SZKJU v Minister for Immigration
[2008] FMCA 228
•6 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKJU v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 228 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZKJU”. |
| Migration Act 1958 (Cth), ss.91X, 424A, 425 |
| Applicant S1266/2003 v Minister for Immigration & Multicultural Affairs [2006] FCA 1771 Attorney-General (NSW) v Quin (1990) 170 CLR 1 Commissioner of ACT Revenue v Alphaone (1994) 49 FCR 576 Minister for Immigration & Multicultural Affairs, re; ex parte Durairajasingham [2000] HCA 1 Minister for Multicultural & Indigenous Affairs v Jia (2001) 205 CLR 507 Minister for Immigration & Multicultural Affairs v Yusef (2001) 206 CLR 323 NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 NBKM v Minister for Immigration & Citizenship [2007] FCA 1413 NBKT v Minister for Immigration & Multicultural Affairs (2006) 156 FCR 419 Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal & Torres Strait Island Affairs (2000) 103 FCR 539 Re Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Applicant S154/2002 (2003) 77 ALJR 1909 Re Minister for Immigration & Multicultural Affairs; ex parte Miah (2001) 179 ALR 238 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 SZBEL v Minister for Immigration & Multicultural Affairs (2006) 231 ALR 592 SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107 SZHCW v Minister for Immigration & Citizenship [2007] FCA 688 SZHLM v Minister for Immigration & Citizenship [2007] FCA 1100 SZILQ v Minister for Immigration & Citizenship [2007] FCA 942 SZJBE v Minister for Immigration & Citizenship [2007] FCA 190 |
| Applicant: | SZKJU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 948 of 2007 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 2 November 2007 |
| Date of last submission: | 12 December 2007 |
| Delivered at: | Sydney |
| Delivered on: | 6 March 2008 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person with the assistance of a Mandarin interpreter |
| Counsel for the Respondents: | Mr J Mitchell |
| Solicitors for the Respondents: | Blake Dawson |
ORDERS
The application filed on 20 March 2007 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 948 of 2007
| SZKJU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
The applicant is a Chinese national born in 1960. His protection visa application indicates that he is married, has completed ten years of education and was unemployed before coming to Australia. From 1978 to July 2002, he was employed at an electrical switch factory in Kaifeng city, Henan Province. The factory experienced financial difficulties due to poor management and more than two thirds of the employees (600 to 700 people) lost their jobs as a result.
The workers were promised a monthly allowance of RMB200 when they were dismissed. However, these payments ceased after six months. The ex-employees commenced protesting in July 2003 in an attempt to have their payments reinstated. The protests grew in size until approximately one thousand people participated in a public demonstration in Kaifeng city. Although these protests were peaceful they came to the attention of the Public Security Bureau (PSB). The applicant states he was first questioned by the PSB in 28 August 2003 and warned by police to stop his activities against the government. Subsequently, he was questioned by the PSB on five or six other occasions. By September 2003 much larger public demonstrations with ten thousand unemployed people protested in front of Kaifeng government buildings. The protests came to the special attention of the government and the PSB started to investigate the organisers.
The applicant arrived in Australia on 24 February 2004 and applied to the Department of Immigration for a Protection (Class XA) visa on 5 March 2004. A delegate of the Minister refused to grant the visa on 1 June 2004 and the applicant sought review of the delegate’s decision by the Refugee Review Tribunal (“the Tribunal”). On 15 November 2004, the Tribunal affirmed the delegate’s decision. The applicant sought review of the Tribunal’s decision by the Federal Magistrates Court and on 8 December 2005 the Court set aside the decision and remitted the matter to the Tribunal. A second Tribunal again affirmed the delegate’s decision on 16 March 2006 and the applicant again appealed that decision. On 6 September 2006, the Federal Magistrates Court set aside by consent the second Tribunal’s decision of 16 March 2006 and remitted the matter to the Tribunal to be determined according to law. It is the decision of the third constituted Tribunal of 31 January 2007 (reference 060912175) that is the subject of review before this Court.
The applicant seeks a protection visa on the basis that he will be persecuted by authorities if he returns to China. Since his departure from China, he was told by his family that he should not return otherwise he would be arrested because he was on a black list. He claims that the authorities informed his family of this. Despite not stating any previous offences at the first Tribunal hearing, he claims that he was charged with anti-socialism and anti-party offences in China.
A Court Book (“CB”) prepared and filed by the first respondent is marked Exhibit “A”. This document was read into evidence.
The applicant’s original application contains two particularised grounds of review. At the first Court date, leave was granted to file an amended application giving complete particulars of each ground of review relied upon by 11 July 2007. The applicant complied with this order and filed an amended application which contained one further ground. These grounds and particulars are set out below.
Consideration
At the first Court date, the applicant indicated that he wished to participate in the scheme that gives unrepresented applicants in refugee matters independent legal advice. The applicant was allocated a panel advisor and the Court file indicates that he attended a conference with the advisor and received advice.
Ground one
1. The Tribunal misunderstood my review application and failed to consider an essential claim in my application; or the Tribunal failed to identify and consider the relevant issues to be determined; and incorrectly assessed my credibility.
Particulars
a. The Tribunal failed to consider my evidences as follows:
“…In China, my address of household registration, i.e. my hukou, was at No.1 West Xipo Street, Kaifeng City, where my wife and I lived together with my mother and it had never been changed; but from June or July 2003, I got another living place in Sheng Fu Street, Kaifeng City, where I only lived together with my wife. In other words, I had two residential addresses from June or July 2003; and I sometimes lived together with my mother at No.1 West Xipo Street, and sometimes with my wife at Sheng Fu Street. However, my hukou (household registration) was never changed. So, according to Chinese tradition, we normally regarded the address, where household had been registered, as our formal residential address; and that was why I stated, in my application form, that my residential address had never been changed from March 1994 to February 2004. But, I was not hiding where I was in China.
“…Frankly speaking, I have not been provided a genuine opportunity to describe all of my protests or demonstrations in China as a whole either at the first Tribunal’s hearing or the second one or the third one; instead, my evidences had strictly been restricted by those questions from the presiding members. It made me very difficult, and particularly, being questioned respectively by three of different presiding members about similar events but with different understandings or different opinions, I was sometimes confused indeed; and sometimes, I really did not know which events or activities that the presiding member wanted me to talk about. The evidence are that I have been involved in the following activities in China:”
“…On 1 July 2003, about 400 unemployed people were divided into two groups: one group was gathered in the factory; and the other one was around the local government; but we did not have any demonstrations on that day; instead, Mr. Wang and I called some people to discuss our plan for public protests.
“…On 2 July 2003, Mr Wang and I organised an open protest for the first time. There were about 40 participants; and our demonstration team was along main streets in the Kaifeng city; and then divided into two groups; and I led one group to the factory.
“…After that, in order to organise a large protest, Mr Wang and I called some people together first; and then divided them into 4 small groups, distributing leaflets in Kaifeng City and organising meetings with unemployed people from different areas.
“…On 23 August 2003, Mr Wang and I organised about 1000 people to have public demonstration, starting from the train station of Kaifeng City and then along main streets and finally having a public rally in the main park of the city. We also distributed leaflets to the public; and gave speeches at different places, such as shopping centres, intersections, parks etc. The demonstration was taken around 2 hours and it was peaceful.
“…Around Chinese New Years (22 January 2004), Mr Wang and I organised our protest for the last time and we divided our people into 3 groups; and then distributed leaflets on the train along the main rail lines.
“…Again, during the Tribunal’s hearings with different presiding members at different times, I always expected to have a chance to describe my claim completely. Unfortunately, I always felt that my claims had been cut into small pieces; and I had to face those questions put to me. Particularly, sometimes, I was really confused by those questions; and I sometimes really did not understand the presiding member’s questions. As a matter of fact, I was questioned by the PSB for the first time on 28 August 2003; and following that, I was questioned by the PSB for about 5 or 6 times. However, although I was listed as one of suspicious for organising protests by the PSB later on, the police did not have any evidences directly against me at that time. I, therefore, was able to leave the country on a passport in my own name in the end.
“…Before I left the China, the police did not come to my home. As I have mentioned above, the PSB did not have any evidences directly against me at that time; otherwise, it would be impossible for me to leave China on a passport in my own name. However, my situation has been changed since my departure from China. Mr Wang was arrested early in June 2004; and since then, the police have visited my home in China for at least 3 times; and I have been regarded as one of the key persons who have organised anti-government protests.
“…The police did not take any documents in relation to my protests such as leaflets during their visiting my home; but they indeed took most of my personal documents such as my ID card, marriage certificate, household registration books, etc, including some photos with my friends.
“…My trip to the overseas was arranged by my friend, and the friend did not tell me too many details about it; and what I had done was just simply giving my passport to the friend. The visa might be issued on 4 February 2004, but the friend did not give me the passport on which an Australian visa had been attached until three days before my leaving China. In other words, as soon as I got the passport with the visa, I immediately left country…”
b. In the Tribunal’s decision, I have found that the Tribunal has completely misunderstood my evidences or information mentioned above; failed to consider my above-mentioned essential claims; failed to identify and consider the relevant issues to be determined; and as a result, the Tribunal has incorrectly assessed my credibility.
The particulars of ground one of the amended application reproduce the applicant’s response to the Tribunal’s “Invitation to Comment on Information” letter dated 12 January 2007 (CB 132-135). That response was sent by the applicant’s agent, Pricilla International Co Pty Ltd, and dated 29 January 2007 (CB 136-141). The contents of that response are also contained in the Tribunal decision under the sub-heading “Response to section 424A notice” (CB 164-165).
The applicant confirmed that he had not complied with the order to prepare written submissions but wished to make oral submissions. He said that he had informed each Tribunal at each hearing of the details of his household registration but that evidence was not accepted. He stated that besides owning his own home, he also resided with his parents at different times.
Mr Mitchell, for the respondents, contends that the Tribunal found that the applicant’s evidence about his residential address in Kaifeng city cast serious doubts on his reliability as a witness. This was based on discrepancies between the claims and testimonies given at three separate Tribunal hearings. Those discrepancies provided a rational basis for the Tribunal’s adverse credibility finding, which is a finding of fact open to it on the material before it: Minister for Immigration & Multicultural Affairs, re; ex parte Durairajasingham [2000] HCA 1 at [67] per McHugh J.
Mr Mitchell contends that the Tribunal’s findings as to the applicant’s credibility subsumed all his claims (CB 170). In the circumstances the Tribunal was not required to give reasons why it accepted or rejected individual pieces of evidence and contentions made by the applicant: Minister for Immigration & Multicultural Affairs v Yusef (2001) 206 CLR 323 at [68], [73]-[74] and [91]. The Tribunal considered the applicant’s response to the s.424A letter including reproducing it in the decision. It was not satisfied with the applicant’s explanation of the inconsistencies in his claims and evidence in respect of this issue.
I agree with the submissions made by Mr Mitchell that the determinative issue for the Tribunal was the applicant’s credit. I also agree that there is no evidence before the Court which would lead me to infer that the determinative issues were not put to the applicant at the third Tribunal hearing on 10 January 2007, or that the issues raised during that hearing were different to those raised in the s.424A letter of 12 January 2007: NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 at [21]. A transcript of the third Tribunal hearing was not tendered as evidence.
I also agree with Mr Mitchell’s submission that the Tribunal’s reasons clearly show that the inconsistencies in his evidence were raised with the applicant and that this formed the basis for its credibility findings (CB 158-162). For example, the Tribunal noted:
The Tribunal discussed with the applicant its concern relating to his case. It was put to him that inconsistencies in his evidence raised doubts about his credibility. (CB 162.5)
Each particular of ground one is in the same term as the applicant’s response to the “Invitation to Comment on Information”. There has been no attempt by the applicant to summarise or paraphrase any part of the response with the contents being reproduced in full. In the circumstances, a claim that the Tribunal completely misunderstood the material, failed to consider it or failed to identify and consider the relevant issues cannot be sustained and the ground should be dismissed.
Ground two
2. The Tribunal failed to comply with its obligation under s.424A(1) of the Act.
Particulars:
a. It is the fact that the Tribunal, indeed, wrote to me after the Tribunal’s hearing (it was actually my third hearing at the Tribunal) and invited me to comment on some of issues in relation to my review application, which might be regarded as the evidence that the Tribunal had comply with its obligations under s.424A(1) of the Act.
b. However, to my understanding, the meaning of s.424A(1) of the Act, is not only to create a fair opportunity for the applicant like me to provide further evidences or to present sufficient arguments in support of his or her review application; but also to create an opportunity for the Tribunal to consider the applicant’s evidences or arguments completely, fairly and properly.
c. Unfortunately, in my case, the Tribunal did create an opportunity for me; but it has, obviously, failed to consider the applicant’s evidences or arguments completely, fairly and properly.
d. 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.
As indicated above, the applicant confirmed that he had not prepared any written submissions in support of his application. His oral submissions were limited to addressing one aspect of the particulars of ground one relating to his residence in Kaifeng city. No other aspects of the applicant’s claims were addressed.
Mr Mitchell submits that after the hearing, the Tribunal particularised the inconsistencies in its “Invitation to Comment on Information” letter. Mr Mitchell further submits that the applicant was given an opportunity to respond to those issues: SZBEL v Minister for Immigration & Multicultural Affairs (2006) 231 ALR 592 at [33]-[43].
Mr Mitchell submits that the Tribunal’s obligation under s.425 of the Migration Act 1958 (“the Act”) is to put the determinative issues which arose before it to the applicant, see SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs at [43]-[44] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ:
[43] The delegate had not based his decision on either of these aspects of the matter. Nothing in the delegate's reasons for decision indicated that these aspects of his account were in issue. And the Tribunal did not identify these aspects of his account as important issues. The Tribunal did not challenge what the appellant said. It did not say anything to him that would have revealed to him that these were live issues. Based on what the delegate had decided, the appellant would, and should, have understood the central and determinative question on the review to be the nature and extent of his Christian commitment. Nothing the Tribunal said or did added to the issues that arose on the review.
Conclusion: entitlement to relief
[44] The Tribunal did not accord the appellant procedural fairness. The Tribunal did not give the appellant a sufficient opportunity to give evidence, or make submissions, about what turned out to be two of the three determinative issues arising in relation to the decision under review.
However, the Tribunal was not obliged to put to the applicant its natural and obvious appraisals of his evidence or give him a running commentary, see SZBEL at [38] and [48]:
38. When it is said, in the present matter, that the appellant was not put on notice by the Tribunal that his account of certain events would be rejected as "implausible", and that this conclusion was "not obviously ... open on the known material", the focus of the contention must fall upon what was "obviously ... open" in the Tribunal's review. That can be identified only by having regard to "the issues arising in relation to the decision under review". It is those issues which will determine whether rejection of critical aspects of an applicant's account of events was "obviously ... open on the known material".
48. Secondly, as Lord Diplock said in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry[24]:
"the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished."
Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.
See also Commissioner of ACT Revenue v Alphaone (1994) 49 FCR 576 at [59]; SZHCW v Minister for Immigration & Citizenship [2007] FCA 688 at [26]; Applicant S1266/2003 v Minister for Immigration & Multicultural Affairs [2006] FCA 1771 at [34]; Re Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Applicant S154/2002 (2003) 77 ALJR 1909 at [54], [85]-[86]; Re Minister for Immigration & Multicultural Affairs ; ex parte Miah (2001) 179 ALR 238 at [31], [142], [194]; PilbaraAboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal & Torres Strait Island Affairs (2000) 103 FCR 539 at [61]-[70].
It is submitted that the third Tribunal’s appraisal of the applicant’s claims could not have surprised him. The two previously constituted Tribunals also made adverse creditability findings. The first Tribunal had concluded:
The Tribunal has decided that the applicant’s claims that he was charged with anti-government activities by the authorities in Kaifeng lacks credibility. The applicant did not raise the claim until the hearing and when he was asked why he neglected to present the claim earlier he was unable to provide a plausible explanation. The Tribunal finds that if indeed the applicant was charged with a political offence by the authorities in China it would have been easier to present the claim in support of the application. The Tribunal finds that the applicant fabricated the claim at the hearing to enhance the application and for this reason the claim is not accepted by the Tribunal. (CB 69.4)
The second Tribunal found:
The Tribunal also does not accept that the applicant has been subject to any past harm or adverse attention from the PSB or any other officials in Kaifeng or anywhere else in China – arising out of now rejected protests, or any other incident. The applicant’s account of the PSB’s interest in him contains anomalies, inconsistencies and improvisations which, in the Tribunal’s opinion, indicate that the claims are fabricated. (CB 111-112)
Mr Mitchell submits that the conclusions of the third Tribunal naturally and honestly arose from matters raised at that hearing and could not have surprised the applicant. It had put the determinative issues to the applicant and provided him with an opportunity to respond. In issue was the applicant’s credit based on inconstancies in the claims made before the delegate and the three separately constituted Tribunals. I am satisfied that there is no evidence before this Court which would lead me to infer that the determinative issues were not put to him at the third Tribunal hearing. Nor is there any suggestion that the issues raised in the third Tribunal hearing were different to those raised in the subsequent “Invitation to Comment on Information” letter: NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 at [21]. There is no transcript of the Tribunal hearing tendered as evidence.
The third Tribunal decision summarises the issues discussed with the applicant under the heading “The hearing” (CB 158-162). The various inconsistencies in the applicant’s own evidence are recorded and provide the basis for the Tribunal’s credibility finding. The Tribunal raised with the applicant its concern about the credibility of his evidence:
The Tribunal discussed with the applicant its concerns relating to his case. It was put to him that the inconsistencies in his evidence raised doubts about his credibility. (CB 162.5)
In the circumstances and subject to the submissions set out below, I am satisfied that the Tribunal was not required to hold a fourth hearing to give the applicant a further opportunity to respond to those issues.
During the hearing in this Court, I raised with Mr Mitchell the impact of the recent decisions in SZILQ v Minister for Immigration & Citizenship [2007] FCA 942 at [32] per Buchannan J, SZHLM v Minister for Immigration & Citizenship [2007] FCA 1100 at [34] per Cowdroy J and NBKM v Minister for Immigration & Citizenship [2007] FCA 1413 at [32] per Siopis J. At the end of the hearing leave was granted to the parties to file supplementary submissions addressing this issue. Mr Mitchell complied with this request and filed supplementary submissions on 12 December 2007.
Mr Mitchell submits that the matter before this Court should be distinguished from SZILQ and SZHLM on the following grounds:
(a) In SZILQ the Tribunal denied the applicant a further hearing following remittal of the matter and reconstitution of the Tribunal. The Tribunal, as reconstituted, assessed the applicant’s credit, notwithstanding that the applicant had not appeared before the reconstituted Tribunal, based on an issue that had not previously been raised with the applicant at a Tribunal hearing, namely his motivation for attending Christian church services.
In the present case, the applicant attended a hearing before the Tribunal subsequent to remittal of his application and reconstitution of the Tribunal for a third time. At that hearing the determinative issue, namely his credit, was squarely put to him: CB 158-162. There is no evidential basis for an inference otherwise. The Tribunal’s findings were based on and were consistent with the issues raised at the third Tribunal hearing. In that respect, NBKM is apposite authority for the proposition that, in circumstances where there is no new issue identified by the Tribunal as being determinative of the applicant’s claims after the Tribunal hearing then the Tribunal is not required to hold a further hearing: NBKM at [32]. In the present case, the Tribunal raised the determinative issue, namely the applicant’s credibility based on inconsistencies in his evidence, with the applicant at the third hearing. Nothing further emerged as determinative of the applicant’s claims and therefore the Tribunal was not obliged to hold a further hearing.
(b) In SZHLM the Tribunal denied the applicant a further hearing following remittal of the matter and reconstitution of the Tribunal. The Tribunal, as reconstituted, twice invited the applicant to comment on information that formed part of the reason for decision pursuant to s.424A(1). No further hearing was held. Cowdroy J characterised those invitations as requests for further information and held that the reconstituted Tribunal was required to carry out its statutory functions as if the first hearing had not taken place. His Honour held that the Tribunal’s review had not been completed because the Tribunal had requested further information from the applicant and not then held a further hearing: see SZHLM at [32]-[34].
In the present case, the 424A letter was not a request for information. It was an attempt by the Tribunal to comply with what it perceived to be its procedural obligations under s.424A(1). As it turned out, it was not obliged to put the information referred to in the 424A letter to the applicant pursuant to s.424A(1) as the information in the applicant’s application for protection visa did not in its own terms constitute rejection, denial or undermining of the applicant’s claims and the appraisal of that information was not itself information: SZBYR at [17]-[25]. The remainder of the applicant’s evidence was given by the applicant to the Tribunal for the purpose of his application for review, notwithstanding that it was given to previously constituted Tribunals, and was excepted from s.424A(1) by reason of s.424A(3): NBKT v Minister for Immigration & Multicultural Affairs (2006)156 FCR 419 at [41]-[64]; SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107 at [39]; SZJBE v Minister for Immigration and Citizenship [2007] FCA 190 at [17]; SZITD v Minister for Immigration & Citizenship [2007] FCA 1343 at [22]; SZGYV v Minister for Immigration & Multicultural Affairs [2007] FCA 1313 at [5]. The Tribunal was entitled to make reference to the evidence that the applicant had given to the Tribunal as twice previously constituted: SZJBE. To the extent that the reasoning in SZHLM is inconsistent with Full Federal Court authority in SZEPZ that reasoning is erroneous and the Court should apply the Full Federal Court authority of SZEPZ and the authorities of SZJBE, SZITD and SZGYV which have clearly applied SZEPZ or are consistent with the propositions accepted by the Court in SZEPZ.
Further, the issues arising from the information referred to in the 424A letter had already been put to the applicant at the third Tribunal hearing and he had had an opportunity to respond to the Tribunal’s concerns regarding his credibility at that hearing: CB 158-162. The Tribunal’s review was not incomplete in the sense discussed in Applicant NAFF of 2002 v Minister for Immigration and Multicultural & Indigenous Affairs (2004) 221 CLR 1as the Tribunal had held three complete hearings and sent the 424A letter. There is no evidential basis for an inference otherwise. Contrary to what appears to be implicit in the reasoning in SZHLM sections 424A(1) and 425 do not have a sequential operation: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162 at [55]-[63]; [159]-[164] and [185]; see also SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609 at [13]. That is, just because an invitation to pursuant to s.424A(1) is sent to an applicant after a hearing has been held does not necessarily mean that a further hearing must follow. The authorities have clearly held that it is permissible for a Tribunal to send a letter pursuant to s.424A(1) after the hearing without holding a further hearing in respect to the information particularised in that invitation: see NBKM at [32]; SZGBT v Minister for Immigration & Citizenship [2007] FCA 565 at [25]; Win v Minister for Immigration & Multicultural Affairs [2001] FCA 56 at [24]-[28]; Ex parte Applicant M17/2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 86 at [61]-[65]. No error necessarily arises when an invitation pursuant to s.424A(1) is sent after a Tribunal hearing. To the extent that the reasoning in SZHLM is inconsistent with SAAP and the authorities referred to above, that reasoning is erroneous and the Court should prefer the authority of SAAP and the other authorities that have applied SAAP.
Ground three
The Tribunal failed to consider my claims, properly and fairly.
Particulars
a) I believe that I have carefully explained the reasons why there were some of inconsistencies in my claims; and particularly, I have stated that:-
Frankly speaking, I may understand that the Tribunal may draw an adverse credibility finding on the basis of inconsistencies identified between the information I provided to the Department of Immigration and Multicultural Affairs and the information provided at the review stage, including my oral evidence at the first, second and third Tribunal hearings. However, in the meantime, I do indeed expect, sincerely, that the Tribunal could kindly understand my situation – if I did not have a real chance of being persecuted on my return to China, I would never ever spend nearly three years to make my claims to relevant authorities repeatedly for at least 9 times (once to the department; six times to the Tribunal (including three hearings before different constituted Tribunal and three times in submitting written materials); and two times to the Federal Court).
I, also, sincerely hope the Tribunal could kindly understand my particular difficulties in making my claims to the Department or the Tribunal, because I have to undertake huge mental and psychological pressure, particularly while I had to discuss my claims with the Tribunal face to face. I might make some mistakes, but on the other hand, I was unable to avoid them owing to huge pressure.
b) However, in my case, the Tribunal refused to contact a real chance test in making its decision; the Tribunal refused to consider my application in my favour; and refused to look at my case as a whole.
In summary, I have never ever agreed that my application has been assessed by the Tribunal fairly and carefully.
In this ground, the applicant has reproduced part of his response to the s.424A notice dated 29 January 2007.
Mr Mitchell submits that the Tribunal considered the applicant’s explanation for the various inconsistencies in his claims together with the evidence provided in the response to the s.424A letter (CB 165,167-170) but it was not satisfied with that explanation (CB 170). I agree that those findings were findings of fact, the fairness of which is not open to review by this Court: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at [35]-[36]. Nor was the Tribunal under any obligation to put its appraisals of the applicant’s credit to him as appraisals based on inconsistencies in his evidence, or was not information of the nature covered by s.424A(1): SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [18]-[25]. The information that formed the basis for the credibility finding was from the applicant’s testimony and also does not fall within s.424A(1): NBKT v Minister for Immigration & Multicultural Affairs (2006) 156 FCR 419 at [41]-[64]; SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107 at 39; SZJBE v Minister for Immigration & Citizenship [2007] FCA 190 at [16].
I also agree with Mr Mitchell that the Tribunal’s findings were based on consideration of the evidence which included the applicant’s testimony before the Tribunals (particularly the third Tribunal) and his response to the s.424A letter. Simply because the third Tribunal had concerns about his credibility does not indicate any pre-judgment or failure to act in good faith on its part. A credibility finding does not demonstrate that a Tribunal is not open to persuasion or that it had a pre-existing state of mind which disabled it from undertaking a proper evaluation of the relevant materials before it: Minister for Multicultural & Indigenous Affairs v Jia (2001) 205 CLR 507 at [35], [71] and [72]. Nor does it indicate that the Tribunal did not act in good faith: SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 at [43]. I am satisfied that this ground of review cannot be sustained and should be dismissed.
Conclusion
The applicant in these proceedings was a self represented litigant assisted at the hearing by a Mandarin interpreter. The applicant was also assisted in the preparation of his initial and subsequent amended application by an unidentified third party with limited understanding of judicial review. The applicant demonstrated that he was completely unaware of the function of the Court and how to present his case. He relied totally on the amended application and made limited submissions not directly relevant to the review process.
Mr Mitchell assisted with two sets of written submissions, the second of which addressed the requirement of a further Tribunal hearing in light of the recent Federal Court decisions. This was not pleaded by the applicant or referred to in his oral submissions. However, the procedural history of the matter strongly suggests that this issue should be considered by this Court. I am satisfied that the circumstances of this matter distinguish it from those authorities. I am satisfied that none of the grounds of the amended application identify any jurisdictional error that can be sustained. It is also not apparent from an independent assessment of the decision record that any other jurisdictional error exists. I am satisfied that the application should be dismissed with costs.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 6 March 2008
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