SZIWJ v Minister for Immigration - [2006] FMCA 1406

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIWJ v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1406

MIGRATION – Refugee – grounds of review general & lacking in specificity – Tribunal decision not “unfair” and “unjust” – applicant was not denied procedural fairness or natural justice – Tribunal complied with the requirements of s.424A – no jurisdictional error in the Tribunal’s decision – application dismissed.

Migration Act 1958, ss.422B, 424A, 424A(1), 424A(3)(a), 424A(3)(b)

Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat [2006] FCAFC 61
SZHYP v Minister for Immigration & Anor [2006] FMCA 1267
SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2
NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241

Applicant:

SZIWJ

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1474 of 2006

Judgment of:

Nicholls FM

Hearing date:

18 September 2006

Date of Last Submission:

12 September 2006

Delivered at:

Sydney

Delivered on:

26 September 2006

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Counsel for the Respondents:

Mr. J. A. C. Potts

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1474 of 2006

SZIWJ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application filed in this Court on 22 May 2006 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 9 May 2006 to affirm the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.
The background to this matter is that the applicant, who is a citizen of the People’s Republic of China, first arrived in Australia on a Korean passport in the name of “Jin Mi Kim” (not the name by which she ultimately applied to the Tribunal) on 5 August 2001. On 10 September 2001 she lodged an application for a protection visa (“the earlier application”) which was refused by the Minister’s delegate on

6 November 2001. She then applied for a review of that decision and on 29 November 2002 the decision of the delegate was affirmed by the Tribunal (differently constituted). The applicant remained in Australia until she was detained by the Minister, and subsequently returned to China on 15 February 2005.
The applicant re-entered Australia on 24 August 2005 on another Korean passport in the name of “Kyo Jeong Hyung” (again, not the name by which she applied to the Tribunal) and was subsequently detained in 22 December 2005. On 13 January 2006 the applicant lodged an application for a protection visa with the Minister’s Department. On 1 February 2006 a delegate of the respondent Minister refused to grant a protection visa to the applicant. On 7 February 2006 she applied to the Tribunal for review of that decision.
The applicant’s claims are reproduced in her application for a protection visa at Court Book (“CB”) 1 to CB 26, in particular in a statement at CB 27 to CB 30, and in her application for review at CB 48 to CB 51. The applicant’s claims are also set out in the Tribunal’s decision record at CB 156.1 to CB 156.8.
The applicant and her adviser attended a hearing before the Tribunal on 9 March 2006 (CB 62). After the hearing the Tribunal sent the applicant’s adviser a copy of the Department’s file as it related to the earlier application (CB 64). On 28 March 2006 the applicant’s adviser provided the Tribunal with copies of the applicant’s Chinese passport, and Chinese identity card (CB 65 to CB 104). On 4 April 2006 (after the hearing) the applicant’s adviser made a submission to the Tribunal enclosing extracts from a report from the United Nations Commission of Human Rights (reproduced at CB 105 to CB 140).
The essence of the applicant’s claims as they were put before the Tribunal was that following her return to China, in February 2005, she was harassed by the authorities because of her past involvement with Falun Gong and her sister's involvement with Falun Gong (her sister had committed suicide some years earlier and the applicant claimed that she now looked after her children). Further the applicant claimed:
“I also believe that my activities in Australia in applying for protection on the basis of Falun Gong and spending a number of years away have caused the authorities to be very suspicious of me. However, the biggest factor which has contributed to the police harassment is the Falun Gong’s organisation ongoing contact and delivery of propaganda to my home.” (CB 29.9)
In a statement submitted on the applicant’s behalf by her then advisers, the Legal Aid Commission of New South Wales, and dated 4 April 2006, the advisers asserted on the applicant's behalf:
“[The applicant] has consistently maintained that she is no longer a practitioner of Falun Gong. She has been imputed with belonging to this group as a result of her association with her sister. She has experienced ongoing harassment and mistreatment at the hands of the Chinese authorities because they believe that she is a Falun Gong practitioner. Details of this are contained in her statement and she elaborated on these at the Refugee Review Tribunal hearing on 9 March 2006.” (CB 105.8)
The statement to which this refers is the statement at CB 27 to CB 33, which was attached to the applicant’s protection visa application.
The Tribunal correctly identified the applicant’s claims as a fear of further and serious harm on her return to China because of an imputed association with Falun Gong (CB 156.2). The Tribunal identified that the applicant had given a number of reasons as to why she considered that the Chinese authorities imputed her involvement with Falun Gong. It reported these at CB 156 as:
·Her sister and sister’s husband were deeply involved with Falun Gong until March 2000, and that her sister committed suicide because of the crackdown on Falun Gong (CB 156.4).
·Upon her return to China in February 2005, she confessed to the authorities that while she was in Australia she had lodged an application for protection on the basis of involvement with Falun Gong (CB 156.5).
·When she returned to China in February 2005 members of Falun Gong attempted to contact her, which brought her to the attention of the authorities (CB 156.6).
·She practiced Falun Gong prior to the crackdown in 1999 (CB 156.7).
The Tribunal’s “Findings and Reasons” are set out in its decision record at CB 156.1 to CB 159.9. The Tribunal found:
1)It was not satisfied that the applicant was genuine in her claim for protection, or that she left China because of the circumstances she described (CB 156.8).
2)It did not accept that the applicant was subject to ongoing harassment or detention by the Chinese authorities after she was deported in February 2005 as a suspected associate of Falun Gong (CB 156.9).
3)It did not accept the applicant’s explanation, at the hearing before it, that she paid a bribe to renew her passport because at that time she was subject to detention and investigation by the authorities (CB 157.2).
4)It did not accept that the applicant returned to Australia in August 2005 for the purpose of seeking protection because she feared harm from the Chinese authorities (CB 157.3).
5)It did not accept the applicant’s explanations reasonably accounted for her “considerable delay” in lodging an application for a protection visa (CB 157.6).
6)It did not accept as plausible, or credible, the basis upon which the applicant claimed that she had been imputed to be an associate of Falun Gong by the Chinese authorities (CB 157.7).
7)It did not accept that the applicant was under ongoing adverse attention of the authorities in China because:
a)Nothing “further flowed” from the questioning of the applicant’s family about their involvement with Falun Gong after her sister’s death in March 2000 (CB 157.9).
b)The applicant first came to Australia in 2001 for the purposes of work, and lodged an application for protection to enable her to stay in Australia to earn money (CB 158.1).
c)The Tribunal was of the view that the events of 2000 did not give rise to a well founded fear of harm to the applicant (CB 158.3).
d)The Tribunal found it to be incongruent that the applicant informed the authorities that she had lodged an application for a protection visa in Australia on the ground of involvement with Falun Gong when she had initially claimed, at the hearing before the Tribunal, that she came to Australia for the purpose of working (CB 158.5).
e)The Tribunal found it implausible that Falun Gong practitioners would attempt to contact the applicant in the manner she described given the authorities’ intense restrictions on Falun Gong and the applicant’s absence from China and disinterest in Falun Gong (CB 158.7).
f)The Tribunal found the applicant’s involvement was not such that she would be “imputed” with a Falun Gong association (CB 158.8).
g)Her involvement with Falun Gong prior to the crackdown in 1999 did not result in the applicant facing any harm from the authorities at the time of the crackdown, or any time up to her arrival in Australia in 2001, or upon her return to China in 2006 (CB 158.9 to CB 159.1).
8)It did not accept that there existed a real chance that the applicant would face harm on her return to China (CB 159.2).
For all the reasons above the Tribunal was not satisfied that the applicant had a well founded fear of persecution by reason of her association, or imputed association, with Falun Gong (CB 159.3).
The applicant’s application raises three grounds of review in the following terms:
“1.The Refugee Review Tribunal failed to apply the correct test and constructively exercise it is jurisdiction; in making decision, The Tribunal made an error or fault of law and made a scale decision that was manifestly unjust, unfair that this fear or persecution had existed.
2.The Refugee Review Tribunal unreasonably rejected the visa applicant’s claims based on a disproportional fear of a member Falun Gong that this the visa applicant was an activist or supporter. The Tribunal erred in finding that the visa applicant is not a person to whom Australia has protection obligations it could be the visa applicant was not be prepared her case properly.
3.The Tribunal did not consider whether the visa applicant had a well-founded fear if the applicant was returned to The People’s Republic of China because the visa applicant was a support of the Falun Gong’s activist.”
The applicant has not filed an amended application or written submissions.
By way of a response, filed on 12 July 2006, and written submissions, of 12 September 2006, the respondent asserts that none of the grounds of review raise anything with specificity that could amount to jurisdictional error. The respondent sought that the application be dismissed as there is no jurisdictional error in the Tribunal’s decision.
As the hearing Mr. Potts appeared for the respondent. The applicant, who was unrepresented, was assisted by an interpreter in the Mandrin language. At the outset of the hearing before the Court (on

18 September 2006) the applicant, in effect, sought an adjournment as she claimed that she had not had the “chance to speak to a lawyer”.

She confirmed that she was aware that her matter was scheduled for final hearing on that morning. She further claimed that because of this, and because of her lack of English, she did not know why she had to appear in Court.
In this latter regard I reminded the applicant that she had applied for a protection visa, this had been refused, she subsequently sought review of that decision by the Tribunal and when she was unsuccessful she made an application to this Court to review the Tribunal's decision.
I explained to the applicant the difference between the role and power of the Tribunal and the role and power of Court, and that by her application to the Court, the Court was concerned not with the merits of her refugee claims, but as to whether particular legal error could be discerned in the Tribunal's decision.
In relation to her claim that she had not received advice from any lawyer the applicant confirmed that she had appeared before a Registrar of this Court on 20 June 2006. At that time she had the assistance of an interpreter in the Korean language and her application to the Court had been set down for hearing on 18 September 2006.
She confirmed that she had signed short minutes of order on that date and that the orders made by the Registrar had been made by consent.
I pointed out to the applicant that there is an expectation that if a party wishes to obtain legal advice that they need to take steps to arrange such advice and that she had had three months to make relevant arrangements.
At this point the applicant complained that she had applied at the first Court date for “the legal advice scheme” which I saw as a reference to the Court's Legal Advice Scheme. She further complained “I was never given the chance to meet with a lawyer”. I noted from the Court’s file that at the relevant time, that is, at the time of the first Court date, the applicant was detained by the first respondent at the Villawood Immigration Detention Centre and that the Court's Registry had written to the applicant at that address by letter dated 22 June 2006, and to a lawyer on the panel of Court's Legal Advice Scheme. I was clearly concerned that, having asked for assistance through the Court’s Legal Advice Scheme, if the applicant had not had the opportunity to consult with the panel lawyer that the matter should be adjourned until such advice could be obtained.
In support of her claim the applicant sought to tender (I subsequently marked this as Applicant’s Exhibit 1 (“AE1”)) a letter dated
15 September 2006 from the lawyer on the Court's Legal Advice Scheme making reference to his contact (presumably on the applicant’s behalf) with the pro bono section of the Law Society and making reference to an “application for legal representation”. On the face of it, and in all the circumstances presented to the Court up to that point, it appeared that the panel lawyer had not provided advice to the applicant, but had sought to refer the applicant to the Law Society.
Mr. Potts sought a brief adjournment, which I granted, to enable enquiries to be made to ascertain whether the panel adviser met or otherwise gave advice to the applicant.
On resumption it appeared the enquiries were fruitless and Mr. Potts agreed that this did seem to confirm that nothing had been done by the adviser to provide legal advice to the applicant. I indicated to Mr. Potts that I was minded therefore to grant an adjournment. At this point
Mr. Potts drew the Court's attention to the reference in the letter provided by the applicant (“AE1”) now to a telephone conversation said to have occurred between the panel lawyer and the applicant:
“I refer to my conversation with you of earlier today.”
The applicant explained that “someone from a legal firm visited the Villawood Detention Centre a while ago” and that this person indicated that a solicitor from the Legal Advice Scheme would meet her at Villawood, but that no one came to see her after that date. She then (somewhat confusingly) made reference to a letter that she received from the respondent’s Department which she claimed gave her further references to possible sources of legal advice and then submitted that on 15 September 2006 she did speak to a solicitor. In context I took this to be a reference to the telephone conversation in the letter of
15 September 2006 (“AE1”).
At this point Mr. Potts indicated that he was now in a position (through putting his instructing solicitor into the witness box) to provide evidence to the Court that in fact the panel lawyer had spoken to the applicant on 3 or 4 occasions and had provided legal advice to the applicant.
I explained to the applicant that up until this point her assertion that she had not received legal advice had been put to the Court by way of submission and that in light of this most recent development, given that Mr. Potts had indicated he had evidence which contradicted her claim, that it may be preferable to ask her to go into the witness box and give evidence as to the issue of whether she had been provided with the legal advice pursuant to the Court's Legal Advice Scheme.
The applicant then submitted that in fact the panel lawyer had visited her on three occasions at the Villawood Detention Centre and confirmed that he had provided legal advice to her, that he had indicated that he could not represent her in Court but would direct her to another solicitor who could represent her in Court but that this other solicitor had never contacted her. She explained that her initial reference to not having received legal advice was put in the context of not having had received legal advice from this “other” lawyer.
In all therefore, the applicant’s initial basis for seeking an adjournment, that is, that she had not received the legal advice as expected under the Court's Legal Advice Scheme, clearly was no longer sustainable. I did not grant any adjournment to the applicant. It was clear that the promised legal advice had been given to her. It was always open to the panel lawyer to have appeared for the applicant today (albeit on a pro bono basis as the scheme does not extend to paying for representation before the Court). There was nothing before me to show that any further legal advice, or even representation, would arise from the referral to the Law Society, nor was it clear, the basis upon which that referral had been made. The applicant was the recipient of advice and had received, albeit limited, legal representation under the Court's scheme. In all I accepted Mr. Potts’s submission that the hearing should proceed.
The applicant's complaint with the Tribunal decision, as expressed before the Court, was that she gave oral evidence to the Tribunal, it did not accept her evidence, and that she felt that this was “very unfair”.
The grounds as stated in the application to the Court are so general and lacking in specificity that they do not provide any assistance to the task of seeking to discern jurisdictional error on the part of the Tribunal. The first ground asserts that the Tribunal failed to apply the “correct” test and made a decision that was “unjust and unfair”. On what is before me the Tribunal clearly understood the relevant question that it needed to address, that is, whether in all the circumstances presented to it the applicant had a well founded fear of persecution for a Refugees Convention reason if she were to return to China.
I cannot see that the Tribunal’s subsequent consideration was “unfair” or “unjust”. To the extent that this may imply some complaint about a failure to observe the principles of procedural fairness, or natural justice, then s.422B of the Migration Act 1958 (“the Act”) applies to this case (Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat [2006] FCAFC 61). I will deal with one aspect of the relevant statutory regime below, but in any event I cannot see that the applicant was denied fairness in the sense of procedural fairness, or natural justice, in what the Tribunal has done, even if these principles at general law were to apply. The applicant was given an opportunity to attend a hearing before the Tribunal and on the only record of what occurred at that hearing I cannot see that the applicant was denied the opportunity to know the relevant issues that were to apply to her claims. The applicant had an adviser present during the hearing who was also given the opportunity to provide comments to the Tribunal and then following the hearing the adviser made written submissions which were considered by the Tribunal. I cannot see any unfairness in how the Tribunal approached its task. Clearly, having received a decision which was not to her liking, the applicant's description of this as “unfair” or “unjust” does not show jurisdictional error on the part of the Tribunal.

Ground two in the amended application asserts that the Tribunal “unreasonably rejected” the applicant’s claims. Even if unreasonableness and illogicality were open to the applicant as grounds of review I cannot see, on the material before me, that the Tribunal acted unreasonably, or with a lack of logic, in its consideration of the applicant’s claims. That the applicant claimed to fear harm because of her association with Falun Gong was the issue that the Tribunal addressed and it did not accept that in all the circumstances before it the applicant had such an association imputed to her. It did not accept the applicant’s claims as plausible, or credible, in this regard (CB 157.7). But to the extent that the applicant now maybe said to be asserting that in fact she was an activist, or supporter, going beyond just merely being imputed to be an associate, does not accord with the evidence in the material before the Court now. Clearly the nature of her involvement, or association, with Falun Gong was explored at the hearing that the Tribunal conducted with the applicant and the Tribunal reports (CB 152.8) that the applicant stated that she had practiced Falun Gong for sometime but stopped when it was outlawed by the government and further that she did not practise Falun Gong in Australia. It is clear in all the circumstances that the fear of harm that she put before the Tribunal (and a plain reading of the Tribunal’s account of what occurred at the hearing makes this clear) was partly, that she had been imputed with some association with Falun Gong by the authorities because of her family relationships, and partly because of the activities of other Falun Gong members, in approaching her when she had returned to China. Further, this is also reinforced by the subsequent submission from the adviser (4 April 2006 - also referred to in the Tribunal’s decision record at CB 154.6) where the adviser states:
“[The applicant] fears serious harm at the hands of Chinese authorities because she is imputed as belonging to the social group Falun Gong or imputed with holding anti Communist political opinion by belonging to Falun Gong. Falun Gong does not identify as a religion, however it may be perceived as such by the Chinese authorities who may seek to harm [the applicant] because they impute her with following Falun Gong.
[The applicant] has consistently maintained that she is no longer a practitioner of Falun Gong. She has been imputed with belonging to this group as a result of her association with her sister. She has experienced ongoing harassment and mistreatment at the hands of the Chinese authorities because they believe that she is a Falun Gong practitioner. Details of this are contained in her statement [this appears to be the statement submitted to the respondent’s Department (CB 27 to CB 30)] and she elaborated on these at the Refugee Review Tribunal hearing on 9 March 2006.”
There is nothing in the material to show that the Tribunal misunderstood the claim made by the applicant nor that it dealt with a claim different to that which she had put forward. Further, the applicant complains in ground two that the Tribunal was in error in finding that the applicant was not owed protection and appears to imply that the reason for the Tribunal not being able to find that the applicant was a person to whom Australia owed protection obligations was that it may have been that her case had not been properly prepared. Even if there was some deficiency in the preparation of her case I cannot see that the Tribunal played any part in any such claimed deficiency. Further, the applicant had the benefit of advice from the Legal Aid Commission of New South Wales who made written submissions on her behalf and the lawyer signing those submissions (CB 113) is also a registered migration agent. The applicant’s adviser was also present at the hearing the Tribunal conducted with her. In all the circumstances, I cannot see that any successful ground of review can arise to assist the applicant in this regard.
To the extent that ground three asserts that the Tribunal did not consider whether the applicant had a well founded fear of persecution if she were to return to China then clearly the material before the Court shows that there is no basis for such a complaint.
At the hearing before me Mr. Potts raised the issue of whether the Court could be satisfied that the circumstances before it could not give rise to any successful complaint that the Tribunal had not complied with the requirements of s.424A of the Act. The reason put forward by Mr. Potts, the Court’s consideration of this issue, was that this was a case in which there was a prior application for a protection visa in 2001, ultimately leading to the applicant’s removal from Australia and subsequent re-entry. Mr. Potts referred the Court to the Tribunal's decision record as reproduced at CB 151, with specific reference to the first three dot points appearing at that page, that make reference to the “first” protection visa application. Mr. Potts’s submission was that while there is a reference to this protection visa application in the Tribunal's decision record the information that the Tribunal relied upon in reaching its decision was the information provided by the applicant herself at the hearing that the Tribunal conducted with her and as such this information fell within the exception set out in s.424A(3)(b) of the Act.
Mr. Potts submitted that on a careful reading of what is set out as the Tribunal’s record of the applicant’s claims as stated at the hearing (CB 151 to CB 154.4) and with reference to its “Findings and Reasons” what was said at the hearing formed the basis for the Tribunal's decision. In support of his submission Mr. Potts made reference to SZHYP v Minister for Immigration & Anor [2006] FMCA 1267 (“SZHYP”), a Judgement of Smith FM, at [38] to [40]. Mr. Potts’s submission was that in similar circumstances to those before the Court now, Smith FM accepted the respondent’s submissions that the information in question in the circumstances before His Honour fell within the exception in s.424A(3)(b). Importantly, Mr. Potts emphasised what His Honour said at [40]:
“In any event, the evidence before me does not satisfy me to the contrary, and I accept the submission of the Minister that the onus of proof in this respect lies on the applicant (he cited SZEEU v Minister for Immigration and Multicultural & Indigenous Affairs (2006) 150 FCR 214 at [82]-[83] in the judgement of Moore J, Weinberg J in agreement with this reasoning at [173], and with whom Allsop J agreed at [264].”
The submission therefore was that it has been accepted in this Court (and should be followed as a matter of comity) that SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 (“SZEEU”) states that the onus on this kind of issue sits with the applicant and that the applicant must show a breach of s.424A by proving positive the application of the exceptions in ss.424A(3)(a) and (b). In this regard Mr. Potts also referred to SZDXA per Moore J. in SZEEU at [81]-[82]. Mr. Potts submitted that the relevant circumstance with which His Honour was concerned in that part of the Judgement was (as in SZHYP) the knowledge that the Tribunal had about the way in which the appellant had completed the original application for a protection visa (this is relevant to the first dot point at CB 151 in the case before me). Mr. Potts emphasised that in these circumstances Moore J. said at [82]:
“It is possible that this is correct. However, the appellant bore the burden, before the Federal Magistrate, of establishing the factual foundation of his application for constitutional writs and he continues to do so in this appeal. It is not implausible that the appellant enclosed not only a copy of the three-page statement but also a copy of the original form applying for the protection visa. I am not affirmatively satisfied that all that was provided to the Tribunal was the three-page typed statement. Accordingly, a fact necessary to demonstrate breach of s 424A has not been established by the appellant.”
Further, that Weinberg J. agreed at [173] and Allsop J. at [264]. Mr. Potts asked that the Court draw from this, in the same way as drawn by Smith FM, that there is an onus on the applicant to exclude, to the extent that it is necessary, the potential application of the exceptions contained in s.424A(3)(a) and (b).
Mr. Potts also referred to the Full Court decision in NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 as authority for the proposition that it was not open to this Court to make findings about what was, or what was not, done at the hearing before the Tribunal in the absence of any evidence, for example, in the form of a transcript of the hearing.
Further, Mr. Potts submitted that on what was before the Court there did not appear to be any material, or information, deriving from the protection visa application that was not discussed at the hearing.
The Tribunal's account of what occurred at the hearing is set out at CB 151 and following. Mr. Potts’s submission was that the reference as to what was in the first protection visa application was in the context of what was discussed at the hearing and to the extent that what was discussed in the hearing made reference to information that was in the protection visa application then such information was put before the Tribunal by the applicant by way of the applicant’s adviser’s letter to the Tribunal of 4 April 2006 (CB 105) where the adviser stated:
“… She has experienced ongoing harassment and mistreatment at the hands of the Chinese authorities because they believe that she is a Falun Gong practitioner. Details of this are contained in her statement and she elaborated on these at the Refugee Review Tribunal hearing on 9 March 2006.”
On what is before the Court I accept Mr. Potts’s submission that the reference to “statement” in the extract quoted above could only relate to the statement provided with the protection visa application (reproduced at CB 27 to CB 30). Mr. Potts’s submission was that the reference to that statement was an invitation by the applicant's adviser to look at the information, that is, the information contained in the statement that the applicant made attached to the protection visa application. As such this was information given to the Tribunal, albeit given through incorporation by this reference, and to that extent brings such information within the scope of s.424A(3)(b) of the Act to thereby exclude the operation of s.424A(1).
I accept Mr. Potts’s submissions, but further note that specifically in relation to each of the relevant references at CB 151 (where the Tribunal was setting out the claims as stated at the hearing):
1)In relation to the first protection visa application the Tribunal's reasons for its decision reveal that it did not rely on any information contained in this application. Further, while the applicant made reference to that first protection visa application in the statement in support of “the second” protection visa application (as set out at CB 27) this information was clearly repeated by the applicant at the hearing before the Tribunal, that is, as to the reason that she made her protection visa application on the first occasion such as to enable her to work in Australia. I accept based on the adviser’s subsequent statement, confirming what the applicant herself said at the hearing, that such information was given to the Tribunal for the purposes of the review such as to engage s.424A(3)(b). But even further, to the extent that the reason as to why the first application for a protection visa was made in 2001 and the use that the Tribunal made of this information in its decision record, this clearly relates to the inconsistency between two things that the applicant said at the hearing that it conducted with the applicant (see CB 158.4):
“The Tribunal considers it to be incongruent that the Applicant claimed at the hearing that on the one hand that she came to Australia for the purpose of working and her first protection visa application was the vehicle to enable her to do this and that she was disconnected from her first protection visa application as it was completed by a third person without her knowing the details entered in the application or the purpose of the protection visa. Yet on the other hand she also claimed at the hearing that when she returned to China in 2005 and under questioning from the authorities she informed them that she had lodged an application for a protection visa in Australia on the grounds of involvement in Falun Gong.” (Emphasis added)
In all the circumstances therefore, it was what was said at the hearing, the information that the applicant herself gave to the Tribunal, that formed a part of the reasons for its decision such as to bring such information within the operation of s.424A(3)(b).
2)The second dot point provides further detail in support of the first dot point at CB 151 and confirms that the applicant did not come to Australia for any reason in 2001 other than to earn money. Again, all of this was put to the Tribunal by the applicant at the hearing in circumstances which engages s.424A(3)(b).
The Tribunal's findings therefore at CB 158.1 clearly derive from information that the applicant herself gave to the Tribunal at the hearing.
3)The third dot point at CB 151 makes reference to the applicant travelling to Australia on “a false passport” on her visit in 2001 and the reference by the applicant that she did not travel to the Australia on her Chinese passport because she was would not be able to get a visa, but was able to do so with a Korean passport. The reference to the false passport therefore, in context, is clearly to her use of a Korean passport to travel to Australia on that occasion. In its decision record under its “Findings and Reasons” at CB 159.3, the Tribunal says:
“The Tribunal accepts that the Applicant has travelled on false Korean passports and was deported back to China in 2005. The Tribunal notes that the Applicant has a valid Chinese passport and explained the need to acquire a false Korean passport as a means to assist her entry into Australia rather than as a means to depart China illegally, she also explained the lodgement of her first protection visa in terms of a means to enable her to be able to work in Australia.”
The explanation as to the lodgement of her first protection visa has already been dealt with above. The reference to the valid Chinese passport derives from the passport which the applicant gave to the Tribunal at the hearing it conducted with her. See the Tribunal's decision record at CB 151.1:
“The Applicant presented a photocopy of her Chinese passport.”
The issue therefore remains as to where the information relating to “false Korean passports” came from and when and how it was given to the Tribunal. While the issue of the use of passports to travel to Australia was, as Mr. Potts submits, clearly agitated at the hearing (see CB 151.8 to CB 152.3) it is not clear however as to the circumstances in which the information came to be presented to the Tribunal, that is, was it by way of “cross-examination” in a way that might not engage s.424A(3)(b), or was it volunteered by the applicant in a way that could bring it within the operation of that section? Specifically in relation to this issue, Mr. Potts submitted that while there is some uncertainty because of the absence of a transcript, and to the extent that there is such uncertainty, the applicant has not been able to “make good” on an “onus of proof” that she bears to demonstrate affirmatively that the exception does not apply to that information. It is in this regard Mr. Potts submitted with reference to the authority cited from SZEEU above, as to where the onus of proof lies (with reference to SZHYP at [37] to [40]), that Smith FM accepted the same submission in similar circumstances and that, as a matter of comity in addition to following what is set out relevantly at SZEEU, I should reach the same conclusion on what is before me.
I accept Mr. Potts’s submission that the onus of proof on this issue does lie with the applicant, that is, as to what actually occurred at the hearing with the Tribunal. On the only record before the Court now, as contained in the Tribunal's own account, it is clear that the applicant presented a photocopy of her Chinese passport, which was presented by her adviser (CB 65) to the Tribunal. A photocopy of her Chinese passport is also reproduced at CB 68 to CB 104, which reveals that the applicant did not travel to Australia on either occasion using her Chinese passport. This is further supported by the information provided by the adviser to the Tribunal (CB 112.8):
“At the very least she will be charged and interrogated by the Chinese authorise [sic: authorities] because she left the country illegally using a fraudulent passport.”
The Tribunal's own decision record further supports the view that it relied on information provided by the applicant at the hearing, and the adviser by way of submission. At CB 159.4 the Tribunal makes the statement that the applicant travelled on false Korean passports, but derives this in context clearly from its subsequent noting that the applicant has a valid Chinese passport and the subsequent explanation of the need to acquire “a false Korean passport” as a means to assist her to enter Australia. In all the circumstances therefore, and in accepting Mr. Potts’s relevant submission, it is reasonable to draw an inference that the Tribunal’s acceptance that the applicant travelled on false Korean passports derives from the information provided at the hearing and subsequently confirmed in writing by the applicant's adviser. Further in support of this conclusion is that while there is a reference to South Korean passport in the protection visa application (CB 15) no details whatsoever are provided about this passport such as to enable the Tribunal to have described it as “a false Korean passport”. Nor is any reference made to any Korean passport let alone “a false Korean passport” in the applicant's statement attached to her protection visa application. It is only with the applicant's adviser's presentation of the applicant's Chinese passport to the Tribunal (on 28 March 2006 - CB 65) that the issue of travel to Australia begins to emerge. This was given the fact that the passport showed no record of any visa or entry to Australia and provides further strength to the argument that the issue of the false Korean passport emerged at the hearing. I accept Mr. Potts’s submission that there was no obligation on the Tribunal pursuant to s.424A(1) and that no error can be shown on the Tribunal's part in this regard.
In all therefore, as no jurisdictional error can be discerned on the part of the Tribunal, on what is before the Court, this application is dismissed.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Nicholls FM.

Associate:

Date: 26 September 2006