SZJVA v Minister for Immigration - [2008] FMCA 824

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJVA v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 824

MIGRATION – Application to review decision of Refugee Review Tribunal – whether failure to comply with s.424A or s.425 of the Migration Act.

Migration Act 1958 (Cth), ss.424A, 425
Migration Amendment (Review Provisions) Act 2007, s.33

Applicant A169 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 8
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
MZXBQ v Minister for Immigration and Citizenship [2008] FCA 319
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405
Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982
SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
SZBEL v Minister for Immigration and Multicultural Affairs and Indigenous Affairs (2006) 228 CLR 152
SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190
SZEEU and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214
SZEPZ v Minister for Immigration and Multicultural Affairs and Another (2006) 159 FCR 291
SZITD v Minister for Immigration and Citizenship [2007] FCA 1343
SZJBE v Minister for Immigration and Citizenship [2007] FCA 190
VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102
WABC of 2002 v Minister for Immigration and Indigenous Multicultural Affairs [2002] FCAFC 286

Applicant:

SZJVA

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3638 of 2006

Judgment of:

Barnes FM

Hearing date:

21 April 2008

Date for Last Submission:

4 June 2008

Delivered at:

Sydney

Delivered on:

25 June 2008

REPRESENTATION

Solicitors for the Applicant:

In person

Counsel for the Respondents:

Mr J Mitchell

Solicitors for the Respondents:

Clayton Utz

ORDERS

That the application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3638 of 2006

SZJVA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application for review of a decision of the Refugee Review Tribunal handed down on 2 November 2006 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of the People’s Republic of China, arrived in Australia in June 2004 and applied for a protection visa. The application was refused and he sought review by the Tribunal. The Tribunal, differently constituted, affirmed the delegate’s decision. The applicant sought judicial review of the Tribunal’s decision in this Court and, as attested to in an affidavit of Jaimee Dinihan sworn and filed on 6 May 2008, was allocated the pseudonym “SZFJO”. That application was dismissed. However the applicant appealed to the Federal Court and the matter was remitted by consent to the Tribunal for reconsideration. It is that reconsideration that is the subject of these proceedings. When the applicant sought judicial review of the second Tribunal decision in this Court he was allocated a new pseudonym of “SZJVA”.
In connection with his protection visa application the applicant claimed that he was persecuted because of his political opinion. He claimed he was fired and could not find another job because his mother was a Falun Gong practitioner and he was discriminated against in employment for that reason. A delegate of the first respondent refused the application for a protection visa on 29 July 2004. The delegate did not accept the applicant’s claims that he came to the adverse attention of the authorities because of his mother’s involvement in Falun Gong and that he himself was subsequently prevented from working for the reasons claimed, given the paucity of substantiating detail, the lack of supporting evidence and the applicant’s ability to depart the PRC legally.
The applicant provided a written submission to the Tribunal dated 28 August 2004 reiterating that his mother was a Falun Gong practitioner. He claimed that he feared being persecuted based on his political opinion that the human rights of Falun Gong practitioners should be respected and protected. He made claims about his mother’s involvement in Falun Gong, that she had been required to join a political study class, subject to interrogation by the Public Security Bureau (PSB) and not allowed to practise Falun Gong. He claimed that in 1999 when she was required to join the political study class he was questioned by the security department of his work unit in the local police station many times and required to expose his mother’s involvement in Falun Gong. He also claimed that in January 2000 at an interview with the PSB he was required to promise to monitor and report activities of his mother and other Falun Gong practitioners. He claimed that he had to accompany his mother to report to the police station, that he and his mother were mistreated and that in May 2000 he was fired by his work unit and became unemployed because of his mother’s involvement in Falun Gong.
He claimed that on one occasion in March 2003 when he accompanied his mother to the local police station he and his mother were questioned about her involvement in Falun Gong and physically mistreated and that while he was released that day his parents were seriously injured and hospitalised.
The applicant claimed that the sufferings of his parents led him to start protesting against the Chinese government and that from March 2003 to March 2004 he contacted Falun Gong practitioners, distributed propaganda material and protested against the government persecuting Falun Gong practitioners. He claimed that he decided to leave the country because a named friend had been subject to investigation by the authorities since May 2004 and that since his arrival in Australia that friend and three other friends who had participated in organising and distributing propaganda materials against the government had been arrested. He claimed that his activities had been discovered by the PSB and that he feared that he would be arrested and imprisoned on his return due to his political opinion.
The applicant attended a hearing conducted by the Tribunal as originally constituted. After the matter was remitted to the Tribunal for reconsideration the applicant was invited to and attended a further Tribunal hearing. He also provided the Tribunal with a statutory declaration dated 11 September 2006 from an Australian citizen who claimed to have known him for nearly two years and to have visited his home town in China in May 2006. The witness claimed that the applicant’s mother had advised her that the local police frequently came to the home making troubles, that his parents had been forced to join political studies and that the applicant’s wife had left home because of social pressure and had sought a divorce. The person making the declaration claimed to have been questioned and threatened by some police the night after she saw the applicant’s mother and claimed that the police told her that the applicant had been targeted by the authorities owing to his previous activities and active support of Falun Gong practitioners, including his mother.
The Tribunal wrote to the applicant by letter dated 19 September 2006 under s.424A of the Migration Act 1958 (Cth) inviting him to comment on aspects of the claims made at various times, including the claim in his protection visa application and accompanying statement, his letter of 28 August 2004, his oral evidence to the first Tribunal and to the reconstituted Tribunal, the statutory declaration of his acquaintance and the oral evidence of that person. The Tribunal set out at some length inconsistencies in the claims. It also put to him to country information in relation to the situation in China, his departure from China, his delay in leaving China and issues in relation to the evidence provided by his witness.
The applicant responded to the s.424A letter in a statement dated 27 September 2006. In that statement he stated that he wanted to “clarify” some of his claims in relation to events in China. He set out his claims in relation to matters such as when he had distributed flyers, what they related to and how he did it, his family’s involvement in Falun Gong, the reason he left the country, where he lived while in China and the number of times he was interrogated and detained by the police. He also addressed the circumstances in which he travelled overseas and his mother’s punishment for involvement in Falun Gong as well as inconsistencies in the evidence of his witness in relation to where she stayed in China and her failure to recall his mother’s name.
He claimed that his original application was in a foreign language so that it was difficult to provide a complete application from the beginning and that in the Tribunal hearing he was under pressure and was afraid, having been in trouble with the authorities and questioned or interrogated by the PSB many times in China. He also claimed that his poor English made it impossible for him to realise the mistake of the interpreter “such I was actually interrogated for less than 20 times but not detained for less than 20 times; or it should be Hailin Hotel but Linhai Hotel (sic)” (that the witness stayed in).

Tribunal decision

In its reasons for decision the Tribunal detailed the claims made by the applicant at various times, including his evidence at the first and second Tribunal hearings, the evidence of his witness and his response to the s.424A letter. The Tribunal referred to independent country information in relation to the situation China.
The Tribunal summarised the applicant’s claims as a claim that his mother was a Falun Gong practitioner, that following an incident in March 2003 when he and his parents were detained and tortured by the police he decided to protest against the Chinese government and that he distributed material. It also set out that he claimed he had been questioned, detained and tortured by the Chinese authorities numerous times and that a friend in the PSB had warned him that the authorities were interested in him. The Tribunal recorded that the applicant claimed that he had decided to leave China because one of his friends was subject to investigation by the PRC authorities and that in August 2004 four of his friends who had participated with him in distributing material were arrested and that the authorities now knew he was involved in the distribution of material.
However the Tribunal did not find the applicant to be a truthful or credible witness for a number of reasons. First it found there were inconsistencies in the applicant’s evidence as to when he had distributed Falun Gong propaganda material. It found that there was no explanation for the fact that at the first Tribunal hearing he had claimed he distributed material for about four or five months while at the second Tribunal hearing and in his letter to the Tribunal he claimed he distributed material for over 12 months. The Tribunal had regard to independent country information that during the period the applicant claimed he was distributing such material the PRC authorities were brutally cracking down on Falun Gong. The applicant indicated that he was aware of the crackdown and had distributed material at midnight dressed in disguise as a milkman or cleaner to avoid detection. The Tribunal was of the view that:
… if the applicant claimed he had distributed Falun Gong material, dressed in disguise at midnight, he would have been able to remember the period of time he distributed the material. The Tribunal is of the view that given the government’s response to those who supported Falun Gong, the applicant’s claim that he couldn’t recall exactly when or during what period he distributed Falun Gong material is implausible. The Tribunal is of the view that the inconsistencies in the applicant’s evidence as to when he distributed material indicates he is not a witness of truth.
Secondly, the Tribunal had regard to various changes in the applicant’s story as to how he distributed the material (whether by handing them to people or distributing them by putting them into mail boxes) and the lack of an explanation for such changes. The Tribunal found that this indicated that he was not a witness of truth.
The Tribunal had regard to inconsistencies in the applicant’s evidence about his place of residence in China which had been put to him in the s.424A letter. It had regard to his response, which it found simply repeated the information he had provided in the second Tribunal hearing and did not explain why there were inconsistencies in his evidence. The Tribunal was of the view that the fact that the applicant had provided inconsistent evidence about his place of residence in China indicated that he was not a witness of truth and that he had not provided a truthful account of his place of residence in China.
The Tribunal also had regard to what it described as “problems” with the applicant’s evidence that he had been detained by the Chinese authorities, including the absence of any such claim in the statement to the Department, the subsequent claims he made about questioning and detention and the fact that at the second Tribunal hearing he raised a fresh claim of detention overnight in August 2003. The Tribunal did not accept his explanations for the failure to raise this claim on earlier occasion (in relation to which he provided a number of different responses). It was of the view that if, as the applicant claimed, seven to eight police had arrived at his home, knocked down the applicant and his father with a plank, handcuffed them, dragged them into a police vehicle and had taken them to a police station where he was beaten and tortured for two hours, he would have referred to this claim when he had the first opportunity to do so. The Tribunal was of the view that the fact the applicant did not make this claim to the Department or to the Tribunal as originally constituted indicated that it had been made to strengthen his claim to refugee status.
The Tribunal also referred to what it regarded as a significant development of the applicant’s story at the second Tribunal hearing in relation to the number of times he had been detained by the Chinese authorities. It recorded that he claimed he had been detained no less than 20 times from 2000 on, but could not remember when or how many times in 2000, 2001 or 2002. He gave different accounts of when he was detained in 2003. It had regard to his explanation that drew a distinction between the number of times he was interrogated and the number of times he was detained and blamed the interpreter at the Tribunal hearing for the claim that he had been detained no less than 20 times. He claimed that he was interrogated no less than 20 times and detained on five occasions in 2003. The Tribunal did not accept that there was any mistake made by the interpreter at the hearing. It noted that in the hearing the applicant had indicated that he understood the interpreter and had been advised to tell the Tribunal if he did not understand the question or what the interpreter was saying. He had not indicated that he did not understand questions or what the interpreter was saying. It also had regard to the fact that when the applicant was asked when he was detained he had made the distinction between being “questioned”, “detained” and “arrested”. It set out his oral evidence in that regard. The Tribunal was of the view that the applicant had raised the claimed “mistake” of the “interpreter to overcome the fact that he significantly developed his story at the hearing”.
The Tribunal was of the view that if the applicant had been detained by the authorities in 2000, 2001, 2002 and five times in 2003 (in addition to being questioned and tortured) he would have referred to this claim at the first opportunity. It considered his claim that the first migration agent would not let him write his own statement, but noted that he had made the same claims about his new migration agent and also that he had not made such claims at the first Tribunal hearing. The Tribunal was of the view that the fact the applicant only claimed at the second Tribunal hearing to have been detained no less than 20 times indicated that he was not a witness of truth and that he had made this claim to strengthen his claim for refugee status. It was also of the view that the fact that he claimed he could not remember when he was detained in 2000, 2001 and 2002 and was not exactly sure when he was detained in 2003 indicated that he was “making up responses as he went to enhance his claims rather than providing a truthful account of what happened to him”.
The Tribunal also had regard to a number of problems with the applicant’s evidence as to the warning he claimed he received, noting changes in his story as to the nature of the warning he was given which were said to indicate that he was not a witness of truth and that the claim that he received a warning was not true.
The Tribunal detailed further problems with aspects of the applicant’s claims in relation to when and why he left China, being of the view that the fact he did not leave China when he could have done so indicated that his claims that he was questioned, detained and tortured by the authorities were not true. It found his claim that he decided to leave because one of his friends was subject to investigation by the authorities to be implausible given that he had not decided to leave earlier despite the fact that he claimed that he had been questioned, detained and tortured by the authorities numerous times.
The Tribunal also had regard to problems with the applicant’s evidence about his mother, in light of independent country information about treatment of Falun Gong practitioners who refuse to recant their beliefs. It found that in light of the applicant’s claim about his mother’s activities his claim that she was not detained because of her ill health was implausible and further indicated he was not a witness of truth. It also had regard to changes in the applicant’s story as to what happened to his mother when she attended what he described as the “brain brush class”.
The Tribunal also found problems with the evidence of the applicant’s witness, noting that at the hearing she had been unable to tell the Tribunal the applicant’s mother’s name (albeit she had said that she had visited the applicant’s mother in May 2006 in China) and gave a different account of what the police had told her and where she stayed. The Tribunal referred to the fact that it put the inconsistencies and inadequacies in the evidence of the witness to the applicant and it addressed his response to the s.424A letter. It was of the view that given the inconsistencies and shortcomings in the information provided by the witness in writing and orally it did not accept that she had visited the applicant’s mother or that the police came to her hotel and told her that the applicant had been targeted by the authorities.
The Tribunal referred to the applicant’s general explanation in response to the s.424A letter for the development of his claims. The Tribunal noted that the applicant had the assistance of interpreters and registered migration agents and that at the hearing he claimed that he had prepared and written his story in his own language. It was of the view that the significant development of the applicant’s claims and the changes in his stories and inconsistencies in his evidence had not arisen because his application was submitted in a foreign language or because of any interpreting problems at the hearing but rather because he had not been a witness of truth.

The Tribunal concluded:
Taking into account all of the evidence, the Tribunal finds that the applicant lacks credibility and rejects all of the applicant’s claims in his statement to the Department, his letter to the Tribunal and at the hearing. The Tribunal does not accept his mother is a Falun Gong practitioner. The Tribunal does not accept that he has distributed propaganda material. The Tribunal does not accept that the applicant has been questioned, detained and tortured by the Chinese authorities. The Tribunal is of the view that the applicant has fabricated these claims in order to strengthen his claim to refugee status. The Tribunal does not accept that the applicant has a real chance of persecution arising from his political opinion or for any other Convention reason should he return to China now or in the reasonably future.

This application

The applicant sought review by application filed in this Court on 7 December 2006. There are two grounds in the application. First it is contended that there is an error of law constituting jurisdictional error and second that there was “procedural error” in the Tribunal’s decision constituting an absence of natural justice. There are six particulars.

Bias

The first particular is that the Tribunal “made its decision with bias” and, in particular, ignored or failed to consider claims he made to it, ignored relevant materials before it and misunderstood his claim or made a mistake in relation to an important finding of fact.
Insofar as this particular is intended to take issue with the conduct of the Tribunal hearing, there is no transcript in evidence. In the absence of a transcript of the Tribunal hearing it cannot be inferred on the material before the Court that the Tribunal was biased or that there was an apprehension of bias in the manner in which the hearing was conducted (see SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 at [43]). As contended by counsel for the first respondent no inference of bias or prejudgment can be drawn from the mere fact of the adverse credibility findings made by the Tribunal (VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102 at [21]; SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38] and WABC of 2002 v Minister for Immigration and Indigenous Multicultural Affairs [2002] FCAFC 286 at [3]).
The Tribunal’s credibility findings went to the entirety of the applicant’s claims. It was not necessary for the Tribunal to make specific findings in relation to every factual contention raised by the applicant (see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [68], [87] – [97]; Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405 at [67] and Applicant A169 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 8 at [24]). It has not been established that the Tribunal misunderstood the applicant’s claims or made a mistake as to an important fact. The applicant has not particularised this allegation (although I return to this point in relation to the applicant’s address and his oral submissions in that respect). It is apparent that the Tribunal understood the various claims made by the applicant, but was not persuaded of the truth of his claims in light of inconsistencies and other problems with the nature of the claims made at various times in connection with his application for a protection visa and the review.
No jurisdictional error is established on the basis contended for in particular 1, either on the basis of actual or apprehended bias (see Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982 and Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507) or on the basis of a failure to have regard to relevant considerations or a “misunderstanding” or error of fact.

Additional claims issue

Particular 2 is that the Tribunal “completely ignored additional information or additional claims that the [applicant] submitted to the Tribunal in response to its letter after the Tribunal’s hearing”. This particular takes issue with the Tribunal’s treatment of the applicant’s response to the s.424A letter. However it is apparent from the Tribunal reasons for decision that at a number of points in its reasons for decision it considered the applicant’s response to the s.424A letter. The fact that it did not accept the applicant’s account of his claims as set out in that letter or the reasons that he gave for the variations in his claims or failure to mention particular matters does not establish that it ignored the response or additional information or additional claims that he made.

Section 424A

Particular 3 is that the Tribunal failed to comply with its obligation under s.424A(1) of the Act because it refused to provide the applicant with the “genuine information” that it used as the reason or part of the reason for determining the application. This particular was developed in written and oral submissions which, while they referred to s.424AA of the Act, were clarified in post-hearing submissions as relevant to s.424A of the Act. Initially the applicant had submitted that there was a failure by the Tribunal to comply with its obligations under s.424AA of the Migration Act 1958. However, as counsel for the respondent contended s.424AA of the Migration Act does not apply to applications to the Tribunal made prior to 29 June 2007 (see s.33 of the Migration Amendment (Review Provisions) Act 2007). In light of this information the applicant submitted that the Tribunal had failed to comply with its obligations under s.424A(1) of the Act.
Insofar as the applicant’s contention was that the information the Tribunal had obtained from the previously constituted Tribunal should not be regarded as information which he had given to the Tribunal and that such information must be put to him under s.424A(1) of the Migration Act, information provided to the Tribunal as originally constituted is information provided for the purposes of the review within s.424A(3)(b) of the Migration Act (see SZJBE v Minister for Immigration and Citizenship [2007] FCA 190 at [17]; SZITD v Minister for Immigration and Citizenship [2007] FCA 1343 at [22] and SZEPZ v Minister for Immigration and Multicultural Affairs and Another (2006) 159 FCR 291 at [39]). The Tribunal as reconstituted was entitled to have regard to such evidence and the information or material provided to the first Tribunal whether in writing or orally at the first hearing (such as the applicant’s claims about handing out flyers to strangers, his place of residence or his detention in March 2003). It was information which he provided to the Tribunal for the purposes of the review and is not subject to the obligation in s.424A(1) of the Act.
As Emmett J stated in SZJBE v Minister for Immigration and Citizenship [2007] FCA 190 at [17]:
An invalid decision by the Tribunal is no decision at all. However, it does not follow that steps and procedures taken in arriving at that decision are themselves invalid or of no effect. The Tribunal still has before it the materials that were obtained when the decision that has been set aside was made. Specifically under s.422(2) where the Tribunal as reconstituted that Tribunal may have regard to any record of the proceedings of the review made by the Tribunal as previously constituted. In the present case, it may be said that the Tribunal had regard to the statements made by the applicant to the Tribunal as previously constituted. I do not consider that s.424A could be said to have been breached by an assessment on a part of the Tribunal of the credibility of the applicant based upon what he said at an earlier hearing of the Tribunal.
The applicant also contended that the Tribunal was obliged to provide him with an appraisal of his claims during the course of the Tribunal hearing. There is no transcript of the Tribunal hearing before the Court and in any event while the Tribunal is under an obligation to raise dispositive issues with an applicant it is not obliged to give the applicant a running commentary on his application or to put to him its appraisals of his credibility (see SZBEL at [32] and [48]).
Insofar as the applicant intends to take issue with the Tribunal’s appraisal of inconsistencies between the various claims made to the delegate and to each Tribunal, such appraisals regarding the applicant’s credibility are not “information” for the purposes of s.424A(1) of the Act. (See SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at [18] and MZXBQ v Minister for Immigration and Citizenship [2008] FCA 319 at [29]).
Moreover, the Tribunal invited the applicant to comment on the information from his protection visa application (and indeed also information that he had provided to each Tribunal) that gave rise to its adverse credibility finding. There was no error in the Tribunal sending that invitation to the applicant following the hearing.

Section 425

The fourth particular is that the Tribunal failed to comply with its obligations under s.425 of the Act “because it should arrange another hearing for me if I could not make a favourable decision according to additional information or materials provided to it”.
It has not been established that there was a failure by the Tribunal to afford the applicant the opportunity to give evidence and address the issues arising in relation to the decision under review in accordance with s.425 of the Act. Again in this respect I note that there is no transcript of the Tribunal hearing before the Court. Nor is there an evidentiary basis for a finding that there was a failure to comply with s.425 of the Act in the sense of a contention that the applicant was not alerted to the issues arising in relation to the decision under review in the sense considered in SZBEL v Minister for Immigration and Multicultural Affairs and Indigenous Affairs (2006) 228 CLR 152 at [33] – [43]. It appears from the Tribunal reasons for decision that the determinative issues, in particular the Tribunal member’s concerns regarding the plausibility of the applicant’s claims, were raised with the applicant during the course of the hearing. The fact that the Tribunal did not make a favourable decision after the Tribunal hearing was not such as to oblige it to invite the applicant to a further Tribunal hearing.
The applicant also claimed that he had not been given an opportunity at the first Tribunal hearing to express himself and that he was much clearer at the second Tribunal hearing and that this was an explanation for apparent inconsistencies in his evidence. This contention does not establish jurisdictional error on the part of the Tribunal. Insofar as the applicant contended that there were no inconsistencies between the two Tribunal hearings, there is no evidence before the Court to establish that the Tribunal erred in the manner in which it assessed the evidence given by the applicant at the first and second Tribunal hearings.
In oral submissions the applicant contended that at the second Tribunal hearing the interpreter was asked by the Tribunal to repeat what was said on many occasions. This was said to indicate that the interpreter understood the applicant but that the Tribunal member could not understand the interpreter. The applicant also claimed that he felt that at the hearing the interpreter could not interpret what was said by him and therefore the member “couldn’t get it”.
However this claim is not made out on the material before the Court. There is no evidentiary basis for any finding of a failure by the Tribunal to meet its obligations under s.425 of the Act. I note in that respect that directions were made in this matter for the applicant to file a transcript of the hearing and any other affidavit evidence. He did not do so. His generally expressed concern in oral submissions is not such as to establish jurisdictional error.

Irrelevant material and fairness

Particular 5 is that “As a matter of fact, in my case, the Tribunal has identified a wrong issue, relies on irrelevant material and made an erroneous finding in determining my review application; and I, therefore, never ever believe that my application has been considered, fairly and carefully.” This generally expressed particular does not establish jurisdictional error on the part of the Tribunal. Nor does the sixth particular which is a general contention that the review application was not assessed “fairly and properly”. No failure by the Tribunal to comply with the procedural requirements of the Migration Act or otherwise to accord the applicant procedural fairness has been established.
In oral submissions the applicant contended that the Tribunal did not understand how residential addresses were understood or represented in China. The Tribunal dealt with what it regarded as inconsistencies in the applicant’s claims about where he had resided in China, in particular whether he resided in a named city or a named village. This concern was put to the applicant in a s.424A letter. His response was a repetition of the information he had provided at the Tribunal hearing. He did not take that opportunity to explain the claimed inconsistency. He now claims that he lived in a village within the city. However there is no evidence that he provided that explanation to the Tribunal. It was open to the Tribunal to draw an inference that there was an inconsistency in relation to whether the applicant lived in a named village or a named city (particularly in the absence of any alternative explanation such as is now put by the applicant). The Tribunal’s view that the applicant had put three inconsistent versions of his residential address in the course of the review and had not explained such inconsistencies was open to it on the material before it.
The applicant submitted that there had been an admission in the Federal Court that there was a “problem” with the first Tribunal hearing. The solicitor for the first respondent filed a further affidavit to clarify whether this submission was relevant to the present proceedings and whether the review applications under the pseudonyms SZFJO and SZJVA related to the same applicant. Both parties were also given the opportunity to file post-hearing submissions, in particular in relation to the applicant’s contention that s.424AA was applicable to the review by the Tribunal in this case.
An affidavit of Jamie Dinihan sworn and filed on 6 May 2008 clarified that when the applicant sought judicial review of the first Tribunal hearing he was allocated the pseudonym SZFJO and that when he sought judicial review of the second Tribunal decision he was allocated the pseudonym SZJVA. This also clarified that the basis on which the matter had been remitted to the Tribunal for reconsideration by the Federal Court of Australia was a failure to comply with s.424A(1) of the Act having regard to the decision of the Full Court of the Federal Court in SZEEU and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214. There is no evidence to indicate that there was any adverse inference or finding made by the Federal Court in remitting the matter for reconsideration based on the conduct of the first Tribunal hearing.
The applicant subsequently filed post-hearing submissions in which he conceded that he might have to accept that s.424AA did not apply to his application but submitted that, as discussed above, s.424A(1) had been breached by the Tribunal. However as set out above, such ground is not made out.
As no jurisdictional error has been established on any of the bases contended for by the applicant, the application must be dismissed.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 25 June 2008