SZKJT v Minister for Immigration and Anor (No.2) - [2009] FMCA 1031

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKJT v MINISTER FOR IMMIGRATION & ANOR (No.2)

[2009] FMCA 1031

MIGRATION – Review of decision of Refugee Review Tribunal – weight given to evidence a matter for the Tribunal – no breach of s.430 – Tribunal did consider all applicant’s claims in its “Findings and Reasons” – no breach of procedural fairness – obligation under s.424A complied with – what the Tribunal thought of information was not information for the purpose of s.424A – no bias – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.420, 422B, 424A, 425, 430

SZKJT v Minister for Immigration & Citizenship & Anor [2008] FMCA 876
SZKTI v Minister for Immigration & Citizenship [2008] FCAFC 83
Minister for Immigration & Citizenship v SZLFX [2008] FCAFC 125
SZKCQ v Minister for Immigration & Citizenship (2008) 170 FCR 236
Minister for Immigration & Citizenshipv SZKTI [2009] HCA 30
Minister for Immigration & Citizenshipv SZKJT [2009] FCA 984
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547
W148/00A v Minister for Immigration & Multicultural Affairs (2001) 185 ALR 703
NAXT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 279
Xu v Minister for Immigration & Multicultural Affairs (1999) 95 FCR 425; [1999] FCA 1741
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
Minister for Immigration & Multicultural Affairs v Yusuf (2001) CLR 323
Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244
Minister for Aboriginal Affairs v Peko-Walsend (1986) 112 CLR 24
Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263
Minister for Immigration & Multicultural Affairs v N989/01 [2002] FCAFC 237
SZBEL v Minister for Immigration & Multicultural & Indigenous affairs [2006] HCA 63; (2006) 231 ALR 592
SZBYR v Minister for Immigration & Citizenship [2007] HCA 26
Minister for Immigration & Citizenship v SZMOK [2009] FCAFC 83
SZHPD v Minister for Immigration & Citizenship [2007] FCA 157
Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507; [2001] HCA 17
Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361
Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431
VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102

Applicant:

SZKJT

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 947 of 2007

Judgment of:

Nicholls FM

Hearing date:

23 September 2009

Date of Last Submission:

23 September 2009

Delivered at:

Sydney

Delivered on:

28 October 2009

REPRESENTATION

Appearing for the Applicant:

In person

Solicitors for the Applicant:

Appearing for the Respondents:

Ms K Whittemore

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application made on 20 March 2007 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $11,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 947 of 2007

SZKJT

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made on 20 March 2007 under the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) signed on 1 February 2007 and handed down on 13 February 2007 which affirmed the decision of a delegate of the respondent Minister to refuse the grant of a protection visa to the applicant.

Background before the Courts

The litigation background to this Judgment is:
1)This application was the subject of Judgment handed down by this Court on 28 August 2008 (see SZKJT v Minister for Immigration & Citizenship & Anor [2008] FMCA 876 (“SZKJT”)).
2)Orders were made on that date quashing the Tribunal decision and requiring the Tribunal to re-determine the matter according to law.
3)The basis of the Judgment was the reliance on the Full Federal Court Judgments in SZKTI v Minister for Immigration & Citizenship [2008] FCAFC 83 (“SZKTI”); Minister for Immigration & Citizenship v SZLFX [2008] FCAFC 125 and SZKCQ v Minister for Immigration & Citizenship (2008) 170 FCR 236 to find error in the Tribunal’s decision.
4)These Judgments were handed down after the hearing in SZKJT, but before Judgment was handed down. While consideration had been given to the grounds pleaded in the application of 20 March 2007, and complaints raised by the applicant at the hearing, this consideration was not reproduced in the Judgment in light of the finding of jurisdictional error arising from the application of Full Federal Court authorities (see SZKJT at [119]).
5)The Minister filed a notice of appeal in the Federal Court on 18 September 2008.
6)On 26 August 2009 the High Court delivered Judgment in Minister for Immigration & Citizenship v SZKTI [2009] HCA30 allowing an appeal from the Full Federal Court Judgment in SZKTI.
7)On 31 August 2009 Lindgren J made orders allowing the appeal from this Court in SZKJT. (See Minister for Immigration & Citizenship v SZKJT [2009] FCA 984).
8)His Honour also ordered that the matter be remitted to this Court to deal with those grounds not addressed in the Judgment in SZKJT (See Order 3, and [30] – [31] of His Honour’s Judgment).
A directions hearing was held on 23 September 2009. The applicant appeared in person. He was assisted by an interpreter in the Mandarin language. Ms K Whittemore appeared for the first respondent.
Ms Whittemore submitted that the respondent’s position had been fully ventilated and that the respondent did not see a need for a further hearing.
The applicant said that he had nothing further to put before the Court.
I understood both parties therefore to rely on material already put before the Court and Judgment was reserved on that basis.
Relevantly, that material is:
1)The application made to this Court on 20 March 2007.
2)The Court Book (“CB”) filed on 30 April 2007.
3)The Minister’s Outline of Submissions filed on 18 February 2008.
4)The Minister’s Supplementary Submissions filed on 28 March 2008.
5)The Affidavit of Nicola Johnson, a solicitor in the employ of the respondent’s solicitors, sworn on 31 March 2008 which attached a transcript of the hearing before the Tribunal.
6)The applicant’s written submissions filed on 30 April 2008.

The applicant’s claims to protection

The applicant is a citizen of the Peoples Republic of China (“China”). He arrived in Australia on 17 April 2006 and applied for a protection visa on 22 May 2006 (CB 1 to CB 27 with annexures). The applicant was assisted by a registered migration agent (CB 24).
His claims to protection were initially set out in a declaration made on 22 May 2006 (CB 25 to CB 27).
The applicant claimed to fear “political persecution by the PRC authorities” ([1] at CB 25).
As background he claimed to have come from a family that suffered hardship in maintaining a basic standard of living, and to have suffered financial hardship due to having paid “expensive medical fee” for his parents, and a “big fine” because of the birth of a child outside the scope of the Chinese government’s “one child policy”. This, and further expenses and set backs, contributed to his accumulating “big debts” ([2] – [6] at CB 25 – CB 26).
The applicant claimed that in January 2005 he was “forced” by the local government authority to make a “donation” for the construction of a new road. This also involved the “burden of taxes and levies for many years”. Over the next year no construction took place ([7] to [9] at CB 26).
The applicant spoke to local villagers urging them to press for an explanation from the government. In January 2006 police came to his home where he was denounced as encouraging anti-government activities. He was taken to the local Public Security Bureau (“PSB”) where he was beaten to unconsciousness. He was detained and beaten further over the next week. He was forced to sign a “confession” ([10] to [11] at CB 26 to CB 27).
The applicant claimed that he continued to press for an explanation about the “so-called donation”. He was subjected to further questioning by police from March 2006. He claimed to have left China because he had heard that the PSB intended to arrest him again because of his “political activities against the government” ([12] to [14] at CB 27).

The delegate

The delegate accepted that the applicant had financial difficulties, but was not satisfied that the applicant had a well founded fear of persecution because there was “no evidence” that the applicant was of interest to the Chinese authorities at the time of his departure from China (CB 34 to CB 35).

The Tribunal

The applicant applied for review by the Tribunal on 7 September 2006. He continued to be represented by the same migration agency (CB 36 to CB 40).
The applicant attended a hearing before the Tribunal on 15 November 2006. The Tribunal also took evidence from a witness by telephone (CB 111.3). The Tribunal’s account of what occurred is contained in its decision record (CB 109.4 and CB 110.4 to CB 111.3). A transcript of the hearing is also before the Court as an annexure to the affidavit of Nicola Johnson.
At the hearing before the Tribunal the applicant submitted a number of documents in support of his application. These were said to be:
1)A “Summons” from the local PSB (CB 46).
2)A “Receipt” issued by the local government authority for: “donation to the Road Construction” (CB 47).
3)Two “Receipts” for payment of “Penalty for the Birth of Child not Permitted by the Birth-Control Program” (CB 48 to CB 49).
[See also CB 110.4 and Transcript (“T”) at T11.7 to T12.3.]
At the hearing the Tribunal sought the applicant’s agreement to its making enquiries with the Australian Embassy in Beijing (“secretly”) as to whether the documents were genuine (T11.10). The applicant agreed (T12.2).
Given the Tribunal’s ultimate reasoning, the following statement by the Tribunal to the applicant at the hearing is important:
“[Tribunal Member]: Okay, well okay because I hear your story and what you’re saying and it’s very hard for me to know whether you are telling the truth or not so you have given me two ways to try and get a bit of extra evidence about this. One is to speak to your – the friend of your father-in-law and I think because that’s easy I will do that straight away and then I will think whether it is necessary to check the documents. Okay, before I talk to [the friend], is there anything else you want to tell me?
[Interpreter] No”. (T12.3 to T12.4)
Following what appeared to be an unfruitful discussion with the “friend of the father-in-law” (T14.3 to T18), the Tribunal told the applicant:
“[Tribunal Member] Yes, of course. What I will do next is I will see if we can make some secret inquiries about these documents, especially this one.
[Interpreter] Yes.
[Tribunal Member] And I will ask the embassy if they can have someone look at secretly, not from the government, and for them to look at it and give an opinion if it looks genuine. If they say it is genuine or it looks genuine then I think that makes it easy for me to believe you. If they cannot do it soon or if they cannot give an opinion I will think about everything that you have told me and also that you allowed me to ring this man and I will try and decide if that is enough for me to grant a protection visa. Is that clear?” (T19.3 to T19.6)
Following the hearing, on 29 November 2006, the Tribunal made an inquiry of the Department of Foreign Affairs and Trade (“DFAT”) asking it whether “the documents are genuine or fraudulent” (See CB 51 to CB 53). The Tribunal’s request explained that the applicant had claimed to have protested to the local authorities and to have been harassed by the police (CB 51.8).
Specifically the Tribunal asked:
“Questions
6. The RRT would appreciate it if post would provide answers to the following:
A. Can you determine if the attached documents are genuine, or alternatively make any comments about whether any features of these documents are not typical?
B. In relation to the ‘Penalty for the birth of child’ receipts, the receipt numbers are almost sequential (001940 and 001942) despite being issued six years apart. Is there any reasonable explanation for how this could happen if the documents are genuine?” (CB 53.4)
The DFAT responded on 25 December 2006 (see CB 54). The conclusion was: “The advice from local government officials suggests that the documents are not genuine”.
By letter dated 3 January 2007, and sent to the authorised recipient (the migration agent) the Tribunal asked the applicant to comment on information relevant to his documents and available from DFAT and the Minister’s Department (CB 56 to CB 60) and including a reference to a guide provided by a professor from the University of Wisconsin, as to the “layout” of relevant documents.
The Tribunal told the applicant:
“This information is relevant because it could lead the Tribunal to find that the documents you have tendered are in fact fraudulent and that your claims represented to the Tribunal were fabricated so as to procure a protection visa” (CB 59.10).
The applicant’s response is reproduced at CB 61 to CB 64. Attached to this response was a document entitled “Criminal Procedure Law of the People’s Republic of China” (CB 65 to CB 101).
The Tribunal found that the applicant’s documents provided in support of his claims were fraudulent. It was not persuaded by the applicant’s submissions, and found that that the documents were not: “anything but fraudulent documents procured and submitted by the applicant to strengthen his claims for a protection visa”. This led the Tribunal: “to find that the applicant’s claims are fabrications”. It therefore could not be satisfied that the applicant had a well founded fear of persecution for a Convention reason. It therefore affirmed the decision under review (CB 116).

The application to the Court

The grounds of the application are:
“There was an error of law in the Tribunal’s decision constituting a jurisdictional error;
There was procedural error in the Tribunal’s decision constituting an absence of natural justice.
Particulars
1. The Tribunal failed to comply with its obligations under s.420 of the Act.
a. According to s.420 of the Act, I have found that:-
Section 420. Refugee Review Tribunal’s way of operating
420. (1) The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
(2) The Tribunal, in reviewing a decision:
(a) is not bound by technicalities, legal forms or rules of evidence; and
(b) must act according to substantial justice and the merits of the case.
b. In my case, documents that I have provided to the Tribunal are important evidence in support of my application; and thus, whether they are fraudulent ones or not become a crucial issue in my review application. The Tribunal has considered the assessment by DAFT; and it has also strengthened in its findings by the results of the Tribunal’s own investigations. However, neither DFAT nor the Tribunal has been able to provide any substantial and direct evidences to demonstrate or to evidence that the documents provided by me are fraudulent. What the Tribunal has done is just to assume or infer that my documents might have been fraudulent.
c. Especially, the Tribunal refused to consider my evidences or arguments or comments provided to it in relation to this matter, impartially and properly; and the Tribunal refused to consider actual situation in China; and the Tribunal refused to act according to substantial justice and the merits of the case.
2. The Tribunal failed to comply with its obligations under s.430 of the Act.
a. According to s.420 of the Act, I have found that:-
430. (1) Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:
(a) sets out the decision of the Tribunal on the review; and
(b) sets out the reasons for the decision; and
(c) sets out the findings on any material questions of fact; and
(d) refers to the evidence or any other material on which the findings of fact were based.
b. In my case, however, the Tribunal refused to set out the reasons why it has decided not to consider my evidences or arguments or comments provided to it in relation to those documents; and the Tribunal failed to sets out its findings on any material questions of fact; and failed to refer to the evidence or any other material on which the findings of fact were based.
3. The Tribunal failed to comply with its obligations under s.424A(1) of the Act.
a. The Tribunal might have provided me the particulars of the information that it has considered as a reason or part o the reason in making its finding. However, we still cannot say that the Tribunal has, genuinely and honestly, comply with its obligation under s.424A(1) of the Act.
b. As a matter of fact, the meaning of s.424A(1) of the Act, is not only to require the Tribunal to create a fair opportunity for the applicant like me; but also to require the Tribunal to consider the applicant’s evidences or arguments completely, fairly and properly. Unfortunately, in my case, the Tribunal did create an opportunity for me; but is has, obviously, failed to consider my evidences or arguments completely, fairly and properly. So, I have to say that the Tribunal has, in fact, failed to comply with its obligations under s.424A(1) of the Act, honestly and faithfully.
In summary, I have never believed that my review application has been fairly and carefully assessed by the Tribunal.”
[Errors in the original]
At the hearing before the Court the applicant made oral submissions. These are reported in SZKJT at [13]:
“Before the Court the applicant read from a prepared statement which he said had been drafted with the assistance of ‘a friend’. He pressed the following:
1) A breach of s.420 of the Act. The applicant submitted that s.420 requires the Tribunal to pursue a mechanism that provides a ‘just, fair, and economical review mechanism’, and that it was unfair of the Tribunal to find that the documents submitted in support of his application were forged in the absence of any ‘material direct evidence’ in support of that finding.
2) A breach of s.430 of the Act. The applicant explained that the Tribunal refused to consider his explanation for the information provided by DFAT (that is, his response to the Tribunal’s s.424A letter). Further, the Tribunal did not set out the reasons for this, and the evidence it relied upon (“the Tribunal did not specify on what basis it behaved in such a way and in accordance with what evidence”).
3) The Tribunal breached its obligations pursuant to s.424A(1) of the Act. The applicant submitted that the Tribunal did provide him ‘with relevant information’ (the information from DFAT and the other information the Tribunal relied on), but that the Tribunal, ‘without any reason’, refused to consider his explanation in response to this information. The applicant also submitted that this led him to ‘question the sincerity of the Tribunal’. (This may also have been a complaint of an apprehension of bias (see the applicant’s written submissions provided subsequently – see [16] of this Judgment).)
4. That the Tribunal acted in bad faith – see [16] of this Judgment.)”

The following also arose at the hearing. See SZKJT at [14]:
“Given that the applicant was unrepresented before the Court, during the course of the hearing I raised the following matters with Mr Foreman:
1) In relation to the applicant’s second ground, whether the question may better have been posed as whether the Tribunal properly considered all of the applicant’s claims.
2) Whether, in light of SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 (“SZBEL”), the Tribunal complied with its procedural fairness obligations pursuant to s.425 of the Act.
3) In relation to the applicant’s third ground, whether a breach of s.424A of the Act occurred in relation to the oral evidence obtained by the Tribunal via telephone.”
The Minister’s supplementary written submissions addressed the issues above (at [31]). The applicant subsequently filed written submissions which alleged apprehended bias on the part of the Tribunal.

The Grounds

The applicant generally asserts error of law and procedural error constituting an absence of natural justice. The specific complaints are to be understood with reference to the particulars.

The First Particular

The first particular complains, in effect, that the Tribunal’s findings in relation to the four documents he submitted in support of his claims reveal jurisdictional error on the part of the Tribunal.
Specifically, that the Tribunal has not provided any evidence to support the finding that the documents were fraudulent, and that it only assumed, or made an inference to that effect. Even further that the Tribunal did not consider his arguments in support of the authenticity of these documents.
This complaint does not succeed.
The Tribunal’s finding that the documents were fraudulent was not a baseless assumption. The Tribunal had before it, and considered, the “detailed assessment” provided by the DFAT. Further, it made its own enquiries which it set out in its decision record, and further it noted the relevant availability of fraudulent documents in China (see CB 112 to CB 114).
This information certainly provided a probative basis for the Tribunal’s finding. Whether another Tribunal member may have come to a different conclusion is not to the point. What is important is that the Tribunal’s finding was open to it to make on the material before it. (Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 at 558 and W148/00A v Minister for Immigration & Multicultural Affairs (2001) 185 ALR 703 at [64] – [69] per Tamberlin and RD Nicholson JJ).
The applicant’s complaint that the Tribunal did not consider his arguments in support of the authenticity of these documents cannot be sustained in light of the relevant material before the Court.
Following the hearing the Tribunal wrote to the applicant inviting his comment on information relevant to the issue of the authenticity of the documents (CB 56 to CB 60). The applicant’s response was sent by way of his adviser (CB 61 to BC 64). The Tribunal was not persuaded by this that the documents “were anything but fraudulent”.
Again, it is not for this Court to substitute its own factual findings for those of the Tribunal. The Tribunal considered the applicant’s submissions but preferred the “detailed assessment” by DFAT, and the results of its own enquiries, to the applicant’s submissions as to the authenticity of the documents.
Such assessment, the weight to be given to competing pieces of evidence before it, is a matter for the Tribunal. The Tribunal’s analysis and its ultimate conclusion in this regard was open to it. The applicant’s complaint now does not rise above a complaint that the Tribunal did not prefer his evidence and submissions over the other evidence available to it. In the circumstances of what was before it, this does not reveal error, let alone jurisdictional error, on the part of the Tribunal. This particular does not assist the applicant.

The Second Particular

The second particular asserts a breach of s.430 of the Act. The allegation is that the Tribunal failed to adequately set out its reasons for its decision. Before the Court the applicant, in part, explained that the Tribunal “refused” to consider his explanation for the information provided by the DFAT in relation to his documents.
I also raised the question as to whether the second particular could also be seen as a complaint as to whether the Tribunal properly considered all of the applicant’s claims. The Minister has provided supplementary written submissions in this regard.
The Tribunal’s “Findings and Reasons” are brief. To any observer who has read a large number of Tribunal decisions it appears, on a comparative basis, to be remarkably brief.
But, as the Minister submits, brevity on its own is not jurisdictional error (NAXT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 279).
There are two areas for consideration in relation to this complaint.
The first is whether there has been a breach of s.430, and if so whether this constitutes jurisdiction error. Relevant authority would suggest that even if some breach of this section could be discerned, it would not amount to jurisdiction error (Xu v Minister for Immigration & Multicultural Affairs (1999) 95 FCR 425; [1999] FCA 1741 at [17], Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 at [70] per McHugh J).
As to what is required by s.430, the Minister relies on Minister for Immigration & Multicultural Affairs v Yusuf (2001) CLR 323 (“Yusuf”) at [68] per McHugh, Gummow, and Hayne JJ:
“In its terms, it requires no more than that the Tribunal set out the findings which it did make. Neither expressly nor impliedly does this section require the Tribunal to make, and then set out, some findings additional to those which it actually made. In Singh, significance was attached to this use of the word “material” in s.430(1)(c). It was said that ‘material’ in the expression ‘material questions of fact’ must mean ‘objectively material’. Even if that were right, it would by no means follow that the Tribunal was bound to set out findings that it did not make. But it is not right to read ‘material’ as providing an objective or external standard of materiality. A requirement to set out findings and reasons focuses upon the subjective though processes of the decision-maker. All that s.430(1)(c) obliges the Tribunal to do is set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision.”
The second is whether the Tribunal properly considered the applicant’s claims. As was set out in Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 (“Htun”) at [41] – [42] per Allsop J, a failure to consider all of an applicant’s claims is a failure in the exercise of the Tribunal’s jurisdiction.
Further, a failure to consider each integer of a claim is a failure to consider a mandatory consideration relevant under the Act (see again Htun at [41] – [42], Yusuf, and Minister for Aboriginal Affairs v Peko-Walsend (1986) 112 CLR 24).
The obligation in this regard is not to consider a claim never made, but to consider each claim and aspect of a claim expressly made or which can be said to clearly arise from the circumstances presented (see Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 and NABE v Minister for Immigration Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263).
The Minister submitted that when the Tribunal’s decision is read fairly, and as a whole (see Minister for Immigration & Multicultural Affairs v N989/01 [2002] FCAFC 237) this reveals that the Tribunal did consider all of the applicant’s claims and found that, on the weight of the evidence before it, the four documents the applicant submitted were fraudulent, which led it to find that the applicant’s claims were fabrications.
The resolution of the question as to whether the Tribunal considered all of the applicant’s claims involves not only a reading of the decision record, and I accept that it should be read holistically so that proper meaning may be discerned, but to understand just what the applicant’s claims were, how their articulation developed throughout the processing of the initial application and subsequent review before the Tribunal. Further, and specifically, the relationship between the claims and the documents provided by the applicant in support.
The outline of the applicant’s claims and the evolution of their articulation has already been set out above in this Judgment (see [8] to [14] above).
The critical elements are that the applicant claimed to fear persecutory harm if he were to return to China because he had come to the attention of, and been harmed by, local authorities, who required payment of fines and “donations”. This also included the local security and police authorities, because he had sought an explanation of the failure of the relevant local government authority to spend money raised from his local village for promised road construction.
As set out above (at [15]) the delegate accepted the applicant’s claims of financial pressures in China, but found that there was “no evidence” that he was of interest to the authorities at the time of his departure from China.
At the hearing before the Tribunal the applicant presented documentary evidence, in the form of the four documents already referred to above (see [18]) which went to the central issue as to whether the authorities were interested in him, and in support of the applicant’s factual claims in this regard.
The transcript of the Tribunal hearing reveals that the applicant provided these documents to the Tribunal at the commencement of the hearing (see T2.4).
The applicant subsequently explained the factual claims underpinning his claim to fear persecutory harm (see T4 to T10).
The applicant was then asked to explain the documents he had provided (T11.7). The Tribunal then raised with the applicant the question of the genuineness of these documents (T11.9)
Although it may not have been made clear in the Tribunal’s account of what occurred at the hearing, in my view, the genesis of the Tribunal’s ultimate finding, which depended on the important link between the credibility of the applicant’s factual account to fear persecutory harm and the genuineness of the documents he provided in support of his account, is to be seen in what the Tribunal plainly told the applicant at the hearing.
The Tribunal explained (at T12.4) (reproduced again – see [20] above for ease of reference):
“[Tribunal Member]: Okay, well okay because I hear your story and what you’re saying and it’s very hard for me to know whether you are telling the truth or not so you have given me two ways to try and get a bit of extra evidence about this. One is to speak to your – the friend of your father-in-law and I think because that’s easy I will do that straight away and then I will think whether it is necessary to check the documents. Okay, before I talk to [the friend], is there anything else you want to tell me?”
The subsequent discussion with the applicant and the father-in-law’s friend was not of assistance in resolving the Tribunal’s concerns as to whether the applicant’s “story” was true (see T12.10 to T18). The exchange with the friend is, in my view, a clear demonstration of the futility of the Tribunal ringing a witness overseas, unexpectedly, particularly in a country where there is a perception that the authorities monitor the electronic, including telephone, communications of its citizens.
In any event, while for the Tribunal this went some little way to believing the applicant’s “story” (“…Okay. I can understand. I think it was helpful to your case that you were prepared to let me talk to him” (the friend) (T18.7)), the Tribunal was still not convinced as to the truth of his account.
At T19.3:
“[Tribunal Member]: Yes, of course. What I will do next is I will see if we can make some secret inquiries about these documents, especially this one.
[Interpreter]: Yes.
[Tribunal member]: And I will ask the embassy if they can have someone look at secretly, not from the government, and for them to look at it and give an opinion if it looks genuine. If they say it is genuine or it looks genuine then I think that makes it easy for me to believe you. If they cannot do it soon or if they cannot give an opinion I will think about everything that you have told me and also that you allowed me to ring this man and I will try and decide if that is enough for me to grant a protection visa. Is that clear?...”
The Tribunal then pursued the enquiries about the documents as already set out above (see [22] to [26]).
The Tribunal’s relevant and ultimate finding therefore, although briefly expressed, can be seen as the product of the Tribunal’s concern as to the applicant’s factual account of what he said had occurred to him in China, and its expression of this concern to the applicant at the hearing.
The Tribunal told the applicant that there were two ways that it may be persuaded as to the truth of his claims. The first involved the father-in-law’s friend who arranged the applicant’s departure from China. This did not assist to any fruitful level.
The second was the exploration of the genuineness of the documents provided in support. It is clear that the Tribunal preferred the weight of evidence from the DFAT and its own enquiries to that of the applicant.
Once the Tribunal had found that the documents were fraudulent, then there was nothing left, in its view, to overcome its concerns about whether the applicant was telling the truth. Its reasoning therefore, in light of the above, was that the rejection of the four documents as fraudulent meant it could not be satisfied as to the veracity of his factual account underpinning his claim to fear persecutory harm.
A proper and holistic reading of all of its decision record reveals that the Tribunal well understood the applicant’s claims. These were set out as they were presented to the delegate and to the Tribunal at the hearing, and subsequently in response to its letter to the applicant.
When the “Findings and Reasons” are read in light of what proceeds it, and in light of the transcript of the hearing, I am satisfied that the Tribunal did consider all of the applicant’s claims to fear persecutory harm. I cannot see error in this regard.
Further, nor can I see that the Tribunal failed to comply with s.430. This section does not prescribe that the Tribunal must repeat all of the detail of the applicant’s claims in its “Findings and Reasons”.
The Tribunal set out the applicant’s factual claims. It rejected them because it was, on balance, unable to accept that his documents which were provided in response to the delegate’s finding of “no evidence” were other than fraudulent documents provided to strengthen his claims to protection.

Section 425 and Procedural Fairness

At the hearing before the Court I raised the issue of whether the Tribunal had complied with its procedural fairness obligations pursuant to s.425, and in light of what the High Court said in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592.
This was raised at a time when there was no transcript of the hearing before the Court. The Tribunal’s account of what occurred is not meant to be a transcript. But its account did give rise to some question as to whether it had raised the determinative issue that disposed of the review with the applicant at the hearing.
The determinative issue in this case has two limbs. The first is the authenticity of the applicant’s documents. The second is the important link between the documents and whether the Tribunal would believe the applicant’s account of persecutory harm in the past.
As set out above any plain reading of the transcript reveals that both elements were raised with the applicant at the hearing (see [61], [63] – [66] above). I should note that as the documents had not been provided to the delegate it was necessary for the Tribunal to raise this issue with the applicant at the hearing. It did. I cannot see that there was any failure of procedural fairness pursuant to s.425.

Particular Three

In particular three the applicant complains that the Tribunal breached s.424A of the Act.
In his application to the Court the applicant appears to concede that the Tribunal did provide him with particulars of the information that it considered would be the reason, or a part of the reason, for affirming the decision under review.
The applicant’s complaint however appears to be that s.424A(1) requires the Tribunal: “to consider the applicant’s evidences or arguments completely, fairly and properly”, and that it did not do so.
The applicant confirmed this complaint before the Court (see SZKJT at [13.3]). That is, that the Tribunal refused to consider his explanation in response to this information.
To the extent that this may be a complaint of an apprehension of bias on the part of the Tribunal that is dealt with below.
To the extent that the applicant relies on s.424A(1) for this complaint, then it is misconceived. The language and purpose of s.424A(1) is directed to the Tribunal giving the applicant the opportunity to comment on information which it considers “would be” the reason, or a part of the reason, for affirming the decision under review. The scope of s.424A is explained by the High Court in SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 (see at [15] to [22]).
In contrast to s.424 for example there is no provision in the language of s.424A, “that the Tribunal must have regard” to the applicant’s response.
To the extent that the applicant complains that the Tribunal did not act “fairly” then s.422B(3), which exhorts the Tribunal “to act in a way that is fair and just” in relation to those matters set out in Division 4 of Part 7 of the Act (of which s.424A is a part), did not become operational until 29 June 2007, well after the date of the Tribunal’s decision (see Migration Amendment (Review Provisions) Act of 2007, s.3 and Schedule 1 [17]).
In any event, s.422B(3) would not have assisted the applicant as it does not create any additional procedural requirements beyond those provided for in Division 4 (Minister for Immigration & Citizenship v SZMOK [2009] FCAFC 83 at [15]).
To the extent that the Tribunal must at otherwise act properly and fairly in relation to its implementation of s.424A, this is confined to the implementation of its obligation within the scope of this section. The Tribunal complied with the relevant obligations (see also below).
The applicant’s complaint however also fails at a factual level. The complaint that the Tribunal failed to consider his response to the invitation to comment on certain information cannot be made out on any plain reading of the Tribunal’s decision record. It does not take a fair or holistic reading to see that the: “Tribunal has considered the applicant’s submission with regard to” the information on which its finding that his documents were fraudulent was based (see CB 116.3). The “Findings and Reasons” may be brief, but that, at least, is very clear.
For the sake of completeness, nor can I see that any other breach of s.424A occurred. The Tribunal wrote to the applicant on 3 January 2007 (see CB 56 to CB 60). The terms of this letter were clear in putting to him the substance of the information before the Tribunal, and which it considered “would be” the reason for affirming the decision under review. The letter made it clear that the relevance of this information was that it could lead the Tribunal to find that the documents were fraudulent. Importantly the letter also advised on the possible link between such a finding, and the subsequent finding that the applicant’s claims were fabricated such as to procure a protection visa (CB 59.10).

What the Tribunal thought about this information, what it made of it, and for that matter what it made of the applicant’s submissions in response is not “information” for the purposes of s.424A (see SZBYR at [17[ - [18]).
During the course of the hearing I did raise for consideration whether any breach of s.424A occurred in relation to the information obtained by telephone from the father-in-law’s friend in China during the course of the hearing (see SZKJT at [14.3]).
With reference in particular to the transcript of the hearing, what the friend said is not “information” for the purposes of s.424A. While what he said was ultimately unhelpful to the Tribunal in resolving its concerns about the truth of the applicant’s claims, there was nothing in what was said to “contain in its terms a rejection, denial or undermining of the” applicant’s “claims to be a person to whom Australia owed protection obligations” (with reference to SZBYR at [17]).
The Tribunal ultimately, and relevantly, found that: “the oral evidence from the person provided by phone at the hearing was insufficiently strong to provide corroboration for the applicant’s claims” (CB 116.4).
Again, what the Tribunal thought of this material, that is that it was insufficient to persuade it to the applicant’s claims, was not “information” for the purpose of s.424A.
Further, what the person said on the phone clearly did not survive the hearing in terms of it being considered part of the material that “would be” the reason, or a part of the reason, for affirming the decision under review. The information that fell within this category was the information about the documents submitted by the applicant.

Apprehended Bias

In his written submissions the applicant also raised an additional complaint. This appears to attempt to plead an additional ground to the application. The applicant had not been granted leave to do so. Nonetheless I considered it.
The complaint is that there is apprehended bias in the Tribunal’s decision.
The “particulars” to this complaint appear to be first, that the Tribunal failed to consider the “independent evidence” submitted by the applicant in response to the Tribunal’s letter on the documents he submitted, namely relevant parts of the “Criminal Procedure Law of the People’s Republic of China” (Particulars “a” and “b”) (CB 65 to CB 101).
Second, the claimed failure to consider the applicant’s own “evidence” provided in his submissions which in part was based on relevant articles in this Criminal Procedure Law (particular “c”).
Third, that the Tribunal failed to consider his evidence that he also raised questions about the sequential nature of the receipt numbers on two of the receipts for payments provided by the applicant which were issued four years apart (CB 48 to CB 49) (Particular “d”).
This latter was a part of the assessment from the DFAT that led it to question the authenticity of the documents, and was also part of the Tribunal’s letter to the applicant in setting out the information to which it had regard (see CB 54.7, CB 57.4).
I note relevant authorities in relation to apprehended bias. (See SZHPD v Minister for Immigration & Citizenship [2007] FCA 157; Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507; [2001] HCA 17; Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28; SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361; Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431; VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102).
None of the “particulars” referred to by the applicant goes anywhere near to showing that a fair minded lay observer would reasonably apprehend that the Tribunal failed to bring an open mind to the proceedings in general, and to the issue of the assessment of the documents in particular.
It cannot be said that the Tribunal failed to consider the “independent evidence” provided by the applicant, that is the Chinese Criminal Procedure Law.
This document was provided by the applicant to the Tribunal as an attachment to his submissions. Only two articles were relevant (Articles 59 and 92). These are the articles referred to by the applicant in his written submissions now to the Court.
The relevance of these two articles arises as a result of what was contained in part of the information obtained by the Tribunal and put to the applicant for comment (CB 59.3).
It cannot be said the Tribunal failed to have regard to this “evidence”. The applicant’s response to the Tribunal’s request for information was set out in full in its decision record (CB 114 to CB 115). It clearly said it was not persuaded by the applicant’s submissions in this regard (CB 116). It was not necessary for the Tribunal to report the applicant’s submissions in its “Findings and Reasons”. At least a fair reading shows that the submissions, including the reference to the two “Articles of the criminal Procedure Law” to which the Tribunal referred were those as set out earlier in its decision record.
This was a finding that was open to it on what was before it. Without anything further this does not establish that bias could be reasonably apprehended. Plainly the detailed assessments on one side outweighed the applicant’s submissions on the other. Submissions which on their face reveal the applicant’s self professed lack of relevant legal knowledge (see item 5 at CB 63).
Further, the applicant’s own “questioning” as to the sequential receipt numbers does not provide a satisfactory explanation such that it could be said that the Tribunal possessed such a closed mind that it could not be persuaded to the contrary.
It is also important to note that the transcript of the hearing itself also does not establish any basis for this complaint. Nor is it a basis for an assertion of bias that the Tribunal had concerns about the truth of the applicant’s factual account. That it was willing to make further enquiries (both of the friend in China and about the documents) reveals a mind open to persuasion. This complaint does not succeed.

Conclusion

For the applicant to succeed in his application, jurisdictional error would need to be revealed in the Tribunal’s decision. I cannot see such error. The application is dismissed.

I certify that the preceding one hundred and thirteen (113) paragraphs are a true copy of the reasons for Judgment of Nicholls FM

Associate: D Nestor

Date: 28 October 2009