SZISC v Minister for Immigration

[2007] FMCA 1365

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZISC v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1365

MIGRATION – Review of decision of Refugee Review Tribunal – non-appearance before the Tribunal – procedural requirements under s.425A invitation to appear – procedural requirements under s.424A invitation to comment – Tribunal entitled to proceed on the basis of s.426A – whether the gaps or defects in the Tribunal’s reasons constituted jurisdictional error – no jurisdictional error – application dismissed.

Migration Act 1958, ss.424A, 424B, 425A, 426A, 441A, 441C
Migration Regulations 1994, regs.4.35, 4.35D

SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 107
Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat (2006) 151 FCR 214
SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62
SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749
Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507
VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872
Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431
Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407
SZBQT v Minister for Immigration and Citizenship [2007] FCA 547
NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235
Australian Broadcasting Tribunal v Bond (1999) 170 CLR 321
Abebe v Commonwealth (1999) 197 CLR 510

Applicant: SZISC

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number:	SYG 3587 of 2006
Judgment of:	Nicholls FM

Hearing date: 10 August 2007

Date of Last Submission: 10 August 2007

Delivered at: Sydney

Delivered on: 17 August 2007

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondents: Ms L Clegg

Solicitors for the Respondents: Clayton Utz Lawyers

ORDERS

1. The application to this Court made on 4 December 2006 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $4,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3587 of 2006

SZISC

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application filed in this Court on 4 December 2006 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal), signed on 19 October 2006 and handed down on 7 November 2006, affirming the decision of a delegate of the respondent Minister to refuse to grant a protection visa to the applicant.

Background

1. The applicant is a citizen of the People’s Republic of China who arrived in Australia on 19 June 2004, via Fiji.  On 4 November 2005, the applicant applied to the respondent Minister’s Department for a protection visa.  (The application for protection visa is reproduced in the Court Book (“CB”) at CB 1 to CB 31, with annexures.)  On 15 December 2005, a delegate of the respondent Minister refused to grant a protection visa to the applicant.  On 16 January 2006, the applicant applied to the Tribunal for review of that decision.  (The application is reproduced at CB 47 to CB 50.)

2. By letter dated 19 January 2006, the applicant was invited to attend a hearing before the Tribunal on 22 February 2006.  (The Tribunal’s letter is reproduced at CB 53 to CB 54.)  By letter dated 10 February 2006, the Tribunal requested that the applicant bring to the hearing both his Chinese and Taiwanese passports.  (This letter is reproduced at CB 57.)  Copies of the applicant’s passport were received at the hearing and are reproduced at CB 58 to CB 62.

3. On 16 March 2006, the Tribunal (“the earlier constituted Tribunal”) handed down its decision signed on 27 February 2006.  On 30 June 2006, orders were made in the Federal Magistrates Court quashing the decision of the earlier constituted Tribunal and remitting the matter to the Tribunal for decision.  (A copy of my orders is reproduced at CB 65.)

4. By letter dated 31 July 2006, the applicant was again invited to a hearing scheduled for 19 September 2006.  A hearing to be conducted by the now differently constituted Tribunal (CB 68 to CB 69).  The applicant responded and indicated that he would attend a hearing (CB 70).  In spite of the Tribunal reporting to the contrary in its decision record (relevantly, at CB 87.3) that the applicant appeared before it on that date, it is clear from what is reproduced at CB 75 and elsewhere in the Tribunal’s decision record (CB 91.1), that the applicant did not appear at the hearing on that date.

5. By letter dated 19 September 2006, the Tribunal wrote to the applicant and invited him to comment on certain information which the Tribunal said was relevant to its consideration because it may draw an adverse view of the applicant’s credibility based on the inconsistencies in information provided to the respondent’s Department and information subsequently provided to the Tribunal (CB 71 to CB 72).  This letter appears to have been returned as undeliverable to the Tribunal (CB 73).  The Tribunal received on 21 September 2006 advice that the applicant’s address for service had changed (CB 77).  The Tribunal sent a copy of its letter to the applicant’s new address on 21 September 2006 (CB 80).

The Applicant’s Claims to Protection

1. The applicant’s claims to protection arise from circumstances of claimed persecution on the grounds of religion and imputed political opinion.  The applicant claimed to be a practising Christian in China who was a member of a “banned” church.  The applicant claimed that he came to the attention of authorities in China and that he was arrested and tortured for information as to the location of his church and the other members of the church.

2. The Tribunal’s decision record is reproduced at CB 84 to CB 95. The Tribunal adopted the summary of the applicant’s claims, including claims made at the hearing before the earlier constituted Tribunal, and set out the earlier constituted Tribunal’s report of what occurred at the hearing in its decision record (CB 87 to CB 90.8). The Tribunal noted that it had invited the applicant to a second hearing but that the applicant did not attend, despite having earlier advised that he would attend, and the Tribunal decided, in all the circumstances, to proceed to determine the application pursuant to s.426A of the Migration Act 1958 (“the Act”). The Tribunal also set out in its decision record under the heading of “Notice under s.424A of the Act” its letter of 19 September 2006 seeking the applicant’s comments on certain information, and noted that the applicant had been invited to comment by 12 October 2006 and that, at the time of the Tribunal’s drafting of its decision record (presumably at some time up to 19 October 2006), no response had been received by the Tribunal. The Tribunal then proceeded to set out its findings and reasons which are reproduced at CB 92.3 to CB 94.7.

The Tribunal

1. The Tribunal made the following findings:

   1)It had “significant concerns regarding the applicant’s credibility” and concluded that he was “not a witness of truth,” on the basis of the significant inconsistencies between his written claims and his oral claims made before the earlier constituted Tribunal (CB 92.6).

   2)It was “not satisfied” that the applicant had left his job with the Transportation Bureau in China because of his, or his uncle’s, Christian activities (CB 92.9).

   3)It was “not satisfied” that the applicant’s uncle had been imprisoned for the reasons provided by the applicant, nor was it satisfied that the applicant had attracted the adverse attention of Chinese authorities for the reason of his involvement with his uncle’s religious activities (CB 93.4).

   4)The applicant had “tailored” his claims to suit the purposes of his application for protection.  In particular, it found that his claims that police had visited his home in January 2004 and had seized documents, and that security people had tortured him for information about his church and the location of other members, were tailored for the purposes of his application (CB 93.4).

   5)It was “not satisfied” that the applicant had been tortured, nor that Christian materials had been removed from his home by security personnel, police or “any other persons from the authorities on any occasion” (CB 93.7).

   6)It was “not satisfied” that a warrant for the applicant’s arrest had been issued in China (CB 93.8).

   7)It was “not satisfied” that the applicant had had any difficulties obtaining a passport, nor that the applicant was of any adverse interest to the authorities (CB 94.2).  This was on the basis that the applicant’s statements as to how he had obtained a Chinese passport and the circumstances in which he departed China were inconsistent (CB 93.9 to CB 94.1).

   8)It did not accept the applicant’s explanation for his 6 month delay in attending church in Australia, nor did it accept his explanation for his delay of some 17 months in applying for a protection visa (CB 94.3).

   9)It did not accept that the applicant was a practising Christian nor that he was involved in any “Christian related activities in China” (CB 94.4).

   10)It was “not satisfied” that the applicant had been harmed in the past nor that there was any real chance that he would be harmed for a Convention reason were he to return to China (CB 94.6).

   In all, therefore, it affirmed the decision under review.

2. On 27 April 2007, the applicant filed an amended application which put forward two grounds:

   “1. The Tribunal had bias against me and refused my application based on assumption, not evidence and materials. The Tribunal failed to assess the chance of my persecution on my return to China because of my underground religious activities in China. I worry that I will be persecuted on my return to China because of my religious activities in China and in Australia. The Tribunal failed to consider the claims of my application based on s.91R of the Migration Act 1958.

   2.  The Tribunal failed to refer to adequate independent information for the consideration of my application.  The information referred was not relevant with my application.”  (Errors in original)

Hearing before the Court

1. The applicant appeared before the Court with the assistance of an interpreter in the Mandarin language.  Ms L Clegg of Counsel appeared on behalf of the first respondent.  I also have before me Ms Clegg’s written submissions filed on 4 May 2007.

Consideration – ss.425, 424A Letters

1. I note that in its decision record (reproduced at CB 84 to CB 95) the Tribunal states that the applicant appeared before it on 19 September 2006 to give evidence and present arguments (CB 87.2).  The Tribunal later states that the applicant did not appear before the Tribunal (CB 91.1).  The Tribunal notes (at CB 90.9) that the applicant had completed the response to hearing invitation form (signed and dated 14 August 2006) and confirmed that he wanted to attend the hearing (CB 90.9 to CB 91.1).  (The response to hearing invitation form is reproduced at CB 70.)  I take the view that the Tribunal’s early statement to the effect that the applicant had appeared before it was made in error, and that the Tribunal’s later statement that the applicant did not appear is correct.

2. The Tribunal, as earlier constituted, had already invited the applicant to attend a hearing before it (CB 53 to CB 54), an invitation which the applicant plainly took up.  On the basis of the reasoning set out by the Full Court of the Federal Court in SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 107 (“SZEPZ”), the obligation imposed by s.425 of the Act, that an applicant must be invited to appear before the Tribunal was, in my view, fulfilled when the earlier constituted Tribunal invited the applicant to such a hearing. While the Full Court in SZEPZ dealt with the issue of s.424A of the Act, I note in particular that the Court (at [40]) said:

   “Ultimately, the question raised on the appeal turns on the proper construction of s.424A(1)(a).  That section requires the Tribunal to give information to an applicant, to ensure that the applicant understands why the information is relevant to the review and to invite the applicant to comment on the information.  However, that requirement is limited to information ‘that the Tribunal considers would be a reason or part of the reason for affirming the decision that is under review’.  In so far as that provision refers to a state of mind or mental process, it must be taken to refer to the state of mind or mental process of the particular member constituting the Tribunal for the purposes of the review.”

3. Applying the reasoning in that case (at [41]-[43]), the applicant in the case before me was invited to a hearing before the Tribunal to give evidence and present arguments relating to the issues arising in relation “to the decision that is under review.” This occurred prior to the making of the ultimate (second) decision by the Tribunal and, by analogous reasoning, therefore, the requirements of Division 4 of Part 7 of the Act were complied with. (I note that this is a matter to which s.422B of the Act applies (Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat (2006) 151 FCR 214 and SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62) which operates to make the matters set out in that Division the exhaustive statement of the natural justice hearing rule (absent bias). Nonetheless, I cannot see that there was error in the Tribunal subsequently inviting the applicant to a second hearing, nor for that matter was there any failure of the Tribunal to fulfil its obligations in relation to prescribed periods of notice. Nor can I see that there is any restriction on inviting the applicant to a second hearing such that it is not then subsequently open to the Tribunal to proceed pursuant to s.426A of the Act if the applicant then fails to appear before the Tribunal on that second occasion.

4. In terms of the procedural requirements, section 425A of the Act requires that in the performance of its obligations pursuant to s.425 of the Act, the Tribunal must send to the applicant for review an invitation to attend a hearing (“the s.425A letter”). The s.425A letter must be sent by one of the methods specified in s.441A of the Act (s.425A(2) of the Act), and the period of notice must be at least the prescribed period (s.425A(3) of the Act). Section 441A(4) of the Act permits notice to be given to the applicant via prepaid post, and provides that such notice must be dispatched to the applicant’s last address for service provided to the Tribunal, or to the applicant’s last residential or business address provided to the Tribunal, within three working days of the date of the letter (s.441A(4) of the Act). Section 441C(4) provides that the applicant is taken to have received the letter, so dispatched, seven working days after the date of the letter. The prescribed period of notice for the purposes of a s.425A letter is specified in regulation 4.35D(b) of the Migration Regulations 1994 (“the Regulations”), and starts when the letter is received and ends 14 (calendar) days after the day on which the notice is received.

5. In this case, the s.425A letter dated 31 July 2006 is taken to have been received on 7 August 2006 (s.441C(4) of the Act), and the prescribed period of notice in respect of that letter ended on 21 August 2006 (reg.4.35D(b)). As the letter advised that the matter had been set down for hearing on 19 September 2006, a date falling after the end of the prescribed period, it complied with s.425A of the Act. Accordingly, the Tribunal was entitled, in its discretion, to proceed pursuant to s.426A of the Act and to make a decision on the review without taking any further action to allow or enable the applicant to appear before it (s.426A(1) of the Act).

6. I should note that the Tribunal noted that the applicant had confirmed his intention to attend the hearing by returning the response to hearing invitation form, and it therefore, correctly in my view, concluded that the applicant had received the hearing invitation form and therefore, “was well aware of the day and the time of the hearing” (CB 91.3). The Tribunal further noted that it had not received any communication from the applicant “to indicate that he had any reason for not being able to attend the hearing” (CB 91.3). In those circumstances, the Tribunal decided not to exercise its discretion to reschedule the hearing date pursuant to s.426A of the Act (CB 91.3). The Tribunal was entitled to proceed on this basis.

7. Section 424A of the Act requires that the Tribunal advise the applicant in writing of particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision under review. The information and invitation must be given to the applicant in accordance with one of the methods specified under s.441A of the Act (s.424A(2) of the Act). As noted above, the notice may be given by prepaid post and must be dispatched to the last address for service given to the Tribunal, or the last residential or business address given to the Tribunal, within three working days of the date of the letter (s.441A(4) of the Act). As noted above, s.441C(4) of the Act provides that the applicant is taken to have received the letter, so dispatched, seven working days after the date of the letter. Section 424B of the Act provides that a s.424A letter must specify that the information or comments are to be given within a period specified in the invitation but that such period must not be less than the prescribed period. The prescribed period of notice for the purposes of s.424B of the Act is specified in regulation 4.35(3) of the Regulations, and starts when the letter is received and ends 14 (calendar) days after the day on which the notice is received.

8. By letter dated 19 September 2006, the Tribunal invited the applicant to comment on certain information relevant to the Tribunal’s decision. (The letter is reproduced at CB 71 to CB 72.) It would appear that this letter (“the s.424A letter”) was not delivered to the applicant (see CB 73). On 21 September 2006, the Tribunal received via facsimile a notice of change of address for service annexing a copy of the Tribunal’s hearing invitation letter dated 31 July 2006 (reproduced at CB 77 to CB 79). A Tribunal Case Note (reproduced at CB 80) dated 21 September 2006 indicates that the applicant’s contact details were updated and that same day, a copy of the Tribunal’s s.424A letter was sent to the applicant’s new address for service. At the time of writing the decision (19 October 2006), the Tribunal had not received a response to its letter from the applicant (CB 92.2).

9. In this case, the “s.424A” letter dated 19 September 2006 is to be taken to have been received on 28 September 2006 (s.441C(4) of the Act), and the prescribed period of notice in respect of that letter ended on 12 October 2006 (regulation 4.35(3)). This is the case even if the letter is sent not on the date of the letter, but within three working days of the date of the letter. In either case, the letter is taken to have been received within seven working days of the date of the letter. In this case, 19 September 2006 fell on a Tuesday. The letter was dispatched for a second time on 21 September 2006, which was a Thursday. Again, the letter was sent in accordance with s.441C(4) of the Act, being sent within three working days of the date of the letter. It should be noted that in either case, the letter was sent, relevantly, to the last address for service provided to the Tribunal, the letter being sent the second time to the address notified to the Tribunal, by the applicant, via facsimile received on 21 September 2006.

1. I further note that the “s.424A” letter specified that the applicant’s response was to be received by the Tribunal by 12 October 2006. As the s.424A letter requested that the applicant provide his comments in writing to the Tribunal by 12 October 2006, a date 14 (calendar) days after the date the letter was received, it complied with s.424A of the Act. At the date of writing its decision, 19 October 2006, the Tribunal noted that it had not received a response to its s.424A letter. Although the Tribunal did not state explicitly that it would proceed to make the decision on the review pursuant to s.424C(2), this is, effectively, what the Tribunal did. Again, in the circumstances, the Tribunal was entitled to do so.

2. By way of amended application (which repeats in this regard what is said in the originating application), the applicant complains that the Tribunal was biased against him, that it failed to assess the applicant’s chances of persecution on return to China, and that the Tribunal failed to consider the claims of the application based on s.91R of the Act.

3. I can only agree with Ms Clegg that the applicant’s complaint that the Tribunal failed to assess the chance of the applicant’s persecution upon his return to China is without merit on any reading of the Tribunal’s decision record.

4. The applicant’s complaint that the Tribunal was biased does not succeed.  I note Ms Clegg’s reference to SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 per Tamberlin, Mansfield and Jacobson JJ at [56]-[59], and note also what was relevantly said in Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 at [71]-[72], and further, what was said in VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872 per Kenny J, and what was said in Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431 at [10]. As to the requirement for the applicant, in alleging bias, to establish that the Tribunal had a state of mind so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, there is nothing in the material before me, nor has the applicant, beyond making the mere assertion, brought forth any evidence to show that the mind of the Tribunal was not open to persuasion. This allegation does not succeed.

5. Nor can I see that the applicant’s complaint that the Tribunal based its decision on “assumption not evidence and materials” can succeed.  The Tribunal did consider the evidence put before it by the applicant himself by way of his written materials and what he said at the hearing before the (previously constituted) Tribunal.  It is precisely the role of the Tribunal to consider this material and to make findings of fact.  Findings of fact which include findings on credibility are, of course, for the Tribunal, as referred to by McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407 (at [67]), as the decision maker “par excellence.” If what the applicant really complains about is that the Tribunal made adverse credibility findings, then on the material before it, it was plainly open for the Tribunal to do so. The applicant did not succeed before the Tribunal because of the adverse view that the Tribunal took on the credibility of the applicant’s claims based on the inconsistency in those claims and, in part, the implausible and confusing nature of what he had said. The applicant would have been on notice in the course of the hearing before the (previously constituted) Tribunal that there were concerns about his claims. The Tribunal, during the course of the hearing (CB 90.7), told the applicant that it appeared that he was not a “devoted Christian” and that his explanation as to how he was able to leave China was “implausible.” Further, the applicant would have been left in no doubt following the Tribunal’s letter of 19 September 2006, sent to both the address that he had originally provided to the Tribunal, and to his subsequently advised different address (in circumstances, as I have set out above, where the letter complied with the relevant statutory and regulatory requirements), and put clearly on notice, as to the specifics of the inconsistencies in his claims from which the Tribunal may subsequently draw an adverse finding as to his credibility, which is exactly what the Tribunal did. The applicant has had the opportunity to address these issues, at least by way of responding to the Tribunal’s letter, and indeed, by attending the second hearing which the Tribunal had provided to him, but without explanation, failed to attend a hearing even after advising that he would and, without explanation, failed to respond to the Tribunal’s letter. In all the circumstances, I cannot see that the Tribunal proceeded on any baseless assumptions, if this is what the applicant is seeking to complain about. Clearly the credibility finding was open to the Tribunal and it gave reasons for its findings.

6. It is also not clear, as Ms Clegg submits, as to what the applicant seeks to complain about with the reference to s.91R of the Act. That section of course sets out the meaning of, and the criteria relevant to, an assessment of persecution for the purposes of considering the entitlement to a protection visa. I cannot see that the Tribunal misunderstood the relevant test or misapplied this test to the circumstances that were before it. In any event, as Ms Clegg also, in my view, correctly submits, the basis for the Tribunal’s decision was a rejection of the factual basis of the applicant’s claims. Simply, the Tribunal did not believe in significant and relevant particulars the applicant’s claim to fear harm on the basis of his claimed religion or any imputed political opinion in China.

7. I note in this regard, in a manner not repeated in the amending application but which may be taken to be implied, the applicant also complained in his original application that the Tribunal’s decision was not based on a rational and logical foundation.  Putting aside the issue of whether this is available as a ground for review (see SZBQT v Minister for Immigration and Citizenship [2007] FCA 547, per Rares J at [22], and NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235 at [22] to [29]), there is again, as Ms Clegg, in my view, correctly submits, no basis for this assertion on a reading of the Tribunal’s decision record. It may be that the applicant wishes to portray this adverse Tribunal decision as being beyond belief in terms of illogicality and rationality, but the decision record in my view makes clear findings based on sound reasons for its decision that it did not believe the applicant and it thereby rejected his claim. This complaint also does not succeed.

8. The applicant also complains in ground two of the amended application that the Tribunal failed to refer to “adequate independent information” in considering his application, and that, conversely, the information referred to was not relevant.  As to the latter, the information that the Tribunal referred to was the applicant’s own evidence given both in writing and at the hearing.  The applicant can hardly claim now that what he himself put to the Tribunal was not relevant to its consideration.  As to the complaint that the Tribunal failed to refer to independent information, I assume this is a reference to some independent country information.  The applicant does not say what this independent information is.  There is nothing in the material before the Court to indicate that the applicant referred the Tribunal to any such information and that it failed to take it into account.  Nor given the view that the Tribunal took of the applicant’s own evidence, can I see that there was any need in all the circumstances of this case for the Tribunal to make reference to any further independent information.  Simply, the applicant’s account was not believed.  This complaint also does not succeed.

9. Ms Clegg also submitted that there were two “typographical errors” in the Tribunal’s decision record:

   1)At CB 87.2, the Tribunal states that “the applicant appeared before the Tribunal,” when the applicant did not appear at the hearing.

   2)At CB 93.6, where the reference to “January or February 2006” should be “January or February 2004.”

10. What is recorded at CB 87.3, whether mere typographical error in omitting the words “did not appear” or whether some factual error, plainly does not amount, in all the circumstances, to legal, let alone, jurisdictional error (Australian Broadcasting Tribunal v Bond (1999) 170 CLR 321 at 341, per Mason CJ). Nor does it even amount to a wrong finding of fact. But in any event, there is no error of law in such a wrong finding of fact (Abebe v Commonwealth (1999) 197 CLR 510 at [137]).

11. The situation is perhaps not as clear in relation to what the Tribunal has recorded at CB 93.4.  That is, the reporting that at the hearing the applicant presented his claims in a new light by stating that he was attacked in his house in “January or February 2006.”  An examination of what the Tribunal reports as having been said at the hearing reveals that the applicant actually stated that he was attacked “in about January or February 2004” (CB 90.2).  The mistaken reference to “2006” rather than “2004,” appears to have arisen by way of the Tribunal’s letter of 19 September 2006, where the Tribunal put to the applicant (at CB 91.7 and CB 71.7) that he had stated that he had been attacked in his house in “2006.”

12. In all the circumstances however, it would have been obvious that this was simply a typographical error.  Plainly, by the words surrounding the reference to “2006,” that is, the reference to being attacked in his house, not by the police but by people who worked closely with the police, it could only have been a reference to what the applicant had said to the Tribunal as reported in the Tribunal’s account of the hearing (CB 90.2).  Further, the applicant had arrived in Australia on 19 June 2004, such that it would have been obvious to him and to anyone else that he could not have claimed to have been attacked in his house in 2006 in China.  Nor, importantly, on any reading of the Tribunal’s reasoning, was any difference between 2004 and 2006 referred to by the Tribunal as the inconsistency, or one of the inconsistencies, on which it relied.

13. In that part of its decision record, the Tribunal plainly focussed on the applicant’s claim at the hearing that he had been attacked in his house by people who had worked closely with the police, and that it was the fact that this was a new claim made at the hearing, and not earlier, that the Tribunal, in part, used as the basis for its subsequent view that “the applicant has sought to tailor his claims and present them in a manner that suits his purpose.”  In essence, therefore, the Tribunal’s mistaken reference to “2006” is not such an error that can be said to affect the exercise of its jurisdiction and in my view, is not such as to reveal jurisdictional error in its reasoning.

14. In all, therefore, the Tribunal considered the applicant’s claims as variously put by the applicant himself, put the applicant on notice, gave the applicant the opportunity on two occasions to attend a hearing (an opportunity which he took up on one occasion but, without explanation, failed to take up on the second occasion), and put to him in writing the issues relevant to its consideration (an opportunity to comment which the applicant did not take up).  In all, I cannot see jurisdictional error in what the Tribunal has done.  This application is dismissed.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  A Douglas-Baker

Date:  17 August 2007