SZIXY & Anor v Minister for Immigration - [2007] FMCA 784

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIXY & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 784

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.91X, 422B, 424A, 476
Federal Magistrates Court Rules 2001 (Cth), rr.44.11, 44.12

ApplicantA169 of 2003 v Minister for Immigration [2005] FCAFC 8
Attorney General (NSW) v Quin (1990) 170 CLR 1
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
El-Sayed v Minister for Immigration (1991) 22 ALD 767
FHoffman-La Roche & Co AG v Secretary for Trade and Industry [1975] AC 295
Lay Lat v Minister for Immigration [2006] FCAFC 61
Minister for Immigration v Eshetu [1999] HCA 21
Minister for Immigration v Wu Shan Liang (1996) HCA 6
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration v Yusuf (2001) 206 CLR 323
NAMW v Minister for Immigration (2004) 140 FCR 572
NBKT v Minister for Immigration [2006] FCAFC 195
Paul v Minister for Immigration (2001) 113 FCR 396
QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92
Re Minister for Immigration; Ex parte Durairajasingham (2002) 168 ALR 407
Re Minister for Immigration; Ex parte Miah (2001) 206 CLR 57
SZBEL v Minister for Immigration (2006) 231 ALR 592
SZCIJ v Minister for Immigration [2006] FCAFC 62
Tin v Minister for Immigration [2000] FCA 1109
VAF v Minister for Immigration (2004) 206 ALR 471
WAEE v Minister for Immigration (2003) 75 ALD 630
Waterford v Commonwealth (1987) 163 CLR 54

First Applicant:

SZIXY

Second Applicant;

SZIXZ

First Respondent:	MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent:	REFUGEE REVIEW TRIBUNAL

File number:

SYG1661 of 2006

Judgment of:

Lloyd-Jones FM

Hearing date:

26 April 2007

Delivered at:

Sydney

Delivered on:

24 May 2007

REPRESENTATION

Advocate for the Applicants:

The applicants appeared in person with the assistance of a Mandarin interpreter

Counsel for the Respondents:

Mr J Mitchell

Solicitors for the Respondents:

Blake Dawson Waldron

ORDERS

The name of the first respondent be amended to read ‘Minister for Immigration and Citizenship’.
The application filed on 9 June 2006 is dismissed.
The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1661 of 2006

SZIXY

First Applicant

SZIXZ

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.476 of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 9 June 2006 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 24 April 2006 and handed down on 4 May 2006, affirming a decision of the delegate of the first respondent made on 6 January 2006, refusing to grant the applicants a Protection (Class XA) visa. The applicants seek relief against the decision of the Tribunal.
The applicants in these proceedings are not to be identified pursuant to s.91X of the Act and have been given the pseudonyms “SZIXY” (applicant husband) and “SZIXZ” (applicant wife).
The applicants seek an order that the respondents show cause why a remedy should not be granted in exercise of the Court's jurisdiction, under s.476 of the Act. Pursuant to r.44.11(c) of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”), I dispensed with the hearing under r.44.12 and set the matter down for final hearing.
A Court Book ("CB") prepared by the first respondent's solicitors was filed on 14 July 2006. I have marked this as Exhibit “A" and the contents were read into evidence.

Background

The Tribunal decision of Mr A Mullin, reference N06/53115, contains the following background information:
The Applicants are husband and wife. They claim to be citizens of The People’s Republic of China. The second-named Applicant arrived in Australia on 7 May 2005 and her husband arrived on 14 September 2005. On 28 October 2005 they lodged an application for protection (class XA) visas with the Department of Immigration and Multicultural Affairs under the Migration Act 1958 (the Act). On 6 January 2006 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused to grant protection (class XA) visas and on 6 February 2006 the Applicants applied for review of that decision.(CB 88)

The Applicants’ claims

A summary of the applicants’ claims are set out in the written submissions prepared on behalf of the first respondent by Mr Mitchell, and I adopt paragraphs 3.1 and 3.2 of those submissions for the purposes of this judgment:
3.1Only the Applicant husband made Convention claims.
3.2 The Applicant husband claimed that:
(a)   In March 2005 he had been questioned by PSB officers about a worker under the Applicant’s supervision (“Mr He”) who was alleged to be a leader and founder of an illegal political organisation known as the “Workers’ Club”.
(b) Mr He was later arrested and the Applicant husband visited Mr He in the Fuqing detention centre and “tried his best to save him”.
(c)   The Applicant husband refused to provide a report to the PSB that Mr He held anti-government opinions and engaged in anti-government behaviour despite being subject to repeated questioning and interrogation by the PSB and having his house searched three times.
(d) In June 2005 the Applicant husband was detained and beaten until he lost consciousness. He was hospitalised for two weeks. The PSB thereafter listed him as a “target for investigation” and suspected him of involvement in the Workers Club.
(e) Before he left China in September 2005 he wrote an open letter to the Chinese government requesting that they respect and comply with the Constitution and protect freedom of speech and freedom of association.

Tribunal’s findings and reasons

I also rely on the summary of the Tribunal’s findings prepared by

Mr Mitchell in written submissions and I adopt paragraphs 3.3 and 3.4 of those submissions:
3.3The Tribunal was not satisfied of any of the Applicant’s claims. Specifically:
(a) The Tribunal was not satisfied that the Applicant husband had supported another person in his company who founded a workers club or that be was involved in such a club, based on the following inconsistencies in the Applicant husband’s evidence:
(i) He claimed in his application for protection visa that Mr He was a subordinate who worked in his workshop yet at the Tribunal hearing he claimed Mr He was not his subordinate and that he did not work in the workshop. The Applicant husband’s response to the 424A Letter represented a further variation to his claims.
(ii) He claimed in his application for protection visa that Mr He founded a workers club for ordinary workers who had to struggle for survival yet at the Tribunal hearing be claimed that Mr He had management level responsibilities. The Applicant husband’s response to the 424A Letter did not resolve this inconsistency.
(iii) He claimed in his application for protection visa that he did not join the workers club or participate in its discussions yet at the Tribunal hearing he claimed to have joined and participated in discussions after the arrest of the relevant worker and other members of the club. He then appeared to retract this claim later in the hearing and his response to the 424A Letter did not resolve the inconsistency.
(b) The Tribunal was not satisfied that the Applicant husband had suffered harm at the hands of the PSB as claimed based on the following reasons:
(i) It was implausible that the Applicant husband, who had never been involved in political activity or opposition to the government would have written such a letter in light of the obvious risks that it posed for the Applicant’s associates and family. At the Tribunal hearing he claimed that there was nothing in the letter that would have caused problems yet he was careful to arrange for its distribution on the day he left China.
(ii) The Applicant husband claimed at the Tribunal hearing that the PSB had visited his house after his departure yet he had not mentioned this in his application for protection visa. The Tribunal did not accept his explanations for this inconsistency and concluded that they were made to strengthen his claims and to address the delegate’s reasons that focused, in part, on the lack of evidence that the PSB had questioned his family since his departure.

Application for review of the Tribunal’s decision

On 9 June 2006, the applicants filed an application for review in this Court under s.39B of the Judiciary Act. Pursuant to leave granted at the first Court date of 5 July 2006, the applicants were to file and serve an amended application giving complete particulars of each ground of review relied upon by 13 September 2006. An amended application filed on 11 September 2006 contains the following grounds:
1. I do not think that Mr Andrew Mullin, the Presiding Member of The Tribunal (“the Presiding Member”), has considered my claims, properly and fairly.
Particulars
1.1. Firstly, the Presiding Member failed to consider the important evidence that I, while prepared my application for protection as well as relevant documents, had to face many difficulties; and particularly, I was completely in an alien environment and could not use my own language. Furthermore, I might hesitate to expose too much about my families who were still in China and who was facing dangers to a stranger in an alien country; and
1.2 The Presiding Member should not ignore the fact that the above-mentioned evidence have been supported by independent materials, such as UN Handbook which, I believed that must be before the Tribunal.
1.3 It is definitely unfair that the Presiding Member has simply regarded my evidences as “to strengthen” my “claim to be a refugee”, without any substantial evidences or without any good reasons to the contrary.
1.4 Secondly, the Presiding Member has, apparently, ignored my important claims that., BEFORE I left China, the PSB could not find any substantial evidences against me, though the investigation against me was never stopped. In other words, I was SUSPECTED, but not on the WANTED list. Therefore, I was able to pretend to “honestly” accept the investigation on one hand, and on the other hand, I secretly arranged my trip to the overseas.
1.5 The key issue is that if I were the person who was WANTED by the PRC authorities, it would definitely be impossible for me to find anyone who was willing to help me, no matter how corruptive the government would be. But, I was not the person on the WANTED list BEFORE my departure; and thus I was able to take advantage of the corruptive system in China to leave the country with the helps of my friends. However, everything has completely changed since (“AFTER”) I left the country. The officers from the PSB have visited my house eve few days in order to arrest me; and Mr Yi Bao Gao has been arrested; and I have in fact been put on the WANTED list. Therefore, I must be subjected to persecution on my return.
1.6 Thirdly, the Presiding Member has made an obvious wrong Finding in relation to my working relationship with Mr.Xi Qiang He.
1.7 My workshop was actually an independent enterprise which should be described as an independent “company”; and I was the boss and the top-leader actually. However, it would be very difficult to establish and develop its business if the workshop (“company”) did not have any strong technical and economic background like those large enterprises. Therefore, we had to make the workshop (“company”) “belong to” (guakao in Chinese) a larger enterprise, such as “Taige Painting & Decoration Company”. In practice, we just needed to pay some “administrative fee” to “Taige Painting & Decoration Company”, and we could use the name of the “Workshop of Taige Painting & Decoration Company”. But, again, the workshop was. In fact, an independent enterprise which should be treated as an independent “company”.
1.8 I was the boss, the top-leader and final decision maker of the workshop which was, in fact, an independent enterprise which should be treated as an independent “company”. Mr Xi Qiang He was very skilful and experienced and he was mainly in charge of production management and business development of the workshop (“company”). However, Mr He was definitely under the leadership of mine, because I, again, was the top-leader and final decision maker. Also, although I was the top-leader of the workshop and Mr He was involved in management, we are “ordinary workers” without any particular background (that’s why we had to make our workshop “belong to” a large enterprise) As “ordinary workers”, we had to struggle for our survival at the bottom of the society; and we had to experience many and many difficulties and sufferings under the government which is one of the most corruptive, the most autocratic, and the most bureaucratic governments in the world. We do indeed need to gather together to express our dissatisfaction with such a dark government.
1.9 An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal’s power: Craig v South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs. In my case, the Presiding Member has identified a wrong issue, ignored relevant material, relied on irrelevant material, and made an erroneous finding. Therefore, it must be a case that the Tribunal exceeds its power and thus commits a jurisdictional error.
2. The Presiding Member failed to comply with his obligations under s.424A(1) of the Act.
2.1 Guided by the Act, I have found that:
Section 424A. Applicant must be given certain information
424A. (1) Subject to subsection (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would he the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c) invite the applicant to comment on it.
2.2 According to the Presiding Member’s decision, the Presiding Member has obviously failed to consider my further claims in my letter dated on 24 March 2006 in response to the Tribunal’s letter of 10 March 2006, fairly and properly.
2.3 The key issue, however, is that at the end of my letter dated on 24 March 2006, I said that:
“…I have to say that most of misunderstandings are owing to different government system or different social environment or different cultural background or different language between China and Australia. I am really not sure whether or not the Tribunal could genuinely understand my claims correctly Should you have any questions, please do not hesitate to contact me as soon as possible.
2.4I believe that the Presiding Member, before he made his final decision, should:
- make me well understand particulars of those pieces of information or negative issues or negative concerns which are in relation to my further claims in my letter of 24 March 2006; if the Presiding Member used them as reasons, or part of reasons in making his decision; and
- ensure that I understand why those pieces of information or negative issues or negative concerns are relevant to the review; and
- invite me to comment on them.
2.5 Unfortunately, in my case, the Presiding Member did nothing, but simply made an unfair decision without complying his obligation under the s.424A(1) of the Act.
3. The Presiding Member Failed to comply with his obligation under s.425 of the Act.
3.1 Guided by the Act, I have found that:-
Section 425. Tribunal must invite applicant to appear
425. (1) The Tribunal in must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicants favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 424C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
3.2 It is the fact that I have provided further claims in my letter dated on 24 March 2006 in response to the Tribunal’s letter of 10 March 2006. It is also the fact that the Presiding Member has not decided the review in my favour on the basis of the materials before it, including my further claims in the letter mentioned above. In such a situation, subjected to s.425 of the Act, the Presiding must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to ti issues arising in relation to the decision under review.
3.3 The Tribunal arranged a hearing for me on 8 March 2006, which was for the reasons that the Presiding Member could not made a decision in my favour according to the materials before it on 8 March 2006. However, on and after 24 March 2006, I provided further claims to the Tribunal. In other words, the materials before the Tribunal on and after 24 March 2006 were definitely different from the ones on and before 8 March 2006. Therefore, in this situation, the Presiding Member must comply with his obligation under s.425 of the Act. Unfortunately, the Presiding Member failed to do so.
In summary, I do indeed have a well-founded fear of being persecuted on my return to China owing to my political opinions and activities not tolerated by the PRC authorities, and therefore I should he entitled to get a Protection Visa. Unfortunately, my application has not been assessed by the Tribunal, fairly and properly.(copied without alteration or correction)

Submissions and reasons

The applicants appeared as self-represented litigants with the assistance of a Mandarin interpreter. The applicant husband stated that they had not filed any written submissions but he wished to make oral submissions to the Court. However, his oral submissions substantially repeated the amended application. The applicant husband began by stating that the Tribunal did not considered their application in a fair or correct way, which he supported by instances of unfairness, misunderstanding and misconstruing of his claim.
In response to the issues raised by the applicant husband in his oral submissions, Mr Mitchell contends that the Court cannot review the fairness of factual findings and relies on the authority of the decision Attorney General (NSW) v Quin (1990) 170 CLR 1 for that proposition. Mr Mitchell further submits that the Tribunal cannot review the correctness of a factual finding: Waterford v Commonwealth (1987) 163 CLR 54 per Brennan J at [77] – [78]. Mr Mitchell acknowledged that the Court can review errors of law where inferences drawn are not available or factual findings are unreasonable. A factual finding may be unreasonable when it is contrary to all of the evidence submitted. It is submitted that in this case, the Tribunal’s findings are patently not unreasonable and open on the evidence that the applicants themselves gave before the Tribunal.

Mr Mitchell submits that the Tribunal did not believe the applicants’ claims because of adverse credibility findings. These findings were based, in a large part, on internal inconsistencies and that the claims were implausible in light of country information. Mr Mitchell indicated that he would deal with each of the particulars which assert misunderstanding of the claims.
Mr Mitchell filed written submissions addressing each of the claims raised by the applicants in their amended application. The issues raised by the applicant husband in his oral submissions referred to above appear to be addressing the same issues that are pleaded in the first ground of the amended application, in that the Tribunal failed to consider the applicants’ claims. Mr Mitchell submits that the Tribunal considered the applicants’ claims, found them implausible and then gave rational and logical reasons for its credibility finding: Kopalapillai v Minister for Immigration (1998) 86 FCR 547 at 552, 558-559. Accordingly, the credibility findings were findings of fact, the fairness of which cannot be reviewed by this Court: Re Minister for Immigration; Ex parte Durairajasingham (2002) 168 ALR 407 at [67]; Attorney General (NSW) v Quin at [35] – [36].
Mr Mitchell also submits that as the credibility findings subsumed all of the applicants’ claims, the Tribunal was not obliged to give reasons why it accepted or rejected individual pieces of evidence or contention made by the applicants: Minister for Immigration v Yusuf (2001) 206 CLR 323 at [67] – [68], [73] – [74] and [91]; Applicant A169 of 2003 v Minister for Immigration [2005] FCAFC 8 at [24]; WAEE v Minister for Immigration (2003) 75 ALD 630 at [47]; Paul v Minister for Immigration (2001) 113 FCR 396 at [79].
Mr Mitchell’s written submissions also contend that the allegation that the Tribunal made a wrong finding in respect of Mr He in the factory is not supported by evidence: CB 94. That summary demonstrates that the Tribunal’s findings with respect to that worker’s position within the factory, was open on the evidence before it. That being the case, there can be no error of law, let alone jurisdictional error, even if the finding of fact was wrong: Eshetu at [138]; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-356.
I am satisfied that the claims raised by the applicants in the first ground of the amended application cannot be sustained. I believe that the applicant husband’s oral submissions are an attempt to supplement the amended application; however he has not introduced any new grounds not contained within the formal pleadings.
The next issue raised by the applicant husband in oral submissions was that the applicants were able to leave the People’s Republic of China (“the PRC”) on their own passports and the Tribunal not understanding that they could still be of interest to the authorities despite this fact. The applicants assert that the system in the PRC is corrupt.

Mr Mitchell submits that the Tribunal dealt with this claim initially in the s.424A letter sent to the applicants’ agent on 10 March 2006.(CB 70-75) This letter contained the following passages:
2. Information available to the Tribunal indicates that the Chinese authorities have the ability to monitor and control the exit of citizens through airports. The information is as follows:
“CHECKS WITH THE PUBLIC SECURITY BUREAU IN THE APPLICANT’S PLACE OF REGISTERED RESIDENCE WOULD REVEAL ANY ADVERSE RECORDS HELD BY PUBLIC SECURITY ORGANS ON THE APPLICANT. AN APPLICANT ‘WHOSE EXIT, IN THE JDUGMENT OF THE RELEVANT DEPARTMENT OF THE STATE COUNCIL, WOULD BE HARMFUL TO STATE SECURITY OR CAUSE A MAJOR LOSS TO NATIONAL INTERESTS WOULD LIKELY BE DENIED A PASSPORT’. (Country Information Report No. 12/03 (DFAT) DATED 15/01/03 and entitled “PASSPORT AND EXIT PROCEDURES”
Other country information states that “GENERALLY SPEAKING, INDIVIDUALS WHO HAVE OBTAINED CHINESE PASSPORTS AND EXIT PERMITS TO LEAVE CHINA HAVE BEEN THOROUGHLY VETTED BY THE SECURITY AUTHORITIES…AND WE ASSUME THEY WOULD NOT BE ON ANY ‘WANTED LIST’ IF THEY WERE TO RETURN TO CHINA.
According to your claims in your application for protection and at the Tribunal hearing you were able to leave China using a genuine passport issued in your own name on 13 September 2005 and you did not experience any problems in passing through the airport. However, you also claim that at that time you were under active investigation by the PSB who had interrogated you on more than ten occasions and searched your house on three occasions because you were suspected of belonging to an anti-government organization.(CB 72)
The Tribunal also recorded the contents of that letter in its decision.(CB 97) It is submitted that the Tribunal clearly accepted and relied on country information which indicated that the PRC authorities had the ability to prevent persons leaving the country if they were of security interest. The finding of the Tribunal is set out in the following paragraph:
Third, the Tribunal notes and accepts the country information (put to the Applicant by the Tribunal in writing) which indicates that the Chinese authorities have the ability to prevent persons leaving the country if they are of adverse security interest. In his response to the Tribunal’s letter of 10 March 2006 the Applicant claims that he pretended to cooperate with the PSB investigation while simultaneously making secret plans to leave China, that they could not find any evidence against him and that, although they suspected him, he was not on a wanted list. However, given that the Applicant was able to leave China on 13 September 2005 through an airport, using a genuine passport issued in his own name, and that he did not experience any difficulty in doing so, the Tribunal is not satisfied that he can have been of any significant interest to the PSB at that time or that he had been the subject of an active continuing investigation by them because they suspected him of so serious a matter as belonging to an anti-government organization.(CB 104)
The finding was based on information that was put to the applicants in the s.424A letter. The Tribunal gave more weight to the independent country information than it did to the applicants’ explanation as to how they were able to leave. The matter of weight is a factual issue: Minister for Immigration v Wu Shan Liang (1996) HCA 6; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24.
Mr Mitchell submits that the second issue raised by the first applicant in his oral submissions is that the Tribunal made an error about the relationship between the applicants and Mr He. The Tribunal appraised the applicants’ claims in this regard and found them to be inconsistent. On one hand, the applicants had claimed in their application for protection visa that Mr He was a subordinate, yet on the other hand, in their testimony before the Tribunal, they claim that Mr He was part of management and responsible for business development: CB 102. Mr Mitchell submits that that finding of inconsistency was open on the evidence. It is submitted that although the applicant husband did in his submissions before the Court, stated that there had been some error of fact in respect to the appraisal of what appears to be inconsistent accounts.
Mr Mitchell submits however that that appraisal was open on the evidence, having considered the applicants’ response to the s.424A letter, where this inconsistency was particularised to the applicants. The Tribunal made the following finding:
The Tribunal has doubts as to the plausibility of this explanation, which represents a further variation on the Applicant’s account of the business in which he worked and his professional relationship with Mr He and is not satisfied that it resolves the inconsistency evident in the Applicant’s claims.(CB 102.5)
Mr Mitchell submits that that finding is open, ambient that alternative inferences may have been available, including the inference that the applicant husband asserted in his oral submissions, in that the nature of his business, being a small enterprise, did not have substantial differences between the individual on the workshop floor and the management. Mr Mitchell submits however, the fact that there are alternative inferences available from information provided by the applicants, does not reveal jurisdictional error in a sense that the Tribunal did not make the decision under the Act: Minister for Immigration v Eshetu [1999] HCA 21 per Gummow J.
In respect of ground two of the amended application, Mr Mitchell in his written submissions submits that the s.424A letter provided the applicants with the information relevant to the Tribunal’s decision that was taken from his application for a protection visa and particularised the relevance of that information. Accordingly, there is no breach of s.424A(1). Section 424A(1) of the Act obligations do not apply to independent country information or information given by the applicants as part of his application for review by reason of s.424A(3)(a): NAMW v Minister for Immigration (2004) 140 FCR 572; QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92.
I am satisfied that the issue raised in the second ground of the amended application and the oral submissions made by the applicants in support of this ground cannot sustain that claim. I am satisfied that the Tribunal has complied with its obligations under s.424A(1) of the Act and the attempts by the applicants to claim that the Tribunal has failed to deal with the country information in the correct manner is misconceived and cannot be sustained.
Mr Mitchell submits that in respect of the third issue, being the applicants’ allegation as to a breach of s.424A(1) of the Act, the Tribunal clearly particularised the information and reasons for its relevance in the s.424A letter dated 10 March 2006. In particular, it raises the inconsistencies between the applicants’ statutory declaration attached to the protection visa application. In the applicant husband’s oral submissions before the Court, he made the statement that it was quite unusual for such a written statement to be as comprehensive as oral testimony of the applicants given at the hearing. Mr Mitchell acknowledges that in some circumstances that may be correct, however, the Tribunal does draw significance from the fact that it was a four page statutory declaration and so doubts that explanation that it does not contain all of his claims is unusual. In particular, the claim that the PSB had pursued the applicants after they had left the PRC. Mr Mitchell submits that the appraisal of the statutory declaration and its comprehensiveness was a matter open to the Tribunal to draw a conclusion and no error results, despite the fact that the applicants assert that it did not claim all of their claims. The Tribunal’s appraisal of the statutory declaration is referred to under the sub-heading ‘Claims at Hearing’ where it made the following observation:
The Tribunal put to the Applicant that the statement accompanying his protection application is quite detailed and consists of four typed pages. It was hard to understand why such an important piece of information would have been left out of such a detailed statement.(CB 93.4)
Mr Mitchell refers to the s.424A letter, which draws this fact of the failure to mention this element of his claim previously to the applicants’ attention for the purpose of inviting comment on that discrepancy.(CB 71) The applicant husband in his oral submissions, submits that in respect to the s.424A letter that the concept is not just to require the Tribunal to give the applicants an opportunity to explain an issue, but is also an opportunity for the Tribunal to consider claims in a more comprehensive way. Mr Mitchell submits that that is exactly what the Tribunal did. It sent the s.424A letter to the applicants and throughout the Tribunal’s reasons are references to the applicants’ response to the s.424A letter and the Tribunal member’s appraisal of those responses as not satisfying the Tribunal as to the various inconsistencies and the implausible nature of the applicants’ claims.
In response to the third ground of the applicant’s amended application, Mr Mitchell in his written submissions, submits that the Tribunal member considered the applicant’s responses to the s.424A letter: CB 99-105. The Tribunal findings in that respect were open to the Tribunal and it was not required to put its appraisal of the responses to the applicants for comment. Those appraisals were not information for the purposes of s.424A(1): VAF v Minister for Immigration (2004) 206 ALR 471 at 24; Tin v Minister for Immigration [2000] FCA 1109 at [54]; NBKT v Minister for Immigration [2006] FCAFC 195 at [30]. The Tribunal had no further obligations in respect to these appraisals as it was only obliged to comply with the “procedural code” constituted by Division 4 of Part 7 and it had done so by inviting the applicants to the hearing on 8 March 2006 and sending the applicants the s.424A letter on 10 March 2006: s.422B; Lay Lat v Minister for Immigration [2006] FCAFC 61; SZCIJ v Minister for Immigration [2006] FCAFC 62; see also SZBEL v Minister for Immigration (2006) 231 ALR 592 at [29]. Mr Mitchell submits that even if the common law of procedural fairness did apply, the Tribunal was not obliged to provide the applicants with a “running commentary” on all of its concerns; Re Minister for Immigration; Ex parte Miah; FHoffman-La Roche & Co AG v Secretary for Trade and Industry [1975] AC 295 at 369; El-Sayed v Minister for Immigration (1991) 22 ALD 767 at 773-4.
The issues raised by the applicants in ground three of their amended application and the oral submissions in support of that ground cannot be sustained.
The applicant husband made the further observation in his oral submissions, in that the Tribunal complied with its obligation under s.424A(1) of the Act in form only and not in substance. Further, that the Tribunal did not consider the submissions or claims. Mr Mitchell submits that when one reviews the findings and reasons of the Tribunal, that claim is blatantly not the case. The Tribunal considered the responses and did not accept them in a large part. Merely because the applicant husband’s explanations were not accepted, does not mean that the explanations were not considered.
The applicant husband in his oral submissions raised the further claim alleging that the Tribunal had ignored his request for a further hearing to provide them with the opportunity to further explain the various matters dealt with in the s.424A letter and the applicants’ response.

Mr Mitchell submits that the Tribunal having complied with its obligation to invite the applicants to a hearing, to have held that hearing, and to have raised the issues in the s.424A letter had discharged its obligations to give the applicants a reasonable opportunity to appear and present their case. The Tribunal was not obliged to enter into an exchange of correspondence in respect to its concerns and its appraisals of the applicants’ responses to the s.424A letter. Mr Mitchell relied upon the authority in Re Minister for Immigration; Ex parte Miah (2001) 206 CLR 57 per Gleeson CJ at [31] where His Honour states:
…fairness does not require a judicial officer to make a running commentary upon an applicant's prospects of success, so that there is a forewarning of all possible reasons for failure. Most administrative decisions are made in circumstances where a much less formal and extensive form of communication than that which occurs in a court is contemplated. In many cases, it is not contemplated that the applicant will either see, or hear anything from, the decision-maker before the decision is made.
The applicant husband’s claims made in his oral submissions that the issue of the s.424A letter was carried out by the Tribunal purely to satisfy its formal obligations and avoiding the spirit and intention of the Act is misconceived. A fair reading of the Tribunal decision clearly indicates that the Tribunal has complied with all of its obligations required under the Act and that there is no evidence to support that claim. Nor is the suggestion that the Tribunal had breached the Act by declining to schedule a further hearing to provide the applicants with an opportunity to enter into a debate with the Tribunal as to its reasoning and the applicants’ prospects of success. The applicants may feel some frustration because their claims and arguments are not accepted, however, the Tribunal has clearly fulfilled its obligation to the applicants pursuant to the provisions of the Act.

Conclusion

The applicant husband appeared at the hearing as a self-represented litigant with the assistance of a Mandarin interpreter. I acknowledge the difficulties faced by the applicants in attempting to prosecute this matter and not being able to speak the language or understand the legal system in which they are operating. The assistance that they had received from third parties appears to have made the applicants’ task even more difficult because of numerous misunderstandings as to the operation of the law and the issues that the applicant was attempting to promote. Counsel for the respondents assisted the Court with written submissions in response to the issues raised in the amended application and further assisted the Court in responding to the various issues raised by the applicant husband in his oral submissions given in support of his amended application. This situation placed an application on this Court to independently consider whether any argument based on the material could have been made out. After a review of the decision and the contents of the Court Book, I am satisfied that none of the grounds identified can be sustained and neither is it apparent that any other grounds of review exist that suggest that the Tribunal made a jurisdictional error in its decision making process. I am satisfied that none of the grounds in the amended application can be sustained, or that any other grounds of review exist. Consequently, the application should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate:

Date: 23 May 2007