applicant’s adviser in response to his FOI application. Those documents were tendered to the Court by the First Respondent and marked Exhibit 2R.
Included in Exhibit 2R was a copy of the Department’s movement details in the Applicant’s false name disclosing that she arrived in Australia on 12 April 1998 on a temporary visa. The movement details record was current as at 31 May 2005. In those circumstances, the First Respondent’s solicitor, Mr Leerdam, submitted that the overwhelming inference to be drawn from that document is that there has been no change to the Applicant’s visa status from when that document was first created, upon the Applicant’s entry to Australia, until 31 May 2005, and that, accordingly, no protection visa was granted in that name.
In its decision, the Tribunal noted that it would make inquiries as to the whereabouts of the Applicant’s passport and a notarial certificate. The Tribunal accepted the Applicant’s evidence that the passport on which she had entered Australia was in a false name. The Tribunal then confirmed in its decision that it had “taken steps to write to the department seeking that information and advised the applicant’s advisor of that action”.
On 1 November 2005, the Applicant’s adviser wrote to the Tribunal following the hearing on 11 October 2005 stating, inter alia, as follows:
“At the conclusion of the hearing the Member undertook to write to us setting out what further information is required and a time limit for the information to be provided. The member also indicated that is necessary a further hearing will be scheduled.”
The letter then attached two further letters in support of the Applicant’s substantive claims.
On 1 November 2005, the District Registrar of the Tribunal wrote to the Applicant’s advisor in the following terms:
“During the hearing conducted by the Tribunal on 11 October 2005 the Tribunal Member indicated that she would ask the Department to advise on the location of two documents given to Departmental officers whilst your client was held in detention. Please find enclosed copy of the letterl (sic) sent to the Department seeking that information.
The Tribunal Member considers that the information in those documents does not effect the decision in this matter however she has sought this information on behalf of your client as agreed at hearing. Please advise if you have any further queries.”
The letter enclosed with the Tribunal’s letter dated 1 November 2005 disclosed that inquiries were made about the location of the Applicant’s passport.
In those circumstances, it is plain that the Tribunal did in fact arrange for the making of an investigation in relation to the Applicant’s passport.
Further, the Tribunal’s conclusion, in its letter dated 1 November 2005, that the information in the Applicant’s passport and notarial certificate did not affect the decision was reasonable in circumstances where it had decided there had been no valid earlier protection visa application made.
Moreover, even on the Applicant’s evidence, her passport would reveal a false name. Therefore, even if she had made an earlier protection visa application in that false name, the consequence would be that such an application was not a valid application. Further, s.47(3) states that the Minister is not to consider an application that is not a valid application.
Accordingly, ground 1 is not made out.

Ground 2 – “The Second Respondent misconstrued the law in relation to what amounts to a valid protection visa application. It failed to consider the evidence provided by the applicant and erroneously relied on the fact that the Department had accepted the application and determined that the application was valid. This error of law amounts to a jurisdictional error”

Ground 2 is misconceived in that it appears to allege that the Tribunal erred in finding that the Applicant’s application for a protection visa, filed on 26 May 2005, is a valid application.
However, the Applicant did not assert to the Tribunal that her application filed on 26 May 2005 was invalid. Rather she asserted that she had made a previous application. The Tribunal did not accept the bare assertion of the Applicant in the absence of any “documentary evidence or other probative evidence”. If the Applicant had made an earlier application, the overwhelming inference is that it would have been recorded in the Department’s file, being Exhibit 2R, which was given to the Applicant’s adviser by the Tribunal pursuant to the advisor’s FOI request.
In particular, the document in Exhibit 2R disclosing the Applicant’s movement details shows the current visa status of the Applicant as at 31 May 2005. In those circumstances, as stated above in these Reasons, the overwhelming inference is that no grant of protection was made in respect of an earlier application.
Exhibit 2R was part of the factual matrix of the information before the Tribunal at the time it concluded that “In the absence of any documentary evidence or other probative evidence giving specific details of an earlier protection visa application I do not accept that there was an earlier valid application.” In the circumstances, the Tribunal’s finding that there was no earlier valid protection visa application made by the Applicant was plainly open to it on the evidence and material before it and for which it gave reasons.
To the extent that the Applicant complains that her bare assertions of an earlier application were not accepted by the Tribunal, such complaint is no more that a disagreement with the Tribunal’s finding. Such complaint invites merits review which this Court cannot undertake (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shan Liang”)).
Accordingly, ground 2 is not made out.

Grounds 3 and 4

These grounds do no more than identify particular factual findings made be the Tribunal with which the Applicant disagrees. As such grounds 3 and 4 do no more than seek merits review which this Court cannot undertake (Wu Shan Liang). The findings made by the Tribunal about which the Applicant complains were open to it on the evidence and material before it and for which it provided reasons.
Accordingly, grounds 3 and 4 are rejected.

Ground 5 – “The Second Respondent took into account irrelevant material which was prohibited by law according to section 91R of the Migration Act. This amounts to a jurisdictional error”

The particulars in support of ground 5 appear to complain that the Tribunal considered a sur place claim made by the Applicant and in doing so failed to comply with s.91R(3) of the Act.
However, the Tribunal did not accept that the Applicant had become a committed Christian in Australia, nor, that she was a member of underground Christian church in China.
The First Respondent, submitted and I accept, that, in context, the Tribunal was doing no more than beneficially considering the “what if I am wrong” test to the Applicant’s claim of being a Christian. The Tribunal had regard to independent country information that it found disclosed that members of official and registered churches in China are generally free to worship without restriction or discrimination. The Tribunal also found that the Applicant had no particular allegiance to any denomination and had only expressed interest in reading the Bible and praying. In those circumstances, the Tribunal found that the Applicant could return to China and worship as she wished.
Those findings were open to the Tribunal on the evidence and material before it and for which it gave reasons.
In the circumstances, no issue of the application of s.91R(3) arose.
Accordingly, ground 5 is rejected.

Ground 6 – “The Second Respondent failed to discharge its duties in accordance with section 424A of the Migration Act. The duties are imperative as decided by the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 (18 May 2005).”

No relevant particulars were provided in support of ground 6. A fair reading of the Tribunal’s decision makes it clear that there was no information considered by the Tribunal as part of its reasons for affirming the decision under review that enlivened the obligations of s.424A(1) of the Act. Any such relevant information considered by the Tribunal was information excluded from the obligations of s.424A (1) of the Act by reason of s.424A(3) of the Act.
Accordingly, ground 6 is not made out.

Conclusion

The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court is dismissed with costs.

I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate: S. Kwong

Date: 21 June 2007